CPSIA – I Will Appear as a Witness in Thursday’s House Hearing on CPSIA

I have been invited to appear as a witness at Thursday’s hearing before the House Committee on Energy and Commerce’s Subcommittee on Commerce, Trade and Consumer Protection. The hearing on the “Consumer Product Safety Enhancement Act of 2010″ (the Waxman Amendment 2.0 in its latest form) will take place at 10 AM EST on Thursday, April 29 at 2322 Rayburn House Office Building.

The hearing will be streamed live, but I don’t have the link to give you yet. You may be able to find it at this link on Thursday or on the home page of the committee. I will try to get the link posted in my blog before showtime.

I intend to tell my story and your story to the committee and look forward to exploring the bedeviling issues of the CPSIA in the open air. If you have any ideas or suggestions for my testimony, please feel free to share them here, or send me an email. Thanks.

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CPSIA – I Will Appear as a Witness in Thursday’s House Hearing on CPSIA

CPSIA – Mea Culpa, I was WRONG!

I am man enough to admit when I’m wrong – and I was wrong the other day. To my readers, I apologize. I probably left you with the impression that the “common toy box” is not a safety concern and that building the entire CPSIA edifice around a half-baked idea was a grievous mistake. And now look who’s eating crow . . . me!

One of my readers points out that the common toy box is sadly a very dangerous thing after all and has caused injuries and even deaths over the years. My reader actually had data to share. Common toy boxes have been recalled 14 times since 1974 by the CPSC. One of the recalls was for lead-in-paint but that resulted in no injuries. The other 13 were for lids closing suddenly and entrapment, and tragically two deaths and several injuries were reported.

You can find these recalls at this link by searching for “Toy Chests/Trunks”.

The Waxman staffers are right – the “common toy box” is a serious issue. Unfortunately, they don’t know seem to know WHY toy boxes are a safety issue. It’s not what’s inside a common toy box that causes problems – it’s the common toy box ITSELF.

We might make life a bit simpler by banning common toy boxes, and then restoring the previous version of the CPSA while we’re at it.

Read more here:
CPSIA – Mea Culpa, I was WRONG!

CPSIA – Mea Culpa, I was WRONG!

I am man enough to admit when I’m wrong – and I was wrong the other day. To my readers, I apologize. I probably left you with the impression that the “common toy box” is not a safety concern and that building the entire CPSIA edifice around a half-baked idea was a grievous mistake. And now look who’s eating crow . . . me!

One of my readers points out that the common toy box is sadly a very dangerous thing after all and has caused injuries and even deaths over the years. My reader actually had data to share. Common toy boxes have been recalled 14 times since 1974 by the CPSC. One of the recalls was for lead-in-paint but that resulted in no injuries. The other 13 were for lids closing suddenly and entrapment, and tragically two deaths and several injuries were reported.

You can find these recalls at this link by searching for “Toy Chests/Trunks”.

The Waxman staffers are right – the “common toy box” is a serious issue. Unfortunately, they don’t know seem to know WHY toy boxes are a safety issue. It’s not what’s inside a common toy box that causes problems – it’s the common toy box ITSELF.

We might make life a bit simpler by banning common toy boxes, and then restoring the previous version of the CPSA while we’re at it.

Read more here:
CPSIA – Mea Culpa, I was WRONG!

CPSIA – But Who Will Test the Test Lab Testing Testers???

Demonstrating that creative, innovative flair we look for in our regulatory agencies, the CPSC has just announced its discovery of a much-needed new testing protocol, the test lab testing tester. Okay, so you say someone’s been playing with their clacker balls a bit too much, but heck, they gotta know what they’re doing, right?

Embedded deep in the impressively long 160-pager entitled “Proposed Rule: Testing and Labeling Pertaining to Product Certification, April 1, 2010“, the CPSC reveals that there’s trouble in La-La-Land over variances between lab tests performed at different certified labs: “Another comment noted that variations in sample preparation by conformity assessment bodies can and do lead to differing test results. One comment, noting lab-to-lab variations in test results for the same product, suggested that CPSC should require CPSC-recognized third party conformity assessment bodies to conduct blind correlation studies and lab audits.”

Oy vey, what do people EXPECT? The CPSC can’t help out on every niggling problem: “The Commission’s limited resources preclude CPSC from directly conducting verification of the numerous CPSC recognized conformity assessment bodies. Additionally, the activities and requirements for accrediting conformity assessment bodies are outside the scope of this rulemaking.”

Case closed?

Au contraire, Pierre! This CPSC will face down every challenge! They ain’t no teething tiger any more, they are a Lion of Safety now, so they came up with the perfect rule to resolve this dilemma. After all, lest we forget, you CAN’T be too safe! Here’s what they came up with:

“Proposed § 1107.24(a) would state that a manufacturer is responsible for verifying that its children’s products, as tested by a third party conformity assessment body, comply with applicable children’s product safety rules. For purposes of proposed § 1107.24, “verification” would mean testing that demonstrates that the test results from one third party conformity assessment body are consistent with the test results from another third party conformity assessment body for a particular children’s product. Proposed § 1107.24(a) would require a manufacturer to send samples of a previously certified children’s product or a children’s product that previously has been tested periodically pursuant to proposed § 1107.21 to a third party conformity assessment body for verification.

. . . . Proposed § 1107.24(b) would require verification to occur on a reoccurring basis and be conducted at a frequent enough interval to provide a high degree of assurance that the children’s product that had been certified previously continues to comply with the applicable children’s product safety rules or that the periodic test for the children’s product was performed correctly.”

]Emphasis most enthusiastically added.]

This is GENIUS! Thank heavens we have the CPSC to protect us. Who else would have spotted this terrible and threatening gap in our consumer safety network? But having added this new layer of “protection”, aren’t other safety holes now visible? I call on the CPSC to bring out rules clarifying:

• Certification of testing testers;
• Certification of testing tester testing testers (you need those, too);
• Certification of testing tester testing certifiers;
• Rules for tolerable variances among testing labs for each certified test, record keeping on all test results and variances for at least 100 years, and plans of remediation for every conceivable variance for each possible test under all conceivable circumstances;
• Rules for a new agency to check all the work of the CPSC and to reconsider and rewrite every rule they have ever written, plus record keeping and hearings and comment periods for this new agency;

I think the new agency to check the work of the CPSC should be called the Consumer Product Safety Commission Checking Commission for Safety Enhancement and Verification Processes (CPSCCCSEVP), you know, for simplicity. Gotta keep it simple and efficient. That’s my motto!

[For more pleasure reading on this important topic, don't miss the 110-page Staff briefing or the equally riveting 29-page Slide Presentation for the April 15 Commission meeting on the same topic. Happy reading!]

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CPSIA – But Who Will Test the Test Lab Testing Testers???

CPSIA – Dingell Links

Barb from OH asked for links to pertinent past blogposts relating to John Dingell. Here are a few:

• (September 18, 2009) CPSIA – Dingell v. Tenenbaum (9-10-09 Hearing)
• (March 6, 2009) CPSIA – Important Letter to CPSC by Rep. John Dingell

There were quite a few public replies to Mr. Dingell in March. I published my replies on March 9 and March 13.

Read more here:
CPSIA – Dingell Links

CPSIA – Hearing Scheduled for the Waxman Amendment!

In an amazing development, Henry Waxman has noticed up a hearing for next Thursday to go over the issues bedeviling the CPSIA. Waxman staffers had routinely dismissed any possibility of a hearing for some time now, asserting that we had all “jawboned” enough and that they had heard it all already. That’s right, already heard it all.

Hmmm, it appears someone must have disagreed with that assessment. There promises to be a bit more time for jawboning after all!

This morning’s meeting between Mr. Waxman and Mr. Barton apparently included a third participant, Rep. John Dingell. Mr. Dingell (currently the longest-serving Congressman) is the ex-Chairman of the House Committee on Energy and Commerce. He is also the original sponsor of the Consumer Product Safety Act of 1972, the act which created the CPSC 38 years ago. Mr. Dingell cares a great deal about this agency and the CPSIA, and according to my sources, stood with Mr. Barton in asking for a hearing to air out implementation and other issues under the CPSIA. This is why the mark-up was cancelled today. The agreement of the three leaders to hold this hearing means that it is likely to actually happen . . . unlike several prior proposed or scheduled hearings on the CPSIA.

The hearing is said to be for the purpose of testimony by regulated companies and trade associations about the problems under the law. This is a fabulous opportunity to Let the Sun Shine In. By going on the official record, witnesses to this debacle will make it much harder for the zealots to deny the seriousness of the CPSIA’s problems.

Some people fear that reworking the Waxman Amendment after this hearing may open the door for the return of the hated “sneaky” provisions in the original draft of the bill. While I suppose that could happen, it doesn’t strike me as likely. Those provisions caused howls of protests from many quarters and were removed. Perhaps they were tossed into the original draft to create something to give away. In any event, there is good reason for those provisions to be gone. I think it’s a risk worth bearing.

More importantly, it seems unlikely that much-needed structural repairs of our federal safety law would ever become part of the amendment in the absence of a hearing. After all, our “jawboning” didn’t do the trick. I think there was strong sentiment among influential members of the House Committee on Energy and Commerce that a fix should be done “right” and that the Waxman Amendment failed to address the fundamental issues. Their fear was that the problems wouldn’t go away in the wake of the Waxman Amendment, and therefore, the issue would end up back in committee in due course. Maybe they’ve had enough of this issue and want it fixed, once and for all.

Hey, a real fix sounds good to me. We can all look forward to a true airing of the issues in a week’s time.

Read more here:
CPSIA – Hearing Scheduled for the Waxman Amendment!

CPSIA – Fantasies of Small Business "Relief" in Waxman Amendment 2.0

I am tired of arguing about whether the new Waxman Amendment features “relief” for small businesses. I have pointed out that the definition of small business in the bill is both absurdly low and represents a super-sensitive trigger for enlarged responsibilities and risk. The notion behind rules protecting small business is that these companies have neither the skills, capital or human resources or the scale to bear the increased burdens and risk of the more sophisticated and demanding rules imposed on big business. These fragile enterprises are supposed to face larger legal responsibilities only when they have grown to be able to handle it (skills, resources, scale).

Can anyone rationally argue that a $1 million business is closer in skill sets, resources and business scale to Mattel and Hasbro than a lemonade stand? Frankly, that’s an idiotic suggestion. Idiotic or not, it was all set to become law as part of the Waxman Amendment.

In any event, the Waxman gremlins that crafted the so-called Consumer Product Safety “Enhancement” (snort) Act of 2010 designed the testing “relief” for the little guys as follows:

“. . . the Commission shall take into consideration any economic, administrative, or other limits on the ability of small batch manufacturers to comply with such requirements and may, by regulation, provide alternative testing requirements for covered products manufactured by small batch manufacturers in lieu of those required under subsection (a) or (b). Any such alternative requirements shall provide for reasonable testing methods to assure compliance with the relevant consumer product safety standards.” [Emphasis added] The legislation goes on to instruct: “The Commission shall work cooperatively with small batch manufacturers . . . using its discretion . . . to impose the least burdensome testing requirements for small batch manufacturers consistent with goals of statute. . . .”

Ummm, what ARE those alternative “reasonable testing methods to assure compliance with the relevant consumer product safety standards”? A recent inquiry to the CPSC reveals that these special alternative testing methods are . . . are . . . are unknown. In fact, they don’t exist. Straight from the horse’s mouth – THE CPSC SAYS THERE AREN’T ANY ALTERNATIVE TESTING METHODS THAT WILL ASSURE COMPLIANCE.

I guess it’s really a shame that the CPSC has nothing to offer the small batch folks. In lieu of these alternative methods, they’ll have to just do it the way Mattel does. Maybe each crafter can open up a firewalled safety lab, after they make appropriate financial disclosures to the CPSC to qualify for this “relief”. And MORE GOOD NEWS – if other testing methods are ever discovered, this legislation will make it possible for the CPSC to let the little guys use them! Hey, that’s SOMETHING, isn’t it?!

It’s so good to know that Mr. Waxman has heard our pain and stepped right up to help us out.

Thanks for nothing, Henry.

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CPSIA – Fantasies of Small Business "Relief" in Waxman Amendment 2.0

CPSIA – Waxman Amendment Mark-Up CANCELLED for Today

In the wake of a private meeting between Henry Waxman and Joe Barton this morning, today’s mark-up of the Waxman Amendment 2.0 (Consumer Product Safety “Enhancement” Act of 2010) has been CANCELLED. It had already been pushed back to 2 PM EST for a supposed “scheduling conflict”. The content of the Waxman-Barton meeting is not known, however Mr. Waxman has been adamant that he would not proceed with this bill if there was ANY opposition. At a mark-up, the opposition has the right to introduce amendments. This is what Mr. Waxman intended to avoid. Perhaps that was not longer in his control, which may have led to the cancelled mark-up session.

What are the next steps? It’s not certain at this point. There is an agreement in place between the Dems (Waxman) and Republicans (Barton) that ALL bills will pass through mark-up and subcommittee prior to committee consideration. IF this agreement is still being observed (no exceptions), then this bill only moves forward AFTER a mark-up. If there will be no mark-up session that features amendments, then this bill may be on life support in its present form. That suggestion is based on too many assumptions to set out here, but that may be the reality.

Another possibility is that this meeting featured a much stronger push for a hearing. Believe it or not, our pain and suffering has been noted. In addition, the evidence of insanity set in motion by the noxious CPSIA is mounting. Rumors swirl that a real legislative hearing may come next. Don’t hold your breath . . . but it’s possible. Real companies telling about their real issues.

The legislation, which I strongly oppose, has garnered the support of several key corporate players, like the ATV industry, the bike folks, the mass market retailers (no need to shed a tear for them anymore, I guess) and even little HTA. Some of them have practically gushed over these meager gains, perhaps haunted by the threat (implied or otherwise) that to spurn this attempt is to get nothing. No one wants to cut their nose off despite their face. This is how we compromise ourselves to hell, frankly. I remain opposed to a defective and unworkable legislative scheme that reduces our regulators to paper pushers, our financial statements to shreds and elevates our tort lawyers and safety testers to unknown new heights – all without making a MATERIAL positive impact on children’s safety.

Please spare me the retort about falling recall rates. That really isn’t the right metric. After all, we could all go out of business and recalls would fall to zero. A squeeze induced by sabre-rattling regulators wielding big penalties can cause a lot of “reform” at huge expense – but produce no results.

The right metric is injuries and deaths. Has the handiwork of Mr. Waxman and Ms. Tenenbaum led to statistically significant lower injuries and deaths? Well, my statistical analysis of lead-in paint recalls in a 25-month period from January 2007 – January 2009 showed 125 recalls (an all-time high) . . . and one injury, no deaths. That’s what we are trying to improve upon. And if anything has actually changed since then, what did it cost? Do our markets function anymore? Under the CPSIA, there are already about 2500 pages of rules for companies like ours to master, implement and obey. Wait until I summarize the so-called “15 Month Rule” for you – the children’s market is on a death march to oblivion.

Until the CPSIA is restored to sanity, we are facing a terrible end. Everything about safety in children’s products has been fouled by the CPSIA and the pending amendment, the new “enhancement” cooked up by the Dems, is completely off the mark. We can only hope that members of Congress with the courage of their convictions and a dash of common sense will continue to push for rationality in our safety laws and regulations. That’s our only hope.

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CPSIA – Waxman Amendment Mark-Up CANCELLED for Today

CPSIA – Sample Letter to the House re Waxman Amendment

This is the letter I am sending:

“Vote NO on the pending Consumer Product Safety Enhancement Act of 2010 (CPSEA)! This legislation fails to address the critical issues confronting small businesses and children’s product manufacturers under the CPSIA. Without genuine reform, implementation of the CPSIA will choke off commerce in this marketplace, especially for beleagured small businesses.

True relief will only come if the CPSIA is amended to restore to the CPSC Commission true authority for risk assessment. In addition, a reduced age limit under the law and more focused (less extensive) testing is necessary to restore balance to the market. A full hearing featuring testimony from affected regulated companies will set the record straight on the pain points of this two-year-old landmark legislation.

With out-of-control CPSC rulemaking now totalling almost 2500 pages and growing seemingly every day, the CPSIA implementation has now surpassed every company’s ability to process and master. The law has become incomprehensible as new rules piled upon old rules are causing gridlock and widespread economic loss. Without decisive Congressional action to restore common sense to this unrelenting crisis, small businesses and big businesses alike will have to exit the children’s market permanently.

This loss of supply will greatly harm consumers (including schools and teachers) and will cost thousands of jobs.

Save the children’s product market – vote NO on the CPSEA and demand true reform to fix the CPSIA once and for all.”

Read more here:
CPSIA – Sample Letter to the House re Waxman Amendment

Time to Make Your Voices Heard!

I have perhaps the most important request of you readers since I started blogging on the CPSIA 18 months ago.

Tomorrow at 2pm Eastern time, the House Energy and Commerce Committee Committee will be marking up Henry Waxman’s “fix” to the CPSIA. In my opinion, this is no fix at all. I sent the e-mail below out earlier today that details why I think this “deal” should be rejected.

Now is the time for your voices to be heard. I encourage you to e-mail members of the Committee before 2pm tomorrow to voice your concerns about the proposed “fix” and demand that the Committee begin drafting a legislative solution that truly addresses the problems with the CPSIA.

You can find e-mail addresses for the Committee at here. Click the name of the Member of Congress, then click “contact” and that will take you to a form where you can submit an e-mail. You can choose one Committee member or all of them – it’s your choice but I ask you to send at least one e-mail by 2pm tomorrow. If you happen to live in the Congressional District of a Committee Member, even better.

If we don’t speak up now, we have only ourselves to blame.

My letter from earlier today:

Dear Friend,

We are at a critical juncture right now as the House Committee on Energy and Commerce is in the late stages of considering an amendment to the CPSIA. The proposed legislation has been analyzed in my blog over the past few weeks, but is now about to move to the subcommittee “mark-up” phase. Assuming it proceeds past mark-up, the bill will be put to a vote at the committee and then by the House, and submitted to the Senate for its consideration. This could happen rather quickly given its sponsorship by Henry Waxman. Notwithstanding his desires, the Republicans are not yet on board with this “bipartisan” bill and Senate cooperation is another unknown.

I wanted you to see my latest blogpost on this amendment and hope you will contact your representatives in Washington to express your concern. The new Waxman Amendment does nothing to fix the fundamental issues in the CPSIA and continues to stack the deck against small business in favor of big business and certain favored industries. If this legislation proceeds in its present form, Congress is likely to assert that they have “listened” to our complaints and addressed them, washing their hands of the matter. With almost 2500 pages of rules already promulgated by the CPSC to implement the CPSIA, and more spewing out on a daily basis, this law is not only incomprehensible to most businesses but completely unmanageable as well. Based on testimony by Chairman Inez Tenenbaum at last week’s Senate Appropriations Committee meeting, it seems clear that the CPSC is transitioning to an enforcement posture (from its implementation phase). Therefore, you can safely assume that you will held responsible in a matter of months by a CPSC that has little sympathy for your problems complying with their blizzard of rules. [If you doubt this, read my blogposts about penalties.]

The time to act is NOW. We must block this amendment.

Richard Woldenberg
Chairman
Alliance for Children’s Product Safety

Read more here:
Time to Make Your Voices Heard!

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