CPSIA - Perpetrators of CPSIA Feel the Heat

Could we get this lucky? One of the Senators responsible for the penal phthalates ban in the CPSIA and a big CPSIA advocate, Barbara Boxer, seems to be fading in her effort to hold her "safe" seat in California. See "Poll: Fiorina beating Boxer in California". In another CA race involving a featured performer in this space, Jerry Brown (Democratic candidate for governor) is in a dead heat with Meg Whitman. Mr. Brown has already occupied the CA governor's mansion once before. This race is all about whether California voters learned their lesson last time.

Mr. Brown distinguished himself this week by suing bouncy house operators for lead-in-vinyl at the urging of the offensive Center for Environmental Health, bringing yet more prestige to the Golden State: "Jerry Brown: California's top bouncy house cop saves the day" ("L'Affaire Bouncy partially explains why Jerry has been slowly unveiling his gubernatorial campaign and positions: He's been busy investigating this insidious scourge of California's families. Fight on, Attorney General, fight on! UPDATE: Spotting the hanging curve ball out over the plate, Team Whitman has quickly assembled and lawyered a response to the L'Affaire Bouncy, as if it needed one: 'There's something very ironic about Jerry Brown, of all people, investigating the combination of hot-air and make-believe,' says Whitman spokesperson Sarah Pompei said.").

I hate to be out-quipped but gotta hand it to the Whitman folks, that's solid.

Of course, our dear Democratic leaders from California are also the innovative developers of the "Green Chemistry" initiative that will require that we all send in chemical analysis of all of our products for the state's approval and remediation. This bonanza for safety has the potential to drive our company out of the CA market for good. California is the fifth largest economy in the world - we don't want to leave it. The LA Times has consoled me with their assurance that we will all save money in medical expenses. We have descended into LaLa Land.

I remain stunned over this succession of deadly legislation all in a row. Even more shocking is how the Dems puzzle over WHY people are so angry about persistent unemployment or a lack of investment by business. Go figure.

Personally, I am cheering in all the races involving the principals behind the CPSIA, hoping for some additional unemployment in those districts (one job loss per district). In some cases, I am doing more than cheering. If you are also fed up and can't go forward this way any longer, I URGE you to take dynamic steps to take back YOUR nation. These folks don't own the place - you do.

Stay tuned!

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

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

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

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

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

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

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

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

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

CPSIA - Business Roundtable Torches Obama for Anti-Business Policies

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

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

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

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

June 21, 2010

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

Dear Director Orszag:

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

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

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

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

Sincerely,

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

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

Excerpts:

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

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

CPSIA - The CPSC Sweats Out A Stay

The CPSC is on the hot seat over its testing and certification stay . . . again. As you may recall, the CPSC first postponed mandatory testing just ahead of its scheduled implementation in February 2009. On January 30, 2009, the Commission acted to push out the effectiveness of the CPSIA testing and certification requirement by one year, to February 10, 2010. Then-Acting Chairman Nancy Nord noted that the stay "provides breathing space to get in place some of the rules needed for implementation".

Well, that didn't work, so on December 17, 2009, the Commission again pushed out the testing and certification effectiveness date to February 10, 2011. This early action was done in recognition of industry's need for to plan for changes in requirements. Nonetheless, Dems on the Commission bemoaned the need to extend the stay:

Robert Adler: "While I had originally hoped the Commission and the marketplace would both be prepared for the lifting of this stay of enforcement, after thorough consultation with CPSC staff and stakeholders in both industry and the public health community, I believe an extension of another six months is necessary to permit market adjustments, especially with respect to the testing and certification by the suppliers of components. I respectfully disagree, however, with my colleagues who have chosen to extend the stay beyond August 10, 2010. While there will be some disruption in the marketplace no matter which date is chosen, no hard evidence has been brought to my attention that would require an even longer extension of this stay than two years from the passage of this landmark legislation. I recognize that others feel differently."

Perhaps Mr. Adler has uncovered some "hard evidence" by now. Scroll forward six months and things aren't going the CPSC's way. While the Commission may have thought it reserved enough time for everyone to "adjust" to the testing requirements, in fact things are getting worse. Rules are piling higher and higher, and are still being issued and changed. Many people don't feel the rules are survivable. Dan Marshall of the HTA testified at the April 29th hearing that his organization sees the CPSEA (the Waxman Amendment) as their only chance to survive the lifting of the testing stay. [My opinion - the Waxman Amendment won't help the HTA at all.]

More recently, the HTA sent a letter to the House Energy and Commerce Committee stating: "Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. . . . You hold the livelihoods of hundreds of small businesses in your hands."

Ouch.

Not surprisingly, there is mounting background pressure on the CPSC to push out the testing stay for another year. Nevertheless, I surmise that Dems on the Commission would rather eat dirt (40 ppm lead) than take this step. They invested a lot of political capital in the last stay extension, and despite the promulgation of (literally) reams of regulations, still haven't put in place a workable regulatory scheme yet. Retailers are telling the CPSC privately that without prompt relief from the CPSC or Congress, they are going to have to start turning the screws on their suppliers as though the stay won't be lifted. Hmmm.

The pressure is building, building. It doesn't help that Waxman and his supporters won't budge an inch on their proposed CPSIA amendment. By moving in a pack led by Waxman, the Dems are collectively taking full ownership of the awful consequences of the law.

And what if the Commission capitulates and extends the stay? That's good for the industry and the HTA, certainly, but it's political suicide for the Dems. They face a real Hobson's Choice. If the stay is extended, it will be taken as an admission that the CPSIA simply cannot be implemented. That would really stick it to Mr. Waxman, patron of the Dems on the Commission. After all, if the law isn't "ready" for full implementation for FOUR YEARS, it's logical to conclude the CPSIA won't ever work, that it was fundamentally flawed from the beginning. [Where have I heard that before???] If the Commission declines to extend the stay, manufacturers and retailers will light the world afire over the pain and losses being foisted needlessly on them. HTA members and other small businesses will start to close down. Ugly. The choice is lose-lose.

The stakes are even higher for the Dems, if you take into account Mr. Waxman's REAL baby, TSCA reform. The Dems have a big target in mind, the "reform" of chemical regulation in this country. Put simply, they want to roll out CPSIA-style regulation to all things chemical, including plastics and all mixtures of chemicals. This scares a lot of people, given the permi-chaos dogging CPSIA precautionary regulation of only two substances (lead and phthalates). Arguably, the CPSIA was just a trial balloon for TSCA reform. Ramp up the CPSIA by 30,000 times and you have TSCA reform. If the Dems give an inch on the CPSIA, they fear their hopes for TSCA reform will go down the drain. The children's product industry is caught in the middle of a historic fight over how we Americans regulate ourselves.

If you are frustrated by the stalemate over the Waxman Amendment, I think you need to keep an eye on the testing stay. Every day that passes, the pressure mounts on the Waxmanis and the Commission. What's the right thing to do? They sweat and they sweat . . . while we roast.

CPSIA - More Written Testimony from CPSIA Hearing

Oddly and embarrassingly, the House Committee on Energy and Commerce's webpage for last week's CPSIA hearing does not include all written testimony submitted in association with the hearing, nor does it provide a link on the hearing video. [I will get you the video soon, I promise.] The Dem Majority, which loudly touts its "commitment" to "open government", should rapidly address this poor performance.

Here are the other document submitted thus far. I have already provided you links to the written testimony of the seven witnesses and my oral testimony.

• Opening Statement of Chairman Waxman
• The Honorable Inez Tenenbaum, Chairman, Consumer Product Safety Commission,
  Statement for the Record
• The Honorable Nancy Nord, Commissioner, Consumer Product Safety Commission,
  Statement for the Record
• The Honorable Anne Northup, Commissioner, Consumer Product Safety Commission, Statement for the Record
• The Honorable Denny Rehberg, Representative, Montana At Large, Statement for the Record
• Ms. Devra Singer, Product Development Assistant, Funtastic, Houston, Texas, Statement for the Record Entitled "Call for Testimony: A Personal Account of the CPSIA’s Crippling Effects on Our Small Business"
• Mr. Sean Hilbert, President, Cobra Moto, LLC, Statement for the Record
• Mr. Ed Moreland, Vice President, Government Relations, American Motorcyclist Association, Statement for the Record
• Mr. Michael Gale, Executive Director, Fashion Jewelry Trade Association, Statement for the Record
• Economic Analysis - Handmade Toy Alliance

This is provocative reading. I hope you aren't the only ones who read it . . . .

I really like the common sense in the Nord and Northup letters. In particular, I want to draw your attention to one statement by Commissioner Northup: "Forcing a component-by-component petition for exceptions does nothing to enhance safety, and it converts the Commission from a safety oversight agency (like the FAA) into a product approval agency (like the FDA). Rather than spend most of its time and resources removing unsafe products from the market, the agency would devote its efforts to approving perfectly safe products before they go on the market. That switch would also slow the pace of consumer product innovation by increasing the cost and lead time for companies to bring new products to market—which effect itself carries negative safety ramifications." [Emphasis added]

Ms. Northup's got it totally right and you should be worried that this style of regulation makes sense to ANYONE. This is at the heart of the precautionary principle, that the government becomes your partner in making your business decisions. Frankly, I trust companies more than I trust the government, especially these days. I will take Toyota over NHTSA and David Strickland any day. The House Energy and Commerce Committee is not done with this "great" idea, either. Next up is their "reform" of the Toxic Substance Control Act. This is the new scheme of regulation of chemicals that takes all the really great and highly successful notions from our beloved CPSIA (which applies to only TWO substances, lead and phthalates) and rolls it out to more than 30,000 chemicals and all mixtures containing those chemicals. I will need to sharply increase my blood pressure medicine to even read that draft legislation. You will read more about this toxic legislation in coming weeks.

Another interesting nugget is from the HTA economic analysis:

"Total number of manufacturers potentially affected by the CPSIA in the United States 52,544***
Total number of wholesalers potentially affected by the CPSIA in the United States 125,624***
Total number of retailers potentially affected by the CPSIA in the United States 511,240***
Total number of businesses potentially affected by the CPSIA according to the NAICS 689,408***"

The analysis goes on to surmise than 5 million individual products are affected by the CPSIA. I believe that this estimate is low by a factor of ten, but that's just one man's opinion. The author then concludes that the (presumably annual) cost of traditional testing is $5.6 billion. That's a nice way to honor the memory of the child who died in Minnesota after swallowing a lead jewelry bangle, isn't it? I can't think of a better way to spend $5.6 billion annually. . . .

Can any rational person doubt the severity and breadth of the economic damage in light of these data?

Keep your eyes on this space for more testimony. More will filter in over the next couple weeks.

CPSIA - How Important is Testing After All?

Let's zoom up to 40,000 feet and look down on the CPSIA mess. If Martians were watching this affair unfold before their uncomprehending eyes, what would they think?

In 2007/8, a large number of toy recalls and jewelry recalls dominated the newspaper headlines. A closer examination of these recalls shows that they were largely restricted to lead-in-paint and lead-in-jewelry, but few people bothered with the details - hysteria was a lot easier. Sold on a rationale that it is "impossible" to know if something's safe without testing it, Congress wrote up legislation to require prophylactic testing of all children's products, a mind-boggling array of products ranging from pens to t-shirts to science kits to ATVs to shoes.

Being entirely unable to anticipate any problems with this brilliant construct, Congress was shocked to find that the CPSC couldn't implement these requirements without crushing small businesses (among others). A finger-pointing contest broke out, where Congress insisted that the CPSC had the power to implement the new law with "common sense" (read, make up law to make the whiners go away) and the CPSC pushed back that it lacked regulatory flexibility under the CPSIA and legally was forbidden to assess risk. Standoff!

Of late, a weary and perhaps more sensitive CPSC is now taking a more conciliatory stance, expressing an interest, in the words of Ms. Tenenbaum, "to get it right". Aside from soliciting feedback from stakeholders, the agency is clearly trying to draft rules permitting small companies to reduce their compliance costs. The net effect: testing is ebbing away. Now with component testing, it is possible for companies to get out of testing altogether for many of their products. Other rules, like flexible rules on rules on sampling and testing frequency, among other rules being crafted, are further reducing the testing burden. [I strongly support this movement by the CPSC, let there be no doubt.]

But I am confused now. Rachel Weintraub of the Consumer Federation of America famously taught us that "Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested." [Emphasis added.] Yet the CPSC seems to be pulling away from Ms. Weintraub and her wisdom on testing. Is testing critical or not? Is safety achievable in other ways (perhaps various elements in combination)? If testing isn't so essential after all, what's really going on here?

I have a theory to share on this question: The recent movement by the CPSC on testing is tacit acknowledgement of our argument that there is more to safety administration than testing. Furthermore, the ebbing of testing requirements is a further acknowledgement that we are not facing a massive public health crisis in children's products - and never were. Yes, that means poison zippers, brass bushings, ATVs, pens and bikes really is a joke, as you thought. So why the big fuss, why isn't everyone linking arms and singing Kumbaya, if there is acceptance that a lesser standard will be sufficient to ensure safety?

It's simple - the issues go beyond this law, and that's why the Dems in Congress will budge. In fact, we are pawns in a bigger game, namely the battle to establish the precautionary principle in the Toxic Substances Control Act (TSCA). This is Mr. Waxman's dream legislation, his effort to rein in the chemical industry. The folks behind the TSCA reform legislation are deeply suspicious of chemicals in our lives and want to regulate them on a precautionary basis, not entirely unlike the way we approve drugs. It's the "fear of everything" all over again but BIGGER.

How does this tie back to the CPSIA? We are the test case, kids. The CPSIA was the first skirmish in the TSCA war. The two substances regulated on a precautionary basis under the CPSIA, lead and phthalates, either make or break the case on TSCA. If the Dems give in to our demands and acknowledge that their precautionary scheme didn't work, that it ate up the regulatory agency (now nicknamed the Children's Product Safety Commission), then how can they win approval of TSCA?

This is why the Dems are so resistant to rational change of this ridiculous law. This is why they won't listen to reason or consider facts. The facts are contrary to their larger goals, so they need to ignore them or deny them. In this context, it is better to send us down the river than deal with our issues. Although their tough testing scheme is being unraveled, they won't admit that it means that the crisis never was; without a crisis to fix, the entire logic of the CPSIA and their precautionary trial balloon fizzles. The Dems must insist that the crisis is still severe and that there is only one solution, the precautionary principle. Otherwise, they don't get TSCA.

[Side note: There was a "telltale" in the Waxman amendment to the CPSIA last week on TSCA. A big issue in TSCA reform legislation is the possible use of "junk science" to justify removing valuable chemicals from use in our country. With all the self-appointed consumer representatives clamoring for a chemical-free world, there is good reason to fear manipulative use of science under TSCA to disrupt the chemical industry. It's no different than the misuse of lead toxicity and antimony health effects by consumer groups to attack toys and other children's products under the CPSIA. Some people have been insisting on a "peer-review" standard for these scientific challenges to chemical use - which Mr. Waxman fear may hobble his precautionary principle law. This term is used in Section 101 (b) in the CPSIA to make it more difficult to get exemptions - but was stripped out of the law in Mr. Waxman's unilateral amendment. See my first blogpost on his amendment. His "generous act" in removing this ridiculous stumbling block wasn't a signal of increasing sympathy with our problems. No, in fact, it was simply aimed at resolving one of his problems with TSCA.]

I have no easy answers for how this ends. If you feel your anger welling up, you're not alone. Actually, I think the regulators are sick of it, too. The CPSIA has truly consumed the CPSC and made the daily affairs of that agency some kind of purgatory for the staff there. I can't imagine it's much fun being a Commissioner either. Frankly, the biggest shame of all is that by Congress (the Dems, really) insisting on an unworkable scheme for reasons unrelated to children's product safety, the agency has been rendered ineffective, bureaucratic and stuck in gridlock. The CPSC's essential role has been mooted. That's bad for everybody - in a perfect world, the agency is free to do its job and look for real safety problems to solve. Instead, it has to spend its time figuring out whether water slides are primarily intended for children and the like. What a tragic waste.

In the wake of last week's demise of the Waxman amendment and the extension of the lead content Stay, we must retain our focus and continue to push hard for a change in the law. The facts are piling up and the excuses for inaction are fading. It's time for action - for the good of consumers, for the good of industry and for the good of the CPSC.

CPSIA - Still Steaming Over Mr. Waxman and His Unilateral CPSIA Amendment

I am still trying to unpack what happened late Friday when the Waxman amendment to the CPSIA leaked out. Since the news is so fresh and so few of the actors have come forward to account for themselves, let's be conservative and analyze only the most positive possible scenario:

• Mr. Waxman now accepts that some aspects of the CPSIA need to be fixed.
• Mr. Waxman now accepts that the CPSC cannot fix the law through rulemaking alone.
• Mr. Waxman is being a "good guy" and showing his "good faith" by allowing a change to the law.
• Ms. Tenenbaum believed that something is better than nothing and made a practical judgment to support the Waxman amendment as a step in the right direction.
• Ms. Tenenbaum concluded that fighting with Ms. Waxman might worsen the situation for the agency and for the victims of the law.
• Ms. Tenenbaum thought that getting an amendment now might open the door to more amendments later.
• Ms. Tenenbaum thought the Commission could use this "loophole" to ease pressure on at least some victims of the law.
• None of this affects the good vibrations that emerged in recent weeks with the CPSC who has noticeably softened its rhetoric and reached out to the regulated community to find amicable solutions to the perplexing issues caused by the CPSIA.

I think that's about as sympathetic a portrayal as I can paint of the Waxman amendment and the way it was generated. With that sunny scenario in mind, how would I now interpret the events?

1. Waxman is in control, and will not relent. Both minority members of Congress and minority Commissioners have been largely disenfranchised for the future of this law. His need for control made impossible redress of the many other issues documented by the likes of resale shops, education companies and apparel-makers.
2. Waxman will dictate precisely the speed and dimension of fixes to the CPSIA. The pain and disruption in the market does not influence him. As the terms of the original law indicate, he does not regard economics as a factor in setting safety policy. [An economist would characterize this outlook as irrational.] Political pressure does influence him, hence the meager effort to appease the ATV and publishing industries. This amendment is consistent with the longstanding position of his staff - so there is little to indicate further flexibility. If you believe the "one bite at the apple" crowd, this is grim news and contradicts the concept above that one amendment might lead to other amendments.
3. Waxman has no intention to publicly debate the issues under the law. Likewise, he has no intention of possibly losing control of the discussion or the message. Given his stated interest in reforming the Toxic Substances Control Act, it remains critical to portray the CPSIA as a success and as an advance in regulatory "theory". The Waxman amendment makes clear that the legitimate concerns of the regulated community are taking a permanent back seat to a political agenda set by consumer groups and the California contingent. Again, not good for us. . . .
4. The CPSIA is now clearly the Democrats' law. Republicans have been exiled from the safety debate. It is shocking that party lines now define the children's product safety debate since injuring children is not a political issue. Yet, any notion of bipartisanship has been crushed.
5. Whether for political gain, sympathy with the original design of the legislation or for practical reasons, the Democrats on the Commission have fallen in line with the Waxmanites. The teamwork on this amendment makes them appear to be allies. If this means that the Waxman views on implementation will also hold sway, it forecasts grim developments ahead for regulated companies.
6. The appearance of appeasement or even complicity by Ms. Tenenbaum is inescapable. Even in the friendliest interpretation of events, Tenenbaum comes out as a weak defender of the legitimate interests and concerns of the regulated community. And "common sense" seems forgotten. What kind of partner does that make her? Do her statements on consulting with stakeholders and open dialogue seem somehow self-serving now? Right now, it is very hard to know when or whether she will toss regulated companies overboard. This makes partnership with her difficult because you must give to get . . . now that the "get" is in doubt, how can the regulated community become comfortable with the "give"? I also think it's reasonable to ask why Ms. Tenenbaum allowed this provision to be negotiated in the dead of night. That's not how a partner behaves.
7. There is a BIG issue of trust within the Commission here. The very public way in which the Republican Commissioners received notice of their irrelevance will cause lasting injury to relationships. It is hard to see collegiality restored quickly on the Commission after this betrayal. Of course, I can't help but recall the mantra repeated by many pro-CPSIA advocates - that the CPSC needs a five-person Commission. Doesn't the amendment "process" expose this as a joke? If Tenenbaum and Waxman are going to ignore the Republicans, was Congress really saying that the CPSC desperately needed three Democrats in a majority position? Gosh, I think the Republicans that voted for the law might take issue with this . . . .
8. The inclusion of lead labeling for excluded items confirms the zealotry of the Waxmanites, the impotence of the resistance movement and the persistent disregard for the needs of innocent victims of this law. Of course, difficult-to-obtain exclusions are quite anti-small business, as are the lead labels. The labeling is even more incredible if you take into account that exclusions will only be granted in circumstances where the inclusion of lead will have virtually no conceivable health impact. So if the Chairman would sell us down the river with a useless and extraordinarily-limited amendment without addressing ANY of the other pressing issues or demanding the right of the Commission to assess risk, then what else can we reasonably expect from here on out?

That's the $64,000 question, isn't it? Frankly, this amendment and the behind-closed-doors process which excluded all corporate stakeholders and many political stakeholders, sharply erodes trust in all directions. Doing this behind everyone's backs - during a two-day workshop purportedly designed to solicit stakeholder feedback and get everyone on the same page - seems remarkably disingenuous. You can safely assume many recent conversations in retrospect seem less than candid or straightforward.

To work out the difficulties with this law, leadership on the Commission (Democrats) and in Congress (Democrats) need to come to grips with the fact that the law is incredibly misconceived and destructive. The dream that the Precautionary Principle actually works to anyone's benefit has been debunked. To cram down this noxious law despite the legitimate concerns of the regulated community will NOT snuff out opposition - but instead will inflame it. The problems won't go away, and cannot be buried. The issues will fester and rot until addressed.

If the issues marbling the law are allowed to linger long enough, the Democrats can ensure lasting damage to the agency and market catastrophe. I will repeat myself: there is a legacy issue for Tenenbaum and the Dems - and having jettisoned the Republicans, it's all theirs now. The CPSC can be rendered ineffective and wholly bureaucratic, with all the attendant damage that entails, or it can be restored to glory. The choice is theirs and the stakes are high. Interestingly, the regulated community will support an effort to restore effectiveness at the agency, but that will necessarily involve restoration of risk assessment and political independence at the agency. Hard to see Waxman going along with that.

Do we have the leaders for this effort on the Commission? Time will tell. Like everyone else, they will be judged by their results. You and I are along for the ride, whether we like it or not.

CPSIA - Sean Oberle Takes a Pot Shot

How dare I express anger at irresponsible or incompetent consumer groups! I guess I am not a right thinking individual . . . like Sean Oberle, owner of the Product Safety Letter.

Today, Mr. Oberle made an oblique reference to me in his editorial entitled "Zhu Zhus: Who Loses?". In this essay, Mr. Oberle expresses the view that, like negative sales spillover effects from recalls, consumer groups may suffer some reduction in reputation from the actions of the inaptly-named "GoodGuide", famous for attacking Zhu Zhu Pets this week. [Courtesy of the fast action of the CPSC over the weekend in defense of the victimized Cepia LLC, the product was promptly cleared.] After snuffling up a few tears for the consumer groups, nobles one and all, Mr. Oberle carries on with a reference to my recent essay on this sad episode:

"But the current doesn't stop at humor. It runs into hostility. Indeed, one anti-CPSIA advocate this week went so far as to use publicly the irresponsibly offensive (yet laughable) slander, terrorists, to describe consumer groups when reacting to the Zhu Zhu story."

I don't mind being singled out, or even insulted in a condescending manner, for the content or choice of words in my essay on Zhu Zhu Pets. It is hard to interpret the concerted (in fact, coordinated) efforts of many consumer groups to destroy our industry as anything other than terrorism. The annual spectacle of consumer groups frightening the public by spreading fear and misunderstanding about toys is revolting and deserves public shame. Consider the recent successes of CEH in getting shoes and sandals recalled by the CA AG for having too much lead in soles and insoles. Wow, we really are safe now. That's quite a public service, isn't it? [Mattel's fines paid for CEH's sleuthing.] Likewise, Illinois PIRG's failure to find much to complain about in current toys on the shelf didn't stop them from making up a new safety standard (lead in the toys are below the federal standard but above ZERO!). In another case, the "Trouble in Toyland" report this year hauled in a bounty featuring as its big catch a zipper pull. Still, it was a great opportunity to go on TV and make out like the problems were still dire. Hey, it's a living. . . .

And the media is biting down hard, swallowing hook, line and sinker. Consider the WSJ and the Washington Post coverage of the "GoodGuide" episode:

• WSJ: "The developments underscore the role that consumer groups can play in helping the government regulate children's products, but also the confusion they can bring." [Emphasis added] Helping? By doing what, spreading misleading information and causing a massive emergency by incompetently attacking the year's leading toy? That kind of help I think the CPSC can live without.
• Washington Post: "A ratings Web site, GoodGuide, reported Saturday that it had found high levels of antimony in the Zhu Zhu Pets' 'Mr. Squiggles' model. Antimony is used as a fire retardant in textiles and plastics, and chronic exposure to it can cause heart and lung problems and other health effects. Federal laws require that toys contain no more antimony than 60 parts per million. GoodGuide reported that it had tested Mr. Squiggles and detected antimony between 93 and 106 parts per million." High levels? What exactly constitutes "high levels" of antimony, anything over the limit? Is that because even one part-per-million of antimony over the federal limit on the product's nose is deadly? I dare say NOT. How many slices of filet-of-nose-of-Zhu-Zhu-Pet must be consumed before you get "heart and lung problems and other health effects"? My opinion: the Washington Post has absolutely NO IDEA. However, what's the story if a paper can't use strong words to describe minor issues?

Don't worry, the Washington Post hasn't lost its edge. It tried again the very next day to help stir the pot some more.

Despite Mr. Oberle's indignation over my choice of words to describe the saintly consumer groups, most Americans are getting sick and tired of the stunts the self-appointed advocates pull annually. A little bit of this is a good thing, a mass terror campaign not so much . . . .

If we are ever to pull ourselves out of this miasma as a society, we're going to have to get away from consumer education through fear mongering. The issue confronting us is safety. Safety . . . not compliance, these are two different things. Perhaps there is something more to the virulence of the campaign than meets the eye. There are those among us who have a political agenda, in addition to an interest in safety. Let's not confuse the two. Revving up in Congress is an effort to recast the Toxic Substances Control Act. This next phase of the CPSIA descent-into-hell aims to make all chemicals suspect until proven safe. Sounds good to you? Well, consider what this approach to regulation has done to all aspects of the children's products industry over only TWO such chemicals (lead and phthalates). The same luminaries who brought you this mess have a mega mess to sell next.

Don't let it happen.

CPSIA - Randy Swart Takes My Spot in PSL!

Never tiring of a good thing, the Product Safety Letter today published an Op-Ed by Randy Swart entitled "CPSC's Guidance Is Not as Confusing as It May Seem". Mr. Swart is the founder of the Bicycle Helmet Safety Institute. In this article, Mr. Swart replies to Rob Wilson's Op-Ed in PSL on Resale Shops and Inez Tenenbaum in a way not exactly reminiscent of my rejected Op-Ed on the same subject. Recognizing the PSL's reputation for "neutrality" and "accuracy and clarity", I am trying to figure out why Mr. Swart got the nod over me. Could it be that Mr. Swart's views might be more pleasing to the regulators that feed the PSL its life-sustaining information? Golly, that's a head scratcher. . . .

Mr. Swart: "CPSC's Guidance Is Not as Confusing as It May Seem"

RW: "Tenenbaum Silence on CPSIA Speaks Volumes"

Mr. Swart: "As all readers of Product Safety Letter know, CPSC is struggling to maintain any level of enforcement at all, and will not be going after yard salers!"

RW: "Scott Wolfson, a spokesman for the agency, said it wouldn't be dispatching bureaucratic storm troopers into private homes to see whether people were selling recalled products from their garages, yards or churches. ‘We’re not looking to come across as being heavy-handed,' he said. 'We want to make sure that everybody knows what the rules of engagement are to help spur greater compliance, so that enforcement becomes less of an issue. But we're still going to enforce.'"

Mr. Swart: "In fact, [the CPSC] would have no more idea than the parent which old toys contained phthalates or had lead in the paint, and would have to test to establish that. Finding recalled product would be looking for needles in haystacks. It just will not happen."

RW: "After all, didn’t NY Attorney General Eliot Spitzer secretly inspect resale shops in 2003 and then release names and addresses to the media? Interestingly, Spitzer was joined by some of the same consumer advocates who are behind the CPSIA. The CPSC has the same power to embarrass."

Mr. Swart: "It is not fair to blame the Commission or Congress for not grandfathering the dangerous toys in our market. We need to get them out of circulation [Ed. Note: Who, the Commission or Congress?], and that fact is independent from the enforcement of the CPSIA legislation. It will impose a hardship on some retailers, but that pales in comparison to the alternative--to tolerate the continuation of poisoning our children for years to come until those toys are worn out."

RW: “'The [West Michigan] Salvation Army does not have thousands of dollars to spend on lead-testing equipment, so anything that looks suspicious — plastic toys, painted toys, toys with magnets or small parts, toys made in China — is pitched, said Robert Pierce, director of operations for the Salvation Army stores. Only about 20 percent of donations to the Salvation Army — compared to about one-third before the law — make it onto the store floor.' The CPSC’s tough talk on enforcement is having a chilling effect on the business community – and that cost must be weighed when regulators get 'tough'”.

Mr. Swart: "In fact, any threat of CPSC retribution is probably less real than the possibility of being sued by the buyer if someone is injured by a recalled product. That should give the yard saler pause if nothing else does. Many people trash some items that they would have sold or Freecycled because of that risk." [And this guy thinks he is helping make a case for the CPSC and the new law???]

RW: "The agency previously played a critical role in setting safety priorities, assessing risks and interpreting the law. . . . The Chairman can show she is a leader by providing an honest assessment to Congress of the problems with CPSIA and mapping out the necessary changes. Ironically, none of this is about safety – it’s about a law that just doesn’t work."

Okay, I can't figure it out! Can you?

A couple final thoughts (can't resist): Mr. Swart says "The chemical detoxification of America is just beginning, and this is one of the early skirmishes in a long war." Please remember this blather. This is the mantra of the "everything-is-bad-for-you" crowd. If you want to see this mania in action, watch this video (and if you have the time and energy, the three other segments). This outlook is extremely dangerous but with Mr. Waxman as champion, threatens to infect federal regulation of many markets besides toys. This is the so-called "Precautionary Principle" and is the basis of the proposed amendment of the Toxic Substances Control Act (TSCA).

Second, in response to Mr. Swart's comment "It will impose a hardship on some retailers, but that pales in comparison to the alternative--to tolerate the continuation of poisoning our children for years to come until those toys are worn out", I want to reprint the words of a staffer from the office of Illinois' own Senator Dick Durbin:

April 16, 2009: "I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions). . . ." [Emphasis added]

I can hardly express my joy at being a Congressionally-selected victim for the greater good of our country! Their "larger calculation" sounds so sophisticated. I will go out with a smile on my face.

The barf bags are over on the shelf on the left.

CPSIA - Californization Continues

On September 29, the EPA's top administrator announced that the Obama Administration would announce the long-awaited amendment of the Toxic Substances Control Act. This announcement came in a speech in San Francisco, the home of all good regulations. The Scientific American states: "As a result, she said the Obama Administration will promote a new chemical law in Congress in the coming months that puts the responsibility on industry to prove that its compounds are safe." Sound familiar? The EPA also announced a new investigation of phthalates, perhaps attempting to blunt any effort to discredit the ban in the CPSIA.

In another "Brave New World" quote from the article featuring the not-enough-government, not-enough-regulation official: "'As more and more chemicals are found in our bodies and the environment, the public is understandably anxious and confused. Many are turning to government for assurance that chemicals have been assessed using the best available science, and that unacceptable risks haven’t been ignored,' Jackson told an audience of several hundred people during a speech at the Commonwealth Club in San Francisco on Tuesday night. An audience member asked if the EPA would add the right of citizens to sue for non-compliance of the law, a provision that lies within the Clean Water Act. 'That’s a great idea,' she said, and 'it was certainly something to consider.'” [Emphasis added]

Hey, Chemical Industry - welcome to our misery! Why don't you embrace this change with enthusiasm - appeasement really worked wonders in the case of the CPSIA.

CPSIA - More Science on Phthalates

As noted yesterday, the data on phthalates from recent studies challenges the panic-stricken construct of California or Federal legislation banning of six (or in the case of CA, seven)phthalates. Reasonable doubts about the consumer advocates' position on these chemicals make the astounding losses from contraband phthalate inventory all the more painful.

Now comes a new study from New York that provides evidence that animal abnormalities from (high) doses of phthalates are not being seen in humans. In other words, in this study of congenital defects in New York State births from 1992-2005, the authors could not find evidence of correlation to any risk factor other than advanced maternal age (whatashock). Animal abnormalities were not replicated in humans from exposure to phthalates. Hmmm.

Digging deeper, a recently updated article by STATS (according to their website, "a nonprofit, nonpartisan research organization affiliated with the George Mason University") indicates that according to the National Institutes of Health, the majority of phthalate intake is from . . . food (meat and fish), responsible for 85-90% of intake in adults, and 45-60% in infants, the rest from dust. Toys as a source of phthalates is seemingly deemed by STATS to be minimal, just as the NPR article and audio clip contends. Not surprisingly, STATS confirms that the fear in the streets over phthalates derives from one questionable report by one ardent scientist. The STATS article calls much of that study into question, and presents considerable data which correlates to the CPSC study discounting the risk of phthalates found in toys. They also note that the media has not picked up on this one yet - maybe good news doesn't sell papers???

Ugh.

Perhaps we have all been so assaulted by movies about dread diseases and evil corporate conspiracies that we are now prone to believe the worst of everything and of everyone. One scientist with a passionate distrust of a substance can sweep up a lot of support from conspiracy theorists with a prejudice against business. There is also a strong distrust of scientific pushback on these "discoveries". By using accusations of conflicts of interest to marginalize dissent, fear mongers are able to exploit these questionable studies to promote legislation like the CPSIA (or even Mr. Waxman's dream legislation, the Kid-Safe Chemical Act, designed to change all regulation of chemicals to "precautionary"-style, just like our old friend the CPSIA).

The conspiracy theorists can only hold sway over your country and your society if you let them. This is your country and your Congress. Hold them to account.

CPSIA - A Fixed Game

Today's hearing of the Subcommittee on Investigations and Oversight of the House Committee on Small Business brought to light a number of issues caused by the CPSIA. For those of us who are struggling to survive an incomprehensibly dangerous and misconceived law, this long-sought hearing presented a great opportunity to get on the record. I filed testimony, as did others. Many people rushed to get on the record, to set it straight, because Mr. Waxman and his co-horts have done yeoman's work keeping us off the record. This hearing was much anticipated, largely because we had received direct feedback from committee staff that they understood the issues with the CPSIA and were genuinely concerned.

Watch the hearing videos - Nancy Nord's testimony was honest, insightful and intelligent, and the committee treated her fairly. Notably, Ms. Nord said what I have always wanted to say (on the record), namely that none of the armchair quarterbacks in Congress can point to ACTUAL LANGUAGE in the CPSIA that gives the CPSC the purported "discretion" to exercise common sense judgment in implementing the law. Of course, there is no such language (the opposite is true, as Ms. Nord noted clearly) - the Dems' claims of such authorization is poisonous and shameless manipulation. The industry witnesses (including AmendTheCPSIA Rally speaker Susan Baustian) painted a depressing picture of a law devastating small business without acheiving any safety payoff. Small Business is the charge of this committee. The truth was spoken, did anyone listen?

Unfortunately, Chairman Jason Altmire of Pennsylvania had selective hearing today. See Altmire's Committee press release in which he makes up a story about industry fingering the CPSC. This didn't happen - the videos don't lie. The Republicans didn't have wax in their ears - the Republican Committee press release accurately notes that the testimony universally criticized the law, NOT the CPSC. Isn't that interesting - the Republicans seem able to digest the spoken word, yet the Dems hear what they want to hear. Oh, wait a sec, what's this? A press release from Jason Altmire's OWN website - it quotes Laurel Schreiber detailing the small business problems caused by the rigid and unrealistic law (and then Mr. Altmire launches into the Party lies - oops, I meant "Party line" - about the "bad" CPSC under Ms. Nord). So Mr. Altmire apparently was able to hear at least a little bit of criticism of the law, when it emitted from his own constituent, but still seems to have concluded, despite the testimony from several witnesses, that the problem is solely with the agency.

If Mr. Altmire and the Dems already "knew the answer" and had no intention of listening to the small business witnesses, why hold hearings at all? I can only speculate that this is some sort of Kabuki Theater staged for the benefit of I-have-no-idea. It seems that Mr. Waxman and his associates finally decided that if the "whiners" want a hearing, they'll get a hearing, and the Dems can twist it into whatever they want. The word must have come down to Mr. Altmire that if he wants to eat, he must toe the line. Hence the fantastic misleading press release. [He's not the first Dem to be taken out to the wood shed about the CPSIA.] Interestingly, Mr. Altmire seemed the epitome of polite and empathic concern at the hearing but turned into a jackal at press release time. This is not particularly endearing behavior, if you ask me.

Get used to it, it's a fixed game. The Democrat-run Congress has decided to go its own way - they don't work for you anymore and are deaf to your legitimate concerns. The situation has devolved into "anti-transparency" where government has been taken over by people with a Nanny State agenda, and they will impose it using all available "behind closed doors" means to keep inquiring eyes away. The "anti-transparency" government operates by repeating the Big Lie over and over - namely that the law is perfect (oh what a great process to craft it!), that we really need this protection, and that the CPSC is at fault with intentionally incompetent implementation - until we all fall under their spell or expire from exhaustion (they seem to be indifferent). You will see this again with Climate Control and the Toxic Substances Control Act (Waxman's version of REACH).

This new way of government is for the "have's", not the "have-not's". In this case, the "have's" are consumer groups and rich industry groups or companies with large, vocal constituencies. The "have-not's" are the rest of us, including MANY law-abiding family businesses that used to be considered the backbone of the economy. This is not what the Constitution promises but the stewards of your future are unconcerned. After all, fairness and equity are secondary considerations since we REALLY need all this precautionary protection. The shadowy staffers who run Energy and Commerce in both Houses of Congress send messages to their Commissioners on how to grant common sense "justice", and ignore the law in the process. This works great for our staffer government.

Why is this "anti-transparency"? Ahem, what about public hearings instead of quiet instruction in the dead of night? What about laws that are written down, and enforced as written? What about laws that apply to everyone equally, without regard to economic ability to mount multi-million dollar campaigns to gain exemptions? In the new world where enforcement and practice diverge away from the law itself, we are subject to unwritten laws that can change without due process. This is simply not right and is subject to abuse.

And another thing, Mr. Obama does NOT feel your pain. His position, like the rest of the Deaf Dems, is to jam this law down your throats, reasonable or not. Before we grant him Sainthood for a good couple months of speechifying, I believe he should be held to account for his culpable silence and complicity on this law.

I may recall this matter the next time I vote.

CPSIA - My 2/24/09 Testimony/Letter on TSCA (The Risks of Precautionary Laws Based on Our Experience with the CPSIA)

From: Rick WoldenbergSent: Fri 2/27/2009 11:39 PMTo: 'Christian.Fjeld@mail.house.gov'; 'robin.appleberry@mail.house.gov'; andrew_grobmyer@pryor.senate.gov; james_reid@rockefeller.senate.govCc: '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; Lyndsay Austin (Lindsay.Austin@mail.house.gov)

Subject: CPSIA - My 2/24/09 Testimony/Letter on TSCA (The Risks of Precautionary Laws Based on Our Experience with the CPSIA)

Please find attached my letter to Rep. Bobby Rush and Rep. George Radanovich on the Toxic Substances Control Act (TSCA) dated February 24, 2009. This letter was entered into the record of the February 26 hearings held by Rep. Rush's subcommittee on the revision or amendment of TSCA. The subcommittee is apparently considering changing the focus of TSCA into a precautionary law much like the EU's REACH. Interestingly, to change TSCA into a precautionary law would require overlooking the terrible example of the CPSIA, a blatantly precautionary law that avoids all concept of risk assessment. As Gib Mullan, Director of the Office of Compliance and Field Operations of the CPSC stated on February 26 at the ICPHSO Conference in Orlando, Florida (http://www.icphso.org/), "Congress made it clear that [the CPSC is] to get away from 'that kind of analysis'". Thus, the CPSC is a precautionary law in which the regulatory agency is prohibited from considering if there is ANY risk associated with banned or restricted products.

This can cause severe problems, as I have pointed out in many previous letters. Please read the attached letter.

Please amend the CPSIA urgently before it singlehandedly devastates the children's product industry, many tens of thousands of businesses. The economy is doing a good job of beating these companies to death - we don't need the CPSIA to finish the job.

Richard Woldenberg
Chairman
Learning Resources, Inc.
rwoldenberg@learningresources.com
Follow my blog at http://www.learningresourcesinc.blogspot.com/ or at www.twitter.com/rwoldenberg.

Download TSCA Hearing Letter 2-24-09 now >>>