CPSIA – Consider the Source (Part II)

From an article in today’s BNA entitled “Need for CPSIA Changes Debated”, “In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. “People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,” Cowles said.” There are other quotes from consumer groups in this article that set my blood ablaze, but I thought this one deserves special “heralding”. I should note that I have written about rhinestones extensively, and debunked the opinion expressed by the estimable Ms. Cowles thoroughly. [See my "Jewelry" tags.] You may wonder, why do I care so much about rhinestones. Our business does not use rhinestones, so what’s the big deal for me? Rhinestones is a poster child for the stupidity of the law. The impact of the CPSIA on rhinestones is the impact that is bedeviling the entire children’s product industry, from toys to books to shoes to bedding to what-have-you. If rhinestones go down, safe as they are, we all go down. If we can save rhinestones on a rational and fair basis, perhaps the rest of us will get fairer treatment. That said, I have a couple comments on Ms. Cowles’ remarks. First of all, she is fear mongering, not advocating for you and your children. She says rhinestones are “toxic” – I say “prove it”. The people behind the CPSIA are left with few options to save their precious law but to deceive the general public about health risks. The case on rhinestones is out there to be examined by Ms. Cowles. Why not attack rhinestones with data and analysis? Because no data or analysis exists to weaken the case FOR rhinestones. The “there’s no safe level of lead” mantra is faulty. We already consume plenty of lead in our air, our food and our water daily. The rationale that trace presence of lead in children’s products is somehow the health “tipping point” has never been proven and frankly cannot be asserted on a reasoned, scientific basis. The lead we consume in our normal daily activities dwarfs the lead you might ingest from casual contact with children’s products. If there really is “no safe level for lead”, then our wise Congress should attack the big sources of lead first, and leave the rest of us for later. Second, Ms. Cowles is sending a lot of people down the river with her casual condemnation of rhinestones. I would note that many industries use rhinestones in their products. The people who run those companies, are employed by those companies, are supported by income from those companies, trade with those companies or value those products in their lives, will ALL lose if the likes of Ms. Cowles get to run our society. Does that make ANY sense to ANYONE (besides Ms. Cowles)? I keep thinking of the prescription she offers for living a safe and wondrous life. She says we will (and should) find something else to decorate our products with. Perhaps Ms. Cowles decorates herself with the jewels from Pretty, Pretty Princess . That’s what she is suggesting, that we get used to plastic jewelry. Perhaps Ms. Cowles can live with getting gifts for her kids from a vending machine, but that’s not how I want to live. As I have noted before, inexpensive stones are a way for people to bedeck kids with jewelry inexpensively. Rhinestones are important to a lot of people, some of whom may not have the economic wherewithal to switch to diamonds and rubies. In addition, it’s an inexpensive way to let little kids have a bit of bling. If you are trying to make your little kids look special for social, cultural or religious reasons, I think Palladium earrings may be somewhat impractical for most people. Little kids to tend to outgrow their clothing and shoes quickly. Parents can’t really afford to buy and rebuy clothing and jewelry using precious stones as their kids grow, and may never warm up to Pretty, Pretty Princess jewelry. If this is the way it has to be, I think we should think more insightfully about who is writing the rules for our society. Increasingly, the recommendations of consumer advocates are ringing more and more hollow. How crazy has the world become? Consider this quote from the November 2008 “Trouble in Toyland” report issued by the Vermont PIRG: “Some children’s toys, jewelry and cosmetics may contain toxic chemicals, especially lead and toxic phthalates. . . . PHTHALATES AND OTHER CHEMICALS Avoid toys made of PVC plastic; which often contains phthalate softeners. Choose unpainted wooden or cloth toys instead.” Yes, PIRG wants us to use cloth toys and plain unpainted wooden toys to be “safe”. But how “safe” are these toys? The CPSC, after due consideration, has informed us in their new phthalates testing standard : “Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are . . . Natural wood [and] Textiles made from natural fibers, such as cotton or wool . . . .” Uh-oh! PIRG is telling you to buy products that MIGHT contain phthalates! Ouch. [To be fair, I have no idea how phthalates would get in there, but heck, the CPSC says they MIGHT. They must know something I don't.] So PIRG has it wrong – we can’t even play with cloth toys or wood. What’s left? Rocks. Oh, no – rocks need to be tested for lead, phthalates and sharp points! Well, perhaps after the Residential Rock Roundup is wrapped up, we will all be safe to move into caves to play with our rocks. Ms. Cowles, get your own cave – you can’t play with my rocks.

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CPSIA – Consider the Source (Part II)

CPSIA – Letter to CPSC re Tracking Labels Guidance 9-18-09

September 18, 2009 VIA FEDERAL EXPRESS Todd Stevenson Director, Office of the Secretary U.S. Consumer Product Safety Commission 4330 East West Highway Bethesda, MD 20814 Re: Section 103 Tracking Labels Guidance Dear Mr. Stevenson: I am writing on behalf of the Alliance for Children’s Product Safety, an organization comprised of small businesses in many industries impacted by the Consumer Product Safety Improvement Act (CPSIA). I request your prompt consideration of an urgent matter regarding the impact of Section 103 tracking labels guidance issued on July 21 (the “Guidance”) on small businesses in America. By way of background, I would like to draw your attention to the fact that I have expended considerable effort to help the agency avoid mishap in the implementation of the CPSIA’s troubling tracking labels provision in recent months. I have testified before the CPSC on tracking labels (May 12 hearing, second panel), wrote a comment letter on Section 103 , sent a letter to Rep. John Dingell in part addressing tracking labels and posted no less than 38 blog entries related to tracking labels, including a comprehensive list of “unanswered questions” about the Guidance. To date, none of my “unanswered questions” have been addressed by the agency in any form as far as I know. The Guidance was originally heralded as a document sensitive to the interests of small businesses. Some terms seemed to offer relief to small lot manufacturers who did not already mark products with lot information. This regulatory approach was forecast by Commissioner Moore in his May 13 statement explaining his vote on the NAM tracking labels stay petition, when he noted that tracking labels implementation would be “a learning process for all of us and not an excuse to punish an unwitting mistake.” Unfortunately, the Guidance also specified that all of the information in Section 103 needed to be “ascertainable” by both the manufacturer and consumers. This has been interpreted to mean that manufacturers must be able to produce “detailed production information, including the means to distinguish products made from different factories, made with different components, at different times” for any product pulled from any store shelf anywhere and at any time. The Commission made it clear that this is a serious legal obligation. As Mr. Moore wrote on July 20, “those who fail to keep the information required by the tracking label provision . . . will not find a very sympathetic ear at the Commission.” The issue of what “ascertainable” means gets to the heart of the issue that Mr. Moore highlighted. It is also at the heart of the tracking labels dilemma for small businesses. In my “unanswered questions” blogpost on August 14, I posed the following question: The Guidance states: “The question of what should be ascertainable is a different question than whether that specific information can be marked on the product or packaging.” [Emphasis added.] Thus, it appears that the CPSC will not permit ANY manufacturers to sell ANY children’s product for which the specified Section 103 information is not “ascertainable”. In other words, if a consumer calls up to inquire about the Section 103 information for any unit of a children’s product made on or after August 14, regardless of whether made by a small lot manufacturer, that information must be available – or less. Correct? Elsewhere in the Guidance, the CPSC advises that small lot manufacturers need not create a lot marking system if one does not currently exist. So, essentially, the rules require that co-hort information be “ascertainable” on items without lot markings. This is, for all practical purposes, impossible. An unmarked item is fungible with all other similar unmarked items. If small businesses are not required to mark by lot, then it will be impossible to distinguish products by lot. This is a massive problem for small businesses. It is not solvable as far as I can tell. The Guidance says on one hand that we do not need to mark by lot, and on the other hand, says we will be exposed to civil and criminal penalties if we cannot “ascertain” lot information. This is faulty “guidance” at a minimum. It is tantamount to requiring universal marking of products by lot – although the Guidance states the exact opposite. Please do not overlook the fact that Section 103 applies to every children’s product sold in this country without exception. It is a common misconception in the market that tracking labels are only required for items subject to the new lead limits or the phthalates ban. Thus, the scale of affected industries and product classes is incomprehensibly large. As I have testified and written extensively on the issues relating to tracking labels for businesses catering to low volume specialty markets, I will not highlight again the many reasons why this rule is impractical in the extreme. Please consider, however, a very practical business problem. Many specialty items are low-priced and have not been designed optimally for tracking labels. The Guidance recognized the seriousness of this issue for the bulk vending industry, but overlooked it for everyone else. Frankly, the practical issues for items that sell for $0.25 are virtually identical for items that sell for $10. In any event, “ascertaining” co-hort information on any children’s product without a lot marking is basically impossible (without changing every lot in some physical way, a manufacturing “solution” likely to quickly degrade into utter chaos or commercial disaster). It is therefore likely that most products sold into specialty markets will violate the Guidance unless they incorporate permanent lot markings. Members of the Alliance for Children’s Product Safety are facing a profound disaster as a consequence of this rule. Products are already being dropped for an inability to meet the “ascertainable” rule, particularly under threat of penalties under the CPSIA. No one working for a children’s product manufacturer will risk going to jail over co-hort information; they are much more likely to drop products to avoid the issue entirely. The economic damage will be deep and wide – and will contribute nothing to consumer safety. It is ironic that declining product availability as a result of implementation of Section 103 may lead to fewer recalls, thus giving the misimpression that children are safer. In fact, children will simply go to poorly-stocked schools and enjoy a lower standard of living. I call on the Commission to review and modify the Guidance to provide real and meaningful relief from the requirement on “ascertainability” for small businesses catering to specialty markets. Your prompt attention to this urgent issue will save jobs, products and industries. Thank you for your prompt consideration of this important matter. Sincerely, Richard Woldenberg Chairman Alliance for Children’s Product Safety cc: Chairman Inez Tenenbaum Commissioner Robert Adler Commissioner Thomas Moore Commissioner Nancy Nord Commissioner Anne Northrup

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CPSIA – Letter to CPSC re Tracking Labels Guidance 9-18-09

CPSIA – What on EARTH is She Talking About?

In a statement approving of a penalty imposed on a company for a drawstring choking hazard violation, Commissioner Nancy Nord made some mysterious remarks. Dense as I am, I just don’t get it. If you understand these remarks, I hope you can explain them to me sometime. a. “On a broader level, I commend companies already following the drawstring voluntary standard. However, I am deeply concerned by the industry’s need to increase its efforts to educate its member companies about the problem with drawstrings on children’s upper outwear, as well as the Agency’s need to increase its efforts to publicize the hazards of these circumstances. Industry and the Agency must make a more aggressive effort, together, to get this warning information out to manufacturers, especially smaller ones who may be less likely to be aware of the seriousness of this problem. In addition, efforts need to be increased to have parents be better informed and be more vigilant in making sure their young children do not wear clothing with drawstrings in their upperwear.” Huh? A need for EDUCATION OF MANUFACTURERS, ESPECIALLY SMALL ONES? What?! The CPSC and industry working COOPERATIVELY to REACH OUT to both makers AND TO PARENTS? Heresy! Besides, doesn’t Commissioner Nord know that all problems are best solved by governments, and that individual responsibility, not to mention the obligation to supervise children, is an outmoded concept? Please! b. [This quote is even CRAZIER.] “In situations like this, I am sadly reminded how agency and industry efforts and limited resources have had to be focused on issues that do not present real safety concerns , like bike valves, library books and rhinestones, instead of on real dangers like drawstrings on children’s apparel. The Agency, the industry, and the public at large need to remain focused on the seriousness of drawstrings in children’s outerwear until every avoidable injury is just that – avoided.” [Emphasis added.] I don’t get it. What’s she talking about? You would think she’s never been the Chairman of the CPSC or something. First of all, why does she regret the expenditure of millions of dollars and thousands of man-hours dickering about dangerous items like rhinestones? Kids lick their bike chains and chow down on rhinestones every day, after all – oooh, that’s so unsafe! And what’s this about “limited resources”? Can’t Obama just print up some more dough? It’s raining dollars, let’s hire lots of investigators . . . . I am also mystified by the notion that it is possible to figure out that some dangers are “real” and some are not. Didn’t Congress do all the thinking for us already? Ms. Nord, get with the times! I certainly hope this kind of thinking doesn’t catch on. What would I do for amusement?

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CPSIA – What on EARTH is She Talking About?

CPSIA – My Letter to Inez Tenenbaum (9-17-09)

September 17, 2009 VIA FEDERAL EXPRESS The Honorable Inez Tenenbaum Chairman U.S. Consumer Product Safety Commission 4330 East West Highway Bethesda, MD 20814 Re: Safety of Rhinestones and Crystals Dear Chairman Tenenbaum: I am writing on behalf of the Alliance for Children’s Product Safety, an organization comprised of small businesses in many industries impacted by the Consumer Product Safety Improvement Act (CPSIA). Of particular concern to Alliance members is the “unintended consequences” of the CPSIA, namely that many safe products will be explicitly or effectively forced from the market despite sterling safety records, and that many viable and law-abiding businesses will be economically crippled (or worse) by new testing, labeling and other obligations and liabilities under the new law. We are aware of your recent testimony at a CPSIA oversight hearing conducted by the House Subcommittee on Commerce, Trade and Consumer Protection on September 10, 2009. In your testimony, you expressed concern that swallowing “50 beads” (referring to rhinestones, glass beads or crystals) might lead to measurable change in blood lead levels and would hence be considered “unsafe.” You also indicated that your statement of July 17, 2009 explaining your vote to deny the Section 101(b) exclusion request of the Fashion Jewelry Trade Association and other organizations for such beads was “poorly worded,” and the level of lead in such beads was in fact a cause for concern. You mentioned, in particular, beads with lead levels of 23,000 ppm. We are puzzled by this testimony and kindly request clarification. Notably, you wrote in your statement of July 17 that “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children.” You also stated clearly that risk assessment by the Commission “appears to be in direct conflict with the statutory language [of the CPSIA]” and therefore the agency is foreclosed from considering factors such as “bioavailability of lead, accessibility of the lead to children, foreseeable use and abuse, foreseeable duration of exposure, marketing and life cycle of the product” in any exemption proceeding. We are therefore confused by your testimony that your vote against the exclusion request was actually motivated by a safety concern (risk assessment). The clarity and consistency of CPSC administration of the CPSIA is a serious issue for businesses attempting to comply with the new law. It is well-known that confusion among the regulated industries has caused market chaos and considerable business losses. The rhinestones decision, followed by your recent Congressional testimony, creates serious new issues that will further confuse those trying to comply with the law. We request that the Commission provide clarification on your July 17 contention that exemption requests will be made without regard to risk assessment. If risk assessment is not permitted by the CPSIA in such proceedings (as has been consistently stated by you as well as by Commissioners Nord and Moore), we request that the Commission explain the relevance of the safety considerations of swallowing 50 rhinestones on the rhinestones exemption request decision. If your testimony before Congress indicates that risk assessment is now permitted in CPSIA exemption proceedings, please explain the legal basis for this change in statutory interpretation. We believe that the terms of the CPSIA require that the CPSC deny the exclusion request for rhinestones based solely on the lead levels in the stones; however, we do not believe rhinestones, crystals or glass beads present any health issue for children. Rhinestones are well-known to be safe. These stones are a classic “innocent victim” of CPSIA, like so many other safe product classes similarly affected. We request the information that you used to support your testimony that swallowing 50 beads present a health risk to children. In particular, we believe this conclusion is dependent on two theses: a. That swallowing 50 beads is a “foreseeable use and abuse”. b. That swallowing 50 beads will cause a measurable change in blood lead levels (one micro-gram per deciliter of blood). Likelihood of Swallowing 50 Beads. Based on a review of medical literature, the risk of swallowing 50 beads is minimal for “normal” children. For instance, in “Foreign-Body Ingestion in Children: Experience With 1,265 Cases”, Journal of Pediatric Surgery, Vol. 10, No. 10 (October, 1999), pp. 1472-1476, the authors document 552 cases of proven foreign body ingestion but do not indicate any record of jewels being ingested. Although NEISS data (this author reviewed data from 2005) shows that jewelry is known to be ingested by children, many cases in the database are not proven (merely suspected) or involve products not relevant to this issue, and in the vast majority of cases, the swallowing are inadvertent or accidental. The accidental nature of ingestion of jewelry is quite relevant here, as the accidental ingestion of four bracelets or 20 rings in incontestably improbable. In addition, such a serious incident would take a great deal of time and an intent to create mischief, none of which is considered a “foreseeable use and abuse” of a children’s product. It is notable that rhinestones are not meant to be ingested, have no flavor or smell and are, in fact, rocks. Rocks are not food and are unlikely to be ingested by children with normal mental health or normal intelligence. On February 2, 2009, the Fashion Jewelry Trade Association and related organizations submitted a request for exclusion of these stones from the lead limits of the CPSIA under Section 101(b) (the “February 2 Letter”). In that letter, they provided industry data on the use of decorative stones in jewelry. Notably, the February 2 letter indicates that jewelry intended for children six years or younger contains between 4-15 stones. Thus, a child of six years of age or younger would have to consume 4-13 pieces of his/her jewelry to swallow 50 beads. This appears to be a highly unusual event. We therefore request that CPSC provide data supporting your contention that swallowing 50 beads is a “foreseeable use or abuse” of children’s products containing rhinestones, crystals or glass beads.. Likelihood of Blood Lead Level Changes. In their February 2 letter, the Fashion Jewelry Trade Association and related organizations provided a technical study entitled “Evaluation of Lead in Crystal Beads and Rhinestones” prepared by the respected consulting company, Exponent. In its study, Exponent calculates the lead leaching rate of rhinestones (with lead levels in excess of 600 ppm) in saline (mouthing, 0.15 micro-grams per gram of stones) and acid extraction (ingestion, 0.52 micro-grams per gram of stones). Likewise, it notes that one gram of the most common size of such stones (10PP) equal 333 stones. [Obviously, larger stones require fewer stones to reach one gram in mass, but the analytical results are similar.] Studies of the daily intake of lead for children demonstrate that lead is present throughout the food system and is present in our air and water as well. As a consequence, children will inevitably consume lead throughout the day by simply breathing, eating and drinking water. [It is well-accepted that the largest source for childhood lead is house paint, followed by dirt and air.] A recent study of dietary intake of lead by children in India indicates that tolerable daily intake of lead far exceeds 10 micro-grams per day (see “Dietary and Inhalation Intake of Lead and Estimation of Blood Lead Levels in Adults and Children in Kanpur, India”, Risk Analysis, Vol. 25, No. 6, pp. 1573-1588, December 2005 ). Similarly, the Exponent study submitted on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally. It goes without saying that ingestion of 50 beads is far more likely to result in physical injury because of intestinal blockage or similar maladies than from lead poisoning. We do not believe any NEISS cases involving the accidental ingestion of jewels were considered a lead poisoning risk by the attending physicians. We kindly request that the CPSC provide data on any incident in the NEISS database documenting that the attending physician considered lead poisoning a risk from the ingestion of jewels. We also kindly request that the CPSC provide back-up data and analysis to support your assertion that the CPSC “could not determine” whether swallowing 50 beads will cause a measurable change in blood lead levels. The Need for Flexibility. Finally, we note that in last week’s hearings, Rep. George Radanovich asked you whether you needed “flexibility so [you] can exempt safe products”. You replied that it was ‘premature” for you to answer that question. We are concerned by your unwillingness to answer this question definitively and kindly request an explanation as to why it is “premature” to ask for flexibility to exempt safe products from the lead limits of the CPSIA. Given that the agency has a limited budget, please explain how the Commission will deploy its resources to regulate and supervise safe products, when the need to deal with unsafe products or safety risks is so overwhelmingly large. Thank you for your prompt consideration of this important matter. Sincerely, Richard Woldenberg Chairman Alliance for Children’s Product Safety cc: Commissioner Robert Adler Commissioner Thomas Moore Commissioner Nancy Nord Commissioner Anne Northrup

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CPSIA – My Letter to Inez Tenenbaum (9-17-09)

CPSIA – More "Rhinestone Cowboy" Action

How much of a set-up was last week’s hearing? In case it isn’t obvious that this one-witness, check-the-box hearing had a pre-ordained outcome, let’s look at one issue as an illustration (my favorite, rhinestones): Chairman Bobby Rush of the Subcommittee hosting the hearing kicked things off by heralding the CPSC’s rhinestones decision as a sign of Ms. Tenenbaum’s good administration: “When you took over the helm, Madame Chair, you showed courage, good sense and a preference for rulemaking over eleventh hour stays. One of the first agenda items you scheduled was whether to exclude crystals and glass beads in children’s jewelry from the lead content restriction in Section 101(a) of the CPSIA. You applied the facts as you found them to the CPSIA’s lead limits and to real world facts and foreseeable possibilities. For example, you talked and wrote about how children handle and play with this jewelry by mouthing, ingesting, and swallowing the beads, and how any amount of lead constituted too much lead in these beads.” Let’s not forget these are the words of the Democratic Subcommittee Chairman, not Ms. Tenenbaum. Her words, at the time, were rather different. In Ms. Tenenbaum’s statement on the rhinestones decision, she set out the following logic to justify her voting decision: a. Exemptions under the law are only permitted if it can be scientifically determined that NO lead will pass from the rhinestones into the body from foreseeable use and abuse of the product. b. Rhinestones violate the CPSIA lead limits, and therefore need an exemption to be sold legally. c. Industry data shows that some leaching of lead from ingested rhinestones will occur. She acknowledges blood lead level changes may not measurable. d. Swallowing or mouthing rhinestones is a “normal” and “foreseeable” use and abuse of jewelry. She reinforced this with her assertion that jewelry is one of the top five items (inappropriately) ingested by children. e. The law does not require that the lead leached from rhinestones be deemed “harmful”. f. Notwithstanding that CPSC staff “recognized that most crystal and glass beads do not appear to pose a serious health risk to children “, the fact that some lead will pass into the body makes it impossible to grant an exemption. g. Risk assessment is no longer permitted by the CPSC in making exemption determinations, including topics like the bioavailability and accessibility of the lead in the crystals. So Mr. Rush recharacterized the rhinestones decision as one using common sense safety judgments, and Ms. Tenenbaum’s statement was the opposite, namely that a decision to reject the exemption was compelled by law, not safety risk. Other than Mr. Rush’s revisionist history, what’s my gripe? Well, I have two problems with this. First, Ms. Tenenbaum herself rose to the occasion of rewriting history when she took the opportunity to insert risk assessment into her decision retroactively. When Rep. George Radanovich asked her if the Commission has the “flexibility to exempt safe products that don’t meet the [lead limit] exemption standard”, she first replied that “interpretation” of her comments muddied the waters by implying that rhinestones “pose no hazard at all to children”. She then said her statement was “poorly worded”. Noting that leaching from one bead would not meet the old FHSA “substantial illness or injury” standard, Ms. Tenenbaum then argued that the CPSC “could not determine” if swallowing “50 beads” might in fact cause substantial illness or injury. In other words, she reversed field and defended the rhinestones decision on basis of RISK ASSESSMENT (which never occurred), rather than the bright line lead limit rule set by Congress. Yes, rhinestones are apparently dangerous now, according to Ms. Tenenbaum, although she explicitly ruled out risk assessment in the original decision/statement. This fits the message control implicit in Mr. Rush’s glowing introduction and matches his faulty characterization of the original decision. Unfortunately, it’s fiction. Second, Ms. Tenenbaum passed on stating the obvious to Congress, namely that many safe products are being sent to the gallows by an overly broad and inflexible law. When cornered by Rep. Radanovich about whether she needed “that flexibility so [she] can exempt safe products”, she said it was “premature for [her] to answer that question at this time because these beads went all the way up to 23,000 ppm.” In so answering, Ms. Tenenbaum threw good and moral businesses to the dogs, all to avoid criticizing the “good statute” (CPSIA). After all, she noted that Congress set the lead limits after due deliberation at 300 ppm (the “safe level for lead”), the implication being that the law DEFINES what’s safe and relieves her of any responsibility to make that judgment. If this confuses you, don’t feel too badly. It makes no sense. Incredibly, the head of the CPSC refused to take a position on whether she needed the flexibility to grant exemptions for safe products. You would think that’s an easy question to answer, wouldn’t you? She claimed it was “premature” because “Congress struggled with this very issue”. I am afraid Ms. Tenenbaum is setting the tone for her next four years. While businesses are welcome to “dialogue” with her, because she wants an “open” CPSC, she apparently has no intention to exercise judgment. That responsibility has been given to Congress and from now on, her definition of “safe” is dependent solely on test reports. Something to think about the next time you want to “dialogue” with the CPSC. Lalala, I can’t hear you. . . .

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CPSIA – More "Rhinestone Cowboy" Action

CPSIA – Oh, Joy! Tracking Labels Fun

It’s starting. Today featured two interesting “New Era” experiences for us. First, one of our larger customers sent us THEIR requirements for CPSIA tracking labels. Mind you, we have never had a safety issue with this account in the last 20 years. Their tracking label standards and expectations do not match our understanding of the law as implemented by the CPSC. We think we know what’s required. It doesn’t matter. This is going to cost us money, and will happen again and again with our larger customers, all of whom are competing with their different requirements for the title as the most compliant company on the planet. Regulatory Compliance Exuberance, I just LOVE it! And then we had to redesign a product we sell in a Point of Purchase Display. Yes, the fact that we make selling our products easier for our dealers means that we have to endure more stringent labeling requirements. In this particular case, I will stake my reputation on the prediction that this particular product will never be recalled, but it doesn’t matter under a brainless law. We must make the “co-hort” information “ascertainable” to consumers, no matter that it will be useless to them. I have spend real, scarce green dollars to do this, and will mar the appearance of our successful product (which is optimal now). The initial cost will be $8,000 out of pocket, plus the cost to our company of having a less appealing product. All for something that will NEVER be recalled. How satisfying. . . . The tracking labels provision was inserted into the CPSIA by none other than consumer advocate Barack Obama. Thanks, Prez!

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CPSIA – Oh, Joy! Tracking Labels Fun

CPSIA – Walter Olson Op-Ed in Today’s WSJ

OPINION SEPTEMBER 13, 2009 7:07 P.M. ET A Destructive Toy Story Made in Washington A dubious safety law is hammering small business, but Congress refuses to fix the mess it created in 2008. By WALTER OLSON Last Thursday, the House Energy and Commerce Committee finally held a hearing on the highly controversial Consumer Product Safety Improvement Act, the children’s-product-safety law that took effect on Feb. 10. Chairman Henry Waxman (D., Calif.) allowed a single witness: Inez Tenenbaum, the newly installed chair of the Consumer Product Safety Commission (CPSC), who, like himself, is a strong advocate of the law. Not one of the thousands of craftspeople, retailers and small manufacturers the law has sent reeling was permitted to testify. This law has saddled businesses with billions of dollars in losses on T-shirts, bath toys and other items that were lawful to sell one day and unlawful the next. It has induced thrift and secondhand stores to trash mountains of outgrown blue jeans, bicycles and board games for fear there might be trivial, harmless—but suddenly illegal—quantities of lead in their zippers and valves or phthalates in their plastic spinners. (Phthalates are substances that add flexibility to plastic.) Even classic children’s books are at risk: Because lead was not definitively removed from printing inks until 1985, the CPSC has advised that only kids’ books printed after that date should be considered safe to resell. Yielding to a business outcry, the agency postponed until next February the law’s highly onerous product-testing requirements, which many small manufacturers have said will impose costs exceeding their annual profit or even revenue. It also has postponed enforcement of the law’s effective ban on kids’ bikes and power vehicles, which unavoidably contain leaded brass or similar alloys in certain components. Nevertheless, the law’s latest shock hit businesses on Aug. 14. That’s when the law’s tracking-label mandate went into effect, requiring that makers of childrens’ goods “place permanent, distinguishing marks on the product and its packaging, to the extent practicable.” The idea is to facilitate recalls and make it easier to trace safety problems. The result will be to capsize yet more small businesses. According to the CPSC, the new marks must allow users to ascertain the identity of an item’s manufacturer, “location and date” of production, and “cohort information” such as batch or run numbers. An adhesive sticker on the product won’t qualify as “permanent” since consumers might peel it off, while other provisions of the law greatly discourage the use of paint or similar coatings on children’s products. Makers of wood, ceramic and glass items may therefore need to consider alternatives such as etching and branding. Much of the guesswork arises from Congress’s vague command that products carry distinguishing marks “to the extent practicable.” The CPSC got more than 500 pages worth of comments on the provision from affected parties, many from anguished small-business people. When the small-town owner of a producer of baby carriers in Michigan checked out the availability of suitable printed labels, she found they had to be ordered in minimum sets of 100 (at $30 per set) though her four-employee firm has never produced more than 30 carriers at a time, and often produces single-item “batches.” A South Carolina maker of school assignment sheets and other classroom supplies predicted that if enforced with rigor the law would require changing labels “hundreds of times a week” at its two facilities at “crippling” expense. On July 20, only three-and-a-half weeks before the rules were to take effect, the CPSC announced some lenient if vague interpretive guidelines. The agency said it didn’t think individual marking was required for very small objects and items in sets, such as wooden blocks, and agreed that harm to a product’s functionality or aesthetics might be a possible reason to reject marking as impracticable. So long as handcraft and small-production-run makers keep careful control of components, it seems, they might not even need to set up batch numbering systems. During a “period of education,” at least, the commission expects to avoid penalizing makers who have put in good-faith efforts to comply with its guidelines. That’s a step in the right direction. But the 50 state attorneys general can enforce the law independently, and they have never promised to be reasonable. The CPSC touched off another furor this summer when it confirmed that Mattel, the giant toy maker whose many recalls helped set off the lead-in-toys panic, had qualified for an exemption from onerous third-party (outside laboratory) testing of its products under the law, and would instead be allowed to test in its own in-house labs. (Mattel had successfully lobbied for such a provision.) Of course, most companies do not operate on a scale that will make such an exemption feasible. Why did Congress rush to pass this bill, and why is it so reluctant to amend a law whose burdens fall mostly on products that have never been linked to poisoning? One reason is the skill of antibusiness groups claiming to speak for consumers. Groups such as Public Citizen and the Public Interest Research Group seized on and promoted the Chinese toy panic for their own legislative ends and have taken credit for some of the law’s most extreme provisions. (The tracking-labels provision was added by then-Sen. Barack Obama.) Some of the same groups are active in the coalition now pushing for “traceability” principles in food and farm safety. New mandates being talked of include everything from machine-readable leg tags on backyard chickens to batch labeling of orchard fruit. Before ideas of that sort pass into law, one hopes the farm and food communities will study closely the experience of the Consumer Product Safety Improvement Act. Mr. Olson is a senior fellow at the Manhattan Institute. He’s covered the CPSIA controversy extensively at his blog Overlawyered.com.

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CPSIA – Walter Olson Op-Ed in Today’s WSJ

CPSIA – More "Kudos" for CPSC’s Resale Roundup Program

The Atlanta Journal-Constitution published a nice article on the noxious Resale Roundup entitled ” Garage Sales Could Land You In Jail “. Apparently, I am not the only one who sees something dark in this PR blitz-driven program designed to root out recalled items from resellers in stores and online. As pointed out by one of my commenters, the real issue for regulators in the resale of recalled items is not the onesies and twosies at resale stores or Craigslist.com – it is the inventory liquidators who might be pedalling large volumes of these items. Of course, if there are items of special concern, like a particular recalled crib, then the CPSC should invest in educating (not terrifying) the resale outlets to keep them off the market. The presumption that members of the business community cannot be trusted to work with a well-intentioned agency with realistic goals is a sad reflection of the current anti-business atmosphere that the Pelosi-Waxman-Obamites are fomenting. However, the Resale Roundup is exactly the kind of grandstanding likely to become a favorite trick of the “new” CPSC. After all, promoting their “vigorous” enforcement of the CPSIA to a rabid media and equally rabid Democratic majority leadership seems to be a major objective of the agency nowadays. The supposed “crisis of confidence” of the American public is the stuff of their press releases, not reality. It’s ironic, then, that the CPSC seems to be annoyed by my observation that rocks and fossils need to be tested for lead and sharp points under the new law. You’d think they would be proud of this as it is required as part of a vigorous enforcement of their nifty new law. Yes, if I sell rocks to schools or as part of an educational toy, these natural materials are subject to the same excessive safety rules as injection-molded toys or painted wooden trains. So we must pay a lot of money to test rocks for “safety”, and in fact, have actually had to redesign products when a test report came back with an idiotic “fail” for sharp points. [These test reports are doubly infuriating because natural materials vary piece to piece. Testing a sample is no indication of the compliance of rest of the units - you would have to test each one to know for sure that they all comply. But the law wants us to get the little piece of paper, so we buy the little piece of paper.] Find me some mica or fool’s gold without sharp points, please. Nah, let’s just learn as much as possible from smooth stones good for skipping. With all this in mind, I suggest that the CPSC take the opportunity to start a new program called Residential Rock Roundup. Why draw the safety “line” at rocks that are sold to schools or as educational toys? Frankly, most rocks are found not in boxes on store shelves but on the ground. I know that’s shocking, but it’s true! Surely those plentiful rocks present a much greater risk of childhood lead poisoning or sharp points than our boxed sets. As Rachel Weintraub of CFA has instructed us, it is “absurd” to suppose that we can be sure about anything without testing. And, of course, you can’t be too safe, either. I think the CPSC should send its newly-expanded cadre of field inspectors out into the neighborhoods to gather up and test every rock they can find. Some rocks may also fit into a choke tube and if suitable for children under three, would need to be impounded to keep kids safe from choking hazards. Only an expert like a CPSC field inspector would know which rocks present this kind of deadly risk. No doubt this kind of outreach will impress everyone and demonstrate the CPSC’s commitment to keep kids safe, so so safe. Now that I have learned that rocks and fossils may cause lead poisoning (the victims are presumably the same kids chowing down on rhinestones, tasty!) or might cause lacerations from their sharp points, I do not know how the CPSC can tolerate rocks littering the United States that have not been tested. Perhaps the CPSC should also “sequester” some national parks deemed too “rocky” and therefore a danger to children. I also hope the agency will call for all Americans to voluntarily send their rocks in for testing – just to be safe. If you can think of some other programs that the CPSC should start – to keep us all safe – feel free to leave a comment!

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CPSIA – More "Kudos" for CPSC’s Resale Roundup Program

CPSIA – Tenenbaum Challenge Update!

It’s been two days, and still no reply from the CPSC on my rhinestone challenge. Next time I think my challenges need a time limit. Since I have had two more days to think about rhinestones, I have another challenge for Ms. Tenenbaum: Provide ONE example of a child (not deranged) that has accidentally or inappropriately ingested 50 of anything since the Pilgrims landed at Plymouth Rock in 1620. I don’t think it’s happened in the United States EVER. [ Non sequitur : There is a Plymouth Rock in Wisconsin and when my kids were younger, I used to ask them to tell me how the Pilgrims managed to land in the middle of Wisconsin of all places. Imagine the surprise . . . . Okay, I guess I give hard challenges at times.] I was discussing the dilemma of rhinestone-eating children with my brother-in-law who is an Emergency Room Physician. He noted that in his 22-year career, he has seen only ONE case of a child ingesting more than one object, namely two quarters. He does see many cases of childhood ingestion of a single object (typically, a coin, spring or a paperclip – no mention of rhinestones but then again, he’s only been on the look-out for 22 years). He said that the only cases of multiple foreign body ingestion he sees is pills. I guess the Hot Dog Eating Champ must not have gotten his start in bracelets or earrings. This got me to thinking . . . . I poked around on the Internet to see what statistics I could find on foreign body ingestion by kids. I didn’t want to be embarrassed by the sudden appearance of statistics that showed that children regularly chow down on bracelets, rings and necklaces laced with “dangerous” rhinestones, or that they suck the jewels off their jeans and shoes with regularity. Turns out the Internet is chock-a-block with data on this topic. Interesting . . . . Here’s data from “Foreign-Body Ingestion in Children: Experience With 1,265 Cases”, Journal of Pediatric Surgery, Vol. 10, No. 10 (October, 1999), pp. 1472-1476 (I paid $31.50 to bring you this exciting news): Table 1. The Categorization of Foreign Bodies Ingested by Children Coins : 271 cases (49% of cases) Fish bones : 155 cases (28 %) Metallic objects : 78 cases (14%) [7 batteries, 41 sharp objects (needles, pins, screws, and wires), 30 blunt objects (keys, metal caps)] Other bones : 16 cases (2.9%) [8 chicken bones, 7 pork bones. 1 duck bone] Rubber and plastic material : 10 cases (1.8 %) Glass objects : 7 cases (1.3%) [2 glass objects, 5 glass marbles] Others : 15 cases (2.7%) [3 (shrimp &crab shell), 1 seed, 1 ginger, 1 denture, 2 wooden material, 7 unknown objects ] Total: 552 cases (100 %) This data summarizes the cases with endoscopically or radiologically proven foreign body ingestion. The study covered a period from 1964 to 1997 in one tertiary referral center. No jewels mentioned in the article. Hmmm. Another article (” Guideline for the management of ingested foreign bodies ” from American Society For Gastrointestinal Endoscopy, Vol. 55, No. 7, 2002, pp. 802-806) notes: “The majority of foreign body ingestions occur in the pediatric population with a peak incidence between ages 6 months and 6 years. In adults, true foreign object ingestion occurs more commonly among those with psychiatric disorders, mental retardation, or impairment caused by alcohol, and those seeking some secondary gain with access to a medical facility. Ingestion of multiple foreign objects and repeated episodes are not uncommon. Edentulous adults are also at greater risk for foreign body ingestion, including of their dental prosthesis.” In other words, crazy adults will eat multiples, but not kids. This article mentioned coins and batteries, but did not address jewels or jewelry. Yet another article points to coins and chicken and fish bones as the most common childhood ingestion objects. The American Family Physician, a publication of the American Academy of Family Physicians has an information sheet about accidental ingestion – again, no special mention of jewels or swallowing 50 of anything. There’s a lot of articles out there which provide consistent data. This gets even more interesting if you check out Ms. Tenenbaum’s citations in her statement supporting her vote to reject the exclusion request on rhinestones, crystals and glass beads. From her statement: “Moreover, emergency room data collected through NEISS shows that jewelry is one of the top five items ingested by children.” Wow, that’s a shocker, isn’t it? In my house, the top five items ingested by children are potato chips, bagels, pop tarts, hamburgers and fries. I thought I would check out the NEISS data, just for kicks. One CDC report summarizes the data as follows: of 17,537 choking incidents among children under 14 years of age in 2001, the percentages break down as follows: 29.6% Solid Food, 19.0% Candy/Gum, 18.7% Other Non-Food, 12.7% Coins, 9.0% Unknown, 7.6% Liquids, 3.4% Unspecified Food. The category including jewelry is Other Non-Food, which is described as “Includes toys, marbles, balloons, puzzle pieces, paper, pen caps, tape, screws and other hardware, keys, plastic, cellophane, plants, rocks, jewelry, hair accessories, soda can tabs, and other specified nonfood items”. Hmmm. Seems quite unlikely that jewelry is the fifth largest category of ingested items. Another report from the Commonwealth of Massachusetts hinted that the NEISS data Ms. Tenenbaum may have been referring to was from 2000-2005. You can’t run a query on six years of data at once on NEISS. I ran a query for 2005 to see what I would find. The number of ingestion incidents reported were 2205. The number of incidents coded to jewelry (class 1616) was 125 or 5.7%. This is similar to the data provided by the Massachusetts report (6.6%) so I decided lazily to accept it as directionally representative of the data apparently used by Ms. Tenenbaum. Of the 125 cases, however, 30 were for kids 6-22 months old, 41 for kids 2-6 years old. 15 for kids 7-12 and the balance for older kids through adults. Thus, the number of cases reported in 2005 for the targeted 0-6 age group was not 5.7% but instead 71/2205 or 3.2%. The data is difficult to interpret, although there are short case descriptions for each line of data. I would guess with high confidence that many (if not most) of the 71 target market cases are either beads (not relevant here but classified as jewelry all the same) or adult jewelry (several cases of swallowing nose rings and tongue rings). Many of the reported cases are not certain but noted simply as “possible” swallowings – and thus cannot be rigorously considered part of the “hard” data. This is consistent with the other literature that discusses ingestion of foreign bodies – many cases cannot be confirmed. For this reason, I strongly doubt that 3.2% of all ingestion cases in 2005 can be fairly applied as evidence supporting a ban on rhinestones. There were apparently no cases of a child eating a drawer full of jewelry in 2005, either. Notably, there were a couple cases of a child actually swallowing a bracelet. I guess it’s possible. Anyhow, the data does not support the likelihood of a child EVER ingesting 50 rhinestones. It is farfetched. The conclusion I reach is that any contention that swallowing 50 rhinestones is a real risk or a real health problem is simple nonsense. It is offensive to me that our regulators are using data they may not understand or which is “dirty” (muddied with inappropriate or irrelevant entries, tending to mislead the viewer of the data). Given the apparently ridiculously low or nonexistent risk of swallowing 50 rhinestones, the CPSC safety regulators seem to be defending their legal conclusion simply for its consistency with the CPSIA but dressing it up with misleading fear mongering data to make it appear that they are actually making a rational decision. This may please Mr. Waxman and the consumer groups who apparently think the business community is evil, but it is wrong. As I said in an earlier post , this approach may bring short term benefits to the agency, but in the long run, the sacrifice of integrity and reputation will be extremely costly to all concerned. If I am mistaken, Ms. Tenenbaum, please correct me.

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CPSIA – Tenenbaum Challenge Update!

CPSIA – A Challenge to Inez Tenenbaum

In today’s House hearing featuring CSPC Chairman Inez Tenenbaum, the subject of rhinestones (crystal beads) came up. At about the 1:42 point in her testimony , Rep. George Radanovich asked her about the real health risk posed by crystal beads in the context of his concern over the agency’s need for the flexibility to use risk-based analysis. Ms. Tenenbaum contended that “interpretation” of her comments on crystals have “muddied the waters”. She defended the banning of rhinestones on the basis that although crystal beads might not violate the previous “substantial injury or illness” standard of the FHSA, some beads have higher concentrations of lead that violate the new CPSIA standard. [For instance, leaded crystal, hence the name.] Rep. Radanovich questioned whether this matters as a practical safety matter since swallowing a bead is exceedingly unlikely to cause injury from lead. Ms. Tenenbaum stated that while leaching of lead from one bead poses no problem, “what if the child swallowed 50 small beads?” She goes on to note that the agency “could not determine” whether 50 beads would raise the blood levels of lead. [She apparently concedes that the only potential risk with beads (from lead) is from ingestion, not handling or airborne lead.] I was blown away by this statement from the Chairman of the CPSC. She didn’t sound concerned with safety; instead, she seemed to think that her job was to defend the law she was given to enforce. Her reasoning appears to be made solely in the context of this goofy law. Common sense is only relevant if the law says so, apparently. This leaves us high and dry. Who will stand up for rational safety policy if not her? Her analysis of the risks of swallowing stones is also mindboggling. First of all, and most importantly, in her testimony before Congress today, Ms. Tenenbaum defended setting national safety policy based on our society’s lowest common denominator, a child who would swallow FIFTY BEADS. Yes, she justifies the devastation of several industries and uncountable companies dependent on these decorative stones on the grounds that if a child swallows 50 beads, he/she might get lead poisoning. Remember, we are talking about eating ROCKS here. Who might these children be that swallow 50 beads? Completely unsupervised children at a minimum, for one thing. So Ms. Tenenbaum apparently believes that she must enforce the law in a way that protects children against the total abdication of basic care by parents, teachers and caretakers. [If that is really a sound basis for national policy, Big Brother is going to look good by comparison pretty soon.] Second, only children with real problems (unrelated to product safety) would eat 50 beads (rocks). I personally have never eaten a rock or a bead, have you? These are kids that have serious deficits. So we are trashing all these companies because children of this nature MIGHT be in danger. What percentage of society will benefit from this approach, and at the expense of how many other people? Interesting question? And let’s not forget . . . that if you swallow 50 beads (rocks), you have bigger problems ahead of you than lead poisoning. Amazingly, the Chairman of the CPSC is apparently so absorbed in enforcing this defective law that this important common sense point is seemingly lost on her. Check out her Congressional testimony. She was actually arguing with a member of Congress to defend the decision to ban these stones on this basis. If this isn’t proof of an upside down world, I don’t know what is. How is your confidence in the CPSC now? BUT what if Ms. Tenenbaum is RIGHT? Holy cow, what if you can get lead poisoning from crystal beads? She must have a basis for her assertions, right? Well, I have little kids that pass through my house all the time. As we know, rhinestones are not illegal to OWN, just illegal to sell. I happen to own some rhinestones and now I am WORRIED. So I want to know how Ms. Tenenbaum derived her conclusion that 50 rhinestones poses a health risk. Clearly, a sophisticated agency like the CPSC wouldn’t make such a direct statement in front of Congress without a firm basis for it. So, my challenge to Ms. Tenenbaum is to PROVE that 50 crystal beads are dangerous (as a source of lead poisoning). She told Rep. Radanovich they might be dangerous – now, let’s see the DATA and the MATHEMATICS. I think the U.S. public deserves to see it. But I don’t want to make things too tough on the CPSC. I will help out a bit here. The Fashion Jewelry industry submitted a lot of DATA to the CPSC back in February. I have absolutely nothing else to do with my time and gave up sleeping longggg ago, so I re-read the industry’s data with a calculator in hand. Here’s what I think is the right answer. Ms. Tenenbaum can correct my math if I am mistaken. 1. The industry says that a popular size of rhinestone is 10PP for children six years old and younger (the target market for CPSC enforcement). It takes 333 of this size stone to equal one gram (remember this number). There are typically 10-15 such stones in jewelry for this age group, so to swallow one gram of stones would require eating 20-30 bracelets. Yummy, munch munch. It takes fewer stones to equal one gram for larger stones, but then again, fewer such stones are used in each piece of jewelry, too. You can find the chart in the industry letter on page 8 and look it over yourself. Eating a gram of stones will take a lot of milk, plus access to piles of jewelry. I think it’s an ambitious project for a determined, hungry, totally unsupervised child with access to tools. 2. There’s lead in your food, your water and your air. I have previously gone over some of these numbers (actually more than once ). The industry notes that the FDA has standards for lead in the food supply and sets a provisional tolerable daily consumption limit of 6 micro-grams of lead for children seven years old and younger. This level of consumption of lead theoretically corresponds to a change of one micro-gram of lead per deciliter of blood. The corresponding tolerable consumption levels for kids older than seven is 15 micro-grams of lead per day in food and water. [The FDA doesn't set standards for the lead we breathe all day long, apparently, so let's just ignore that significant source of daily lead intake.] Studies show that daily dietary intakes of lead for children range as high as 1.17 micro-grams of lead on average, well below the standards established by the FDA. If every food was at the maximum lead content, children’s diets might contain as much as 3.5 micro-grams of lead, still okay. 3. The industry submitted studies that showed that, based on ONE GRAM of stones, saline tests leach out 0.15 micro-grams of lead. Acid-extractions tests on ONE GRAM of stones produces leaching of 0.52 micro-grams of lead. To equal the daily intake in an average diet, you would have to swallow (acid extraction test) at least two grams of stones. That’s 666 of the 10PP stones, or the equivalent of up to 70 pieces of jewelry. in an absolute worst case, most unforeseen case, a child would have to swallow 54 30PP stones (11 pieces of jewelry), 210 2-mm stones (about 20 pieces of jewelry) or 22 4-mm stones (4-6 pieces of jewelry). This is to produce ONE MICRO-GRAM of lead intake. [If you are worried about mouthing, multiple the stone count by 3.5.] To raise blood levels by one micro-gram per deciliter of blood, the basic measurable change in lead levels, a child would have to ingest SIX TIMES AS MUCH on a daily basis. For those of you who don’t have access to a calculator or can’t do mental math, this means that to raise blood levels by the minimum amount, you would need to ingest about 130 of the largest reported stones or about 4,000 of the most common ones every day. Based on mouthing only, the number rises to 450+ large stones or 14,000 of the common stones. That’s quite a mouthful. Ms. Tenenbaum, the answer please?

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CPSIA – A Challenge to Inez Tenenbaum

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