CPSIA – McDonalds Recall Urged by CPSC – WHY?

The CPSC has put in writing that the Shrek glasses recalled by McDonald’s last week are “non-toxic”. Nonetheless, the CPSC (perhaps the commission itself, as noted in certain press reports) “urged” the company to make the recall.

So now it appears that the CPSC thinks it’s okay to ask a company to recall a product for reasons that it acknowledges pose no safety issue. Why?

Let’s not forget all the expense that this move imposes on the company coerced into making the recall. The law restrict the power of the agency to take this step, in part to preserve the incentive to make “at risk” investments in new products. There’s also that small detail called “due process”. My previous post noted that the CPSC does not have the authority to make recalls of products absent a “substantial product hazard”. This suggests that the CPSC was exceeding its authority in the McDonald’s case. By almost any measure, the CPSC’s actions were inexplicable. Why demand a recall of a safe product?

I cannot answer this question for the CPSC or its Chairman, Inez Tenenbaum. However, here’s a few salient facts to chew on:

1. The Member of Congress (Jackie Speier) that “tipped off” the CPSC about this matter is a Democrat.
2. Jackie Speier represents a California Congressional district (12th) that abuts Nancy Pelosi’s district (8th).
3. Shortly after first being elected to Congress in a 2008 by-election, Speier was appointed by Pelosi to serve as a member of the House Oversight and Government Reform Committee, then chaired by none other than Henry Waxman. Waxman resigned this chairmanship to take over as Chairman of the House Committee on Energy and Commerce.
4. Ms. Speier has publicly endorsed the “black box” requirement for cars that Mr. Waxman supports. She also wants to create a federal law restricting cadmium in jewelry. Her concept of Congressional activism is very closely aligned with Mr. Waxman, another California Democrat and patron of the Democratic majority on the Commission.
5. Today, Speier is a member of three committees. Besides Oversight, the other two committees are chaired by Edward Markey and Barney Frank, two close allies of Waxman and Pelosi.
6. Jackie Speier is running for reelection in one of the most phobic of states, California. The Democrats need every seat they can get in this Mid-Term election.
7. One of the three Democrat Commissioners appointed by Obama was a member of Henry Waxman’s staff for several years (Adler).

And can anyone imagine a Democrat-controlled CPSC telling a Democratic Member of Congress from the San Francisco area that her highly-publicized call for investigation of Shrek glasses because of cadmium was, in fact, unmerited, that the product was perfectly safe and the large corporation responsible for the glasses had protected consumers very well? In an election year with Nancy Pelosi in charge of the House and Henry Waxman directly overseeing the agency?

Nope, can’t think of a single reason why the leadership of the CPSC would urge McDonald’s to recall the safe glasses.

At least the CPSC won’t have to pay the costs of the recall. That’s McDonald’s problem.

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CPSIA – McDonalds Recall Urged by CPSC – WHY?

CPSIA – Schakowsky’s Opponent Has the Horses!

I recently saw this impressive video of Joel Pollak, the young man running as the Republican candidate for Illinois’ 9th Congressional District currently occupied by Rep. Jan Schakowsky.

It is hard to get used to the idea that we could have someone this bright and clear-thinking in Congress. Of course, until the CPSIA passed and I began beating my head against a wall, I wasn’t that cynical.

Let’s hope the constituents of the 9th district give a fair hearing to Mr. Pollak and explore the advantages of making a change in leadership. Ms. Schakowsky has represented this district since 1999. Enough damage has been done.

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CPSIA – Schakowsky’s Opponent Has the Horses!

CPSIA – Schylling Penalty Update

You may recall that I have written about the excessive penalty inflicted on Schylling for old and cold lead-in-paint infractions in the amount of $200,000. These infractions did NOT result in injuries. [As I have noted previously, I have no firsthand knowledge of this matter, nor do I have any direct relationship to the principals involved in this penalty.]

Well well now, some of the more astute observers of the CPSC may have noticed that poor ole’ Schylling did not actually end up paying the excessive $200,000 penalty. No, that agreement was apparently REJECTED in favor of a new agreement signed on May 18. The new agreement, which is virtually identical to the original agreement executed by the CPSC on January 19 (but for a non-substantive paragraph 30 and an order attached at the end) DOUBLES the penalty inflicted on Schylling to $400,000. The agreement was published for comment in the Federal Register on June 2.

Whoa.

So what happened?

It’s not entirely clear. The original agreement was announced by press release on February 4 and notes: “The penalty settlement, which has been provisionally accepted by the Commission, resolves staff allegations that the company violated the federal lead paint ban regarding toys with surface paints containing lead above the 600 parts per million (ppm) legal limit applicable at the time, and failed to immediately report to CPSC information about the non-compliant toys.”

The press release goes on to quote Ms. Tenenbaum sternly admonishing Schylling for violations that occurred between June 2001 and May 2003: “Manufacturers, importers, distributors and retailers have a legal obligation to ensure that no banned products are introduced into or distributed in the U.S. marketplace, and to inform CPSC as soon as they become aware of information that must be reported under our laws. We will continue to penalize companies that do not follow these basic requirements.”

The normal procedure is for the settlement agreement to be published for comment in the Federal Register, but that never happened. Although the February 4th press release states unambiguously that the settlement agreement had been provisionally accepted by the Commission, something derailed the agreement and back to drawing board it went. It’s possible that the Office of Public Affairs somehow jumped the gun with the press release, too. Nevertheless, the time between signing and press release suggests it had to be something else. But what? I cannot find the Public Calendar for this time period but there were probably at least two closed Commission meetings that could have considered this case.

Somebody was NOT happy with the size of the penalty for these old violations. Schylling apparently changed law firms to deal with the revived crisis (two different firms signed the agreements) and four months later, a new agreement doubling the penalty was signed by the parties.

There is no public record of who was unhappy or why. It could have been a Commission member. It could also have been one of the self-appointed protectors of the public good, our good friends the consumer advocates. Who knows? I will be submitting a FOIA request to see what I can find out. Watch this space carefully over the next several years to see if I ever get an answer.

Everyone feeling safe and happy? How about you manufacturers? Happy about justice being served?

Here’s another serious oddity: The statute of limitations for these violations had RUN by the time the agreement was signed. The CPSC should not have been able to assess penalties in this case. Hmmm. Let’s unpack this a bit further. There are really TWO kinds of violations here – (a) lead-in-paint violations, and (b) failure to timely report the violation. On the former, the statute of limitations is apparently quite clear – it had run out. The CPSC had no legal ability to hammer Schylling for lead-in-paint violations that were so old. Bummer for the agency.

Just as the FBI uses the device of failure to report income to put away gangsters like Al Capone, the CPSC has another trick up its sleeve. The other violation, failure to timely report, is in a grey area as far as the statute of limitation goes. Does the statute start to run when the company should have reported . . . or does it run from the date the company finally files a report? This has never been tested in court. The CPSC seems to have seized on this ambiguity to assert penalties against Schylling. To judge by the outcome, the company did not relish litigation with the Federal Government. The old rule that you should never litigate with someone with a printing press holds doubly true in conflicts with the Obama Administration. They clearly know how to print money.

So the CSPC doubled an excessive penalty on a hapless toy company without the means or the will to push back, and set a terrible precedent that could be used . . . against you. The due process rights of corporations are trampled again. Who is protesting? No one.

All this brings to mind the March 3rd Commission hearing on the new civil penalty rule. Commissioner Bob Adler took a very hard position on penalties:

“I do think that the regulated community deserves to know that we are making a ‘pivot’ with respect to enforcing the law [referring to the size of penalties] [28:20] . . . . I certainly agree that we have to have gradations of civil penalties depending on the gravity of the offense. I personally wouldn’t want to tie our hands by saying that the only time we can hit you with a big civil penalty is when there was a death or a serious injury. There may be an immense potential for death and serious injury which just through fortuity did not occur. So what I would like do is to retain the discretion on the Commission to say where you have done something REALLY BAD, and it could be a variety of factors, we are going to impose civil penalties. But there may be situations where what the company did was REALLY BAD but through fortuity, nobody was injured or nobody was killed. [32:00]” [Emphasis added]

Call it the “Adler Penalty Principle”. Schylling’s case did not involve any injuries, but perhaps under unforeseeable circumstances, a child or two could have been injured by the toys. They weren’t but that doesn’t seem to matter under the Adler Penalty Principle. The company also failed to report (see my original blogpost for details). another “crime” needing retribution. One cannot help wondering if Mr. Adler decided this was one of those “REALLY BAD” cases. It’s not clear how such an assessment is to be made. Adler explicitly rejected outcome as a measure of the severity of infractions. In any event, a massive penalty like this is clearly intended to terrorize the regulated community. The niceties of whether the company’s behavior merited this treatment seems to be a secondary consideration.

The penalty policy of this CPSC Commission is completely arbitrary, excessive and intended to be highly coercive. Practitioners in the CPSC Bar have regaled me with stories of the CPSC’s use of the penalty free-for-all to coerce all sorts of unreasonable settlements.

Every outcome can be justified in a world without rules or due process protections. Maybe that’s the pivot that Adler was referring to.

Read more here:
CPSIA – Schylling Penalty Update

CPSIA – Lowest Common Denominator Government

We saw a display of Mr. Obama’s team in action this past week as McDonald’s was cornered into a national recall of a safe product. How did it happen? Did our government rise to the occasion, or simply resume its descent into the abyss?

“Americans want to be safe. And they expect their federal government to protect them. So that is what I’m here to do.” Chairman Inez Tenenbaum, NPR Report “Under Obama, Agencies Step Up Rule-Making”

Last week in a coordinated media extravaganza, an anonymous caller alerted Rep. Jackie Speier (D-CA) to the trace presence of cadmium in Shrek glasses being sold by McDonald’s. In a rapid fire series of events, McDonald’s announced a voluntary recall of the offending Made-in-America glasses “at the urging of the [CPSC] commission ”. The CPSC apparently pushed for the recall of the glasses by McDonald’s after quickly testing the glasses.

[It turns out that there were two "anonymous tipsters", one of whom is Jennifer Taggart, a regular reader of this blog. Ms. Taggart has acknowledged that cadmium levels on the McDonald's glasses are well within California's Proposition 65 restrictions. Prop. 65 is easily the most restrictive and challenging of the myriad local safety regulations.]

Rep. Speier seized the election year opportunity to lecture McDonald’s on safety: “’Our children’s health should not depend on the consciences of anonymous sources. Although McDonald’s did the right thing by recalling these products, we need stronger testing standards to ensure that all children’s products are proven safe before they hit the shelves,’ said Speier. ‘Cadmium is a toxic substance that is extremely dangerous to the developmental health of children. . . . Thanks to this anonymous tip received by my office, the proper agencies were alerted, necessary action was taken by McDonald’s, and the long-term health of millions of children is no longer at risk.’”

Jackie Speier is a Democrat representing the San Francisco area.

A media deluge followed the recall. Typical of the hyperbole is this article from NJ.com: “McDonald’s announced the voluntary recall after small amounts of cadmium were found in the enamel with which character images were painted on the glasses . . . . Long-term exposure to low levels of cadmium from those glasses can cause various health problems, including cancer, bone softening and severe kidney problems. [NJ State Assemblyman Paul] Moriarty, in a news release, demanded an investigation . . . . ‘It’s stunning that in this day and age our children can still come into contact with toxic materials just by using a glass featuring a cartoon character,’ Moriarty said in the release. . . . ” [Emphasis added] AP could not resist the McDonald’s cadmium frenzy that it helped to create: “A recall of 12 million cadmium-tainted ”Shrek” drinking glasses sold by McDonald’s raises questions about the safety of millions of similar cheap promotional products that have been sitting in Americans’ kitchen cabinets for years.”

It all boils down to trust, right? After all, it’s McDonald’s. McDonald’s is America, McDonald’s is children. If you can’t trust McDonald’s, who can you trust?

I will attempt to answer that question.

First – Can you trust McDonald’s?

Yes, absolutely, without reservation. McDonald’s (not a customer of ours, never was) has the best reputation of any company in the toy industry (in my humble opinion) for safety, conscientiousness and attention to detail. McDonald’s is HARDLY asleep at the wheel. Rep. Speier’s remarks are outrageous but for the fact that she is a California Democrat from San Francisco. Consider the source. I believe McDonald’s ten times out of ten against Rep. Speier.

On the other hand, if McDonald’s is so wonderful, why on Earth did they recall these glasses? Okay, you be the CEO of McDonald’s for a moment – what would you do? Fight for the right to sell cadmium-laced glasses? Argue that the glasses are “safe”, that toxic cadmium isn’t harmful? Please, McDonald’s had no choice because it has to protect its brand. Listen to the Moms in the video above. If they don’t trust McDonald’s, they will walk across the street to Wendy’s. McDonald’s has NO CHOICE but to “do the right thing”. The cost of the recall is a secondary concern. Burn, baby, burn.

Second – Can you trust an anonymous tipster?

Why be anonymous if you are acting “heroically”? Well, for one thing, being anonymous means you aren’t accountable if you are wrong. The two tipsters were using XRF guns, acknowledged by the CPSC to be imperfect and best used to screen for possible faults. It might be embarrassing – or expensive – to start a public panic and then be proven wrong. This mess might be seen as your fault and somebody might want you to pay for the expenses. Hmmm.

What if the caller had reason to hide his/her identity? This is the very worrisome scenario. There are many people who might want to rat out a McDonald’s. How about a competitor? Or a spurned supplier? A disgruntled employee or spouse of an employee? This is one of the primary objections I made to the public database – the potential for abuse is rampant. An anonymous tipster very well might be up to no good. McDonald’s loss could be the tipster’s gain – an ill-intentioned tipster in partnership with a self-promoting fear monger in election season (like Jackie Speier) could be a powder keg. [Ed. Note: It is worth noting for clarity's sake that Jennifer Taggart has identified herself so this discussion does not apply to her.]

This could happen to you, too. The CPSIA encourages this kind of rat-me-out frenzy. How many businesses will close or sell out because of this shameful law? Time will tell. In the meantime, the sport of trashing trademarks and company reputations will thrive at the hands of the “anonymous tipsters”.

Third – Can you trust the CPSC?

We ought to be able to trust them. Have they earned this trust?

Here’s a June 4th tweet from Scott Wolfson, Director of Public Affairs: “Scott_Wolfson: Note to reporters: the recalled McDonald’s glasses are not toxic.” Interesting – the CPSC apparently pushed for the recall of safe products. Wolfson is also responsible for the press release detailing this recall: “The designs on the glasses contain cadmium. Long term exposure to cadmium can cause adverse health effects.” Same guy. And Wolfson offered these calming words of reassurance to the AP: “Wolfson said the recalled glasses have ‘far less cadmium’ than the [recently] recalled jewelry. He would not say how much cadmium leached from the glasses in tests, only that it was ‘slightly above the protective level currently being developed by the agency.’”

I believe Mr. Wolfson is the author of the CPSC’s OnSafety blog – here’s how he counseled consumers about the McDonald’s glasses in a recent post: “If you bought these “Shrek Forever After 3D” glasses at McDonald’s – millions of you did – stop using them immediately. . . . The glasses contain low-levels of cadmium. . . . The company has stepped up to do the right thing [in issuing a recall].” [Emphasis added] He also justified the recall of non-toxic glasses in the New York Times as follows: “Both C.P.S.C. and McDonald’s are being highly protective of children in announcing this recall.”

Scott has a way with words, doesn’t he? Makes you wonder what his job is, exactly.

So the CPSC admits that the glasses were safe. Yet the “commission” urged McDonald’s to recall the glasses. Why? Wolfson says implausibly that the CPSC was being “highly protective” in recalling non-toxic glasses. Actually, “Why” may not even be the right question.

Let’s consider the question of “how”. On what legal basis did the CPSC press McDonald’s to take this step? The authority of the agency to demand a recall depends on the presence of a “substantial product hazard”. There is no other basis for the agency to take action – it cannot act on whims or because it is always crabby on Mondays. I have addressed this issue previously in this space, and noted that the authority to initiate a recall is based on the existence of “a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public.”

If the CPSC’s Director of Public Affairs notifies the press that the product is not toxic, it is incontestably certain that the glasses don’t present a substantial product hazard in this case. For perspective, consider the views of the U.S. factory responsible for the glasses:

“[VP Ron] Biagi . . . added that [in addition to McDonald's] Durand Glass also does material safety tests. ‘We will do nothing (different) because we don’t need to,’ Biagi added. ‘You are always looking for the most healthful way to make a product. What we’re producing today, it is safe.’ Biagi said there are multiple suppliers, domestic and foreign, of the enamel used for the Shrek glasses. Other glass producers use the same product, he said. Late Friday, the company issued a short statement from its CEO for North American operations, Fred Dohn. ‘All the products, whether decorated or undecorated, that Arc International is delivering on the markets meet the highest standards of quality and safety,’ Dohn stated. ‘Arc International is a professional manufacturer that stands behind all its products. We therefore see this as an internal decision by McDonald’s and will be investigating the matter once we receive more information.’”

So what gives? By all appearances, the leadership of the agency substantially exceeded its legal authority in pressuring McDonald’s to recall these glasses. Any problem with that?

I won’t insult your intelligence with a rant about the trustworthiness of the Democrats who are running the shop these days. If you trust Jackie Speier and the like after this sorry tale, I can’t help you.

In closing, let’s recall the words of Ms. Tenenbaum: “Americans want to be safe. And they expect their federal government to protect them. So that is what I’m here to do.” By all appearances, Ms. Tenenbaum was doing exactly what she promised – her agency is wrapping you in bubble wrap whether you need it or not. She says that’s how you want it – no matter that it’s outside her legal authority, well-beyond any notion of common sense and implemented with a complete disregard to economic consequences or the impact on other market participants. It’s okay because the press eats it up . . . and it helps reelect members of Congress. Everybody’s a winner as we sink into the abyss.

Lowest Common Denominator Government. Yes We Can.

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CPSIA – Lowest Common Denominator Government

CPSIA – The Madness Continues . . . .

The stress and strain of complying with the frustrating and destructive CPSIA hit a new low today when we were informed that a major customer had imposed their own new “safety” standard mandating a 40 ppm standard for lead in SUBSTRATE. This impossible-to-meet standard exceeds all legal standards considerably and is even more unreasonable than Illinois’ misguided lead labeling law applicable only to lead paint. No health or safety reasons were provided. This move was presumably an effort to keep things “simple” for this retailer. Not so simple for us. Will anyone care?

This is a result of the junk science feeding frenzy induced by the CPSIA. The CPSIA itself is divorced from science reasoning, taking an arbitrary and absurd stance against anything and everything with any lead in it. The health risks are utterly conjectural in substrate in the affected products and could never meet the “substantial hazard” standard, but scientific studies taken out of context provide handy justification of a fear of everything, paranoid approach to safety regulation. The loathsome penalties imposed by a perpetually angry CPSC have stoked a race to the bottom. Thus, a 40 ppm lead standard for substrate.

Common sense. Anyone remember what that is?

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CPSIA – The Madness Continues . . . .

CPSIA – A Page Torn from the CPSIA Playbook

The Dems’ Central Command tore a page from Waxman’s CPSIA playbook and, according to the New York Times, is apparently advising Democratic candidates running for Congress to avoid town hall meetings. All the better to avoid feeling the wrath of their constituents, you know, the people they represent. The NYT article reveals the strategy:

“The reception that Representative Frank Kratovil Jr., a Democrat, received here one night last week as he faced a small group of constituents was far more pleasant than his encounters during a Congressional recess last summer. Then, he was hanged in effigy by protesters. This time, a round of applause was followed by a glass of chilled wine, a plate of crackers and crudités as he mingled with an invitation-only audience at the Point Breeze Credit Union . . . . The sentiment that fueled the rage during those Congressional forums is still alive in the electorate. But the opportunities for voters to openly express their displeasure, or angrily vent as video cameras roll, have been harder to come by in this election year. If the time-honored tradition of the political meeting is not quite dead, it seems to be teetering closer to extinction. Of the 255 Democrats who make up the majority in the House, only a handful held town-hall-style forums as legislators spent last week at home in their districts. It was no scheduling accident.”

Here’s the Dems’ genius strategy in a nutshell: last year – hung in effigy; this year – invitation-only, closed door “feedback” sessions. Problem solved!

This master stroke allows the Dems to stage manage a myth, perpetuating the illusion that everything is A-Okay. Of course, this brings to mind Henry Waxman’s refusal to hold CPSIA hearings for almost two years and his staff’s perpetual rebuffing of any criticism of the “perfect” CPSIA. See no evil, hear no evil – therefore there must not be any evil . . . right?

The big question is who will be fooled by the Dems “hiding in plain sight” strategy. Does anyone actually believe that avoiding the people will keep the Dems in control of Congress?

It’s hard not to feel that the Dems think they are ruling us, not governing as our representatives, and aren’t accountable for their actions. It seems the height of arrogance to not stand before constituents and talk about the issues of the day. Perhaps they think we are too dim to remember what we are pissed off about.

Just like the CPSIA. Does anyone remember why we are mad about this law??? Someone needs to remind me . . . .

So the Dems are going to avoid you and your problems. This kind of treatment makes voter anger turn into voter rage. Let’s keep this in mind as we head to the polls. When the Dems are out of office, they can see how they like being ignored.

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CPSIA – A Page Torn from the CPSIA Playbook

CPSIA – Fear of Zippers

I have been tossing and turning about zippers ever since the April 29 House hearing. Perhaps you recall Steve Levy’s demonstration of why thousands of pairs of pants and jeans were thrown away under the CPSIA to make you so much safer. As you know, you can’t place a price tag on safety. Burn, baby, burn.

In response to questions by Ranking Member Whitfield, Steve Levy discussed lead in zippers at about the 47 minute mark in the testimony video. He noted that zippers are made of five to seven components, one of which has been found to have trace lead amounts in excess of current limits. The component in question is not accessible (it’s sewn into the crotch of the pant) but since the CPSC can reach the component with a probe, it is considered violative. Fabric is not considered a “barrier” to access under CPSC rules. Bummer, that’s thousands of pairs of pants into the garbage.

Self-appointed “Safety Czarina” Rachel Weintraub was quick to object to the horrors of Mr. Levy’s jeans: “The problem is, unfortunately, that children mouth zippers all the time. You know I have three young children. My oldest child who is almost six, he mouths zippers as well. . . . The problem is that children interact with clothing in dynamic ways.” This Rachel-speak is the version of “common sense” that imbues the CPSIA. Perhaps you recognized the valuable insights.

Whoa! Children are so “dynamic” with their clothes, this little zipper could be zapping IQ points every day. Wow. I am quite a worrier as you know, so I have been fretting about zippers almost non-stop for a month. After all, we clothed our children in pants with zippers since they were born (many years ago). I can’t detect any missing IQ points in my kids, but of course, I am not nearly as smart as Rachel Weintraub or the other safety zealots perhaps as a result of my wearing jeans to this very day. Still, I could not ignore Rachel’s serious warning but needed to better understand the danger.

So we asked a four-year-old volunteer to suck on his jeans zipper. Here’s what happened. Don’t worry, no IQ points were killed or harmed in the making of this video.

WARNING: The following video contains dramatic footage of a four-year-old attempting to suck on his jeans zipper. Such graphic footage may not be appropriate for everyone. Please think carefully about watching the video if you are a member of a consumer group.

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CPSIA – Fear of Zippers

CPSIA – Casualty of the Week for June 1

The Alliance for Children’s Product Safety’s “CPSIA Casualty of the Week” highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring “common sense” to our nation’s product safety laws.

CPSIA Casualty of the Week for June 1, 2010:

CPSIA RULES! (THOUSANDS OF PAGES OF THEM)

Educational Products Market Overwhelmed by CPSIA-Mandated Testing and Paperwork

American Educational Products LLC (AMEP) is a Fort Collins, Colorado-based company selling classroom teaching aids like flash cards, animal models, globes and relief maps that educators rely on to teach their students. Despite a sterling safety record, AMEP President Michael Warring is worried that the ever-increasing amount of time that his company is spending on compliance with the CPSIA threatens the future of his company.

Warring explained, “We sold 5,600 different SKU’s in 2009 to 2,600 different customers. Approximately 2,000 of these SKUs might be considered ‘children’s products’, meaning that they must be tested by a third party for lead. My 64 employees and I are finding it virtually impossible to manage the scale of this CPSIA-mandated testing. Each SKU takes approximately eight hours a year in compliance and testing administration. This means that 24 of my 64 employees would need to work full-time, year-round just to ensure compliance with CPSIA – even though our supply chain controls effectively manage the risk of lead violations. I cannot afford a 37% increase in employees nor can I force 40 employees to do the work of 64. Neither alternative can be achieved.”

Warring also said his company has lost business due to CPSIA.

“One customer cancelled a $5,000 custom rock order after deciding that rocks were too ‘dangerous’ for a geology lesson because of the CPSIA lead rules and elected to use posters instead,” said Warring. “What caliber of young scientists are we nurturing in our country when we won’t let students touch and feel the textures, densities and hues of naturally-occurring rocks in a classroom? After all, kids pick up rocks outside the classroom every day. Our laws are scaring schools away from common sense choices about how our kids are educated.”

He continued, “Another customer insisted that we use XRF scanning for lead-in-paint, a procedure not approved by the CPSC for compliance testing because XRF tests may produce erroneous results. We showed him independent test results that confirmed that our products were well within the CPSIA lead limits, but our inability to provide XRF testing resulted in the customer canceling orders worth about $35,000 to our company. Confusion reigns supreme – two years after passage of the CPSIA”

Warring fears that the CPSIA’s senseless testing requirements and voluminous paperwork will mean that many of the 5,600 educational products that AMEP produces will disappear from the marketplace.

“As we offer fewer choices to the distributors we serve, our position as a vendor will deteriorate and our very viability in the marketplace could be at risk,” said Warring.

Warring concluded, “I’m not sure how children’s safety and well being is being addressed when their parents’ livelihoods disappear and when their education is being limited to material in printed form. These are two of the many real consequences, intended or otherwise, that CPSIA has imposed on my company, my employees, the vendors we support, our customers, and the children we help to educate.”

For additional information on the Alliance for Children’s Product Safety and CPSIA, and to view previous “Casualties of the Week, visit http://www.AmendTheCPSIA.com.

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CPSIA – Casualty of the Week for June 1

CPSIA – Thank You Sir, Please Give Me Another . . . .

Today I was assaulted with the news that our company had just received a bill for more than $4,000 to test one of our older items as required by one of our major retail clients. This particular retailers requires that we test every shipment to them using their lab, their prescribed assortment of tests and their pricing – at our expense. There are no exceptions to this rule and no negotiations are tolerated. It’s said to be “a cost of doing business”, and we are supposed to take this cost into account when we price our products to them.

This item has been tested I don’t know how many times. Many times in many forms. Every test was a pass. This latest $4,000 test told us NOTHING we didn’t already know. Had we done the tests ourselves using our primary test lab, we would have spent a fraction of the $4,000 we were required to pay by our retailer client. The product is no safer with this latest test. Most of the money (60%) went to phthalates testing.

Although there is nothing about this test that does NOT irritate me, proving the absence of the six banned phthalates is BY FAR the most offensive. We use materials that do not contain the banned phthalates. This is something that our supply chain management is supposed to address. Even more to the point, since these chemicals have been banned for almost two years for use in toys (for better or worse), they are largely absent from the supply chain without our doing anything at all. Yet, the geniuses who wrote the CPSIA require that we test each product, over and over, to prove they’re not there. Phthalates cannot spontaneously generate themselves – they are an ADDITIVE. Having jacked up penalties to the sky and hit several retailers with highly-publicized irrational and vindictive penalties, the CPSC has created a caustic environment in which testing is not negotiable with large retailers. Hence, we must prove again and again that the phthalates that weren’t there, aren’t there. This costs BIG MONEY. It accomplished absolutely nothing.

And the $4,000? We were theoretically supposed to charge the customer for the testing in our product pricing, but in fact, in most cases, we must absorb the cost. That’s the real world. So we make $4,000 less in profit. We have $4,000 less to invest in our business, $4,000 less to pay health care costs, $4,000 less to pay for innovative product development, $4,000 less to pay bonuses. No one is safer, either. And this is good for all of us? A good way to run a country?

And where did the $4,000 go? To China. The lab which our client requires we use is a public company, and the chosen lab is located in China. Notwithstanding the lab’s low operating costs, the prices we pay for this testing are full boat, un-discounted, nosebleed pricing. They simply vacuum up as much of our money as they are allowed, and your wonderful Democrat Congress shrieks with delight.

We’re so safe now . . . .

I can only hope that the jobs of the Democrats who are keeping us in this CPSIA hell aren’t as safe come November. That seems to be the only recourse we have left.

Read more here:
CPSIA – Thank You Sir, Please Give Me Another . . . .

CPSIA – Phebe Phillips Leaves Toy Biz Over CPSIA

Phebe Phillips, subject of our Casualty of the Week feature on December 4, recounted her story of CPSIA travails in a commencement address at the Texas Women’s University on May 14. In her address entitled “Everything is Perfect . . . I Changed!”, Ms. Phillips discussed how the CPSIA forced her into her new career as a nutritionist after years of success as a toymaker. She sums up her journey: “I stand before you as an example that change will be with you your entire life, that one is never too old or set in their ideas to change and on occasion a glass of lemonade, made from life’s lemons, can taste pretty good.”

Life’s lemons – that’s a little harsh, isn’t it, for something as wondrous as the CPSIA? I bet Mr. Waxman agrees with Ms. Phillips – if we would only relax, we would learn to really enjoy the CPSIA and its effect on our businesses and our lives. Look at all the benefits that Phebe Phillips experienced – it only drove her out of the business she started as a young graduate of Southern Methodist University in 1983 and out of the industry she loved so much. There is no sign that Ms. Phillips’ products ever harmed a single child. Nonetheless, we can rejoice at how safe everyone is now . . . .

Read more here:
CPSIA – Phebe Phillips Leaves Toy Biz Over CPSIA

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