In a revolting display of cowardly fear mongering, the three Democratic CPSC Commissioners yesterday wrote the House Committee on Energy and Commerce and its Subcommittee on Commerce, Manufacturing and Trade to protest the proposed CPSIA amendment. In this letter, in defense of the lead-in-substrate provisions, the Dems sow fear by suggesting what you might do:
"The CPSIA set one of the most protective lead limits for children's products in the world. The public health community continues to hold its overwhelming consensus: There is no safe level of lead. We oppose any change in the law that would lead to an increase in the DOSES OF LEAD to which our children are exposed on a daily basis, particularly when the marketplace has for the most part already adjusted to lower lead levels and is well on its way to getting the lead out of children's products." [Emphasis added]
Hmmmm. Apparently we evil toymakers, sinister educational product makers, monstrous t-shirt and jeans producers, venal shoemakers, diabolic rhinestone merchants, demonic ATV purveyors, fiendish motocross enthusiasts, vile vending machine operators, corrupt jewelers, slimy resale shop owners, worthless book publishers, perverse pen companies, satanic carpet weavers - we all are just waiting for the CPSC to look the other way so we can "dose" children with lead.
This kind of asinine accusation normally would be something to deride and lampoon in this space, but in this case frankly, it's not at all funny. Here you have three CPSC Commissioners with a majority vote (including Chairman Inez Tenenbaum) going national with serious, maligning insults of our values and our integrity. They can hardly restrain themselves - they go further to assert that we have only "for the most part adjusted" to the new rules - you know, by firing people, cutting products, withdrawing from markets.
This is your "leadership" on the Commission. I want to vomit.
CPSC Commissioners are appointed by the President. I wonder if a better word is "planted".
The letters make clear where children have lead exposure risk. Lead in D.C. tap water, no, that's fine - what can anybody do about THAT? House paint, environmental sources - nah! No, the real problem is industry and its "dosing" through children's products. The last line of defense is the CPSIA. The three Dem Commissioners put it succinctly - change the law and poison children. Better to over-regulate than under-regulate because it's a zero-sum game, right?
As usual, the Dems don't mention that THEY CAN'T PRODUCE EVEN ONE INJURY VICTIM FROM LEAD-IN-SUBSTRATE IN CHILDREN'S PRODUCTS. There are more than 50 million children in this country in the regulated age group and no one can find a single injury victim - EVER. Nonetheless they apparently think it's perfectly fine to wag their fingers at us and accuse us of unspeakable acts.
Who'd say anything, anyhow? Won't get fooled again. . . .
I guess we have a hint here how these people might vote on the technological feasibility of 100 ppm. Giving them an extra year to lower the boom won't do anything to protect my employees or my customers - they are TELLING US that the die is cast. That's because you and I apparently want to "dose" children with lead the first chance we get! They reinforce the hyperbolic tone by standing pat on the age limits under the CPSIA - we NEED the 12 year old limit. Why? Because Mommy says so. Junk science to the rescue! We can't have kids eating their ATVs, can we?
Does anyone wonder why trust in this agency is destroyed beyond repair? Who in the business community would ever expect to get a fair shake from these consumer group front men? Government for all us? Hardly.
Defending themselves on a weak point, the Dems contend they are sympathetic to small business. Myself, I can't measure commitment by limp and syrupy words of consolation - I look at what they do, not what they say. These people have done precisely ZIPPO for small business after three years of begging, pleading, screaming. I am tired of hearing about how much they CARE about small business. [Guess who drafted the letter?] As a friend of mine used to say, it's bullpucky.
Here's a shocker: I actually agree with one thing these people say - that parents deserve safe products regardless of who makes them. Of course that makes sense (no one cares whether a tortfeasor is a big company or a small company) which is why I want sensible standards that apply equally to everyone. In this case, the government should stop telling us how to run our businesses. Make a reasonable set of standards based on a real and defined "substantial product hazard" standard and go from there. This is parent-friendly and quite workable for small business.
Of course, my suggestion would make these Democrats much less important and certainly less heroic. Their letter makes clear who "saved" America - the CPSIA, the Dems in Congress and the Dems on the Commission. They're the ones who really CARE.
Won't get fooled again . . . .
Fittingly, the letter wraps up with words dripping with insincerity: "Nevertheless, while it is true that no one, including us, wishes to over-regulate, similarly we cannot support under-protecting the American consumer, particularly our nation's children."
In other words, the Democrat Commissioners are daring Congress to loosen the nose around out necks and are prepared to blame them if anything goes wrong. This also provides cover for zealot Senators who will make sure you have a great opportunity to go bankrupt or remain under the thumb of their out-of-control agency. I don't think it's much of a stretch to say it looks like a conspiracy - Democrats against you.
It would be wrong to call this letter disillusioning. That happened a long time ago. It also conveys little new information. Anyone truly shocked by this letter by these authors has been asleep at the wheel for the last three years. This merely confirms or updates what we already knew. I don't have a solution to people like this running the show. I can't do anything about it. One of them, Thomas Moore, is now about six months past the end of his term. Maybe Congress forgot about him.
Pay attention today. The stakes are high and getting higher. The CPSC is working against you. We will need keep fighting to survive.
Showing posts with label Overly Broad. Show all posts
Showing posts with label Overly Broad. Show all posts
Thursday, April 7, 2011
Tuesday, March 22, 2011
CPSIA - In My Fantasies, the CPSC is Just Like Homeland Security
On Monday, March 15, the Department of Homeland Security did something we probably will never see from this CPSC:
"[Docket No. DHS–2011–0015]
Reducing Regulatory Burden; Retrospective Review Under Executive
Order 13563
AGENCY: Office of the General Counsel, DHS.
ACTION: Notice and request for comments.
SUMMARY: Pursuant to Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ issued by the President on January 18, 2011, the Department of Homeland Security (Department or DHS) must develop a preliminary plan to facilitate the review of existing DHS significant regulations through the use of retrospective analyses. The preliminary plan will include criteria for identifying existing DHS significant rules that might be modified, streamlined, expanded, or repealed, so as to make DHS’s regulatory program more effective or less burdensome in achieving its regulatory objectives. The Department is soliciting views from the public on how best to develop its preliminary plan. The Department is also seeking views from the public on specific existing significant DHS rules that the Department should consider as candidates for modification, streamlining, expansion, or repeal. These efforts will help DHS ensure that its regulations contain necessary, properly tailored, and up-to-date requirements that effectively achieve regulatory objectives without imposing unwarranted costs." [Emphasis added]
Imagine that, an agency that wants to streamline and to avoid imposing unwarranted costs!
Of course, Homeland Security is not facing anything as dreaded as LEAD - have I mentioned that there is NO safe level of lead? - and can probably cut a few corners without any untoward effects. Homeland Security doesn't seem too busy, just checking a few boarding passes, looking serious and so on. I guess when you have an unimportant, almost trivial responsibility in the government, you can afford to review your rules for fat, waste and stupidity. But when CHILDREN'S SAFETY is concerned, and bicycle licking is possibly at stake, well then, you can't take ANY chances.
Damn the cost, man, we have to be SAFE!!!
"[Docket No. DHS–2011–0015]
Reducing Regulatory Burden; Retrospective Review Under Executive
Order 13563
AGENCY: Office of the General Counsel, DHS.
ACTION: Notice and request for comments.
SUMMARY: Pursuant to Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ issued by the President on January 18, 2011, the Department of Homeland Security (Department or DHS) must develop a preliminary plan to facilitate the review of existing DHS significant regulations through the use of retrospective analyses. The preliminary plan will include criteria for identifying existing DHS significant rules that might be modified, streamlined, expanded, or repealed, so as to make DHS’s regulatory program more effective or less burdensome in achieving its regulatory objectives. The Department is soliciting views from the public on how best to develop its preliminary plan. The Department is also seeking views from the public on specific existing significant DHS rules that the Department should consider as candidates for modification, streamlining, expansion, or repeal. These efforts will help DHS ensure that its regulations contain necessary, properly tailored, and up-to-date requirements that effectively achieve regulatory objectives without imposing unwarranted costs." [Emphasis added]
Imagine that, an agency that wants to streamline and to avoid imposing unwarranted costs!
Of course, Homeland Security is not facing anything as dreaded as LEAD - have I mentioned that there is NO safe level of lead? - and can probably cut a few corners without any untoward effects. Homeland Security doesn't seem too busy, just checking a few boarding passes, looking serious and so on. I guess when you have an unimportant, almost trivial responsibility in the government, you can afford to review your rules for fat, waste and stupidity. But when CHILDREN'S SAFETY is concerned, and bicycle licking is possibly at stake, well then, you can't take ANY chances.
Damn the cost, man, we have to be SAFE!!!
Monday, October 18, 2010
CPSIA - Washington Times SLAMS "Children's Product" Definition
EDITORIAL:
Bureaucrats way out of tune
Government imposes regulations on children's CDs and DVDs
By THE WASHINGTON TIMES
The Washington Times
7:09 p.m., Wednesday, October 13, 2010
The government wants to regulate Hannah Montana CDs and DVDs. The bureaucrats at the Consumer Product Safety Commission (CPSC) insist that the discs marketed to children be tested for lead, but when the same young starlet churns out raunchier material under her real name, Miley Cyrus, they will escape scrutiny. Never mind that the same 10-year-olds will likely end up buying both products.
For the rest of the article, please click here.
Bureaucrats way out of tune
Government imposes regulations on children's CDs and DVDs
By THE WASHINGTON TIMES
The Washington Times
7:09 p.m., Wednesday, October 13, 2010
The government wants to regulate Hannah Montana CDs and DVDs. The bureaucrats at the Consumer Product Safety Commission (CPSC) insist that the discs marketed to children be tested for lead, but when the same young starlet churns out raunchier material under her real name, Miley Cyrus, they will escape scrutiny. Never mind that the same 10-year-olds will likely end up buying both products.
For the rest of the article, please click here.
Sunday, September 20, 2009
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. . . .
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. . . .
Sunday, February 8, 2009
CPSIA - CPSC Commissioners Speak Out
From: Rick Woldenberg
Sent: Sun 2/8/2009 3:09 AM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.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'; '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; richard.goldberg@mail.house.gov; matthew.abbott@mail.house.gov; 'Brian_hendricks@hutchison.senate.gov'; 'david@commerce.senate.gov'; 'Cathy.hurwit@mail.house.gov'; pweller@cpsc.gov; mgougisha@cpsc.gov; bridget_petruczok@boxer.senate.gov; michael_daum@cantwell.senate.gov; bill_ghent@carper.senate.gov; hap_rigby@demint.senate.gov; frannie_wellings@dorgan.senate.gov; david_quinalty@ensign.senate.gov; james_chang@inouye.senate.gov; jonathan_becker@klobuchar.senate.gov; michelle_schwartz@lautenberg.senate.gov; lee_dunn@mccain.senate.gov; sonya_wendell@mccaskill.senate.gov; matthew_hussey@snowe.senate.gov; brendan_plack@thune.senate.gov; hugh_carroll@wicker.senate.gov; elissa.levin@mail.house.gov; christopher.schepis@mail.house.gov; theresa.lavery@mail.house.gov; greg.louer@mail.house.gov; brian.diffell@mail.house.gov; amy.ingham@mail.house.gov; laura.vaught@mail.house.gov; matt.johnson@mail.house.gov; saul.hernandez@mail.house.gov; aaron.shapiro@mail.house.gov; rick.axthelm@mail.house.gov; steve.plevniak@mail.house.gov; scott.cleveland@mail.house.gov; jonathan.smith@mail.house.gov; pat.cavanagh@mail.house.gov; rachelle.wood@mail.house.gov; michael.gaffin@mail.house.gov; angela.manso@mail.house.gov; dana.lichtenberg@mail.house.gov; derrick.ramos@mail.house.gov; elizabeth.stack@mail.house.gov; lori.pepper@mail.house.gov; david.bahar@mail.house.gov; mark.bayer@mail.house.gov; Neeta.Bidwai@mail.house.gov; kyle.victor@mail.house.gov; chris.debosier@mail.house.gov; morgan.jones@mail.house.gov; matthew.dockham@mail.house.gov; tuley.wright@mail.house.gov; cade.king@mail.house.gov; betsy.christian@mail.house.gov; chris.herndon@mail.house.gov; Mike.Ward@mail.house.gov; laura.abshire@mail.house.gov; randi.meyers@mail.house.gov; Greta.Hanson@mail.house.gov; liz.muro@mail.house.gov; jamie.euken@mail.house.gov; jon.oehmen@mail.house.gov; brad.schweer@mail.house.gov; michael.beckerman@mail.house.gov; valerie.henry@mail.house.gov; Becky.Claster@mail.house.gov; tiffany.guarascio@mail.house.gov; jeff.mortier@mail.house.gov; Christopher_day@billnelson.senate.gov; john_phillips@kerry.senate.gov; Kerrie Campbell (kcampbell@manatt.com); bryan_hickman@hatch.senate.gov; Ben.Kershaw@mail.house.gov; tom_jones@commerce.senate.gov; Lisa Brown (lbrown@who.eop.gov); csunstein@who.eop.gov; stacy_ettinger@jec.senate.gov; csunstei@uchicago.edu; rpalmieri@nam.org; dbrown@muchshelist.com
Subject: CPSIA - CPSC Commissioners Speak Out
Have you read the statements of Commissioners coming out of the CPSC lately? The statements of Commissioners Nancy Nord and Thomas Moore of the CPSC given after the rejection of the NAM petition for a stay of the new lead standards under the CPSIA (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://cpsc.gov/library/foia/ballot/ballot09/nam.pdf), as well as their statements given in support of the new interim final rule exempting certain items from the lead standards (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://cpsc.gov/library/foia/ballot/ballot09/101lead.pdf) are very revealing.
Rejection of the NAM Petition. As my recent letters confirm, the NAM petition decision was a foregone conclusion, as the CPSC is prohibited under Sections 101(b)(1) and 101(e) of the CPSIA from changing the new standards in any way for any product. Thus, the CPSC was legally prohibited from staying the new lead standards and the Commissioners made the legally proper decision to vote down the petition under your CPSIA. Interestingly, as another of my recent letters notes, after Acting Chairman Nord made this very point in writing to Representative Waxman et. al. in her letter of January 30, those House and Senate leaders responded on February 3 by demanding that she resign. Some great open dialogue there!
The NAM petition, it should be noted, focused on the retroactive CPSIA lead standards because the NAM letter preceded the NRDC phthalates case decision last Thursday. Presumably, had NAM known that the phthalates ban would become retroactive instantaneously two business days before its February 10 effective date; their request would have included a stay request on the phthalates ban, too. Alas, we cannot wind back the clock, so the Commissioners did not consider this issue. They would have been legally prohibited from taking any action on the phthalates standard, of course, but the Commissioners would have been free to comment on it. In the below discussion, I believe you can safely read between the lines and infer parallel references to phthalates in the Commissioners discussion of the issues.
The statements of Nord and Moore are quite informative. After reiterating the fact that the Commission is prohibited from staying the lead standard, Ms. Nord notes: "Rather than applying the lead content provision to products manufactured after the effective date, Congress applied it to all products out in the stream of commerce on February 10, sitting in container ships, in warehouses, and on store shelves. CONGRESS HAS NEVER BEFORE ENACTED SUCH A SWEEPING CONSUMER PRODUCT PROVISION IN A RETROACTIVE MANNER AND THE DISRUPTIVE RESULTS OF THIS PROVISION ARE NOW BEING SEEN IN PAINFUL WAYS." [Emphasis added] Of course, Ms. Nord overlooks the Prohibition as a precedent for this dramatic legislative overreaction.
Ms. Nord goes on to note several impacts on trade, including removal of product from store shelves out of fear, disrupted buying by retailers and the prospect of widespread loan defaults. All old news, if you read my emails. Importantly, Ms. Nord states in conclusion: "CONGRESS SPOKE CLEARLY IN SETTING OUT A REGULATORY REGIME THAT APPLIES TO ALL CHILDREN'S PRODUCTS IN COMMERCE REGARDLESS OF EXPOSURE TO ACTUAL RISK. CONGRESS SPOKE CLEARLY ABOUT THE LIMITED NATURE OF THE EXCLUSIONS AND EXEMPTIONS AVAILABLE UNDER THE LAW. CONGRESS SPOKE CLEARLY ABOUT THE LIMITED NATURE OF OUR ENFORCEMENT DISCRETION AFTER FEBRUARY 10. THE AGENCY CANNOT AMEND OR CHANGE THE STATUTE." [Emphasis added] Happy days, indeed.
Commissioner Moore takes a different tack when discussing the NAM petition. After reciting various administrative activities of the Commission relating to lead over the years, he attacks the integrity of the business community: "It would have been hard for a manufacturer of children's products to miss the clear message that they needed to get the lead out of children's products well in advance of final congressional action." It’s always helpful to have a “bad guy” to bash. Other than the fact that lead poisoning is virtually unknown in children's products outside of lead-in-paint (illegal for decades) and that the CPSC has always administered safety matters by examining the actual quantifiable risks, Mr. Moore might be right. However, responsible businesspeople concentrate on real consumer risks, and have no reason to concern themselves with the ebb and flow of possible arbitrary movements in the nation's regulatory scheme. Until recently, safety administration in this country was rational – is it really “foreseeable” that the legal standard would detach itself from risk so profoundly? In truth, periodic CPSC administrative activity over many years in relation to very specific circumstances is hardly a damning fact pattern revealing a dim-witted, oblivious or pernicious business community.
Further rationalizing his condemnation of protests against the CPSIA, Commissioner Moore states his belief that "certain Hill staffers were assured by various segments of the children's product industry, that there would NOT BE A PROBLEM with meeting the 600ppm standard as most already were." [Emphasis added.] What a wonderfully open and accountable process Mr. Moore recites. It's a shame that Commissioner Moore chose not to attach names, dates or written testimony to such hazy assertions. In any event, it’s really not the standard itself that is the business community issue, but instead the breadth of the definition of products subject to the standard and the costs associated with PROVING COMPLIANCE with the standard and otherwise complying with the law.
Mr. Moore clarifies that "[t]his does not mean I am not sympathetic to resellers and home crafters who are trying to figure out how to comply." Mr. Moore gives the impression that he believes opposition to this law comes only from marginal groups of unsophisticated people. In fact, the businesses impacted by the CPSIA are big and are small, and span industries like footwear, apparel, publishing, thrift stores, online marketplaces like eBay, toys, housewares, school supplies, furniture, bicycles, office supplies, sports equipment, novelties, incentives - and yes, crafters. Notably, this wide group of businesses certainly understands business law as a general matter. The law speaks for itself, and we have read it.
Interim Final Rule Exempting Certain Electronics Items. In her statement on this decision, Ms. Nord notes that the hurry-up process used to issue the complex policy Congress demanded was driven by the agency’s inability to stay the lead standards: “This is not a procedure that I anticipate the agency will use in the future, except under the most demanding circumstances.” Could something important have been missed? Apparently Congress only wants true, peer-reviewed science utilized when opponents attack its bill. Interestingly, Ms. Nord also notes that the CPSC no longer controls how safety is policed in the United States because there are now 50 shadow CPSC’s to dog the business community: “I also HOPE the state attorneys general will follow our lead and adopt similar enforcement policies.” [Emphasis added.] In our business, we say “hope is not a strategy”. I take little comfort in Ms. Nord’s plea.
Commissioner Moore adopts a more conciliatory posture in his statement, as though we might not have read his other attacks on business: “The Commission will take a measured, reasonable approach to administering the new law. We will be patient with businesses working to come into compliance . . . .” I would note that every communication that the CPSC has put out in recent weeks has asserted the importance and inflexibility of the new standards, including the need to self-report for seemingly any known violation. Does this mean that the CPSC won’t force recalls for these self-reported violations? That seems contrary to everything I have read from the CPSC and Congress lately. I take cold comfort in Commissioner Moore’s soothing words – the CPSC’s stated policies are otherwise. He goes on: “We have always focused on protecting the consumer over penalizing the inadvertent missteps of small businesses. I see no reason for that approach to change under the new laws . . . .” This might be true (I certainly hope so), except that now the safety rules are absolute and the agency has little discretion left in its administration of these rules, so whether missteps are “inadvertent” won’t matter AS A MATTER OF LAW. Furthermore, the range of legal requirements has spiraled out of control, leaving the task of compliance beyond the capability of 99% of all companies (in the real world). There will be plenty of missteps to review and consider.
The concerns of the business community are legitimate and are URGENT. You MUST take action right now to stay this "awful law" (see WSJ Editorial dated February 6 https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://online.wsj.com/article/SB123388626627155299.html). You have been notified AGAIN AND AGAIN about the many problems created by the carefully crafted language of the CPSIA. The financial consequences to many businesses will begin to become apparent in just a few short days without your action. Whether you agree or disagree with my position, sufficient doubt has been created to merit “hitting the pause button” allowing for further hearings and open discussion of the impact of this law. The public health “crisis” is imaginary and does not justify the horrifying risks you are taking with the U.S. economy.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com
Follow my blog at https://mail.learningresources.com/exchweb/bin/redir.asp?URL=https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://learningresourcesinc.blogspot.com/ or at https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.twitter.com/rwoldenberg
Sent: Sun 2/8/2009 3:09 AM
To: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.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'; '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; richard.goldberg@mail.house.gov; matthew.abbott@mail.house.gov; 'Brian_hendricks@hutchison.senate.gov'; 'david@commerce.senate.gov'; 'Cathy.hurwit@mail.house.gov'; pweller@cpsc.gov; mgougisha@cpsc.gov; bridget_petruczok@boxer.senate.gov; michael_daum@cantwell.senate.gov; bill_ghent@carper.senate.gov; hap_rigby@demint.senate.gov; frannie_wellings@dorgan.senate.gov; david_quinalty@ensign.senate.gov; james_chang@inouye.senate.gov; jonathan_becker@klobuchar.senate.gov; michelle_schwartz@lautenberg.senate.gov; lee_dunn@mccain.senate.gov; sonya_wendell@mccaskill.senate.gov; matthew_hussey@snowe.senate.gov; brendan_plack@thune.senate.gov; hugh_carroll@wicker.senate.gov; elissa.levin@mail.house.gov; christopher.schepis@mail.house.gov; theresa.lavery@mail.house.gov; greg.louer@mail.house.gov; brian.diffell@mail.house.gov; amy.ingham@mail.house.gov; laura.vaught@mail.house.gov; matt.johnson@mail.house.gov; saul.hernandez@mail.house.gov; aaron.shapiro@mail.house.gov; rick.axthelm@mail.house.gov; steve.plevniak@mail.house.gov; scott.cleveland@mail.house.gov; jonathan.smith@mail.house.gov; pat.cavanagh@mail.house.gov; rachelle.wood@mail.house.gov; michael.gaffin@mail.house.gov; angela.manso@mail.house.gov; dana.lichtenberg@mail.house.gov; derrick.ramos@mail.house.gov; elizabeth.stack@mail.house.gov; lori.pepper@mail.house.gov; david.bahar@mail.house.gov; mark.bayer@mail.house.gov; Neeta.Bidwai@mail.house.gov; kyle.victor@mail.house.gov; chris.debosier@mail.house.gov; morgan.jones@mail.house.gov; matthew.dockham@mail.house.gov; tuley.wright@mail.house.gov; cade.king@mail.house.gov; betsy.christian@mail.house.gov; chris.herndon@mail.house.gov; Mike.Ward@mail.house.gov; laura.abshire@mail.house.gov; randi.meyers@mail.house.gov; Greta.Hanson@mail.house.gov; liz.muro@mail.house.gov; jamie.euken@mail.house.gov; jon.oehmen@mail.house.gov; brad.schweer@mail.house.gov; michael.beckerman@mail.house.gov; valerie.henry@mail.house.gov; Becky.Claster@mail.house.gov; tiffany.guarascio@mail.house.gov; jeff.mortier@mail.house.gov; Christopher_day@billnelson.senate.gov; john_phillips@kerry.senate.gov; Kerrie Campbell (kcampbell@manatt.com); bryan_hickman@hatch.senate.gov; Ben.Kershaw@mail.house.gov; tom_jones@commerce.senate.gov; Lisa Brown (lbrown@who.eop.gov); csunstein@who.eop.gov; stacy_ettinger@jec.senate.gov; csunstei@uchicago.edu; rpalmieri@nam.org; dbrown@muchshelist.com
Subject: CPSIA - CPSC Commissioners Speak Out
Have you read the statements of Commissioners coming out of the CPSC lately? The statements of Commissioners Nancy Nord and Thomas Moore of the CPSC given after the rejection of the NAM petition for a stay of the new lead standards under the CPSIA (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://cpsc.gov/library/foia/ballot/ballot09/nam.pdf), as well as their statements given in support of the new interim final rule exempting certain items from the lead standards (https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://cpsc.gov/library/foia/ballot/ballot09/101lead.pdf) are very revealing.
Rejection of the NAM Petition. As my recent letters confirm, the NAM petition decision was a foregone conclusion, as the CPSC is prohibited under Sections 101(b)(1) and 101(e) of the CPSIA from changing the new standards in any way for any product. Thus, the CPSC was legally prohibited from staying the new lead standards and the Commissioners made the legally proper decision to vote down the petition under your CPSIA. Interestingly, as another of my recent letters notes, after Acting Chairman Nord made this very point in writing to Representative Waxman et. al. in her letter of January 30, those House and Senate leaders responded on February 3 by demanding that she resign. Some great open dialogue there!
The NAM petition, it should be noted, focused on the retroactive CPSIA lead standards because the NAM letter preceded the NRDC phthalates case decision last Thursday. Presumably, had NAM known that the phthalates ban would become retroactive instantaneously two business days before its February 10 effective date; their request would have included a stay request on the phthalates ban, too. Alas, we cannot wind back the clock, so the Commissioners did not consider this issue. They would have been legally prohibited from taking any action on the phthalates standard, of course, but the Commissioners would have been free to comment on it. In the below discussion, I believe you can safely read between the lines and infer parallel references to phthalates in the Commissioners discussion of the issues.
The statements of Nord and Moore are quite informative. After reiterating the fact that the Commission is prohibited from staying the lead standard, Ms. Nord notes: "Rather than applying the lead content provision to products manufactured after the effective date, Congress applied it to all products out in the stream of commerce on February 10, sitting in container ships, in warehouses, and on store shelves. CONGRESS HAS NEVER BEFORE ENACTED SUCH A SWEEPING CONSUMER PRODUCT PROVISION IN A RETROACTIVE MANNER AND THE DISRUPTIVE RESULTS OF THIS PROVISION ARE NOW BEING SEEN IN PAINFUL WAYS." [Emphasis added] Of course, Ms. Nord overlooks the Prohibition as a precedent for this dramatic legislative overreaction.
Ms. Nord goes on to note several impacts on trade, including removal of product from store shelves out of fear, disrupted buying by retailers and the prospect of widespread loan defaults. All old news, if you read my emails. Importantly, Ms. Nord states in conclusion: "CONGRESS SPOKE CLEARLY IN SETTING OUT A REGULATORY REGIME THAT APPLIES TO ALL CHILDREN'S PRODUCTS IN COMMERCE REGARDLESS OF EXPOSURE TO ACTUAL RISK. CONGRESS SPOKE CLEARLY ABOUT THE LIMITED NATURE OF THE EXCLUSIONS AND EXEMPTIONS AVAILABLE UNDER THE LAW. CONGRESS SPOKE CLEARLY ABOUT THE LIMITED NATURE OF OUR ENFORCEMENT DISCRETION AFTER FEBRUARY 10. THE AGENCY CANNOT AMEND OR CHANGE THE STATUTE." [Emphasis added] Happy days, indeed.
Commissioner Moore takes a different tack when discussing the NAM petition. After reciting various administrative activities of the Commission relating to lead over the years, he attacks the integrity of the business community: "It would have been hard for a manufacturer of children's products to miss the clear message that they needed to get the lead out of children's products well in advance of final congressional action." It’s always helpful to have a “bad guy” to bash. Other than the fact that lead poisoning is virtually unknown in children's products outside of lead-in-paint (illegal for decades) and that the CPSC has always administered safety matters by examining the actual quantifiable risks, Mr. Moore might be right. However, responsible businesspeople concentrate on real consumer risks, and have no reason to concern themselves with the ebb and flow of possible arbitrary movements in the nation's regulatory scheme. Until recently, safety administration in this country was rational – is it really “foreseeable” that the legal standard would detach itself from risk so profoundly? In truth, periodic CPSC administrative activity over many years in relation to very specific circumstances is hardly a damning fact pattern revealing a dim-witted, oblivious or pernicious business community.
Further rationalizing his condemnation of protests against the CPSIA, Commissioner Moore states his belief that "certain Hill staffers were assured by various segments of the children's product industry, that there would NOT BE A PROBLEM with meeting the 600ppm standard as most already were." [Emphasis added.] What a wonderfully open and accountable process Mr. Moore recites. It's a shame that Commissioner Moore chose not to attach names, dates or written testimony to such hazy assertions. In any event, it’s really not the standard itself that is the business community issue, but instead the breadth of the definition of products subject to the standard and the costs associated with PROVING COMPLIANCE with the standard and otherwise complying with the law.
Mr. Moore clarifies that "[t]his does not mean I am not sympathetic to resellers and home crafters who are trying to figure out how to comply." Mr. Moore gives the impression that he believes opposition to this law comes only from marginal groups of unsophisticated people. In fact, the businesses impacted by the CPSIA are big and are small, and span industries like footwear, apparel, publishing, thrift stores, online marketplaces like eBay, toys, housewares, school supplies, furniture, bicycles, office supplies, sports equipment, novelties, incentives - and yes, crafters. Notably, this wide group of businesses certainly understands business law as a general matter. The law speaks for itself, and we have read it.
Interim Final Rule Exempting Certain Electronics Items. In her statement on this decision, Ms. Nord notes that the hurry-up process used to issue the complex policy Congress demanded was driven by the agency’s inability to stay the lead standards: “This is not a procedure that I anticipate the agency will use in the future, except under the most demanding circumstances.” Could something important have been missed? Apparently Congress only wants true, peer-reviewed science utilized when opponents attack its bill. Interestingly, Ms. Nord also notes that the CPSC no longer controls how safety is policed in the United States because there are now 50 shadow CPSC’s to dog the business community: “I also HOPE the state attorneys general will follow our lead and adopt similar enforcement policies.” [Emphasis added.] In our business, we say “hope is not a strategy”. I take little comfort in Ms. Nord’s plea.
Commissioner Moore adopts a more conciliatory posture in his statement, as though we might not have read his other attacks on business: “The Commission will take a measured, reasonable approach to administering the new law. We will be patient with businesses working to come into compliance . . . .” I would note that every communication that the CPSC has put out in recent weeks has asserted the importance and inflexibility of the new standards, including the need to self-report for seemingly any known violation. Does this mean that the CPSC won’t force recalls for these self-reported violations? That seems contrary to everything I have read from the CPSC and Congress lately. I take cold comfort in Commissioner Moore’s soothing words – the CPSC’s stated policies are otherwise. He goes on: “We have always focused on protecting the consumer over penalizing the inadvertent missteps of small businesses. I see no reason for that approach to change under the new laws . . . .” This might be true (I certainly hope so), except that now the safety rules are absolute and the agency has little discretion left in its administration of these rules, so whether missteps are “inadvertent” won’t matter AS A MATTER OF LAW. Furthermore, the range of legal requirements has spiraled out of control, leaving the task of compliance beyond the capability of 99% of all companies (in the real world). There will be plenty of missteps to review and consider.
The concerns of the business community are legitimate and are URGENT. You MUST take action right now to stay this "awful law" (see WSJ Editorial dated February 6 https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://online.wsj.com/article/SB123388626627155299.html). You have been notified AGAIN AND AGAIN about the many problems created by the carefully crafted language of the CPSIA. The financial consequences to many businesses will begin to become apparent in just a few short days without your action. Whether you agree or disagree with my position, sufficient doubt has been created to merit “hitting the pause button” allowing for further hearings and open discussion of the impact of this law. The public health “crisis” is imaginary and does not justify the horrifying risks you are taking with the U.S. economy.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com
Follow my blog at https://mail.learningresources.com/exchweb/bin/redir.asp?URL=https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://learningresourcesinc.blogspot.com/ or at https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.twitter.com/rwoldenberg
Friday, January 30, 2009
CPSIA - My "Wish List"
Here is my "wish list" for changes to the CPSIA:
Please note: the reasoning embedded in this list is that it will all be granted, thus some additional points which are important are implied in the list. I assure you that I would never attach my name to any suggested change to the CPSIA if I felt, even for a fleeting second, that any aspect of my suggestions would degrade safety in children's products or lead to any injury. Safety, to me, is only a sidelight to the issues in the CPSIA. The big issues relate to the law's structure, not its intent, and the very negative effects flow from the distortions in incentives and practice caused by its many rules.
In order of priority:
a. A Pause. We need a stay of enforcement or a delay in the implementation dates for the new standards until at least 180 days AFTER the CPSC has published and finalized its implementing rules and regulations. Many people are asking for a six month delay but this overlooks the activities that will take place in the next six months, namely rulemaking. In reality, even this proposed delay may not be enough as the period between final rulemaking and implementation will result in a huge surge of activity that eill likely swamp available resources all throughout the "food chain". Unfortunately, the CPSC has issued very few implementing rules at this point, even defining what "total lead" is or how to test for it. This is causing incredible chaos. The "pause" will allow for more discussion about the details of the law, public hearings and a legislative process that might result in structural repair of the law.
The National Association of Manufacturers has filed a formal request for a Stay of Enforcement signed by 67 assocations, with more associations expected to join the letter shortly.
b . No retroactive effect for the new lead standard. The retroactive effect of the CPSIA's new lead standards is creating massive dislocation. Companies have NO WAY to fix compliance issues with existing inventory which are usually technical in nature but may cost literally hundreds of thousands of dollars per item to fix. Retroactive effect will create a number of terrible problems: (i) huge costs for voluntary recalls of products that pose NO threat of harm to children, (ii) a subsidy to companies who are oblivious to the law, speculate that the law will be repealed or revised later, or who are intent on flagrantly disregarding the law, (iii) may drive many companies to openly disregard of the law, thereby creating a growing trend to disregard safety laws generally, or (iv) widespread business losses, closings and/or job losses. Elimination of the retroactivity effect will considerably reduce the pressure on the thrift store industry, as well as libraries and many other affected enterprises with large inventories of existing product.
c. Age range in the definition of Children’s Products should terminate at six years old. The broad sweep of the definition of Children’s Products under the CPSIA is causing widespread harm, and will dilute the efforts of the CPSC to patrol the marketplace. The risk to children from contact with children’s products sharply diminishes when children stop mouthing toys and other objects. The CPSC has determined that mouthing ends at three years old. There is no support for the notion that children are exposed to dangers from mouthing over three, so a limit of six years of age provides an appropriate margin of error. Elimination of products intended for children seven and over will greatly reduce the scope, and harm, of the CPSIA, as well as significantly narrow the categories of products affected by the law.
d. The Total Lead Standard should be abolished, and pre-sale testing should be limited to Lead-in-Paint. This change is in recognition of the fact that lead is known to be dangerous in some circumstances, but is not known to be dangerous in other circumstances. The way to properly administer the marketplace is to (re)empower the CPSC to identify safety issues as they arise and develop rules for such issues without limitation. The CPSC with its considerable scientific resources and devotion to mission is the right place to make these determinations, not Congressional committees with no such resources. See https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.forbes.com/2009/01/26/toys-lead-cpsia-oped-cx_phr_0127rubin.html. Implementation of this rule would, for instance, let the CPSC tighten up rules on children's jewelry if they felt it was needed. The need for, and the reach of, any “total lead" standard should be assessed by the CPSC on a risk-assessment basis, and should be implemented by the CPSC in its best judgment subject to appropriate public processes. I would note that the 2007 recalls related to Lead-in-Paint, not “total lead”. This is a critical point that Congress has refused, categorically, to acknowledge or consider.
Elimination of pre-sale testing on "total lead" should also explicitly exempt pre-sale testing on phthalates. Whatever standards remain on the books should be the responsibility of manufacturers to comply with, not to prove up before sale.
e. Lot Marking Requirement is Eliminated. This extremely expensive and burdensome requirement is intended to ease future recalls. Yet, future recalls are supposed to be well-contained by the other provisions of the CPSIA. [Have we found a logical problem here, perhaps?!] The lot marking requirements promises to be a crushing burden on non-mass market-oriented companies and will likely result in (i) reduced product diversity, (ii) abandonment of niche markets and specialty markets in favor of the mass market, and (iii) sharp elimination of jobs and economic opportunities for small and medium-sized companies. I believe this one provision has the greatest potential to downshift product innovation among small and medium-sized companies and must be amended urgently.
f. Effective Pre-emption. Effective pre-emption of state law on children’s product safety and the further restraint of State Attorneys General from enforcing (or effectively competing with the CPSC in the enforcement of) the CPSIA is essential to preserve efficient inter-state commerce.
Rick
Please note: the reasoning embedded in this list is that it will all be granted, thus some additional points which are important are implied in the list. I assure you that I would never attach my name to any suggested change to the CPSIA if I felt, even for a fleeting second, that any aspect of my suggestions would degrade safety in children's products or lead to any injury. Safety, to me, is only a sidelight to the issues in the CPSIA. The big issues relate to the law's structure, not its intent, and the very negative effects flow from the distortions in incentives and practice caused by its many rules.
In order of priority:
a. A Pause. We need a stay of enforcement or a delay in the implementation dates for the new standards until at least 180 days AFTER the CPSC has published and finalized its implementing rules and regulations. Many people are asking for a six month delay but this overlooks the activities that will take place in the next six months, namely rulemaking. In reality, even this proposed delay may not be enough as the period between final rulemaking and implementation will result in a huge surge of activity that eill likely swamp available resources all throughout the "food chain". Unfortunately, the CPSC has issued very few implementing rules at this point, even defining what "total lead" is or how to test for it. This is causing incredible chaos. The "pause" will allow for more discussion about the details of the law, public hearings and a legislative process that might result in structural repair of the law.
The National Association of Manufacturers has filed a formal request for a Stay of Enforcement signed by 67 assocations, with more associations expected to join the letter shortly.
b . No retroactive effect for the new lead standard. The retroactive effect of the CPSIA's new lead standards is creating massive dislocation. Companies have NO WAY to fix compliance issues with existing inventory which are usually technical in nature but may cost literally hundreds of thousands of dollars per item to fix. Retroactive effect will create a number of terrible problems: (i) huge costs for voluntary recalls of products that pose NO threat of harm to children, (ii) a subsidy to companies who are oblivious to the law, speculate that the law will be repealed or revised later, or who are intent on flagrantly disregarding the law, (iii) may drive many companies to openly disregard of the law, thereby creating a growing trend to disregard safety laws generally, or (iv) widespread business losses, closings and/or job losses. Elimination of the retroactivity effect will considerably reduce the pressure on the thrift store industry, as well as libraries and many other affected enterprises with large inventories of existing product.
c. Age range in the definition of Children’s Products should terminate at six years old. The broad sweep of the definition of Children’s Products under the CPSIA is causing widespread harm, and will dilute the efforts of the CPSC to patrol the marketplace. The risk to children from contact with children’s products sharply diminishes when children stop mouthing toys and other objects. The CPSC has determined that mouthing ends at three years old. There is no support for the notion that children are exposed to dangers from mouthing over three, so a limit of six years of age provides an appropriate margin of error. Elimination of products intended for children seven and over will greatly reduce the scope, and harm, of the CPSIA, as well as significantly narrow the categories of products affected by the law.
d. The Total Lead Standard should be abolished, and pre-sale testing should be limited to Lead-in-Paint. This change is in recognition of the fact that lead is known to be dangerous in some circumstances, but is not known to be dangerous in other circumstances. The way to properly administer the marketplace is to (re)empower the CPSC to identify safety issues as they arise and develop rules for such issues without limitation. The CPSC with its considerable scientific resources and devotion to mission is the right place to make these determinations, not Congressional committees with no such resources. See https://mail.learningresources.com/exchweb/bin/redir.asp?URL=http://www.forbes.com/2009/01/26/toys-lead-cpsia-oped-cx_phr_0127rubin.html. Implementation of this rule would, for instance, let the CPSC tighten up rules on children's jewelry if they felt it was needed. The need for, and the reach of, any “total lead" standard should be assessed by the CPSC on a risk-assessment basis, and should be implemented by the CPSC in its best judgment subject to appropriate public processes. I would note that the 2007 recalls related to Lead-in-Paint, not “total lead”. This is a critical point that Congress has refused, categorically, to acknowledge or consider.
Elimination of pre-sale testing on "total lead" should also explicitly exempt pre-sale testing on phthalates. Whatever standards remain on the books should be the responsibility of manufacturers to comply with, not to prove up before sale.
e. Lot Marking Requirement is Eliminated. This extremely expensive and burdensome requirement is intended to ease future recalls. Yet, future recalls are supposed to be well-contained by the other provisions of the CPSIA. [Have we found a logical problem here, perhaps?!] The lot marking requirements promises to be a crushing burden on non-mass market-oriented companies and will likely result in (i) reduced product diversity, (ii) abandonment of niche markets and specialty markets in favor of the mass market, and (iii) sharp elimination of jobs and economic opportunities for small and medium-sized companies. I believe this one provision has the greatest potential to downshift product innovation among small and medium-sized companies and must be amended urgently.
f. Effective Pre-emption. Effective pre-emption of state law on children’s product safety and the further restraint of State Attorneys General from enforcing (or effectively competing with the CPSC in the enforcement of) the CPSIA is essential to preserve efficient inter-state commerce.
Rick
Monday, January 26, 2009
WSJ Letters to the Editor 1-21-09
New Lead Law May Have Toxic Consequences for Jobs
Thanks for putting the editorial spotlight on the new lead in children's product legislation passed by Congress last year ("Pelosi's Toy Story," Review & Outlook, Jan. 14). The sad part is that adequate federal law existed to stop the import of Chinese toys containing lead, the importers simply did not obey existing law.
Now comes the silly part. The prior law was based on toxicology (how much lead can be extracted from the children's product through use or abuse). The new law only considers total lead in the product. And the maximum allowable lead content starts at a very low level, and keeps getting smaller in future years. Many metals, metal alloys, and a wide range of other materials are perfectly safe and comply with the earlier law, but will become "banned hazardous materials" on February 10.
The new legislation covers "all products designed for children under 12 years old." The crowning glory is that all children's products now need to be tested for lead content. By the way, did you catch that this means all children's products in existence on February 10, not just children's products manufactured after that date?
Put it all together and we have a spectacular example of incompetence. For example, elementary schools are designed for children under 12 years old. Does this mean that everything inside the school, and all of the construction materials used to build the school, need to be tested for total lead content by February 10? What about library books? The Consumer Product Safety Commission can make exclusions, but the law is very broadly written, allows no phase-in time, nor does it grandfather previously made products.
The law says "The Commission may, by regulation, exclude a specific product or material from the prohibition . . . if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither -- result in the absorption of any [my emphasis] lead into the human body . . . [OR\][or] have any other adverse impact on public health or safety." This doesn't seem to give the CPSC much wiggle room.
All products and materials that exceed the total lead content will need to be disposed (a few examples of these banned hazardous materials include bicycles, desks, ballpoint pens, chairs, computers, and HVAC systems).
It will indeed be an early (and very long) summer break for our children.
Jeff Green
Midlothian, Va.
Thank you for highlighting this issue. We are a small Washington, D.C.-based manufacturer (probably the only one) that will likely be compelled to close our doors because of this legislation. The minimum cost for testing our products -- harmful items such as headbands -- would be triple our gross revenue. As a result of this law, only the Wal-Marts of the world will continue to exist. The opportunity for individual expression or individual initiative will be permanently quashed.
Let's hope that Congress can do the right thing before hundreds of thousands (or millions) of quite small businesses go under as a result of this crushing and utterly unrealistic legislation.
Marc Chafetz
Washington
Thanks for putting the editorial spotlight on the new lead in children's product legislation passed by Congress last year ("Pelosi's Toy Story," Review & Outlook, Jan. 14). The sad part is that adequate federal law existed to stop the import of Chinese toys containing lead, the importers simply did not obey existing law.
Now comes the silly part. The prior law was based on toxicology (how much lead can be extracted from the children's product through use or abuse). The new law only considers total lead in the product. And the maximum allowable lead content starts at a very low level, and keeps getting smaller in future years. Many metals, metal alloys, and a wide range of other materials are perfectly safe and comply with the earlier law, but will become "banned hazardous materials" on February 10.
The new legislation covers "all products designed for children under 12 years old." The crowning glory is that all children's products now need to be tested for lead content. By the way, did you catch that this means all children's products in existence on February 10, not just children's products manufactured after that date?
Put it all together and we have a spectacular example of incompetence. For example, elementary schools are designed for children under 12 years old. Does this mean that everything inside the school, and all of the construction materials used to build the school, need to be tested for total lead content by February 10? What about library books? The Consumer Product Safety Commission can make exclusions, but the law is very broadly written, allows no phase-in time, nor does it grandfather previously made products.
The law says "The Commission may, by regulation, exclude a specific product or material from the prohibition . . . if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither -- result in the absorption of any [my emphasis] lead into the human body . . . [OR\][or] have any other adverse impact on public health or safety." This doesn't seem to give the CPSC much wiggle room.
All products and materials that exceed the total lead content will need to be disposed (a few examples of these banned hazardous materials include bicycles, desks, ballpoint pens, chairs, computers, and HVAC systems).
It will indeed be an early (and very long) summer break for our children.
Jeff Green
Midlothian, Va.
Thank you for highlighting this issue. We are a small Washington, D.C.-based manufacturer (probably the only one) that will likely be compelled to close our doors because of this legislation. The minimum cost for testing our products -- harmful items such as headbands -- would be triple our gross revenue. As a result of this law, only the Wal-Marts of the world will continue to exist. The opportunity for individual expression or individual initiative will be permanently quashed.
Let's hope that Congress can do the right thing before hundreds of thousands (or millions) of quite small businesses go under as a result of this crushing and utterly unrealistic legislation.
Marc Chafetz
Washington
Sunday, January 11, 2009
Can We Put Humpty Back Together Again after February 10?
From: Rick Woldenberg
Sent: Sun 1/11/2009 10:20 PM
To: erik.lieberman@mail.house.gov
Cc: Stephen Lamar (slamar@apparelandfootwear.org); Etienne Veber; Michael Gidding (mjg@brown-gidding.com); Rob Wilson (rob@challengeandfun.com); Patrick Magnuson (patrick.magnuson@mail.house.gov); kathleen@fashion-incubator.com; Nancy Nord (nnord@cpsc.gov); Joe Martyak (jmartyak@cpsc.gov); tmoore@cpsc.gov; cfalvey@cpsc.gov; Mary Toro (MToro@cpsc.gov); Christian Tamotsu Fjeld (Christian.Fjeld@mail.house.gov); Judy Bailey (judith.bailey@mail.house.gov); Robin Appleberry (robin.appleberry@mail.house.gov); Brian McCullough (brian.mccullough@mail.house.gov); Shannon Weinberg (shannon.weinberg@mail.house.gov); Will Carty (william.carty@mail.house.gov); Dan Marshall (dan@peapods.com); Pamela Gilbert (pamelag@cuneolaw.com); Robert Adler
Subject: RE: CPSIA and Small Business
Eric,
Here's an article from the Christian Science Monitor (Jan. 9 issue) on the Small Business issues under the CPSIA. This article, which I only discovered this evening, echoes many points I have made in correspondence with the Rush Subcommittee, notably that the CPSC cannot fix the law, that the age limits in the definition of Children's Products are inappropriate and that the law presents a broad threat to literally thousands of businesses, notably Small Business. No one in the article seems to think that this law is necessary to assure safety, another view I share. The economic issues under the CPSIA are manifold, as this article confirms. Despite the focus of the article on toys, the threats span many industries - in fact, ALL industries making products for children up to 12 years of age. Imagine the breadth of that impact - it's mindboggling.
I hope your committee will be able to shed some light on these issues shortly, as February 10 promises to be quite deadly if nothing is done. I would hate to see all the dread predictions come true - there will no satisfaction in seeing needless economic devastation based on a flimsy and poorly thought-through safety rationale. And I fear that, like children's rhyme instructs, all the king's horses and all the king's men won't be able to put Humpty together again. I think we can do much better than that - with the help of Congress, safety can be assured while the interests of Small Business (and other business) can be protected. This won't involve trading money or jobs for safety, either.
Thanks for your interest in this matter.
Best Regards,
Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com
http://www.csmonitor.com/2009/0109/p25s23-hfgn.html
Ava Mar, 8, played with a wooden train set at the Play Store in Palo Alto, Calif., on Dec. 22, 2008. Worries over lead paint in mass-market toys made the holidays a little brighter for handcrafted toy makers last year, but now the federal government's response to the scare has some workshops fearful that this Christmas might be their last.
Marcio Jose Sanchez/AP
A new law hurts small toy stores and toymakers
New regulations banning harmful chemicals in children's items has had unintended consequences for small businesses and crafters.
By Yvonne Zipp Correspondent of The Christian Science Monitor
posted January 9, 2009 at 4:40 p.m. EST
Amy Turn Sharp started making toys because of Thomas the Tank Engine. The 2007 recall of wooden trains with lead paint inspired Ms. Turn Sharp and her husband, a master carpenter, to start making wooden toys for babies.
"It's really just Joseph and me in our backyard. No machinery, no workers," says Turn Sharp, whose toymaking business, Little Alouette, makes it feasible for her to stay home with her two children. (Making toys is a family affair: Their 4-1/2 year-old son likes to help rub organic flaxseed into the finished wood teethers, blocks, and trains.) The Worthington, Ohio, couple make all their products from maple, felled by a neighboring farmer. "It's just us producing things by hand."
But now fallout from the recall that got them started and others may very well close them down. "We started our company because of Thomas the Tank Engine. We were sick of unsafe toys," says Turn Sharp. "And here we are, and we're going to go out of business because of unsafe toys."
After the recall of millions of toys manufactured in China in 2007, Congress passed the Consumer Products Safety Improvement Act (CPSIA) last year to protect children from lead and phthalates. Under the new guidelines, which are set to take effect Feb. 10, any product manufactured for children under 12 must undergo third-party testing for certification.
The law isn't just for toys, stress critics, who say it is too sweeping and will unfairly impact small businesses. Clothing, backpacks, bicycles, books, science equipment – anything intended for a child under 12 is affected. They argue that the law, however well-intentioned, has the potential to cause thousands of small US businesses to close at a time when unemployment is surging and the country is entering its second year of recession.
"Once again, here's a situation where it's the small business that suffers the most," says Kathryn Howard, an environmental and consumer expert with the New York State Pollution Prevention Institute at Rochester Institute of Technology. "Mattel can easily afford to test every one of their Barbie dolls. The smaller guys are the ones that manufacture in the US – as opposed to China and other parts of the world.
"I see the environmental benefit," she says. But she suggests that the government explore ways to make the testing more affordable for small companies and phase it in over a longer period of time.
Testing costs can start from $400 to $500 and run into thousands of dollars, according to some estimates, depending on the complexity of the item. Each unique product has to be tested – meaning that small, medium, and large shirts must be tested individually. In a line of stuffed toys birds, for example, the chickadee, robin, and eagle all need a separate test.
The prospective bill is causing sticker shock and cries of outrage from small US-based artisans and manufacturers, independent toy shops, and baby boutique stores.
"We need an outcry from consumers: 'Wait we asked for safe toys, we didn't ask you to put the industry out of business,' " says Kathleen McHugh, president of American Specialty Toy Retailing Association in Chicago, which has 1,000 members.
She says that independent toy stores have two alternatives, neither of them good: They can have all their products tested or throw all their untested inventory out. Either scenario would put them out of business, she says.
That indeed is the scenario facing Debbie Baillie's Rowdy Rascals toy store in Snohomish, Wash. "I cannot afford to get rid of my inventory and get in new [before Feb. 10]. I will go bankrupt. ... We have just over a month to get in compliance, and I don't know how to do that," says Ms. Baillie, who explains that her family can't afford to have the store fail. Her parents took out equity in their home so she could open the store, and her sister is her partner. If Rowdy Rascals shop goes go under, her entire family will be in financial trouble.
Baillie opened the store because she wanted to create a place for the community. "I wanted to be that old toy-store lady who knew all the kids and their kids. To see it crushed by something like this, it just breaks my heart."
"The commission is working to determine if there is any flexibility in the law for small businesses," says Patty Davis, spokeswoman for the CPSC. It is considering exemptions for electronics and other specific product categories. They may include products where the amounts of lead naturally falls below the limits. Lead, for example, is not found in cotton, wool, or wood.
But, says Julie Vallese, director of public affairs for the CPSC, "The agency has the authority to enforce the law, not change the law. Congress wrote a very specific, one-size fits all piece of legislation.... Because Congress wrote the law in a very specific way, relief may only be able to come from Congress."
Another sector of the economy, thrift and consignment shops, who had been among the most vocal about the economic hardship the new testing requirements would cause, received relief Thursday. The CPSC ruled that they would not have to test the items on their shelves – although the CPSC says owners still need to be confident that items for sale meet the new safety requirements.
That's good news for owners of children's consignment shops, such as Carol Vaporis, owner of Duck Duck Goose in Newport Richey, Fla., who had said that testing would have meant she had to close her doors.
It's also good news for lower-income families, many of whom rely on consignment and thrift stores to clothe their children.
The implications for parents aren't only economic. If the law isn't changed, Ms. Howard says that parents are also going to find fewer toys for children not made by the giants of the industry, and those that are available from smaller manufacturers will likely be more expensive, to help offset the costs of testing.
"You now have an even bigger gap between the toys the rich kids play with and the toys the not-so-rich kids play with," she says. "Now your kids are forced to play with toys that are not the best – maybe they just barely meet the criteria."
Howard also suggests that perhaps the age limit in the law should be rethought. "The reasoning behind the law is to protect young children. Twelve-year-old kids aren't putting things in their mouths. If a kid is old enough to ride a bike, they're old enough not to be chewing on it."
Back in Ohio, the Turn Sharps are unsure how to proceed. Little Alouette had a booming holiday season. "We made so many toys, Joseph had blisters on his hands," Turn Sharp says.
But their business is so small, they simply can't afford the mandatory lead testing required under the new guidelines, she says. "This law was intended for the big, big boys."
"I don't know what I'll be making on Feb. 10," says Turn Sharp. "I don't know that I'll be making anything."
But she's not giving up. "I'm pretty hopeful that government will have to take a look around. Hopefully, they'll say, 'We don't want to destroy people's livelihood.' "
Still, she adds, "If you need any baby gifts, buy them before Feb. 10."
Sent: Sun 1/11/2009 10:20 PM
To: erik.lieberman@mail.house.gov
Cc: Stephen Lamar (slamar@apparelandfootwear.org); Etienne Veber; Michael Gidding (mjg@brown-gidding.com); Rob Wilson (rob@challengeandfun.com); Patrick Magnuson (patrick.magnuson@mail.house.gov); kathleen@fashion-incubator.com; Nancy Nord (nnord@cpsc.gov); Joe Martyak (jmartyak@cpsc.gov); tmoore@cpsc.gov; cfalvey@cpsc.gov; Mary Toro (MToro@cpsc.gov); Christian Tamotsu Fjeld (Christian.Fjeld@mail.house.gov); Judy Bailey (judith.bailey@mail.house.gov); Robin Appleberry (robin.appleberry@mail.house.gov); Brian McCullough (brian.mccullough@mail.house.gov); Shannon Weinberg (shannon.weinberg@mail.house.gov); Will Carty (william.carty@mail.house.gov); Dan Marshall (dan@peapods.com); Pamela Gilbert (pamelag@cuneolaw.com); Robert Adler
Subject: RE: CPSIA and Small Business
Eric,
Here's an article from the Christian Science Monitor (Jan. 9 issue) on the Small Business issues under the CPSIA. This article, which I only discovered this evening, echoes many points I have made in correspondence with the Rush Subcommittee, notably that the CPSC cannot fix the law, that the age limits in the definition of Children's Products are inappropriate and that the law presents a broad threat to literally thousands of businesses, notably Small Business. No one in the article seems to think that this law is necessary to assure safety, another view I share. The economic issues under the CPSIA are manifold, as this article confirms. Despite the focus of the article on toys, the threats span many industries - in fact, ALL industries making products for children up to 12 years of age. Imagine the breadth of that impact - it's mindboggling.
I hope your committee will be able to shed some light on these issues shortly, as February 10 promises to be quite deadly if nothing is done. I would hate to see all the dread predictions come true - there will no satisfaction in seeing needless economic devastation based on a flimsy and poorly thought-through safety rationale. And I fear that, like children's rhyme instructs, all the king's horses and all the king's men won't be able to put Humpty together again. I think we can do much better than that - with the help of Congress, safety can be assured while the interests of Small Business (and other business) can be protected. This won't involve trading money or jobs for safety, either.
Thanks for your interest in this matter.
Best Regards,
Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com
http://www.csmonitor.com/2009/0109/p25s23-hfgn.html
Ava Mar, 8, played with a wooden train set at the Play Store in Palo Alto, Calif., on Dec. 22, 2008. Worries over lead paint in mass-market toys made the holidays a little brighter for handcrafted toy makers last year, but now the federal government's response to the scare has some workshops fearful that this Christmas might be their last.
Marcio Jose Sanchez/AP
A new law hurts small toy stores and toymakers
New regulations banning harmful chemicals in children's items has had unintended consequences for small businesses and crafters.
By Yvonne Zipp Correspondent of The Christian Science Monitor
posted January 9, 2009 at 4:40 p.m. EST
Amy Turn Sharp started making toys because of Thomas the Tank Engine. The 2007 recall of wooden trains with lead paint inspired Ms. Turn Sharp and her husband, a master carpenter, to start making wooden toys for babies.
"It's really just Joseph and me in our backyard. No machinery, no workers," says Turn Sharp, whose toymaking business, Little Alouette, makes it feasible for her to stay home with her two children. (Making toys is a family affair: Their 4-1/2 year-old son likes to help rub organic flaxseed into the finished wood teethers, blocks, and trains.) The Worthington, Ohio, couple make all their products from maple, felled by a neighboring farmer. "It's just us producing things by hand."
But now fallout from the recall that got them started and others may very well close them down. "We started our company because of Thomas the Tank Engine. We were sick of unsafe toys," says Turn Sharp. "And here we are, and we're going to go out of business because of unsafe toys."
After the recall of millions of toys manufactured in China in 2007, Congress passed the Consumer Products Safety Improvement Act (CPSIA) last year to protect children from lead and phthalates. Under the new guidelines, which are set to take effect Feb. 10, any product manufactured for children under 12 must undergo third-party testing for certification.
The law isn't just for toys, stress critics, who say it is too sweeping and will unfairly impact small businesses. Clothing, backpacks, bicycles, books, science equipment – anything intended for a child under 12 is affected. They argue that the law, however well-intentioned, has the potential to cause thousands of small US businesses to close at a time when unemployment is surging and the country is entering its second year of recession.
"Once again, here's a situation where it's the small business that suffers the most," says Kathryn Howard, an environmental and consumer expert with the New York State Pollution Prevention Institute at Rochester Institute of Technology. "Mattel can easily afford to test every one of their Barbie dolls. The smaller guys are the ones that manufacture in the US – as opposed to China and other parts of the world.
"I see the environmental benefit," she says. But she suggests that the government explore ways to make the testing more affordable for small companies and phase it in over a longer period of time.
Testing costs can start from $400 to $500 and run into thousands of dollars, according to some estimates, depending on the complexity of the item. Each unique product has to be tested – meaning that small, medium, and large shirts must be tested individually. In a line of stuffed toys birds, for example, the chickadee, robin, and eagle all need a separate test.
The prospective bill is causing sticker shock and cries of outrage from small US-based artisans and manufacturers, independent toy shops, and baby boutique stores.
"We need an outcry from consumers: 'Wait we asked for safe toys, we didn't ask you to put the industry out of business,' " says Kathleen McHugh, president of American Specialty Toy Retailing Association in Chicago, which has 1,000 members.
She says that independent toy stores have two alternatives, neither of them good: They can have all their products tested or throw all their untested inventory out. Either scenario would put them out of business, she says.
That indeed is the scenario facing Debbie Baillie's Rowdy Rascals toy store in Snohomish, Wash. "I cannot afford to get rid of my inventory and get in new [before Feb. 10]. I will go bankrupt. ... We have just over a month to get in compliance, and I don't know how to do that," says Ms. Baillie, who explains that her family can't afford to have the store fail. Her parents took out equity in their home so she could open the store, and her sister is her partner. If Rowdy Rascals shop goes go under, her entire family will be in financial trouble.
Baillie opened the store because she wanted to create a place for the community. "I wanted to be that old toy-store lady who knew all the kids and their kids. To see it crushed by something like this, it just breaks my heart."
"The commission is working to determine if there is any flexibility in the law for small businesses," says Patty Davis, spokeswoman for the CPSC. It is considering exemptions for electronics and other specific product categories. They may include products where the amounts of lead naturally falls below the limits. Lead, for example, is not found in cotton, wool, or wood.
But, says Julie Vallese, director of public affairs for the CPSC, "The agency has the authority to enforce the law, not change the law. Congress wrote a very specific, one-size fits all piece of legislation.... Because Congress wrote the law in a very specific way, relief may only be able to come from Congress."
Another sector of the economy, thrift and consignment shops, who had been among the most vocal about the economic hardship the new testing requirements would cause, received relief Thursday. The CPSC ruled that they would not have to test the items on their shelves – although the CPSC says owners still need to be confident that items for sale meet the new safety requirements.
That's good news for owners of children's consignment shops, such as Carol Vaporis, owner of Duck Duck Goose in Newport Richey, Fla., who had said that testing would have meant she had to close her doors.
It's also good news for lower-income families, many of whom rely on consignment and thrift stores to clothe their children.
The implications for parents aren't only economic. If the law isn't changed, Ms. Howard says that parents are also going to find fewer toys for children not made by the giants of the industry, and those that are available from smaller manufacturers will likely be more expensive, to help offset the costs of testing.
"You now have an even bigger gap between the toys the rich kids play with and the toys the not-so-rich kids play with," she says. "Now your kids are forced to play with toys that are not the best – maybe they just barely meet the criteria."
Howard also suggests that perhaps the age limit in the law should be rethought. "The reasoning behind the law is to protect young children. Twelve-year-old kids aren't putting things in their mouths. If a kid is old enough to ride a bike, they're old enough not to be chewing on it."
Back in Ohio, the Turn Sharps are unsure how to proceed. Little Alouette had a booming holiday season. "We made so many toys, Joseph had blisters on his hands," Turn Sharp says.
But their business is so small, they simply can't afford the mandatory lead testing required under the new guidelines, she says. "This law was intended for the big, big boys."
"I don't know what I'll be making on Feb. 10," says Turn Sharp. "I don't know that I'll be making anything."
But she's not giving up. "I'm pretty hopeful that government will have to take a look around. Hopefully, they'll say, 'We don't want to destroy people's livelihood.' "
Still, she adds, "If you need any baby gifts, buy them before Feb. 10."
CPSIA: It's the "Why", not the "What".
It's Sunday morning and the sun is shining (it finally stopped snowing in Chicago!). I feel refreshed and am ready for a short break. Will you come with me? Get away from your day-to-day CPSIA troubles? Okay, let's go!
Are you on a higher plane now? Good. Everyone take a deep breath . . . breathe out . . . feel better now? Great! Okay . . . now I have a question for you:
What is happening?
I have been puzzling about this question for the last several days. We have seen the Resale Industry wake up and create a firestorm of protests. Their CPSIA petition is now over 54,000 strong (http://www.rallycongress.com/make-second-hand-kids-clothes-legal-/1471/save-kid-s-clothing-resale-consignment-thrift-stores-from-closing/) and growing. We have seen many, many TV segments on the pain of complying with this law (go to www.learningresources.com/CPSIA for some of the videos). We have seen trade associations come out of hibernation and begin to advocate for carve-outs on wood, metals, gems, natural fibers and so on. Consumer advocate groups have joined forces to write the CPSC to criticize their implementation process and urge them to address these important issues. Most amazingly, I have witnessed debates between intelligent people over whether it is appropriate to test cloth dolls for lead content, test wood for phthalates, whether anyone besides Uncle Fester is at risk from a little dot of solder on the bottom of a microscope light bulb. None of this makes sense to me - does it make sense to you?
So why is that? What is it that I don't get? Have I lost what's left of my mind? Apparently, after 18 years in the toy business, I must have no idea what constitutes a safety risk because I just don't see it, and because I don't see it, I don't understand the debates of these intelligent people. I find the focus on the different materials and industries surreal. I can't understand why we need exemptions for so many materials well-known to be safe already. How could thrift shops and charities be doing something bad? Somehow, I sense that the discussion on safety has been diverted away from the real issue. Is it just me that's missing the point?
What is happening?
I can only offer ONE explanation: The members of Congress and consumer "advocates" who are behind this law have given the entire country a massive "head fake" - they have us looking left when we should be looking right. It seems that no one is looking in that other direction. The media wants us to worry about the testing - how will we do it? - and others want someone to blame - the CPSC. But is that REALLY the problem? No, no it isn't. The problem is the law itself.
Those who have been tracking me for awhile are not surprised to know I think the root problem is the law. Why is this such an important point? It's really simple, actually. Implementing rules cannot fix a law that makes no sense. A swiss cheese law (a law with ten zillion exceptions and exemptions) is unintelligible and costly. No one can deal with it (have you ever heard any criticism of the tax code???).
Let's go back to reality: put yourself in our shoes. At our company, we are law-abiding, safety-loving educators who want to make and sell valuable teaching tools, and we are faced with a broad law that regulates what we do. How shall we deal with this complex situation? The first step is obvious - read the law. We did, we read the CPSIA. It says everything's illegal, all the things that we make, unless we prove they are legal. OMG, you're kidding! No, wait, somebody told us that the CPSC has written some "implementing rules". We look there, and somebody spots a rule on page 7 that says wood and certain fibers are okay. Yippee, that's something at least! And there's another one on page 18 and we think this one paragraph on page 37 might do us some good (you know the one, subparagraph 1513.3(a)(ii)(C)(IX)). . . . We hear from a customer that there was a FAQ . . . so we download every FAQ since 2007 and scrutunize them with four lawyers at our side. One guy thinks perhaps FAQ no. 36 was written for us. It says that science items are okay if we have labels, and instructions, and they are for ten years olds . . . . That doesn't address our problem of trying to sell microscope light bulbs, but now we have fewer problems. And then we get a letter from the General Counsel who says many of our products are educational, not toys, so they aren't subject to some parts of the law, can't we figure the rest out ourselves. . . . We get our experts together, have a week-long debate, and decide how we want to "play it". Then we start hearing from our customers - they just want lab certificates because that's what the law says is required. We ask them, haven't you read the FAQs, the implementing rules, the interpretations, the private correspondence we had with the General Counsel, had a week-long confab with your experts, etc. They repeat, the law requires certificates, where are they? Where are they? Where are they?
Who wants my job?
When a law works properly, you can read it and understand what it means. [That's a quote from Duh Magazine, thanks to Andy Borowitz.] When the law says one thing unambiguously, and then you have to look ten other places to find all the exceptions, carve-outs and interpretations, and gather a team of experts to assess the risks involved in going to market with your cloth dolls or your cottage industry making flower girl dresses or your science kits for fourth graders, commerce ends. A legal system comprises of Gotchas is not a legal system in my book.
The CPSIA has to go. It was misconceived and cannot be fixed. The lead standards need to be refocused on lead-in-paint ONLY (perhaps with special rules on lead jewelry for kids). The definition of a children's product needs to be capped at six years old. Tracking labels needs to go (be voluntary ONLY - not compelled). All retroactive effects need to be removed and buried. The Resale Industry needs to be protected in the new rules - we cannot disenfranchise so many people who depend on that industry. And so on. Let's go back to the smoothly functioning economy we had before Congress decided to "fix" it. The CPSC can be empowered to do its job, and with an appropriate refocusing of resources and a more realistic strategy about how to improve compliance, can be effective in doing what all of us parents want, which is protecting consumers and children.
Rick
Are you on a higher plane now? Good. Everyone take a deep breath . . . breathe out . . . feel better now? Great! Okay . . . now I have a question for you:
What is happening?
I have been puzzling about this question for the last several days. We have seen the Resale Industry wake up and create a firestorm of protests. Their CPSIA petition is now over 54,000 strong (http://www.rallycongress.com/make-second-hand-kids-clothes-legal-/1471/save-kid-s-clothing-resale-consignment-thrift-stores-from-closing/) and growing. We have seen many, many TV segments on the pain of complying with this law (go to www.learningresources.com/CPSIA for some of the videos). We have seen trade associations come out of hibernation and begin to advocate for carve-outs on wood, metals, gems, natural fibers and so on. Consumer advocate groups have joined forces to write the CPSC to criticize their implementation process and urge them to address these important issues. Most amazingly, I have witnessed debates between intelligent people over whether it is appropriate to test cloth dolls for lead content, test wood for phthalates, whether anyone besides Uncle Fester is at risk from a little dot of solder on the bottom of a microscope light bulb. None of this makes sense to me - does it make sense to you?
So why is that? What is it that I don't get? Have I lost what's left of my mind? Apparently, after 18 years in the toy business, I must have no idea what constitutes a safety risk because I just don't see it, and because I don't see it, I don't understand the debates of these intelligent people. I find the focus on the different materials and industries surreal. I can't understand why we need exemptions for so many materials well-known to be safe already. How could thrift shops and charities be doing something bad? Somehow, I sense that the discussion on safety has been diverted away from the real issue. Is it just me that's missing the point?
What is happening?
I can only offer ONE explanation: The members of Congress and consumer "advocates" who are behind this law have given the entire country a massive "head fake" - they have us looking left when we should be looking right. It seems that no one is looking in that other direction. The media wants us to worry about the testing - how will we do it? - and others want someone to blame - the CPSC. But is that REALLY the problem? No, no it isn't. The problem is the law itself.
Those who have been tracking me for awhile are not surprised to know I think the root problem is the law. Why is this such an important point? It's really simple, actually. Implementing rules cannot fix a law that makes no sense. A swiss cheese law (a law with ten zillion exceptions and exemptions) is unintelligible and costly. No one can deal with it (have you ever heard any criticism of the tax code???).
Let's go back to reality: put yourself in our shoes. At our company, we are law-abiding, safety-loving educators who want to make and sell valuable teaching tools, and we are faced with a broad law that regulates what we do. How shall we deal with this complex situation? The first step is obvious - read the law. We did, we read the CPSIA. It says everything's illegal, all the things that we make, unless we prove they are legal. OMG, you're kidding! No, wait, somebody told us that the CPSC has written some "implementing rules". We look there, and somebody spots a rule on page 7 that says wood and certain fibers are okay. Yippee, that's something at least! And there's another one on page 18 and we think this one paragraph on page 37 might do us some good (you know the one, subparagraph 1513.3(a)(ii)(C)(IX)). . . . We hear from a customer that there was a FAQ . . . so we download every FAQ since 2007 and scrutunize them with four lawyers at our side. One guy thinks perhaps FAQ no. 36 was written for us. It says that science items are okay if we have labels, and instructions, and they are for ten years olds . . . . That doesn't address our problem of trying to sell microscope light bulbs, but now we have fewer problems. And then we get a letter from the General Counsel who says many of our products are educational, not toys, so they aren't subject to some parts of the law, can't we figure the rest out ourselves. . . . We get our experts together, have a week-long debate, and decide how we want to "play it". Then we start hearing from our customers - they just want lab certificates because that's what the law says is required. We ask them, haven't you read the FAQs, the implementing rules, the interpretations, the private correspondence we had with the General Counsel, had a week-long confab with your experts, etc. They repeat, the law requires certificates, where are they? Where are they? Where are they?
Who wants my job?
When a law works properly, you can read it and understand what it means. [That's a quote from Duh Magazine, thanks to Andy Borowitz.] When the law says one thing unambiguously, and then you have to look ten other places to find all the exceptions, carve-outs and interpretations, and gather a team of experts to assess the risks involved in going to market with your cloth dolls or your cottage industry making flower girl dresses or your science kits for fourth graders, commerce ends. A legal system comprises of Gotchas is not a legal system in my book.
The CPSIA has to go. It was misconceived and cannot be fixed. The lead standards need to be refocused on lead-in-paint ONLY (perhaps with special rules on lead jewelry for kids). The definition of a children's product needs to be capped at six years old. Tracking labels needs to go (be voluntary ONLY - not compelled). All retroactive effects need to be removed and buried. The Resale Industry needs to be protected in the new rules - we cannot disenfranchise so many people who depend on that industry. And so on. Let's go back to the smoothly functioning economy we had before Congress decided to "fix" it. The CPSC can be empowered to do its job, and with an appropriate refocusing of resources and a more realistic strategy about how to improve compliance, can be effective in doing what all of us parents want, which is protecting consumers and children.
Rick
Saturday, January 10, 2009
CPSIA - The Emperor Has No Clothes!
From: Rick Woldenberg
Sent: Sat 1/10/2009 3:34 PM
To: 'Judith.bailey@mail.house.gov'; 'Christian.fjeld@mail.house.gov'; Robin Appleberry (robin.appleberry@mail.house.gov)
Cc: Etienne Veber; 'Michael Gidding (mjg@brown-gidding.com)'; 'Nancy Nord (nnord@cpsc.gov)'; 'Joe Martyak (jmartyak@cpsc.gov)'; 'tmoore@cpsc.gov'; 'jmullan@cpsc.gov'; 'Brian_hendricks@hutchison.senate.gov'; 'david@commerce.senate.gov'; 'Shannon.weinberg@mail.house.gov'; 'Brian.mccullough@mail.house.gov'; 'Cathy.hurwit@mail.house.gov'; Larry Lynn; 'MToro@cpsc.gov'; 'william.carty@mail.house.gov'; 'patrick.magnuson@mail.house.gov'; pweller@cpsc.gov; mgougisha@cpsc.gov; cfalvey@cpsc.gov; bridget_petruczok@boxer.senate.gov; michael_daum@cantwell.senate.gov; bill_ghent@carper.senate.gov; hap_rigby@demint.senate.gov; frannie_wellings@dorgan.senate.gov; david_quinalty@ensign.senate.gov; james_chang@inouye.senate.gov; jamie_phillips@kerry.senate.gov; jonathan_becker@klobuchar.senate.gov; michelle_schwartz@lautenberg.senate.gov; lee_dunn@mccain.senate.gov; sonya_wendell@mccaskill.senate.gov; christopher_day@nelson.senate.gov; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.gov; betsy_mcdonnell@smith.senate.gov; matthew_hussey@snowe.senate.gov; christine_kurth@stevens.senate.gov; mike_orielly@senunu.senate.gov; brendan_plack@thune.senate.gov; garret_graves@vitter.senate.gov; hugh_carroll@wicker.senate.gov; sarah.baldwin@mail.house.gov; elissa.levin@mail.house.gov; christopher.schepis@mail.house.gov; theresa.lavery@mail.house.gov; greg.louer@mail.house.gov; brian.diffell@mail.house.gov; amy.ingham@mail.house.gov; laura.vaught@mail.house.gov; matt.johnson@mail.house.gov; saul.hernandez@mail.house.gov; mike.kelly@mail.house.gov; aaron.shapiro@mail.house.gov; rick.axthelm@mail.house.gov; steve.plevniak@mail.house.gov; scott.cleveland@mail.house.gov; jonathan.smith@mail.house.gov; pat.cavanagh@mail.house.gov; rachelle.wood@mail.house.gov; michael.gaffin@mail.house.gov; derick.apt@mail.house.gov; aaron.ringel@mail.house.gov; angela.manso@mail.house.gov; dana.lichtenberg@mail.house.gov; derrick.ramos@mail.house.gov; elizabeth.stack@mail.house.gov; julie.hulings@mail.house.gov; lori.pepper@mail.house.gov; josh.connolly@mail.house.gov; david.bahar@mail.house.gov; mark.bayer@mail.house.gov; Neeta.Bidwai@mail.house.gov; kyle.victor@mail.house.gov; chris.debosier@mail.house.gov; morgan.jones@mail.house.gov; matthew.dockham@mail.house.gov; tuley.wright@mail.house.gov; cade.king@mail.house.gov; betsy.christian@mail.house.gov; chris.herndon@mail.house.gov; Mike.Ward@mail.house.gov; laura.abshire@mail.house.gov; randi.meyers@mail.house.gov; Greta.Hanson@mail.house.gov; liz.muro@mail.house.gov; matt.mandel@mail.house.gov; jamie.euken@mail.house.gov; jon.oehmen@mail.house.gov; brad.schweer@mail.house.gov; dana.grayson@mail.house.gov; michael.beckerman@mail.house.gov; valerie.henry@mail.house.gov; Becky.Claster@mail.house.gov; tiffany.guarascio@mail.house.gov; jeff.mortier@mail.house.gov; kenneth.schwarz@mail.house.gov; Pamela Gilbert (pamelag@cuneolaw.com); Robert Adler
Subject: CPSIA - The Emperor Has No Clothes
I recently saw this video about a doll store in Hawaii that is planning to close because of the CPSIA and recommend that you watch it, too: http://www.khnl.com/global/video/flash/popupplayer.asp?ClipID1=3323714&h1=New%20lead%20law%20on%20kid%27s%20items%20threatens%20to%20close%20local%20doll%20shop&vt1=v&at1=News&d1=137133&LaunchPageAdTag=News&activePane=info&rnd=25878297
I am sure the world can live without another doll store. However, the owner of this particular store and her special needs child will suffer certainly. Should we care, especially since the law is making children so much "safer"? I think so, and here's why:
1. There is no reason for ANYONE to suspect that this doll store has EVER harmed anyone in any way. Can anyone provide ANY data to suggest that this store's products will harm anyone because of lead? No, absolutely not. I am fully confident that we can all agree that these dolls are highly unlikely to be harmful because of lead. So what have we accomplished?
2. Recognizing that these products could not realistically have any lead safety issues, the requirements of the law are extremely wasteful in this case, and are so serious that they threaten the very existence of the store and its products. [Notably, although the press is only focusing on the cost of testing, the list of problems caused for this doll store does not end there (not discussed in the video or in this email).] So what have we accomplished?
3. The diversion of capital and human resources to wasteful activities like excessive and almost neurotic testing prevents all kinds of alternative, productive uses of the financial and human capital being wasted. So what we have accomplished?
4. Given that the products and services of this store are useful and its profits are also deployed usefully in society (see the video), and further that as a direct result of the CPSIA the store will have to close, what have we accomplished?
The story of this doll store is TYPICAL of the ill effects of this law. Don't be distracted by the particulars of this person's story - she stands for everyone similarly victimized by the CPSIA. The storyline may change but the story remains the same - there is a societal recognition that American products are safe. The idea that our economy is "full" of unsafe children's products is fed by fear mongering, not facts. The CPSIA with its excessive "zero tolerance" approach neither contributes to additional safety (whatever that means) or to the efficient functioning of the economy. The day of reckoning is coming, and these cries for help are being ignored. Something must be done . . . .
So I am here to announce, for the first time, that the EMPEROR HAS NO CLOTHES. The CPSIA has nothing to do with safety - it is about vengeance, retribution and displaced anger. The discussion about safety under this law has become abstract and spiritual in nature, as though "safety" were a state of mind or some kind of karma level. That's not how the real world works - safety relates to RISK and risk can and needs to be defined. By drafting the CPSIA in such an absurdly overly-broad manner, Congress has created the conditions for debates like whether this little doll shop makes lead-laden dolls. I find it hard to dignify such debates by taking them seriously, as the notion that the subject dolls are somehow a safety risk is patently absurd, as is obvious to anyone living in the real world filled with real products and real risks.
How did this happen? The Emperor's new set of invisible clothes were borne of anger from "43 million toys recalled in 2007". [See http://www.todaysthv.com/news/local/story.aspx?storyid=78263.] What exactly happened in 2007? The lead-related recalls related to LEAD-IN-PAINT, not lead in substrates. [In addition, there was one tort involving one piece of lead jewelry.] Lead-in-paint has been illegal for decades. I hate to be a killjoy, but this means that the problem in 2007 was compliance with law, not the strictness of the rules. This is a behavioral issue, not a restrictions issue, and requires a thoughtful solution tailored to the nature of the problem (lack of compliance). By extending the law well beyond the known safety issue (lead-in-paint) to a laundry list of imaginary risks not associated with actual injuries, we end up arguing about whether cloth dolls, culturally-authentic clothing, microscope bulbs and Harry Potter books present a lead danger. If we are going to pay to prevent safety "risks" of that microscopic magnitude, why stop there? If children's products up to age 12 are such a serious (and undefined) lead safety issue, why aren't dog toys? Why aren't products for adults? What about industrial products? What about products we put on spaceships?
And, no, the CPSC cannot clothe the naked Emperor. It's simply not workable to write an ultra-complex law no one understands and then instruct a federal agency to just go "fix it". Even if that were possible, if a magical set of rules could be written that would fix the law so that all these various unthreatening situations could be addressed one-by-one (shoemakers, doll stores, t-shirt vendors, the needs of stores with less than five employees, blah blah blah), we would be left with such a vast crazy quilt of FAQs, interpretations, legal opinions, rules and regulations that compliance would become only a theoretical possibility. Again, don't blame the CPSC for the state of the implementing rules - until you try to write them yourself. Even the tax code makes more sense than this.
The Emperor Has No Clothes - the CPSIA's gotta go. We can have plenty of "safety" without such a vindictive and overly-broad law on the books. I hope you will invite industry to help you urgently draft this new law, one to protect American children and the American economy appropriately for our lasting communal benefit.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
Tel 224 436 0265
rwoldenberg@learningresources.com
Sent: Sat 1/10/2009 3:34 PM
To: 'Judith.bailey@mail.house.gov'; 'Christian.fjeld@mail.house.gov'; Robin Appleberry (robin.appleberry@mail.house.gov)
Cc: Etienne Veber; 'Michael Gidding (mjg@brown-gidding.com)'; 'Nancy Nord (nnord@cpsc.gov)'; 'Joe Martyak (jmartyak@cpsc.gov)'; 'tmoore@cpsc.gov'; 'jmullan@cpsc.gov'; 'Brian_hendricks@hutchison.senate.gov'; 'david@commerce.senate.gov'; 'Shannon.weinberg@mail.house.gov'; 'Brian.mccullough@mail.house.gov'; 'Cathy.hurwit@mail.house.gov'; Larry Lynn; 'MToro@cpsc.gov'; 'william.carty@mail.house.gov'; 'patrick.magnuson@mail.house.gov'; pweller@cpsc.gov; mgougisha@cpsc.gov; cfalvey@cpsc.gov; bridget_petruczok@boxer.senate.gov; michael_daum@cantwell.senate.gov; bill_ghent@carper.senate.gov; hap_rigby@demint.senate.gov; frannie_wellings@dorgan.senate.gov; david_quinalty@ensign.senate.gov; james_chang@inouye.senate.gov; jamie_phillips@kerry.senate.gov; jonathan_becker@klobuchar.senate.gov; michelle_schwartz@lautenberg.senate.gov; lee_dunn@mccain.senate.gov; sonya_wendell@mccaskill.senate.gov; christopher_day@nelson.senate.gov; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.gov; betsy_mcdonnell@smith.senate.gov; matthew_hussey@snowe.senate.gov; christine_kurth@stevens.senate.gov; mike_orielly@senunu.senate.gov; brendan_plack@thune.senate.gov; garret_graves@vitter.senate.gov; hugh_carroll@wicker.senate.gov; sarah.baldwin@mail.house.gov; elissa.levin@mail.house.gov; christopher.schepis@mail.house.gov; theresa.lavery@mail.house.gov; greg.louer@mail.house.gov; brian.diffell@mail.house.gov; amy.ingham@mail.house.gov; laura.vaught@mail.house.gov; matt.johnson@mail.house.gov; saul.hernandez@mail.house.gov; mike.kelly@mail.house.gov; aaron.shapiro@mail.house.gov; rick.axthelm@mail.house.gov; steve.plevniak@mail.house.gov; scott.cleveland@mail.house.gov; jonathan.smith@mail.house.gov; pat.cavanagh@mail.house.gov; rachelle.wood@mail.house.gov; michael.gaffin@mail.house.gov; derick.apt@mail.house.gov; aaron.ringel@mail.house.gov; angela.manso@mail.house.gov; dana.lichtenberg@mail.house.gov; derrick.ramos@mail.house.gov; elizabeth.stack@mail.house.gov; julie.hulings@mail.house.gov; lori.pepper@mail.house.gov; josh.connolly@mail.house.gov; david.bahar@mail.house.gov; mark.bayer@mail.house.gov; Neeta.Bidwai@mail.house.gov; kyle.victor@mail.house.gov; chris.debosier@mail.house.gov; morgan.jones@mail.house.gov; matthew.dockham@mail.house.gov; tuley.wright@mail.house.gov; cade.king@mail.house.gov; betsy.christian@mail.house.gov; chris.herndon@mail.house.gov; Mike.Ward@mail.house.gov; laura.abshire@mail.house.gov; randi.meyers@mail.house.gov; Greta.Hanson@mail.house.gov; liz.muro@mail.house.gov; matt.mandel@mail.house.gov; jamie.euken@mail.house.gov; jon.oehmen@mail.house.gov; brad.schweer@mail.house.gov; dana.grayson@mail.house.gov; michael.beckerman@mail.house.gov; valerie.henry@mail.house.gov; Becky.Claster@mail.house.gov; tiffany.guarascio@mail.house.gov; jeff.mortier@mail.house.gov; kenneth.schwarz@mail.house.gov; Pamela Gilbert (pamelag@cuneolaw.com); Robert Adler
Subject: CPSIA - The Emperor Has No Clothes
I recently saw this video about a doll store in Hawaii that is planning to close because of the CPSIA and recommend that you watch it, too: http://www.khnl.com/global/video/flash/popupplayer.asp?ClipID1=3323714&h1=New%20lead%20law%20on%20kid%27s%20items%20threatens%20to%20close%20local%20doll%20shop&vt1=v&at1=News&d1=137133&LaunchPageAdTag=News&activePane=info&rnd=25878297
I am sure the world can live without another doll store. However, the owner of this particular store and her special needs child will suffer certainly. Should we care, especially since the law is making children so much "safer"? I think so, and here's why:
1. There is no reason for ANYONE to suspect that this doll store has EVER harmed anyone in any way. Can anyone provide ANY data to suggest that this store's products will harm anyone because of lead? No, absolutely not. I am fully confident that we can all agree that these dolls are highly unlikely to be harmful because of lead. So what have we accomplished?
2. Recognizing that these products could not realistically have any lead safety issues, the requirements of the law are extremely wasteful in this case, and are so serious that they threaten the very existence of the store and its products. [Notably, although the press is only focusing on the cost of testing, the list of problems caused for this doll store does not end there (not discussed in the video or in this email).] So what have we accomplished?
3. The diversion of capital and human resources to wasteful activities like excessive and almost neurotic testing prevents all kinds of alternative, productive uses of the financial and human capital being wasted. So what we have accomplished?
4. Given that the products and services of this store are useful and its profits are also deployed usefully in society (see the video), and further that as a direct result of the CPSIA the store will have to close, what have we accomplished?
The story of this doll store is TYPICAL of the ill effects of this law. Don't be distracted by the particulars of this person's story - she stands for everyone similarly victimized by the CPSIA. The storyline may change but the story remains the same - there is a societal recognition that American products are safe. The idea that our economy is "full" of unsafe children's products is fed by fear mongering, not facts. The CPSIA with its excessive "zero tolerance" approach neither contributes to additional safety (whatever that means) or to the efficient functioning of the economy. The day of reckoning is coming, and these cries for help are being ignored. Something must be done . . . .
So I am here to announce, for the first time, that the EMPEROR HAS NO CLOTHES. The CPSIA has nothing to do with safety - it is about vengeance, retribution and displaced anger. The discussion about safety under this law has become abstract and spiritual in nature, as though "safety" were a state of mind or some kind of karma level. That's not how the real world works - safety relates to RISK and risk can and needs to be defined. By drafting the CPSIA in such an absurdly overly-broad manner, Congress has created the conditions for debates like whether this little doll shop makes lead-laden dolls. I find it hard to dignify such debates by taking them seriously, as the notion that the subject dolls are somehow a safety risk is patently absurd, as is obvious to anyone living in the real world filled with real products and real risks.
How did this happen? The Emperor's new set of invisible clothes were borne of anger from "43 million toys recalled in 2007". [See http://www.todaysthv.com/news/local/story.aspx?storyid=78263.] What exactly happened in 2007? The lead-related recalls related to LEAD-IN-PAINT, not lead in substrates. [In addition, there was one tort involving one piece of lead jewelry.] Lead-in-paint has been illegal for decades. I hate to be a killjoy, but this means that the problem in 2007 was compliance with law, not the strictness of the rules. This is a behavioral issue, not a restrictions issue, and requires a thoughtful solution tailored to the nature of the problem (lack of compliance). By extending the law well beyond the known safety issue (lead-in-paint) to a laundry list of imaginary risks not associated with actual injuries, we end up arguing about whether cloth dolls, culturally-authentic clothing, microscope bulbs and Harry Potter books present a lead danger. If we are going to pay to prevent safety "risks" of that microscopic magnitude, why stop there? If children's products up to age 12 are such a serious (and undefined) lead safety issue, why aren't dog toys? Why aren't products for adults? What about industrial products? What about products we put on spaceships?
And, no, the CPSC cannot clothe the naked Emperor. It's simply not workable to write an ultra-complex law no one understands and then instruct a federal agency to just go "fix it". Even if that were possible, if a magical set of rules could be written that would fix the law so that all these various unthreatening situations could be addressed one-by-one (shoemakers, doll stores, t-shirt vendors, the needs of stores with less than five employees, blah blah blah), we would be left with such a vast crazy quilt of FAQs, interpretations, legal opinions, rules and regulations that compliance would become only a theoretical possibility. Again, don't blame the CPSC for the state of the implementing rules - until you try to write them yourself. Even the tax code makes more sense than this.
The Emperor Has No Clothes - the CPSIA's gotta go. We can have plenty of "safety" without such a vindictive and overly-broad law on the books. I hope you will invite industry to help you urgently draft this new law, one to protect American children and the American economy appropriately for our lasting communal benefit.
Sincerely,
Richard Woldenberg
Chairman
Learning Resources, Inc.
Tel 224 436 0265
rwoldenberg@learningresources.com
Tuesday, January 6, 2009
Your Comments are Getting Me Charged Up!
Another interesting day at the office! I was interviewed by the Denver Post about the CPSIA (focused on the many serious problems being caused by this hastily drafted law) and heard about the many new viral contacts being made by the energetic and effective members of this informal coalition. It is gratifying to know that we are being heard. The media keeps calling - this is certainly a good thing. I also know our presence is being felt in high places. This is not the same as saying that we have seen cracks in the defense yet, but since today was swearing-in day in Congress, the next few days will reveal much. The staffing of the Rush Subcommittee has yet to be formalized, and then there is the possibility of hearings sometime this month.
Having read today's outpouring of comments and reactions to my Blog, I welled up with anger over this terrible law and fired off yet another letter to the Rush Subcommittee. They are used to hearing from me by now - but this time, I shared your public blogs. They need to see the scale of the disaster they have wrought.
I hope you are all crafting calls, emails and faxes for your representatives in Congress. The amazing AAFA has generated over 7500 emails through their website (other trade associations could learn from them). I know you want "talking points" for your messages. Here are a couple for today:
a. The CPSIA is harmful because the reach of its lead rules is too great. The notorious recalls of 2007 related to lead-in-paint (already illegal) and lead jewelry for kids. These are the only instances of lead in children's products for which there is a documented link to ACTUAL injuries. In other words, the concept of "total lead" has never been linked to real, documented injuries (injuries that have names, addresses and descriptions attached). By overreaching the real risks, huge problems occurred for everyone concerned with being compliant with law. Under the CPSIA, everything is suspect, even though common sense and common experience informs us that the risk is virtually nonexistent with the above limited exceptions. Had the law been tailored to address lead instances that actually present a known risk of injury, MANY industries and businesses would have been spared coverage by this law. The cost of compliance would have come down significantly as well.
b. The CPSIA also overreaches in the definition of children's products. By sweeping in ALL products intended for children up to age 12, the law draws in far too many products with making any rational relationship to known, actual risks. It is well-documented by the CPSC that children over three don't put toys in their mouths - so why extend the age range all the way to 12 years old? When discussing this issue with legislators over the past year, the rational presented to support this term is that 12 year olds "often have a two-year-old sibling who may get into their [toys]". This is patently absurd on several levels. First of all, the risk of unsupervised toddlers is controlled by PARENTS, not manufacturers. There shouldn't be an obligation that all children's product be designed to permit absentee parenting. Second, there is little or no data to suggest that this theoretical risk of injury actually results in injury. Yes, little kids can hurt themselves by getting into Big Brother's stuff - but do they? No. Third, the notion that little kids will likely get into the older kids' stuff - but not the parents' stuff (unregulated) or other household items (what about Fido's toys - which look just like Junior's?) is simply contemptible. Two-year-olds are not known to prefer chewing on the shoes of pre-teens over Daddy's slippers, and if anything would be attracted to dog toys which are always found on the floor in easy reach. Think about it - did Congress endorse gruesome injury from those other items, but thumbed its nose at injury from a sibling's possessions? Come on - their exclusion of those other items from the lead standards is a tacit acknowledgement of the arbritrary placement of the line.
You will be interested to note that of all the public interest groups lobbying for this law on the web, I could find ZERO that illustrated their materials on lead with images of any child over three. Many little kids were pictured with rubber duckies in their mouths. Notably, none of the kids sucking on rubber duckies were 12 years old . . . . I would advance that if lead safety were really an issue for 12 year olds, then why aren't these activists displaying these terrible dangers in their own brochures? I think the answer is obvious.
c. Finally, the Falvey opinion that the total lead and lead-in-paint rules apply retroactively need to be reversed for the good of the nation. You know that - you are blogging about it every day. Why is it okay for Congress to take this step? Would reversal of the Falvey opinion unleash a "flood of dangerous toys" in a "giant lawn sale" on an unsuspecting public? Of course not, and the reason is clear - there is simply no indication that the existing inventory is dangerous. Remember, if it were, the CPSC already has the power to recall it. The public interest advocates are swarming over the entire children's product industry waving XRF guns. If there is such a major public health crisis underfoot - where's the data? Nowhere to be found.
I think that's enough for today!
Rick
Having read today's outpouring of comments and reactions to my Blog, I welled up with anger over this terrible law and fired off yet another letter to the Rush Subcommittee. They are used to hearing from me by now - but this time, I shared your public blogs. They need to see the scale of the disaster they have wrought.
I hope you are all crafting calls, emails and faxes for your representatives in Congress. The amazing AAFA has generated over 7500 emails through their website (other trade associations could learn from them). I know you want "talking points" for your messages. Here are a couple for today:
a. The CPSIA is harmful because the reach of its lead rules is too great. The notorious recalls of 2007 related to lead-in-paint (already illegal) and lead jewelry for kids. These are the only instances of lead in children's products for which there is a documented link to ACTUAL injuries. In other words, the concept of "total lead" has never been linked to real, documented injuries (injuries that have names, addresses and descriptions attached). By overreaching the real risks, huge problems occurred for everyone concerned with being compliant with law. Under the CPSIA, everything is suspect, even though common sense and common experience informs us that the risk is virtually nonexistent with the above limited exceptions. Had the law been tailored to address lead instances that actually present a known risk of injury, MANY industries and businesses would have been spared coverage by this law. The cost of compliance would have come down significantly as well.
b. The CPSIA also overreaches in the definition of children's products. By sweeping in ALL products intended for children up to age 12, the law draws in far too many products with making any rational relationship to known, actual risks. It is well-documented by the CPSC that children over three don't put toys in their mouths - so why extend the age range all the way to 12 years old? When discussing this issue with legislators over the past year, the rational presented to support this term is that 12 year olds "often have a two-year-old sibling who may get into their [toys]". This is patently absurd on several levels. First of all, the risk of unsupervised toddlers is controlled by PARENTS, not manufacturers. There shouldn't be an obligation that all children's product be designed to permit absentee parenting. Second, there is little or no data to suggest that this theoretical risk of injury actually results in injury. Yes, little kids can hurt themselves by getting into Big Brother's stuff - but do they? No. Third, the notion that little kids will likely get into the older kids' stuff - but not the parents' stuff (unregulated) or other household items (what about Fido's toys - which look just like Junior's?) is simply contemptible. Two-year-olds are not known to prefer chewing on the shoes of pre-teens over Daddy's slippers, and if anything would be attracted to dog toys which are always found on the floor in easy reach. Think about it - did Congress endorse gruesome injury from those other items, but thumbed its nose at injury from a sibling's possessions? Come on - their exclusion of those other items from the lead standards is a tacit acknowledgement of the arbritrary placement of the line.
You will be interested to note that of all the public interest groups lobbying for this law on the web, I could find ZERO that illustrated their materials on lead with images of any child over three. Many little kids were pictured with rubber duckies in their mouths. Notably, none of the kids sucking on rubber duckies were 12 years old . . . . I would advance that if lead safety were really an issue for 12 year olds, then why aren't these activists displaying these terrible dangers in their own brochures? I think the answer is obvious.
c. Finally, the Falvey opinion that the total lead and lead-in-paint rules apply retroactively need to be reversed for the good of the nation. You know that - you are blogging about it every day. Why is it okay for Congress to take this step? Would reversal of the Falvey opinion unleash a "flood of dangerous toys" in a "giant lawn sale" on an unsuspecting public? Of course not, and the reason is clear - there is simply no indication that the existing inventory is dangerous. Remember, if it were, the CPSC already has the power to recall it. The public interest advocates are swarming over the entire children's product industry waving XRF guns. If there is such a major public health crisis underfoot - where's the data? Nowhere to be found.
I think that's enough for today!
Rick
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