CPSIA – Fait Accompli

Tomorrow the stage is set for the ultimate triumph of the Waxmanis:  the predicted approval of the 100 ppm lead standard by 3-2 party line vote.  The three Democrats will express regret, saying that Congress forced them to do it, and calling on Congress to let them make this standard prospective only.  They will no doubt also assert that this is good for all of us, given that “there is no safe level of lead”, that old chestnut unsupported by any injury data. No doubt the 100 ppm lead limit will fix all of these imaginary problems.  The Republicans will note the pointlessness of it all, and remind us of the cost of the provision.  Jobs will be lost.  The Republicans will be right, but the Dems have a political agenda to implement, and you will be sacrificed.  Mr. Obama’s Executive Order will not give the Dems pause. After three years, I am numb to this behavior.  The Dem Commissioners are and have always been beyond reach, unimpressed by reason or data.  That comes from a strong conviction of the correctness of their position with no need to reconsider.  As Bob Adler’s testimony at the Oversight hearing on July 7th indicates, the Dems are ever ready to defend the CPSIA faith.  [Check out the testimony given in questioning by the estimable Jan Schakowsky.]  Data, schmata. For those of you who have expended energy, or committed resources, to providing information to the CPSC after three years on this provision (comment letters, testimony, etc.), please note that it was all a set-up.  The decision facing the Commission is whether the 100 ppm lead level is “technologically feasible”. The legislative definition of this term of art does NOT take into consideration cost, perhaps because every life is precious and of infinite value.  It does not matter what it costs to comply, only whether it is somehow possible.  CPSC Staff confirms that everything can be made without lead using this definition however absurd.  So the Dems have no reason to vote against the new standard.   No reason . . . .   Consider the views of the American Apparel and Footwear Association in a letter dated July 11, 2011 on this topic: “We strongly urge the Commission to declare that it is not technologically feasible to meet the 100ppm standard for the simple reasons that:  (a) it is impossible to meet a standard retroactively; (b) compliance cannot be assured because of continued issues with material variability, especially with metals; (c) compliance is complicated by the regulatory uncertainty generated by the technological unfeasibility issue as well as the ongoing delay in the so-called “15-month rule”; (d) the new standard will impose significant costs on manufacturers, costs which disproportionately affect smaller companies; and (e) inter-lab variability, especially at the lower limits, make consistent compliance impossible.” Details, details – the Dems DON’T CARE.  Tomorrow the Commission will enact an egregiously out-of-whack rule from a cost-benefit standpoint a mere two days after Obama ordered the CSPC by name to review all rules for being overly burdensome.  Yawn.  After three years of this, what else would you expect?

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CPSIA – Fait Accompli

CPSIA – The Cost of Government Regulation Examined

I recommend that you check out Wayne Crews’ article in Forbes dated July 6 entitled ” The Cost of Government Regulation “. This article predates the recent House Oversight hearing or the Obama Executive Order on Independent Agencies and Regulatory Reform. Mr. Crews cites regulatory costs in excess of $1 trillion for this excess ($1.4 trillion for the self-destructive overreaction to Enron, Sarbanes-Oxley alone). Costs of this magnitude makes cost-benefit analysis something of joke. He notes: “Agencies think within their squares and have conflicts of interest in assessing their own benefits. Regulators can ignore the opportunity costs and moral hazard they create. Even now they are in the process of distorting entire industry structures via limiting access to energy, antitrust regulatory abuse and “net neutrality” rules in telecommunications and government “stimulus” with regulatory strings attached.” Enough already!!!

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CPSIA – The Cost of Government Regulation Examined

CPSIA – Letter to CPSC re Executive Order on Regulatory Review

President Obama issued an  Executive Order yesterday instructing the CPSC to institute “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”   Notably, the order specifies “allowing interested members of the public to have a meaningful opportunity to participate in rulemaking”. In the White House blog announcing the Executive Order, Inez Tenenbaum is quoted as follows:   “Earlier this year, I directed agency staff to reinvigorate CPSC’s voluntary review process, which is intended to look at ways to maximize openness and public participation, and effectively review substantive regulations that may require revision, repeal, or strengthening . . . . I believe this approach is consistent with President Obama’s call for a sensible and streamlined regulatory system that is protective of public health and safety, and I look forward to working with the President and Congress, as appropriate, as our review process moves forward.” As you know, I have participated in CPSC public forums numerous times in the last three years, in addition to testifying before a House subcommittee twice on the CPSIA.  I have testified at the CPSC at least five times by my count, several times at the invitation/request of the agency.  I have done so at my expense.  In each case, I believe my testimony was disregarded.  My positions on the CPSIA have been publicly documented, principally in my blog which I know you read.  My positions have been consistent and backed up by data open to anyone’s review.   Now that the CPSC is subject to an Executive Order demanding real public input, I call on the agency to break with its past of disregarding inconvenient opinions or those that may subvert a political agenda, and allow the public to participate MEANINGFULLY in this critical process.  Those of us who have attempted to stop the CPSIA train wreck have been thoroughly marginalized by a process that uses us to create an impression of public dialogue without actually taking any meaningful feedback or adjusting any preexisting plans.  The President did not order the agency to provide a public forum for VENTING.  He has ordered the CPSC to afford the public a “meaningful opportunity to participate in rulemaking”.   To me, the Executive Order means that when we present reasoned arguments with actual data, the agency has NO OPTION other than to listen and take into account our views.  There is nothing in the Executive Order that indicates that consumer groups speak for the public or should be accorded extra weight in your deliberations, nor that manufacturers are somehow excluded from the group considered to be “the public”. It is time to recognize the legitimacy of the views of those of us who create much-needed jobs.    With that in mind, I call your attention to a blogpost I wrote on cost/benefit analysis of CPSC decisions and policies under the CPSIA.  Please see my post ” Do Accidents Happen? ” dated June 29th.  In this post, I explain that, as a matter of accepted economic theory and legal theory, the policies and decisions of the CPSC in the wake of the CPSIA have crossed the line into inefficiency and bad public policy.  This is PRECISELY the issue that the President has charged  the agency with investigating and resolving.  Speaking as a business owner in the field of children’s products, I can assure you that time is of the essence.  Every day counts at this point  as the cumulative impact of three years of CPSIA duress has taken a terrible economic toll with virtually no identifiable public health benefit. Writing a law with noble intentions does not ensure that it will be good law or one that benefits society.  In the case of the CPSIA, the issue has never been “What price safety?”  A failure to effectively enforce the law prior to the CPSIA never constituted a need for new safety rules anymore that a failure to enforce traffic laws means that we need lower speed limits.  New approaches to enforcement, perhaps, but new standards, no.  The question today is “What price survival”? Businesses and markets have been punished mercilessly in service of the CPSIA but to what end? President Obama’s order comes after years of public outrage over regulatory excesses and significantly, was issued shortly after a House Oversight hearing featuring two CPSC Commissioners examining the question of economy inefficiency in rulemaking.  I fully believe that the agency can never fix this mess without taking a strong stance on real CPSIA reform. The CPSIA took away the agency’s right to assess risk, not its ABILITY to assess risk.  This is a truly counterintuitive approach to safety, as safety is all about risk management.  There is no logic to this approach which sadly renders the expert opinions of the CPSCs legions of Ph.D.s meaningless at critical junctures for my market.  I am frustrated, to put it mildly, that ALL CPSC Commissioners do not regularly protest this subversion of process and responsibility.  This problem is at the core of the issue with the CPSIA and should be offensive to Democrats and Republicans alike.  The failure of any Commissioner to demand the right to exercise his/her honest judgment is akin to acknowledging that they do not trust themselves to act prudently and in the interest of the public.  Do the Commissioners really believe that taking away their authority is necessary to ensure sound decision-making?  That reasoning never worked with my teenagers.   Resolving the issues that the President has ordered the CPSC to examine will certainly require the exercise of judgment.  It is inescapable that the Commission must be prepared to deliver this unpleasant news to Congress for better or worse.   I look forward to a meaningful public process investigating these issues, and pledge my support and engagement in this process. I want to be helpful but ask in return that the agency turn over a new leaf and let rational arguments supported with data influence outcomes in CPSIA rulemakings and policies. Please do not hesitate to contact me with your comments and questions.  Thank you for considering my views on this important subject. Respectfully, Richard Woldenberg Chairman Learning Resources, Inc. Vernon Hills, Illinois

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CPSIA – Letter to CPSC re Executive Order on Regulatory Review

CPSIA – The Axis of Misinformation

CPSC Spokesman Scott Wolfson wants you to read an article: Scott_Wolfson: If #opengov #gov20 are important to u, pls read this LATimes column: http://t.co/MrrgGwO #SaferProducts.gov #cpsc  [From Scott Wolfson's Twitter feed] Wolfson refers you to a hatchet job by David Lazarus of the LA Times  on the CPSIA Product Database. I have taken issue with the blather emitted from Lazarus’ PC in the past.  In his latest example of irresponsible journalism, endorsed by the CPSC, Lazarus displays his studied ignorance of the issues relating to the database. His lack of research certainly didn’t prevent him from making declarative statements. Wolfson wanted to be sure you didn’t miss it. Lazarus ponders what the issues could possibly be with the controversial database:  ” You’ve got to wonder why businesses are fighting so hard to keep this resource away from consumers. Is it because their fears are justified that we’ll misuse this tool (all evidence to the contrary notwithstanding)? Or is it because the last thing they want is a consuming public armed with the latest and most thorough information on the safety of their goods? And if it’s the latter, you might now ask, what are they trying to hide? ” I cannot think of any objections to the database other than self-interest, can you?  It’s all a conspiracy, as anyone on the Left can tell you.  Businesses have so much to hide!  And did you know that evil billionaires are against the database?  Lazarus sorts it all out:  “Koch Industries — run by billionaires Charles and David Koch, who are active in conservative causes — also reported spending more than $200,000 lobbying against creation of the database.”  Lazarus asserts that it is significant that Members of Congress aligned against the database also received campaign contributions from businesses.  [Can you find a single member of Congress who has NOT taken contributions from businesses or business people?  Just curious.]  Lazarus notes that both Reps. Emerson and Pompeo received contributions from business people who are ALSO against the database.  It’s all making sense now . . . . Perhaps it was an oversight, but Lazarus fails to mention that the folks on the Left who so vigorously defend the database as implemented have been richly financed by TRIAL LAWYERS.  Rep. Henry Waxman raised more than $165,000 in 2010 from lawyers (11% of his total raise).  In fact, his top PAC contributor was the American Association for Justice , a group of plaintiff’s attorneys actively opposing tort reform.  He also received individual contributions from AAJ lobbyists .  Rep. Jan Schakowsky raised a mere $224,000 from lawyers in 2010 (about 15% of her raise).  Ditto for AAJ support.  Poke around on OpenSecrets.org to check out your other favorites in Congress.  It goes without saying that the support Waxman, Schakowsky and their ilk lavish on the database has NOTHING to do with campaign contributions by trial lawyers.   It all comes from the heart, cloaked in white.  Any idea who pays the bill for all the litigation initiated by the AAJ and its members?  Hint:  it’s not Waxmn or Schakowsky. No Lazarus article would be complete without the quotes of Rachel Weintraub of the Consumer Federation of America.  The strangely influential Weintraub is the Left’s favorite mouthpiece on the CPSIA.  Here she tries a new angle to preserve the database, the “sunk cost” argument:  “The thing that’s so insidious is that the database is already up and running,  This would basically waste all the money and resources that have gone into creating the database.”  Insidious! That thrifty Rachel, she literally weeps over government waste.  Of course, the database is not controversial simply because it exists; the principal reason the issue lingers on is that Lefties like Weintraub and Bob Adler insisted on unfair administrative procedures that create unreasonable risks for manufacturers unrelated to actual product hazards, like brand slander, misidentified products, lack of accountability by complaint filers, manipulation of civil disputes and unbalanced data creating misleading commercial impressions. These problems are well-documented but have apparently escaped Lazarus’ beady-eyed (in)attention. The Axis of Misinformation is at work here.  You have the ignorant journalist (perhaps intentionally so or at a minimum, biased against manufacturers and disinterested in their POV), the shrill consumer “advocate” and the self-serving agency spokesman whose job is to manipulate how we feel about the CPSC (irrespective of reality or the “truth”).  CPSC as PR agency is offensive to me.  That’s not its function and besides, I think it’s dangerous to me as a consumer.  As a practitioner noted this week in private correspondence:  ” CPSC stacks the deck by creating alarming recall notices that do not really put hazards in perspective for readers, nor does the agency give consumers enough information to determine whether the amounts that they wind up indirectly paying for the costs of recalls are justified, especially when those costs are spread out to affect products that have not been recalled and present no risk. Hazards and risks are generally overstated, and you will never see any mention of costs to the public even though, as we all know, there is, after all, no free lunch .” It is worth noting that I hear complaints from the CPSC through various channels when they object to the portrayals in this space.  It’s so unfair that we have freedom of speech in this country.  No doubt that makes the job of regulating all of us idiots so much more difficult.  Still, if I get to exercise my freedom of speech, so does Wolfson.  Go ahead and read Lazarus.  It is informative in a way.  It will take you less than 30 seconds to recognize the shoddy journalism and the slanted, biased presentation of a one-sided story.  Consider the source of this lead – Scott Wolfson and the CPSC.  As I said, it’s informative.

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CPSIA – The Axis of Misinformation

CPSIA – American Job Creators (Remember When We Did That?)

The House Majority Leader wants to know how the CPSC and the CPSIA are affecting your business.  They have a website set up for you to download everything you know about the misconceived CPSIA and resulting three year nightmare.  The first agency listed on the web page is the CPSC. Have some fun with this!  Feel free to post your insights here, too.

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CPSIA – American Job Creators (Remember When We Did That?)

CPSIA – Functional Purpose Exception Is All About Dollars Now

The purported Functional Purpose Exception in the last draft of ECADA is unavailable to all but the largest and most well-funded of corporate supplicants.  Is it even THAT good? Let’s start with the premise that the holding by the CPSC Staff that it is “technologically feasible” to make everything without lead at 100 ppm concentrations.  In other words, in CPSIA-speak, it is ”possible” to make EVERYTHING without lead.  As noted previously many times, the term “technological feasibility” does not incorporate any concept of money or economics.  It simply signifies that it is possible in the real world to do it, damn the cost. Thus, the functional purpose exception is intended for products, components or materials that are either not possible to make without lead at compliant levels (not “technologically feasible”) or if possible, are unreasonably expensive or disruptive to make (“not practicable”).  In other words, the functional purpose test boils down to this:  ”not possible to make” or “possible to make but too expensive”.  As previously noted, this is further limited to items REQUIRING the inclusion of lead.  These items are quite limited, generally they are metals only.  You’ll never see the law reflect this metals limitation honestly because the Dems want to fool you into thinking this provision is something much more than it is. They don’t want you to know it’s not really for you. The retort to my argument yesterday is that this exception will be a boon for everyone because you can use evidence from prior hearings (paid for by preceding supplicants) to prove your case.  But since EVERYTHING can be made without lead according to CPSC Staff, the evidence of preceding supplicants is much less likely to be helpful or even available to you.  Why?  Because evidence dealing with technological feasibility is a settled question now.  There is no need for further evidence so all those expensive consultant reports are moot.  The only evidence of prior supplicants that would be useful must  reflect on the question of “practicability”.  How likely is it that you can use other people’s data on practicability? The pending draft reads as follows:  “In demonstrating that it meets the requirements of subparagraph (A), a party seeking an exception under such subparagraph may rely on any nonproprietary information submitted by any other party seeking such an exception and such information shall be considered part of the record presented by the party that relies on that information.”  [Emphasis added]  In other words, you can only rely on non-proprietary evidence of others reflecting on practicability.  Of this, there will be none. The issue of “practicability” is essentially one of having to take steps that are unreasonably burdensome in economic terms.  Each competitor in a marketplace has a different cost structure and sets different profit margins. This is very confidential and highly proprietary information.  Sources are confidential, manufacturing processes and innovations are usually trade secrets. All these secrets provide competitive advantage and will not be disclosed publicly. Furthermore, the disclosure of such information could devastate the market for the product, once profit margins or technical manufacturing data are disclosed to customers and resellers.  No one will disclose this information except under seal.  Many people won’t even take that step, distrusting the sanctity of their most precious information assets once it is out of their control.  So there won’t be any non-proprietary information to share or use.  Besides, each case will be different.  In reality, the case for Kawasaki to use lead in its ATV engine blocks will be different from the case of Arctic Cat ATVs because their manufacturing processes, cost levels, manufacturing location(s), market position and so on are different.  Deciding practicability for one manufacturer sheds no light on another manufacturer because the entire question is one of economics.  Let’s not forget, practicability will be determined not by whether ANY additional costs are imposed, but instead by whether the new costs are unreasonable AND unbearable.  That will vary in case by case, market by market. No doubt extraneous subjective factors like the Dems’ paranoia about lead will make for inconsistent judgments of what constitutes an unreasonable burden.  After all, there’s no safe level of lead!  Nothing will extend from one case to another.  Nothing at all. It is not surprising that this confusion lingers.  The original concept of the functional purpose exception (a lame idea from the get-go) was focused on the question of technological feasibility.  The ability to use other people’s submitted consultant reports had some value in that case.  But since that question is now resolved, so the value of sharing the reports is gone.  All that’s left is the taste in everyone’s mouth. Where does this leave us?  With no exceptions to the CPSIA, none, zippo, nada, nuthin’.   You can thank the ever-intransigent Dems for this terrible situation.  The functional purpose exception should be DROPPED and replaced with something actually useful to real businesses, before we all expire.  The House Energy and Commerce Committee needs to ask:  Who are we trying to benefit?  What problem are we trying to solve? How will the new provision solve that problem? Who will be the beneficiaries of that solution?  [In the real world] Do we like the order in which relief is likely to be doled out?  Is it okay to design a provision such that only big companies can get relief in practical effect, or one in which big companies must be granted relief first ? How much will the process cost?  How risky is the investment in applying for relief?  Is the application for relief essentially automatic, or will it be a case-by-case trial in front of the Commission? How burdensome will the application process be?  Is the exemption intended to benefit companies with small high-value product lines of 5-15 products (e.g., ATV manufacturers), or companies with broad product lines (e.g., science educational suppliers can carry many thousands of items)? Let’s get real about the relief we are purportedly offering.  Something good and useful can be crafted but not if it must followed the form of the useless functional purpose exception.  Please, Congress, don’t play games – write a provision that speaks clearly and honestly about who will benefit and how.  After three years of this, we deserve at least something clear and understandable.

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CPSIA – Functional Purpose Exception Is All About Dollars Now

CPSIA – Hypocrisy on Display

CPSC Chairman Inez Tenenbaum was home in South Carolina last week and made an appearance to commemorate a new State ATV safety law known as ” Chandler’s Law “.  This law is supported, even encouraged, by the ATV industry.  Notes Paul Vitrano of the SVIA, “Chandler’s Law is a major step in the right direction. It’s something to be celebrated and we extend sincere thanks to everyone involved in its enactment. But there’s much more work to be done in South Carolina and all over America. ATVs are safe when used properly, but they are not toys. No responsible parent would hand the keys to the family car over to their child and send them on their way.” [Emphasis added] ATVs are not toys.  But ATVs are regulated by the CPSIA as though they are toys.  Notably, as a consequence of the CPSIA, access to youth-model ATVs has been all but eliminated .  Incredibly, there is still NOT ONE test lab certified by the CPSC to test ATVs for compliance either.  Testimony to this effect was given at the February 16th CPSC hearing at which I appeared.  Jay Howell of the CPSC acknowledged that the expense of testing ATVs cannot apparently be recovered by labs because there are so few youth model ATVs left on the market.  No lab wants to invest for testing at a loss.  The market speaks?  The absence of youth model ATVs from the market also means that they are not being rented out.  Rental and sales are the same thing under the CPSIA.  They’re gone. Interestingly, Chandler’s Law prohibits children under 16 from riding adult-sized ATVs.   If you can connect even two dots, you will realize that this is a tacit ban on children riding ATVs.  Period.  This is the secret agenda of the consumer group zealots like the former AAP majordomo Cindy Pelligrini as she admitted at a meeting of stakeholders with the House Energy and Commerce Committee staff on January 6, 2011.   So in other words, the consumer groups have a political agenda that they cannot accomplish via direct legislation – taking away ATVs from your kids, even using youth model ATVs developed at the request of the CPSC.  ATV riding is too popular regionally for a ban to ever pass Congress - so the consumer groups obtained their objective under the cover of darkness with the CPSIA and sympathetic Dem plants on the CPSC Commission.  And here’s the hypocrisy of Ms. Tenenbaum on public display.   Appearing to herald the restrictions on youth access to adult-sized ATVs, Ms. Tenenbaum does not mention that she is ALSO responsible for the removal of youth-model ATVs from the market and that Chandler’s Law essentially implements a ban on ATV use by children under 16 years of age in South Carolina.  Had she admitted it, the publicity storm would have been bad for South Carolina legislators and Dems all over the country.  She’ll never breathe a word. Not unlike the rest of the CPSIA mess, the reality is kept beneath a cloak, out of sight.  You will only notice, if you ever do, when you go to the store and try to buy something wonderful that you have used safely in the past . . . and it’s gone.  Where did it go?  The self-appointed ” fun suckers ” have been there first.  Youth model ATVs – they’re against them.  Trampolines, backyard pools, fireworks, rhinestones, brass instruments  - all too “dangerous” for you to be allowed to use.  They know what’s best, and you should be thankful. It’s our country but they’re running it.  When are you going to do something about it?  After three years, you don’t have much time left to figure it out.

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CPSIA – Hypocrisy on Display

CPSIA – Futile Provision or Gimme for Big Biz?

In response to my blogpost on the “Functional Purpose” exception so desperately desired by the Dems (Waxman and his Waxmanis, plus the Dem CSPC Commissioners) as the “solution” to the inflexibility of the CPSIA restrictions on lead, I am informed that some people think the door is still cracked open for exclusions. I must disagree. Here is the language on the functional purpose exception from the last published version of ECADA :  “(1) FUNCTIONAL PURPOSE EXCEPTION.—(A) IN GENERAL.—The Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the prohibition in subsection (a) for a specific product, class of product, material, or component part if the Commission, after notice and comment in accordance with subparagraph (B), determines that—(i) the product, class of product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, class of product , material, or component part , as the case may be, in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible; (ii) the product, class of product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse of such product, class of product, material, or component part by a child; and (iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into account normal and reasonably foreseeable use and abuse.”  I have added color to the key words in this section.  In blue , I have highlighted that the exemption will ONLY apply to those products or materials which “require” the inclusion of lead.  In yellow , I have highlighted the two parts of the exception, namely cases where the inclusion of lead is not practicable or not technologically feasible.  Who will benefit from this provision, and how will they benefit? First, to take advantage of this provision, you must demonstrate that your product “requires the inclusion of lead”.  When might lead be required?  According to the CPSC Staff in their recently released report on the ”technological feasibility” of 100 ppm lead , no products or components under 600 ppm concentration requires lead:  “Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). Therefore, staff does not believe that children’s product manufacturers intentionally design or make products or components with the maximum allowable lead content because lead concentration near the maximum limit would have no benefit or purpose to the product or the manufacturer.”  No benefit whatsoever of trace lead content.  Who would have guessed that?! Thus, this provision only applies to items, components or materials well over 600 ppm lead.  For those of you on the sidelines hoping that this will save your trace levels of lead in components, like metals in bicycle components, sorry!  It’s not for you. I believe this provision is only intended for a very limited list of components – namely, brass, metal alloys or possibly rhinestones.  In reality, it’s just for metal alloys which actually require lead as a component, like engine components (or brass).  There will be almost no argument possible where there is a market substitute that the CPSC thinks is adequate. They get to run your business now, don’t forget. Rhinestones are so done. For those items, components or materials that make it through the “requires the inclusion of lead” filter, the provision then further limits coverage where avoiding the inclusion of lead is not “practicable” or technologically feasible.  The above-referenced report states the opinion of CPSC Staff that NOTHING requires the inclusion of lead as defined by the CPSIA:  “Based upon this analysis, the staff could not recommend that the Commission make a determination that it is not technologically feasible for a product or product category to meet the 100 ppm lead content limit for children’s products under section 101(d) of the CPSIA. No such determination has been made by the Commission. Therefore, all children’s products sold, offered for sale, manufactured for sale, distributed in commerce, or imported for sale in the United States must meet the 100 ppm lead content limit beginning August 14, 2011 as statutorily mandated by the CPSIA unless otherwise excluded . . . .” Some people believe the legal definition of “practicable” in certain legal rulings (case law) takes into account economics  and is intended to be a more pragmatic standard allowing applicants to plead that the law will ruin their businesses.  This theory depends on a richer, more nuanced meaning of the term than provided in online legal dictionaries (” when something can be done or performed ” or ” anytime something can be done or performed “). A more detailed explanation, closer to the wishes of those pinning their hopes on this provision, comes from JustAnswer.com :  ” Normally one would say, in a legal arena, that if it does not cause an undue hardship to one party or the other, then it is ‘practicable’. An example would be if during a child support hearing, one party wants the other party to pay for a brand new corvette for their 16 years old child to drive, that would be considered impracticable whereas if they asked for the other parent to provide safe transportation and it is agreed to get a used Ford Escort, that would be practicable. If during a hearing on a property easement the land owner wants $200,000 for a 40 foot easement, the easement holder to pour a new driveway for them both to use, and he can only use it on Fridays, that would be impracticable. Does that make sense? It is basically saying that if there is a reasonable way to provide whatever is being asked, or rather ‘whenever practicable’, that should be done .” Anyone hoping to win an exception under this provision must be prepared to explain that there is no reasonable way to accomplish their goal, that it is in that sense not “practicable”.  This definition does not permit exceptions simply because in their absence costs might rise.  The cost must be “unreasonable” but can be much greater than zero.  What might be deemed an “unreasonable” cost by this CPSC Commission? Well, I think some factors are quite relevant in evaluating whether such exceptions will EVER be granted.  First, the three Dem Commission has taken the position publicly that there is no safe level of lead .  This is wrong, as we know, because since every human takes lead into his/her body every minute of the day and night through lead in air, water, food and dirt (at a minimum), we cannot conclude that life degrades in the presence of lead alone.  The source, concentration and exposure to lead determines the nature of the risk (as they say, the dose makes the poison).  Unfortunately, these Dem non-scientists are beyond convincing.  Try telling them that money is more important than their unthinking appraisal of the “risks” confronting children with lead.  I can’t see it. As if that weren’t enough, the CPSC Staff has publicly stated that everything can be made lead-free based on the bizarre definition of “technological feasibility” under the CPSIA. That term of art does not have the expected meaning of its English words since economics were written out of the definition.  This Commission knows that everything can be made without lead, and given their caveman fear of lead, any applicant will have to explain why other available options are no good.  The concept of technological feasibility and not practicable are not really as divorced as they seem. CPSC Staff shed some light on practicability in their 100 ppm report: a.  ” . . . low-lead materials that can be used in the production of children’s products generally appear to be commercially available in the market place” b.  “In general, for cost increases affecting a broad base of industries, there will be a mixture of effects: both increases in the retail prices of children’s products and reductions in overall production levels.” c.  “Alternatively, some manufacturers may need to redesign or re-engineer their products. Valve stems for bicycles, for example, may need to be fitted with more secure caps, which will effectively render them inaccessible and potentially more difficult to use. In addition, products may be simplified to reduce the number of components for testing.” Overall, the implication of the economic analysis is that the bulk of economic damage (rising costs) has already occurred.  In addition, the CPSC seems to think there is more than one way to skin a cat – and that would be quite relevant in any proceeding under the Functional Purpose Exception provision  Which items would likely be eligible for consideration for relief?  It would likely only be items that are being sold subject to a stay (ATVs and bicycles) because everything else that’s on the market is already compliant.  And how many items are being openly sold today are NOT in compliance with the current lead standards?  Damn near zero.  As Mike Larson notes in the Star-Tribune (March 27, 2011):  “Unfortunately, this hasn’t helped because the many manufacturers and dealers have chosen not to sell the smallest youth model ATVs because of the risks of selling under the stay, and there’s now a limited availability of these products for consumers.  In fact, half of the major ATV manufacturers are no longer selling youth model off-highway vehicles.” My conclusion:  No one can apply for this exception and if they do, they are highly likely to be turned down. Just like the last three years.  It’s a big win for Waxman – he appears to be “listening” but instead is perpetrating a fraud on all the dupes in the children’s product industry.  He cares not about your petty problems (that he created).  It’s truly heartwarming . . . . One last thought:  Who really gets the short end of the stick here?  It’s you as usual, the little guy.  The CPSC Staff acknowledges that the 100 ppm standard is anti-small business:  “Despite the existence of complying materials and components in the marketplace, some manufacturers, especially very small ones, may not be able to readily purchase these materials and components due to the lack of available distribution channels. For example, the Handmade Toy Alliance stated that its members would be unable to consistently obtain materials complying with such a low lead limit because its members do not purchase raw materials, but instead purchase component parts from retail stores.” But, heck, who will take the time to actually read their 59-page report?  Believe me, Waxman ain’t losing sleep over the possibility that you will read it, much less actual members of Congress. And then there’s the practicality of the exception process – it’s like major litigation against the government. Think of the cost – you would need to hire experts, lawyers, consultants and would have to prepare dossiers on each and every material, component and product you want exempted.  You will bear the burden of proof, you will be judged ONLY on the “proof” you submit, and best of all, you will be judged by a panel controlled by Tenenbaum, Adler and Moore.  Who on Earth will waste their money and their time on this?  Perhaps Mattel, WalMart and a few Asian manufacturers of bicycles (China makes 58% of world bicycle production).  It’s not for you – you can’t afford it.  This is a meager gimme for big business, like “firewalled test labs”, something to ease the troubles of the mega companies affected by the CPSIA. As for the rest of us, let’s not forget the wisdom of Senator Dick Durbin’s office : “I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions).” [Correspondence dated April 16, 2009] I think the real false assumption is that the Democrats care about anything other than getting reelected.

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CPSIA – Futile Provision or Gimme for Big Biz?

CPSIA – Oversight Hearing Set for July 6th

The House Energy and Commerce Committee is holding an oversight hearing on July 6th entitled ” The Views of the Independent Agencies on Regulatory Reform ” featuring CPSC Commissioners Bob Adler and Anne Northup.  Other agencies will also be questioned (FCC, FERC and FTC).  Break out the popcorn!

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CPSIA – Oversight Hearing Set for July 6th

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