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CPSIA – Recall the CPSC

778 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 32 days left until Election Day.

In a remarkable demonstration of the anti-business bias of the current CPSC, Chairman Inez Tenenbaum took to the air today to bash toys and to take our old friend Mattel to task for four recalls of more than eleven million units.

Uh-oh, Mattel’s at it again. Hope this doesn’t mean it’s time for another CPSIA. It is Election time, after all.

Some background:

The CPSC Commission hosed us on Wednesday with its decision on the definition of “Children’s Products”. [Here is the approved definition (link to follow).] I will write about this in the next few days. In typical Tenenbaum fashion, rather than face intense and negative media attention on the bungled decision in which the agency knowingly effectively banned hands-on science education in the United States (see The New York Times and Associated Press on this issue), announced several high profile recalls and a scary “warning” about popular but apparently deadly infant products to distract the media and possibly you, too.

The four recalls and the warning are each prominently displayed on the CPSC website. Each was announced by press release so as to garner maximum attention. The new definition of “Children’s Products” was not announced, although there are two Commissioner’s Statements currently up on the website (Adler and Nord; Northup’s is done but the link isn’t up yet – here is her blog on the topic). The draft of the new rule is nowhere to be found on the CPSC website. There was no press release for the decision and no reference to the decision on the website other than the buried statements of the two (warring) Commissioners. Hmmm.

Probably just a little oversight, right Scott??? More on this later.

The five matters released to distract you were:

a. A warning to stop using Infant positioners in cribs. Twelve babies died in 13 years.

b. Fisher-Price recall of 2.925 million inflatables for choking hazard. Sold over NINE YEARS, 14 small parts found in kids’ mouths, three kids were “beginning to choke”, no injuries.

c. Fisher-Price recall of 1.075 million high chairs for laceration risk. Sold over NINE YEARS, seven injuries requiring stitches and one “tooth injury”.

d. Fisher-Price recall of 120,000 “Wheelies” for choking hazard. Each set includes four cars, so the universe of affected “Wheelies” is actually 480,000. Two broken toys discovered among the half million out in the marketplace (wheels fell off). No injuries.

e. Fisher-Price recall of 7.15 million Children’s Tricycles for risk of “serious injury”. Sold over FOURTEEN YEARS, ten injuries with six requiring medical attention (cuts).

Interestingly, when these recalls were brought to my attention this morning, the CPSC website simply listed the four Fisher-Price recalls as it normally does for recalls. However, by midday the marketing of the “crisis” had begun with a screaming headline in large print on the home page reading “Fisher-Price Recalls More than 10 Million Products“. No doubt the presentation was changed as a public service (these products are sooooo dangerous) . . . . The link under the headline leads to a blogpost about the four “grisly” recalls noting the following “information”:

“Fisher-Price did the right thing in agreeing to provide consumers with free remedies for these products. But all companies must do better. They must give more attention to building safety into their products. They must work to ensure that they are adhering to safety standards. And if any company finds itself with a defective product or one that is causing injuries, it must report the problem to CPSC immediately. Meanwhile, as moms, dads and caregivers, you, too, have a role. We thank the dozens of you who reported these incidents. Thanks to you, CPSC was able to investigate, work with Fisher-Price on a remedy and recall these products. If a toy breaks in your child’s hands or if your child suffers an injury from a product, tell us so that we can investigate. And if you own one of these recalled products, stop using it and contact Fisher-Price for free repair kits and replacement products.” [Emphasis added]

Is this about Fisher-Price (Mattel) or about you and me? Did we do something wrong? Apparently we must have. We were spanked in this blogpost. Was it a “teachable moment” for you? Was it as good for you as it was for me?

There is so much more to say about this:

1. I find it shocking that the CPSC would so shamelessly try to cover its tracks on the approval of the final “Children’s Product” definition. It’s not only an embarrassment to the agency, but it’s an insult to your intelligence. How this reflects the agency’s view of the media, I will leave it to you to divine. It ain’t a compliment.

2. Inez Tenenbaum went on TV today to stoke fear of toys. She did this on what is essentially the kick-off day for the Xmas toy season, September 30. Yes, our government sent its top official on national TV to scare the crap out of consumers and to warn them not to trust the companies making toys right as they were going out to the store to buy Xmas presents. This is a Barack Obama stimulus plan in action! Thanks for ALL the help, guys. Doin’ the Lord’s work every day . . . .

Here are a few quotes from Tenenbaum’s ABC News interview:

ABC: “It’s a major recall involving four different products.”
ABC: [Re High Chairs] “The problem with the high chair, I understand, is these pegs. What’s the problem there?”
Tenenbaum: “There pegs stick out and children have fallen on these pegs. Several have been injured and seven have required stitches.”

[Tenenbaum smirks as she neglects to advise that the seven injuries requiring stitches took place over NINE YEARS and were all minor injuries.]

ABC: [Re Trikes] “The hazard is a fake key that protrudes from the bike frame.”
Tenenbaum: “These tricycles have this key which sticks up and little girls have jumped on this key and have had serious cuts.”
ABC: “Serious injuries.”
Tenenbaum: “Serious injuries.”

[Another minor omission - Tenenbaum neglects to mention that the six injuries requiring medical attention affected six children among more than seven million users, took place over 14 years and involved toddlers that were supposed to be under parental supervision. Do you think she was helpful enough to the ambitious reporter who wanted a scary story? At least she took the hint and characterized the injuries as "serious injuries".]

. . . .

ABC: “There’s a message in this for all manufacturers.”
Tenenbaum: “Manufacturers need to build safety into the product from the very beginning so that we don’t have to recall on the back end.” [Emphasis added]

[This is my Xmas gift from Tenenbaum. Mattel is the cause of this, and it's Mattel that screwed up if ANYONE screwed up. Still, Ms. Tenenbaum can't miss the opportunity to use TV to tell MY customers to not trust ME. Thanks so much. And this Administration is MYSTIFIED about why we can't get our job market going again. I'm stumped, too. . . .]

ABC: “In a statement this morning, Fisher-Price said it wanted to reassure parents that its products are ‘overwhelmingly safe’. But if you have any of THESE products, you SHOULD call the company. They will offer a fix for some of them . . . others will be replaced outright.” [Emphasis added]

[Lest anyone mistake this for yet another idiotic and reactive series of recalls, ABC tries to portray Mattel as untrustworthy with the quote about the overwhelming safety of the 11 million recalled toys . . . then tells you to get them out of your house pronto.]

3. The Wall Street Journal was able to put a happy face on this sorry episode. Mattel’s 2010 earnings will only shrink by a penny a share because of the massive recalls. Anyone want to organize a telethon to help out a buddy in distress? How will Mattel make up that penny? Oh, the horror of it. . . .

4. I would be remiss if I didn’t remind you that Mattel has succeeded in certifying about ten of its corporate labs to test its products. I call on the CPSC to release the Mattel test reports behind these recalled items. I can’t wait to see the first recall of a Mattel item tested in a CPSC-certified Mattel lab. You’ll never know about it, because the CPSC and Mattel will move heaven and earth to keep you from finding out.

5. The recall of the Mattel “Wheelies” will be known as the original “broken toy standard” recall. Please consider the ominous nature of this development. The Mattel toy cars were reported by eager and enthusiastic consumers because they found a broken toy. The CPSC is calling for this kind of “help” so you can expect a LOT more of this in the future. To be precise, two broken toys were found in this case. No one was hurt. No allegation has been made public that any child was even possibly in danger. No disclosure was made about how the toys broke.

The CPSC apparently intervened to “investigate”. These investigations often begin with a warning to the manufactuerer – you can participate in the CPSC’s Fast Track Voluntary Recall program and avoid a formal investigation and possible penalty, or you can take your chances on what determination we will make months or years later. This kind “offer” is generally a short-lived one, possibly allowing only a few hours to decide. [This dirty secret is certainly true - ask around . . . or wait for the call.] The facts may be just like this one – a broken toy has been discovered (horrors), do you want to recall (today)? Mattel decided to recall in the case of the “Wheelies”, based on two broken toys and perhaps on a conversation with the kind folks at the CPSC.

Do you get this one? If a consumer reports a single broken toy to the CPSC, the agency may investigate you and you may be forced to recall the item immediately. No injuries are required, just the POSSIBILITY of injury. Do you see ANY problems with that standard? Do you think the possibility of injury is the same as the certainty of injury??? Are your products indestructible? Is this a standard for recalls you are prepared to meet? And how do you plan to blunt this regulatory attack?

Having fun yet?

You heard it here first. The “broken toy” standard – that’s the rule now. I’m not kidding.

For those of us idiots who persist in making children’s products, these recalls are chilling, particularly in light of the decision on “Children’s Products”. The CPSC is busily engaged in shrinking our market through scare tactics and reactive regulation of the markets. They are also building barriers to entry that protect mass market companies and ensure the demise of small business. How many of you can withstand the cost, damage and disruption of a 11 million piece recall? None of you. This will cost Mattel ONE PENNY. Aw, poor Mattel. Who will be left to compete with them? Hasbro. And you? You’re screwed. The CPSC doesn’t even bother with lip service on this one anymore.

The new definition of what constitutes a ” substantial product hazard” under the CPSA is now . . . everything. Anything that might possibly cause injuries is implicitly an “imminent threat” and must be recalled. There is no defense to the possibility of injury. Heaven forbid that there may have been injuries of any kind. Then you are dead. You’ll find out your penalties in a few years but right now, the recalls must proceed. Doesn’t matter what percentage of the items cause injury. Doesn’t matter how many years it took to accumulate the injuries. Doesn’t matter if the consumer was at fault or if there was dereliction of duty on the part of adults. The company is always at fault.

We are aiming for a Utopian society now, guys. Do you doubt this? Read this article carefully from the top a second time. The message is clear: Manufacturers, get out of Dodge, unless you are Mattel.

RECALL THE CPSC! This madness will kill us all. This is all about a mania and political leadership hired to foment this change in approach. There is little reason to believe these people will change – it’s time to start over.

Read more here:
CPSIA – Recall the CPSC

CPSIA – Besides THAT, Mrs. Lincoln, How was the Play?

776 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 34 days left until Election Day.

The Cato Institute published its study of the Foreign Manufacturers Legal Accountability Act yesterday entitled: “‘Consumer Safety’ Bill Could Boomerang Against U.S. Manufacturers”. I have written about this latest self-destructive attack by Congress on our economy many times in the past.

[I am beginning to think of this Congress as some form of national auto-immune disease. Is there a pill we can take to get rid of it? If only . . . . The "pill" is called voting on November 2nd.]

Here’s the conservative think tank’s take on this legislation in a nutshell:

“Americans damaged by faulty products, whether made abroad or domestically, should be able to seek compensation through the courts. But the approach advocated by supporters of the FMLAA would not solve the problem. It would create a false hope of collection for damages while bypassing existing procedures that have proven to work in most cases. The approach would potentially violate constitutional protections available to citizens and non-citizens alike as well as existing commercial agreements with other nations. It could potentially disrupt global manufacturing supply chains, putting American production and employment in jeopardy.”

Now that’s a good reason to vote sponsor Betty Sutton (D-OH) back into office, isn’t it?

But then there’s the inflamed EU, Canada, WTO, importers, blah blah blah. Who cares? Not this Congress. I am told now that the FMLAA will not be addressed before the Election, but watch out for the lame duck session.

Nice of Congress to keep us on our toes with threatening legislation pending all the time. Really nice. I wonder if there’s time to send out another solicitation for funds for the Republicans tonight . . . .

Read more here:
CPSIA – Besides THAT, Mrs. Lincoln, How was the Play?

CPSIA – My Comment Letter on 100 ppmLead Standard

774 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 36 days left until Election Day.

My comment letter submitted today on the proposed 100 ppm lead standard due to be inflicted on August 14, 2011:

September 27, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 502
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)

Re: Docket No. CPSC–2010-0080 Children’s Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on Children’s Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content (Docket No. CPSC–2010–0080) published in the Federal Register on July 27, 2010 (the “Proposed Rule”).

You have requested feedback and additional information on several topics relating to the prospect of a new lower 100 ppm lead-in-substrate standard. I will attempt to respond to your specific queries at the end of this letter. I find that the questions you have articulated are basically irrelevant to our company’s situation. Your questions seem to presume that the standard will be implemented. If you take the step of implementing the new standard, you will be inflicting needless and extension damage to our company with absolutely no corresponding benefit to consumers or the general public. This is terrible and irresponsible public policy. The new standard is not based on science but rather phobia and fear of the unknown. Our business will suffer for no purpose. The jobs lost will at your hand.

I want to comment on process. The agency appears to be in a race to complete its CPSIA rulemakings before year end, damn the consequences. According to www.regulations.gov, the CPSC received 73 comment letters on the Proposed Interpretative Rule for “Children’s Product” (CPSC-2010-0029 due June 21, 2010). Nevertheless, as has been widely reported, the agency ignored or glossed over the vast majority of those comments (including all of mine) and pronounced the draft rule to be “final” with virtually no changes. This flagrant disregard of public comments turned the CPSC’s rulemaking process into a sham if not an outright breach of law. I believe the agency intends to pass through rulemaking this year to avoid the embarrassment of further extending the CPSIA testing stay due to expire on February 10, 2011. The incentive to give short shrift to our comments grows daily.

I have lost faith in the sincerity of the agency’s interest in public comments after two years of being completely ignored. To judge by the agency’s disregard of my numerous comment letters, I must add little to your deliberations – in which case I do not understand why you ask me to waste hours on letters like this. After all, if you have no interest in my views, why not let me spend my time on other more productive activities? Unfortunately, I have also learned that any silence by stakeholders will be interpreted as “approval” by the powers-that-be. Thus, we are left with no option but to write these letters. With those thoughts in mind, I hereby submit my comments on the 100 ppm lead standard, fully anticipating that I will be ignored yet again.

I am aware that the agency contends that it is “compelled” to implement this new standard without regard to economics. The extremely rigid legislative language governing the implementation of the 100 ppm standard is thus portrayed as insurmountable. Is the agency truly powerless to resist? I might take that position more seriously if the agency was equally committed to following the law in other aspects of its daily affairs. However, the CPSC exhibits no such self-restraint. CPSC recalls initiated in flagrant disregard for the “substantial product hazard” standard in Section 15 of the CPSA demonstrates that the agency can invent legal flexibility wherever it wants. For instance, the CPSC pressed for a recall of McDonald’s Shrek glasses (signifying that the glasses were a “substantial product hazard”) despite this June 4th acknowledgement by the agency’s Director of Public Affairs in a tweet: “Scott_Wolfson: Note to reporters: the recalled McDonald’s glasses are not toxic.” Safe glasses do not constitute a “substantial product hazard” by any definition – yet the agency proceeded anyhow.

So when does the law actually matter, precisely? If safe drinking glasses may be labeled a “substantial product hazard”, then I guess anything goes. I find it worrisome to be regulated by a federal agency which does not abide by a disciplined interpretation of law but instead caters to prevailing political whims. If the law means nothing, then the agency should not presume to assert its inability to resist this provision. I think that’s just too convenient to be believable.

My comments on the proposed 100 ppm standard are informed by my view that the agency can do as it pleases. I have not restricted myself by the fiction that economics don’t matter.

The problems with the 100 ppm Lead Standard:

a. The new standard will have NO impact on human health. There is simply no evidence of injuries from lead at levels between 100 ppm and 300 ppm in substrate. It is notable that no other federal agency (NIH, CDC, EPA, FDA, etc.) has identified lead-in-substrate as a human health hazard. Without evidence of injuries at these barely measurable lead levels, the new standard cannot be justified economically or otherwise. It is worth noting that if the “cost” of lead-in-substrate levels of 100-300 ppm cannot be measured, the “benefit” of the new standard will be equally elusive. Given the known costs of this initiative, the new standard fails any conceivable cost-benefit analysis.

I published a study of CPSC recall data from 1999-2010 in my blog (www.learningresourcesinc.blogspot.com) in May 2010, revealing that only one death has been documented in association with lead in children’s products in the last 11 years, and only three (unverified) lead injuries in the same period. This is substantially fewer childhood fatalities and serious injuries than swimming pools and spas cause in an average day according to CPSC statistics. Given the trillions of daily interactions between children and Children’s Products in the course of a year, these meager 11-year lead injury totals are the statistical equivalent of no injuries. Thus, it will be impossible to prove statistically that any reduction in injuries flows from the change in standard. Troubling? Fear of lead-in-substrate is nothing more than a Congressionally-endorsed fear of cooties.

b. The new standard will substantially raise our product costs. The new standard means we will need to implement much tighter manufacturing tolerances for materials and for our processes. The many extra man-hours needed to implement and maintain these tighter tolerances will be expensive. It is difficult to estimate the cost, but we project a 10-20% increase in cost for finished goods subject to the new standard. Subcontractors who manufacture our goods will charge us for the risk of waste, plus the additional overhead required by the new standard. That is, they will charge us more if they are still willing to remain a vendor of Children’s Products subject to this standard. We are a small business, so many of our factories may feel our short runs are simply not worth the risk. That’s how I would look at it if I were them. Loss of vendors (manufacturing capacity) is yet another cost we would bear under the new standard.

It is worth noting that based on the results of our last two years of testing (thousands of testing line items), we estimate that less than 2% of our testing line items fall between 100 ppm and 300 ppm in lead as of today. The cost of trolling for those few affected components will be excessive and the waste associated with replacing “defective” materials will be a tax on our entire production and fulfillment processes. Not exactly a stimulus program. . . .

c. Our ability to control lead levels is unknown because test result variances are so wide. We have found that testing multiple samples from the same lot can show variances of up to 67% in lead content. It doesn’t take much variance to produce wild percentage swings at such trace lead levels. As an illustration, I have attached hereto a test report on a SINGLE PIECE OF PLASTIC STRING used to fasten a mesh bag. The string was tested in ten places, resulting in lead levels of 239 -275 ppm. In another case, we found three test results of the same yellow plastic substrate varied from 23 -139 ppm. None of this matters from a safety standpoint but from a regulatory standpoint, it’s a crisis in the making.

These small variances potentially endanger our business. How are we supposed to run our business selling inexpensive children’s products burdened by such an inflexible physical standard? The CPSC needs to recognize that substrates in the real world are not pure, consistent and invariable. The tight tolerances in this new standard will likely have us retesting several items a month at considerable expense and strain. [And G-d knows what standard the CPSC will inflict on us to govern retesting.] Each retest would presumably interfere with our ability to deliver on time and would stress our system and our people. Out-of-pocket costs would be high, perhaps over $100,000 per annum for our product portfolio of 1500 items; labor and other frictional costs would no doubt add to this total substantially.

d. It will be impossible to predict which components will fail. As test results tend to vary significantly for components from the same lot, it is difficult to control or predict problems. We have found violative results for many different materials used in our business – there is no pattern. Defects found in certain components might render the entire finished good worthless, potentially greatly increasing our losses. For example, an inexpensive backpack might be found to have a zipper that violates the new standard upon completion of the production run. This could happen even after extensive pre-manufacturing testing because physical goods tend to vary in composition. Perhaps only a tiny percentage of the zippers violate the new standard by a few ppm, but given the cost to repair and rehab the item and the practical inability to identify violative zippers, the entire lot of backpacks might have to be scrapped. There would be an increased incentive to substitute components across entire product lines, not because of any health or safety concern but simply to avoid regulatory compliance risk. Differences in utility would be a secondary consideration to avoidance of CPSC recalls or scrapping finished goods inventory. This situation would not be stable because consumers would not likely accept lower standards for our products just to mollify the CPSC – other seismic market changes could be anticipated.

e. The legal risks implicit in the new standard are simply intolerable. Let me ask you a question: how would you attempt to manage a major risk to your business caused by less than 2% of your activity? What if you had no idea WHICH 2% it was? What could you do? I think you might reevaluate your business model. Most people don’t roll the dice on their family wealth or their regular income. By imposing a standard for lead-in-substrate that is barely above measurable levels, the agency would be imposing EXACTLY this risk on us.

We believe we would be exposed to a daily risk of assault by consumer groups and other do-gooders bent on our destruction. This combat would be divorced from considerations of safety – it would be all about regulatory compliance. Our business purpose is not to pay fees to CPSC Bar attorneys, write up Section 15 reports or perform recalls. We do not have the profit margins to finance this kind of wasteful activity and do not have the spare capacity to deal with the regulatory “crisis of the day”. The legal risks of such conflict can quickly get out of control – and insurance is simply not a viable option economically. If we must bear these heightened risks, we will have to revisit our business model.

I hope the agency will not dare the children’s product industry to go belly up just to prove this point.

f. Companies, acting in good faith, are generally INCAPABLE of adopting the new standard as a practical matter. Everything can be made of low lead materials. Zippers can be made of platinum, alphabet blocks can be made of wood, cotton fibers or rhodium. Use of recycled materials can be discontinued (the anti-green movement). Durable and inexpensive materials used for years without incident can be discarded in favor of “purer” materials. All of these things are possible. But they are not practical and they are not economic. If we are to indulge the fantasy of the money-oblivious CPSIA, then whatever we can imagine is possible and money doesn’t matter. This is regrettably unrealistic – businesses exist in the real world and money DOES matter. Thus, companies operating in good faith can’t adopt the new standard if their business model is scrambled.

g. Dealers in our goods can be expected to adopt their own standards to create a regulatory “cushion”. Distributors and retailers have been building their own safe harbors to provide CPSIA protection over the last two years. We have many customers with unique and wildly variant compliance requirements despite the crafting of thousands of pages of rules from the CPSC under the CPSIA. Our dealers can always beat the CPSC in a game of “Can you top this?” If the agency implements a 100 ppm standard, we fully expect a new outbreak of “regulatory compliance exuberance” among retailers. What will happen to us under those circumstances? With a CPSC-fed mania, we will incur yet more costs and bear yet more risks. Our markets will shrink.

h. We believe these rules will so demoralize and de-motivate our staff that we will face high turnover rates among our employees who know all of your rules. Our regulatory compliance team is not on “work release” from jail. Their jobs are not intended as a form of societal punishment. If, however, compliance with the CPSC’s bureaucratic rules becomes too tedious or risky, or the stress of managing a string of crises and a blizzard of conflicting rules becomes overwhelming, our trusted associates will seek less stressful employment elsewhere. They don’t HAVE TO do this for a living. What is the CPSC planning to do to help small businesses who find themselves back at square one after a costly investment of thousands of dollars in specialized training? Is the new CPSC Small Business Ombudsman going to wave a magic wand to make our problems go away? I think we all know the answer – too bad for us.

Here are the answers to your questions:

1. Materials that are consistently under 100 ppm in lead content. You have previously provided a list of such materials for the 300 ppm standard. This list included some useful concessions, such as wood and cotton fibers, but also included useless and irritating examples like gold and platinum, gemstones and various byproducts of nuclear decay. In our experience, the common substrate materials used in educational products have varying (trace) levels of lead. As noted above, we have seen significant variances in lead content in a single string, and in substrates taken from the same lot. I have no confidence that any material we use can be proven to ALWAYS contain than 100 ppm lead.

2. Strategies or Devices to comply with the new 100 ppm standard. The only strategy we could employ is pre-manufacturing testing on materials with substantially increased testing frequency. As noted above, natural variances among many materials prevent us from creating any reliable safe harbor and cost increases from such testing activity (and the cost of scrapping otherwise acceptable raw materials) will greatly shrink our product line. As a consequence, we would likely have to sharply reduce our product line or go out of business – all thanks to the CPSC and our Congress!

3. Consequences of use of compliant materials meeting the needs of the product. We have not spent any resources evaluating the market demand for educational products made of platinum. We do not intend to switch over to osmium or ruthenium for their purported lead-free properties (we find toxicity to be a greater concern). We have not spent our time figuring out if gold is a suitable material for pattern blocks or our Reading Rods. There is no answer to this ridiculous question. As I mentioned above, more than 98% of our test line items complies with the new standard. The materials and components that fail do not fit a pattern. Tests are inconsistent, too.

4. For products that meet the 300 ppm standard but not the 100 ppm standard, provide data on compliance. As noted, we find that we are already 98%+ compliant with the new standard. The components that fail do so unpredictably and inconsistently. Even the same material out of the same lot produces varying test results, as do multiple tests of the same piece of string. We cannot run a business based on junk science intolerance of the world that G-d created. The crazy new 100 ppm lead standard is incompatible with variances found in the physical world.

I want to reiterate that the 100 ppm standard is entirely arbitrary and will save no lives and will preserve no IQ points.

5. Can such items be made compliant through use of other materials? Sure, of course they could. They would be unsalable because the products were rendered too expensive either by the engineering cost or the new materials cost. Is creating products that no one will buy an acceptable solution to this dilemma? Whether by economics (too costly to buy) or re-jiggering of business models (discontinued products), children will be purportedly “safer” because they will lose access to needed products. What a wonderful result! Does the CPSC advocate that American schools teach physical science with photos of magnets, paper clips and rocks? Perhaps we should revert to rote-and-repetition math education rather than modern techniques of hands-on learning. No doubt the CPSC would singlehandedly solve our national education crisis. Bring on pointless material substitutions and let the fun begin.

6. Best practices to be used to always comply with the new standard. I recommend dropping most products and only making items that are CERTAIN to be compliant. This in practical terms may be impossible, and as noted above, is completely uneconomic. Another good practice to discard everything that isn’t virgin material. I know that’s not “green” but we have to be really, really safe, right? Another super idea is to substantially increase our testing, but of course, we cannot afford the current level of testing as it is. That seems somehow unrealistic. Other strict controls on manufacturing seem equally out of reach. There are so many variables to manage to achieve the new standards – we must control the factory environment as though it were a hospital ICU. That’s just not possible at current cost levels. Our factories would have to be “restructured”. I bet the Small Business Ombudsman can coach us on this!!!

Please note: we don’t have to reorganize our factories because we don’t have to stay in the children’s product market. If the CPSC expects us to reorganize our entire way of doing business to accommodate a phobic standard not based on any observable public health problem, we may opt out. Is this really the purpose of the CPSC – to micromanage markets, to restructure the economy, to substitute for market forces? I think not. Please check the CPSA to see why your agency exists. I hope a Republican-controlled Congress will do exactly the same thing in a few weeks’ time.

7. The lowest technologically feasible lead level below 300 ppm in our products. We can achieve anything for a cost. There are no “lowest” levels. Why not specify entirely lead-free? We can make everything out of gold and osmium! Lay in a few gemstones and diamonds, and you will have a sparkling new toy that cannot poison anyone with lead. It may have other problems (choking hazards? Sharp points?) but at least no one will die from lead poisoning. Not that anyone did previously . . . .

8. The date by which our products can meet the 100 ppm standard. In my opinion, the date is NEVER, because we have no practical ability to control quality to the level you require. Even at our current 98%+ compliance with the new standard, it would be extraordinarily disruptive to attempt to be 100% compliant. After a few episodes of being shut down by the CPSC or sued by some lunatic consumer group over nothing, we would exit the market. If you intend to deprive us of the meaning and pleasure of our work to make children’s lives better, we’ll leave the well-being and education of our nation’s children to you. That would be a very sad day for us.

Thank you for considering my views on this important subject. This letter took me all day; I hope you won’t completely ignore it as you have all my other letters.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Read more here:
CPSIA – My Comment Letter on 100 ppmLead Standard

CPSIA – Mourning in America

774 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 36 days left until Election Day.

The WSJ had a fascinating commentary on the national nature of this midterm election. You need to check out the two commercials displayed in this WSJ blogpost. It’s a sad commentary on the national state of mind fomented by two years of assault on our traditional beliefs by this Administration.

Read more here:
CPSIA – Mourning in America

CPSIA – Regulations Are Killing Us

774 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 36 days left until Election Day.

The headline in the WSJ says it all (thanks, Jennifer):

The Regulation Tax Keeps Growing. Blame Washington, not China, for the decline of American manufacturing.” [Emphasis added]

I have written endlessly on this topic in relation to the poisonous CPSIA. You know the drill.

Of course, it can hardly be surprising that this is happening under the “too little government, too little regulation” administration of Barack Obama. It is a rich irony that the supervisor of regulations appointed by Mr. Obama is Cass Sunstein, my former law school professor. As the cognoscenti know, Sunstein is known for his aversion to uneconomic regulations. Consider this prediction from February 2009:

“Even his detractors recognize Sunstein, 54, as an amazingly prolific legal scholar with a keen intellect. But they worry about his insistence on tying regulations to cost-benefit analysis, the bedrock principle of his Bush-era predecessor, John Graham. They’re also concerned about his prediction last year that Obama will be a deregulator. ‘He is off on the wrong track,’ says Rena Steinzor, a progressive University of Maryland law professor.” [Emphasis added]

Either Sunstein was given a sham of a job, or the appointment was a sham, or the administration subverted a purportedly sensible initiative, reining in regulations using a cost-benefit philosophy. Whatever happened, it is clear that Mr. Sunstein has been utterly ineffective in any purported efforts to control the beast. As noted, we have covered this topic repeatedly in this space.

The WSJ notes:

“In a report released last week for the Office of Advocacy of the U.S. Small Business Administration, we find that small businesses bear a disproportionately large share of regulatory costs. The portion of these costs that falls initially on businesses overall was $8,086 per employee in 2008. But these costs are not borne equally by businesses of all sizes. Larger firms benefit from economies of scale in compliance; small businesses do not have that advantage . . . . Small manufacturers bear compliance costs that are 110% higher than those of medium-sized firms and 125% higher than large firms’ costs. As much as it is fashionable to blame China for the demise of small manufacturing in America, the evidence suggests that looking for some reasons closer to home is warranted.” [Emphasis added]

What-a-shock! Who could have seen this coming?

The WSJ article is full of useful quotes, check it out. All roads lead to Rome – the regulatory monster is choking us to DEATH. And as usual, there is little motivation to do anything about this self-induced disaster until the bodies pile up the sky.

Sadly, my arguments fail simply because of the offense of not being dead yet.

Hey, CPSC, keep your head in the sand. Can’t see it, must not be there. . . .

Read more here:
CPSIA – Regulations Are Killing Us

CPSIA – Congressional Terror Campaign Continues (FMLA)

773 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 37 days left until Election Day.

Don’t worry, your Congressional tormentors haven’t tabled their latest effort to terrorize you, the Foreign Manufacturers Legal Accountability Act. We understand that the Congressional Democrats are still trying to make a “deal” on this terrible law. It’s not going away even if you have put it out of your mind.

It doesn’t matter that that this law violates WTO rules. it doesn’t matter that it is flagrantly protectionist legislation that may trigger a trade war. It doesn’t matter that it pissed off the EU, as previously reported in this space. It doesn’t matter that we will lose critical vendors. It doesn’t matter that we will face retaliatory legislation in other districts, effectively cutting off foreign markets for our export efforts.

All that matters is that Rep. Betty Sutton needs to look heroic to her constituents – the bill is a gift to her. She is fighting for her political life in this Midterm election and your petty concerns pale compared to the needs of the Congressional Democratic majority position. And you thought the politicians worked for you. It may be the other way ’round.

The latest sign of the cost of this self-destructive act is the inflamed outrage of our closed trading partner, Canada. For some reason, Canadians aren’t too psyched up about being subject to class action lawsuits in this country. Weird, you’d think they would LOVE it. . . .

” . . . Canadian Trade Minister Peter Van Loan says the ‘badly crafted’ bill could end up side-swiping Canadian exporters, even though U.S. officials insist Canada isn’t the intended target. ‘There are enough thinking people that realize that this is a badly crafted bill that causes harm to a whole bunch of people,’ Van Loan said Thursday.”

No sense of humor up north, eh? How can those Canadians act so superior, criticizing the handiwork of our very own Democrat-dominated Congress? Badly crafted legislation? Please! Never heard of such a thing.

“Van Loan says the Canadian government is holding out hope the bill won’t reach a vote before Congress adjourns in the coming weeks. ‘If it gets voted on, the charged political environment means it will almost certainly pass, because you can’t be seen voting to protect people dumping toxic drywall from China and stuff like that in your country,’ said the minister. The [Canadian] government is keeping ‘all options’ open if the bill passes, but would likely seek a waiver similar to the Buy American exemption, he said.” [Emphasis added]

Congress giving a gift to itself with self-destructive legislation, and a major trading partner implicitly threatening retaliatory legislation. Wow, we have a great government, don’t we?

Is anyone besides me TIRED of being the object of continuing terrorist attacks by our OWN government?

When can I start to vote? Someone please help me . . . .

Read more here:
CPSIA – Congressional Terror Campaign Continues (FMLA)

CPSIA – "Children’s Product" Means Whatever They Want

770 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 40 days left until Election Day.

As the Commission privately dithers, or squabbles, for weeks over passing the final interpretative rule on the meaning of “Children’s Product” under the CPSIA, a recent recall illustrates the uncertainty and capriciousness of the draft rule currently in use by the Compliance staff. Or, should I say, the uncertainty and capriciousness of the current administration running the CPSC shop?

On Tuesday of this week, the CPSC announced the recall of mood rings. No, they weren’t recalled because the CPSC inspector’s mood ring always turned black, but good guess! The agency cited “high levels of lead”. Oooo, scary lead!

Ahem, doesn’t the CPSIA only apply to “Children’s Products”, and if so, don’t the mood rings need to be “Children’s Products” to be subject to the new lead standards? Right and right, careful reader! You have been paying attention, unlike certain regulators. The CPSC says this is a product intended for children under 12, so they were just doing the Lord’s work to recall them, right? Save the Children! Who could oppose that?

Perhaps we should hear the company’s side of the story (courtesy of one of my readers, thank you, Anonymous!):

“September 21, 2010,

To Whom It May Concern:

From: D&D Distributing-Wholesale, Inc.

To Whom It May Concern:

We are writing in response to the Love Tester items that were found by CPSC staff to contain lead in excess of the current CPSIA limits. These items were originally purchased in 2005, and intended as a teenage to adult novelty, and not for children 12 and under. This is evidenced by the novelty of this item being to measure the sexual performance of the bearer with the results ranging from clammy to naughty, passionate and hot stuff. These words were specifically chosen to target a more mature market.

Nonetheless, due to our awareness potential future legislation, we instructed the factory to make these items using lead-free metal to avoid any problems. The factory confirmed that these goods would be made out of lead-free material and adjusted the prices to reflect this. In 2005, we felt that this effort was appropriate for the time. By the second half of 2007, D&D Distributing had started the process of testing new items as well as taking steps necessary to ensure that older items were lead safe. We had contacted the factory of the Love Testers again in 2007, and they responded that they had done their own testing to confirm that these items used lead-free metal.

We believed that this was enough evidence to make a reasonable assumption that the Love Tester items did not contain lead.

In early 2009, we were visited by CPSC Officer Marcus Morris. Officer Morris randomly selected items for x-ray testing, as well as several items offered by D&D staff, and a few items did have lead content in excess of the new limits. These items were ordered to stop sale. It was our intention to evaluate every questionable item imported previous to new federal law (CPSIA act of 2008), and test them using CPSC’s x-ray gun. Unfortunately, the Love Tester items were missed during this time. Since early 2009, we have had several other visits from Officer Morris, and many other items were offered by D&D to be tested.

CPSC has determined that the Love Tester items are for children 12 and under, and D&D agrees to comply with the CPSC’s decision to recall the items.

Best regards,

D&D Distributing-Wholesale, Inc.”

[Emphasis added.]

So the CPSC just decided that this sex toy was for kids 12 and under. Perhaps kids grow up faster in Bethesda, I don’t know, but the action of the CPSC seems to ignore the clear intent of the manufacturer, not to mention the rather obvious fact that this product is not suitable for Middle School children (or younger). Feeling “clammy” yet?

Okay, zealots of the world, you ask – how dare you defend icky LEAD? Don’t you Rick know how dangerous lead is for the CHILDREN? Let’s not forget the children . . . .

Lead’s capacity to harm has never been in doubt, but of course, I believe facts and circumstances are important in determining WHEN lead is a worry. In this case, however, I think the issue is different.

As a manufacturer subject to the awful CPSIA and the unrelenting pressure of the manic CPSC, I object to rules “on wheels”. If the CPSC can move the rule from here or there to justify whatever it wants to do today without restraint, how can I protect myself? How can I plan? Please TELL ME what a “Children’s Product” is. I have to figure out what my legal obligations are. Do I have to test, or not? Do I need to be lead-free, or not? What about phthalates? I also sell to thousands of distributors and stores. They are as confused as me, or more. What if they disagree with my judgment? Who decides what’s right? And what if the CPSC disagrees with both of us? What is our recourse? [You know the answer to that one.]

Will regulators at the CPSC ever understand how this kind of case absolutely SCREWS me and everyone else that stupidly remains in the children’s market? Will someone PLEASE tell me how to run my business? PLEASE!

We seek meaning in what we do. We produce educational products for a reason – we want to change the world for the better, we want to make a better future for children in dozens of countries. It is our privilege to do this for a living. The CPSC ruins the fun and meaning we find in our work. They poison the well by doing damage to a mood ring company. They have attacked me directly, too – but I am prohibited from telling you in this space what they are doing. I want to, but I cannot (yet). And you’re next.

This has to end. I am working on it, but you have to help, too. Do you want to be the next “mood ring” company? I don’t. Please HELP me. Please HELP yourself. We (you) cannot sit on our hands at a terrible time like this.

Read more here:
CPSIA – "Children’s Product" Means Whatever They Want

CPSIA – "Children’s Product" Final Rule Vote Delayed . . . Again

770 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 40 days left until Election Day.

The CPSC Commission pushed back the date to consider this “final” interpretative rule on “Children’s Products” for another week, to September 29th. These delays are unexplained. I guess we can’t be trusted to understand their debate. Too fancy for us? Perhaps too explosive. This Dem-dominated Commission DOES NOT WANT to initiate ANY new rulemaking processes. That makes it imperative to keep the final interpretative rule on “Children’s Products” very similar to the draft form – to avoid another comment period. Thus, they want to go with what they have, damn the consequences, to preserve their plan to be done with rulemaking by February 10, 2011, the date when the testing stay is set to expire.

Hope you have taken on board the pending expiration of the testing stay. You need to prepare – sell your business, close it, pile up the money to give to the testing companies or your lawyers, or your other creative plans to deal with it.

All kinds of things spin out of control for the Dems running the shop if they fall further behind in their schedule. The pending loss of their third vote (Moore’s term ends in a few days and he cannot serve beyond the end of the year) means they face stalemate and frustration soon if they aren’t done when he goes. To prevent you the voter from running “their” agency, they need to finish their dirty work NOW.

If things don’t work out as planned, I am sure you are prepared to coach the Dems on how to deal with frustration and stalemate. By now you should be an expert!

The delay in taking this rule to “final” signals a real and profound disagreement within the agency. Somebody’s agenda is going to get dented. So far, they haven’t found a way out of this paper bag.

Based on their track record, whatever they decide, you’ll be the loser. And no one will be the winner, either.

November 2nd can’t come too soon for me.

Read more here:
CPSIA – "Children’s Product" Final Rule Vote Delayed . . . Again

CPSIA – REMINDER, Comments due on 100 ppm soon!

767 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 43 days left until Election Day.

I wanted to remind you that comments are due on the latest effort of your government and your CPSC to put us all out of business, namely the reduction of the lead standard to 100 ppm. I have previously analyzed this call for comments in this space and have nothing new to add.

As I noted in my last post, the call for comments rules out most sensible replies to the proposed reduction such as

  • The cost is unaffordable and will render our products too expensive to produce
  • The new limit is suitable for mass market products but will make specialty market products impossible to manufacture (too bad for us, I guess).
  • The new limit is needlessly disruptive.
  • The new limit substantially increases our liability exposure.
  • The new limit creates yet more ways for the CPSC to interfere with our businesses.
  • The new limit creates more externalities and randomness in our business results (another “profit prevention” initiative).
  • The new limit will have absolutely no impact on human health but will have tremendous implications for business health.

All irrelevant.

If you can’t come up with anything to say to save your business under this provision, I still encourage you to send in a comment. Perhaps if we drown them with comments about the unfairness to small business, they might at least pause for a moment before sending us into business oblivion. You can always just thank them for putting you out of business. A “thank you” always goes a long way, just like your Mom used to tell you.

Yeah, thanks CPSC. It’s been a great ride . . . .

Read more here:
CPSIA – REMINDER, Comments due on 100 ppm soon!

CPSIA – Small Business Desperation

766 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 44 days left until Election Day.

Here is a window sign found in a neighboring community here in Northern Illinois. I don’t think it’s a children’s product business but I feel their pain. How much can you ask of a small business person these days?

I am sure there’s a form we can fill out to get the answer . . . .

Read more here:
CPSIA – Small Business Desperation

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