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CPSIA – You Can Add 43 Pages to the Heap

The CPSC published its Civil Penalty Factors today. It’s only 43 pages long. Get reading . . . .

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CPSIA – You Can Add 43 Pages to the Heap

CPSIA – Video Blog – Understanding the CPSIA!

I get calls all the time from my readers – “what do I need to read to understand the CPSIA?” Well, you gotta read, read, read! Unfortunately, the CPSC has not provide a list of documents for you to read. To help out, I prepared a little document list for you, and explained it in this video blog:

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CPSIA – Video Blog – Understanding the CPSIA!

CPSIA – CPSC Commission to Vote on Civil Penalty Factors

According to the latest CPSC Calendar, the Commission is due to vote on the Civil Penalty Factors “final rule” at their weekly meeting on Wednesday, March 3 at 9 AM EST. [The webcast can be found at this link.] This long-awaited rule has been the subject of comments on two occasions (once before any rule was produced and one after the first draft was released). The most recent draft was the subject of considerable controversy and created the potential for great unfairness to anyone subject to the awful CPSIA.

It’s worth noting that the CPSC has yet to assess a single penalty under the CPSIA. The whoppers assessed against Mattel, RC2, Target and Schylling, among others, all reflect prior law. I rather doubt they are done knocking on doors and waking up the occupants with news of penalties for long-ago infractions. When they’re finished with that task, the agency can begin assessing penalties under the CPSIA. The new penalty section became effective on August 14, 2009 and increased the maximum penalty per violation from $8,000 to $100,000 and the maximum penalty for a related series of violations from $1.825 million to $15 million (see Section 20 of the CPSA). Gets your attention, right?

There is a considerable risk of abuse of the penalty assessment process without procedural protections. The penalties being assessed today are substantially larger than in the past, and seem (to this observer) to follow no clear pattern or bear any relationship to the infractions. Arbitrary penalties will depress trade as manufacturers reassess risk or find that they cannot bear the increased cost of insurance (self-insurance or commercially-available insurance). The cost will come to rest somewhere and like any tax, will reduce the incentive to innovate or compete.

It is also debatable how negotiable the agency has been or will be on penalties, amplifying the risk of arbitrary penalties. After all, how are you supposed to use leverage against the CPSC – no one has enough money to fight the federal government in court. Nor the time or energy. As someone said, never sue someone who has access to a printing press. This lack of a level playing field raises questions of due process in CPSC penalty assessment. The dilemmas presented by the current version of the civil penalty factors prompted many comment letters, including one from me.

Nothing scares me more than the populist blood lust we continue to see from the agency. The penalty factors need to restrain efforts to please politicians then in power. The urge to “cut [the agency's] conscience to fit this year’s fashions” may be overwhelming at times. It is worth noting that Gib Mullan, head of enforcement at the agency, is signalling more sensitivity to this issue in his recent speeches. This is much appreciated and is a much-needed change. That said, to restore trust and confidence, the agency MUST tie its hands in important ways. The unfettered ability to whack manufacturers however they arbitrarily feel on a given day is too much power for the CPSC and places too much risk on businesses.

The agency received many comments giving this advice. Let’s hope they had an open mind as they read the comments.

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CPSIA – CPSC Commission to Vote on Civil Penalty Factors

CPSIA – Science, It’s Really Overrated. So Is Knowing What You are Talking About.

From New Jersey Newsroom:

“Amid continued concern about children’s jewelry tainted with toxic materials, the [New Jersey] Assembly will also consider legislation targeting unsafe jewelry. The bill comes after 55,000 “Princess and the Frog” necklaces were recalled because they may contain high levels of the toxic heavy metal cadmium. Under the bill (A-2076), no one may sell, distribute, import or manufacture jewelry in New Jersey that contains materials classified as unsafe. The bill also includes stricter restrictions on materials used in children’s jewelry and body piercing jewelry. ‘Buying a necklace or a charm bracelet shouldn’t bring about fears of lead and mercury poisoning, yet the health and safety of New Jerseyans are at risk,’ said Assemblyman Patrick J. Diegnan (D-Middlesex), a co-sponsor. ‘It’s time these harmful products are taken down from store shelves for good.’” [Emphasis added]

Assemblyman Diegnan, noble Democrat of Middlesex, I am getting sick of listening to headline-seeking politicians who have absolutely NO idea what they are talking about. The January 11 AP story you refer to found a small handful of jewelry with cadmium present. There was no mention of mercury or lead . . . . As to cadmium, the CPSC says they have little or no data on ingestion of cadmium in children and can’t even say (based on available data) that cadmium is a carcinogen through ingestion in children (the current evidence on cadmium involves workplace exposure or inhalation, a horse of a different color). Where did you come up with lead and mercury poisoning from jewelry? Was cadmium not scary enough to get you reelected? Do you have any idea if the presence of cadmium in jewelry is even an issue? Science be damned.

This kind of idiocy brings to mind one of the most memorable of our nation’s discarded political parties, the Know-Nothings of the 1840′s and 50′s. This aptly-named party died a well-deserved slow death . . . but seems to have risen from the dead in the form of today’s Democrats.

Know-Nothings, we can’t let them take over!

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CPSIA – Science, It’s Really Overrated. So Is Knowing What You are Talking About.

CPSIA – Redesign the Dog!

I hope you didn’t miss the hubbub today from the American Academy of Pediatrics over dangerous hot dogs. Apparently, you can choke on hot dogs. This shocking revelation stimulated an outpouring of news articles, including this one: “Pediatricians call for hot dogs to be redesigned“. I guess the bun would have be altered, too. Readers, submit your suggestions as comments! I am looking for something very “Space Age” but also exquisitely safe.

Pundits across the blogosphere couldn’t let this pass, like our friends Walter Olson (“Cut grapes into pea-sized portions?“) and Lenora Skenazy (“Surely You Must Be Choking!“). Many newspapers repeated the AAP’s call for warning labels on items like nuts, certain hard fruits and hot dogs. “Back away from the peanut slowly, Tommy, I don’t want you to choke!”

Any of this ring a bell? The AAP remains among the most ardent of the CPSIA advocates. They are in regular contact with the Waxmanis and advise on which scraps of relief we might be allowed. In fact, my spies point to the AAP as the big rabble rouser on rhinestones (sooooooo dangerous!) Having succeeded in gutting the children’s products industry, the AAP have turned their attention to that symbol of America, the hot dog. Parents cannot possibly deal with hot dogs without government intervention – individual responsibility is so passe. The AAP will make us all so safe . . . .

This seems to be a theme of this space – the world seems to have lost its moorings. Redesign the dog, indeed. Spare me.

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CPSIA – Redesign the Dog!

CPSIA – Redesign the Dog!

I hope you didn’t miss the hubbub today from the American Academy of Pediatrics over dangerous hot dogs. Apparently, you can choke on hot dogs. This shocking revelation stimulated an outpouring of news articles, including this one: “Pediatricians call for hot dogs to be redesigned“. I guess the bun would have be altered, too. Readers, submit your suggestions as comments! I am looking for something very “Space Age” but also exquisitely safe.

Pundits across the blogosphere couldn’t let this pass, like our friends Walter Olson (“Cut grapes into pea-sized portions?“) and Lenora Skenazy (“Surely You Must Be Choking!“). Many newspapers repeated the AAP’s call for warning labels on items like nuts, certain hard fruits and hot dogs. “Back away from the peanut slowly, Tommy, I don’t want you to choke!”

Any of this ring a bell? The AAP remains among the most ardent of the CPSIA advocates. They are in regular contact with the Waxmanis and advise on which scraps of relief we might be allowed. In fact, my spies point to the AAP as the big rabble rouser on rhinestones (sooooooo dangerous!) Having succeeded in gutting the children’s products industry, the AAP have turned their attention to that symbol of America, the hot dog. Parents cannot possibly deal with hot dogs without government intervention – individual responsibility is so passe. The AAP will make us all so safe . . . .

This seems to be a theme of this space – the world seems to have lost its moorings. Redesign the dog, indeed. Spare me.

Read more here:
CPSIA – Redesign the Dog!

CPSIA – Game Playing with Phthalates

Last Wednesday during ICPHSO, CPSC General Counsel Cheri Falvey made a direct statement about phthalates testing: You only need to test plasticized parts and paints for phthalates. She also noted that internal components still need to be tested, ridiculous (and expensive) as that may be.

In my post of February 17, I admitted that I hadn’t seen this in writing previously and asked for citations. A reader who knows more than me sent me this link. We think she is refering to this language:

“Not all plastics, however, contain phthalates. Certain plastics, such as polyethylene and polypropylene, generally do not require plasticizers. However, surface coatings and adhesives may contain phthalates. In addition, phthalates could be used in some plastics even though they are not required. Phthalates might also be used in some elastomers or synthetic rubbers. . . .

Manufacturers either know or should know what materials and components go into the products they make, and if the product or its components contain one of the plasticizers specified in section 108 of the CPSIA, the manufacturer or importer certifying the product must test the component or product to ensure that it complies with the CPSIA. Failure to comply with section 108 of the CPSIA is a prohibited act under section 19 of the Consumer Product Safety Act (CPSA) and can result in civil and criminal penalties. Likewise, failure to have a product subject to section 108 of the CPSIA tested by an accredited third-party laboratory and have the appropriate certification for that product is also a prohibited act under section 19 (CPSA).” [Emphasis added]

Aha, that’s it! Or is it? Here’s some more from this document:

“Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are:
• Unfinished metal.
• Natural wood, except for coatings and adhesives added to wood. . .
• Mineral products such as play sand, glass, and crystal.”

I wrote about this provision in my comment letter on the second proposed phthalates standard (see paragraph 7). All the risk is on the manufacturer, there are no safe harbors other than comprehensive testing (even for wood, metals, sand and crystals), and there is no way to assure a dealer of the validity of an “incomplete” test report.. This rule remains an utterly unworkable and confusing standard – nowhere near as simple as Ms. Falvey implies. Although few wars are raging with test labs over this provision (since testing isn’t mandatory yet, “anything” goes), the possibility or probability of chaos remains profound.

I feel strongly that it is wrong of CPSC General Counsel Falvey to make light of this risky situation with an unsupported blanket statement, particularly since she is prone to “tisk tisk” you if you ignore one of her many oral warnings. If her words have the power of law, which they certainly don’t, then presumably they also provide cover. Are you ready to make that bet? In this case, if anyone relies on her statement, they are risking civil penalties or criminal charges according to Falvey’s own written policy.

Oops- that’ll teach you to listen to the General Counsel!

Read more here:
CPSIA – Game Playing with Phthalates

CPSIA – Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this “menace” that they are willing to write an outright ban into the CPSIA, via Mr. Waxman’s new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems’ rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let’s think about the basics here:

  • Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids’ pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
  • Rhinestones have no history of causing lead poisoning.
  • Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.’s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal “danger” of rhinestones:

“[T]he Exponent study submitted [by the FJTA] on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally.” [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones “menace”. Here is Ms. Cowles’ suggestion for those who value their bling:

“In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. ‘People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,’ Cowles said.”

It’s okay, they just want to protect you.

At this point, I have to ask – what on Earth happened to our country? How did we get to this point? I can’t say for myself, I don’t know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today’s New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It’s a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday’s Barron’s Magazine, the Dems’ ability to actually govern is questioned. That’s a “wow”. This small article details how Senator Max Baucus’ jobs bill (written in response to President Obama’s call for more economic stimulus), was gutted by Senate Majority Leader Harry Reid for “speedy” passage:

“So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who’s been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. ‘Democrats are in danger of demonstrating they cannot govern on the most basic level,’ a progressive Democratic party leader said last week.”

That’s right – the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week’s victim. Who is next in line – you?

When are you going to say “ENOUGH”?!

Read more here:
CPSIA – Why Do Dems Want to Ban Rhinestones?

CPSIA – Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this “menace” that they are willing to write an outright ban into the CPSIA, via Mr. Waxman’s new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems’ rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let’s think about the basics here:

  • Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids’ pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
  • Rhinestones have no history of causing lead poisoning.
  • Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.’s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal “danger” of rhinestones:

“[T]he Exponent study submitted [by the FJTA] on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally.” [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones “menace”. Here is Ms. Cowles’ suggestion for those who value their bling:

“In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. ‘People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,’ Cowles said.”

It’s okay, they just want to protect you.

At this point, I have to ask – what on Earth happened to our country? How did we get to this point? I can’t say for myself, I don’t know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today’s New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It’s a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday’s Barron’s Magazine, the Dems’ ability to actually govern is questioned. That’s a “wow”. This small article details how Senator Max Baucus’ jobs bill (written in response to President Obama’s call for more economic stimulus), was gutted by Senate Majority Leader Harry Reid for “speedy” passage:

“So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who’s been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. ‘Democrats are in danger of demonstrating they cannot govern on the most basic level,’ a progressive Democratic party leader said last week.”

That’s right – the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week’s victim. Who is next in line – you?

When are you going to say “ENOUGH”?!

Read more here:
CPSIA – Why Do Dems Want to Ban Rhinestones?

CPSIA – Waxman’s New Amendment – Needed Changes

Here is my full list of needed changes to the CPSIA:

Needed Changes to the CPSIA That Will Guarantee Safety and Promote U.S. Jobs:

1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment by giving the Commission the discretion to set age and product definition criteria for 300 ppm lead standard and phthalate ban. Eliminate the 100 ppm lead standard.

2. Definition of “Children’s Product” should not include anything primarily sold into or intended for use in schools or which is used primarily under the supervision of adults. Other explicit exceptions: apparel, shoes, pens, ATVs, bicycles, rhinestones, books and other print materials, brass, connectors, others? This would take these items outside the law, including tracking labels.

3. 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.

4. Lead-in-substrate and phthalate testing should be a “reasonable testing program”, not mandated outside testing. Leave 300 ppm standard in place, but place burden on manufacturer and supply chain for compliance activities. Phthalate testing requirements should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood.

5. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. Clarify that all inks are excluded from the lead-in-paint ban. Eliminate the definition of “technologically feasible”. 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”). Eliminate the whisteblower provision.

6. Definition of “Children’s Product” should be limited to children 6 years or younger and should eliminate the difficult to apply “common recognition” factor of Section 3(a)(2)(c) of the CPSA. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger and should explicitly refer only to products in the form used in play.

7. Restore ASTM F963 to voluntary standard status. Eliminate CPSC certification of laboratories (rely on the market to provide good resources).

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

9. Rewrite penalty provision on resale of used product such that violations are only subject to penalty if intentional (actual knowledge or reckless endangerment) and if the violation led to an actual injury. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. Completely reformulate penalties to restrict them to egregious conduct (including patterns of violations), reckless endangerment or conduct resulting in serious injury.

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

11. 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).

12. Public injury/incident database restricted to recalls only. Private, confidential database permitted for other injuries.

Read more here:
CPSIA – Waxman’s New Amendment – Needed Changes

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