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CPSIA – Nancy Nord Announces a Delay in the "15 Month Rule"

As hinted at in this space on Thursday, the CPSC is apparently going to delay the issuance of the so-called “15 Month Rule”. In Nancy Nord’s new blog, she provides the following important information:

“Periodic Testing – On a related issue, the CPSIA requires that we issue a rule setting out further testing requirements within 15 months of enactment (November, 2009). The agency will not meet that deadline in spite of best efforts to do so. This issue is extremely complex and we need additional input from the affected public before we give answers. The staff will hold workshops on December 10th and 11th to seek public participation. A Federal Register notice will be published with details about the workshop and will also provide details for those who wish to submit written comments. In addition, a draft “Guidance Document on Testing and Certification” will be discussed with the Commission at a public meeting on November 9th. See http://www.cpsc.gov for webcast details.” [Emphasis added]

This is good news for the business community on several levels. First of all, the CPSC is now communicating informally through at least one blog. While it increases the number of places to watch for legal developments, you can’t beat candor and openness. In addition, the CPSC is doing the considerate thing – giving advanced notice of a material event (the delay in this much-anticipated and much-feared rule). They are being nice, which is MUCH appreciated.

Finally, the Commission is being candid and admitting a small failure. [In fact, the admission is being done in a bi-partisan way, as Democrat Tenenbaum presumably consented to Republican Nord announcing this development in her new blog.] It is somewhat more complex than that, in fact. This is probably not best understood as a failure of the CPSC (although they are going to miss a date). They are CHOOSING to miss a date. Why? My guess is that they realize how important this rulemaking is, and are probably troubled by what the rule would look like under the (defective) CPSIA. It’s a public acknowledgement, the strongest in a long while, by the agency that it is genuinely troubled by the unintended consequences compelled by the new law. Withholding the 15 Month Rule is a sign of resistance against doing more damage in the marketplace.

The CPSC has heard from many stakeholders that this rule could be the final straw. I think it’s fair to assume that they do not want to do more damage. It is a bi-partisan worry, too – which is in the character of the CPSC over the years. They have not traditionally been the enemy of the business community, so it is nice to see them act with consideration again. Rumorville has it that the CPSC Staff could not find the magic words to make this rulemaking “work”. Good to admit it. There’s a lot implicit in that statement, most of it very good.

In my comment to the Nancy Nord blog, I ask the Commission to use the plain English meaning of the statute to make their decisions. If they cannot make a sensible decision using the plain English meaning of the words (e.g., does “any” mean “any” or not?), then the Commission should go to Congress and ask for an amendment. A statutory scheme based on twisting words into pretzels does not serve anyone’s interests. To understand our obligations, we go to the statute and read it. How can we run our businesses if there is a super-secret meaning to plain English words? Are we expected to master hundreds of pages of releases spread of months or years to discover the nugget explaining that “any” doesn’t mean “any”? This kind of treasure hunt inevitably fails. [If you like treasure hunts, see my recent blogpost on resale shops.]

Importantly, the CPSC has announced a two-day meeting on the 15 Month Rule on December 10/11. This is a critical meeting for all stakeholders. Please try to make it. I will be there.

Bottom line, this announcement is another gratefully-received sign of a shift in the wind. Let’s see whether more good follows in coming weeks. We now have more dots to connect. It would be wonderful to be able to trust the CPSC and the law again. Guys, please keep plugging away!

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CPSIA – Nancy Nord Announces a Delay in the "15 Month Rule"

CPSIA – NAM Coalition Asks for Senate Hearing on CPSIA

The National Association of Manufacturers led a coalition of 41 trade associations and alliances in requesting a promised Senate hearing on the CPSIA this week. In a letter to Senator Mark Pryor, the coalition asked Senator Pryor to honor his commitment to hold hearings 60 days after confirmation of Ms. Tenenbaum as the new Chairman. The letter states: “The various stays of enforcement issued by CPSC to temporarily resolve CPSIA implementation problems will soon expire, and a permanent resolution is needed. We believe that the Senate’s oversight role is extremely important in helping the agency implement common sense solutions to resolve these issues, and we strongly urge you to set a date for a CPSIA oversight hearing.”

These hearings, if they come soon, will be the first opportunity for Congress to hear from business owners affected by this law since the law’s passage. [I am disregarding last May's staged hearing at the House Small Business Committee that was nothing more than an opportunity for the Democratic leadership to launch yet another missile at the CPSC for not using "common sense".] It is shocking that Congress has dodged this necessary “sunshine” activity. I have always felt it is part of their message control where all problems are blamed on the CPSC, Congress naturally being faultless like any good omnipotent organization. The persistence of this Congressional attitude is exposing the CPSC to embarrassment as it attempts the impossible, sensible implementation of a defective law. The harder it tries, the more it twists itself into a tighter pretzel. Notwithstanding the unfortunate position it is in, the CPSC seems quite reluctant to challenge Congress (or even notify Congress of its own educated view of the matter). Care to guess who is stuck in the middle?

We can only hope that Congress will develop a renewed interest in fact finding, or the CPSC will finally stand up and deliver the unsolicited message that the CPSIA needs to be fixed. While that’s hardly kneecapping Congress, I recognize that some members of Congress won’t want to hear anything of the kind. Whether you call these changes “fixes”, “amendments” or “tweaks”, the fact remains that an incoherent, overreaching law governs the land, and its byzantine requirementes are making administration of safety almost as complicated as the tax code. The CPSC needs to educate and guide Congress on the changes necessary to create a robust but workable, effective but sensible regulatory system.

Oh, to dream . . . .

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CPSIA – NAM Coalition Asks for Senate Hearing on CPSIA

CPSIA – CPSIA Casualty of the Week for October 27

The Alliance for Children’s Product Safety is distributing the “CPSIA Casualty of the Week,” to highlight how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace. These updates are meant to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions that are doing little or nothing to improve product safety.

CPSIA Casualty of the Week for October 27:

As this CPSIA Casualty of the Week illustrates, the CPSIA continues to wreak havoc in our marketplace. Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring “common sense” to our nation’s product safety laws.

Middleton, Wisconsin Police Department
Thanks to CPSIA, scared kids can no longer be given stuffed animals by police to comfort them

Police Switch To Handing Out Books To Children
Wisconsin media reported on October 12, 2009 that because of CPSIA, the Middleton, WI police department will no longer use stuffed animals to comfort children who have gone through traumatic events. Middleton Police Sgt Don Mueller said that the police for years could hand out stuffed animals or other toys to “help children feel a little better.” Now because of CPSIA, the police department is switching to books from stuffed animals “because of the chemicals they might contain….to make sure they’re in compliance with new federal regulations.” As Sgt. Mueller puts it “[we] get older toys that come in and they’re perfectly fine to give out, but we don’t know if they were made under the new requirements.” A much-needed comfort program has been converted into a misplaced literacy effort. (Editors note: Those books better be made after 1985. CPSC announced that “it cannot determine” if children’s books made before 1985 do not exceed the lead limit because of the ink and will issue guidance on this issue “soon”).
[Full story is here.]

Do not accept the status quo! Tell Congress and the
CPSC to restore “common sense” to our nation’s product safety laws.

Call CPSC and Congress.
Click here to find your Representative.

Consumer Product Safety Commission

Office of Chairman Inez Tenenbaum
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814
(301) 504-7900

Office of the Small Business Ombudsman

U.S. CPSC
Washington, D.C. 20207
CPSIA Information (301) 504-7429
Tel. (888) 531-9070

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CPSIA – CPSIA Casualty of the Week for October 27

CPSIA – ICPHSO Toronto Update

I attended this week’s ICPHSO meeting in Toronto. The meeting was located in Toronto and focused much attention on the proposed amendment to Canada’s 40-year-old Hazardous Products Act (the so-called Bill C-6). The meeting was attended by more than 250 people, largely comprised of Health Canada officials (the analog to the CPSC), CPSC staff, including Chairman Inez Tenenbaum directly from China, a variety of testing companies, mass market companies, Canadian companies, lawyers and other interested parties.

I thought I would share a few tidbits from the meeting:

Chairman Tenenbaum’s Keynote Speech: Chairman Tenenbaum addressed the conference on Wednesday morning. Her speech is posted on the CPSC website. The speech included a few hints of movement toward accommodation of businesses under the CPSIA, but unfortunately, it is only provides hints at this point. It is worth noting that sidebars at the conference suggest that there is more sensitivity to business concerns than CPSC public statements might suggest, but then again, we can only rely on real action, not just words. The next development to look for is a change in tone and a change in actions. When we can triangulate from words to actions, and see a real easing of the intense pressure on businesses, then we can take the off-line assurances more seriously.

Some highlights from the speech:

  • The “good”: The “15 Month Rule” is due soon. Tenenbaum promised a special two-day workshop on this rulemaking IN ADDITION to normal public outreach. She emphasized that they want to “get it right”. [Ed. Note: Rumorville has it that this rulemaking will be delayed, and the two day workshop may precede the issuance of the draft rule. Likewise, there is growing suspicion that the testing stay may therefore have to be stayed. There are multiple reasons why this may have to happen.]
  • She emphasized a need to minimize the burden on small businesses. [Minimize is a relative term, let's not get too giddy yet. Need to see what they have up their sleeves.]
  • The CPSC is reaching out to SAGs to make them partners in the safety process. She wants to minimize competition between the CPSC and the SAGs. I consider this a major advancement in CPSC practice and a nice contribution by Ms. Tenenbaum in the early days of her administration. Arguably, the 2007-8 crush of State legislation and SAG grandstanding evidenced strong State feelings of isolation and legal impoverishment (in addition to a general desire of local politicians to appeal to the populace before elections). A proactive approach by the CPSC to working with the SAGs is the best chance for ANY OF US to neutralize or minimize the disruptive behavior of States and SAGs in the future.
  • Ms. Tenenbaum announced a substantial change to the penalty factors when she said: “In cases where CPSC may impose a financial penalty on a U.S importer for violations, CPSC may to take into account whether the importer has safety or compliance programs in place and whether they conducted pre-market and production testing to minimize safety risks.” Gib Mullan also acknowledged that the penalty factors will be changing. This is another faint sign that we are being heard. The penalty factors were very harsh in the first draft. After a bit of an uproar, it appears now that the agency is going to moderate its approach somewhat. If this turns out to be a “real” shift, it is good news indeed.
  • The “bad”: The overall tone of the speech remained harsh and somewhat threatening, at least that’s how it felt to me. Phrases such as the following were reminders that the CPSC has a big club and intends to use it:

- “Chinese suppliers and U.S. importers are now on notice from both governments that it is a mistake to depend on good intentions and a few final inspections to ensure compliance with safety requirements.”

- “We will enforce in a firm but a fair manner the new federal law that puts strict limits on lead and phthalates in children’s products and makes all toy requirements mandatory.” [The emphasis was hers in the live speech.]

- “As I have consistently stated, we intend to enforce this law that Congress put in place in a firm but fair manner. CPSC also has a federal rule making underway that puts U.S. importers on notice.”

- “Another area that we at CPSC are rethinking is the singular approach used in the past to identify risks and simply recall products when necessary. This is one aspect of enforcement that will not work if pursued alone.”

So Ms. Tenenbaum maintained the tough tone but gave hints of a coming thaw. We’ll see in due course if I am imagining things. Needless to say, I hope not!

Remarks of Gib Mullan: Gib Mullan, the CPSC chief enforcement officer, gave a short speech summarizing the CPSIA and recent events. I must say I found some of this speech positively chilling. For one thing, Mr. Mullan noted with apparent satisfaction the first recall of a toy for violations of the phthalates ban. I believe this refers to the recall of 40 inflatable toy baseball bats previously highlighted in this space. Aside from the fact that Mr. Mullan confirmed that the enforcement focus of the agency is (supposedly) bath squeeze toys, which certainly does not include inflatable baseball bats, this micro-recall of 40 bats is highly suggestive of a strict liability enforcement policy. If that is so, then what is the purpose of pointing out this recall to the crowd at ICPHSO? I would suggest that it is intended to scare the business community. Mission accomplished?!

Further to that mission, Mr. Mullan announced that the agency is attempting to be more “consistent” and “rigorous” in assessing penalties. Okay kids, think of Target’s $600,000 penalty – if the CPSC is going to be “consistent”, what does that precedent mean for the rest of us? If Target gets hit with a massive penalty after it performed preshipment testing, had no actual knowledge, was increasing its safety surveillance and turned itself in voluntarily after catching its own errors, what should we expect from a “consistent” penalty practice at the agency now? Mr. Mullan continued by noting (again, with a bit too much relish) the rising tide of penalties assessed by the agency in 2009, and further noted that they haven’t even cracked the 2007 lead-in-paint violations yet. He said larger penalties should be expected now, given the new powers allowed the agency under the CPSIA.

What is the purpose of this announcement? What else could it be, besides an intent to scare you and me? And, hats off to the chef, it succeeded. Among the many outrages of this new practice is the focus on retribution for old recalls with new penalties. Why is this a problem in my view? Well, for one thing, no one can do anything about the 2007 recalls at this point. Is the CPSC under the impression that the toy industry hasn’t “learned its lesson” yet? If that isn’t their view, then why lay on mega-penalties for matters that were apparently closed with significant expense now almost three years ago?

At what point is our penance complete? I can only supply a couple suggestions to explain this new penalty practice – (a) vindictiveness (as in CPSC meting out “justice”, rather than simply ensuring a safe marketplace), and (b) terrorizing the corporate community into “compliance”. Both rationales are wrongheaded and destructive. I continue to return to my original comment (December 17) on the penalty factors – CPSC penalties can only be consistent, rigorous, purposeful and (importantly) predictable if they are restricted to egregious conduct. Until the CPSC disciplines itself to a fairer penalty system, ALL OF US will assume we are next in line to get whacked like Target. After all, the CPSC has said publicly that they intend to be consistent and rigorous on penalties – in other words, they are telling us that we can and should learn from Target’s experience. That message unleashes a parade of horribles. The CPSC needs to take this on board.

One last observation about Mr. Mullan’s speech – he noted that recalls from China fell by 40% in 2009, the first fall in years. This is of course good news for everyone, most of all the children’s product industry. As we know, success has many fathers but failure is an orphan. Many pundits point to the CPSIA as the reason that recalls have fallen. Mr. Mullan added another factor, the deep recession of 2009. Both of these factors contributed, but I think the real “father” of this success is that the notorious publicity of the new law and the new strict enforcement of the lead-in-paint rules (under the old law) led various companies and industry organizations to get mobilized to address safety practices. Who among us wasn’t shocked and horrified by the suicide of the owner of a Chinese factory that supplied Mattel with lead-in-paint toys? The horrors of the recall frenzy and everything it entailed led to changes in practice. The remaining hubbub of the new law is just a hang-over IMHO, and does not explain the good recent reduction in recalls. For this reason, I believe the focus of the CPSC and its enforcement activities can and should SHIFT toward maintaining these gains through industry outreach, education, targeted and focused enforcement, and development of new and modern systems appropriate to the changing marketplace. It even calls into question the value of the law’s kneejerk requirement of prophylactic testing, something I am on record opposing.

Health Canada and Bill C-6: Frankly, I have not had time to dig into the Bill C-6 yet but it got a lot of air-play at ICPHSO. Much of the brass at Health Canada was there, and I attended several talks by these professionals. I must say I left impressed with the Health Canada leadership. They were incredibly approachable and engaged. I was not made to feel like the “enemy”. Especially notable was their TONE. They don’t even imply that businesses are populated with bad or untrustworthy people. They repeatedly pledged to work cooperatively with businesses and noted that they have done well for 40 years with voluntary recalls and non-confrontational relationships. Hmmm, could it really be true that you catch more flies with honey than with vinegar?

They also stressed their interest in hearing about “lessons learned” and engaging in real dialogue as the new bill is crafted and refined. They noted some real gaps in their enforcement empowerment under the existing law, which they characterize as outmoded, but then again, they also stressed that these powers are intended to be used only if necessary. What a different tone they struck. They convinced me that they are nice people who mean to be partners in safety with industry. A refreshing change.

The contrast with the last year of CPSC hostility was palpable. It gave me reason to reflect on the course of my own relationship with the CPSC. Interestingly, I was a big fan of the agency until about two years ago. For 17 years I trusted them, I consulted with them, I had no reluctance to work with them and thought of them as partners, I advised friends to trust them, I did not see them as the ‘enemy”. The CPSIA and the feeding frenzy of the last two years sadly eroded that trust. Trust has to be earned, of course. I believe trust in the CPSC can be restored but not without real effort and real action. The Health Canada folks struck the right tone, and we can only hope that the CPSC was listening. Industry and the CPSC do not have to be at loggerheads, and there can be trust (there MUST BE trust). To get there, the “new” CPSC may need to make some concessions, but a path to this worthy karma level does exist. This detente does not need to involve endangering children, either. Health Canada implicitly recognizes that industry has no interest in harming children. Considerable efforts by industry are expended to avoid this terrible outcome. The presence of a few bad or incompetent actors in a massive marketplace of many thousands of companies and millions of different products does not make the rest of the market participants into bad guys, too. This is the notion that must be abandoned.

Final Thoughts: ICPHSO was a great event for networking, off-line conversations and sharing of perspectives. I feel that there is room for more dialogue. We can only hope that some barriers are being broken down, and that we may see some positive surprises (for a change). It is also clear, as Health Canada demonstrated, that a regulator can be effective and non-confrontational at the same time. We know the CPSC has a big stick, perhaps they can stop reminding us with harsh rhetoric and harsh actions (we won’t forget about the stick, trust me). Next on the agenda is a rationalizing of the rules to allow businesses to function economically. Unfortunately, I cannot conceive of this development without a change in the law. To do this, the CPSC must summon up its resolve and TELL Congress that changes are needed. I do not see any way to avoid this. Time has a value, too, so the CPSC leadership must weigh the consequences of waiting – costs are mounting rapidly as time goes by.

I hope I’m not dreaming. This can be done. The coming weeks will reveal a lot about the direction and resolution of the pending issues confronting the business community.

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CPSIA – ICPHSO Toronto Update

CPSIA – Does the CPSC Have a Clear Mission These Days?

In my recent post on the CPSC’s latest lead compliance guidance, I observed that the agency differentiates regulation of known childhood hazards by the “intent” of the product’s maker, irrespective of the physical effect of the hazard on children. This rather shocking development derives from the awful CPSIA, where the marketing intent of a product is used to determine if the product is inside or outside the new restrictions. Safety be damned?

For this reason, a ballpoint pen (a “pen”) is okay, unregulated and untested as to lead if it is not “primarily” intended for children. If a pen is “primarily” intended for children, it needs to be proven lead-free (within the new standards, okay). Notably, all children use pens. Thus, we can safely assume there are two kinds of pens used by children: (a) those primarily intended for children (the smaller set of pens) and (b) those NOT primarily intended for children (the larger set of pens). The CPSC is only interested in testing and regulating the smaller set, the ones primarily intended for children – this in spite of the fact that the agency knows that the unregulated larger set is used universally and in high numbers by children. In theory, the pens in both sets could be identical – and it wouldn’t matter. Conclusion: the “new” CPSC is all about enforcement (which pens are regulated and which are not?) and NOT about safety (which pens are actually safe and which are not?). This is truly sad – for American consumers (including me and my family).

How did this happen?

The law pushed us here, and the new leadership at the CPSC, led by Inez Tenenbaum, was only too enthusiastic to take us along for the ride. The new CPSC outlook appears to be that the CPSIA defines safety and ergo, vigorous enforcement of the law makes everyone “safer”. If the law proscribes a product, a feature or a use, it is unsafe, and barring compelling evidence to the contrary, if the law doesn’t proscribe the product, feature or use, it’s safe. That’s it. Turning back to the astounding pen decision, the rationality of the CPSC’s position is therefore dependent on the CPSC having NO information suggesting that pens present a danger to children from lead. This makes it possible for them to say that it’s fine to sell unregulated pens to kids. Of course, it also means that they are knowingly outlawing something that they KNOW is safe (pens primarily intended for children). They just don’t want to admit it.

Ah, that’s the rub, isn’t it? They won’t admit that their mission has been terribly distorted by this law. They want to pretend that, in fact, they are still the champions of safety. [Ed. Note: In many ways, the CPSC remains a great champion of safety. The implementation of the CPSIA is NOT one of those ways.] How far will they go to assert moral high ground as the CPSIA police rather than as an agency with a safety mission first and foremost?

Earlier today, the Grand Haven Tribune posted (yet another) article about the ill-effects of the CPSIA. This time the article focused on the dilemma faced by small cottage industries and handcrafters under the new safety law. Consider the quotes from the CPSC spokesperson in light of our discussion:

“‘This law is intended to make products safer for children because there are too many incidents where children have ingested too much lead,’ said Kathleen Reilly, public affairs specialist for the U.S. Consumer Product Safety Commission. ‘There are many, many products that contain lead. So this takes a look at preventing that.’ With the product safety act, the commission plans to significantly reduce the total lead content in products from 600 parts per million to 100 ppm by August 2011. Products now must not contain more than 300 ppm, according to the act. ‘We’re not trying to put people out of business,’ Reilly said. ‘But there has to be safer standards for children’s products. . . . We’re not out to get anyone. . . . We’re just following the law to make sure people at home who make children’s products make safe products. How do you know whether or not it’s safe if it’s never been tested?’”

So, the CPSC says that the standards are needed to stop “too many incidents” where children have ingested “too much lead”. From toys, hairbows and clothing – or from lead paint on the walls of their homes or by ingesting lead in dirt? The new CPSC shockingly does not distinguish among these sources of lead – it just reads the law, enforces it . . . AND then justifies it. The assertion that we have a widespread lead poisoning problem from children’s products is the justification, however fantastic and faulty. I would like to point out that the notorious lead-in-paint recalls of 2007/8 resulted in ONE reported injury and ZERO deaths over 25 months. Hmmm.

The agency continues its justifications with the implication the agency believes and believed that “safer standards” were necessary. Is it true that the CPSC went to Congress to ASK for these new standards? Did they testify in favor of the tighter standards, saying that they were necessary to stop a public health crisis? Did the CPSC Staff rise up and demand that standards be tightened? The answers are no, no and no. However, Ms. Reilly’s remark makes a good sound bite and it makes the agency’s enforcement policy sound appropriate and necessary.

The worst of this string of justifications is her assertion “How do you know whether or not [a toy is] safe if it’s never been tested?” Where did Ms. Reilly come up with this one? I was not aware that the CPSC actually believed the old chestnut that it is appropriate to assume the worst about products unless manufacturers preemptively test. Say, this sounds faintly familiar . . . yes, it’s coming back to me . . . . Anyone remember this quote: “Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested.” [Emphasis added] The author: Rachel Weintraub, director of product safety for the Consumers Federation of America in the Wall Street Journal on September 10. In other words, the CPSC has adopted the consumer groups’ rationalization for the CPSIA to justify their emphasis of enforcement over safety.

Ironically, the coherence of the CPSC’s new message is destroyed by the fact that items outside the regulation (such as pens not intended for children) won’t be tested but may be used widely by children. Are they still “safe”? Go on, CPSC, chase your tail!

The mission at the CPSC used to be safety. A product, component, material or use was evaluated for risk, and it was regulated only if it presented a harm. Now Congress has fobbed off a dangerous defective law on the CPSC, installed an enforcement-first Chairman, who in turn ramped up the agency’s PR machine to make the new police force look like a safety patrol. In fact, the new leadership seems obsessed with enforcement and rarely asks about actual safety when discussing products affected by the CPSIA. When thinking about brass or about pens, does the subject even come up? Do I need to remind you of the rhinestones fiasco? The agency solves this problem with its “public affairs specialists”, employed to lull the public into submission with the tranquilizer that we always needed this excessive regulation. . . . That makes it all okay!

I am disappointed in myself that I am even somewhat surprised by all this. After all, history is written by the victors and in this case, the Democrats put their people in charge and told them what to do. The retelling of the safety story has begun, and in the process the 37-year mission of the agency is being obliterated before our very eyes. Ironically, I feel strongly that this will end in Americans being less safe, not more.

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CPSIA – Does the CPSC Have a Clear Mission These Days?

CPSIA – Does the CPSIA Cause Birth Defects?!

BBC News published yet another study of phthalates this week in which stress hormones were fingered as a source of birth defects. In particular, the study focused on those ailments which obsess the concerned citizens of America, the all-too-common “cryptorchidism” (the testes fail to drop) and “hypospadias” (the urinary tract is not aligned). Who among us doesn’t know TEN PEOPLE with each of these problems?!

Here’s a few quotes to chew on:

“Dr Mandy Drake, from Edinburgh University’s centre for cardiovascular science, said: “What the study shows is that it is not simply a case of one factor in isolation contributing to abnormalities in male development but a combination of both lifestyle and environmental factors, which together have a greater impact.” [Come on, guys, you don't expect us to believe that, do you?!]

“‘In most studies reproductive disorders are only seen after abnormally high levels of exposure to chemicals, which most humans are not exposed to. Our study suggests that additional exposure to stress, which is a part of everyday life, may increase the risk of these disorders and could mean that lower levels of chemicals are required to cause adverse affects.’ The study looked at male fetal development in rats. It found that while exposure to the chemical compound dibutyl phthalate, found in products including glues, paints and plastics, had some effects on reproductive development, this was significantly increased with simultaneous exposure to stress hormones.”

In other words, phthalates may be much less of factor than stress in causing birth defects. What might induce stress while in utero? Well, how about scare tactics by politicians, media and consumer groups? How about their never-ending daily assault on the dangers of modern life? The regular appearance of articles questioning all the basics in our life, the accusations of hidden dangers lurking everywhere. In particular, for a pregnant woman (emitting the stress hormones to the in utero baby), the worrisome impression that the trusted baby products she bought from the trusted ocmpanies she has known for so long . . . can’t be trusted. That’s some serious stress.

And a likely source of such stress hormones today is the CPSIA. This study then lends credence to the proposition that the greatest threat to the health of our nation is Congress! The stress induced by the confidence-sapping CPSIA is apparently causing birth defects, and now we have a study to prove it.

It’s time to sue Congress for this tort, and to pass legislation outlawing these stress hormone-inducing scare tactics. While we’re at it, we might as well change the CPSIA, too. For good for future babies, we have to finish the job once and for all!

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CPSIA – Does the CPSIA Cause Birth Defects?!

CPSIA – CPSC Isn’t Interested in These Ways to Poison Children

In a clarification of the rules implementing the CPSIA, the CPSC today documented which ways to poison children with lead are legally permissible.

First, it is okay to incorporate as much lead as you want in your product, provided that it is not “intended primarily” for children: “The Commission is often asked what products must comply with the lead content limit, i.e., what is a ‘children’s product’ under the law. The answer is anything that is designed or intended primarily for a child 12 years of age or younger. ‘Primarily’ is the key word used in the law. Not everything a child uses or touches must meet the lead content limit, only those things designed or intended primarily for a child 12 years old or younger.” So, this means that the lead limits only apply to products intended “primarily” for children, and does NOT apply to products that children might use but aren’t aimed at the children’s market. [This is the dilemma in the brass bushings case.] Regulation of children’s products exists in its own little world, and hazards that exist within that market don’t exist outside it – is that it?

The CPSC will make a determination about this intent based on what you say or what you and others think about your product: “We consider how the product is marketed as well as what the manufacturer has said about the product (if reasonable) and whether consumers commonly recognize the product is being intended for a child 12 or younger.” Given that the CPSC is supposed to protect consumers from untoward product hazards (hence the agency’s name), I think it is fair to conclude that the CPSC has decided use of lead is only dangerous if the leaded product is intended for children. Intent apparently affects the physiological impact of lead. Interestingly, this is also the case with phthalates. Perhaps these materials were banned from children’s products because they can be activated by mind control, which is clearly dangerous.

I find the CPSC’s position compelling, as it suggests that perhaps the rules for small business under the CPSIA should be different. Many people have suggested to me that we should demand different rules for small business. After all, small businesses are severely and unfairly penalized under the new law – perhaps small business should get a pass? I have always said “no” on the grounds that parents are unlikely to forgive injury based on who caused it. Injuries are bad, whether caused by a big business product or a small business product. Therefore, it seems imperative to me that one (rational) set of rules needs to apply to everyone.

If, however, lead is okay if delivered by pen (“. . . most consumers would not consider an ordinary ball point pen as being intended primarily for use by a child 12 years of age or younger”) but not by way of an electrical cable in a potato clock, then perhaps we can rethink the other rules by analogy. Thus, this new CPSC position paper suggests that it might also be okay for certain kinds of businesses to poison kids. Pen companies, for instance, are apparently unrestricted – your Bic can be made of pure lead, that’s fine with the CPSC. By this same pretzel logic, I think it is reasonable to hold that small businesses are exempt from the law. Why not?!

In the same document, the CPSC also reiterated their excellent advice on materials that can be included in children’s products without testing for lead. They chose to remind us that our old friends palladium, rhodium, osmium, iridium and ruthenium are okey-dokey in children’s products. The fact that these materials are well-known to be poisonous, explosive and made from spent nuclear fuel rods did not apparently deter the CPSC. I know I am not a “safety professional” but I would think that at least some of these materials are hazardous substances under the FHSA, presumably making them poor candidates for exemption from the CPSIA. Given that these materials continue to appear on the CPSC’s exempt list suggests that I must not fully appreciate their safety benefits . . . .

Of course, the CPSC’s permission to use these materials on the grounds that they are lead-free seems remarkably out of touch with reality. Each of these materials, like other permitted materials like surgical steel, certain stainless steels, gold, silver, platinum and titanium, as well as diamonds, rubies, sapphires, emeralds and natural or cultured pearls, is absurdly expensive and in many cases, quite rare. It may sound good to say that the market is full of available alternatives, but if they are ridiculously expensive or hard to obtain, how is that any different than giving us permission to use pixie dust or krytonite? As a practical matter, not at all.

Someday, I wish the CPSC would issue practical advice that made sense to me. Once upon a time, I actually thought our nation’s safety laws were rational, understandable and predictable. Nowadays, they are riddled with traps for the unwary and require teams of people to interpret and administer them. The implementing rules are detached from any semblance of the reality of the marketplace: “The products on this list are all things the Commission has determined do not contain lead over 100 ppm, which is within the allowable 300 ppm limit. Thus, they will comply with the law (and must always comply) and, therefore, do not need testing and certification. They do not need to be tested by a third party laboratory to prove they are, in fact, made of something on the list, and they do not need to be tested to prove that they meet the lead content limits . . . . Some retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list.” That makes it fine, I guess – the CPSC has had nothing to do with this “mysterious” phenomena.

As long as the CPSC thinks it is okay to wear blinders while doing its job, we will continue to get rules describing the legal and illegal ways to poison children and other safety conundrums. I am tired of it, what about you?

Read more here:
CPSIA – CPSC Isn’t Interested in These Ways to Poison Children

CPSIA – Let’s Pretend We’re a Resale Shop!

Who wants to play a fun game? Let’s pretend we are the Salvation Army Resale Shop in your neighborhood and process some newly submitted children’s products. We have to figure out if we can sell them legally because we know the CPSC is about to stop by. Sound like fun? Of course it is! I know you like to play Store.

Here are the rules of the game: I have reproduced ten children’s items here. These images came from eBay and from the CPSC website. Yes, one or more of the items has been RECALLED – oooo, CPSC Chairman Tenenbaum says recalled items “[put] children’s lives at risk.” So in this game, you can make children in your neighborhood so, so safe if you find the “dangerous” recalled product or products. Of course, you will also avoid going to the pokey. . . . As you well know, it’s illegal to resell something that was recalled, so you have to go through the drill of figuring out which of these $3.00 items are okay to sell. In today’s Product Safety Letter, Randy Swart informed us: “Culling out recalled products adds another level of processing for the small retailer of reused products, but it can be done by just checking against a list.”

Everybody has been saying that it’s so easy to figure out which items have been recalled. After all, the CPSC has a nifty website and all you have to do is check it. Right? Let’s find out. Mr. Swart gave you the link. Thanks, Randy!

I want to know how you like my contest and how quickly you were able to finish all ten items. Get out your stopwatches! No cheating – I want to know how long it took to thoroughly check each of the ten items, and how many items you think were recalled. Please don’t say which one(s) were recalled since that would spoil the game for everyone else.

Btw, my contest is open to all contestants - even CPSC Professional Staff, CPSC Commissioners and Members of Congress. Don’t be shy!

Ready, set, go!









Read more here:
CPSIA – Let’s Pretend We’re a Resale Shop!

CPSIA – Randy Swart Takes My Spot in PSL!

Never tiring of a good thing, the Product Safety Letter today published an Op-Ed by Randy Swart entitled “CPSC’s Guidance Is Not as Confusing as It May Seem“. Mr. Swart is the founder of the Bicycle Helmet Safety Institute. In this article, Mr. Swart replies to Rob Wilson’s Op-Ed in PSL on Resale Shops and Inez Tenenbaum in a way not exactly reminiscent of my rejected Op-Ed on the same subject. Recognizing the PSL’s reputation for “neutrality” and “accuracy and clarity”, I am trying to figure out why Mr. Swart got the nod over me. Could it be that Mr. Swart’s views might be more pleasing to the regulators that feed the PSL its life-sustaining information? Golly, that’s a head scratcher. . . .
Mr. Swart: “CPSC’s Guidance Is Not as Confusing as It May Seem”
RW: “Tenenbaum Silence on CPSIA Speaks Volumes”
Mr. Swart: “As all readers of Product Safety Letter know, CPSC is struggling to maintain any level of enforcement at all, and will not be going after yard salers!”
RW: “Scott Wolfson, a spokesman for the agency, said it wouldn’t be dispatching bureaucratic storm troopers into private homes to see whether people were selling recalled products from their garages, yards or churches. ‘We’re not looking to come across as being heavy-handed,’ he said. ‘We want to make sure that everybody knows what the rules of engagement are to help spur greater compliance, so that enforcement becomes less of an issue. But we’re still going to enforce.’”
Mr. Swart: “In fact, [the CPSC] would have no more idea than the parent which old toys contained phthalates or had lead in the paint, and would have to test to establish that. Finding recalled product would be looking for needles in haystacks. It just will not happen.”
RW: “After all, didn’t NY Attorney General Eliot Spitzer secretly inspect resale shops in 2003 and then release names and addresses to the media? Interestingly, Spitzer was joined by some of the same consumer advocates who are behind the CPSIA. The CPSC has the same power to embarrass.”
Mr. Swart: “It is not fair to blame the Commission or Congress for not grandfathering the dangerous toys in our market. We need to get them out of circulation [Ed. Note: Who, the Commission or Congress?], and that fact is independent from the enforcement of the CPSIA legislation. It will impose a hardship on some retailers, but that pales in comparison to the alternative–to tolerate the continuation of poisoning our children for years to come until those toys are worn out.”
RW: “’The [West Michigan] Salvation Army does not have thousands of dollars to spend on lead-testing equipment, so anything that looks suspicious — plastic toys, painted toys, toys with magnets or small parts, toys made in China — is pitched, said Robert Pierce, director of operations for the Salvation Army stores. Only about 20 percent of donations to the Salvation Army — compared to about one-third before the law — make it onto the store floor.’ The CPSC’s tough talk on enforcement is having a chilling effect on the business community – and that cost must be weighed when regulators get ‘tough’”.
Mr. Swart: “In fact, any threat of CPSC retribution is probably less real than the possibility of being sued by the buyer if someone is injured by a recalled product. That should give the yard saler pause if nothing else does. Many people trash some items that they would have sold or Freecycled because of that risk.” [And this guy thinks he is helping make a case for the CPSC and the new law???]
RW: “The agency previously played a critical role in setting safety priorities, assessing risks and interpreting the law. . . . The Chairman can show she is a leader by providing an honest assessment to Congress of the problems with CPSIA and mapping out the necessary changes. Ironically, none of this is about safety – it’s about a law that just doesn’t work.”
Okay, I can’t figure it out! Can you?
A couple final thoughts (can’t resist): Mr. Swart says “The chemical detoxification of America is just beginning, and this is one of the early skirmishes in a long war.” Please remember this blather. This is the mantra of the “everything-is-bad-for-you” crowd. If you want to see this mania in action, watch this video (and if you have the time and energy, the three other segments). This outlook is extremely dangerous but with Mr. Waxman as champion, threatens to infect federal regulation of many markets besides toys. This is the so-called “Precautionary Principle” and is the basis of the proposed amendment of the Toxic Substances Control Act (TSCA).
Second, in response to Mr. Swart’s comment “It will impose a hardship on some retailers, but that pales in comparison to the alternative–to tolerate the continuation of poisoning our children for years to come until those toys are worn out”, I want to reprint the words of a staffer from the office of Illinois’ own Senator Dick Durbin:
April 16, 2009: “I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions). . . .” [Emphasis added]
I can hardly express my joy at being a Congressionally-selected victim for the greater good of our country! Their “larger calculation” sounds so sophisticated. I will go out with a smile on my face.
The barf bags are over on the shelf on the left.

Read more here:
CPSIA – Randy Swart Takes My Spot in PSL!

CPSIA – Do-Gooder Congress Wants to End Paper Recycling, too!

Carol Baicker-McKee points out that it has been reported in Publishers Weekly that recycled paper may contain lead and phthalates – darn, there goes paper recycling, too! In an April 2 article entitled “Children’s Publishers Address CPSIA Testing and Labeling Provisions“, Publishers Weekly sets the record straight:
“The Consumer Product Safety Commission has said it will not enforce the Consumer Product Safety Improvement Act when it comes to “ordinary” books printed after 1985 . . . [but] for publishers of novelty and book-plus formats—which account for a significant chunk of sales, especially in mass-market and special-market channels—the CPSIA will remain in full force, with all of its costly testing, certification and labeling requirements. . . . Several publishers said they test all of their titles, not just novelty books but also ink-on-paper formats. Most books came through the testing with flying colors, but there were a few incidences reported in which titles did not make the grade. With the increasing interest in all things “green,” it’s interesting to note that books made of recycled materials are more likely to contain some lead or phthalates and therefore less likely to make it through the testing process.” [Emphasis added]
Yes, that’s right – recycled paper might have lead or phthalates in it! Ouch, can’t use that in children’s products – for packaging, for guides and instruction manuals, or in books. Oh well, we have very large dumps available for our refuse! [See here for the benefits of paper recycling.] Btw, lead and phthalates are found in recycled paper because of inevitable contaminants like staples, binding materials, foil, whathaveyou. It’s all thrown together, heated, churned, swished around, etc., before being sifted apart. Some contaminants remain. Is that really surprising?
Imagine if Congress wrote laws after they thought about what they were doing! What a wonderful world that might be . . . . Right now, I call on the CPSC to step forward and do the right thing – ban all recycled materials or components used in children’s products – WAY too dangerous for our new America. We need all new everything, it’s a modern stimulus package.

Read more here:
CPSIA – Do-Gooder Congress Wants to End Paper Recycling, too!

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