CPSIA – Quotes

“Liberty has never come from Government. Liberty has always come from the subjects of it. The history of liberty is a history of limitations of governmental power, not the increase of it.”

Woodrow Wilson

“Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”

Benito Mussolini

“The price of apathy towards public affairs is to be ruled by evil men.”

Plato

“The demagogue is one who preaches doctrines he knows to be untrue to men he knows to be idiots.”

H.L. Mencken

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CPSIA – Quotes

CPSIA – Recommended Non-Legislative Changes

As promised, I wanted to provide my list of non-legislative changes to accompany my list of CPSIA changes. I have repeatedly called for effective process and resource allocation to bring about results. I do not share the view that draconian penalties and super-low standards are the answer – something else, something more “human” is needed to get better outcomes. So I conclude that changes to the law alone won’t work. The agency needs to rethink its priorities and its way of interacting with the market to reduce injuries in the long term.

As a preface, it’s important to note the following:

a. My suggestions for legislative and non-legislative changes will have NO material negative impact on safety. It is my fervent hope and intention that these changes will improve results for the agency.

b. It is critical that the agency be well-functioning after amendment of the law. In my legislative changes, I have placed a priority on cleaning up purposeless complexity and tasks that are not critical to the mission of supervising safety. It is essential the CPSC have a set of ordered priorities – because if everything is important, nothing is important. In my non-legislative changes, I propose prioritized resource allocations to improve focus on real drivers of behavior.

c. I believe the agency must reestablish a basic sense of what is safe and what is not safe. Judging from recent decisions of the Commission and recent recalls, I think the line between “safe” and “unsafe” has become blurred. Being careful about safety does NOT imply a fear of “everything”. I have tailored my legislative recommendations to focus in on REAL safety risks – only. In my non-legislative recommendations, I have focused on resource allocation, outreach/education and better communication with the regulated community, striving for constructive dialogue rather than behind-the-curve reactivity.

My list of non-legislative changes:

• Liaison office to manage Q&A with regulated companies. “No name” inquiries should be permitted. This office should be staffed adequately to ensure timely replies.
• Amnesty program – if a regulated entity turns itself in before it is notified that it is being investigated, the regulated party may NOT be penalized.
• Industry Outreach/Education – as a TOP priority, the CPSC must create an educational outreach program to sensitize industry to safety issues and to educate regulated companies on their legal obligations and on good safety practices. This office should operate independently of enforcement staff or activities. On-site training should be offered for free.
• The CPSC website should be reworked to meet best standards for access to information. The current website is quirky and difficult to navigate.
• The agency should reexamine its allocation of resources according to severity of threat, and then reorganize its assets in line with threat priorities. Threat level teams should be separately staffed and tasked, with timeliness of processing a top priority. If resources are allocated properly, the concept of a “queue” can be abandoned in favor of objective expectations on how threats are processed by the agency. The teams should be resourced independently, as though they were separate agencies (e.g., the “high threat” team would have different lab resources than the “medium threat” team).
• Industry self-regulation should again become the principal strategy of the agency to manage markets.

I recommend that all of my legislative and non-legislative changes be implemented to reduce the administrative burden of regulating the affected markets and to improve the effectiveness of the agency’s activities. The overly broad and unrealistic demands of the CPSIA made inevitable the observed diminishing impact of the CPSC. By eliminating many unnecessary standards, bureaucracy and supervisory activities (totally eliminating vast amount of work for both agency and regulated community), focus may be restored to the task of keeping kids safe. This will result in GREATER safety, certainly not increased injuries.

The task of properly allocating resources within the agency to bring about good results in the marketplace is far more important than having draconian rules on the books. With the scheme I recommend above, the CPSC would be in the optimal position to focus on real threats and to buttress safety against evolving threats. A revitalized agency focusing on high impact activities and structured to respond quickly and insightfully against emerging threats will make the CPSC a model agency within the Federal government.

It can be done . . . with some courage, some vision and a sense of conviction. The time is NOW.

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CPSIA – Recommended Non-Legislative Changes

CPSIA – Let the SUNSHINE In!

Play this video LOUD – maybe the CPSC Commission will hear it!

[Thank you, Jennifer.]

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CPSIA – Let the SUNSHINE In!

CPSIA – Eroding Trust in Our Leaders

The CPSIA spectacle over the past two years of Democratic leadership in Congress has been a sign of the times, something that revealed basic problems with these new stewards of our futures. Not only have the Democrats alone stood up against altering the CPSIA, the source of well-documented misery and phantom benefits, but they have ruled with an iron fist in an attempt to suffocate opposition. Please note that for two years, Congress under the leadership of Californians Henry Waxman and Nancy Pelosi has successfully resisted having a hearing about this law with stakeholder witnesses who could shed light on the problems (rather than the joke of hearing last Fall featuring one witness, a newly-appointed Party-loyalist Chairman of the CPSC). The message control and forum management has been revolting. Despite the fact that these folks work for us, there seems to be NOTHING we can do about this sham process.

Readers of this blog are well-aware of the mounting ANGER over this astounding indifference to facts the awful CPSIA and our suffering. The latest low point engineered by Democrats is the Commission’s failure to approve public discussion of the recommended changes to the CPSIA, a report due next Friday. This is no small issue – read my post from yesterday for a summary of legal changes necessary to restore sanity to safety administration in children’s products – yet the Dems apparently feel discussion of these issues in front of you might somehow limit their discretion. Huh? It is very tempting to believe that handlers from Congress (Guess Who) have given strict instructions to the Dem Commissioners that there will be NO public debate of these issues. And there won’t.

These blows to our faith in government raises serious questions of character. Leadership is accountable to the American public. A failure to operate openly and with an open mind is intolerable. People will not forget.

I understand that bipartisan meetings between Congressional staffers and the CPSC have been cancelled or postponed until the report is issued. Furthermore, I believe that Mr. Waxman is already circulating new language for his amendment redux quietly, sans hearing or public discussion. Connect the dots – the Democrats have decided what the report will say (they have the votes to ram it through), it has been pre-approved by Guess Who (which means it will not fix the CPSIA because the Dems on the Hill don’t care about our little problems) and a public discussion between Commissioners is pointless. As the self-appointed Prince of “Darkness”, Bob Adler, put it, “I think the positions at this point are pretty firmly set.” Right – set by Guess Who. Discussion in public will only embarrass the Dems on the Commission – they are only allowed to read from the script and will be unable to defend loopy positions without looking loopy themselves.

If all of this has not fully eroded trust in these folks, let’s not forget that we are not living in a vacuum. The behavior of the Dems on other issues is part of the milieu. These same “leaders” are making other messes for us to regard, such as Harry Reid’s “apology” for incredibly racist remarks about Obama’s skin color and “dialect”. OMG, can you believe the shamelessness? The Dems made everything nicey-nice by Obama and Al Sharpton forgiving Reid’s “poor choice of words”. Please, you can’t say something like that without thinking it, and if you think it, you are a bigot. Plain and simple. No apology will cover up this disgusting fact. ANY person in a minority will tell you that prejudice is deeply rooted, and no apology will rid the system of that poison. Reid’s apology rings rather hollow to me. And he’s the voice of the Dems in the Senate.

And then there’s health care. To protect you, Mr. Obama and the jackals crying out for health care reform have insisted on taxing “Cadillac” health care plans. This sounds “bad”, right – like someone’s getting something they don’t deserve, all at your expense. More benefits for “fat cats”, right? A great sound bite for the saviors to make their case . . . .

That’s what Obama and the other Democratic do-gooders are all about, making things fair for “regular” Americans, isn’t it? Well, Fortune Magazine has a different slant on this critical term in the Obamacare plan – namely, that the tax on so-called “Cadillac” plans will mainly punish the elderly. Why? Well, here’s a shocker, more expensive health care is generally health care delivered to sicker populations, like older Americans. Here’s an example of a plan that crosses the Cadillac boundary: “Now to Medicare — no Cadillac plan — which will spend about $510 billion this year to cover fewer than 46 million people. That’s more than $11,000 a person, well over the Cadillac threshold of $9,850 for single retirees 55 and up. And that’s without counting Medigap coverage (for which I have no numbers), which would send the average higher.” Right – Medicare, the health plan for older Americans.

I am sick of the misleading messaging, the manipulation, the indifference, the obstruction of this crop of Democrats. I have no idea if the CPSC Democratic leadership will rise to the occasion and do the right thing or whether the House and Senator Democrats will wake up to the terrible mess they made and take the appropriate steps to fix it or whether (as seems likely) the fix is in and we are cooked, but this much I DO know – I am sick of this treatment. I cannot support this kind of leadership and cannot abide by it.

The Democrats have made this mess entirely themselves. No one forced them to be so deaf and so indifferent. No one required their arrogance, high-handedness or insensitivity to the misery that they caused. When November 2 comes around and the American people exact their revenge, the party leadership will have no one to blame but themselves.

I look forward to that day.

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CPSIA – Eroding Trust in Our Leaders

CPSIA – My Recommended Changes to the CPSIA

As the CPSC prepares its January 15th report to Congress on recommended changes to the CPSIA, I have also prepared my list. As though for Santa, I am checking it twice. Rumor has it that the Waxman amendment is percolating again, all without hearings, either of the Commission or heaven forbid, in Congress. That’s open government for you. In any event, expect movement in the wake of this report. How much movement is the big question.

My list of changes is long. I have a separate list of non-legislative changes that I also recommend, which I will pass along in a future post. Please note that my list is not meant to imply any limitation on the agency’s ability to respond to emerging threats or changing conditions. In that sense, each recommended change is intended to incorporate a power by the CPSC to alter it (expand or contract) according to a risk assessment process in the future. It is also true that some of these recommendations can be accomplished by agency rulemaking. As we have observed, that rulemaking is taking forever or is seemingly stuck . . . so I put them all on my list.

I have a couple of other important objectives underlying my recommendations. First, it is critical that the law provide economic incentives tailored to the actual drivers of market behavior. The current law gives little credence to the way business people make decisions or how they interact. The CPSIA takes the simpleminded approach of ultra-strict standards combined with draconian penalties. This is ironic, given that the 2007/8 recalls that incited this law were EACH violations of then current law. Thus, it was NEVER a question of standards – only of compliance with those standards. Compliance issues are complex behavioral issues. Simply ratcheting up penalties to the stratosphere won’t change behavior much because the consequences of recalls were already very great. Something else is needed.

Second, we MUST assure that the agency is relieved of excessive bureaucratic burdens and distractions, and is given back the ability to focus on real threats. This means that we cannot always work within the context of the present CPSIA scheme, because it requires a great deal of wasteful investment by the CPSC. In addition, we must give discretion back to the agency. Congress needs to get out of the way and let the CPSC do its job.

My recommended changes to the CPSIA:

1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment.

2. Definition of “Children’s Product” should be limited to children 6 years or younger. The argument that young children play with the toys or possessions of their older siblings is not supported by statistically significant injury statistics. If children are not being harmed by this interaction, we should not have to spend billions on safety initiatives that will have little impact.

3. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger. Human factors analysis by CPSC staff indicate that it is not age-appropriate for children over three to mouth their possessions. Again, there are no statistically significant injury statistics that support a contention that children over three have any material risk from mouthing toys.

4. Definition of “Toy” should explicitly refer only to products in the form used in play. This would eliminate uninflated globes from the mouthing rules. In addition, sleepwear should only be included in childcare articles to the extent the plasticized part of the sleepwear is intended or is reasonably foreseeable to be mouthed.

5. Definition of “Children’s Product” should eliminate the factor set forth in Section 3(a)(2)(c) of the CPSA. This change is intended to make determining which items are “in” and which are “out” more objective. The Commission already has in place age grading guidelines that supplant the “common recognition” factor and provide objective guidance.

6. Definition of “Children’s Product” should be limited to a narrow class of product, ideally just toys. There is no justification based on injury statistics to regulate apparel, footwear, appliqués, hair accessories, books, pens, bikes, ATVs, educational products, rhinestones and so on. Much of the morass befalling the agency over the past two years stems from this overly-broad definition.

7. Definition of “Children’s Product” should not include anything primarily sold into the schools or which is used primarily under the supervision of adults.

8. The standards/bans for lead and phthalates should be prospective from February 10, 2009, allowing the sale of merchandise manufactured in compliance with law prior to the implementation of the law. This is ABSOLUTELY necessary to protect the thrift store industry.

9. Make ANY AND ALL changes in standards after February 10, 2009 EXPLICITLY PROSPECTIVE, including those already implemented.

10. Phthalate testing should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood. The statutory test standard should explicitly permit testing the entire product as a whole. California law, which may conflict with these definitions, should be explicitly preempted.

11. Eliminate the 100 ppm lead standard for August 2011. There is no scientific evidence that the change from 300 ppm to 100 ppm as a limit on lead-in-substrate will have any material impact on blood lead levels. However, the economic impact of this meaningless change could be severe – the equivalent of a high tax serving no known purpose.

12. Lead-in-substrate testing should be a “reasonable testing program”, not mandated outside testing. Ideally a combination of in-house testing, spot checking, XRF (allowed for this use) and supply chain management. The focus of the rules should be on safety, NOT on compliance. Third party testing can be included as a safe harbor for a “reasonable testing program”.

13. Small lot manufacturers are exempt from all testing requirements (but not the standards). ANY product which sells less than 25,000 units per annum is exempt from testing requirements.

14. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. There is no scientific evidence that this further reduction will have any material impact on health, but will have an economic impact on the marketplace.

15. Clarify that all inks are excluded from the lead-in-paint ban.

16. Modify definition of “technologically feasible” to take into account economics. It is demonstrably unfair to small businesses to apply a rule that works like this: “If Rolex CAN do it, Timex MUST do it.” A technological feasibility standard without reference to economics is completely unreasonable to small companies or companies relying on narrow margins.

17. Restore ASTM F963 to voluntary standard status.

18. Eliminate the “periodic review” provisions that require ratcheting up of requirements (e.g., periodic review of F963 to achieve “highest levels of safety” that are “feasible”). Would like to further gut this provision, as I do not see that the CPSC adds any value in the process but has significant procedural burdens. This is pure government waste.

19. Eliminate exceptions to preemption (such as Sec. 106(h)). Add effective preemption of State laws on lead and lead-in-paint. Interstate commerce demands that there be one authority on safety, not 51 independent regulators. The disorder in the marketplace from the Proposition 65-style “consumer right to know” laws (like Illinois’ new Lead Poisoning Prevention Act) needs to be eliminated by explicitly preempting them in the changes to the CPSIA.

20. Add penalties (up to and including felonies) for false or misleading accusations of violations of law or safety violations.

21. Make the resale of used product that violates safety standard a misdemeanor with very limited fines (like a traffic ticker). Can only escalate if done with actual knowledge.

22. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. This standard is a 20/20 hindsight standard and is thus subject to considerable abuse. An actual knowledge standard would ease fears among regulated companies.

23. Completely reformulate penalties to restrict them to egregious conduct, reckless endangerment or conduct resulting in serious injury. The CPSC should have the authority to assess penalties when it deems it necessary, such as for repeated violations, but the practice should be that penalties are meant to provide incentives to good behavior ONLY (not for retribution or redistribution of wealth). Minor violations should either be handled administratively without penalties or should be subject to capped penalties akin to “traffic tickets”.

24. State AG enforcement should be limited to matters involving actual knowledge leading to injury or to enforce a CPSC order.

25. Restore the ability to export non-compliant product as long as the product is compliant with the destination jurisdiction’s law.

26. Mandatory tracking labels should be explicitly restricted to cribs, bassinets, play pens, all long life “heirloom” products with a known history of injuring the most vulnerable children (babies). Tracking labels would be voluntary on all other children’s products and if in use, can be used to trim scale of recalls (as with other data maintained by businesses). CPSC should retain ability to expand the application of tracking labels as warranted. The power to impose tracking labels was a part of the prior law, it should be noted.

27. Elimination of whistleblower provision entirely. There is no demonstrated need for this provision which only creates an atmosphere of distrust and abuse in the workplace. To properly ensure corporate team play, the government should refrain from paying spies to infiltrate the workplace unless there is a demonstrated need based on actual data.

28. Elimination of lab certification process ENTIRELY. The CPSC adds NO value to this process, and in fact slows the process of labs coming on board with new testing capabilities. I am not aware of any instances of fraud by labs but if there were to be fraud, we already have anti-fraud standards on the books to protect consumers. Give the CPSC the power to create or modify certification standards or requirements if warranted in the future. Place reliance on industry organizations or independent professional organizations for certifications.

a. For in-house labs, use established firewall rules as “but for” condition for companies to avoid liability. Otherwise, companies should bear full responsibility for testing done in-house.

29. Public injury/incident database restricted to recalls only

a. If allow unfiltered postings, companies need adequate time to respond BEFORE posting. There needs to be enough time to allow for inspection of product and to conduct tests.

b. Must post name and contact info to put info up on the DB. NO anonymous postings

c. Liability for fraud, including fines and possible jail time. Need to prominently note this on the DB. There needs to be a consequence for bad actors spreading bad information intentionally.

d. The terms of the DB should not permit postings of CPSC private remedies, like “do-not-sell” orders.

e. The current timetable is unreasonable, needs to be spread out to allow for more consideration of unintended consequences.

f. The current rules specify removal of inaccurate data that is TOO SLOW. Data needs to be impounded while being investigated (Zhu Zhu Pets wouldn’t have survived this scheme).

I also recommend consideration of an exception from the lead-in-paint rules for violations which have less than XXX grams per unit. These essentially technical or de minimus violations might be exempt from recalls but not from “do-not-sell” orders. I am recommending some acknowledgement that certain L-I-P violations are not worth the expense to recall. A strict liability standard for L-I-P is not necessary to protect the public.

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CPSIA – My Recommended Changes to the CPSIA

CPSIA – Anne Northup Calls for Your Ideas

In her blogpost of January 6, Commissioner Anne Northup asks that you send her your ideas on how to change the CPSIA. Her email address is Commissioner_Northup@cpsc.gov.

She, like Nancy Nord, offered her thoughts on the unfortunate snuffing of a five Commissioner discussion of these issues in her blog from this morning. I urge you to read it. These blogposts are apparently the venue that is being left to Nord and Northup to talk to you. As I have noted repeatedly, Commissioner Adler, the self-appointed Prince of “Darkness”, has stated that we all “know” the views of the Commissioners through their blogs. That’s all the Sunshine he has left for you.

So you better read their blogs.

Open government, you gotta love it. Shame we, the general public, aren’t in charge anymore . . . .

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CPSIA – Anne Northup Calls for Your Ideas

CPSIA – Nancy Nord Isn’t Being Squelched!

In yesterday’s CPSC Commission hearing in which the Commission voted down (2-2) an open discussion of the CPSC’s recommended changes to the CPSIA, the issue of minority “oppression” came up. Nancy Nord reminded her fellow Commissioners of their commitment to collegiality:

“[The Minority Commissioners] have followed the procedures that we all agreed to this past summer in order to try to get things on the agenda. I very distinctly remember a very spirited conversation that Commissioner Adler and I had where we expressed concern about whether the Minority would be able to get things on the agenda and I was assured that certainly we were not wanting to tamp down the Minority voice and things would be put on the agenda freely.”

Bob Adler explained his great reluctance to engage in a “public debate” as he contends that a debate is inappropriate right now. In fact, he characterized it as a “waste of time”. After all, he says “I know what you [Northup/Nord] believe . . . . but I think the positions at this point are pretty firmly set.” As for the Minority’s ability to participate meaningfully, he notes: “Lord knows, nobody’s views are being squelched on this. We got months of separate statements, dissents, tweets, blogs, editorials. People’s views are pretty clearly known.” Hence, there is no point to putting discussion of the recommended changes to the law onto next week’s public meeting agenda.

Mr. Adler neglected to mention the public’s interest in this matter.

Referring to himself as the “Prince of Darkness”, Adler signalled that his views would be unpopular. It was an ironic label in retrospect. As the Prince of Darkness, he seems to be the poster child for obstructing the spirit, if not the letter, of the Sunshine Act. A really lovely thing for an Obama Democrat to be known for. . . .

In any event, it appears that Mr. Adler feels that blogging is Nancy Nord’s outlet for making herself known – to the Commission and to you. She accommodated him tonight with a very insightful blogpost entitled “Sunshine Doesn’t Shine Through Closed Doors“. I hope you will read it.

And if you don’t read her blog, you won’t know what Nancy Nord thinks. Inez Tenenbaum and the Prince of Darkness have seen to that.

[Ed. Note: There's still time to admit your error and change your mind, folks.]

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CPSIA – Nancy Nord Isn’t Being Squelched!

CPSIA – Republican Senators Call for CPSC Advice on Law Change

Senators Kay Bailey Hutchison and Roger Wicker sent a letter today to Inez Tenenbaum asking for detailed recommendations on how to fix the CPSIA. You can see their letter here. In closing, they note:

“We all agree protection of our children is paramount. Congress can fix the CPSIA to ensure it accomplishes the safety intended without necessarily overburdening our economy. This can only be achieved with your assistance, the mandated detailed report to Congress, and increased transparency of your efforts to implement the law. We look forward to your report.”

Amen, brother!

The Commission noted in its meeting yesterday that the agency has not been given much time to get this report done. In addition, there seems to be little consensus on the Commission on the content of the report. Finally, as you may have figured out by now, I think there may be some value in talking about the issues in an open meeting. . . . So I call on the CPSC to get this report RIGHT. Be late, if you must, but get the recommendations done properly. AND, I call on the Commission to reverse its partisan and ill-considered decision to forgo public debate on the content of this report. Let’s learn from the lessons of Watergate and let the light shine in. Trust the public as they trust you, and let them hear you state your positions and work together as a Commission, not a collection of individuals.

It’s time to step up to the challenge, guys.

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CPSIA – Republican Senators Call for CPSC Advice on Law Change

CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

“Bad Optics”.

I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners’ debate over the agency’s recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary “vigorous debate” all of us Americans hope would occur on a five-person Commission.

You are probably scratching your head. What’s the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there’s a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can’t take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.

Here’s some background on the Sunshine Act:

“The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.

Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.

This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public.”

So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say – because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, “it’s all over the blogosphere”. You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.

Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup’s point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.

Errors – that’s an interesting point, isn’t it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .

This leads us back to “bad optics”. As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of “bad optics”. Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company’s sales practices from a member of another Commissioner’s staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: “If I had to give any advice to [Learning Curve] on ‘optics’, I don’t think it’s such a good idea to come in and say ‘We admit we’re breaking the law, we’d like an exclusion but oh, by the way, we’re going to continue selling this product during the pendency of the proceeding.’ I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding.” [Emphasis added] Of course, Learning Curve never said any of this.

You can imagine how Learning Curve must have felt about this – they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve’s lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.

Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday’s meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.

“Bad optics”, indeed. Mr. Adler, what is the message here?

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CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

CPSIA – Transparency, Tenenbaum/Adler-style!

In a truly creepy decision today, the Democrat-dominated CPSC Commission today voted down Anne Northup’s motion to have a public debate of the agency’s recommended changes to the CPSIA. The vote was 2-2 along party lines. [Party affiliation should NEVER be predictive of positions on safety.] By this vote, the Commission ensures that there will be no public airing of views on the agency’s recommendations for amending the awful CPSIA before their report to Congress is due on January 15 (see below). Apparently, the general public’s interest in understanding this critical debate was deemed by the Democrats to be a low priority.

It is ironic that the Democrats would choose to spurn the Government in the Sunshine Act (“Sunshine Act”) so brazenly. The decision to leave Northup’s item off the upcoming meeting agenda is not technically a violation of the Sunshine Act, but then again it is certainly NOT on the list of exceptions to the public meeting rule (5 U.S.C. 552(b)(c)). In my humble opinion, it is a clear violation of the spirit of the Sunshine Act and can hardly be characterized as “transparent” government. As Ms. Northup noted, the sponsors of the Sunshine Act would be appalled. So why did the Dems do it?

Before I recap and analyze of this incredible event, I would like to quote Inez Tenenbaum on the importance of “transparency” (emphasis added):

• CPSC Press Release (July 9, 2009): “Ms. Tenenbaum identified three major areas of focus for her common sense approach to serving as Chairman. ‘First, I want CPSC to be more accessible and transparent to parents and consumers. By creating an electronic database of product incident reports that consumers can search and by collaborating with state and local agencies and consumer groups, we can give the public confidence that CPSC is working openly and in their best interest,’ she stated.”
• APEC Conference Keynote Address (August 1, 2009): “My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. . . . Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy.”
• Statement Before the Subcommittee on Commerce, Trade, and Consumer Protection (September 10, 2009): “In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve . . . .”
• Keynote Address, 3rd CPSC-AQSIQ Safety Summit (October 21, 2009): “I embrace open government, information sharing with all stakeholders, and a commitment to finding mutual interests.”

With Ms. Tenenbaum’s apparent commitment to “transparency”, it should not be surprising that she originally moved to add an agenda item to discuss this very topic (apparently for today’s brief meeting), and then somehow the decision was voted down 3-1, presumably Tenenbaum, Moore and Adler voting against, Northup voting for, and Nord on leave (she’s back now). [I cannot find any record of this vote on the "wonderful" CPSC website and gave up, sorry.] So at one time at least, Tenenbaum was publicly calling for a public discussion of five Commissioners on this critical subject.

One must wonder who spoke to whom to get this flip flop accomplished. Assuming Ms. Tenenbaum meant what she said publicly about the need for “transparency”, someone must have really put a wet blanket on the idea of publicly discussing this subject. I wonder who might have strong views on the wisdom of an unstaged, open discussion of these issues . . . .

Consider Ms. Northup’s argument: This is one of the most critical issues to come before the Commission. The CPSIA has been controversial and difficult to work with two years now. The Appropriations Committee has asked us to give recommendations on how to change to the law. [See this link, pp. 33-34 for the actual instructions.] There is no disagreement that blood lead levels need to be a top priority in children’s safety but none of the CDC, NIH or EPA point to children’s products as a serious lead threat. The Sunshine Act prevents the Commissioners from meeting other than one-on-one without calling a public meeting, which means we can never sit down together to discuss these issues. The issues are too important to relegate to a game of “telephone”. A hearing is the only way for the five of us to discuss this issue at one time.

Tenenbaum’s response was telling: The Staff has been working night and day on this and everyone has had a chance to put in their comments. Each Commissioner has had some drafting responsibility. Each Commissioner has the right to submit their own statement to Congress and likewise to request to testify to present their own personal views. Given our ability to have “extensive discussions” one-on-one, this debate is best held in private. We should NOT have a public hearing on this subject.

Okay, are you persuaded? This is coming from Ms. Transparency, to judge from her many uses of that old chestnut in various speeches and testimony.

Nancy Nord made the point that the reason to have a Commission is to meet publicly and have discussions openly and transparently. Apparently this didn’t persuade the Dems. Bob Adler amplified the “argument” against trusting the American public to listen in to the debate: After conceding that he would sound like the “Prince of Darkness”, he stated that an open Commission hearing should involve give-and-take but a hearing on this topic would not involve deliberation but instead speeches telling him why he’s wrong and the others are right. He said he was very comfortable with the current process because he knows everyone’s views quite well and besides, so does the public via blogs, tweets, statements and so on. The minority Commissioners are not being “squelched”. He said that a public meeting removes the ability to think out loud. “As soon as you say it [in a public meeting], it’s all over the blogosphere.” [Thanks for the plug, Bob.]

So what does this MEAN? A few thoughts:

- The Dems don’t want to allow an unruly public debate of the issues – why? There are several possible reasons – (a) they have been told a public debate is “not a good idea” by Congressional Dems who have consistently refused to hold public hearings, (b) they have been told that many/most changes are “non-starters” by Guess Who so don’t even think about suggesting them, or (c) they don’t want to defend their views publicly because . . . there is no way to put a good face on their views.

- The Dems were outfoxed today. By putting up the request to discuss this subject publicly, the Republicans forced their fellow Democratic Commissions to stand up publicly – before you, the general public – and try to defend “smoke filled room” politics. Now that’s “Change We Can Believe In!” In other words, they were caught between a rock and a hard place – their Congressional handlers said “no way” and to get this result, they had to publicly wave their arms and try to convince us that secrecy is somehow openness. The Dems can NEVER again say they are all about transparency. If they do, they will expose themselves as being all about . . . something else.

- The “commitment” of the Commission to find middle ground and vote more cohesively as a group, which they achieved after considerable effort on the recent Stay decision (lead testing and certification), is apparently paper-thin. Ms. Tenenbaum obviously knew of Ms. Northup’s motion ahead of the meeting today (she had her response drafted in advance). [Did anyone else catch the chill in the air during the meeting?] So, if they all knew this was coming, where was that commitment to work together? To consider everyone’s views? Forget it. It’s also hardly an advertisement for the ability of the Chairman to steer this group.

- The illusion that this government cares about the mess it made or is making any reasonable effort to fix it has been blown up. The game is fixed and has been fixed from the get-go. You need only read the Appropriations conferee report (link above). The Democrats control both Houses of Congress – so this statement was written by Democrats: “The CPSIA was signed into law on August 14,2008 and is considered to be the most significant piece of consumer protection legislation enacted since the CPSC was established in the early 1970s. The legislation received nearly unanimous bipartisan support in Congress. Congress passed this legislation in the wake of a massive number of consumer product recalls in 2007 and 2008–more than 20 million-many of which involved toys manufactured in China. The conferees strongly support this legislation but are aware of concerns surrounding implementation of certain aspects of the law.” Of course, I have already documented that 43 Senators and 96 Members of the House have either sponsored or voted for CPSIA amendment legislation. It’s a complete mischaracterization of the current reality – but when read by Ms. Tenenbaum into the record during the meeting today, it almost sounded true . . . .

This process is some sort of Kabuki Theater for your amusement. Having fun yet?

Today’s decision is par for the course in a twisted, bass-ackwards debate over safety characterized by ideologues out to steal our legal system, bureaucrats devastating markets that they simply do not understand, regulators witnessing the destruction of their agency to serve a small number of Congressional “masters” with a broad, world-changing agenda. To propel it along, the Dems now propose to shield their work under the cloak of darkness. Does it really matter? Well, Bob Adler already knows what everyone thinks and doesn’t care to be told he is wrong (and others are right). So I guess it really doesn’t matter. His mind is made up, Waxman’s mind is made up – and no one cares what you think.

So, when you have to let a few more people go to cover ridiculous testing costs or to pay your lawyer extortionate fees to keep you on the straight and narrow, or when you cut your product line or drop some customers to find profit elsewhere, just remember: the Democrats on the Commission thought it would be best to have the debate on the CPSIA one-on-one in private, rather than let you understand their views or participate in an open hearing.

Just remember that . . . on November 2, 2010.

Read more here:
CPSIA – Transparency, Tenenbaum/Adler-style!

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