The new Waxman Amendment provides an arcane and inadequate resolution of the longstanding complaints about the treatment of resale shops and resale goods under the CPSIA. The amendment adds a new provision, Section 101(b)(3), to address the resale issues.
This short provision has a lot going on:
a. It only applies to lead restrictions. The exceptions for resale goods do NOT apply to the phthalates ban. This means that used toys are unlikely to reappear in resale shops. It also means that anything possibly affected by the phthalates ban, including certain clothing and childcare articles, will be dangerous to sell in resale shops.
The legal niceties are of little import here - these low revenue stores won't go near trouble. Will they know what's okay to sell and what's not? Probably not. Of course, the CPSC could always put out a new guidance brochure for them - something to look forward to!
Arguably, the inability of the Dems to give a clean waiver to the resale industry means that the resale exemption grants little relief in practical effect. That's my belief, at least. If resale shops do not feel comfortable that the responsible administration of their businesses will keep them out of harm's way (including being free of the possibility of bad publicity), they are likely to stay out of the market for children's goods entirely. Resale stores don't have legal departments . . . . [Who knew?!]
b. The definition of a "used children's product" is quite interesting:
"The term ‘used children’s product’ means a children’s product that was obtained by the seller for use and not for the purpose of resale or was obtained by the seller from a person who obtained such children’s product for use and not for the purpose of resale."
This obtuse language is intended to forbid the bulk resale of merchandise by inventory liquidators while permitting charity or consignment sales of children's product. "For profit" resale shops will also be snagged on this language.
The origins of this language is presumably Commissioner Bob Adler's odd Solomonic recommendation that charity shops be allowed to sell used clothing but not "for profit" resale shops.
The new definition is confusing because of the peculiar word "obtain". There is no question that under this provision, you cannot "obtain" children's products for the purpose of resale. Does this restriction apply to donated goods? Probably not because the legislators presumably believe you don't "obtain" a donation for a particular purpose. Of course, that's a fiction - do you think the Salvation Army accepts donations of children's products with no purpose in mind? Could this language be a backhanded way to approve the distribution of donated goods for free but not for a nominal price? Possibly.
Would this limitation apply to consignment sellers who never take title - do they actually "obtain" the goods? Consignment sales may be okay but no doubt some factual inquiry will be required, a nice case-by-case analytical process to keep the CPSC busy! Ebay resellers and "for profit" resale shops are almost certainly not given relief by this language. The Resale Roundup is not in danger . . . .
The asserted distinction between a reseller of donated goods (a so-called charity shop), a consignment store and a "for profit" resale shop is flimsy and patronizing, in my view, reflecting a patrician view of society and the needs of the "lower class". As I have explained in the past, the issue should be about safety, not compassion for the impoverished. Is it morally permissible to give dangerous products to children because they are poor? Please, don't insult my intelligence. If the goods are safe, sell them - and if they're not, throw them away. It has nothing to do with "needy" kids. This is yet another case of Dem legislators being unwilling to take a reasonable stand on what is and what is NOT safe. They are apparently willing to sacrifice the resale industry to their lack of courage.
c. As if the foregoing didn't prove that the bill's authors live in La La Land, the definition of "used children's product" has several exceptions, namely children's metal jewelry, painted children's toys, children's products comprised "primarily" of vinyl and any other children's product later identified for this list by the Commission. I guess the charity shops are supposed to keep their eyes peeled.
So apparently the idea is that resale shops can get back into the children's product business except . . . except . . . except . . . . The simple relief these shops need has been denied in favor of new uber complexity. To the intended beneficiaries of this "relief", complexity alone will make the law unintelligible or at least unmanageable. Despite the "good intentions", the effect of the relief will be moot - in other words, nada.
You should be OUTRAGED about this situation. The very FACT that this Dem-controlled Congress has been sucking its thumb over this issue for TWO YEARS, through two cold and snowy winters, is a national embarrassment. Frankly, it more shameful than that. When the Dems finally worked themselves into action, this is the best they could do?
The persistent inability of the Dem Congress to act sensibly on this issue is both demoralizing and illuminating. This situation is the Dems' handiwork and yet, the disruption of this market affects the neediest Americans, and among them, the youngest and most vulnerable. Quite a departure from Democratic Party traditions. Not only is access to kids' warm winter clothing impacted, but so many other important products are embargoed, from baby items to educational products to whathaveyou. And even though the needed goods are plentiful, the CPSIA made it prohibitive to offer them for sale at a low price. Too bad, Poor People!
The poor don't deserve to live in the anti-economy just because the Dems have a phobia. The fact that the Dems can't apparently empathize with people who really need their support is so shocking.
I hope you won't support this bill regardless of its impact on you unless it gives real relief to those in need. If we are really a community, we must DEMAND true relief for the resale market. It's time to take a stand against a stubborn, morally-numb, self-justifying Dem Congress.
Sunday, March 14, 2010
CPSIA - Treatment of Section 101(b)(2) in the New Waxman Amendment
i have attached a conformed version of Section 101(b) reflecting the new Waxman amendment's proposed changes for your reference.
The dilemma posed by the current Section 101(b)(2) is that exclusions to the lead standard are basically impossible to obtain. There have been several rejected exemption requests and much pleading by Nancy Nord and Anne Northup for changes providing flexibility.
Last December, Mr. Waxman (supposedly with input from Chairman Tenenbaum) launched a sneak effort to implement something called the "functional purpose" exemption to "solve" these issues. The original construct of this exemption applied to situations where the manufacturer could demonstrate that the lead served a "functional" purpose and could not be removed without consequences (not including economic loss). This provision would have permitted ATV manufacturers to assert the need to put lead in certain parts to strengthen the steel, for instance. The functional purpose concept derives from a similar procedure under the EU's ROHS-WEEE and is also present in the treatment of electronics under the CPSIA.
Waxman's functional purpose language generated howls of protest as the "solution" solved nothing for anyone. Later, the Commission could not agree on a functional purpose recommendation for its January 15h report, and the idea "died".
In the new Waxman Amendment which emerged last week, a new version of the functional purpose exemption was introduced to modify Section 101(b)(2). You may find the conformed version of Section 101(b)(2) helpful in understanding how the new provision works.
My thoughts on the new language:
a. The limitations of the exemption process in Section 101(b)(1) are UNCHANGED. In other words, the problematic "any" language is still effective. The new functional purpose exception will be an exception to the exception. Get it?
b. The Section 101(b) structure which limits exceptions to specific products, materials (or component part, in the case of the functional purpose section) remains in place. The language does NOT permit exceptions by product class. You must apply product by product, material by material. The rule even specifies that each component must be individually considered. How many parts are in an ATV . . . .
c. The Commission is now allowed to act "on its own initiative" to exempt "a specific product, material, or component part". A petitioner may also seek the same relief.
It is hard to imagine how this would take place - will a Commission of five people pick lucky companies or industries for random acts of kindness? Of course, the first products likely to be accorded this "on its own initiative" treatment would be books, ATVs and bikes because of political pressure. [Let's not call that "influence peddling".] More complex product categories, like school supplies (my industry), would be stuck without an effective means to seek exemption.
d. The process, regardless of who initiates it, will be subject to a notice and comment period. This is new and presumably is designed to enable consumer groups to "participate in" (read, slow down or obstruct) the exception process. You have to hand it to the authors of this provision - they found a way to make a slow, expensive and tedious process even worse.
e. The standard for obtaining a functional purpose exception has several parts (all of which must be satisfied) -
"(i) the product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, component part, or material in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible."
The dilemma posed by the current Section 101(b)(2) is that exclusions to the lead standard are basically impossible to obtain. There have been several rejected exemption requests and much pleading by Nancy Nord and Anne Northup for changes providing flexibility.
Last December, Mr. Waxman (supposedly with input from Chairman Tenenbaum) launched a sneak effort to implement something called the "functional purpose" exemption to "solve" these issues. The original construct of this exemption applied to situations where the manufacturer could demonstrate that the lead served a "functional" purpose and could not be removed without consequences (not including economic loss). This provision would have permitted ATV manufacturers to assert the need to put lead in certain parts to strengthen the steel, for instance. The functional purpose concept derives from a similar procedure under the EU's ROHS-WEEE and is also present in the treatment of electronics under the CPSIA.
Waxman's functional purpose language generated howls of protest as the "solution" solved nothing for anyone. Later, the Commission could not agree on a functional purpose recommendation for its January 15h report, and the idea "died".
In the new Waxman Amendment which emerged last week, a new version of the functional purpose exemption was introduced to modify Section 101(b)(2). You may find the conformed version of Section 101(b)(2) helpful in understanding how the new provision works.
My thoughts on the new language:
a. The limitations of the exemption process in Section 101(b)(1) are UNCHANGED. In other words, the problematic "any" language is still effective. The new functional purpose exception will be an exception to the exception. Get it?
b. The Section 101(b) structure which limits exceptions to specific products, materials (or component part, in the case of the functional purpose section) remains in place. The language does NOT permit exceptions by product class. You must apply product by product, material by material. The rule even specifies that each component must be individually considered. How many parts are in an ATV . . . .
c. The Commission is now allowed to act "on its own initiative" to exempt "a specific product, material, or component part". A petitioner may also seek the same relief.
It is hard to imagine how this would take place - will a Commission of five people pick lucky companies or industries for random acts of kindness? Of course, the first products likely to be accorded this "on its own initiative" treatment would be books, ATVs and bikes because of political pressure. [Let's not call that "influence peddling".] More complex product categories, like school supplies (my industry), would be stuck without an effective means to seek exemption.
d. The process, regardless of who initiates it, will be subject to a notice and comment period. This is new and presumably is designed to enable consumer groups to "participate in" (read, slow down or obstruct) the exception process. You have to hand it to the authors of this provision - they found a way to make a slow, expensive and tedious process even worse.
e. The standard for obtaining a functional purpose exception has several parts (all of which must be satisfied) -
"(i) the product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, component part, or material in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible."
This clause has several tricky parts in it. First, the word "practicable" was supposedly chosen because of a Supreme Court decision holding that "practicable" implies consideration of economic factors. So bickering over what "practicable" means is almost certain under this provision. The legal standard will need to be developed to make this provision workable - another nice project for Cheryl Falvey and her CPSC legal department. No guidance has been provided on how much economic pain needs to be incurred before lead removal is deemed not "practicable". Consider for instance the use of recycled metal for bike frames. When is removal of lead from bike frames not "practicable"? Each frame is presumably different. Virgin metal is available without lead. You figure it out, I can't.
Let's not forget that the amendment also uses the term "technologically feasible" as defined in CPSIA Section 101(d). The CPSIA definition omits any reference to economics - intentionally. So the phrase "is not practicable or not technologically feasible" means that it is either too expensive or impossible to remove lead. This makes no sense to me, as the term "practicable" with its advertised meaning incorporates technologically feasibility and makes inclusion of the latter term duplicative. If there is a reason to use both terms, I can't figure it out. Readers?
In addition to the problematic standard of "practicable", the petitioners must also demonstrate that it is both too expensive to remove the lead to levels below the standard AND also too expensive to make the part inaccessible. Since the standard for "too expensive" (not "practicable") is not specified, this language means we must invite the CPSC, the Commission and (due to the notice and comment period) the general public and our competitors into our business processes. That rag-tag lot will get to decide whether the expense of money on the removal of lead from the subject product, material or component is "practicable". Yes, that's what it means - you must publicly expose your judgments and economic choices to the Commission for their feedback and approval. Presumably, this would require you to publicly disclose your costs to obtain the "not practicable" decision.
That really sounds like FUN! I can't see a deterrent to submitting a petition . . . can you?
"(ii) the product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and foreseeable use and abuse of such product, material, or component part by a child; and"
Two years ago, I might have thought this was reasonable language. In a world where logic prevails, this language is something that most companies could fairly easily (and probably already do) consider. However, after Ms. Tenenbaum's testimony about rhinestones on September 10, 2009 in which she speculated about the ingestion of 50 rhinestones by a child, it is hard to predict which imaginary risk the CPSC will fixate on. Recent events suggest that "foreseeable" is now in the eyes of the beholder.
"(iii) an exception for the product, component part, or material will have no measurable adverse effect on public health or safety."
This third plank in the exception standard is supposedly meant to connote that contact with a subject product which produces less than 1 micro-gram per deciliter change in blood lead levels (the smallest increment for measuring blood lead levels today) is okay. It does not say so explicitly but wink-wink-nudge-nudge, that's what it means.
Unfortunately, the precision of this "standard" promises more than it delivers. There are few identifiable lead threats in children's products that could foreseeably cause this kind of change in blood lead levels other than lead-in-paint (probably above 90 ppm, too) and lead in jewelry. So if each case must be argued and decided, isn't the standard and the process some sort of sham? I think the difficulty and expense of proving the negative in this case is a strategy by the Dems to keep their ridiculous standard in place while appearing to be magnanimous in offering an exception process. Few companies will get exceptions.
Sadly, fear does not allow for the use of science. There's a lot of hypocrisy here, too. Apparently, the risk from lead in handlebars of a bike is far more worrisome than lead in our air, water or food supply. Likewise, it must be far more serious than, say, lead-in-paint on cars and boats (both of which are perfectly legal). And for those cases which this law obsesses over, lead-in-substrate in children's products, the zealots cannot agree on how to measure what's safe - mainly because they don't know. Let's not forget that Commissioner Bob Adler wrote a lengthy paper )with 89 footnotes) on how there is NO safe level for lead. The non-scientists who now control this issue have even drafted a MOVING target for safety - it is dependent on what we can measure. If we can measure lead blood levels more precisely in the future, the exception standard will automatically tighten. Like a noose.
f. The Commission can require a warning label for those items afforded an exception under this strict standard. What? Are they going to warn us that the product is safe? No, it's Proposition 65 creeping into federal law - apparently, the Dems think that the Commission may decide to warn the public that they weren't able to rid these items of lead, even though they have determined in an investigation that the products are safe. Again, since the zealots think "there is no safe level for lead", it is very scary for them to concede that anything could be safe if it contains lead. This is a belief system, stop trying to figure it out.
Btw, have any of you ever tried selling a children's product with such a warning label? At our company, we would drop such an item rather than try to sell it. No one will buy such a product for their child or for use in their classroom. The imposition of a Prop. 65-style lead warning on a children's product is a tacit ban.
g. The petitioner has the burden of proof in applying for an exception under this provision. That means a small business has to make the same case as a Big Business. Why not simply say that small businesses can't have an exception under this provision?
The petitioner may utilize data submitted by other petitioners in making its case, but there is no requirement that such data be made publicly available. In recent cases, the submission of the petitioners has not always been made public.
h. The language allows a sunset date to be imposed for the exceptions, even though the very terms of the exception requires that the CPSC conclude that public health and safety will not be imperiled by sale of the product. I am made to understand that the motivation behind this illogical provision is that exceptions should not last forever. Why not? I think it's the belief system again, or it could be some sense of unjust enrichment. In any event, the CPSC would be empowered to force the continued gratuitous erosion of a company's cost structure for no particular reason other to remedy the offense of an exception to the rule.
i. The exception will have retroactive effect unless otherwise specified by the Commission. This sounds good . . . other than the fact that we have been shooting our businesses in the foot since August 2008. The ability to give retroactive effect to exceptions might have been valuable two years ago. To put it in an amendment now, two years too late, is an insult to the regulated community. Alternatively, it is yet more evidence of the absolute inability of Democratic legislators to even SIMULATE understanding of business issues under this law.
Next up - discussion of the Resale Shop Exception under Section 101(b)(3).
Saturday, March 13, 2010
CPSIA - The New Waxman Amendment Analyzed
On Friday, House Democrats began to circulate a discussion draft of a new amendment to the CPSIA. This draft follows the abortive effort by Chairman Henry Waxman of the House Committee on Energy and Commerce to slip a CPSIA amendment to his own liking into omnibus legislation last December. [That effort was disclosed and discussed in this space from December 11-16, 2009.] The crash-and-burn of the first Waxman amendment created a new dynamic in CPSIA negotiations as it was the first (tacit) public acknowledgement by Waxman that the law was flawed AND that the CPSC could not fix it by itself. The failure of the secret amendment effort also showed that Mr. Waxman isn't invincible. So, a step in the right direction.
Recently, in the wake of the January 15th recommendations of the CPSC Commission, the Dems reignited the simmering discussion of CPSIA changes by engaging various stakeholders on how the first Waxman amendment could be improved. This process was constrained by the Dems' insistence that comments be in the form of changes to the first Waxman amendment, thereby eliminating anything too "blue sky". Consistent with the recent (and short-lived) post-Massachusetts Dem preference for bipartisan "cooperation", the Dems actually asked House Republicans what they thought. Let's just say the Republicans see some basic flaws in the law. . . . Anyhow, the Republicans having provided their feedback, largely rebuffed, this draft emerged.
The procedural process forward is unclear. The standard (and appropriate) process would be a hearing followed by a "mark-up". The Senate also has something to say on this legislation (their position is not clear although Senate Dems more readily acknowledge the need to fix the law). It remains to be seen whether Waxman will allow a real hearing on the CPSIA to take place. Dissenting views are not well-tolerated in this era of Congress. Anyhow, the Dems are asking stakeholders to send comments by this Friday.
I intend to discuss this proposed legislation in several essays. In this essay, I would like to discuss global issues. I will return to discuss the specifics of the law, notably the treatment of Section 101(b), in later posts.
A few thoughts, generally:
a. The amendment dodges most of the serious issues in the law. My list of changes is comprehensive, and the draft legislation avoids most of it. This amendment makes no effort to respond broadly to the well-documented flaws in the law. No one can argue anymore that the CPSC can fix these problems. The legislation reads (to me) like the position of someone almost completely in denial.
Let's face FACTS - the CPSIA was passed on August 14, 2008. It is now March 14, 2010. That's a long time. The CPSC has blown countless deadlines, and has failed to resolve MANY critical issues so far, like the phthalates test standard, the 15 month rule and so on. They are working around the clock. This thing is not going to fix itself, and the agency's future is literally at stake.
The Dems refusal to face up to these issues is a betrayal of you, your customers and your marketplace.
b. You might ask - WHY are the Dems avoiding all of these serious issues? Are they deaf?
I think the answer is that they are hardly deaf but have little interest in opposing viewpoints. The CPSIA is their legacy and as such, no amendment will be blessed by them if it admits a defect in their original thinking or their asserted Perfect Legislative Process. An "acceptable" amendment must therefore pay homage to the original law and its structure. By working within the law's original structure, the Dems ensure that the basic defects will survive amendment - and the consequences to your business, your market and to the regulators themselves will remain devastating.
[The Dems' "legacy" also survives if they can delay change long enough to make it impractical or impossible to unwind all rules and regulations implementing the misguided CPSIA. After all, we business people have no choice but to upend our businesses to follow these rules, and would incur more damaging expense to change our processes a second time. There seems little doubt that the forces behind the CPSIA want the law's infrastructure to be impossible to untangle by future Congresses or CPSC Commissions.]
The Dems' homage to the original law is evident in several places. For instance, the concept of a "low volume manufacturer" is designed to provide a very (VERY) limited opportunity to craft an exception to the original testing requirements. Even so, the language clearly states that exceptions benefiting the LVMs must still "assure certification based on compliance with the relevant consumer product safety standards." [Emphasis added.] In other words, no exception will be given to the little guys from the law's basic premise that manufacturers must prove compliance before sale. [More on LVMs later.]
The proposed rules on the so-called "functional purpose" exception also kowtows to the law's concept that everyone must ask for permission to be excused from lead requirements. In other words, the Dems reject the notion that the law can be narrowed rationally and appropriately without a burdensome bureaucratic process. Even action by the agency on its own initiative will be a major ordeal. The Dems know (because they have been told) that the exception process is effectively a closed door for all but the most well-capitalized companies. You may interpret the legislative language as the Dems' response to this small business issue.
Another good example of the Dems' sticking with the original law's structure is the use of the word "practicable" in the Section 101(b) changes. This change is the doorway for the ATV'rs and book publishers to argue for exceptions to the lead-in-substrate standards. I am told that this word was chosen because of a Supreme Court decision (that I have not read) holding that "practicable" incorporates concepts of economics. Ah, I see. In other words, this language is a way to make the law look just like the original one, but still provide a faint hope for business people that they can somehow wriggle out of ridiculous lead-in-substrate restrictions. It's obscure, to say the least, but leaves the original legislative structure in place - the Dems' principal goal.
c. The new amendment ADDS more complexity to an already blindingly complex law. I have written about complexity numerous times, and recently posted a video explaining the frustrating challenge of trying to understand this law fully. Complexity in this case does not reflect the difficulty in creating a safe market for children's products. Actually, that issue is long-resolved. The complexity stems entirely from a defective legal structure and its consequences. If the Dems insist on keeping the original CPSIA structure in place, you must get used to complexity spawning more complexity in your business life. It will only get worse.
This is what Big Government looks like. Hope you like it.
d. CRITICAL ISSUES are absent and unaddressed in this legislation. Examples:
Recently, in the wake of the January 15th recommendations of the CPSC Commission, the Dems reignited the simmering discussion of CPSIA changes by engaging various stakeholders on how the first Waxman amendment could be improved. This process was constrained by the Dems' insistence that comments be in the form of changes to the first Waxman amendment, thereby eliminating anything too "blue sky". Consistent with the recent (and short-lived) post-Massachusetts Dem preference for bipartisan "cooperation", the Dems actually asked House Republicans what they thought. Let's just say the Republicans see some basic flaws in the law. . . . Anyhow, the Republicans having provided their feedback, largely rebuffed, this draft emerged.
The procedural process forward is unclear. The standard (and appropriate) process would be a hearing followed by a "mark-up". The Senate also has something to say on this legislation (their position is not clear although Senate Dems more readily acknowledge the need to fix the law). It remains to be seen whether Waxman will allow a real hearing on the CPSIA to take place. Dissenting views are not well-tolerated in this era of Congress. Anyhow, the Dems are asking stakeholders to send comments by this Friday.
I intend to discuss this proposed legislation in several essays. In this essay, I would like to discuss global issues. I will return to discuss the specifics of the law, notably the treatment of Section 101(b), in later posts.
A few thoughts, generally:
a. The amendment dodges most of the serious issues in the law. My list of changes is comprehensive, and the draft legislation avoids most of it. This amendment makes no effort to respond broadly to the well-documented flaws in the law. No one can argue anymore that the CPSC can fix these problems. The legislation reads (to me) like the position of someone almost completely in denial.
Let's face FACTS - the CPSIA was passed on August 14, 2008. It is now March 14, 2010. That's a long time. The CPSC has blown countless deadlines, and has failed to resolve MANY critical issues so far, like the phthalates test standard, the 15 month rule and so on. They are working around the clock. This thing is not going to fix itself, and the agency's future is literally at stake.
The Dems refusal to face up to these issues is a betrayal of you, your customers and your marketplace.
b. You might ask - WHY are the Dems avoiding all of these serious issues? Are they deaf?
I think the answer is that they are hardly deaf but have little interest in opposing viewpoints. The CPSIA is their legacy and as such, no amendment will be blessed by them if it admits a defect in their original thinking or their asserted Perfect Legislative Process. An "acceptable" amendment must therefore pay homage to the original law and its structure. By working within the law's original structure, the Dems ensure that the basic defects will survive amendment - and the consequences to your business, your market and to the regulators themselves will remain devastating.
[The Dems' "legacy" also survives if they can delay change long enough to make it impractical or impossible to unwind all rules and regulations implementing the misguided CPSIA. After all, we business people have no choice but to upend our businesses to follow these rules, and would incur more damaging expense to change our processes a second time. There seems little doubt that the forces behind the CPSIA want the law's infrastructure to be impossible to untangle by future Congresses or CPSC Commissions.]
The Dems' homage to the original law is evident in several places. For instance, the concept of a "low volume manufacturer" is designed to provide a very (VERY) limited opportunity to craft an exception to the original testing requirements. Even so, the language clearly states that exceptions benefiting the LVMs must still "assure certification based on compliance with the relevant consumer product safety standards." [Emphasis added.] In other words, no exception will be given to the little guys from the law's basic premise that manufacturers must prove compliance before sale. [More on LVMs later.]
The proposed rules on the so-called "functional purpose" exception also kowtows to the law's concept that everyone must ask for permission to be excused from lead requirements. In other words, the Dems reject the notion that the law can be narrowed rationally and appropriately without a burdensome bureaucratic process. Even action by the agency on its own initiative will be a major ordeal. The Dems know (because they have been told) that the exception process is effectively a closed door for all but the most well-capitalized companies. You may interpret the legislative language as the Dems' response to this small business issue.
Another good example of the Dems' sticking with the original law's structure is the use of the word "practicable" in the Section 101(b) changes. This change is the doorway for the ATV'rs and book publishers to argue for exceptions to the lead-in-substrate standards. I am told that this word was chosen because of a Supreme Court decision (that I have not read) holding that "practicable" incorporates concepts of economics. Ah, I see. In other words, this language is a way to make the law look just like the original one, but still provide a faint hope for business people that they can somehow wriggle out of ridiculous lead-in-substrate restrictions. It's obscure, to say the least, but leaves the original legislative structure in place - the Dems' principal goal.
c. The new amendment ADDS more complexity to an already blindingly complex law. I have written about complexity numerous times, and recently posted a video explaining the frustrating challenge of trying to understand this law fully. Complexity in this case does not reflect the difficulty in creating a safe market for children's products. Actually, that issue is long-resolved. The complexity stems entirely from a defective legal structure and its consequences. If the Dems insist on keeping the original CPSIA structure in place, you must get used to complexity spawning more complexity in your business life. It will only get worse.
This is what Big Government looks like. Hope you like it.
d. CRITICAL ISSUES are absent and unaddressed in this legislation. Examples:
- Risk Assessment by the CPSC and/or the Commission.
- Changes in age limits for the lead standards and phthalates ban.
- Narrowing of the scope of "Children's Product" to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
- True reform to protect small businesses.
- Tracking labels relief.
And so on. As noted above, to take these steps would mean acknowledging that the original law was grossly defective. The Dems would rather eat lead-free glass than admit their career achievement was fundamentally defective. Ironically, the Republicans have no such reluctance, despite voting for the original law. The sad prospect is that unless the Dems have a change of outlook (soon), real reform may need to wait for a change in gavel (bye, bye, Mr. Waxman).
Hence my excitement over the prospect of voting in November.
More to follow.
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