CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

Read more here:
CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

Read more here:
CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

CPSIA – Thoughts on First Day of CPSC Workshops

1. The broad participation of so many different kinds of stakeholders provided the CPSC with valuable feedback on the current state of the marketplace. The Commission knows now that things remain messed up. Even component testing, the hot topic for today’s session, is somehow controversial. One can only hope that the Commission recognizes that lifting the Stay at this point will be hazardous not only to the market but also to its own agency’s health.

At a public meeting with Chairman Tenenbaum yesterday, she acknowledged that the Stay can only be lifted by action of the Commission. PLEASE KEEP THOSE EMAILS FLOWING TO THE COMMISSIONERS URGING THEM TO CONTINUE THE STAY.

Commissioner Northup asks that you use the following email address: Commissioner_Northup@cpsc.gov.

2. Consumer groups continue to aggressively seek to dominate the safety debate. David Pittle announced in my first panel discussion that he alone represented consumers in the discussion (on that panel). Of course, this is not true. Every single person at the table was a consumer, as were all their customers, suppliers, employees and families. It’s time for the consumer advocates to stop asserting the higher moral ground and to limit their discussion to the issues at hand. We are all qualified to be at the table to discuss these issues of mutual interest and deserve to do so without arguing about who is more righteous.

3. An interesting point also came from the first panel, namely the distinction between COMPLIANCE and SAFETY. Can something be non-compliant but still safe? Of course, the answer is yes. It makes about as much sense to enforce the new standards as a strict liability limit as it does handing out speeding tickets for going one mile-an-hour over the speed limit. The debate needs to be exclusively about safety, not compliance, not how we feel or how we should feel. It’s all about SAFETY.

4. I am increasingly hearing from CPSC Staff about the need to “keep things simple”. This is music to my ears. Of course, it’s a 12-step program because the law is still goofed up, their allocation of resources is therefore inherently goofed up, and we are already in a deep hole. Still, the very fact that complexity has been acknowledged as an issue is another sign that WE ARE BEING HEARD.

5. The CPSC is doing itself some good at this workshop by signalling that it is genuinely interested in dialogue. Coming on the heels of their strong effort to maintain an orderly marketplace for toys (Zhu Zhu Pet rescue effort), the good faith of the agency should be nurtured. They want to be trusted again, and I recommend that we return the favor with good will and good faith back to them. They deserve a chance as a good partner, and frankly, we need them as a partner. If they will honor this responsibility, again, we are making progress.

That’s it for now!

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CPSIA – Thoughts on First Day of CPSC Workshops

CPSIA – CPSC Hailed for Fast Action on Zhu Zhu Pets

Business Week just published an article documenting the fast action of the CPSC to quell the Zhu Zhu Pet safety controversy. The CPSC raced to the defense of Cepia LLC, makers of the Zhu Zhu Pets, demonstrating goodwill to the regulated community by calling it like they saw it. You would expect nothing less of regulators, frankly, but of late, it appeared to many that no breaks would EVER come the way of manufacturers. Here’s hoping that the playing field is finally leveling off!

Read more here:
CPSIA – CPSC Hailed for Fast Action on Zhu Zhu Pets

CPSIA – Sean Oberle Takes a Pot Shot

How dare I express anger at irresponsible or incompetent consumer groups! I guess I am not a right thinking individual . . . like Sean Oberle, owner of the Product Safety Letter.

Today, Mr. Oberle made an oblique reference to me in his editorial entitled “Zhu Zhus: Who Loses?”. In this essay, Mr. Oberle expresses the view that, like negative sales spillover effects from recalls, consumer groups may suffer some reduction in reputation from the actions of the inaptly-named “GoodGuide”, famous for attacking Zhu Zhu Pets this week. [Courtesy of the fast action of the CPSC over the weekend in defense of the victimized Cepia LLC, the product was promptly cleared.] After snuffling up a few tears for the consumer groups, nobles one and all, Mr. Oberle carries on with a reference to my recent essay on this sad episode:

“But the current doesn’t stop at humor. It runs into hostility. Indeed, one anti-CPSIA advocate this week went so far as to use publicly the irresponsibly offensive (yet laughable) slander, terrorists, to describe consumer groups when reacting to the Zhu Zhu story.”

I don’t mind being singled out, or even insulted in a condescending manner, for the content or choice of words in my essay on Zhu Zhu Pets. It is hard to interpret the concerted (in fact, coordinated) efforts of many consumer groups to destroy our industry as anything other than terrorism. The annual spectacle of consumer groups frightening the public by spreading fear and misunderstanding about toys is revolting and deserves public shame. Consider the recent successes of CEH in getting shoes and sandals recalled by the CA AG for having too much lead in soles and insoles. Wow, we really are safe now. That’s quite a public service, isn’t it? [Mattel's fines paid for CEH's sleuthing.] Likewise, Illinois PIRG’s failure to find much to complain about in current toys on the shelf didn’t stop them from making up a new safety standard (lead in the toys are below the federal standard but above ZERO!). In another case, the “Trouble in Toyland” report this year hauled in a bounty featuring as its big catch a zipper pull. Still, it was a great opportunity to go on TV and make out like the problems were still dire. Hey, it’s a living. . . .

And the media is biting down hard, swallowing hook, line and sinker. Consider the WSJ and the Washington Post coverage of the “GoodGuide” episode:

• WSJ: “The developments underscore the role that consumer groups can play in helping the government regulate children’s products, but also the confusion they can bring.” [Emphasis added] Helping? By doing what, spreading misleading information and causing a massive emergency by incompetently attacking the year’s leading toy? That kind of help I think the CPSC can live without.
• Washington Post: “A ratings Web site, GoodGuide, reported Saturday that it had found high levels of antimony in the Zhu Zhu Pets’ ‘Mr. Squiggles’ model. Antimony is used as a fire retardant in textiles and plastics, and chronic exposure to it can cause heart and lung problems and other health effects. Federal laws require that toys contain no more antimony than 60 parts per million. GoodGuide reported that it had tested Mr. Squiggles and detected antimony between 93 and 106 parts per million.” High levels? What exactly constitutes “high levels” of antimony, anything over the limit? Is that because even one part-per-million of antimony over the federal limit on the product’s nose is deadly? I dare say NOT. How many slices of filet-of-nose-of-Zhu-Zhu-Pet must be consumed before you get “heart and lung problems and other health effects”? My opinion: the Washington Post has absolutely NO IDEA. However, what’s the story if a paper can’t use strong words to describe minor issues?

Don’t worry, the Washington Post hasn’t lost its edge. It tried again the very next day to help stir the pot some more.

Despite Mr. Oberle’s indignation over my choice of words to describe the saintly consumer groups, most Americans are getting sick and tired of the stunts the self-appointed advocates pull annually. A little bit of this is a good thing, a mass terror campaign not so much . . . .

If we are ever to pull ourselves out of this miasma as a society, we’re going to have to get away from consumer education through fear mongering. The issue confronting us is safety. Safety . . . not compliance, these are two different things. Perhaps there is something more to the virulence of the campaign than meets the eye. There are those among us who have a political agenda, in addition to an interest in safety. Let’s not confuse the two. Revving up in Congress is an effort to recast the Toxic Substances Control Act. This next phase of the CPSIA descent-into-hell aims to make all chemicals suspect until proven safe. Sounds good to you? Well, consider what this approach to regulation has done to all aspects of the children’s products industry over only TWO such chemicals (lead and phthalates). The same luminaries who brought you this mess have a mega mess to sell next.

Don’t let it happen.

Read more here:
CPSIA – Sean Oberle Takes a Pot Shot

CPSIA – UPDATE FROM CPSC WORKSHOP

The Stay is on the table NOW. A decision could be made next week. KEEP THE LETTERS FLOWING. They need to feel your pain. They also need to know that any decision to lift the stay will inflict an even greater pain on the agency. The better use of time is to get it RIGHT. There is little incentive to hurry up and be wrong. . . .

For those you watching at home, have you placed an ad for an in-house statistician yet? How many do you think you will need for your safety team?

Read more here:
CPSIA – UPDATE FROM CPSC WORKSHOP

CPSIA – Thoughts Ahead of Today’s CPSC Workshop

A few tidbits ahead of today’s workshop:

1. Your letters are hitting the mark. PLEASE keep the letters on the Stay coming. The CPSC continues to believe that it can fix the law piece-by-piece with more rules and interpretations, and is ignoring the practical problems that you face. They MUST delay the lifting of the Stay until they either FINISH THE JOB or get Congress to restore sanity to safety administration. I am on record that they cannot fix this WITHOUT a change in the law. You need to make yourself heard.

2. Here’s a shocker – there will be people at the workshop who are AGAINST component testing. For one, in a recent public meeting, YKK (a well-known zipper maker) has come out strongly against component testing on the grounds that it will encourage counterfeiting. To be frank, I have not seen or heard a comprehensive statement of their position and look forward to hearing it. My gut tells me that their principal concern is competition, not counterfeiting. Component testing is extremely beneficial to small businesses. Arguably, Big Business is only minimally affected by the CPSIA, at least in comparison to the impossible burdens borne by small business. Be prepared to argue your case.

3. The CPSC doesn’t want to see their workshop derailed by a complaint session about the many problems with the law. I think that’s a fair request. In any event, find the opportunity to stress the burdens that you bear and try to get them to focus on the challenges posed by COMPLEXITY. This issue is not something that the CPSC wants to fully acknowledge and seems bent on building more and more complexity into their system to compensate for the many, many flaws in the law. They need to know that it’s a real factor that will have a serious impact on the effectiveness of this safety regime. Likewise, it is a killer in the marketplace, especially in relations with dealers and retailers.

4. Finally, don’t forget to ask yourself today about SAFETY. This workshop is about RULES divorced from reality. As we argue endlessly about how many angels can dance on the head of a pin, ask yourself and remind the CPSC how much all of this has to do with SAFETY. We are getting lost in the weeds as we try to build a set of rules to accommodate a terrible and defective law. If we allow the fantasy to go forward that the new rules are somehow about safety (e.g., is a zipper tested by components or as a completed product safer one way or the other? OR are zippers known to be safe already?!), we are going to actually help them build the structure to kill us. We don’t want to do that!

I will try to report from the workshop as time permits.

Read more here:
CPSIA – Thoughts Ahead of Today’s CPSC Workshop

CPSIA – Thoughts Ahead of Today’s CPSC Workshop

A few tidbits ahead of today’s workshop:

1. Your letters are hitting the mark. PLEASE keep the letters on the Stay coming. The CPSC continues to believe that it can fix the law piece-by-piece with more rules and interpretations, and is ignoring the practical problems that you face. They MUST delay the lifting of the Stay until they either FINISH THE JOB or get Congress to restore sanity to safety administration. I am on record that they cannot fix this WITHOUT a change in the law. You need to make yourself heard.

2. Here’s a shocker – there will be people at the workshop who are AGAINST component testing. For one, in a recent public meeting, YKK (a well-known zipper maker) has come out strongly against component testing on the grounds that it will encourage counterfeiting. To be frank, I have not seen or heard a comprehensive statement of their position and look forward to hearing it. My gut tells me that their principal concern is competition, not counterfeiting. Component testing is extremely beneficial to small businesses. Arguably, Big Business is only minimally affected by the CPSIA, at least in comparison to the impossible burdens borne by small business. Be prepared to argue your case.

3. The CPSC doesn’t want to see their workshop derailed by a complaint session about the many problems with the law. I think that’s a fair request. In any event, find the opportunity to stress the burdens that you bear and try to get them to focus on the challenges posed by COMPLEXITY. This issue is not something that the CPSC wants to fully acknowledge and seems bent on building more and more complexity into their system to compensate for the many, many flaws in the law. They need to know that it’s a real factor that will have a serious impact on the effectiveness of this safety regime. Likewise, it is a killer in the marketplace, especially in relations with dealers and retailers.

4. Finally, don’t forget to ask yourself today about SAFETY. This workshop is about RULES divorced from reality. As we argue endlessly about how many angels can dance on the head of a pin, ask yourself and remind the CPSC how much all of this has to do with SAFETY. We are getting lost in the weeds as we try to build a set of rules to accommodate a terrible and defective law. If we allow the fantasy to go forward that the new rules are somehow about safety (e.g., is a zipper tested by components or as a completed product safer one way or the other? OR are zippers known to be safe already?!), we are going to actually help them build the structure to kill us. We don’t want to do that!

I will try to report from the workshop as time permits.

Read more here:
CPSIA – Thoughts Ahead of Today’s CPSC Workshop

CPSIA – Educational Company Woes under the CPSIA

Michael Warring, President of American Educational Products, was quoted in the Nov/Dec issue of NSSEA Essentials in an article called “Realities of the Recession” as follows:

“The resources that we have to invest to comply with CPSIA are truly wasted. The human cost is incredible, never mind the waste of physical and cash resources. I anticipate that CPSIA will generate four to eight hours a year of work for every product that we sell – we will be measuring it in man-years. Existing regulations prior to CPSIA were adequate, and like many regulatory requirements, only needed adequate funding to be completely effective. The timing could not have been worse for our industry.”

. . . .

“As mentioned before, CPSIA has had a significant impact on our business. Every second is spent addressing our customers’ concerns, working with our suppliers to meet requirements. I personally have spent at least about 30 percent of my time this year (on CPSIA) in one form or another. As president of the company, I should be investing my energy (on other things).”

Mike, I feel your pain!

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CPSIA – Educational Company Woes under the CPSIA

CPSIA – Letter to CPSC Re Continuation of Testing and Certification Stay

Dear Chairman Tenenbaum, Commissioners Adler, Moore, Nord and Northup:

I am writing to strongly urge the Commission to vote to extend the CPSIA testing and certification stay (the “Stay”) originally implemented on January 30, 2009 and due to expire on February 10, 2010. The Stay should be continued for at least one year PAST issuance of final implementing rules and regulations relating to testing frequency, sampling, component testing, re-testing requirements, testing standards for phthalates and ASTM F963, enforcement policies and certification of sufficient laboratories to handle the market’s volume requirements.

The Stay has served its purpose well. When originally adopted in January, the Commission intended to create a pause to allow the issuance of implementing rules and further permit market adjustment to those new rules. The Stay was needed to avoid confusion and chaos in the marketplace. Unfortunately, the task of issuing implementing rules to fully realize the goals of the Stay has not been completed. The incomplete state of the full range of testing rules and related activities (like test lab certification) has prevented full implementation of testing and certification in the marketplace. While many companies are testing aggressively, as the much-reduced toy recall rates attest, the market is simply not ready for full implementation. No one knows what full implementation even means.

Many critical tasks remain incomplete:

• The “15 Month Rule” was not issued when due on November 14th. The stakeholder feedback from this week’s workshop on the “15 Month Rule” has not been received, much less reviewed or digested.
• Comments on the “15 Month Rule” are due on January 11. These comments have not received yet.
• The CPSC has not even solicited comments on the lifting of the Stay from stakeholders.
• Component testing rules have not been promulgated, despite calls by Commissioner Nord in her January 30th Statement on the Stay.
• The CPSC has not issued its phthalates test standard.
• The CPSC has not certified any testing laboratories for the phthalates test standard yet.
  The CPSC has not certified labs for ASTM F963 testing yet.
• The CPSC admits that it has not certified enough labs to handle a full burden of testing for many product classes or safety tests.
• The CPSC acknowledges that fixed testing costs are creating a serious burden on small businesses.
• The CPSC has not defined “children’s product”, “toy”, “play” or “childcare article” yet.
• The CPSC acknowledges that many companies have not acted to fill market gaps like component testing because the rules are not final (or even drafted in this case).
• The CPSC is on its third enforcement policy on lead and lead-in-paint.

Other serious issues relate to the practical impact of the rules on the marketplace. First, the current rules are complex and disorganized, having been released in several places and formats. Even video testimony includes unique statements of agency policy. Some “rules” contradict other rules. Many important industry questions posed to the CPSC remain unanswered months or more than a year later. The task of mastering the vast array of FAQs, letter rulings, rules, exemption requests and so on baffles even the largest companies. Notably, Mattel officials complained of this very problem in a recent meeting with Commissioner Adler and speculated on the practical impossibility of compliance by small companies. The timing of the lifting of the Stay in February will clearly affect small businesses adversely.

Second, manufacturers and their supply chains need time to adjust to new rules. Many of these new rules are not even drafted yet, much less ready to be issued in final form after public comment. This delay is not the fault of the manufacturing community . . . but the consequences could be quite significant for manufacturers if the Stay is lifted suddenly. Most legislative programs that involve a significant change in process or requirements include time for adjustment by manufacturers. It is not unusual for supply chains to receive two or even three years to shift to the new requirements. For instance, U.S. Customs started working on its new “10+2” program in June 2004, issued final rules in November 2008, has been running seminars nationwide for more than a year, and will only fully implement 14 months later in late January 2010 (compliance date). A reasonable lifting of the Stay requires at least a 12 month lead-time from implementation of the last component of the testing rules. Furthermore, to ensure successful implementation, the agency will need to make considerable investments in supply chain education and training during that 12 month lead-time. The agency must also make sure that the final rules are clear, simplified and understandable. Anything less will expose most businesses to the constant risk of conflict with 51 different regulators – regardless of their corporate efforts to comply.

Some suggestions have been made to lift the Stay in piecemeal fashion. We strongly urge the Commission to lift the Stay in the “right way” all at once after offering the regulated community a clean, complete, coherent package of rules, regulations and certifications sufficient to put manufacturers in an adequate position to successfully and efficiently comply with the new rules. Rolling out testing rules one-by-one with a similar ramp-up of compliance will only ensure that no one understands the rules for as long as possible.

The confusion engendered by a piecemeal implementation of the new testing rules will not only constitute a form of regulatory water torture, but will certainly cause regular conflicts between (a) the CPSC and its regulated community, (b) consumer groups, regulators and regulated companies, (c) State Attorneys General and regulated companies, and (d) regulated companies and their dealers/retailers. By lifting the Stay under these uncertain conditions, the Commission would be risking complete market chaos. The misery suffered by regulated companies and industries would be matched by equal misery at the CPSC. Under these circumstances, the agency would face a steady stream of crises caused by testing controversies and confusion without end. I fear that a drip-drip-drip implementation of the testing and certification requirements will render the agency crippled with overwork, inefficiencies and wear-and-tear.

These poor outcomes are avoidable by dynamic Commission action to delay the lifting of the Stay.

Manufacturers of children’s products are good law-abiding citizens who want to follow the law. Until the CPSIA rules are clearly written and implemented, following the law is an impossible task. Please take bold action to support the lawful activities of the regulated community by promptly continuing the Stay for one year past the issuance of final implementing rules and regulations relating to testing frequency, sampling, component testing, re-testing requirements, testing standards for phthalates and ASTM F963, enforcement policies and certification of sufficient laboratories to handle the market’s volume requirements.

Thank you for consideration of my views on this important topic.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.

Chairman
Alliance for Children’s Product Safety

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CPSIA – Letter to CPSC Re Continuation of Testing and Certification Stay

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