Democrat tool Rachel Weintraub is never at a loss for words on the topic of CPSIA and true to form, she has today published more misstatements, distortions and innuendo to bolster Dem efforts to block amendment of the CPSIA. In the space below, I rebut Ms. Weintraub's "view of the world".
It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub's smear campaign, namely "Fix bill would make products safer, not less so" by Eric Stone. For those who don't know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division. He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.
As Eric Stone notes, "In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law." Amen.
My responses to Ms. Weintraub are in blue and red.
Don't set safety clock backwards for kids products
By Rachel Weintraub
Florida Sun-Sentinel
July 24, 2011
The House Energy and Commerce Committee will soon vote on HR 1939, the "Enhancing CPSC Authority and Discretion Act of 2011," or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves.
RW - It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys. Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you - afraid of ECADA's potential effects on innocents by "evil toymakers". Aside from the fact that "evil toymakers" are no more or less prevalent in our society than any other category of "evil" something-or-anothers, Weintraub's characterization greatly distorts what CPSIA really is. CPSIA applies to ANYTHING that is intended to be sold to children. The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on. Focusing on toys is just to get you going.
Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA's passage followed a record number of recalls of children's products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public's safety. The law represents a giant step forward in protecting America's children.
RW - Another defensive ploy of the CPSIA defenders is the "infallibility of Congress" argument, namely that everyone voted for it so why is anyone against it now. This argument only makes sense if you don't think about it too much. For one thing, the CPSIA was passed in anger. Have you ever said or done anything in anger that you later regretted? That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco. Pelosi takes no prisoners and tolerates no dissent among her Dem followers. The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed "voluntary" in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party. Weintraub's distorted rewrite of history is a good illustration of the rule that history is written by the victors. Consider the source . . . .
CPSIA currently requires that children's products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening.
RW - Another oft-repeated consumer group assertion, never proven. It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their "common sense" desires and fears.
It sets limits on lead in children's products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems.
We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby.
Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children's product manufacturers, are useful to discuss.
RW - The nauseating cynicism of this remark cannot go unaddressed. Ms. Weintraub argued for two years that the agency "needed time" to implement the law and to work out the kinks. At that time, she and the other Dems argued that there was "nothing wrong" with the CPSIA that the CPSC couldn't fix in its implementation and that consideration of legislative fixes was not merited until that process was complete. Three years later we are still subject to this on-going implementation . . . that is, those of us who haven't gone belly up. Weintraub expressed little interest in "discussing" these issues way back then.
Later, Ms. Weintraub tried to justify Henry Waxman's lame-o effort at a cursory amendment of the CPSIA that offers negligible relief. Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic:
"Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards. We believe, however, that the term "small batch manufacturer" is defined too broadly. We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision." [Emphasis added]
The CPSC never did identify any such "reasonable testing methods" even though the "hunt" has gone on for three years now. Even Ms. Weintraub must blush when she tells you that such issues deserve "discussion".
Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways.
HR 1939 reduces safety testing for children's products by undermining independent safety testing requirements for most children's products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child's intestines and chemicals that turned into the date-rape drug when swallowed.
RW - The issue in 2007 and 2008 was NOT that the law did not protect consumers. In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose. After all, they issued hundreds of recalls under prior law. Please pause and give that a little thought. Weintraub's argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell.
It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a "small parts" issue. No law can prevent the unknown and the not previously experienced from happening. That is a safety fantasy. In addition, the "date-rape drug" incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker. Only in Weintraub's self-serving world is this incident useful . . . to terrorize. Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry.
Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits.
RW - Weintraub here spurns the President's Executive Order which MANDATES cost-benefit analysis by the CPSC. This arch position conforms to the surprising world view of Bob "Over My Dead Body" Adler and Inez Tenenbaum and certainly suits their Dem agenda. It is, unfortunately, an affront to the President's order. It is also economic nonsense. The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis. Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation. Thanks, Rachel, for the great idea!
It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers.
RW - Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers' best interests. Apparently she is the only one who knows this. The people who actually work for companies affected by this rule have been howling for three years-plus. Here Rachel sets us all straight - the problem is we're wrong and she's right. Oh, now I see it! Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease. That's nonsense and is not supported by data. We have been testing since I got to Learning Resources, more than 20 years ago. So, if mandated testing is necessary to force testing, why were we testing way back then? Simple - we wanted to know we were complying with the standards. Standards drive testing, and enforcement can make testing prevalent, even universal. Mandated testing just raises costs, unfortunately. I have previously addressed this issue in a blogpost.
HR 1939 increases the amount of lead that would be permitted in children's products. CPSIA currently requires that all parts of children's products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children's products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child's IQ. There is no reason why there shouldn't be a single, strong standard that simply keeps lead out of children's products.
RW - No reason, huh? Space does not permit me to reduce this absurd statement to rubble. I have been writing about the many common sense reasons to modify standards for three years now. ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals. If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band, ECADA's changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can't address.
The idea that different standards for different products aimed at different ages of children are somehow "defective" flies in the face not only of common sense but also the regulatory tradition at the CPSC. Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books. If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some "pushback". And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn't seem to work either.
HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards.
RW - I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes. It is in Ms. Weintraub's interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies' lives. Anyhow, it's all a fiction but a helpful fiction to Ms. Weintraub's purpose, namely to subvert efforts to amend the CPSIA. Here is the "deadly" language that Ms. Weintraub protests so intensely:
"(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State: (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib."
Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data. She just wants you to push the panic button. ECADA only permits certain legacy FIXED SIDE cribs to remain in service. I thought fixed side cribs were the "answer". Not if their inclusion in ECADA might help get it passed, apparently.
HR 1939 allows the use of dangerous phthalates, which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA's landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles.
RW - Rachel again ventures into Whopperville to scare you about phthalates. Let's start by deciding how "dangerous" phthalates are. Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three. On two previous occasions the agency has done just that . . . and concluded that phthalates don't present a risk to children. Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi. Aha. The science on phthalates is hardly an open-and-shut case - just watch 60 Minutes for perspective.
Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered. ECADA only allows us to stop testing components that cannot be touched or licked by kids. That's it. The actual words: "ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article."
HR 1939 undermines the new CSPC product safety database. This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government.
RW - Oy vey. There has been so much written on this subject that I can't bear to write it again. Ms. Weintraub intentionally ignores any point inconsistent with her political agenda. I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details.
Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation's safety net.
RW - One last point, to quote Eric Stone: "ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the 'Republican-industry conspiracy' narrative." I love the "Republican-industry conspiracy narrative" part. You can see how that might work well for Rachel.
Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.
Showing posts with label Testing. Show all posts
Showing posts with label Testing. Show all posts
Sunday, July 24, 2011
Thursday, July 21, 2011
CPSIA - The CPSC Finds a New Way to Scr*w You
The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous. Is it, really?
Commissioner Nancy Nord points out that this decision was a compromise of a Hobson's Choice nature:
"I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change."
What was that last bit?
Ummm, well, the ASTM is actually updating the F963 standard right now. It will be done by year end. and as a result of the CPSC's wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 - and probably necessary to test to the new standard, too! Doesn't that sound great?! Now you can deliver TWO test reports when one might have sufficed. But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one. Just think of it . . . .
Ms. Nord explains:
"When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating."
I no longer have a sense of humor, so you can rest assured that I am NOT making this up.
Why the heck was the Commission in such a big, hot hurry to get this done? Again, Ms. Nord explains:
"We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays."
Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn't want to vote for any more stays? So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery. The Dems on the Commission almost always vote as a pack. Can you connect the dots?
Not surprisingly, Nancy Nord can connect dots:
"However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button."
Another Commission decision, another shellacking of the poor fools left serving children's markets. After three years of this torture, I am just not surprised. When will our country wake up and notice this travesty?
Commissioner Nancy Nord points out that this decision was a compromise of a Hobson's Choice nature:
"I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change."
What was that last bit?
Ummm, well, the ASTM is actually updating the F963 standard right now. It will be done by year end. and as a result of the CPSC's wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 - and probably necessary to test to the new standard, too! Doesn't that sound great?! Now you can deliver TWO test reports when one might have sufficed. But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one. Just think of it . . . .
Ms. Nord explains:
"When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating."
I no longer have a sense of humor, so you can rest assured that I am NOT making this up.
Why the heck was the Commission in such a big, hot hurry to get this done? Again, Ms. Nord explains:
"We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays."
Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn't want to vote for any more stays? So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery. The Dems on the Commission almost always vote as a pack. Can you connect the dots?
Not surprisingly, Nancy Nord can connect dots:
"However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button."
Another Commission decision, another shellacking of the poor fools left serving children's markets. After three years of this torture, I am just not surprised. When will our country wake up and notice this travesty?
Thursday, July 14, 2011
CPSIA - Sound Bite Justice
Today the CPSC Commission voted 3-2 to impose the 100 ppm lead standard retroactively as of August 14, 2011, having concluded that there are no materials or products that the CPSC staff could identify for which this level of lead is not "technologically feasible". This vote has been long predicted and anticipated. The entire meeting was conducted in a thoroughly partisan manner, with sharp dividing lines between Dems and Republicans. What-a-shock.
I experienced a range of emotions watching this two-hour hearing. None of them were surprise. I experienced some boredom, as the debate was so predictable and so repetitive of past meetings. Many self-serving remarks by the Dem zealots. I experienced a mild sense of hopelessness, as it is clear that the Dems are unreachable. I experienced rising exasperation over their refusal to listen or consider data - unless it agrees with pre-existing agendas and alliances. It is hard to not feel you are appearing before the Hanging Judge.
I won't attempt to analyze what was really going on today, you already know it. The posturing was sickening among the Dems. That said, you deserve some flavor of the event. Here are a few tidbits for your amusement or annoyance:
She's just the nicest!
Inez Tenenbaum explained that the 100 ppm standard would have gone into effect if the CPSC had not chosen to decide the question of "technological feasibility". As she sees it, "this [decision] is a courtesy to people."
What, Boeing isn't covered by the CPSIA?!
After vigorously stating her case on the cost-benefit analysis of this rule and condemning the possible adoption of this rule as a violation of the recent Executive Order applicable to the CPSC, Ms. Nord restates the obvious. Unfortunately, the power of her logic was lost on at least three of her colleagues by my estimate: "Just because a material is out there for a jet plane, doesn't mean that it's appropriate for a toy plane." No!
Is that a promise, Bob?
Defending caveman logic to his followers, Bob Adler rebuffed the Executive Order argument and the order of the person who appointed him to his post: "This is not a new Executive Order . . . . [They] said could you at least do a plan for economic analysis and I do think that we are planning on doing that and we have done that in the past. It says "to the extent permitted by law" we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis. If you look at the data . . . nine [CPSC] standards in 30 years using those procedures. I am not against cost-benefit analysis; I am definitely against the kind of cost-benefit analysis that's contained in our statute. Section 101 does not EXPLICITLY bar a cost-benefit analysis but it effectively does so." [Emphasis added]
I find this rather interesting as he challenged me on February 16 with the question of whether I recommended that he violate the law. It was a tense moment - he was trying to corner me into telling him to spurn his Congressional mandate. Nevertheless, it is appears that Bob can pick and choose which laws bind him and which do not. That shouldn't surprise anyone who went to law school. Law school profs always know the right answer, even if it makes no sense to anyone but themselves.
They care sooooo much, they really feel our pain . . . .
Ms. Tenenbaum set the records straight on the purity of her good intentions: "I so believe that we have been diligent in looking at the marketplace and surveying materials. We have admitted it would be an extra cost to some companies and been out front. But, again, 'technological feasibility' the definition is not 'economic feasibility'. Not that I don't sympathize with small business owners and that is why we have worked on other rules [like the component part rule]. We are trying to be as flexible as possible and work with small businesses and the industry to accomplish what Congress mandated for us to do."
I know it's just a detail but in the last three years, what exactly has this "effort" achieved? Oh yeah, I forgot about Neal Cohen - we can cry on his shoulder! In fact, Ms. T. closed the event with the offer that Cohen has his box of Kleenex ready for you whenever you need him.
Somebody's getting the shaft, let the record reflect.
Nancy Nord noticed something the Dems must have missed: "You know, one of the things that is of concern to me is that the penultimate recommendation from the staff here is that 'complying materials APPEAR to be commercially available for most products.' Listen to the hedge words there in the staff recommendation. They 'appear to be'? Well, let's find out for sure and let's do it on a product category basis. 'Most products'? Well, what about the ones that can't meet it? That's our responsibility as [regulators], colleagues."
Hmmm.
Professor Adler grades the final exam.
Bob Adler was in top form today. The "over my dead body" remark was just an appetizer. He went on to inform us that comment letters which arrive late are not operative, especially if they did not properly read his mind on what he wanted to see:
"I do want to also comment on some of the last minute submissions we got from our friends in industry, and I always appreciate those comments and I do consider a lot of these folks to be good friends both of this agency and of mine. But it's really hard to take it seriously when it comes in at the penultimate or ultimate moment when you've had a lot of time to get that kind of information to us. . . . [Recites all the opportunities to comment prior to this hearing.] All of that, if you want to make a point, would have been very helpful especially we'd had the kind of hard quantitative data that SGS and the Hong Kong-American Chamber of Commerce gave us. And I'm going to just make a brief comment = you're free to do it, it's not helpful to tell us we've read the law incorrectly. I think we've read it correctly. I don't think it's helpful just to tell us that it's going to be difficult and more expensive to get compliant materials. I think we know that, I think the staff told us that. What we needed was more hard data demonstrating the points that you're making because what we really got were a lot of conclusory assertions when what we really needed was some hard quantitative data. And all the hard quantitative data I've seen really points in the opposite direction. So I really appreciate all the last minute comments. Too little, too late as far as I am concerned." [Emphasis added]
This lecture was repeated three times by Mr. Adler unprompted, for reasons best understood by him. Interestingly, Mr. Adler seems to have forgotten that I presented hard quantitative data on this same topic in my timely-filed 100 ppm comment letter and in my Febuary 16 testimony. Of course, it did not agree with the SGS or HKACC submissions. I guess since he found their data useful, mine must have been wrong. According to his remarks today, I didn't even submit it, which is rather surprising since it was discussed extensively in the Staff report: "Learning Resources reported 98.3 percent compliance with the 100 ppm standard for its products, but found this compliance level to be unacceptable because of the difficulty in identifying where the noncomplying components would turn up."
Bob Adler flips his flop.
You would think with three repetitions of his condescending lecture on late submissions, that Professor Adler must mean it. Can't get a good grade in his class with that behavior, right? Well, maybe not for the teacher's pet: "One very quick point, well two. One is that the [AAP] study you shared with us, and again thank you so much Commissioner Northup, is a 2005 study. We got a letter last night from the American Academy of Pediatrics reiterating their support for moving down to these levels. . . . "
Bob Adler wings it. . . .
In the face of a vigorous attack by a well-prepared Anne Northup on the shoddy scientific data presented by the AAP supporting the "no safe level of lead" assertion, Mr. Adler lapses into hyperbole and fantastic assertions incapable of validation:
"It isn't just the [AAP]. A lot of what they've done has been drawn from research done around the world on the effects of lead. I'll bet there must be ten thousand, I know there are thousands and thousands of studies on lead, all of which point to the very severe toxic effects associated with [these products]."
Mother knows best!
In a truly shocking display of personal preference substituting for appropriate policy and regulation, Ms. Tenenbaum decided that we don't need recycled materials in children's products because who would want them anyway?
"The scientific community has shown us over and over again that lead is cumulative and so I think there are safety benefits in reducing the exposure to lead and the accumulation of lead in the body. Also, I don't know that parents are interested in having products that their children use, particularly infants and young children, that are mouthable being made of recycled materials, recycled materials that may contain a higher level of lead. Recycled plastic - do you want your child to have a recycled pacifier? Well, that is why Congress has set these strict limits."
[Full disclosure, we recently won a toy industry award for environmentally-friendly toys made of recycled plastic. No one has objected to them to my knowledge, and believe me, they are wonderfully and thoroughly tested for compliance.]
And the support for Ms. T's bald assertion is . . . what? Did she find something in the legislative record? Is there some verbiage in the law? I have not heard this previously from anyone at the CPSC but notably I have repeatedly noted that the CPSIA will be the death of recycled materials in children's products. Still, Ms. T's logic is irresistible - she is there to figure these things out for us and certainly knows best. After all, she loves children, probably much more than any of us. She cares. What else do you need to know? With her power to impose policy, her preferences will become our marketplace. Brave New World, courtesy of the Nanny Staters.
Tenenbaum says you can ALWAYS file for an exemption!
Ms. T. reminded the audience at least four times that if they wanted to, they could ALWAYS file for an exemption if they can prove their product or material can't be made to the new standard subject to the non-economic technological feasibility test. The door is always open . . . .
This promise seems to be in denial of reality. Let's start with the fact that the CPSC staff studied this question for more than a year and concluded, as summarized in a 59-page tome, that EVERYTHING is technologically feasible. That seems to put us all against the wall when it comes to exemption petitions. And then there's the fact that for three years, nobody has been able to get an exemption for anything, regardless of how obvious the case, unthreatening the use or how well-funded the supplicant.
Notes Ms. Northup: "I just think we should warn the public that it is unlikely that any petition would be accepted and that that is, first of all, for anybody to file it would be far more costly than to just pay for the materials and increase the cost of their products in all likelihood, not to mention the delay they would have in us in actually addressing their petition."
And Nancy Nord speculates that petitions for relief are highly unlikely in any event: "I will just tell you, in my conversations with folks out there, there is a feeling that 'why bother?' There is a comment weariness, there is a sense that it isn't worth the candle, and so I guess if you're not a company that's either been put out of business or not making the product, you don't have the money to hire the lawyer to file the petition. So I think that's just an empty option for most people."
Who do you believe? Hey, as Ms. T says, the door's always open even if it's the door to oblivion.
The outcome of the decision to implement the 100 ppm standard was foretold but let's not forget something important - this is a retroactive rule as implemented today. Unless Congress acts, we are all in the soup. Even worse than before. Call your Congressman and don't stop until they take action. Mr. Obama must sign something by August 14 or all hell breaks out . . . again.
I experienced a range of emotions watching this two-hour hearing. None of them were surprise. I experienced some boredom, as the debate was so predictable and so repetitive of past meetings. Many self-serving remarks by the Dem zealots. I experienced a mild sense of hopelessness, as it is clear that the Dems are unreachable. I experienced rising exasperation over their refusal to listen or consider data - unless it agrees with pre-existing agendas and alliances. It is hard to not feel you are appearing before the Hanging Judge.
I won't attempt to analyze what was really going on today, you already know it. The posturing was sickening among the Dems. That said, you deserve some flavor of the event. Here are a few tidbits for your amusement or annoyance:
She's just the nicest!
Inez Tenenbaum explained that the 100 ppm standard would have gone into effect if the CPSC had not chosen to decide the question of "technological feasibility". As she sees it, "this [decision] is a courtesy to people."
What, Boeing isn't covered by the CPSIA?!
After vigorously stating her case on the cost-benefit analysis of this rule and condemning the possible adoption of this rule as a violation of the recent Executive Order applicable to the CPSC, Ms. Nord restates the obvious. Unfortunately, the power of her logic was lost on at least three of her colleagues by my estimate: "Just because a material is out there for a jet plane, doesn't mean that it's appropriate for a toy plane." No!
Is that a promise, Bob?
Defending caveman logic to his followers, Bob Adler rebuffed the Executive Order argument and the order of the person who appointed him to his post: "This is not a new Executive Order . . . . [They] said could you at least do a plan for economic analysis and I do think that we are planning on doing that and we have done that in the past. It says "to the extent permitted by law" we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis. If you look at the data . . . nine [CPSC] standards in 30 years using those procedures. I am not against cost-benefit analysis; I am definitely against the kind of cost-benefit analysis that's contained in our statute. Section 101 does not EXPLICITLY bar a cost-benefit analysis but it effectively does so." [Emphasis added]
I find this rather interesting as he challenged me on February 16 with the question of whether I recommended that he violate the law. It was a tense moment - he was trying to corner me into telling him to spurn his Congressional mandate. Nevertheless, it is appears that Bob can pick and choose which laws bind him and which do not. That shouldn't surprise anyone who went to law school. Law school profs always know the right answer, even if it makes no sense to anyone but themselves.
They care sooooo much, they really feel our pain . . . .
Ms. Tenenbaum set the records straight on the purity of her good intentions: "I so believe that we have been diligent in looking at the marketplace and surveying materials. We have admitted it would be an extra cost to some companies and been out front. But, again, 'technological feasibility' the definition is not 'economic feasibility'. Not that I don't sympathize with small business owners and that is why we have worked on other rules [like the component part rule]. We are trying to be as flexible as possible and work with small businesses and the industry to accomplish what Congress mandated for us to do."
I know it's just a detail but in the last three years, what exactly has this "effort" achieved? Oh yeah, I forgot about Neal Cohen - we can cry on his shoulder! In fact, Ms. T. closed the event with the offer that Cohen has his box of Kleenex ready for you whenever you need him.
Somebody's getting the shaft, let the record reflect.
Nancy Nord noticed something the Dems must have missed: "You know, one of the things that is of concern to me is that the penultimate recommendation from the staff here is that 'complying materials APPEAR to be commercially available for most products.' Listen to the hedge words there in the staff recommendation. They 'appear to be'? Well, let's find out for sure and let's do it on a product category basis. 'Most products'? Well, what about the ones that can't meet it? That's our responsibility as [regulators], colleagues."
Hmmm.
Professor Adler grades the final exam.
Bob Adler was in top form today. The "over my dead body" remark was just an appetizer. He went on to inform us that comment letters which arrive late are not operative, especially if they did not properly read his mind on what he wanted to see:
"I do want to also comment on some of the last minute submissions we got from our friends in industry, and I always appreciate those comments and I do consider a lot of these folks to be good friends both of this agency and of mine. But it's really hard to take it seriously when it comes in at the penultimate or ultimate moment when you've had a lot of time to get that kind of information to us. . . . [Recites all the opportunities to comment prior to this hearing.] All of that, if you want to make a point, would have been very helpful especially we'd had the kind of hard quantitative data that SGS and the Hong Kong-American Chamber of Commerce gave us. And I'm going to just make a brief comment = you're free to do it, it's not helpful to tell us we've read the law incorrectly. I think we've read it correctly. I don't think it's helpful just to tell us that it's going to be difficult and more expensive to get compliant materials. I think we know that, I think the staff told us that. What we needed was more hard data demonstrating the points that you're making because what we really got were a lot of conclusory assertions when what we really needed was some hard quantitative data. And all the hard quantitative data I've seen really points in the opposite direction. So I really appreciate all the last minute comments. Too little, too late as far as I am concerned." [Emphasis added]
This lecture was repeated three times by Mr. Adler unprompted, for reasons best understood by him. Interestingly, Mr. Adler seems to have forgotten that I presented hard quantitative data on this same topic in my timely-filed 100 ppm comment letter and in my Febuary 16 testimony. Of course, it did not agree with the SGS or HKACC submissions. I guess since he found their data useful, mine must have been wrong. According to his remarks today, I didn't even submit it, which is rather surprising since it was discussed extensively in the Staff report: "Learning Resources reported 98.3 percent compliance with the 100 ppm standard for its products, but found this compliance level to be unacceptable because of the difficulty in identifying where the noncomplying components would turn up."
Bob Adler flips his flop.
You would think with three repetitions of his condescending lecture on late submissions, that Professor Adler must mean it. Can't get a good grade in his class with that behavior, right? Well, maybe not for the teacher's pet: "One very quick point, well two. One is that the [AAP] study you shared with us, and again thank you so much Commissioner Northup, is a 2005 study. We got a letter last night from the American Academy of Pediatrics reiterating their support for moving down to these levels. . . . "
Bob Adler wings it. . . .
In the face of a vigorous attack by a well-prepared Anne Northup on the shoddy scientific data presented by the AAP supporting the "no safe level of lead" assertion, Mr. Adler lapses into hyperbole and fantastic assertions incapable of validation:
"It isn't just the [AAP]. A lot of what they've done has been drawn from research done around the world on the effects of lead. I'll bet there must be ten thousand, I know there are thousands and thousands of studies on lead, all of which point to the very severe toxic effects associated with [these products]."
Mother knows best!
In a truly shocking display of personal preference substituting for appropriate policy and regulation, Ms. Tenenbaum decided that we don't need recycled materials in children's products because who would want them anyway?
"The scientific community has shown us over and over again that lead is cumulative and so I think there are safety benefits in reducing the exposure to lead and the accumulation of lead in the body. Also, I don't know that parents are interested in having products that their children use, particularly infants and young children, that are mouthable being made of recycled materials, recycled materials that may contain a higher level of lead. Recycled plastic - do you want your child to have a recycled pacifier? Well, that is why Congress has set these strict limits."
[Full disclosure, we recently won a toy industry award for environmentally-friendly toys made of recycled plastic. No one has objected to them to my knowledge, and believe me, they are wonderfully and thoroughly tested for compliance.]
And the support for Ms. T's bald assertion is . . . what? Did she find something in the legislative record? Is there some verbiage in the law? I have not heard this previously from anyone at the CPSC but notably I have repeatedly noted that the CPSIA will be the death of recycled materials in children's products. Still, Ms. T's logic is irresistible - she is there to figure these things out for us and certainly knows best. After all, she loves children, probably much more than any of us. She cares. What else do you need to know? With her power to impose policy, her preferences will become our marketplace. Brave New World, courtesy of the Nanny Staters.
Tenenbaum says you can ALWAYS file for an exemption!
Ms. T. reminded the audience at least four times that if they wanted to, they could ALWAYS file for an exemption if they can prove their product or material can't be made to the new standard subject to the non-economic technological feasibility test. The door is always open . . . .
This promise seems to be in denial of reality. Let's start with the fact that the CPSC staff studied this question for more than a year and concluded, as summarized in a 59-page tome, that EVERYTHING is technologically feasible. That seems to put us all against the wall when it comes to exemption petitions. And then there's the fact that for three years, nobody has been able to get an exemption for anything, regardless of how obvious the case, unthreatening the use or how well-funded the supplicant.
Notes Ms. Northup: "I just think we should warn the public that it is unlikely that any petition would be accepted and that that is, first of all, for anybody to file it would be far more costly than to just pay for the materials and increase the cost of their products in all likelihood, not to mention the delay they would have in us in actually addressing their petition."
And Nancy Nord speculates that petitions for relief are highly unlikely in any event: "I will just tell you, in my conversations with folks out there, there is a feeling that 'why bother?' There is a comment weariness, there is a sense that it isn't worth the candle, and so I guess if you're not a company that's either been put out of business or not making the product, you don't have the money to hire the lawyer to file the petition. So I think that's just an empty option for most people."
Who do you believe? Hey, as Ms. T says, the door's always open even if it's the door to oblivion.
The outcome of the decision to implement the 100 ppm standard was foretold but let's not forget something important - this is a retroactive rule as implemented today. Unless Congress acts, we are all in the soup. Even worse than before. Call your Congressman and don't stop until they take action. Mr. Obama must sign something by August 14 or all hell breaks out . . . again.
Tuesday, June 28, 2011
CPSIA - Shams and the People Who Perpetrate Them
As far back as December 2009, CPSIA zealots have been promoting the notion that a "functional purpose" exemption is the centerpiece of any fix to the CPSIA. See Henry Waxman's first attempt at a middle-of-the-night amendment to the CPSIA. Chairman Inez Tenenbaum chimed in in January 2010 to support the need for a functional purpose exemption: "I have learned through our implementation of the law, however, that there are circumstances where the exclusion of lead in certain materials or component parts is extremely problematic. Accordingly, it would be helpful for Congress to create a new exclusion to the section 101(a) lead content limits that would allow some flexibility in cases where lead is required for a functional purpose and the elimination of the lead is impracticable or impossible." At their insistene, this term has always been part of each draft of CPSIA amendment being discussed by the House Committee on Energy and Commerce.
This same approach lives on in ECADA today. Does it really make sense to offer an "out" for items or materials which "[require] the inclusion of lead because it is not practicable or not technologically feasible to manufacture" without violative lead levels? How might that judgment be made?
No matter - the exemption sounds like a nice gesture by the powers-that-be, doesn't it? Leaves the door cracked just a bit so that companies in the children's market can preserve hope, right? The provision also addresses the unfortunate but predictable fact that the CPSC has been "unable" to grant even one exemption to the CPSIA in the last three years. Zero, zip, zilch, nada, nothin'. Advocates insist that this exemption process solves the problem of an overly-inflexible law without unnecessarily "endangering" children from dreaded lead.
I wonder if you would feel differently if you knew that there are no conceivable materials or products that meet this standard. The CPSC Staff confirmed it in writing. The CPSC report on 100 ppm released last week confirms once and for all that the functional purpose exemption is an outright SHAM. This darling of Rep. Henry Waxman and his minions (including Adler and Tenenbaum) will never be used to grant even one exemption, thus perpetuating the hoax that the CPSIA has exemptions. It doesn't, it never has and if the Dems get their way with this provision, it never will. This is no accident.
The CPSC Staff report concludes that the 100 ppm lead level is "technologically feasible" for all products and all materials. Thus, they recommend the implementation of the new standard on time on August 14 to apply to everything. This is critical - they conclude that every material and every product can be produced at the 100 ppm level.
This is actually a narrow judgment under very specific conditions set out in the CPSIA. "Technologically feasible" is a term of art under the law - it does not have the ordinary English language meaning you might otherwise expect. Of particular note, the definition does not refer to cost or economics in any fashion. In other words, if it can be done (at any expense, regardless of how ridiculous), it must be done. As the staff discovered, almost anything is "technologically feasible" under this definition in a low tech business like children's products. Of course, you might have to spend a lot of money or take a lot of economic risk. The law is indifferent to these pedestrian concerns.
To reach this conclusion, staff also dispensed with the notion that anyone "used" lead at these trace levels. They note that intentional uses of lead were always at concentrations well above 300 ppm: "Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). Therefore, staff does not believe that children’s product manufacturers intentionally design or make products or components with the maximum allowable lead content because lead concentration near the maximum limit would have no benefit or purpose to the product or the manufacturer." In other words, lead is never "included" in children's products at these levels.
[Note to the Dem Commissioners - you can now officially apologize for your insulting remark that we manufacturers intend to "dose" children with lead if standards are even slightly loosened.]
Staff also confirmed the obvious on health issues relating to these trace levels: The contribution of products with lead levels of between 100 ppm and 300 ppm is "minimal".
In so concluding, the staff apparently rejected the testimony of the AAP's estimable Dana Best that IQ points were being lost left and right from trace levels of lead.
So why are the Dems still insisting on a "functional purpose" exemption process? Well, substantively, there is no rational justification for it anymore - it cannot be granted given staff's conclusions. That said, who is going to figure that one out? It sounds good, makes good press for an easily-duped media, and allows Dems to adopt the stump-worthy posture of "listening" to corporate victims while still protecting children against evil companies out to poison them.
As I said, who is going to connect the dots and figure this one out? Expect every draft of the pending CPSIA amendment to include this obsolete notion no matter the facts. It's good for you, remember!
This is called leadership in Washington today.
This same approach lives on in ECADA today. Does it really make sense to offer an "out" for items or materials which "[require] the inclusion of lead because it is not practicable or not technologically feasible to manufacture" without violative lead levels? How might that judgment be made?
No matter - the exemption sounds like a nice gesture by the powers-that-be, doesn't it? Leaves the door cracked just a bit so that companies in the children's market can preserve hope, right? The provision also addresses the unfortunate but predictable fact that the CPSC has been "unable" to grant even one exemption to the CPSIA in the last three years. Zero, zip, zilch, nada, nothin'. Advocates insist that this exemption process solves the problem of an overly-inflexible law without unnecessarily "endangering" children from dreaded lead.
I wonder if you would feel differently if you knew that there are no conceivable materials or products that meet this standard. The CPSC Staff confirmed it in writing. The CPSC report on 100 ppm released last week confirms once and for all that the functional purpose exemption is an outright SHAM. This darling of Rep. Henry Waxman and his minions (including Adler and Tenenbaum) will never be used to grant even one exemption, thus perpetuating the hoax that the CPSIA has exemptions. It doesn't, it never has and if the Dems get their way with this provision, it never will. This is no accident.
The CPSC Staff report concludes that the 100 ppm lead level is "technologically feasible" for all products and all materials. Thus, they recommend the implementation of the new standard on time on August 14 to apply to everything. This is critical - they conclude that every material and every product can be produced at the 100 ppm level.
This is actually a narrow judgment under very specific conditions set out in the CPSIA. "Technologically feasible" is a term of art under the law - it does not have the ordinary English language meaning you might otherwise expect. Of particular note, the definition does not refer to cost or economics in any fashion. In other words, if it can be done (at any expense, regardless of how ridiculous), it must be done. As the staff discovered, almost anything is "technologically feasible" under this definition in a low tech business like children's products. Of course, you might have to spend a lot of money or take a lot of economic risk. The law is indifferent to these pedestrian concerns.
To reach this conclusion, staff also dispensed with the notion that anyone "used" lead at these trace levels. They note that intentional uses of lead were always at concentrations well above 300 ppm: "Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). Therefore, staff does not believe that children’s product manufacturers intentionally design or make products or components with the maximum allowable lead content because lead concentration near the maximum limit would have no benefit or purpose to the product or the manufacturer." In other words, lead is never "included" in children's products at these levels.
[Note to the Dem Commissioners - you can now officially apologize for your insulting remark that we manufacturers intend to "dose" children with lead if standards are even slightly loosened.]
Staff also confirmed the obvious on health issues relating to these trace levels: The contribution of products with lead levels of between 100 ppm and 300 ppm is "minimal".
In so concluding, the staff apparently rejected the testimony of the AAP's estimable Dana Best that IQ points were being lost left and right from trace levels of lead.
So why are the Dems still insisting on a "functional purpose" exemption process? Well, substantively, there is no rational justification for it anymore - it cannot be granted given staff's conclusions. That said, who is going to figure that one out? It sounds good, makes good press for an easily-duped media, and allows Dems to adopt the stump-worthy posture of "listening" to corporate victims while still protecting children against evil companies out to poison them.
As I said, who is going to connect the dots and figure this one out? Expect every draft of the pending CPSIA amendment to include this obsolete notion no matter the facts. It's good for you, remember!
This is called leadership in Washington today.
Monday, June 27, 2011
CPSIA - What's the Difference?
The current debate over the need for mandatory CPSIA testing of children's products derives from consumer advocate assertions that American consumers "want" this testing to be "assured" that products are not laden with lead. This assertion has never been backed up with real data (other than "push poll" data) but strikes a nice chord with certain politicians seeking to have something nice to say on the stump.
Has this very notion, that mandatory testing "assures" anxious consumers, ever been tested? More to the point, how does mandating testing achieve anything - given that the core issue preceding the CPSIA was compliance with the rules. In other words, prior to the CPSIA, a small number of companies making children's products (some of them large multinationals like Mattel) did a poor job of following the rules. Some quite notoriously ignored the rules, too. Despite the fact that the agency had the legal power to enforce against these companies and despite the fact that these companies were not following the rules, Congress decided what we really needed were more rules. Apparently, when companies don't follow one set of rules, there is a big need for more rules.
More rules certainly solved the problem. . . .
And out of that effort grew the myth that mandated testing was absolutely necessary to keep America safe. Of course, mandated testing for real hazards isn't controversial. For instance, you will not find one peep from me about testing for lead-in-paint since 2008. That's a real hazard, actually linked to real, actual victims. However, the CPSIA invented a couple new standards concerning "hazards" not previously documented to have caused any actual injuries, and instituted mandated testing. This was Congress' solution to a perceived lack of compliance by the market.
How does that work logically? There were standards or rules previously, and they were notoriously ignored by a small number companies. That made everyone "mad" and gave people like Dick Durbin something to spout off about. But the fact is, the rules were well-known and were nevertheless ignored. We can certainly conclude from this experience that the existence of a rule is not assurance that the rule will actually be followed. Compliance is independent from posted restrictions. [Have you ever been cited for speeding? 'Nuf said.]
The new rules mandated third party testing for every product. Why? Purportedly to make SURE that every product complied with the standards that Congress felt were being ignored. Since we "cannot trust" companies to obey these standards, they must test. Apaparently, we trust these companies to test even though they previously ignored the mandated standards. And this apparently helps the CFA sleep better at night.
But if a small number of companies were ignoring the old rules, what makes Congress think a small number of companies won't ignore the NEW rules and simply lie about their testing or cut a few corners . . . until they get caught? Good question? I have no answer to it.
The Dems don't like to talk about this. In their perfect world, while the old standards were rules that might be ignored, the replacement rules (mandated testing) will CERTAINLY be universally followed. No reason for this conclusion has ever been provided. The lack of rationale has not deterred the Dems from clinging to this idea like grim death . . . .
Not all of the new CPSIA rules work to protect consumers, but disclosure of the facts is not forthcoming if it might reflect badly on the agency or Congress. For instance, you may recall that companies can petition to certify firewalled in-house labs to conduct testing on a "trust me" basis - this rule effectively only benefits big companies like Mattel. Yet when Mattel recalled 11 million units of its toys last September, nothing was disclosed about the involvement of its firewalled labs in the recalls. Were any of these items tested in0house and passed? Let's not forget that Mattel is largely responsible for the CPSIA because of its bad acts. Was the firewalled lab rule a bummer for American consumers? This is not a question welcomed by Dems.
And if a small number of companies will skirt the NEW rules on madndated testing, what happens to the rest of us? Well, our costs will certainly go through the roof and put us at a disadvantage to the scofflaws. In other words, the more compliant you are, the worse you fare competitively. Many of us would rather eat sand than knowingly break the law. So our costs skyrocket, and the basic problem that Congress wanted to solve (presumably, making consumers safer, not making consumer advocates sleep easier in their naivete) is not advanced at all.
Is this economically-efficient? Stupid question - to this politicos, it only matters what the CPSIA sounds like on the stump. Is anyone safer? Well, first tell me whether a markedly lower percentage of cheaters are present in the market.
Let's get one thing straight: there is no way to know if you are complying with lead content standards without testing. Whether testing is mandated or not, testing will need to take place to assess compliance with mandated levels of lead in children's products. Mandating compliance with the standard and mandating testing is the SAME THING - but the big difference is that in the former case, we can run our businesses and succeed or fail based on our ability to run those businesses well and competitively. In the latter case, the government becomes our partner and nothing we do is beyond their scrutiny and "advice" (needed or not). After all, they have nothing better to do. Catch criminals? Please - watching over our shoulders is all they have time for.
We can only hope that some Dems will wake up and do the right thing for our economy and job creation. This three-year disaster is a metaphor for everything that's wrong with our current government and political leadership. I wish it were otherwise, but there is no sign that the Dems care what we have to say. Until this storm breaks, we are doomed to slowly asphyxiate through mandated testing under the supervision of the government.
Has this very notion, that mandatory testing "assures" anxious consumers, ever been tested? More to the point, how does mandating testing achieve anything - given that the core issue preceding the CPSIA was compliance with the rules. In other words, prior to the CPSIA, a small number of companies making children's products (some of them large multinationals like Mattel) did a poor job of following the rules. Some quite notoriously ignored the rules, too. Despite the fact that the agency had the legal power to enforce against these companies and despite the fact that these companies were not following the rules, Congress decided what we really needed were more rules. Apparently, when companies don't follow one set of rules, there is a big need for more rules.
More rules certainly solved the problem. . . .
And out of that effort grew the myth that mandated testing was absolutely necessary to keep America safe. Of course, mandated testing for real hazards isn't controversial. For instance, you will not find one peep from me about testing for lead-in-paint since 2008. That's a real hazard, actually linked to real, actual victims. However, the CPSIA invented a couple new standards concerning "hazards" not previously documented to have caused any actual injuries, and instituted mandated testing. This was Congress' solution to a perceived lack of compliance by the market.
How does that work logically? There were standards or rules previously, and they were notoriously ignored by a small number companies. That made everyone "mad" and gave people like Dick Durbin something to spout off about. But the fact is, the rules were well-known and were nevertheless ignored. We can certainly conclude from this experience that the existence of a rule is not assurance that the rule will actually be followed. Compliance is independent from posted restrictions. [Have you ever been cited for speeding? 'Nuf said.]
The new rules mandated third party testing for every product. Why? Purportedly to make SURE that every product complied with the standards that Congress felt were being ignored. Since we "cannot trust" companies to obey these standards, they must test. Apaparently, we trust these companies to test even though they previously ignored the mandated standards. And this apparently helps the CFA sleep better at night.
But if a small number of companies were ignoring the old rules, what makes Congress think a small number of companies won't ignore the NEW rules and simply lie about their testing or cut a few corners . . . until they get caught? Good question? I have no answer to it.
The Dems don't like to talk about this. In their perfect world, while the old standards were rules that might be ignored, the replacement rules (mandated testing) will CERTAINLY be universally followed. No reason for this conclusion has ever been provided. The lack of rationale has not deterred the Dems from clinging to this idea like grim death . . . .
Not all of the new CPSIA rules work to protect consumers, but disclosure of the facts is not forthcoming if it might reflect badly on the agency or Congress. For instance, you may recall that companies can petition to certify firewalled in-house labs to conduct testing on a "trust me" basis - this rule effectively only benefits big companies like Mattel. Yet when Mattel recalled 11 million units of its toys last September, nothing was disclosed about the involvement of its firewalled labs in the recalls. Were any of these items tested in0house and passed? Let's not forget that Mattel is largely responsible for the CPSIA because of its bad acts. Was the firewalled lab rule a bummer for American consumers? This is not a question welcomed by Dems.
And if a small number of companies will skirt the NEW rules on madndated testing, what happens to the rest of us? Well, our costs will certainly go through the roof and put us at a disadvantage to the scofflaws. In other words, the more compliant you are, the worse you fare competitively. Many of us would rather eat sand than knowingly break the law. So our costs skyrocket, and the basic problem that Congress wanted to solve (presumably, making consumers safer, not making consumer advocates sleep easier in their naivete) is not advanced at all.
Is this economically-efficient? Stupid question - to this politicos, it only matters what the CPSIA sounds like on the stump. Is anyone safer? Well, first tell me whether a markedly lower percentage of cheaters are present in the market.
Let's get one thing straight: there is no way to know if you are complying with lead content standards without testing. Whether testing is mandated or not, testing will need to take place to assess compliance with mandated levels of lead in children's products. Mandating compliance with the standard and mandating testing is the SAME THING - but the big difference is that in the former case, we can run our businesses and succeed or fail based on our ability to run those businesses well and competitively. In the latter case, the government becomes our partner and nothing we do is beyond their scrutiny and "advice" (needed or not). After all, they have nothing better to do. Catch criminals? Please - watching over our shoulders is all they have time for.
We can only hope that some Dems will wake up and do the right thing for our economy and job creation. This three-year disaster is a metaphor for everything that's wrong with our current government and political leadership. I wish it were otherwise, but there is no sign that the Dems care what we have to say. Until this storm breaks, we are doomed to slowly asphyxiate through mandated testing under the supervision of the government.
Tuesday, June 14, 2011
CPSIA - NSSEA Calls for Letters on ECADA
The NSSEA (National School Supply & Equipment Association) is calling for letters in support of the pending CPSIA Amendment legislation (ECADA). Please send the below letters BY FAX to your House Representative and to members of the House Committee on Energy and Commerce. You can get the fax numbers off each Representative's website. The mark-up may happen as soon as Monday June 20th (but is not scheduled yet to my knowledge).
Now's the time to stand up and be counted!!! There are two forms of letter below (Manufacturer and Dealer/Retailer). Please modify as appropriate.
Letter from Manufacturers:
Dear XXXXXX:
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.
[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]
The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. We have been forced to spend thousands of dollars for unnecessary lead and phthalate testing and continue to deal with compliance programs that change multiple times to meet constantly changing rules. ECADA provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. Given your strong record as a friend of small business and manufacturers, I hope that I can count on your support for this bill.
A costly new rule mandating a burdensome, unreasonable testing regime, the lifting of the stay on third party testing for lead substrates, and the retroactive application of a tighter lead standard despite overwhelming evidence showing that this new limit is not technologically feasible are just several challenges that my company will face this year if the reforms in ECADA are not approved by Congress soon. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.
As manufacturers and small business struggle to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.
Sincerely,
XXXXXXXX
Letter from Dealers/Retailers:
Dear XXXXXX:
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.
[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]
The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. As a distributor, we fear that the range of products offered by our suppliers will continue to narrow due to the costs manufacturers incur for unnecessary lead and phthalate testing. In turn, the needs of American students will be unmet, including those children with disabilities and special learning needs, because fewer specialized products will be available to our customers.
CPSIA has caused considerable confusion in the marketplace due to the constantly changing rules and regulations associated with the law. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.
Given your strong record as a friend of small business and manufacturing, I hope that I can count on your support for this bill. As small business struggles to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.
Sincerely,
XXXXXXXX
Now's the time to stand up and be counted!!! There are two forms of letter below (Manufacturer and Dealer/Retailer). Please modify as appropriate.
Letter from Manufacturers:
Dear XXXXXX:
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.
[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]
The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. We have been forced to spend thousands of dollars for unnecessary lead and phthalate testing and continue to deal with compliance programs that change multiple times to meet constantly changing rules. ECADA provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. Given your strong record as a friend of small business and manufacturers, I hope that I can count on your support for this bill.
A costly new rule mandating a burdensome, unreasonable testing regime, the lifting of the stay on third party testing for lead substrates, and the retroactive application of a tighter lead standard despite overwhelming evidence showing that this new limit is not technologically feasible are just several challenges that my company will face this year if the reforms in ECADA are not approved by Congress soon. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.
As manufacturers and small business struggle to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.
Sincerely,
XXXXXXXX
Letter from Dealers/Retailers:
Dear XXXXXX:
I am writing as a constituent and concerned member of the National School Supply & Equipment Association (NSSEA) to express my support for HR 1939, the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). We urge you to support this important bill that fixes problems created by the Consumer Product Safety Improvement Act (CPSIA) while maintaining the core provisions of this law that ensures the safety of consumers.
[INSERT INFORMATION ABOUT YOUR BUSINESS, INCLUDING NUMBER OF EMPLOYEES]
The safety of our products and the safety of our customers are our top priorities. Unfortunately, we have encountered many problems in trying to comply with the well intentioned but overly burdensome CPSIA. As a distributor, we fear that the range of products offered by our suppliers will continue to narrow due to the costs manufacturers incur for unnecessary lead and phthalate testing. In turn, the needs of American students will be unmet, including those children with disabilities and special learning needs, because fewer specialized products will be available to our customers.
CPSIA has caused considerable confusion in the marketplace due to the constantly changing rules and regulations associated with the law. ECADA reduces the most excessive regulatory burdens created by CPSIA while maintaining protection for consumers. The bill provides common sense reform to sections of CPSIA which have burdened our industry during these challenging economic times. The bill enhances the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and prioritize testing based on cost-benefit analysis, and improves the CPSC’s public database by ensuring more accurate information.
Given your strong record as a friend of small business and manufacturing, I hope that I can count on your support for this bill. As small business struggles to recover from the worst recession in decades, it is vital that government does not impose costly and unnecessary regulations that have no positive impact and hinder the fragile recovery. I urge you to vote for ECADA to ensure that companies like mine can continue to provide quality products and services that are so important to our children's education.
Sincerely,
XXXXXXXX
Wednesday, April 27, 2011
CPSIA - The CPSIA Testing "Dilemma"
As the House considers how to move a CPSIA Amendment forward, the issue of third party testing looms large. Why?
That's a really good question.
You may recall reports that FOUR Members of Congress asked consumer advocates for a list of "victims" of lead-in-substrate at the April 7th hearing. No names were offered nor were they promised. This makes perfect sense to the consumer advocates - after all, lead harms "silently" and consequently, it's okay for them to assert that there are victims without being able to prove it. You can call that "Consumer Group Accountability". Nice work if you can get it. So I wonder - if a consumer advocate hears voices in his/her head, do the voices' deranged instructions need to go in the law, too? It seems to me that if a consumer advocate perceives something, we must accept that it's real, no questions asked. I assume the answer is yes these days.
Notwithstanding the "gravity" of Rachel Weintraub's assurances, the assertion of invisible lead victims flies in the face of ordinary experience, not to mention logic. Let's posit that lead harms silently and MOST victims would go undetected. [I am POSITING this, not conceding this. I can't buy the assertion that NO victim would ever be detectible - even the advocates don't take that ridiculous position.] It is indisputable that lead poisoning comes from exposure to lead. You must come in physical contact with it AND it must make its way into your blood stream. The mechanisms for lead entering a child's bloodstream are limited to two - breathe it in or take into your digestive system. Breathing in lead-in-substrate has never been identified as a pathway, so it appears that the only mechanism possible for lead poisoning from lead-in-substrate is ingestion through contact. You have to put it in your mouth.
Notably, kead poisoning is identified by elevated blood lead levels. Hence another factor must be considered - namely the lead mass consumed in relation to the volume of blood circulating in a child. In other words, one must consume XXX milligrams of lead per period to obtain and maintain dangerous blood levels depending on your age (body mass). Clearly exposure is the critical factor here - the more lead you ingest, the higher your blood lead level would be (theoretically). [To read a real scientist's explanation of this mechanism of lead poisoning in children and all the footnotes and asterisks to this simplified description, read Dr. Barbara Beck's testimony from the April 7th House hearing.] Ignoring absorption rates and other provisos from the real world for purposes of this discussion, it all boils down to exposure, right?
Consider that there are 50+ million children in the United States in the regulated age range. [The VAST majority of lead problems occur in children under five.] Those 50+ million children span a wide spectrum of life styles, habits, living quarters, adult supervision and mental health. They have literally TRILLIONS of annual interactions with products regulated by the CPSIA. Based on my experience and observation, I will assert that some of them, a material but small number, interact obsessively with children's products and mouth them inappropriately. These few children are extreme cases. You read about kids like this all the time. They are the kids who munch down 20 high strength magnets just for the heck of it. Those kids would exhibit lead poisoning from lead-in-substrate if it were possible in the real world.
So where are these kids? Can we find any of them? Apparently not. They are not in the medical literature. They are not in the popular media. They and their parents have not appeared as witnesses at CPSC hearings or on the Hill. They are not known to the nutjob consumer advocates. They are not known to the ignorant Democratic staffers who staunchly defend this law. [Even though there are 2.2 billion children in the world, most of whom live in conditions ripe with the possibility of lead-in-substrate poisoning, they are not known anywhere else on Earth either, to my knowledge.] They are not known to ANYONE ANYWHERE.
There's a simple reason for this - they don't exist.
And if there are no known victims and not one extreme example can be found here or anywhere, I have to ask - why does my government insist that we test our products obsessively? To what end?
What permits the federal government to blindly demand this of me? Why isn't the government required to PROVE that there is a REASON that we must burn our money? If this is all "politics", why aren't jobs, market vitality, well-stocked schools and lean government ALSO "political" considerations? Is scamming the public about health risks to kids the only way Dems know how to buy votes?
And one more thing - if all of our products comply with the (ridiculous and unjustified) lead standards but we don't test, should I go to jail? Is this law about safety . . . or about process? Does Washington really think we're all morons?
You can answer that for yourself.
That's a really good question.
You may recall reports that FOUR Members of Congress asked consumer advocates for a list of "victims" of lead-in-substrate at the April 7th hearing. No names were offered nor were they promised. This makes perfect sense to the consumer advocates - after all, lead harms "silently" and consequently, it's okay for them to assert that there are victims without being able to prove it. You can call that "Consumer Group Accountability". Nice work if you can get it. So I wonder - if a consumer advocate hears voices in his/her head, do the voices' deranged instructions need to go in the law, too? It seems to me that if a consumer advocate perceives something, we must accept that it's real, no questions asked. I assume the answer is yes these days.
Notwithstanding the "gravity" of Rachel Weintraub's assurances, the assertion of invisible lead victims flies in the face of ordinary experience, not to mention logic. Let's posit that lead harms silently and MOST victims would go undetected. [I am POSITING this, not conceding this. I can't buy the assertion that NO victim would ever be detectible - even the advocates don't take that ridiculous position.] It is indisputable that lead poisoning comes from exposure to lead. You must come in physical contact with it AND it must make its way into your blood stream. The mechanisms for lead entering a child's bloodstream are limited to two - breathe it in or take into your digestive system. Breathing in lead-in-substrate has never been identified as a pathway, so it appears that the only mechanism possible for lead poisoning from lead-in-substrate is ingestion through contact. You have to put it in your mouth.
Notably, kead poisoning is identified by elevated blood lead levels. Hence another factor must be considered - namely the lead mass consumed in relation to the volume of blood circulating in a child. In other words, one must consume XXX milligrams of lead per period to obtain and maintain dangerous blood levels depending on your age (body mass). Clearly exposure is the critical factor here - the more lead you ingest, the higher your blood lead level would be (theoretically). [To read a real scientist's explanation of this mechanism of lead poisoning in children and all the footnotes and asterisks to this simplified description, read Dr. Barbara Beck's testimony from the April 7th House hearing.] Ignoring absorption rates and other provisos from the real world for purposes of this discussion, it all boils down to exposure, right?
Consider that there are 50+ million children in the United States in the regulated age range. [The VAST majority of lead problems occur in children under five.] Those 50+ million children span a wide spectrum of life styles, habits, living quarters, adult supervision and mental health. They have literally TRILLIONS of annual interactions with products regulated by the CPSIA. Based on my experience and observation, I will assert that some of them, a material but small number, interact obsessively with children's products and mouth them inappropriately. These few children are extreme cases. You read about kids like this all the time. They are the kids who munch down 20 high strength magnets just for the heck of it. Those kids would exhibit lead poisoning from lead-in-substrate if it were possible in the real world.
So where are these kids? Can we find any of them? Apparently not. They are not in the medical literature. They are not in the popular media. They and their parents have not appeared as witnesses at CPSC hearings or on the Hill. They are not known to the nutjob consumer advocates. They are not known to the ignorant Democratic staffers who staunchly defend this law. [Even though there are 2.2 billion children in the world, most of whom live in conditions ripe with the possibility of lead-in-substrate poisoning, they are not known anywhere else on Earth either, to my knowledge.] They are not known to ANYONE ANYWHERE.
There's a simple reason for this - they don't exist.
And if there are no known victims and not one extreme example can be found here or anywhere, I have to ask - why does my government insist that we test our products obsessively? To what end?
What permits the federal government to blindly demand this of me? Why isn't the government required to PROVE that there is a REASON that we must burn our money? If this is all "politics", why aren't jobs, market vitality, well-stocked schools and lean government ALSO "political" considerations? Is scamming the public about health risks to kids the only way Dems know how to buy votes?
And one more thing - if all of our products comply with the (ridiculous and unjustified) lead standards but we don't test, should I go to jail? Is this law about safety . . . or about process? Does Washington really think we're all morons?
You can answer that for yourself.
Friday, April 8, 2011
CPSIA - If The CPSC Goes Out, Do You Think They'll Come Back???
With the Federal government about to shut down, one wonders - could we possibly live without the CPSC for a few days? I, for one, would very much like to find out.
But what about the CHILDREN, you say.
It's a horrifying thought. After all, with annual expenditures of north of $100 million per hyear and in recent times an obsession with children, the CPSC has managed to uncover one death allegedly tied to lead (swallowing a jewelry bangle) and three injuries tied to lead-in-paint over an 11-year period from 1999 - 2010. That's what you get for regulatory expense of more than $1 billion - four alleged injuries. Value for the dollar . . . .
In the last couple years, though, the federal government in its infinite wisdom has chosen to pass all regulatory cost increases on to YOU. Yes, in a new innovation making rising taxes obsolete, Congress raised YOUR costs by billions each year when it inflicted the CPSIA on America. I have previously presented an analysis based on Congressional testimony that estimates those costs at more than $5.6 billion each year. And I think that's low.
I know you're probably not a statistician, but what are the odds that lowering the ten-year results from four alleged injuries to zero alleged injuries would be considered statistically significant? I believe the answer is zero or very very low. $5.6 billion a year doesn't buy much, does it?
The scale of the threat was explored in a revealing moment yesterday when the infamous Rachel Weintraub of the Consumer Federation of America was asked by four different members of Congress for names or lists of victims of lead-in-substrate. She couldn't name any. Dana Best had no chance to answer such questions, because she bolted before questioning. I rather doubt the members were much in the mood to accept an answer of "jillions" anyway. I haven't had a chance to review the tape yet, but I understand Ms. Weintraub assured Congress in response to these queries that lead is a "silent" harm-doer. Rachel says there;s no way to tell . . . so I guess the implication is that we should assume millions of kids have been harmed. Possibly bazillions. Who knows?!
Has anyone considered the possibility that the injured children that only Ms. Weintraub and Dr. Best can see are IMAGINARY? Consider this argument: Rachel and Dana and their ilk have had three years to find a victim, any victim, at any time since Hector had pups. They have failed in this endeavor. Maybe Rachel and Dana didn't try, maybe they don't care. After all, they probably thinks they're right and who are we to challenge either of them. No response required. . . ..
But IF Rachel's right, why don't the numbers yield up MANY victims? It really shouldn;t be hard to find injured kids - which makes the failure to do so all the more galling. There are lots of children in the regulated age group - more than 50 million. That population is constantly changing because kids "age out". So if you look over a decade, say, you might be talking about 75+ million. What do these kids do? What all kids do. They play, they breathe, they eat, they ride ATVs, they lick bicycles, they suck on the ink end of pens, they consume fistfuls of rhinestones, the usual. Some of them oddly do extreme things. You are looking at a BIG population. Over a decade, that's HUNDREDS OF TRILLIONS of product interactions, some of them excessive. And yet there are no known victims. Hmmm. Perhaps this is a pretty low probability event. And not worth $5.6 billion a year in excess costs.
So when the CPSC goes out, will anyone notice? That;s a good question. It may be an experiment worth running. And if the world doesn't come to an end without them, perhaps Congress might find something new to cut when life gets back to normal.
There's no safe level of fear mongering, guys.
Your Friend,
The "Lead Doser"
But what about the CHILDREN, you say.
It's a horrifying thought. After all, with annual expenditures of north of $100 million per hyear and in recent times an obsession with children, the CPSC has managed to uncover one death allegedly tied to lead (swallowing a jewelry bangle) and three injuries tied to lead-in-paint over an 11-year period from 1999 - 2010. That's what you get for regulatory expense of more than $1 billion - four alleged injuries. Value for the dollar . . . .
In the last couple years, though, the federal government in its infinite wisdom has chosen to pass all regulatory cost increases on to YOU. Yes, in a new innovation making rising taxes obsolete, Congress raised YOUR costs by billions each year when it inflicted the CPSIA on America. I have previously presented an analysis based on Congressional testimony that estimates those costs at more than $5.6 billion each year. And I think that's low.
I know you're probably not a statistician, but what are the odds that lowering the ten-year results from four alleged injuries to zero alleged injuries would be considered statistically significant? I believe the answer is zero or very very low. $5.6 billion a year doesn't buy much, does it?
The scale of the threat was explored in a revealing moment yesterday when the infamous Rachel Weintraub of the Consumer Federation of America was asked by four different members of Congress for names or lists of victims of lead-in-substrate. She couldn't name any. Dana Best had no chance to answer such questions, because she bolted before questioning. I rather doubt the members were much in the mood to accept an answer of "jillions" anyway. I haven't had a chance to review the tape yet, but I understand Ms. Weintraub assured Congress in response to these queries that lead is a "silent" harm-doer. Rachel says there;s no way to tell . . . so I guess the implication is that we should assume millions of kids have been harmed. Possibly bazillions. Who knows?!
Has anyone considered the possibility that the injured children that only Ms. Weintraub and Dr. Best can see are IMAGINARY? Consider this argument: Rachel and Dana and their ilk have had three years to find a victim, any victim, at any time since Hector had pups. They have failed in this endeavor. Maybe Rachel and Dana didn't try, maybe they don't care. After all, they probably thinks they're right and who are we to challenge either of them. No response required. . . ..
But IF Rachel's right, why don't the numbers yield up MANY victims? It really shouldn;t be hard to find injured kids - which makes the failure to do so all the more galling. There are lots of children in the regulated age group - more than 50 million. That population is constantly changing because kids "age out". So if you look over a decade, say, you might be talking about 75+ million. What do these kids do? What all kids do. They play, they breathe, they eat, they ride ATVs, they lick bicycles, they suck on the ink end of pens, they consume fistfuls of rhinestones, the usual. Some of them oddly do extreme things. You are looking at a BIG population. Over a decade, that's HUNDREDS OF TRILLIONS of product interactions, some of them excessive. And yet there are no known victims. Hmmm. Perhaps this is a pretty low probability event. And not worth $5.6 billion a year in excess costs.
So when the CPSC goes out, will anyone notice? That;s a good question. It may be an experiment worth running. And if the world doesn't come to an end without them, perhaps Congress might find something new to cut when life gets back to normal.
There's no safe level of fear mongering, guys.
Your Friend,
The "Lead Doser"
Wednesday, April 6, 2011
CPSIA - The Hill Publishes My Op-Ed on CPSIA Hearings
Enough already! It’s time to amend the lead law
By Richard Woldenberg
04/06/11 02:51 PM ET
After almost three years of bickering over the law regulating lead in children’s products, a comprehensive amendment is finally up for discussion in the House of Representatives. It’s about time.
In August 2008, the 110th Congress passed the Consumer Product Safety Improvement Act (CPSIA) in an overreaction to notorious lead-in-paint toy recalls. Claiming that weak regulation “caused” these violations of law (lead-in-paint has been illegal for decades), consumer groups coined a slogan to sum it up: “There is NO safe level of lead”. Stooping low to sow fear, they have even warned the CPSC about the perils of bicycle licking and playing brass instruments in the school band. Their lead slogan has been repeated endlessly to justify a stifling, over-reaching law which has accomplished little but damaged many fine companies, killed jobs and depressed markets. The CPSIA deems companies "guilty until proven innocent" by forcing them to test products over and over again at huge expense to prove compliance with the new lead standard.
The screams of law-abiding companies have been consistently ignored by CPSC as it has implemented ever-harsher regulations under the new law. The safety agency is even considering ratcheting down permissible lead from 300 ppm to the unimaginably low 100 ppm level. Economics be damned!
In contrast to the claims of CPSIA backers warning that the sky is falling, CPSC recall records list only four alleged lead injuries from 1999 to 2010 among the nation’s 50+ million young children. Advocates have never produced victim case histories to justify the draconian rules and simply wag their fingers at anyone daring to question their cherished law.
As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.
Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.
We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.
The CPSIA was written in response to failings of big companies, but hammers small and medium-sized companies with particular vengeance. Our small business has already lost customers who now feel that selling toys is too confusing or too much of a “hassle”. Market shrinkage courtesy of the federal government is our new reality. The technical rules and ever-changing legal requirements are beyond the capability of all but the most highly-trained quality managers or lawyers to comprehend. For this reason, small businesses bear the greatest risk of liability under the law, despite being responsible for almost no injuries from lead in the last decade. The double whammy of massive new regulatory obligations and the prospect of devastating liability are driving small businesses out of the children’s market.
Our family business makes educational products, and we work tirelessly to ensure that our products are safe. We have tested our products for decades now. None of us could ever tolerate lead poisoning. Nevertheless, I believe that our company should not be crushed by our government over some consumer groups' phobias and junk science.
The 112th Congress should know better after years of hearings, comment letters, op-eds, pleading and even direct appeals from the five CPSC Commissioners. To quote The Who, "We won’t get fooled again." If Congress is serious about fixing our economy and creating jobs, it’s time to lift the yoke of the CPSIA and set the children’s product market free once again.
Richard Woldenberg is Chairman of Learning Resources, Inc.
By Richard Woldenberg
04/06/11 02:51 PM ET
After almost three years of bickering over the law regulating lead in children’s products, a comprehensive amendment is finally up for discussion in the House of Representatives. It’s about time.
In August 2008, the 110th Congress passed the Consumer Product Safety Improvement Act (CPSIA) in an overreaction to notorious lead-in-paint toy recalls. Claiming that weak regulation “caused” these violations of law (lead-in-paint has been illegal for decades), consumer groups coined a slogan to sum it up: “There is NO safe level of lead”. Stooping low to sow fear, they have even warned the CPSC about the perils of bicycle licking and playing brass instruments in the school band. Their lead slogan has been repeated endlessly to justify a stifling, over-reaching law which has accomplished little but damaged many fine companies, killed jobs and depressed markets. The CPSIA deems companies "guilty until proven innocent" by forcing them to test products over and over again at huge expense to prove compliance with the new lead standard.
The screams of law-abiding companies have been consistently ignored by CPSC as it has implemented ever-harsher regulations under the new law. The safety agency is even considering ratcheting down permissible lead from 300 ppm to the unimaginably low 100 ppm level. Economics be damned!
In contrast to the claims of CPSIA backers warning that the sky is falling, CPSC recall records list only four alleged lead injuries from 1999 to 2010 among the nation’s 50+ million young children. Advocates have never produced victim case histories to justify the draconian rules and simply wag their fingers at anyone daring to question their cherished law.
As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.
Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.
We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.
The CPSIA was written in response to failings of big companies, but hammers small and medium-sized companies with particular vengeance. Our small business has already lost customers who now feel that selling toys is too confusing or too much of a “hassle”. Market shrinkage courtesy of the federal government is our new reality. The technical rules and ever-changing legal requirements are beyond the capability of all but the most highly-trained quality managers or lawyers to comprehend. For this reason, small businesses bear the greatest risk of liability under the law, despite being responsible for almost no injuries from lead in the last decade. The double whammy of massive new regulatory obligations and the prospect of devastating liability are driving small businesses out of the children’s market.
Our family business makes educational products, and we work tirelessly to ensure that our products are safe. We have tested our products for decades now. None of us could ever tolerate lead poisoning. Nevertheless, I believe that our company should not be crushed by our government over some consumer groups' phobias and junk science.
The 112th Congress should know better after years of hearings, comment letters, op-eds, pleading and even direct appeals from the five CPSC Commissioners. To quote The Who, "We won’t get fooled again." If Congress is serious about fixing our economy and creating jobs, it’s time to lift the yoke of the CPSIA and set the children’s product market free once again.
Richard Woldenberg is Chairman of Learning Resources, Inc.
Tuesday, April 5, 2011
CPSIA - What's Missing from the CPSIA Amendment?
I have summarized my comments on the pending CPSIA amendment in my two prior blogposts. In this post, I explain what's MISSING from the amendment:
a. Preemption: The United States needs ONE law on safety for children's products - not 51. The CPSIA amendment should include strong preemption language to stop rogue state laws and to streamline compliance costs for the entire industry. Industry wastes huge resources dealing with competing and inconsistent regulatory schemes across the country that add little to safety but disrupt commerce. It goes without saying that small businesses can't keep up with it (which is especially perplexing in California). Is it fair to burden small business with a hopeless compliance chore? Is it good public policy? I think Mattel has enough of an advantage already. . . .
This preemption should also apply to consumer "right to know" laws as they relate to lead and phthalates. In other words, the Illinois lead labelling law and California's Proposition 65 should be preempted explicitly by federal statute. These laws were developed to avoid federal preemption. Lawyers and mercenary consumer groups don't need the handout anymore - the right-to-know "tax" should be lifted from the marketplace.
b. Testing Frequency. The amendment addresses part of the mess surrounding the so-called "15 Month Rule" but does not touch the subject of testing frequency. The CPSC's budding efforts to regulate testing frequency (and sampling for testing) have the potential to wreak new havoc as the government pushes its way into decisions long made by private businesses. What's the justification for this intrusion? I guess Congress thinks they can run our businesses better than we can. Unfortunately, there's no evidence to suggest that they know better than we do, and furthermore, there is no data to suggest that the decisions made by manufacturers on testing frequency have ANYTHING to do with injuries. The pursuit of a perfect suite of paperwork is not the same as keeping kids safe.
The amendment should steer the CPSC away from meddling in the internal affairs of manufacturers and instead refocus it on substantial product hazards. That's why we have a CPSC, the only reason.
c. Penalties. When the CPSIA was originally passed, one of the provisions trumpeted by the agency was its fancy new right to impose huge penalties. And it didn't take long for the agency to try out its new rights. Unfortunately, as documented in this space, the penalties rarely reflected reason, just emotion. Penalties tended to vary by the level of anger at the CPSC, not the magnitude of the "crime" or any sense of proportionality. Chairman Inez Tenenbaum actually bragged publicly about effectively putting Japanese retailer Daiso out of business in the U.S. in her 2010 ICPHSO keynote speech. Daiso recalled a few thousand dollars of cheap toys (about one pallet's worth) in five recalls with no injuries reported byt eh CPSC. Not exactly a crime against humanity, in my view. Nevertheless, Daiso was hit with penalties in excess of $2 million. The Daiso fiasco looks very much like vindictiveness or headline-seeking.
The threat of such disproportionate punishment may look entirely theoretical . . . until it's your turn.
Call me a starry-eyed idealist, but I believe in due process and reasonable recourse to the courts. If the agency is going to go hog wild with penalties, Congress should impose reasonable restraints on the process. Unfettered government power is un-American. Procedural limits providing basic due process rights and restraining the coercive tactics of the agency would be an appropriate addition to the amendment. This problem is no secret - ICPHSO sponsored a presentation on this problem at the 2011 February meeting by three distinguished CPSC bar practitioners. If the agency can't control its animal instincts, then the law should be changed to limit its powers. I also recommend that penalties be limited to egregious conduct, reckless endangerment or conduct resulting in serious injury.
d. Restore Risk Assessment. The basic problem underlying the CPSIA, as is apparent again and again in my comments, is termination of the CPSC's obligation to assess risk. In fact, they are not allowed to assess risk anymore under the CPSIA, just follow the rules written by staffers in the 110th Congress. Of course, this renders the standard of substantial risk hazard moot. Even more problematic, the CPSC shows signs of losing sight of its mission. Is the mission proper testing . . . or safety? The recent hearings on pool drains illustrates this problem. The hearing was all about the definition of proper pool drain testing. The CPSC wasn't investigating actual injuries, because there weren't any, but instead questioning test results. That's what passes for safety administration nowadays.
We need a CPSC focused on risks and injuries. A phobic safety agency adds costs to our economy with little to show for the extra investment. We need to get our compass working again. Congress must mandate that the CPSC base all its decisions on the substantial product hazard standard and risk assessment.
e. Allow resellers to rely on representations of manufacturers, Fear of liability has caused many layers of the supply chain to repetitively test and retest the same product, all in the pursuit of the perfect suite of test reports. These costs are harming manufacturers and raising prices to consumers. Injury statistics do not support the thesis that anyone is safer, however. The solution is for Congress to set a legal standard that permits retailers to rely on the representations of their suppliers (manufacturers). This bright line rule should help end the atmosphere of distrust between retailers and their suppliers. Don't worry, there will still be plenty of testing to make everyone happy (including the always deserving testing labs).
f. End whistleblower provision. The whistleblower provision was added in the same fever of vindictiveness that infused the "throw in the kitchen sink" CPSIA in 2008. The problem is that there is no evidence that there were any "evil" companies at work in the children's market. Incompetent organizations or failed operators, perhaps, but criminals and bad guys, no. "Bad guys" are rare in the children's market, frankly. The whistleblower provision has the potential to be a disruptor, a manipulator mainly useful to pad the income of tort lawyers.
Additional attention by the CPSC to outreach and education of manufacturers is much more likely to produce results. Without evidence that true venality is an actual risk in this market, there is no justification for retaining the whistleblower provision.
g. Remove phthalates ban! There are no known victims of phthalates. The CPSC has been operating under this total ban for now almost three years - and has only ONE recall of 40 little inflatable toy baseball bats (our friend Daiso) to show for it. That's it, my friends. How much money, how many planeloads of dollar bills have been torched testing and retesting product for the presence of these chemicals in the meantime? The CPSC hasn't even bothered to finish up testing standards or certify even ONE lab to perform the tests. They don't appear to think this is a public health emergency.
Ket's end the charade. When Diane Feinstein isn't looking, drop the phthalates ban!
a. Preemption: The United States needs ONE law on safety for children's products - not 51. The CPSIA amendment should include strong preemption language to stop rogue state laws and to streamline compliance costs for the entire industry. Industry wastes huge resources dealing with competing and inconsistent regulatory schemes across the country that add little to safety but disrupt commerce. It goes without saying that small businesses can't keep up with it (which is especially perplexing in California). Is it fair to burden small business with a hopeless compliance chore? Is it good public policy? I think Mattel has enough of an advantage already. . . .
This preemption should also apply to consumer "right to know" laws as they relate to lead and phthalates. In other words, the Illinois lead labelling law and California's Proposition 65 should be preempted explicitly by federal statute. These laws were developed to avoid federal preemption. Lawyers and mercenary consumer groups don't need the handout anymore - the right-to-know "tax" should be lifted from the marketplace.
b. Testing Frequency. The amendment addresses part of the mess surrounding the so-called "15 Month Rule" but does not touch the subject of testing frequency. The CPSC's budding efforts to regulate testing frequency (and sampling for testing) have the potential to wreak new havoc as the government pushes its way into decisions long made by private businesses. What's the justification for this intrusion? I guess Congress thinks they can run our businesses better than we can. Unfortunately, there's no evidence to suggest that they know better than we do, and furthermore, there is no data to suggest that the decisions made by manufacturers on testing frequency have ANYTHING to do with injuries. The pursuit of a perfect suite of paperwork is not the same as keeping kids safe.
The amendment should steer the CPSC away from meddling in the internal affairs of manufacturers and instead refocus it on substantial product hazards. That's why we have a CPSC, the only reason.
c. Penalties. When the CPSIA was originally passed, one of the provisions trumpeted by the agency was its fancy new right to impose huge penalties. And it didn't take long for the agency to try out its new rights. Unfortunately, as documented in this space, the penalties rarely reflected reason, just emotion. Penalties tended to vary by the level of anger at the CPSC, not the magnitude of the "crime" or any sense of proportionality. Chairman Inez Tenenbaum actually bragged publicly about effectively putting Japanese retailer Daiso out of business in the U.S. in her 2010 ICPHSO keynote speech. Daiso recalled a few thousand dollars of cheap toys (about one pallet's worth) in five recalls with no injuries reported byt eh CPSC. Not exactly a crime against humanity, in my view. Nevertheless, Daiso was hit with penalties in excess of $2 million. The Daiso fiasco looks very much like vindictiveness or headline-seeking.
The threat of such disproportionate punishment may look entirely theoretical . . . until it's your turn.
Call me a starry-eyed idealist, but I believe in due process and reasonable recourse to the courts. If the agency is going to go hog wild with penalties, Congress should impose reasonable restraints on the process. Unfettered government power is un-American. Procedural limits providing basic due process rights and restraining the coercive tactics of the agency would be an appropriate addition to the amendment. This problem is no secret - ICPHSO sponsored a presentation on this problem at the 2011 February meeting by three distinguished CPSC bar practitioners. If the agency can't control its animal instincts, then the law should be changed to limit its powers. I also recommend that penalties be limited to egregious conduct, reckless endangerment or conduct resulting in serious injury.
d. Restore Risk Assessment. The basic problem underlying the CPSIA, as is apparent again and again in my comments, is termination of the CPSC's obligation to assess risk. In fact, they are not allowed to assess risk anymore under the CPSIA, just follow the rules written by staffers in the 110th Congress. Of course, this renders the standard of substantial risk hazard moot. Even more problematic, the CPSC shows signs of losing sight of its mission. Is the mission proper testing . . . or safety? The recent hearings on pool drains illustrates this problem. The hearing was all about the definition of proper pool drain testing. The CPSC wasn't investigating actual injuries, because there weren't any, but instead questioning test results. That's what passes for safety administration nowadays.
We need a CPSC focused on risks and injuries. A phobic safety agency adds costs to our economy with little to show for the extra investment. We need to get our compass working again. Congress must mandate that the CPSC base all its decisions on the substantial product hazard standard and risk assessment.
e. Allow resellers to rely on representations of manufacturers, Fear of liability has caused many layers of the supply chain to repetitively test and retest the same product, all in the pursuit of the perfect suite of test reports. These costs are harming manufacturers and raising prices to consumers. Injury statistics do not support the thesis that anyone is safer, however. The solution is for Congress to set a legal standard that permits retailers to rely on the representations of their suppliers (manufacturers). This bright line rule should help end the atmosphere of distrust between retailers and their suppliers. Don't worry, there will still be plenty of testing to make everyone happy (including the always deserving testing labs).
f. End whistleblower provision. The whistleblower provision was added in the same fever of vindictiveness that infused the "throw in the kitchen sink" CPSIA in 2008. The problem is that there is no evidence that there were any "evil" companies at work in the children's market. Incompetent organizations or failed operators, perhaps, but criminals and bad guys, no. "Bad guys" are rare in the children's market, frankly. The whistleblower provision has the potential to be a disruptor, a manipulator mainly useful to pad the income of tort lawyers.
Additional attention by the CPSC to outreach and education of manufacturers is much more likely to produce results. Without evidence that true venality is an actual risk in this market, there is no justification for retaining the whistleblower provision.
g. Remove phthalates ban! There are no known victims of phthalates. The CPSC has been operating under this total ban for now almost three years - and has only ONE recall of 40 little inflatable toy baseball bats (our friend Daiso) to show for it. That's it, my friends. How much money, how many planeloads of dollar bills have been torched testing and retesting product for the presence of these chemicals in the meantime? The CPSC hasn't even bothered to finish up testing standards or certify even ONE lab to perform the tests. They don't appear to think this is a public health emergency.
Ket's end the charade. When Diane Feinstein isn't looking, drop the phthalates ban!
Monday, April 4, 2011
CPSIA - Analysis of Pending House CPSIA Amendment (Sections 3-11)
Continuing with my analysis of the pending draft of the CPSIA Amendment:
Section 3 Application of Third Party Testing Requirements: Merry Christmas, this provision ends mandatory phthalate and lead-in-substrate testing! Yes, Virginia, you read that right - there is a Santa Claus after all. Of course, as noted in my earlier blogpost, you are still subject to broad standards applying to many of your products. How will you know if you comply without some testing? You won't. Hmmm - a Catch-22! The limitations in the definition of Children's Products echo here. Removing mandatory testing is not the whole solution, unfortunately.
You still must test for lead-in-paint, small parts, children's metal jewelry and certain juvenile products.
The provision does not remove the CPSC from the process of certifying labs. This needless expansion of the role of our government in this market has never had a sufficient justification, in my view. Why are they in this business? What problem does it solve? Can ANYONE provide evidence that the market wasn't "working" before the CPSC arrived on the lab certification scene? This CPSIA provision is probably a historic consumer group wish-list item or perhaps a staffer's stray term that was never removed. The CPSIA was drafted in a fever of "our government failed us", so it's only natural that the law inserted the CPSC into every nook and cranny of the market. In this case, their conscription has not proven valuable, just another wasteful expense of the federal government that we all will pay for (again and again and again).
Ironically, the provision seems to create even more involvement in certification by the agency, if it chooses to require third party testing. Among other things, the agency must assess testing "capacity". That should prove "interesting".
This section provides some exemption for crafters, products focused on disabled persons (this phrasing only awkwardly covers certain "special needs" children) and one-of-a-kind items. The definition of the exemption incorporates the unfortunate term "not economically practicable" for testing to be excused. I can only imagine the serious of hearings and "stakeholder" meetings required to define what is and is not covered by this new term. This anticipatory compromise (perhaps as a concession to as-yet-encountered resistance in the Senate) likely spoils the workings of this well-intended provision.
A small quantity exemption modeled on Henry Waxman's formula has survived into this draft, unfortunately. The rule incorporates an arbitrary and otherwise meaningless volume rule to identify those companies too small to be required to test. I have never understood why Congress would want to let small companies flaunt safety rules because of their size. Is it okay to be poisoned by a little company but not by a big one? Isn't this law about SAFETY first and foremost? Perhaps we would do better to home in on REAL problems and leave everything else basically unregulated? After all, the substantial product hazard standard gives the agency a LOT of power to change course if they identify a new and REAL problem at a later time.
Under this amendment, the amoeba that is the CPSIA spread in yet another new direction. Today's new priority is apparently small parts. Why? Not explained. Has someone concluded that the former reliance on voluntary standards for small parts failed? On what basis? Does a lab putting products through a choke tube really save lives over relying on voluntary compliance (without specifying the use of outside labs)? Perhaps the best solution is to hold companies responsible for compliance with ASTM F963 without requiring testing (thus preserving the agency's ability to enforce), and holding the line on lead-in-paint testing? After all, L-I-P is easily tested and probably should always be subject to testing owing to the nature of the hazard. I don't know that small companies deserve an "out" on L-I-P because of the ease of controlling sources of paint and getting documentation on lead content. On the other hand, I don't understand why small parts needs this special mention.
Perhaps the sweetest term in this entire document is the new requirement that the agency perform a cost-benefit analysis on ANY mandated third party testing and further, that the testing imposes the least possible burden. This is a pure post-midterm election "smaller government" provision and something to be cherished. This requirement will be applied retroactively on any mandatory testing passed after August 14, 2009. Nice!!!
Finally, this provision makes the "15 Month Rule" voluntary by the CPSC, rather than Congressionally-mandated. Does this mean that it's dead? I can't say for sure. Let's hope so. Better yet, why not change this provision to get the CPSC out of the business of telling us how to be reasonable? Reasonableness is a term that courts have successfully interpreted for years without Congress' help. Why not let the courts decide what's reasonable if there is a dispute?
Section 4 Application of and Process for Updating Durable Nursery Products Standards: I skipped this as it relates to cribs. Not my area.
Section 5 Application of Section 106 to FDA-Regulated Products: Pulls in FDA rules into mandatory toy safety standards enforceable by the CPSC. Does not apply to me, not sure which is you this will impact.
Section 6 Application of Phthalates Standard: This provision limits the application of the phthalates ban to only certain parts of a "toy" (as defined).
First, the rule makes ALL phthalates rules PROSPECTIVE from the date of enactment. For those of you sitting on old inventory with the vain hope that someday it will saleable, this might be your lucky day!
The rule also gives the agency the power to exempt products from the phthalates ban if deemed "not necessary to protect children's health". This can be done only by rule under the amendment, so don't expect anything quick or cheap. This will be a long, drawn-out and arduous process - in other words, it is highly unlikely to occur.
As noted above, the term "necessary to protect children's health" conflicts with (or at least differs from) the substantial product hazard standard already in use. This is wrong and should be changed. Congress should use ONE standard for all matters relating to health under the CPSA, namely substantial product hazard, and it should resist the urge to introduce new standards throughout this document. That will only confuse things and make matters worse.
The provision adds a firm deadline for the end of the ban of the three phthalates the subject of the CHAP, if the agency does not act promptly after the CHAP is concluded. This provision seems to express distrust between Congress and the current administration of the CPSC. Will safety zealots hijack the CHAP process? This provision aims to prevent it. Hmmm.
Subsection (e) fiddles with the definition of "toy" to align it with the definition in the now mandatory ASTM F963 standard. Not sure how this will affect you (or me). The ASTM standard includes many different age ranges (by item) so some may even expand. Many will contract.
Finally, the revised definition excludes parts that can only be "licked". Frankly, based on my recollection of the CPSC's serious approach to this in the past, I anticipate that they will assume children have serpent tongues making almost everything "lickable". Sadly, Congress probably can't rely on the CPSC to take a simple definition and let companies administer it. This provision is an invitation to make "rules". I would suggest that the amendment be modified to specifically permit companies to exercise their reasonable business judgment on what is "lickable". I would point out that in the absence of victims that people besides Diane Feinstein can identify, the need to treat the possible presence of phthalates in these items as a public health crisis is unsupported. The CPSC, on the other hand, WILL treat it as a crisis since Congress banned the substances in toys. That makes it quite serious for the agency. To restore sanity, Congress will either need to give very specific instructions to the CPSC, or mandate the use of risk assessment to resolve this matter.
Personally, I am tired of all this, and hope Congress can find a way to put this to bed. I don't relish another three years of hearings, comment letters, begging and the like. Let My People Go - build some easy rules, let us exercise judgment and re-focus the agency on substantial product hazards.
The rule does NOT limit the application of the ban to ONLY plasticized parts, meaning that testing costs to assure compliance may remain in place for wood, metal, labels and other sundry items. Believe it or not, that's where we are now. [The CPSC seems stuck on phthalates right now - no final rules have been promulgated on this simple ban and no labs have been certified since August 2008.] It is a complete waste of money, particularly since only Diane Feinstein knows of victims of this purported hazard. The rule should be revised to limit toy industry legal exposure for what is best characterized as a ban based on conjecture and fear, not actual science or identifiable injury victims.
Section 7 Exemption Authority for Tracking Labels Requirement: This provision gives the agency the ability (by regulation) to exclude specific products or classes of products from the tracking label requirement if the Commission determines that it is not "economically practicable" to apply tracking labels. Even for those products thrown a lifeline, they may still have to provide the information through alternative means devised by the CPSC.
I believe cynically that our very existence, the very fact that we are still breathing today, can be used to rebut the argument that tracking labels are not "economically practicable". A better rule would be to let us decide for ourselves whether we want to use tracking labels. Companies can be relied upon to decide on an economically rational basis. If it's a good use of money, we'll do it. Otherwise, we won't.
In the case of our company, in fact, that's what we used to do. Some of our items had tracking labels, most did not. Our motivation had nothing to do with recalls. That's because our recall record was so good that tracking labels never made sense as a "defensive" move. The few tracking labels we added were to assist us on quality issues (generally relating to the production of electronic items). We used product identifiers to improve our supply chain and raise our quality levels. Why not let businesses exercise judgment and live with the consequences? Make good decisions, innovate in value-added ways and profit, OR make bad decisions, cut corners and lose. Simple. This provision should be revised accordingly.
I have also suggested in the past that mandatory tracking labels be restricted to long-life, heirloom-style products, mainly juvenile products like cribs. These items have a checkered past, and are used with the most vulnerable children (babies). There is reason to believe tracking labels will have some value in this arena, and in addition, since these items are generally big ticket items, the cost of the labels is not material. As for everything else, forget it.
Section 8 Requirements for Public Database: The very encouraging changes proposed in this section would provide basic safety net protections to innocent companies possibly subject to unmerited attack in the database. I have not taken the time to compare these provisions to the Nord/Northup draft rule on the database, but believe they are consistent or at least Nord/Northup provided inspiration for these changes. The changes reduce the scope of people who can file a report, and gives companies more authority to resist publication of material inaccuracies.
The time frames for circulation of data needs to lengthened considerably. The prospect of "doom" flaunted by consumer groups needs to be downplayed. While the drama of pending disaster makes grist for the newspaper mill, it is unrealistic and has driven the database process in an abusive direction unnecessarily. Giving more time for back and forth means that the agency will have fewer occasions to knowingly publish false information. In addition, there is always the possibility that working together on a more relaxed schedule will allow the CPSC and businesses to work together better.
My interaction with the agency has reduced my confidence in getting a fair hearing on material inaccuracy. We presented information rebutting definitively an accusation made by a consumer, and we were told that we had not demonstrated "material inaccuracy". That seemed to fly in the face of the facts but we could not rebut what the filer "thought". I do not see anything in the new language that would prevent the agency from publishing that original filing. If good faith were the metric, I would worry about it. But today's CPSC is highly-politicized so I am not prepared to say I believe they will interpret clear language "clearly" or behave in a "reasonable" manner. I call on Congress and the CPSC to jointly figure out how to solve this trust problem. Should there be a way to appeal the judgment of the CPSC? It would have to be simple and cheap - something administrative and independent - to give companies a way to protect themselves if they feel they're not getting a fair shake. It may be worth the effort to restore faith in the database.
The database is a very expensive trifle. I question whether we can afford it. Think about how much time and resources will be devoted by the CPSC to the database. Is this really the best way to spend our money on safety? A "nice to have", perhaps, but probably not a "must have".
Misidentified products and reports proven materially inaccurate will not be allowed to be published under this amendment. Thank heavens . . . .
Section 9-11: Technical amendments as far as I can tell.
Section 3 Application of Third Party Testing Requirements: Merry Christmas, this provision ends mandatory phthalate and lead-in-substrate testing! Yes, Virginia, you read that right - there is a Santa Claus after all. Of course, as noted in my earlier blogpost, you are still subject to broad standards applying to many of your products. How will you know if you comply without some testing? You won't. Hmmm - a Catch-22! The limitations in the definition of Children's Products echo here. Removing mandatory testing is not the whole solution, unfortunately.
You still must test for lead-in-paint, small parts, children's metal jewelry and certain juvenile products.
The provision does not remove the CPSC from the process of certifying labs. This needless expansion of the role of our government in this market has never had a sufficient justification, in my view. Why are they in this business? What problem does it solve? Can ANYONE provide evidence that the market wasn't "working" before the CPSC arrived on the lab certification scene? This CPSIA provision is probably a historic consumer group wish-list item or perhaps a staffer's stray term that was never removed. The CPSIA was drafted in a fever of "our government failed us", so it's only natural that the law inserted the CPSC into every nook and cranny of the market. In this case, their conscription has not proven valuable, just another wasteful expense of the federal government that we all will pay for (again and again and again).
Ironically, the provision seems to create even more involvement in certification by the agency, if it chooses to require third party testing. Among other things, the agency must assess testing "capacity". That should prove "interesting".
This section provides some exemption for crafters, products focused on disabled persons (this phrasing only awkwardly covers certain "special needs" children) and one-of-a-kind items. The definition of the exemption incorporates the unfortunate term "not economically practicable" for testing to be excused. I can only imagine the serious of hearings and "stakeholder" meetings required to define what is and is not covered by this new term. This anticipatory compromise (perhaps as a concession to as-yet-encountered resistance in the Senate) likely spoils the workings of this well-intended provision.
A small quantity exemption modeled on Henry Waxman's formula has survived into this draft, unfortunately. The rule incorporates an arbitrary and otherwise meaningless volume rule to identify those companies too small to be required to test. I have never understood why Congress would want to let small companies flaunt safety rules because of their size. Is it okay to be poisoned by a little company but not by a big one? Isn't this law about SAFETY first and foremost? Perhaps we would do better to home in on REAL problems and leave everything else basically unregulated? After all, the substantial product hazard standard gives the agency a LOT of power to change course if they identify a new and REAL problem at a later time.
Under this amendment, the amoeba that is the CPSIA spread in yet another new direction. Today's new priority is apparently small parts. Why? Not explained. Has someone concluded that the former reliance on voluntary standards for small parts failed? On what basis? Does a lab putting products through a choke tube really save lives over relying on voluntary compliance (without specifying the use of outside labs)? Perhaps the best solution is to hold companies responsible for compliance with ASTM F963 without requiring testing (thus preserving the agency's ability to enforce), and holding the line on lead-in-paint testing? After all, L-I-P is easily tested and probably should always be subject to testing owing to the nature of the hazard. I don't know that small companies deserve an "out" on L-I-P because of the ease of controlling sources of paint and getting documentation on lead content. On the other hand, I don't understand why small parts needs this special mention.
Perhaps the sweetest term in this entire document is the new requirement that the agency perform a cost-benefit analysis on ANY mandated third party testing and further, that the testing imposes the least possible burden. This is a pure post-midterm election "smaller government" provision and something to be cherished. This requirement will be applied retroactively on any mandatory testing passed after August 14, 2009. Nice!!!
Finally, this provision makes the "15 Month Rule" voluntary by the CPSC, rather than Congressionally-mandated. Does this mean that it's dead? I can't say for sure. Let's hope so. Better yet, why not change this provision to get the CPSC out of the business of telling us how to be reasonable? Reasonableness is a term that courts have successfully interpreted for years without Congress' help. Why not let the courts decide what's reasonable if there is a dispute?
Section 4 Application of and Process for Updating Durable Nursery Products Standards: I skipped this as it relates to cribs. Not my area.
Section 5 Application of Section 106 to FDA-Regulated Products: Pulls in FDA rules into mandatory toy safety standards enforceable by the CPSC. Does not apply to me, not sure which is you this will impact.
Section 6 Application of Phthalates Standard: This provision limits the application of the phthalates ban to only certain parts of a "toy" (as defined).
First, the rule makes ALL phthalates rules PROSPECTIVE from the date of enactment. For those of you sitting on old inventory with the vain hope that someday it will saleable, this might be your lucky day!
The rule also gives the agency the power to exempt products from the phthalates ban if deemed "not necessary to protect children's health". This can be done only by rule under the amendment, so don't expect anything quick or cheap. This will be a long, drawn-out and arduous process - in other words, it is highly unlikely to occur.
As noted above, the term "necessary to protect children's health" conflicts with (or at least differs from) the substantial product hazard standard already in use. This is wrong and should be changed. Congress should use ONE standard for all matters relating to health under the CPSA, namely substantial product hazard, and it should resist the urge to introduce new standards throughout this document. That will only confuse things and make matters worse.
The provision adds a firm deadline for the end of the ban of the three phthalates the subject of the CHAP, if the agency does not act promptly after the CHAP is concluded. This provision seems to express distrust between Congress and the current administration of the CPSC. Will safety zealots hijack the CHAP process? This provision aims to prevent it. Hmmm.
Subsection (e) fiddles with the definition of "toy" to align it with the definition in the now mandatory ASTM F963 standard. Not sure how this will affect you (or me). The ASTM standard includes many different age ranges (by item) so some may even expand. Many will contract.
Finally, the revised definition excludes parts that can only be "licked". Frankly, based on my recollection of the CPSC's serious approach to this in the past, I anticipate that they will assume children have serpent tongues making almost everything "lickable". Sadly, Congress probably can't rely on the CPSC to take a simple definition and let companies administer it. This provision is an invitation to make "rules". I would suggest that the amendment be modified to specifically permit companies to exercise their reasonable business judgment on what is "lickable". I would point out that in the absence of victims that people besides Diane Feinstein can identify, the need to treat the possible presence of phthalates in these items as a public health crisis is unsupported. The CPSC, on the other hand, WILL treat it as a crisis since Congress banned the substances in toys. That makes it quite serious for the agency. To restore sanity, Congress will either need to give very specific instructions to the CPSC, or mandate the use of risk assessment to resolve this matter.
Personally, I am tired of all this, and hope Congress can find a way to put this to bed. I don't relish another three years of hearings, comment letters, begging and the like. Let My People Go - build some easy rules, let us exercise judgment and re-focus the agency on substantial product hazards.
The rule does NOT limit the application of the ban to ONLY plasticized parts, meaning that testing costs to assure compliance may remain in place for wood, metal, labels and other sundry items. Believe it or not, that's where we are now. [The CPSC seems stuck on phthalates right now - no final rules have been promulgated on this simple ban and no labs have been certified since August 2008.] It is a complete waste of money, particularly since only Diane Feinstein knows of victims of this purported hazard. The rule should be revised to limit toy industry legal exposure for what is best characterized as a ban based on conjecture and fear, not actual science or identifiable injury victims.
Section 7 Exemption Authority for Tracking Labels Requirement: This provision gives the agency the ability (by regulation) to exclude specific products or classes of products from the tracking label requirement if the Commission determines that it is not "economically practicable" to apply tracking labels. Even for those products thrown a lifeline, they may still have to provide the information through alternative means devised by the CPSC.
I believe cynically that our very existence, the very fact that we are still breathing today, can be used to rebut the argument that tracking labels are not "economically practicable". A better rule would be to let us decide for ourselves whether we want to use tracking labels. Companies can be relied upon to decide on an economically rational basis. If it's a good use of money, we'll do it. Otherwise, we won't.
In the case of our company, in fact, that's what we used to do. Some of our items had tracking labels, most did not. Our motivation had nothing to do with recalls. That's because our recall record was so good that tracking labels never made sense as a "defensive" move. The few tracking labels we added were to assist us on quality issues (generally relating to the production of electronic items). We used product identifiers to improve our supply chain and raise our quality levels. Why not let businesses exercise judgment and live with the consequences? Make good decisions, innovate in value-added ways and profit, OR make bad decisions, cut corners and lose. Simple. This provision should be revised accordingly.
I have also suggested in the past that mandatory tracking labels be restricted to long-life, heirloom-style products, mainly juvenile products like cribs. These items have a checkered past, and are used with the most vulnerable children (babies). There is reason to believe tracking labels will have some value in this arena, and in addition, since these items are generally big ticket items, the cost of the labels is not material. As for everything else, forget it.
Section 8 Requirements for Public Database: The very encouraging changes proposed in this section would provide basic safety net protections to innocent companies possibly subject to unmerited attack in the database. I have not taken the time to compare these provisions to the Nord/Northup draft rule on the database, but believe they are consistent or at least Nord/Northup provided inspiration for these changes. The changes reduce the scope of people who can file a report, and gives companies more authority to resist publication of material inaccuracies.
The time frames for circulation of data needs to lengthened considerably. The prospect of "doom" flaunted by consumer groups needs to be downplayed. While the drama of pending disaster makes grist for the newspaper mill, it is unrealistic and has driven the database process in an abusive direction unnecessarily. Giving more time for back and forth means that the agency will have fewer occasions to knowingly publish false information. In addition, there is always the possibility that working together on a more relaxed schedule will allow the CPSC and businesses to work together better.
My interaction with the agency has reduced my confidence in getting a fair hearing on material inaccuracy. We presented information rebutting definitively an accusation made by a consumer, and we were told that we had not demonstrated "material inaccuracy". That seemed to fly in the face of the facts but we could not rebut what the filer "thought". I do not see anything in the new language that would prevent the agency from publishing that original filing. If good faith were the metric, I would worry about it. But today's CPSC is highly-politicized so I am not prepared to say I believe they will interpret clear language "clearly" or behave in a "reasonable" manner. I call on Congress and the CPSC to jointly figure out how to solve this trust problem. Should there be a way to appeal the judgment of the CPSC? It would have to be simple and cheap - something administrative and independent - to give companies a way to protect themselves if they feel they're not getting a fair shake. It may be worth the effort to restore faith in the database.
The database is a very expensive trifle. I question whether we can afford it. Think about how much time and resources will be devoted by the CPSC to the database. Is this really the best way to spend our money on safety? A "nice to have", perhaps, but probably not a "must have".
Misidentified products and reports proven materially inaccurate will not be allowed to be published under this amendment. Thank heavens . . . .
Section 9-11: Technical amendments as far as I can tell.
Subscribe to:
Posts (Atom)
Posts
