CPSIA - Battles Lines Drawn

As ECADA moves toward a mark-up, possibly next week, the action over the CPSIA is happening elsewhere on the Hill.  In yesterday's The Hill newspaper, it was announced that the pending Appropriations Bill knocks out all funding for the noxious CPSIA database. 

It is symptomatic of the partisan gridlock in Washington that a policy debate has to be dealt with by withholding funds.  The parties are simply unable to agree on anything.  To agree is to give up political advantage.  In gridlock, it is always possible to blame the other party and to paint them with whatever black brush is handy.  This is particularly attractive to a minority party like the Dems in the House - they want their majority back.  Thus, while the "defenses" for the absurdly over-reaching rules governing the database are almost laughable, the Dems posture as though any change threatens the American way of life.

That said, it's a good thing that the Appropriations Bill is doing the work that the House Energy and Commerce Committee hasn't done or perhaps cannot do.  Brokering agreement with someone as unyielding and unreasonable as Henry Waxman is no small feat.  Rationality and reason, not to mention good policy, have no apparent effect on this ideologue.  He won't concede that Rep. Mike Pompeo, and the other database haters, have legitimate concerns.  NO ONE is asking that the database die, just that it be a fair game for everyone.  It's only because the Dems won't give a millimeter that you get the Appropriations Bill.  If Energy and Commerce can't change the database, or the CPSIA, I commend the Appropriations Committee for taking action to protect American businesses from government-sanctioned slander.  Somebody had to do it.

There's no telling where all this goes.  The Republican majority in the House may be able to shine a light on the issues of the CPSIA, but since the Dems control the Senate and White House, it seems as though the Dems are capable of blocking progress.  Three years of work have no persuaded one Dem of anything, by all appearances.  [Hence my disillusionment, frustration and outrage.] 

There is little sign that the Dems will give an inch - and you know what that likely means.  You and I are (remain) screwed.  Stasis means the 100 ppm standard gets implemented in two months, possibly retroactively.  It means that you must continue to test internal components for phthalates and test and retest everything else endlessly without relief of any kind.  It means that the 12-year-old age limit for everything stays in place, rhinestones and brass remain illegal (but osmium, iridium and ruthenium are still a-okay!), books and bikes and ATVs remain under the thumb of the CPSC, and many, many businesses will further weaken. 

NO child will be safer, and NO injury will be avoided.  The advocates can't provide evidence that ANYONE was EVER injured so there is no rational reason to believe this massive disruption will save a life or even a paper cut.

The battle lines are drawn.   Perhaps now you know why I was so disappointed when only one wiener resigned from Energy and Commerce today. I can think of a few more that ought to go . . . .

VOTE FOR ECADA AND END THE CPSIA CHARADE!

CPSIA - Fools in Charge

So happy to be so safe . . . and so unemployed!

Today's initial jobless claims report is yet ANOTHER report card on the dense and unthinking approach to economics implemented by Mr. Obama, Mr. Waxman and their Dem minions since the 2008 election.  A full three years after the economic cataclysm, and with a diminishing ability to blame this misfortune on someone else, the Dems stubbornly stick to their over-regulation agenda dooming Americans to safe, safe unemployment.  Can't be too careful, you know.

The CPSIA is the poster child for the Nanny State.  Mr. Obama told David Letterman on September 21, 2009 that the national problem he had to fix was that we had "too little government, too little regulation". Our industry has become a classic example of the cure being worse than the disease.  The story has been told again and again.  For instance, the CPSC heard (and promptly ignored) at its February 16th hearing from a representative of the bicycle industry, all the small bicycle manufacturers have left the children's market and the big makes of bikes have sharply cut their product lines.  They also informed the CPSC that if the 100 ppm lead standard comes into force, the rest of the bikes will disappear from the market.  Quite a stimulus plan - you can imagine all the jobs this useful plan has created.  Other consequences is a general reduction in choice and availability in child-size bikes, which not only punishes families but also retailers.

Do any of the numskulls running our safety apparatus have evidence that any child has EVER been poisoned by lead-in-substrate from a bike?  No, they don't - because there is no evidence that any child was ever injured by lead-in-substrate anywhere using any product at any time.  Did you realize that one of the big problems in making a bike comply with this moronic law is that bikes use recycled steel for the frames - and the law provides that paint does not constitute a "barrier" over the steel.  The lead content of recycled steel is hard or impossible to consistently control at the levels dictated by the law.  The industry representative submitted testimony and evidence to the CPSC (consistent with evidence I have also supplied) showing that tests on the SAME PART in ten places yields ten different lead contents. 

This law is killing jobs, products, companies and markets.  The evidence and data is right there for any thinking individual to read and consider.  The true believers stand in the way of rationality.

Please send Mr. Waxman and Mr. Obama a thank you note for the weak, sinking economy.  They have CHOSEN this path of Nanny Statism to keep you "safe" although they really can't demonstrate you were ever unsafe or that you needed this further protection.  If you are one of the unlucky 9.1% who can't find a job, perhaps you will take some comfort in knowing that your Dem-led government made this choice for you.  Safe but unemployed - that's what you need, what you want, what you got.  The best government money can buy . . . .

The solution to fools in charge is to amend the CPSIA and restore sanity in safety administration.  PASS ECADA AND END THE CPSIA CHARADE!

CPSIA - Double-Speak Patrol

760 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 51 days left until Election Day.

Consider the following two events:

a. August 2, 2010: The CPSC Commission voted to authorize yet more Mattel firewalled labs (2) and a lab operated by Hanesbrands, a $2.3 billion market cap maker of underwear. [Oooo, lead in underwear! Is this a sick joke or does the CPSC really think kids are chewing on their dirty underwear? Ew!] I believe, without checking, that Mattel now has nine approved firewalled labs, enabling it to save lots of money which is well beyond the practical reach of any small business. The only parties who have thusfar achieved this relief are mass market companies.

b. August 15, 2010: CPSC Chairman Inez Tenenbaum gave an interview with the Baltimore Sun featuring the following exchange:

"Q: How do you respond to some critics of the Consumer Product Safety Improvement Act who say the law puts heavy testing burdens on manufacturers, especially smaller producers?

A: We have to have high standards to protect the consumer. So regardless if you're a large business or a small business, we can't let you put lead in children's products, or cadmium. Or overlook flammability laws or use other toxic chemicals. We look at what the danger is. We think if we had a small-business ombudsman who was out there regularly educating small businesses, we could help them prevent problems in terms of compliance. Large corporations have a whole office full of lawyers and engineers and chemists and toxicologists. Small businesses do not. And we don't want to put anyone out of business. We want to help them learn how to comply and sell safe products." [Emphasis added]

Put side-by-side, these two events separated by only a few days, make clear the utter insensitivity of our government to our plight. The dismissive condescension of Tenenbaum in daring to suggest that an ombudsman would make the problems disappear for small businesses is infuriating. The necessary implication is that we small businesses are just too stupid to understand their complicated rules - I guess she thinks only Mattel can read the English language. Of course, the pending testing frequency rule (which I believe will be implemented in the coming weeks, get ready for it) will cause our company to spend $15 million per annum on testing. This sum far exceeds our profits. Perhaps the ombudsman will help us terminate our people to pay for testing, or provide a shoulder to cry on. And we'll be crying alright.

At the same time, Tenenbaum is actively feathering the nest of the VERY Big Business that caused the CPSIA, Mattel. How ironic, isn't it? The fact that she is tilting the children's market fatally in favor of Big Business doesn't seem to be a source of guilt for Ms. Tenenbaum. Empty words are the solution.

Please keep this in mind the next time you suffer through the dark intonations of our Fearless Leader laying the blame for the economic problems of the small business community at the feet of the Republicans. The problems in our market won't be solved with yet another handout - the Dems should try loosening the garrote they are busily tightening around our air passages. Tax relief won't provide much help when the new regulations makes profit impossible.

Let's stipulate that the Dems in Congress and at the CPSC are fully aware of the inequities and other problems embedded in the CPSIA. In the face of a continuous and vigorous public debate for two years+, this seems beyond dispute. I am also aware that this blog is widely and loyally read by these people. Ignorance is not a possible explanation. Stubbornness, self-preservation, zealotry, a lack of political will, exhaustion - any of those make more sense to me as an explanation.

I have no outlet for my anger over this. I just hope you are not a sucker for the Dems' baloney and spinning. Our ONLY hope is a Republican-led Congress that will act to make these people accountable for the damage they are inflicting. The Dems have proven their stripes - to hope they will come to their senses is simply wishful thinking without any basis in reality or fact.

Can you take two more years of this? I cannot and I will not. I need your help, however - you need to vote the scoundrels out of office on November 2. Here is a list of Democrats on the House Energy and Commerce Committee:

Henry A. Waxman, CA
John D. Dingell, MI
Edward J. Markey, MA
Rick Boucher, VA
Frank Pallone, Jr., NJ
Bart Gordon, TN
Bobby L. Rush, IL
Anna G. Eshoo, CA
Bart Stupak, MI
Eliot L. Engel, NY
Gene Green, TX
Diana DeGette, CO
Lois Capps, CA
Mike Doyle, PA
Jane Harman, CA
Jan Schakowsky, IL
Charles A. Gonzalez, TX
Jay Inslee, WA
Tammy Baldwin, WI
Mike Ross, AR
Anthony D. Weiner, NY
Jim Matheson, UT
G. K. Butterfield, NC
Charlie Melancon, LA
John Barrow, GA
Baron P. Hill, IN
Doris O. Matsui, CA
Donna M. Christensen, VI
Kathy Castor, FL
John P. Sarbanes, MD
Christopher S. Murphy, CT
Zachary T. Space, OH
Jerry McNerney CA
Betty Sutton, OH
Bruce L. Braley, IA
Peter Welch, VT

Please help their opponents with cash and labor, and votes. My guy is Joel Pollak, running against Jan Schakowsky. Can you imagine Congress without her? Oh, to dream. . . . His website is www.pollakforcongress.com - please consider supporting his candidacy generously.

CPSIA - Extinct Toys, Thanks Congress!

In the latest effort to make the deaf hear and perhaps even to raise the dead, a member of the HTA has reconfigured its website to highlight "Endangered Toys" and "Extinct Toys", all courtesy of your Federal Government. Thanks, Congress!

There are seemingly buckets of Endangered Toys (currently in stock but can't be reordered) and Extinct Toys (out of inventory and can't be reordered) on this website. Ooooh, they're so dangerous, like "Grandfather Lorenzo" from darkest Germany (endangered) or the "Post Express Van" also from the rogue state of Germany (extinct). Can't allow children to play with toys from Germany, that's for sure. . . .

Oddly, there's no sign that anyone anywhere was ever injured by these toys. They're just gone now because of the "unintended consequences" of the CPSIA. [Btw that expression, "unintended consequences", makes me want to throw up. Unintended, my ear. This is exactly what was intended, and Dem staffers have repeatedly admitted it.]

The zealots who brought this plague on you have practically grown callouses patting themselves on the back for making your businesses so darned safe. Niggling details like testing costs, loss of valued products, layoffs are all sloughed off as a "necessary" expense in making everyone safer. This flawed assertion is based on the self-evident conclusion that their law made us safer. Obvious, so obvious. I understand their point since I know they can't comprehend numbers or data. That's why they're politicians, after all. WERE they able to tote up a number or two, they might not be so quick to assert that we actually are safer, given that a few tedious hours of analysis would reveal that there are only THREE known (asserted) lead injuries in the last 11 years in this country, and only ONE documented death. That's it, barely a day's worth of death and maiming from pools. Hard to reduce injuries from nothing to less than nothing.

It hardly matters, because they cast the die for us, and have no intention to listen to our little problems. This explains why they blandly put out a rule for comment last week which states that our business will have to pay $15 million a year in testing costs. Gotta be safe, ergo if we don't test the way they say we should, our customers won't be safe.

In fact, if we DO test as they want us to, I GUARANTEE everyone will be safer than ever. That's because we will be out of business and they won't be able to buy any of our products.

Try not to forget to say "thank you" on November 2 to all those people who have stood between the CPSIA and its repair. You should have plenty of time to figure out how to thank the people who are committed to putting you out of business. You sure won't be selling toys.

GUEST BLOG - BOSTON GLOBE WRITER TAKES NOTICE OF ALL THOSE CPSC RECALLS

Rick has blogged in this space about how the onslaught of recalls by the CPSC is numbing to consumers. Boston Globe writer Sylvia Pagán Westphal has taken notice in a column over the weekend:

Boston Globe

The safety scare
Separate dangerous products from those that pose little risk
By Sylvia Pagán Westphal | July 7, 2010

IF YOU’RE the parent of a young child and want to be very scared, don’t waste time looking for horror movies on TV. Just go to the US Consumer Product Safety Commission’s website for child product recalls. You won’t be able to sleep for days.

The site features an interminable selection of common children’s products that have been recalled. Some of the depictions are downright gruesome: in cases of defective cribs, for example, there are pictures of baby dolls with necks pinned down between rails, or of their little faces pressed against a mattress, as if suffocating. The intent is, to be sure — for I see no other reason to scare the wits out of an unsuspecting, Internet-roaming mother — to jolt parents into action if they own one of the products.

One recent afternoon, I was clicking through the recalls page when I realized, to my dismay, that during my 9-year stint as a parent I have owned several of the featured items. My colorful rainforest-themed baby swing was there, and so was one of my cribs. The baby sling I used with my son was recalled after three babies suffocated in 2009. The kinds of bath seats I used (and loved) with my daughter aren’t sold anymore, following various recalls.

I never found out about these announcements. Had I taken the time to register each product I might have heard from the manufacturers, but I didn’t do it, and neither do most of the parents I know. Some pediatricians’ offices and stores post selected recall sheets, and there is an e-mail list from Consumer Product Safety Commission one can opt into, but with over 100 of these announcements per year it’s hard to keep track of the information.

Part of the problem is that recall announcements don’t explicitly distinguish between problems with products that are truly dangerous and defective versus products with sub-optimal design that, when used properly, pose little risk. For example, the commission recently recalled a bed because one child got his head stuck in its storage compartment. Not to take away from that kid’s pain, but I have numerous compartments in my home where my children’s heads would fit if they tried hard enough.

In a way, some of the announcements appear to be directed at shielding us from our own parental incompetence. Millions of baby bath seats and walkers are no longer sold due to drownings and falls suffered by babies who were basically left unsupervised. The recent high-profile recalls of drop-side cribs were prompted by deaths that, in some cases, were caused by cribs that were incorrectly put together or were subjected to shoddy home repairs.

Don’t get me wrong: to the extent that these recalls remove poorly designed products from the market the efforts should be praised. If motels and hotels are forced to carry safer cribs, that’s a good thing. But the Consumer Product Safety Commission and other safety advocacy groups should be mindful of putting each recall into perspective, so as not to unnecessarily scare the public. For example, the multiple recalls (and likely national ban) on drop-side cribs comes after 32 documented deaths over the last 10 years and millions of cribs sold. That’s surely 32 deaths too many, but more children die each year choking on food.

There is a real downside to a system that feeds into our nation’s growing safety paranoia, which isn’t healthy either. Many of my overseas friends have a hard time understanding our obsession with safety — we put locks on our toilet seats, cover the corners of tables with rubber guards, and use hand sanitizer with ever-intensifying zeal. Taking that baby walker away, just like covering the table corners, is a bit like avoiding air travel for fear of crashing, while still driving a car every day. The world is a very dangerous place to raise a child. Leave the house and there are hard edges, pointy rocks, and steep inclines everywhere. As much as we’d like to, we just can’t childproof those too.

Sylvia Pagán Westphal is a regular contributor to the Globe opinion pages.

Posted to Rick's Blog by Alliance for Children's Product Safety Staff

CPSIA - What?! Too Many Recalls - That CAN'T Be!

The Washington Post stated the obvious this week in an article Friday entitled "Officials Worry about Consumers Lost Among the Recalls". Apparently, the surge in recalls has caused consumers to increasingly ignore them. Apparently, many consumers choose to continue to use recalled items or even to eat recalled food. Among the issues, the swelling number of recalls encourages consumers to assume that they are not serious. In addition, the onslaught of recalls is numbing to consumers. Prominent recalls that appear to be based on junk science or Regulatory Multiple Personality Disorder (RMPD), like my personal favorite McDonald's Shrek glasses which were recalled despite the CPSC's admissin that they were perfectly safe, only amplifiwa the sense of a system is out of control.

Among the useless advice offered in the article is the recommendation that all merchants should do as Costco does, which is to call every customer who has ever bought a recalled item in its stores. What Costco does is admirable, but it is entirely dependent on being a multi-billion dollar, high tech mass market retailer. I think it would be great if I could hit my nine iron 205 yards like Tiger Woods, but then again, it ain't happenin'. It's about as realistic to advise (or require) me to match Mr. Woods distance and accuracy with his golf clubs as it is to require all U.S. merchants to match the achievements of ONE of them, namely Costco in this case. Unfortunately, the article's suggestion is utterly out of touch with reality. Bad news - the world's imperfect. . . .

Whatever we do, we certainly shouldn't address the standards for how recalls are determined, staged or publicized. We may disagree about many things, but we all have to acknowledge that our government COULDN'T be at fault. Certainly not, their every choice and execution is perfection by definition. It's obviously the fault of industry.

Editor's Note: In case you were wondering, I was being sarcastic in the paragraph above.

The Post article also clucks about the implementation of registration cards for durable infant products like cribs and bassinets. I have consistently pointed out that durable infant products are in a different category because they are useful for a long time (hence the word "durable") and tend to be handed down from one generation to another, often being used over decades. On this basis, having a way to reach consumers is a good idea. BUT we need to acknowledge an important consequence of this idealistic solution - the new rules tend to make it very difficult or even illegal as a practical matter to START a business catering to these markets. For those companies crazy enough to remain in the durable infant products market, the new rules on registration cards and data retention is a Gift from Above. The infrastructure and overhead burden of this requirement will be unbearable for any except the most well-capitalized companies.

I am glad I don't need a crib now. Considering how many companies have been crushed by recalls, the penal attitude of the agency (with huge penalties possible LONG after recalls are announced), tough new standards and regulations on the product class, and the new registration cards, I cannot imagine many companies remaining in this market for much longer. The ensuing lack of competition will likely mean fewer products, much higher prices, less innovation, fewer available imports. The CPSIA is a protectionist regime for those few companies not already bankrupt at the hands of the government.

I am not in this business and my kids are older - for once, this is someone else's problem. I think the government's approach to fixing this problem is completely wrong. They seem to be taking their instructions from a very small and insular group of consumer advocates whose judgment on these matters is largely unchallenged by industry or an inquisitive media. [Media is only inquisitive these days if they can portray a crisis, it seems to me.] Having bought into these harsh concepts at the hands of consumer groups, the government today is busy patting itself on the back for a job well-done. We'll see . . . .

In the meantime, with the CPSC announcing micro-recalls like Daiso's latest (190 pieces recalled - total, including inventory on the shelf - of five items selling for $1.50 at retail), the consumer is left wondering if anything is safe or everything is safe (and the government has lost its mind). I can't tell you but my guess is closer to the latter. And the Washington Post says you are all checking out. Good job, regulators!

CPSIA - Thumbscrews, Jobs and You

This week we learned that the G-20 nations established near term fiscal deficit reduction as a twin priority with economic growth. The U.S. says it will reduce its fiscal deficit from this year's breathtaking 10.2% of GDP to a mere 4.2% in 2013 (that goal translates to about $600 billion in red ink, more or less). This fantastic goal is apparently based on the premise that Mr. Obama's big spending plans are going to stimulate so much growth that the United States will literally grow away from this problem.

[Please don't bring up the additional expense of new federal entitlements like health care reform - I believe the plan is for magic or heaven above to provide those multi-billions.]

Rosy scenario? To my way of thinking, it is delusional government or at least government in a deep state of denial. Those of us suffering from the CPSIA debacle know why - Obama's new withering regulations are strangling businesses and the markets. The environment created by these awful rules are killing jobs everywhere. Mr. Obama's apparent belief that we need a lot more government will render his plan to reduce deficits moot. The passage of time will reveal that thumbscrews are just not a good jobs program.

Consider the trajectory of our companies' employment ranks over the past four years. Our headcount reduction in 2007 was 3.2%, 2008 was 15.9% and 2009 was 6.6%. There were two big factors in those reductions - a really lousy economy and a really terrible law affecting children's products. But what about the glorious recovery sparked by our wonderful government? Please note that our businesses are presumably a "beneficiary" of much of that largess because of our dependence on educational sales - schools received MANY billions under the stimulus spending plans. Revenues for first quarter 2010 rose sharply in many industries (an easy comparison to 1Q 2009 but up is up!), so what about jobs at our companies? January - May: our employee headcount shrunk by 2.3%.

We are still not creating net jobs. While we pour endless resources into regulatory compliance, none of which is producing a scintilla of results (and certainly not any sales), we are allowing attrition to lower our costs. We have only so much money - and the government has plans for us to waste it in large quantities. The result - fewer and fewer jobs and a very difficult environment to create jobs. Our total four-year job loss is 25.7%. Some job program. . . .

Mr. Obama prefers to look the other way. While the WSJ notes that "an influential group of U.S. corporate leaders this week accused Mr. Obama of retarding growth with a slew of new taxes and rules", Mr. Obama simply noted at the news conference at the close of the G-20 meeting “We must recognize that our fiscal health tomorrow will rest in no small measure on our ability to create jobs today.” Time for a hearing test?

And if it weren't bad enough that Obama endorsed a wishful thinking plan to reduce the deficit through high spending while at the very same time creating the most hostile business environment in recent memory, there is another shoe to drop . . . on you: "President Obama said that next year he would present 'very difficult choices' to the country in an effort to meet deficit goals. The president cited his disappointment with the U.S. tax code. 'Next year, when I start presenting some very difficult choices to the country, I hope some of these folks who are hollering about deficits and debt step up, 'cause I'm calling their bluff.'"

What you aren't spending on new health care costs or CPSIA compliance, the government plans to take away from you. And by the way, create some jobs while you're at it.

I cannot help but connect the national issues being discussed with our own travails. We are being sent to the gallows by a truly unconcerned CPSC Democratic leadership. They assert that they are making everyone "safer" without looking at data or considering the serious problems being created in the market. Warnings, dire warnings backed up with data and reason, are falling on deaf ears - it's as if the Dems are daring us to go out of business to prove our point. Theirs is a catastrophic policy but it seems as though they are bound and determined to see it through. This is terrible news for you, for your customers and suppliers and for our country.

Humpty Dumpty was never the same after he fell over, as we all know. I am committed to prevent this disaster, notwithstanding an uncaring Dem-controlled Congress and Dem-controlled CPSC. I am working for change in Congressional leadership come November, and I URGE YOU to raise money and commit time to candidates offering to help us reform this terrible law. The people who did this to you and me should pay with their jobs. Soon.

CPSIA - The CPSC Sweats Out A Stay

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

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

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

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

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

Ouch.

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

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

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

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

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

CPSIA - New York Times Highlights Big Government at CPSC

The New York Times today highlighted the explosion in regulations under President Obama, particularly noting the CPSC and the controversy over the CPSIA. Here's what Inez Tenenbaum had to say about our problems:

"'I don’t want to put anyone out of business,' said Inez Tenenbaum, chairwoman of the Consumer Product Safety Commission, who was appointed by Mr. Obama. 'But if anything will help the marketplace, it is to make sure that people have confidence in the products that they buy.'" [Emphasis added]

Let's be clear about something - this is pure opinion. It may sound like fact, but there's nothing factual about that self-justifying remark. I am not aware of ANY data to support this point of view. I believe the tenor of Ms. Tenenbaum's remark is that she knows what's best for our markets, namely a lot more regulation. I thought her job was to make people safe . . . . She apparently contends that the market for children's products was sinking under the weight of declining consumer confidence and the CPSIA was some sort of stimulus bill intended to save our market with lots of confidence-restoring regulations.

That is a pretty rosy reconstruction of the CPSIA, don't you think? I love a good work of fiction!

I have a message for our overlords in Washington - thanks for all your help but frankly, I would prefer to run my business without your assistance. We know our customers, our suppliers, our products and most definitely, our markets - and you do NOT. You say our market needs a boost of consumer confidence. I say that if it does, we'll take care of it ourselves. You have no right to enter our market and tell us how to run our businesses more successfully. That's the ultimate in regulatory arrogance and is completely contrary to the capitalist system prevailing in this country. We are the efficient capital allocators, not YOU.

This is all Washington "spin". The noxious regulations choking our businesses are indefensible for their safety impact so now our regulators are telling us the new rules have been designed to be GOOD for our markets. Pass me a barf bag.

I would like to close by quoting the May 12 HTA letter on the Waxman Amendment:

"Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee."

Thanks, Congress and CPSC, for boosting our markets so well with all your new regulations. It's a brave new world for all of us. Yippee.

CPSIA - CPSIA Casualty of the Week for May 10

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.


CPSIA Casualty of the Week for May 10, 2010:

Beloved Minnesota store The Essence of Nonsense Closed by
the Essence of Nonsense (CPSIA)

Tom Fletcher and his business partner Barbara Anderson-Sannes opened The Essence of Nonsense toy store 14 years ago dedicated to selling unique, high-quality toys out of their St, Paul, Minnesota shop. Offering an array of the best handmade toys from small domestic toymakers and traditional European manufacturers, The Essence of Nonsense became an important retail destination in the local community.

After the CPSIA imposed new restrictions on the toy industry, Tom and Barbara found that their suppliers greatly reduced the range of products available. Even more disturbing, they also noticed that the quality of products was rapidly deteriorating. Rather than sell inferior quality products, they decided to close the store. This was no “victory” for safety - their store had never experienced a recall of any of its specialized products.

"CPSIA cut our choices in half," says Tom Fletcher. "Some small companies stopped selling or disappeared and the bigger companies, realizing they were the only options, started to reduce quality to save money for themselves. So, we decided to close in large part because the quality of our product offering was changing and the choices were becoming so limited."

"It's not that we're against the [CPSIA-imposed] testing," Fletcher continued. "It's just that we need a fair application across the board. Small businesses can't afford to hire the necessary testers which puts them at a significant disadvantage and can even put them out of business."

Tragically, the closing of The Essence of Nonsense is a cautionary tale about how the overly-restrictive burdens of the new product safety regime can destroy small businesses and imperil their unique products. On the back of a precautionary law, a wave of destruction is carrying away the life’s work of many small businesspeople.

"When you pick up a handmade toy," Fletcher says, "you can feel the dedication and effort that went into making it. Someone really loved making that toy. If something isn't done to protect small businesses, handmade toys will be gone soon. People will look back and say, 'we had this when I was a kid and we don't have it anymore.'"

CPSIA - Good News Finally, Two Toy Companies are Doing Okay

Don't despair, everyone - there are at least two toy companies who have found a way to weather the CPSIA storm. Yes, both tiny Mattel and minuscule Hasbro were able to eek out a nice profit jump this quarter. Mattel reported earnings of $24.8 million in the first quarter, instead of a $51 million loss last year, and Hasbro had to make due with earnings of $58.9 million this quarter, up over winnings of $19.7 million in the same quarter last year.

The CPSIA is obviously crushing these companies. They are so brave!

Don't worry though - Waxman has a few morsels for us small fry, too. To ease the burden on us, his new amendment authorizes the CPSC to make special testing rules for us, provided (it's complicated) our revenue is under $500,000 per year. Oh goodie! Unfortunately, if we happen to be bigger than that, we face the exact same rules as Mattel (revenue of $880.1 million in the last QUARTER) and Hasbro (sales of $672.4 million in the last quarter).

That seems fair to me. Really fair . . . .

CPSIA - Broken Record . . . Does Anyone Care Anymore?

Misallocated safety resources - I have made the point again and again, that the misconceived CPSIA diverts limited resources away from real safety issues and lards them on bureaucratic exercises unlikely to produce safety results. [A pile of safety reports up to the sky does not constitute "results", btw.] This misallocation is not restricted to private companies - it also adversely impacts the CPSC. As they say, there are only so many hours in the day, even with an annual budget of $118 million.

The back-up in work at the CPSC is part of the untold story of the CPSIA. Certainly the zealots do not want to expose the damage done by their favorite law to this proud agency. The fantasy goes like this: if the CPSC isn't acting, there isn't anything to act on. Ergo if recalls go down, we must be safer - because the all-knowing CPSC is everywhere, instantly processing data, and recalling everything that is "bad". If you believe that fairy tale, I have a bridge to sell you, or perhaps some lovely swamp land. This fantasy was on display in the recent hearing on the public database in which absurd promises were made about timely agency review of database postings. The agency's inability to keep up with the data flow, probably from day one, will turn the database into a national commercial slander bulletin board. Among other things, this is because there aren't and will never be enough hands on deck to manage the work flow with good quality control and concern for truth.

Some recent evidence of misallocated resources was provided by the General Accounting Office in their April 2010 report to Congressional Committees entitled "ALL-TERRAIN VEHICLES: How They Are Used, Crashes, and Sales of Adult-Sized Vehicles for Children’s Use". Remember, it is almost inevitable that misallocated safety resources will lead to disaster, just as driving while taking your eyes off the road invites tragedy. Tragedy . . . you heard it here first.

The GAO report notes:

"[ATV industry] officials said they are taking actions to prevent the sale of adult-sized ATVs for use by children and Commission staff said they have taken steps to ensure compliance . . . . Since 1998, Commission staff have conducted undercover inspections of ATV dealers, by posing as buyers, to check compliance with the age recommendations. Nevertheless, compliance rates of the ATV dealers that Commission staff checked decreased from 85 percent in 1999 to 63 percent in 2007 . . . . A Commission compliance official said no undercover inspections of dealers had been conducted since early 2008 because Commission staff were focused on preparing to implement the Consumer Product Safety Improvement Act, but that inspections will be resumed in the future. . . .

Because Commission staff had not conducted any undercover inspections of dealers since 2008 and because the number of new entrants in the marketplace that had not been checked (as of February 2010, 37 companies had ATV action plans authorizing them to sell ATVs in the United States, compared with 8 companies in 2008), we conducted undercover operations of selected dealers to check whether dealers were willing to sell adult-sized ATVs for use by children under the age of 16. . . . The dealers who were willing to sell adult-sized ATVs for use by children included retailers that sold ATVs made by the traditional manufacturers and new market entrants as well as those that sold a single brand and a variety of brands. In some cases, sales staff subtly and in other cases blatantly admitted that they should not be selling adult-sized ATVs for use by a 13-year-old, but would do so anyway. In addition, one dealer we visited was selling ATVs manufactured by a company without an ATV action plan." [Emphasis added]

I quote from this report not to indict ATV'rs. Some bad apples will be in every barrel, so almost any market sweep will turn up something. In this case, however, the GAO confirms that the CPSC has been in a two year nap induced by the CPSIA. And the nap isn't over, either.

This problem explains why, in a recent conversation, a CPSC staffer referred to the agency as the Children's Product Safety Commission (that's not its name!). Something has been diverted or polluted in its mission by the CPSIA.

I feel we are sliding down this slippery slope to the doom of the critical market for children's products. After two years of whining, I must sound like a broken record. That said, the CPSIA implementing rules aren't survivable and with full implementation now just months away, there's almost no time left to do anything about it. I have not yet explained in this space the so-called 15 Month Rule to be discussed this week in Thursday morning's Commission meeting. When the time comes, you will get a strong sense of what a railroad job this entire process has been. The priority has been irretrievably shifted to paper pushing. The strictures imposed by the testing zealots will snuff out many businesses - or send us all underground.

Consumers will suffer and so will your business. We will see more collapses and will see markets go under-served. You were warned.

CPSIA - CPSIA Casualty of the Week for April 9

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.

CPSIA Casualty of the Week for April 9, 2010

CPSIA EXPELS EDUCATIONAL PRODUCTS FROM SCHOOL

The approximately 1,500 businesses that comprise the National School Supply and Equipment Association (NSSEA) are dedicated to providing educational supplies, equipment and instructional materials to schools, parents, and teachers. This small industry serves a vitally important market – American schools – providing specialized products that form the backbone of the American educational system. Without the support of this small business-dominated industry, the needs of many American children would be left unmet, including children with disabilities and special learning needs.

The Consumer Product Safety Improvement Act (CPSIA) has had a negative effect on nearly every NSSEA member company, says a recent NSSEA survey of manufacturers/suppliers and dealers.

According to the findings, 64% of surveyed NSSEA suppliers, and almost half of the dealers (46%), have been negatively affected by CPSIA regulations. About 47% of dealers surveyed have removed items from inventory, and 40% of manufacturers have either removed items or discontinued production. Almost 80% have incurred additional testing costs. Unfortunately, all this expense and disruption has served no purpose - the CPSIA has imposed economic turmoil on an industry that has a great safety record. Recalled educational products have been responsible for a total of three reported injuries in the last ten years, one from an overheating battery compartment and two relating to a defective hinge on a changing table.

A NSSEA manufacturer wrote, "We have been forced to discontinue safe products because the testing costs have not justified keeping them in the line. This has had a very negative impact on our bottom line by destroying very good and safe product. Teachers who have been using these products for decades will not have access to them anymore. Going forward, we will not be able to develop niche products that are specific to education because the testing costs will not justify anything with low sales."

"From delayed orders to confusion regarding the requirements, members have been left with eroding margin, increased labeling and testing expenses, and a decrease of education products available to the marketplace," wrote NSSEA Vice President Adrienne Dayton in a recent association newsletter.

CPSIA - CPSIA Casualty of the Week for January 25

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.

CPSIA Casualty of the Week for January 25, 2010

CPSIA Means No Bling for Baby

When Elementary School teacher Marcy Cohen had her first baby girl, she and her sister Lori Rockoff, a social worker, started making tiny accessories for the newest addition to the family. With only a few strands of hair to adorn, the sister team developed "no slip" clips and bows. Soon, their sparkling rhinestone creations were catching the eye of friends and strangers, prompting them to launch Pea Soup Accessories for Kids, which quickly became a leading manufacturer of hand-made children's products. Their trendy product line includes a wide variety of accessories from embellished headbands to ornate socks.

Yet, while the sisters behind Pea Soup were busy supplying hundreds of high-end boutiques, Congress was working on the Consumer Product Safety Improvement Act (CPSIA) to devise new testing standards of the metal and crystal embellishments that give Pea Soup accessories their unique flair. While none of Pea Soup's products ever had any safety or lead problems, the confusing nature of the CPSIA forced the sisters to make substantial changes to much of their line.

"We did not want to take any chances with violating the new law," says Marcy. "In order to avoid any risks, we scrapped many of the products in our line and had to manufacture new ones with different and compliant materials."

As a result of the law and the cost of the required testing, Pea Soup was forced to significantly change their product line, eliminating much of the creative embellishments that made their accessories distinctive and leaving them with thousands of dollars worth of perfectly safe (and adorable) unsalable inventory.

For more information about Pea Soup visit, http://www.peasoupaccessories.com/about_us/

For additional information on the Alliance for Children's Product Safety and CPSIA, and to view previous "Casualties of the Week, visit http://www.AmendTheCPSIA.com/

CPSIA - CPSIA Casualty of the Week January 7

The Alliance for Children's Product Safety's "CPSIA Casualty of the Week" highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.

CPSIA Casualty of the Week for January 11, 2010

NEW SAFETY LAW CLEANING OUT "THE KIDS CLOSET"

Kitty Boyce worked for 18 years to build her resale shop, The Kids Closet, located in Rochester, IL, into a well-known resale shop. With its colorful signage, brightly decorated interior and whimsical whale logo, The Kids Closet built its reputation on offering customers quality second-hand children's products at great values.

Shortly after being voted the "Number One Place to Shop Resale" by the Illinois Times, Kitty announced that because of CPSIA she was converting her store to sell predominately teen and adult clothing, home accessories and furniture, and changing its name to Remarkable Resale. The loss of revenue in her shop due to the changes in inventory forced her to lay off several employees.

"CPSIA has been devastating for us," said Kitty. "We just decided to get rid of all the toys and furniture. It's just not worth the risk."

While the Consumer Product Safety Commission has temporarily stayed requirements for testing and certifying products, all resale shops still must comply with the new lead and phthalate standards. Realistically, resale shops cannot be 100 percent certain that the used items meet the new requirements.

Due to the over-reaching law, Kitty Boyce's dedicated attempts to provide children and families with reasonably priced, gently used baby equipment, furniture and toys have been shut down. For Kitty and others, the risk of enforcement action by state attorneys general or private groups is too great. The result is that during one of the worst economies in decades, resale shops around the country are avoiding selling winter clothing for kids and other children's products.

This winter, ask Congress how denying a perfectly safe used winter coat to a child whose parents can't afford to buy a new one is protecting that child's health.

For more information about Kitty Boyce, visit http://www.thekidscloset.net/closet.htm

For additional information on the Alliance for Children's Product Safety and CPSIA, and to view previous "Casualties of the Week, visit http://www.AmendTheCPSIA.com/.

CPSIA - Recommended Non-Legislative Changes

As promised, I wanted to provide my list of non-legislative changes to accompany my list of CPSIA changes. I have repeatedly called for effective process and resource allocation to bring about results. I do not share the view that draconian penalties and super-low standards are the answer - something else, something more "human" is needed to get better outcomes. So I conclude that changes to the law alone won't work. The agency needs to rethink its priorities and its way of interacting with the market to reduce injuries in the long term.

As a preface, it's important to note the following:

a. My suggestions for legislative and non-legislative changes will have NO material negative impact on safety. It is my fervent hope and intention that these changes will improve results for the agency.

b. It is critical that the agency be well-functioning after amendment of the law. In my legislative changes, I have placed a priority on cleaning up purposeless complexity and tasks that are not critical to the mission of supervising safety. It is essential the CPSC have a set of ordered priorities – because if everything is important, nothing is important. In my non-legislative changes, I propose prioritized resource allocations to improve focus on real drivers of behavior.

c. I believe the agency must reestablish a basic sense of what is safe and what is not safe. Judging from recent decisions of the Commission and recent recalls, I think the line between “safe” and “unsafe” has become blurred. Being careful about safety does NOT imply a fear of “everything”. I have tailored my legislative recommendations to focus in on REAL safety risks – only. In my non-legislative recommendations, I have focused on resource allocation, outreach/education and better communication with the regulated community, striving for constructive dialogue rather than behind-the-curve reactivity.

My list of non-legislative changes:

• Liaison office to manage Q&A with regulated companies. “No name” inquiries should be permitted. This office should be staffed adequately to ensure timely replies.
• Amnesty program – if a regulated entity turns itself in before it is notified that it is being investigated, the regulated party may NOT be penalized.
• Industry Outreach/Education – as a TOP priority, the CPSC must create an educational outreach program to sensitize industry to safety issues and to educate regulated companies on their legal obligations and on good safety practices. This office should operate independently of enforcement staff or activities. On-site training should be offered for free.
• The CPSC website should be reworked to meet best standards for access to information. The current website is quirky and difficult to navigate.
• The agency should reexamine its allocation of resources according to severity of threat, and then reorganize its assets in line with threat priorities. Threat level teams should be separately staffed and tasked, with timeliness of processing a top priority. If resources are allocated properly, the concept of a “queue” can be abandoned in favor of objective expectations on how threats are processed by the agency. The teams should be resourced independently, as though they were separate agencies (e.g., the "high threat" team would have different lab resources than the "medium threat" team).
• Industry self-regulation should again become the principal strategy of the agency to manage markets.

I recommend that all of my legislative and non-legislative changes be implemented to reduce the administrative burden of regulating the affected markets and to improve the effectiveness of the agency's activities. The overly broad and unrealistic demands of the CPSIA made inevitable the observed diminishing impact of the CPSC. By eliminating many unnecessary standards, bureaucracy and supervisory activities (totally eliminating vast amount of work for both agency and regulated community), focus may be restored to the task of keeping kids safe. This will result in GREATER safety, certainly not increased injuries.

The task of properly allocating resources within the agency to bring about good results in the marketplace is far more important than having draconian rules on the books. With the scheme I recommend above, the CPSC would be in the optimal position to focus on real threats and to buttress safety against evolving threats. A revitalized agency focusing on high impact activities and structured to respond quickly and insightfully against emerging threats will make the CPSC a model agency within the Federal government.

It can be done . . . with some courage, some vision and a sense of conviction. The time is NOW.

CPSIA - The Eyes Glaze Over . . . .

Sometimes I wonder if they have completely lost it at the CPSC. This evening we received the CPSC Federal Register notice on the Stay decision (actually entitled "Consumer Product Safety Act: Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements"). I seriously wonder if anyone read it over in Bethesda. I have NEVER seen anything this dense and unintelligible come out of that office.

As the Commission tucks itself into bed before an exciting day tomorrow in which it can either decently provide enough time for an orderly implementation of this mess of a law or send small businesses down the river, I hope somebody is thinking about the complexity of what they have wrought. Of course, rules always seem more complex when they apply to you than when they apply to someone else. Still, perhaps a quick scan of this document might enlighten the Democrat Commissioners who seem particularly dense on the subject of why businesses want more clarity before the rules go "hard".

I uncovered this while on a mission from a reader of this space. I had been alerted to the possibility that this document said that the lead content stay was LIFTED. This could not be true, since a ballot vote is definitely docketed for tomorrow on this subject. Even at a Waxman-dominated CPSC, it would be rather ballsy to issue a notice announcing a decision before the vote was tallied. With three Democrats "highly sympathetic" and "seriously considering" the opposing views but by all appearances having irretrievably made up their minds, it is not hard to imagine that skipping a step might have a certain appeal. Why bother waiting for the Republicans to lose (again)???

Well, incredibly, my reader was RIGHT - the document states that the date for the lead content rules to become effective is August 10, 2010, a "date certain":

"With regard to lead content, the Commission has determined that testing of children's products for lead content by a third party conformity assessment body and certification based upon that testing should begin on products manufactured after August 10, 2010 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term 'children's product.' An interpretative rule on the meaning of the term 'children's product' would provide firms with additional guidance on when testing for lead content will be required by the Commission."

Apparently, no one updated this FR notice for this morning's motion to docket this decision for ballot vote tomorrow. Oops!

Remember the part in the hearing today where they discussed market disruptions and the need for businesses to have time to absorb and adjust to the new rules? Does anyone wonder why we have confusion in the market after you read this document? Please be honest. Myself, I experience shortness of breath when I read dense prose like this. I think the works of David Hume seem more accessible than this kind of thing - so why does the Commission delude itself that anyone undersands the mountains of rules and rulings it spews out? Market confusion is all but certain when implementation is handled this insensitively.

One reason is that some Commissioners hear what they want to hear, and ignore the rest. This is called "selective hearing"; I know all about this topic, as there is at least one person who lives in my house who has been regularly accused of this malady. [No names, please.] For instance, yours truly pointed out serious errors in the presentations by CPSC professional staff during last week's workshop as well as in the preceding December 2 hearing to a Commission staffer. I don't blame the CPSC staff nor do I consider these errors to mean much . . . other than the fact that the CPSC staff is supposed to know these rules better than anyone else, and if they make errors (understandable), what do they honestly expect of the regulated community??? If we make these errors, we get whacked with high fines or possibly, if the CPSC is riled up enough, go to the pokey. Isn't the occurrence of serious errors by CPSC staff an indication of over-complexity? This was all known to the Commission before today's hearing. Get this - the Emperor has no clothes.

Still not convinced? Try this passage on for size, and then TRY to imagine running a normal business catering to children and in your spare time attempting to comply with this law. Imagine trying to master this law as implemented by the CPSC, given that you are not a lawyer, can't afford a lawyer or a legal department, and don't have a few unoccupied months to study the mountains of paper the CPSC emits. It's something you have to do in between everything else you do in your job. And the CPSC says:

"In the months after the Commission issued the stay of enforcement, the regulatory environment has changed significantly [No problemo!], and both the CPSC and interested parties have increased their understanding of the CPSIA and its requirements. [Yes, bring it, baby!] For example, between February 9, 2009 and the date of publication of this notice, the Commission issued more than 20 FEDERAL REGISTER notices, statements of policy, guidance documents, proposed rules, interim final rules, and final rules pertaining to the CPSIA, and most of these documents pertained to testing and certification issues. [This is not a joke. I didn't write this part, either.] These FEDERAL REGISTER documents include:

• "Third Party Testing for Certain Children's Products; Notice of Requirements for the Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with the Limits on Total Lead in Children's Products," 74 FR 55820 (October 29, 2009);
• "Notice of Availability of a Statement of Policy: Testing and Certification of Lead Content in Children's Products," 74 FR 55820 (October 29, 2009);
• Proposed Rule on "Safety Standard for Infant Walkers," 74 FR 45704 (September 3, 2009);
• Proposed Rule on "Safety Standard for Bath Seats," 74 FR 45719 (September 3, 2009);
• "Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with Parts 1203,1510,1512, and/or 1513 and Section 1500.86(a)(7) and/or (a)(8) of Title 16, Code of Federal Regulations," 74 FR 45428 (September 2,2009);
• Final Rule on "Children's Products Containing Lead; Determinations Regarding Lead Content Limits on Certain Materials or Products," 74 FR 43031 (Aug. 26, 2009);
• "Notice of Availability of a Statement of Policy: Testing of Component Parts With Respect to Section 108 of the Consumer Product Safety Improvement Act," 74 FR 41400 (August 17,2009);
• Final Rule on "Children's Products Containing Lead; Interpretative Rule on Inaccessible Component Parts," 74 FR 39535 (August 7, 2009);
• Proposed Rule on Requirements for Consumer Registration of Durable Infant or Toddler Products, 74 FR 30983 (June 29, 2009);
• Final Rule on "Children's Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination of Exclusion," 74 FR 10475 (Mar. 11,2009);
• Notice of Availability of Draft Guidance Regarding Which Children's Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information, 74 FR 8058 (Feb. 23, 2009); and
• Interim Final Rule on "Children's Products Containing Lead; Exemptions for Certain Electronic Devices; Interim Final Rule," 74 FR 6990 (Feb. 12, 2009).

Additionally, the Commission has met with numerous parties to discuss various aspects of the CPSIA or educate interested parties about the CPSIA's requirements, and, on December 10, and 11, 2009, it held a two-day workshop to discuss issues relating to the testing, certification, and labeling of certain consumer products pursuant to section 14 of the CPSA (see 74 FR 58611 (November 13, 2009). [You know, the one last Thursday and Friday with simultaneous panels going on all day on both days. There has been no time to review or consider the data gathered at the workshop, or the written comments which will continue to come in for the next 25 days.] Given the issuance of many rules and other FEDERAL REGISTER documents, statements of policy, and guidance documents [OMG, there were other documents besides these?!], as well as increased understanding of the CPSIA's requirements, the Commission believes it is appropriate to phase in the testing and certification requirements as described in more detail below." [This passage is followed by pages of details of stays lifted, extended, partially extended, whathaveyou. It also includes the errant language on the lead content stay.]

I find myself scratching my head in wonder. What is going on here? Is this being staged for effect, or are they SERIOUSLY trying to regulate this way? Is ANYONE accountable over at the CPSC? Can they get away with anything and everything?

It is sickening that a discussion is even necessary for the extension of the stay on lead content. The Commission should hang its head in shame for foisting this mess off on an innocent manufacturing community. What on earth did we do to deserve this treatment? I am tired of this Commission bowing down to Henry Waxman and a howling pack of fear mongering consumer groups. Those people have never worked for actual operating companies and know nothing about the realities of the marketplace or manufacturing itself. It's time to stop sticking it to the manufacturing community.

The WSJ noted tonight that Congress and Mr. Obama have hit new lows in popularity. I particularly found interesting that 81% of the participants in the new poll considered this "a period of division where the parties held fast to their positions and showed little willingness to compromise" in Congress. Do we really want this export at the CPSC? As a member of the regulated community, I vote no!

Tomorrow's vote is going to tell us all a lot about this Commission and its leadership. Watch this space for news.

CPSIA - An Open Letter on the Testing Stay

To all of my loyal readers:

You may not realize it, but we face a serious crisis right now. Last week, the CPSC held a hearing that discussed the possible extension of the testing and certification stay. The Commission is under pressure to ramp up implementation of the awful CPSIA and this therefore puts the testing stay in peril. Chairman Tenenbaum has heard the concerns of regulated businesses that some advance warning is needed, so Rumorville in forecasting a quick consideration of the question - possibly as early as next week. Commissioner Nancy Nord commented on the implications of the stay in her blog last week. At least one Commissioner, Bob Adler, is openly hostile to continuation of the stay. This is a big deal to companies regulated by the CPSIA.

What kind of disaster would the termination of the Stay in February mean to you? Let me count the problems:

• The "15 Month Rule" was never issued when due on November 14th. The "15 Month Rule" was supposed to address testing frequency, sampling regimes, the need for additional testing, component testing rules, etc. [Component testing rules were cited as critical by Nancy Nord when the original stay was issued on January 30, 2009. How time flies . . . .] There is a workshop to be held on Thursday and Friday this week to solicit feedback from stakeholders. More than 200 people will attend and many more will watch and participate online in the web simulcast. Presumably this feedback needs to be fully digested before the Commission acts on the stay.
• Comments on the "15 Month Rule" issues are due on January 11. For perspective, the original comments on the penalty factors were due in late December 2008, and a second round of comments were due on October 1. The revised penalty factors have not been released, and we are now within days of a full year since the first comment letters were received. With this as precedent, we are clearly MANY months from a completed "15 Month Rule". Arguably, without a fully articulated "15 Month Rule", an active testing requirement will be incomplete and utterly confusing.
• The CPSC has not issued its phthalate testing standard.
• The CPSC has not certified ONE phthalates lab yet.
• The CPSC admits that it has not certified enough labs to handle a full burden of testing for many product classes or safety tests. They have not provided any quantification of this deficit besides acknowledging that for bikes, based on current accredited labs, it would take a full year to complete testing on all bikes on the U.S. market. That's one round of testing only, btw.
• The CPSC has not certified labs for ASTM F963 testing yet.
• The CPSC has not defined "children's product", "toy", "play" or "childcare article" yet, making the application of the rules completely opaque.
• The CPSC has not leveled the playing field, acknowledging that fixed test costs place a disproportionately high burden on small businesses. This competitive disadvantage has no ready solution under current rules.
• The CPSC has acknowledged that many companies have not acted to fill market gaps like component testing because the rules are not final (or even drafted in this case).
• The CPSC is on its third enforcement policy on lead and lead-in-paint. With the enforcement-policy-of-the-week, the agency ensures that companies will have devote considerable resources to relearning the rules that they had previously mastered, leading to confusion and exhaustion. Imposing a further layer of incomplete, vague and unarticulated testing policies and plans will only reinforce chaos as the working standard for the children's product industry.
• The rules that the CPSC has implemented are so ornate, confusingly worded, scattered among multiple documents, letters, and even video testimony, that only the most obsessive observers can claim an accurate understanding of every nuance. This group would not even include me, even though I have given up sleeping in favor of the CPSIA.

The Commission's sense of urgency to get this irritant off their plate is creating rumors that they intend to act as soon as the next business day after the workshop. As outrageous as this might seem, it's really worse - the workshop is not about the stay. The workshop is about component testing, frequency of testing, sampling schemes, when to require additional testing, etc. The CPSC has not asked for comments about the lifting of the stay but at least one Commissioner has reasoned that if it was a "big deal", the CPSC might have heard from more than the Handmade Toy Alliance. [Apparently, both Bob Adler and Jay Howell believe that the CPSC has had not heard from anyone other than the HTA on the stay, which is certainly not true.] This kind of thinking is worrisome in the extreme.

If the stay is lifted on two months notice with all these rules open, undrafted or in process, utter chaos will break out, not only between CPSC regulators and their regulated companies and industries, but also between (a) consumer groups, regulators and regulated companies, (b) State AGs and regulated companies, and (c) regulated companies and their dealers/retailers. By lifting the stay under these uncertain conditions, the Commission is risking complete market chaos. While this would rain down misery across all regulated companies and industries, there is cold comfort in knowing that the Commission would eat its own cooking, suffering a devastating drop in reputation for taking such an economically insensitive and irresponsible act. It would also create whole new class of crises for the agency to deal with, rendering the agency crippled with overwork, inefficiencies and wear-and-tear. Not exactly a magic pill for good agency morale. If the Commission chooses to take this step, it will be shooting at the agency's feet as well as ours.

We need your help to stop this terrible step. First, it is ESSENTIAL that everyone attending the workshop SCREAM BLOODY MURDER on the issue of the stay. If the stay is lifted, you will be held responsible for complying with unwritten rules by your customers, your local newspaper, your State AG and the like. Your arguments with that cast of characters will get even more intense and distracting (if that's even possible). The upcoming workshop is your unique opportunity to make your voices heard.

Second, you need to let the Commission know directly how you feel. Here are the email addresses of the five Commissioners - send them an email THIS WEEK expressing your deep concern over the possible lifting of the stay. Please feel free to cc. me at rwoldenberg@learningresources.com.

Chairman Inez Tenenbaum itenenbaum@cpsc.gov

Commissioner Bob Adler radler@cpsc.gov

Commissioner Thomas Moore tmoore@cpsc.gov

Commissioner Nancy Nord nnord@cpsc.gov

Commissioner Anne Northup anorthup@cpsc.gov

Make your voices heard - don't let this issue catch you napping. We all have the power to help ourselves. It's time to take action on behalf of your company, your customers, your suppliers, your teammates. Please help us by contributing your voice to this critical issue THIS WEEK.

CPSIA - Reaction to my Testing Guidance Comments

On November 11, I published my thoughts on the recently-announced Testing Guidance. These guidelines will be the subject of the upcoming two-day workshop at the CPSC on Dec. 10/11.

In my blogpost, I noted that children's products with paint require independent testing while painted non-children's products used in the home and around children only require a GCC, no testing. That makes NO sense to me, as explained in my blogpost.

I received a series of emails from a regular reader of this space, someone with a great deal of expertise in the CPSC and its practices. Let's just say, this person knows quite a bit more than me. Here's what my reader said in reply to this essay:

"I think the implication that children's products needed some special class of testing by someone other than the manufacturer was highly questionable to begin with. (Put another way, why should we distrust children's product manufacturers? Or in the alternative, is the risk from such products really so much higher that special safeguards were necessary? In truth, most of the serious injuries and deaths that led to recalls were because of defects and not because of non-compliance with rules that you could test for.)

. . . .

Unfortunately, there seems to be a national trend--including other agencies and state and local governments--of legislating requirements based on junk science disseminated by interest groups. This leads not only to incredible costs, or loss of product for consumers, but diverts the attention and resources of the agencies from their core mission of reducing deaths, injury, and illness. That is the ultimate irony here: that in promoting safety some of these presumably well intentioned people are in fact likely decreasing the public safety."

Score one for people that actually know what they're talking about! Couldn't say it better myself (although I have been trying for about a year).

CPSIA - Washington Times Clubs the CPSIA and Congress Over Brass Decision

Brass attacks
Consumer 'safety' law strikes bad notes

Seventy-six trombones left the big charade. A thousand and 10 store debts are close at hand. There are zippers, keys - so many amenities - all outlawed because Congress is blind. With apologies to Meredith Willson's 1957 Broadway show "The Music Man," such could be the latest fallout from the draconian Consumer Product Safety Improvement Act.

Congress passed the misnamed CPSIA in 2008 to protect consumers, especially children, from all manner of supposed dangers in ordinary products. The CPSIA's most stringently targeted danger is lead, which clearly can be a health hazard. The problem is that the CPSIA leaves all reason behind, setting allowable lead limits so low, with so little room for common-sense exceptions, that it effectively bans huge numbers of harmless products used in everyday life.

A veritable smorgasbord of business groups and grass-roots activists have arisen to fight the CPSIA - among them an outfit called the Alliance for Children's Product Safety. Its Web site, Amend the CPSIA, used the "76 Trombones" motif to complain about the Consumer Product Safety Commission's latest ruling concerning the CPSIA, which effectively outlaws all brass used in children's products. (One component of brass is lead.) By a 3-2 vote on Nov. 4, the commission decided that Congress had left no leeway for common-sense exceptions to the brass ban.

Result? To quote at some length from the alliance's Web site, "In addition to brass zippers, grommets and other apparel and footwear components, victims of this decision include brass instruments, musical bells and certain strings used in a string instrument. By in effect outlawing brass in children's products as defined by CPSIA, ... the CPSC's actions call into question the future of school bands. Will young musicians in their school band's brass section now have to hum along with their peers, or switch to the recorder or a (plastic) kazoo?

"The fact is that brass is routinely used in countless products used and touched by children daily, including door knobs, locker handles, and much, much more. There is no danger of lead poisoning from brass. CPSC staff wrote that they consider brass bushings safe. ... However, staff believed that CPSIA offers no flexibility to the CPSC to assess risk."

Commissioners Nancy Nord (former chairman of the commission) and Anne Northup (former congressman from Kentucky) dissented from the hard-line anti-brass vote. Wrote Ms. Nord: "This does not advance consumer safety, diverts staff resources from real safety issues, and puts an unnecessary burden on manufacturers and sellers of children's products." Ms. Northup chimed in that "unless [Congress] act* soon, more small businesses will be forced to shut down."

Ms. Northup is right to put the onus on Congress, which passed a truly counterproductive law. For well over a year now, Congress has been flooded with specific and reasonable complaints about multiple aspects of the CPSIA. These consequences include the destruction of children's books published before 1985, the silencing of charitable auctions and the shuttering of thrift shops nationwide.

Yet the congressional leadership has turned a blind eye to all the evidence that its handiwork is awful. Neither congressional committee with jurisdiction over the law has held a single hearing featuring a single critic of the CPSIA.

With more than 10 percent of the American work force officially unemployed, Congress should be jumping through brass hoops to fix any laws, such as CPSIA, that hobble the economy. But when it comes to putting practicality over rigid ideology, it seems Congress' top brass can't be bothered.