CPSIA – Pool Drain Hearing – Assessing Risk or Doling out Political Favors?

The CPSC has announced hearings on April 5th on the adequacy of TESTING of pool drains under the Virginia Graeme Baker Pool and Spa Safety Act (VGB). This follows on the heels of the recent meeting between CPSC Chairman Inez Tenenbaum and Senators Dick Durbin and Amy Klobuchar. Mr. Durbin requested this meeting urgently in the wake of the disclosure by the Chicago Tribune questioning the adequacy of TESTING of certain VGB drains. No allegations of actual injury have been made yet, to my knowledge. Ms. Klobuchar tagged along, having previously expressed concern about the VGB drain covers. The pending CSPC hearing has been reported by the estimable AboutLawsuits.com blog, an outlet for ambulance chasers.

Ms. Klobuchar is up for reelection in this cycle. Mr. Durbin’s term extends to 2014.

The Chicago Tribune apparently was late to the drain game. I have uncovered a much earlier and more detailed investigation by ABC News that presumably spawned the CPSC investigation of this matter last Fall. ABC asserts that variability in flow data suggests less water flow with certain models than expected. The report was not uncontroversial, however. Flow was not zero, and the manufacturers note that flow depends on the pump used in the test and also the test installation method. An ANSI standard governs pool drains and three specific labs have been cleared to test pursuant to those standards: the National Sanitation Foundation (NSF), Underwriters Laboratories (UL), and the International Association of Plumbing and Mechanical Officials (IAPMO). Not exactly a rogue’s gallery of shady operators. The alternative testing cited by the Tribune was NOT performed by any of the three authorized labs.

[Remember how darned critical it was to use "CPSC-certified" labs under the CPSIA? It's absolutely essential . . . unless media or regulators want to do something else. Industry can't be trusted to use any old lab, however.]

The CPSC issued subpoenas to these three labs and received back a tidy sum of 17,000 pages of documents. Hey, that’s even more pages than toy safety rules, wow! Anyhow, they have scheduled a show trial to investigate the purportedly nefarious goings-on with these drains.

Perhaps you remember also that the Tribune article was apparently spurred by Paul Pennington, chairman of the “non-profit Pool Safety Council”. According to the Tribune article, “Paul Pennington . . . said he has sent 73 e-mails to CPSC and standards officials, pleading with them to do something about unsafe drain covers since the new law took effect in December 2008.” What a guy that Pennington is, a public-minded private citizen only interested in pool safety. . . . and maybe also (just a little bit) his company, Vac-Alert Industries, which owns patented technology that could supplement or replace the drains at enormous expense to pool owners.

Pennington previously succeeded in inducing a bevvy of left wingers in Congress (all Dems) to stand up for his technology, including Ms. Klobuchar and notably, Rep. Debbie Wasserman Schultz (D-FL20):

“Once it is considered unblockable, a single main drain no longer is required to have a backup device, such as a safety vacuum release system. The [Congressional] letter writers believe the new definition for unblockable drains leaves pool users vulnerable. ‘A dangerous drain outlet is not safe just because an ‘unblockable’ drain cover is installed,’ Congress member Wasserman Schultz said through her spokesman, Jonathan Beeton. ‘Drain covers can and do come off, or they can be improperly installed. … The VGB Act is very clear that multiple layers of protection are needed.’ The House letter also revisits what has been a hot-button issue throughout the formulation and interpretation of the legislation — whether backup devices should be required on all pools, even those with multiple drains. ‘Backup protection should be installed for every pool or spa, regardless of the number of drain outlets, unless there is no drain, or the drain itself is an unblockable drain,’ Wasserman Schultz said.” [Emphasis added]

Paul Pennington (a California resident, but a Florida company owner) contributed to Ms. Wasserman-Schultz’s reelection campaigns in 2008, 2006 and 2004.

Hmmm.

The company making the allegedly dangerous pool drain covers noted to the Tribune that you would have to weigh 500 pounds to block its drain. Very few children weigh 500 pounds . . . . In case you are dense, Pennington clarified his message to the Tribune: “Some child is going to die.”

Get it? Ms. Wasserman-Schultz certainly did.

So the big question here is – is this a real safety issue? In the post-CPSIA era, it “looks” like a safety issue. Why? Because the TESTS have been questioned. It’s not about actual risk or incidents that reveal a risk, it’s all about a controversy over a precautionary step in the product cycle, namely testing (the paperwork). The certified lab test by the certified lab is now in question and a publicity event is being staged to “reassure the public”. No injuries have been reported which suggests that the public has little reason to actually be alarmed, but then again, the papers are not in order.

Welcome to the Third World . . . .

The CPSC had to do something, since a leading Democrat Senator demanded ACTION, accompanied to the photo opp by another Democrat Senator up for reelection in a state leaning right after voting left for some time. After all, who put the Dems in charge of this CPSC? Appointments to the Commission come from where? The (Democrat-controlled) Senate. One wonders what the political calculations might have been. What can the Democrats running the CPSC do to help out??? Why not let Ms. Klobuchar save some portion of the populace? If there were a hearing, the Minnesota Senator could take credit and use that on the stump to help retain the seat. The next election will be essential and the Minnesota Senatorial race might affect both the balance of power in Congress as well as Mr. Obama and his chances to retain the Presidency. Gotta stick together. . . .

Does anyone care that no one has been injured by these drains? Does anyone care that the person apparently driving this controversy has a vested interest in stirring up the mud? Of course not. This is not about making pools safe, this is about manufacturing of political headlines.

The politicization of safety under this CPSC should be of great concern to every stakeholder. It is a great distortion of the rules of the safety game and of our legal and regulatory system. Random and excessive cost will punish industry. Worse still, no one will be made any safer. The news cycle will help feed a rapacious media and reward the political power elite, as well.

The only one guaranteed to be a loser is industry. Consumers won’t win, industry is sure to lose and the politicians will win. Whose country is this anyway?

Like I don’t know . . . .

Read more here:
CPSIA – Pool Drain Hearing – Assessing Risk or Doling out Political Favors?

CPSIA – In My Fantasies, the CPSC is Just Like Homeland Security

On Monday, March 15, the Department of Homeland Security did something we probably will never see from this CPSC:

“[Docket No. DHS–2011–0015]

Reducing Regulatory Burden; Retrospective Review Under Executive
Order 13563

AGENCY: Office of the General Counsel, DHS.
ACTION: Notice and request for comments.

SUMMARY: Pursuant to Executive Order 13563, ‘‘Improving Regulation and Regulatory Review,’’ issued by the President on January 18, 2011, the Department of Homeland Security (Department or DHS) must develop a preliminary plan to facilitate the review of existing DHS significant regulations through the use of retrospective analyses. The preliminary plan will include criteria for identifying existing DHS significant rules that might be modified, streamlined, expanded, or repealed, so as to make DHS’s regulatory program more effective or less burdensome in achieving its regulatory objectives. The Department is soliciting views from the public on how best to develop its preliminary plan. The Department is also seeking views from the public on specific existing significant DHS rules that the Department should consider as candidates for modification, streamlining, expansion, or repeal. These efforts will help DHS ensure that its regulations contain necessary, properly tailored, and up-to-date requirements that effectively achieve regulatory objectives without imposing unwarranted costs.” [Emphasis added]

Imagine that, an agency that wants to streamline and to avoid imposing unwarranted costs!

Of course, Homeland Security is not facing anything as dreaded as LEAD – have I mentioned that there is NO safe level of lead? – and can probably cut a few corners without any untoward effects. Homeland Security doesn’t seem too busy, just checking a few boarding passes, looking serious and so on. I guess when you have an unimportant, almost trivial responsibility in the government, you can afford to review your rules for fat, waste and stupidity. But when CHILDREN’S SAFETY is concerned, and bicycle licking is possibly at stake, well then, you can’t take ANY chances.

Damn the cost, man, we have to be SAFE!!!

Read more here:
CPSIA – In My Fantasies, the CPSC is Just Like Homeland Security

CPSIA – Good News and Bad News

Here’s the scoop: there is no safe level for lead but apparently there ARE safe levels for radiation.

According to reports today, the radiation drifting over from Japan is “harmless”. No one should worry one little bit even though the Japanese radioactive material is now on the EAST Coast of the U.S.: “Since last week, the officials have tracked the radioactive plume as it has drifted eastward on prevailing winds from Japan — first to the West Coast and now over the East Coast and the Atlantic, moving toward Europe. . . . On Monday, European officials said the plume had reached the East Coast after drifting over North America. One station that detected the fresh radioactivity is in Charlottesville, Va., officials said.”

This is not a problem, believe me. For one thing, it’s not lead, for heavens sake – it’s only iodine-131, iodine-132, tellurium-132 and cesium 137. You probably put that stuff on your cereal, tough guy!

The radiation levels are so low that the experts won’t release them. They probably don’t want to bother us, the levels are so low. “The global network of the Comprehensive Test Ban Treaty Organization, an arm of the United Nations in Vienna, has detected the movements of the plume. The organization’s mandate is to monitor the global ban on the testing of nuclear arms, and it has more than 60 stations that sniff the air for radiation spikes. The group has declined to make the recent findings public, but it shares its information with 120 member states, some of which have divulged the status of the plume’s movements.”

Experts point out that radioactivity is everywhere, what’s the problem with a little more???

The federal government apparently agrees with this guy: “While the news of these radioactive substances being detected may startle some residents, the EPA has emphasized that the normal daily dose of radiation is 100,000 times higher than the radiation found at these monitoring stations. Every day, people are exposed to radiation unknowingly. Radiation is present in food, air, water, and even our homes, all of which are natural sources of it. Increased exposure to radiation can come from medical procedures and industrial occupations as well.” [Emphasis added]

This is in interesting contrast to lead which as everyone knows is dangerous down to one lone, little atom. I know this because pseudo-scientists like American Academy of Pediatricians (fearful of bicycle licking!) and Consumers Union (terrified about 4th graders playing brass instruments!) have repeated over and over that there is NO safe level for lead. NO safe level, kids! They’re experts so they must know, right??? At least they say they’re experts . . . .

These folks pushed Congressional patsies to impose an outright ban on ANY children’s product that might emit ANY lead into the human body. [Section 101(b) of the CPSIA] The CPSC Commission (really, the Democrats on the Commission) helpfully interpreted Section 101(b) to refer to ANY lead, meaning one atom. Nothing ON EARTH can be exempted on this basis, so nothing has been given a pass under the lame-o exemption provision of the act. Had troubling finding choices in new children’s bikes? Want to buy a youth model ATV? Remember the days when you could buy rhinestones to embellish your children’s shoes or pants or in the form of cheap jewelry? You can thank Section 101(b) for this absurd situation. L&K to the AAP and CU (and let’s not forget the Queen Bee of the zealots, Rachel Weintraub of the CFA) for all this safety!

Thank heavens that AAP, CU and CFA aren’t worried about radioactivity. That means there MUST BE safe levels of radioactivity . . . . I see, Fukushima prefecture spinach or milk isn’t really dangerous – but it will give you a healthy glow!

Read more here:
CPSIA – Good News and Bad News

CPSIA – Response to Questions by Nancy Nord (100 ppm Hearing February 16th)

This is my Response for the Record to a supplemental question posed by Commissioner Nancy Nord to the CPSC’s February 16th Hearing on the pending 100 ppm Lead Standards:

Response to Commissioner Nancy Nord’s Request
for Comment in the Federal Register

1. You stated reduction from 300 ppm in substrate to 100 ppm in substrate removes the margin of error for low tech manufacturers. Would you elaborate on this with some of your own testing experience?

When we consider the impact of the lower standard, we first ask how we would manage a failure. As (presumably) rational business people, we want to allocate our capital to maximize our returns, and thus, risks to those returns must be weighed and addressed as appropriate. We have tried to understand our risks under the new lower lead standard – and the results are not encouraging. Once a failure (failed test) is discovered, it is often incurable. A failed test on a completed item including an integrated failed component (e.g., a zipper) likely means a total loss under the CPSIA. Failures of components already subject to valid passing component tests cannot be ruled out and in fact, are likely to occur. Our inability to solve this problem for even trivial violations introduces a new and significant risk of random (unpredictable and uncontrollable) losses to our business.

The agency’s stance on re-testing is not encouraging either. The draft rules on re-testing in the “15 Month Rule” are best described as unworkable. The doubt raised over the consequences of a failed test under pending rules only elevates our concern over how we might deal with a failed test. At present, there seems to be few options. For this reason alone, the proposed reduction of lead standards to 100 ppm is extremely threatening.

Given the dire consequences of a failed test, we must assess whether we can control our supply chains and raw materials/components to always comply with the new lower standard. In my testimony before the Commission, I noted that 98.3% of our passing test reports in a two-year period (2701 CPSIA test reports) were compliant with the new standard. Unfortunately the 1.7% in the range of 100-300 ppm scatters randomly across our many products and components. Thus, we don’t know how to predict which components are prone to risk of non-compliance and the consequences of finding them at the wrong time can be devastating. [It goes without saying that 2701 tests in a two-year period is a strong demonstration of both the devotion of resources and the huge expenditures required by the CPSIA to obtain passing tests reports – continual clean bills of health, over and over and over again.]

Our testing results reveal two troubling trends. First, we have found a material number of our items with one or more components that fall into the 100-300 ppm zone, sometimes just barely above 100 ppm. For a “miss” of as little as 5 ppm of lead entombed permanently in a substrate, an entire lot can be relegated to the garbage heap. Failed components might be as insignificant as a label or a lens cap. We also know from experience that retesting the same unit or units from the same lot may result in a passing test report but do not anticipate that we will be afforded this option to “comply”. In any event, retesting to obtain a clean passing test report does not change the product. If this law is truly about safety, I fail to see what is being accomplished by piling up the test reports to the profit of the test labs. The occurrence of failures under the new standard for a few ppm of lead will raise our costs significantly.

Second, we have encountered significant variability in our testing results. I have attached three test reports as examples of the variability problem. The first report (submitted with my comments on the 100 ppm standard) shows the test results on a single piece of string from a mesh bag holding dominoes. We cut the string into ten pieces and then tested each segment. The lead content results ranged from 239 – 275 ppm. A representative of the bicycle industry gave similar evidence (wide variability in multiple tests on different parts of a single component) at the 100 ppm hearing on February 16th. In the attached test report on tape measures, we found lead levels in coatings in the same tape measure lot ranging from 79-97 ppm, which is more than a 20% variability range. Finally, I have attached three test reports showing yellow plastic substrate from the same lot of educational products at 23, 88 and 139 ppm lead levels. Our success in obtaining passing test reports will apparently depend on LUCK when lead levels are near the 100 ppm concentration. We don’t have a solution to this problem. In our experience, this problem strikes randomly and often absurdly. We have found, for instance, lead levels between 100-300 ppm on zipper housings on the inside of a sewn bag. Lizard tongues might be able to reach it but fortunately, none of our customers are lizards.

None of this randomness or massive expense can be tied to safety – just to the enrichment of testing companies and lawyers. I am hopeful that the Commission will see that action is needed to stop the reduction of the lead standard to 100 ppm to help preserve the value our company brings to schools and families throughout the United States.

Read more here:
CPSIA – Response to Questions by Nancy Nord (100 ppm Hearing February 16th)

CPSIA – Answers to Supplemental House Questions (Hearing of Feb. 17th)

This is my Response for the Record to questions posed by Rep. Mike Pompeo after the February 17th hearing held by the Subcommittee on Commerce, Manufacturing and Trade:

February 17, 2011
Commerce, Manufacturing, and Trade Subcommittee:
“A Review of CPSIA and CPSC Resources”

Congressman Mike Pompeo

1. Did your company have to buy a copy of the F-963 standard? Why? How much did that cost?

Our company has purchased several copies of ASTM F963 over the years. According to the ASTM International website (http://www.astm.org/Standards/F963.htm), the current cost of F963 is $62, or $74 (redline version). [This means that the ASTM literally charges companies EXTRA to figure out what changed in this legally-mandated standard.] To my knowledge, this standard is only available from the ASTM. Ironically, even the CPSC is unable to provide access to this document (as acknowledged in this CPSC Powerpoint presentation http://www.cpsc.gov/BUSINFO/intl/toyweb2_en.pdf) which casts doubt on its ability to guide companies attempting to comply with the law. The lack of access and cost of access to this standard certainly makes compliance burdensome for small businesses.

The F963 standard has been updated regularly over the years, and we need to have access to the current version of the standard at all times. Until the CPSIA was enacted, the F963 standard was the tacit equivalent of a mandatory standard because the toy industry adopted it as a “voluntary” standard with the encouragement of the CPSC. At one time, voluntary standards were the preferred way the agency regulated many industries, including our industry. We have always used the F963 standard as a reference in product development and safety administration and frequently tested for compliance with the standard.

2. You’ve been dealing with all of the agency’s rules for the last few years. By my reckoning, an entrepreneur with, say, a good idea for a board game would have to pay to buy a copy of F-963 from ASTM (not a small price to pay for some small or start-up toymakers). Then, because the standard is literally dozens of pages long of densely spaced text, he’d have to hire a lawyer to tell which parts of the standard apply to his product. Then, he’d have to find a third-party test lab to test and certify a random sample of his actual production line for compliance with all of the F-963 requirements. And, if any product fails, you are basically back to the drawing board. And, of course, he’d have to do all this before ever selling a single toy. Do you think the next board game entrepreneur (e.g., Trivial Pursuit) might have a hard time getting off the ground under this regime? Has this agency effectively killed entrepreneurship in the toy market? Does a start-up company stand any chance of being able to navigate the CPSC’s new rules and regulations on its own?

The CPSIA has had the effective of creating new barriers of entry in the children’s product market, once one of America’s most entrepreneurial industries. The burdens are heavy in the toy industry but even worse in related industries like juvenile products. Large companies with steady cash flow enjoy considerable and valuable advantages over entrepreneurs who must put large sums of money at risk in their initial investment in compliance costs before receiving their first dollar of revenue. The effect of the CPSIA is one of picking winners and losers in affected markets. I question whether this is the appropriate role of the federal government in our markets.

We believe that these heavy costs will discourage investment in new products, by new entrants, by existing players and especially by small businesses. Recently, at the CPSC’s hearing on the looming 100 ppm lead standard, representatives of the bicycle industry noted that in the wake of the 300 ppm lead standard, many small bicycle manufacturers have already left the market and large companies cut their product lines considerably. I have long predicted a reduction in product diversity as a necessary consequence of the CPSIA. Other evidence of market contraction exists, as well. At this year’s ICPHSO, CPSC Acting Director of the Office of Compliance and Field Operations Robert (“Jay”) Howell noted the CPSC’s challenge in identifying a test lab that has or will agree to equip itself as a certified test lab for ATVs. Why? So many ATV manufacturers have stopped producing youth model ATVs under the effective ban by the CPSIA’s lead standards that testing labs can’t justify the capital investment to provide CPSIA compliance testing. Product diversity is declining all over the children’s product market.

Toymakers will experience the same depressing effect and yes, that means that the next Trivial Pursuit inventor may be washed out. We may never know because the absence of a new toy or novel game will be hard to detect in the ad-driven, promotional toy market. It is clear, however, that entrepreneurs are free to deploy their capital wherever they want – they are seeking returns on their capital – so the combination of high CPSIA compliance costs, high regulatory risk, high legal costs and a generally hostile regulatory environment seems unlikely to attract new entrants to the toy market. War stories will also discourage new entrants – the well-known experience of toymakers who have suffered under this regulatory regime.

As a practical matter, the rules and regulations put out by the CPSC to implement the CPSIA for toys are incomprehensible, not to mention incomplete. We are now 31 months into the CPSIA era, yet the CPSC has yet to promulgate a final phthalate standard or certify even one phthalates testing lab. EACH and EVERY toy must be “phthalate-free” but the CPSC has yet to tell us how to know it has achieved this goal. This means we are subject to the risk that they will invalidate all the work we have done since 2008. While this regulatory delay is simply outrageous, it is more likely proof of the defects in the CPSIA than a sign of failure by the CPSC. Even the largest companies have complained to the CPSC about the blizzard of rules and interpretations. One of great frustrations in attempting to comply with the new rules is that many CPSC legal interpretations have been given in private letters, orally in speeches or even in the form of voicemails. Access to such information may be critical but is obviously inaccessible to anyone not obsessively watching every minute of every video, reading every letter, attending every meeting or hearing and talking to every stakeholder in an attempt to master the breadth of this ever-morphing regulatory scheme.

3. Does the existence of a small business ombudsman at the agency solve the compliance problem?

The office of the Small Business Ombudsman serves a useful purpose as a friendly point of contact and possible advocate for small business within the agency. That said, there is no evidence that the office has power to make decisions, change policy or offer its own definitive interpretation of rules. For small businesses totally at a loss, the ombudsman is a good place to turn to for plain English answers to basic questions about rules. Notably, the office is not permitted to make decisions on behalf of the agency. The Ombudsman does not have the authority to make problems “go away”. For this reason, the ombudsman function appears to be the regulatory equivalent of a shoulder to cry on. The current ombudsman, Neil Cohen, has been a good friend to the small business community, but unfortunately, he doesn’t write the rules.

4. What problems do you anticipate occurring as a result of the public database?

We know that the public database will be administered on a post-it-and-forget-it basis. Based on our dealings with the agency, I believe that the agency will post all incidents unless a mistaken identity can be proven. As a consequence, we anticipate that the database will be allowed to be filled up with “incidents” that are conjectural, misleading or even proven WRONG. In the first and only filing against our company, an anonymous complaint accused one of our products of posing a small parts hazard. That accusation was based on an image viewed on a website – there is no indication that the filer had ever handled our product. Consequently, the filer had no reasonable basis for the small parts claim. As a matter of fact, we routinely test for small parts and have done so for years, and when we presented a valid CPSIA test report under F963 (and EN71, the European standard), we were told by the General Counsel of the CPSC that the claim would nevertheless be eligible to be published under current rules. Thus, we KNOW that the false and misleading filings will KNOWINGLY be published by the CPSC even if PROVEN false. We believe this flagrantly violates our basic right to due process and creates the potential for damaging “feeding frenzies” that can consume our products and brands.

Other claims may relate to “hazards” which affect a wide swath of products already well-known by regulators and industry. This presents many risks to industry and to brands. What will a consumer make of a “report of harm” relating to a general hazard and only one particular product? Is this a minor incident or a harbinger of a real risk? Should they stop using the product? Should they stop using the particular model or brand which is subject of the complaint? Given that many products may present the same hazard (for instance, that an electrical cord could pose a strangulation hazard), how does this information help consumers? Will consumers actually understand the issue and be able to put it into some sort of perspective? And when incidents accumulate, as they are likely to do, presumably the brands and models with the largest numbers in distribution will have more incidents even though, ironically, they may be better constructed and “safer” than the alternatives. Will consumers falsely conclude that the models with more incidents are less safe and turn to something that really is?

Responding to this type of complaint obviously creates a new and terrible dilemma for manufacturers. Should they expend resources to respond? Do they need to lay out “a brief” about the nature of the failure and why their product is named? Will people just view whatever they say as unreliable, self-serving information or will they really be able to internalize the data? As noted above, most people will not be able to put these incidents in any kind of perspective. The only thing we know for certain is that brands and companies will be the losers.

The public portrayal of the database belies the unverified nature of the filings. Notwithstanding the disclaimers made by the agency, even esteemed media outlets like The New York Times refer to the database as a “database of unsafe products”. Unsafe? That label presumes some kind of judgment or filter prior to filing, which even The New York Times must assume is being provided by the CPSC. Ironically, the CPSC is doing everything possible to avoid providing that service. The result may be disastrous for American manufacturers, importers, private labelers and retailers of children’s products. It will be yet another self-inflicted economic injury.

5. What can Congress do to return the agency to one that regulates on the basis of risk?

Congress should mandate that the CPSC use principles of risk assessment to make all decisions relating to regulation of children’s products. The legislatively-mandated use of judgment and proportionality will likely lead to better rulemaking and more regulatory common sense. It is the legislative banishing of the exercise of judgment that led to the devastation of the bicycle industry, the elimination of youth model ATVs from the market (even though those products owe their very existence to a concerted effort by the CPSC to protect children from injury on adult-sized ATVs), the banning of all products made of brass, the senseless and almost neurotic banning of rhinestones as embellishments on children’s clothing, shoes and jewelry, and so on. NONE of these changes in rules have been tied to even ONE avoided injury.

Congress should also mandate the use of principles of cost-benefit analysis by the agency in its rulemaking processes. Under the CPSIA, all considerations of economics have flown out the window with predictably disastrous results. We can operate our government better according to basic common sense notions of cost-benefit analysis.

Read more here:
CPSIA – Answers to Supplemental House Questions (Hearing of Feb. 17th)

CPSIA – Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a “risk of harm”. Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered – but in this case, the rumor mill is churning. That’s my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC’s response “out of context”.

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a “blogger” and a “Small Business” makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don’t have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it – for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email’s author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don’t you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

“The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it ‘might’ be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward.”

Email no. 2 (March 8, from our company):

“Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks.”

Email no. 3 (March 9, from CPSC):

“As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.“

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a “risk of harm”. Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered – but in this case, the rumor mill is churning. That’s my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC’s response “out of context”.

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a “blogger” and a “Small Business” makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don’t have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it – for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email’s author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don’t you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

“The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it ‘might’ be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward.”

Email no. 2 (March 8, from our company):

“Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks.”

Email no. 3 (March 9, from CPSC):

“As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.“

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – Other People Have Bigger Problems Than We Do

I think it is important to keep the CPSIA crisis in perspective. While I remain incensed about the CPSIA and the resulting treatment of our company and its various stakeholders, I realize that the world does not revolve around this issue. This is a perfect week to count our blessings, if only because real problems are on horrifying display in Japan.

It is hard to read about Japan and not feel true despair and compassion. The mounting drama of their nuclear meltdown is heartbreaking. The death toll, which appears greatly understated, is truly heartbreaking. The devastation of a proud country and a real friend to our country is shattering. They need help – and they need it NOW!

I urge you to stand with the people of Japan and share generously with them at this terrible time of need. There are many organizations mobilized to provide relief. The American Red Cross is a popular choice.

Please dig deep. They are our neighbors and our friends – this is the time to stand up and be counted.

Read more here:
CPSIA – Other People Have Bigger Problems Than We Do

CPSIA – What Does the CPSC Know that the EPA Doesn’t?

At the recent 100 ppm hearing before the CPSC Commission, Nancy Nord asked presenters to submit regulations put out by other agencies restricting lead in our environment. She presumably wanted perspective on whether a reduction to 100 ppm lead-in-substrate content in children’s products would actually improve health or instead, simply further punish the fools who stubbornly remain in the children’s products market.

I submit here EPA regulations on permissible lead levels in play yards and residential dirt. Pleae note that lead in dirt is soluble, so it actually presents a health risk to children. In 2001, the EPA implemented a revised legal/regulatory architecture to protect children from lead-in-paint and lead in the environment. The regulations (40 CFR Part 745) are entitled “Lead; Identification of Dangerous Levels of Lead; Final Rule”.

I think this is an interesting rule because we sell sand and soil as part of children’s science kits. Hmmm. The CPSIA restricts lead content in everything we sell, even fossils and rocks, hence our well-known lead labels. Does the EPA permit something that the CPSC forbids?

Guess!

Consider what the EPA said about its new regulations:

“EPA is also promulgating amendments to the regulations for leadbased paint activities under the authority of TSCA section 402 (15 U.S.C. 2682) and to the State and Tribal program authorization requirements under authority of TSCA section 404 (15 U.S.C. 2684). These changes are needed to ensure consistency among the various regulations covering lead risks under TSCA.”

Consistency seems to be a concern of the EPA. How quaintly passé.

Nonetheless, the EPA seems to understand what is at stake for American children when it comes to lead:

“Reducing exposure to lead has been an important issue for EPA for more than 2 decades. Young children are especially vulnerable to the toxic effects of lead because their nervous systems are still developing and they absorb more of the lead to which they are exposed. Many of the health effects associated with lead are thought to be irreversible. Moreover, the effects at lower levels of exposure are often asymptomatic. In light of the impacts on children and the nature of the health effects, EPA’s goal is to eliminate exposure to harmful levels of lead.” They get it, right?

Uh-oh. The EPA veers away from the current script . . . .

“First and foremost, the Agency faces the difficulty of determining the level at which to set the standards given the uncertainties in information on cause and effect–what environmental levels in which specific medium may actually cause particular blood lead levels that are associated with adverse health effects. The Agency has tools, which are only generally consistent, that show that certain increases in environmental lead levels are associated with certain increases in blood lead levels. Given the range of uncertainty shown in its analysis supporting the establishment of a hazard level under this rule, EPA has developed a technical analysis that considers hazard standards for dust and soil at the lowest levels at which the analysis shows that across-the-board abatement on a national level could be justified. EPA recognizes, however that for any levels of lead in dust or soil judgment must be exercised as to how to treat the medium, and interim controls as well as abatement could be effective.” [Emphasis added]

Sounding like administrators from another planet, the EPA continues:

“In performing its analyses for this rule, the Agency could not quantitatively compare interim control strategies with abatement strategies because there are only limited data available on the effectiveness of interim controls over extended periods of time, and those data which are available are not suitable for quantitative comparisons with abatements. In comparing interim control strategies with abatement strategies, one must make a number of assumptions
concerning the costs of administrative management, and frequency of monitoring and renewal over the planning horizon. For the 50–year planning horizon which the Agency used in its dust and soil analyses, one would have to compare the time stream of interim control expenses, for as long as such expenses are necessary, and weigh the possible differences in potential blood-lead reductions, to make a fair comparison of abatement and interim control strategies.” [Emphasis added]

Later, the EPA warns: “Also, identification of lead-based paint hazards under this regulation is sure to have impacts that could be expensive even though the range of expenses is, itself, difficult to resolve because of the uncertainty of individual behavior and the willingness of individuals to accept risks that EPA may identify. Thus, if EPA were to choose standards that are too low, the public could be unable to distinguish between trivial risks at the low levels of lead from the more serious risks at higher levels. This could result in clean up for little to no health benefit, or conversely, it could result in almost no clean up because persons would question the credibility of the ‘hazard’ determination.” [Emphasis added]

Clearly the EPA just does not get around very much. Damn the expense, man, there is NO safe level of lead!!!

Importantly, the EPA seems to grasp the difference between CORRELATION and CAUSATION. I wish Congress understood that idea a bit better. . . .

“For dust and soil, EPA had substantial raw data on environmental levels and blood lead levels, even though it faced substantial uncertainty in correlating the levels. . . . If EPA were to set unreasonable standards (e.g., standards that would recommend removal of all lead from paint, dust, and soil), States and Tribes may choose to opt out of the Title X lead program and property owners may choose to ignore EPA’s advice, believing it lacks credibility and practical value. Consequently, EPA needed to develop standards that would protect children without wasting resources by chasing risks of negligible importance and that would be accepted as reasonable by States, Tribes, local governments, and property owners.”

Hope you weren’t eating while you read that last bit. Sorry!

I could quote from this document all day. In light of the nightmare that is the CPSIA, the EPA rules read like some sort of comedy routine. Unfortunately, the joke is on us.

So what did the EPA actually do?

“As stated in Unit II.F.3., today’s rule establishes two hazard standards for bare residential soil; 400 ppm for play areas and an average of 1,200 ppm for the rest of the yard. [See 40 CFR §745.65(c)] EPA recommends that organizations and individuals consider some action in certain areas even where levels in bare soils are below the hazard standard, particularly, if there is a concern that children 6 years and under might spend substantial time in such areas, or if there is concern that the bare soil in such areas may contribute to lead levels in the dwelling, or in the play areas. However, this rule does not mandate that any action be implemented when levels are found to be below the lead hazard standard. Moreover, the kind of response that organizations and individuals might consider could include modest actions such as planting grass (or other ground cover) to more extensive actions such as covering the bare soil with several inches of clean fill.”

Yes, you read that correctly. The standard for play yards (sand) is 400 ppm lead and for bare soil is 1200 ppm lead. If we put a bag of dirt in a child’s science toy, the current CPSC limit is 300 ppm and at this very moment, the Commission is mulling a reduction of the lead limit in that soil to 100 ppm. This change will make more science products either illegal or unsalable for children under 13 years of age. We don’t believe lead labels solve the problem.

The CPSC’s rule on our products will have no effect on play yards, bare soil or anything except items defined as “Children’s Products” under the incomprehensible rule adopted by the Commission.

The longer this goes on, the more I am convinced that only a new government solves the problem. Sad . . . but true.

Read more here:
CPSIA – What Does the CPSC Know that the EPA Doesn’t?

CPSIA – Sean Oberle Notes the Risk in the Database

Sean Oberle of the Product Safety Letter noted in an Op-Ed entitled “Andre Maginot and the CPSIA Database” that while the database has the ability to do good, it also presents the risk of causing serious harm. He’s right, of course. He goes on to note that proponents may be held to account if disaster results. We can only hope. . . .

I think this is helpful and appreciate that Sean made this point. I want to highlight one short section in his essay:

“The metaphor also helps to belie the dismissive reassurances of a few (by no means all) proponents. The issue is not that industry is failing to acknowledge the protections Congress and CPSC put in place. Rather, industry is concerned whether the protections are proper and sufficient. The irony is not lost on me that with the CPSIA database, we’re dealing with a product that has a lot of potential to do harm. The problem is that when you produce a potentially dangerous product – be it a database or a toy – there is only so much that you can do to reassure people before putting it ‘out there.’ At some point, people simply are going to have to trust you.”

There are two important issues here. First, Sean mentions “trust” – and seems to imply that we should give the agency a chance to prove itself. Well, they have already had a chance to prove themselves, and used the opportunity to prove that they don’t deserve to be trusted. The risk that we should bear while we wait to see if the CPSC can be “trusted” could literally be fatal to our businesses. Where does it say that markets are to be administered this way? How can this be defended as “sensible” or a worthy risk to take?

The second issue which Sean brushes up against but doesn’t discuss is how the database erodes corporate due process rights so significantly. We have essentially had our rights stripped, arguably illegally and illicitly. The government is now in the business of publishing slander and we have no way to stop it. Trust is impossible when due process rights have been removed. Appeal is pointless (as our company’s recent experience illustrates), but some semblance of process creates the illusion of individual rights. It’s a joke, of course. Maybe we need to call the Small Business Ombudsman. Yeah, that’s the ticket!

At some point, the zealots will push too far. The damage they wrought won’t be fixable – the dead companies won’t rise again. The cost will be borne by our society, but the perpetrators will just move on to another government job . . . .

Read more here:
CPSIA – Sean Oberle Notes the Risk in the Database

« Previous Page — Next Page »