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?