CPSIA – Schylling Agrees to a $200,000 Fine for Lead in Paint

What is the principal goal of the CPSC – to protect consumers from unsafe consumer products, or to punish legal transgressors? If consumers haven’t been harmed, how should this aftect the agency’s decision to punish?

These questions come to mind when considering the most recent punishment meted out by the CPSC. In particular, on February 4th, Schylling Associates (”Schylling”) agreed to pay a $200,000 fine for lead-in-paint violations disclosed in 2007. How does this fine affect the CPSC’s mission?

Background: I have no personal knowledge of this situation, although I know the company and some of its principals, and I have had no contact with anyone associated with the fine. My summary of L-I-P recalls from 2007 shows five Schylling recalls, although the CPSC press release does not relate to all of them. The recalls total about 80,000 pieces sold from June 2001 to May 2003. The fine works out to about $2.50 per unit for violations almost seven years old or older. No injuries were reported since the sales began almost nine years ago.

Schylling apparently promptly recalled one of the items upon discovery of the infraction in March 2002 and also terminated the factory. Here is Jack Schylling’s letter to his dealers describing this incident. This item comprised a relatively small portion of the defects. Schylling apparently (mistakenly) believed that the other L-I-P problems had been resolved and therefore did not recall them until 2007 (see below).

In August 2007, a Chicago Tribune article featured a defective Schylling top purchased in an online auction; consequently, several additional L-I-P violations dating back to 2001-2003 were uncovered, promptly disclosed to the CPSC and recalled properly.

Judging from the press release and the settlement agreement, this is a messy fact pattern with some poor judgments. bad operational execution and some violations of serious rules. Schylling was a repeat offender, albeit by all appearances not because of bad intentions. No one was hurt.

That Schylling was in the wrong is only part of the story. Was the fine the right move by the CPSC?

The Schylling Fine is Excessive and Unrelated to the CPSC’s Mission to Protect Consumers. The CPSC is not the Department of Justice. They are the Consumer Product Safety Commission – the agency “is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction.” I do not believe this fine is consistent with their mission.

In this case, the fine is removed from the protection mission, as all defective pieces were recalled from the market voluntarily and pursuant to voluntary disclosure. This is “good behavior” since the company sought to mend its ways and fix the problem. In addition, because the offenses lasted two years ending almost seven years ago, this matter is old and cold. Addressing it now seems to unfairly reach back in time. Finally, the amount of the fine is arbitrary and therefore unfair. The size of the fine cannot be related to other fines for similar offenses.

Manufacterers Are Likely to React Badly to Fines Intended to Make Examples. If the mission of the agency is to protect consumers, all of its activities must be judged against that mission. In this case, the fine for Schylling would need to make consumers safer to be consistent with the mission. Ironically, I think it is quite possible that this excessive fine may endanger consumers by discouraging manufacxturer cooperation.

The striking thing about this fine is not simply its excessive size – it is that the fine seems motivated by retribution, not consumer protection. This company appears to have tried, perhaps ineptly or even improperly, to do the “right thing”. They turned themselves in voluntarily. The product was removed from the market voluntarily, although not with all the required CPSC disclosure or as timely as possible.

Ultimately, to be successful, the CPSC needs manufacturers to come forward. The trust factor is crucial. When the CSPC acts to squish people who turn themselves in, perhaps to set an example, businesses may conclude that they cannot afford to throw themselves on the mercy of the CPSC. The Schylling action reinforces the notion that the CPSC is not a trustworthy partner. And this is a very damaging notion for consumers.

Here at the Nuremberg Toy Fair, the tradeshow is abuzz with several examples of companies who suffered grievous losses by disclosing problems to the CPSC. These issues were never of a life-threatening nature. However, the CPSC defaulted to remedies that placed the maximum risk on the manufacturer. Now, to make matters worse, the CPSC is adding large, arbitrary penalties for companies that come forward. Do the math – manufacturers may well see disclosure as a bad deal. Highly publicized punishments like Schylling destroy trust. While some manufacturers may be “scared straight”, many others may simply drop off the radar altogether.

Other agencies in the U.S. government see things more clearly. Customs, for instance, grants full immunity from penalties if you confess your sins before official notice of an investigation. While this too is painful, at least you control you control your own fate and pay no penalties. Customs’ policy encourages disclosure, which is what Customs wants. I contend that disclosure is what the CSPC should want, too – it needs to know what defectivce products are “out there” to protect the public.

A big fine was not the agency’s only possible remedy here. It did not have to hit Schylling with a huge penalty, or any penalty at all. Schylling could havc agreed to implement new safety procedures or to conform to certain standards for future behavior. The CPSC also could have agreed with Schylling on some sort of public service. These options would have sent a strong message to Schylling about the consequences of future infractions, while encouraging openness and cooperation with the manufacturing community.

Unfortunately, a reasonable approach would not satsify a ravenous pack of Democratic members of Congress, consumer groups and newspaper editorial boards who are demanding blood. Giving in to populist outrage buys the CPSC time . . . but at a high cost. A punishment-oriented CPSC will be defeated by its own shortsightedness. As more and more people slink into the shadows, this CPSC might accuse the manufacturing community of venality and launch even stronger actions against bad behavior. A safety police state is possible. Is that what we want?

If the CPSC persists in this approach, it will soon eat its own cooking. It’s time for the mania and blood lust to end, and for rationality to return to safety administration. Fear does not have drive regulation of these markets.

Read more here:
CPSIA – Schylling Agrees to a $200,000 Fine for Lead in Paint

CPSIA – Let’s Play a Cadmium Game!

We all know that cadmium is dangerous. After all, the Associated Press and seven Senators told us so. I have asked the innocent question – if cadmium is so dangerous that we absolutely cannot tolerate it in jewelry, what else is similarly dangerous? We have a business making children’s products so it’s important that we understand this critical question, right?

At this point, other than whatever the AP decides to print tomorrow, we know that anything with lead is really dangerous. The CPSC, following orders, determined that palladium, rhodium, osmium, iridium and ruthenium are safe. They blessed these materials for inclusion in children’s products in August 2009 so they must be safe, right? Here’s what the CPSC said: “In addition, in the proposed rule, the Commission preliminarily determined that certain metals and alloys did not exceed the lead content limits under section 101(a) of the CPSIA provided that no lead or lead-containing metal is intentionally added. The metals and alloys considered included surgical steel, precious metals such as gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium.”

So here’s the game: match the following statements from Wikipedia about these elements with the element itself. [To verify my quotes, just go to Wikipedia and search for the element.]

1. Cadmium
2. Palladium
3. Rhodium
4. Osmium
5. Iridium
6. Ruthenium

A. “[This element] reacts with oxygen at room temperature forming volatile [element] tetroxide. . . . [Element] tetroxide is highly volatile and penetrates skin readily, and is very toxic by inhalation, ingestion, and skin contact.”

B. “[This element] is also a potential environmental hazard. Human exposures to environmental [element] are primarily the result of the burning of fossil fuels and municipal wastes. However, there have been notable instances of toxicity as the result of long-term exposure to [this element] in contaminated food and water.”

C. “[This element] chloride was at one time prescribed as a tuberculosis treatment at the rate of 0.065 g per day (approximately one milligram per kilogram of body weight). This treatment did have many negative side-effects, and was later replaced by more effective drugs.”

D. “The compound [element tetroxide] similar to [XXX] tetroxide, is volatile, highly toxic and may cause explosions if allowed to come into contact with combustible materials. [This element] plays no biological role but does strongly stain human skin, may be carcinogenic and bio-accumulates in bone.”

E. “[C]hemical complexes of [this element] can be reactive. Lethal intake for rats is 12.6 mg/kg of [element chloride] [This element] compounds can strongly stain human skin. The element plays no biological role in humans.”

F. “Very little is known about the toxicity of [this element's] compounds because they are used in very small amounts, but soluble salts, such as the [element] halides, could be hazardous due to elements other than [element] or due to [the element] itself.”

It’s good to know that only one of these items is considered dangerous. I feel safer already!

Read more here:
CPSIA – Let’s Play a Cadmium Game!

CPSIA – What Constitutes "Safe"?

One of the tragedies of the CPSIA melodrama is that the consumer groups have completely hijacked the concept of safety, turning it utterly away from concepts of risk assessment. To what, you say? Away from management of identifiable risks to avoidance/elimination of perceived risks. In other words, Congress and our regulators now ignore the data on risk and focus instead on the possibility of risk. The POSSIBILITY of injury, not the actuality of injury.

How much of a difference is this? Pretty big, to judge by the frenzy over cadmium in jewelry. Seven Senators have sponsored a bill called the Safe Kids’ Jewelry Act. This law would ban the use of cadmium in kids’ jewelry. Is this “good”? I am not sure how to answer that. To my knowledge, no one has identified a single injury from cadmium in children’s jewelry. It is undeniable that cadmium is a bad element and has the potential to harm. Ergo, jewelry with cadmium is “bad”? I can imagine circumstances where cadmium in jewelry might hurt a child. Then again, if it were so dangerous, where are all the victims?

If this is going to be the new standard, whether a product MIGHT harm someone, I think we are cooked. Assuming that “prevention of possible injury” is to be used as the standard to evaluate products or components of products, let me ask a few questions to see if I understand the “new rules of the road”:

• How certain must the prospect of injury be?
• How specific must the circumstances of the prospective injury be?
• Are we talking about probable injury (more than 50%) or possible injury (odds greater than 0%)? How are those odds to be measured – by unit sold, by contact, by owner, by year, by lifetime use? What’s “reasonable”? [Does anyone care what's reasonable?]
• Are all things that could possibly injure a child now illegal on the same basis?
• If the answer is yes, when will all those other products be banned and/or recalled? Is equity in the treatment of all products “important”?
• If the answer is no, then where do we draw the line?
• How relevant is it that no injuries have been reported?
• How many incidents are required before we declare a product or substance illegal or recalled? How many newspaper articles, editorials or CEH lawsuits are required?
• What responsibility do we have to be consistent in the administration of these rules?

Consistency, that’s important, don’t you think? If cadmium is now tacitly illegal because it might harm a child, do we have to make everything with the possibility of injury to children illegal?

Presumably, since no injuries to children from cadmium has been reported and the Washington Post confirms that doctors do not perceive cadmium as a serious risk (perhaps because it was not prevalent in house paint or in gasoline, hmmm), then anything with the same level of prospective risk would be illegal. That’s more or less everything from water to chicken bones to lead to ruthenium. [Pardon me, ruthenium, one of the world's most expensive and dangerous elements, is a-okay to include in children's products.] Why then aren’t we closing swimming pools which cause more than 250 deaths each year? What about water – you can drown in two inches of water. No more showers?

Is there something special about cadmium, besides that it has appeared in an Associated Press article?

The mania over the prevention of possible injury has turned the business environment into a feeding frenzy that will drive the business community down, down, down. Is that in anyone’s interest? Will we all be safer if we have nothing to buy?

Please consider that the House Energy and Commerce Committee has today weighed in on the Toyota recall. Yes, the same Henry Waxman who is torturing our industry has now turned his talons and sharp teeth on Toyota. Toyota enjoys one of the finest reputations for quality and service in the world. It is renowned as a business leader – and proactively took strong medicine in its gas pedal recall. This is not enough for the venomous Democrats who hate businesses. They need to dig deeper and perhaps damage Toyota enough to help GM and Chrysler, owned by the U.S. government and unions. Bringing the great low, that’s the new American way of the Democrats. It makes me SICK.

I want to close with a note about cows – did you know that cows are killers, too? Yes, they are – the New York Times reports:

“The image of cows as placid, gentle creatures is a city slicker’s fantasy, judging from an article, published on Friday by the Centers for Disease Control and Prevention, reporting that about 20 people a year are killed by cows in the United States. In some cases, the cows actually attack humans — ramming them, knocking them down, goring them, trampling them and kicking them in the head — resulting in fatal injuries to the head and chest.”

COWS kill 20 people a year, cadmium has apparently killed ZERO. We are running pell-mell to ban cadmium from jewelry because a misguided newspaper article fueled panic. Are cows next? Should they be? If cadmium jewelry goes away and cows stay unregulated, will respect for our laws remain?

Respect for Congress, that’s another thing.

Read more here:
CPSIA – What Constitutes "Safe"?

CPSIA – What Constitutes "Safe"?

One of the tragedies of the CPSIA melodrama is that the consumer groups have completely hijacked the concept of safety, turning it utterly away from concepts of risk assessment. To what, you say? Away from management of identifiable risks to avoidance/elimination of perceived risks. In other words, Congress and our regulators now ignore the data on risk and focus instead on the possibility of risk. The POSSIBILITY of injury, not the actuality of injury.

How much of a difference is this? Pretty big, to judge by the frenzy over cadmium in jewelry. Seven Senators have sponsored a bill called the Safe Kids’ Jewelry Act. This law would ban the use of cadmium in kids’ jewelry. Is this “good”? I am not sure how to answer that. To my knowledge, no one has identified a single injury from cadmium in children’s jewelry. It is undeniable that cadmium is a bad element and has the potential to harm. Ergo, jewelry with cadmium is “bad”? I can imagine circumstances where cadmium in jewelry might hurt a child. Then again, if it were so dangerous, where are all the victims?

If this is going to be the new standard, whether a product MIGHT harm someone, I think we are cooked. Assuming that “prevention of possible injury” is to be used as the standard to evaluate products or components of products, let me ask a few questions to see if I understand the “new rules of the road”:

• How certain must the prospect of injury be?
• How specific must the circumstances of the prospective injury be?
• Are we talking about probable injury (more than 50%) or possible injury (odds greater than 0%)? How are those odds to be measured – by unit sold, by contact, by owner, by year, by lifetime use? What’s “reasonable”? [Does anyone care what's reasonable?]
• Are all things that could possibly injure a child now illegal on the same basis?
• If the answer is yes, when will all those other products be banned and/or recalled? Is equity in the treatment of all products “important”?
• If the answer is no, then where do we draw the line?
• How relevant is it that no injuries have been reported?
• How many incidents are required before we declare a product or substance illegal or recalled? How many newspaper articles, editorials or CEH lawsuits are required?
• What responsibility do we have to be consistent in the administration of these rules?

Consistency, that’s important, don’t you think? If cadmium is now tacitly illegal because it might harm a child, do we have to make everything with the possibility of injury to children illegal?

Presumably, since no injuries to children from cadmium has been reported and the Washington Post confirms that doctors do not perceive cadmium as a serious risk (perhaps because it was not prevalent in house paint or in gasoline, hmmm), then anything with the same level of prospective risk would be illegal. That’s more or less everything from water to chicken bones to lead to ruthenium. [Pardon me, ruthenium, one of the world's most expensive and dangerous elements, is a-okay to include in children's products.] Why then aren’t we closing swimming pools which cause more than 250 deaths each year? What about water – you can drown in two inches of water. No more showers?

Is there something special about cadmium, besides that it has appeared in an Associated Press article?

The mania over the prevention of possible injury has turned the business environment into a feeding frenzy that will drive the business community down, down, down. Is that in anyone’s interest? Will we all be safer if we have nothing to buy?

Please consider that the House Energy and Commerce Committee has today weighed in on the Toyota recall. Yes, the same Henry Waxman who is torturing our industry has now turned his talons and sharp teeth on Toyota. Toyota enjoys one of the finest reputations for quality and service in the world. It is renowned as a business leader – and proactively took strong medicine in its gas pedal recall. This is not enough for the venomous Democrats who hate businesses. They need to dig deeper and perhaps damage Toyota enough to help GM and Chrysler, owned by the U.S. government and unions. Bringing the great low, that’s the new American way of the Democrats. It makes me SICK.

I want to close with a note about cows – did you know that cows are killers, too? Yes, they are – the New York Times reports:

“The image of cows as placid, gentle creatures is a city slicker’s fantasy, judging from an article, published on Friday by the Centers for Disease Control and Prevention, reporting that about 20 people a year are killed by cows in the United States. In some cases, the cows actually attack humans — ramming them, knocking them down, goring them, trampling them and kicking them in the head — resulting in fatal injuries to the head and chest.”

COWS kill 20 people a year, cadmium has apparently killed ZERO. We are running pell-mell to ban cadmium from jewelry because a misguided newspaper article fueled panic. Are cows next? Should they be? If cadmium jewelry goes away and cows stay unregulated, will respect for our laws remain?

Respect for Congress, that’s another thing.

Read more here:
CPSIA – What Constitutes "Safe"?

CPSIA – CPSIA Casualty of the Week for January 25

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

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

CPSIA Casualty of the Week for January 25, 2010

CPSIA Means No Bling for Baby

When Elementary School teacher Marcy Cohen had her first baby girl, she and her sister Lori Rockoff, a social worker, started making tiny accessories for the newest addition to the family. With only a few strands of hair to adorn, the sister team developed “no slip” clips and bows. Soon, their sparkling rhinestone creations were catching the eye of friends and strangers, prompting them to launch Pea Soup Accessories for Kids, which quickly became a leading manufacturer of hand-made children’s products. Their trendy product line includes a wide variety of accessories from embellished headbands to ornate socks.

Yet, while the sisters behind Pea Soup were busy supplying hundreds of high-end boutiques, Congress was working on the Consumer Product Safety Improvement Act (CPSIA) to devise new testing standards of the metal and crystal embellishments that give Pea Soup accessories their unique flair. While none of Pea Soup’s products ever had any safety or lead problems, the confusing nature of the CPSIA forced the sisters to make substantial changes to much of their line.

“We did not want to take any chances with violating the new law,” says Marcy. “In order to avoid any risks, we scrapped many of the products in our line and had to manufacture new ones with different and compliant materials.”

As a result of the law and the cost of the required testing, Pea Soup was forced to significantly change their product line, eliminating much of the creative embellishments that made their accessories distinctive and leaving them with thousands of dollars worth of perfectly safe (and adorable) unsalable inventory.

For more information about Pea Soup visit, http://www.peasoupaccessories.com/about_us/

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

Read more here:
CPSIA – CPSIA Casualty of the Week for January 25

CPSIA – In Defense of Lead

Perhaps you have been expecting it. After all the “heat” in this blog over the past year, finally, my defense of lead. Hope you’re happy now. . . .

Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler’s paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes – but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler’s reasoning, however, and that makes all the difference.

Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.

Ironically, Mr. Adler’s statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brash bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) – and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn’t.

To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something’s quite wrong if we are celebrating a system so obviously broken.

i believe there are fundamental flaws in Mr. Adler’s views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:

• Lead is bad
• Lead can be dangerous to children
• Harming children is bad, and unacceptable if reasonably foreseeable.
• Lead poisoning in children is largely if not entirely the fault of lead house paint and leaded gasoline

Mr. Adler makes the latter point in his footnote 83: “Clothing is not a significant source of lead poisoning. Far and away the greatest source of lead poisoning is lead paint in older housing, lead-saturated soil from gasoline emanated over the years from automobile exhausts, and lead-saturated dust (both from paint and gasoline).” [Other citations omitted] It is important to remember that Mr. Adler KNOWS that blood lead level problems stem from house paint and the long term consequences of years of leaded gasoline use (particularly in the inner city).

Mr. Adler tries to prove that lead is bad – but that fact beyond dispute. He goes further and builds the case that there is no “safe” level of lead, providing citations. Thus established, he then seems to justify the legislation’s strict terms based on the logic that if science hasn’t identified a safe level for lead, every instance of lead is therefore dangerous: “We may have currently reached the outer limits of our ability to measure negative effects of exposure to small amounts of lead, but that does not mean that no adverse effects are occurring. It basically means that we do not know.” Scary stuff. . . but what does he really think?

It’s hard to tell. Notwithstanding his assertion that no level of lead is safe, Adler seems oddly reassured by the permitted levels set by Congress: “[Given] that lead remains ubiquitous and often unavoidable, policymakers who are fully aware of lead’s risks, have sought to determine some level of lead that would be acceptable – at least until new information becomes available.” And these all-knowing policymakers (Congress) set a retroactive scheme of rapidly declining permitted lead levels. In other words, what was considered “safe” (meaning legal) on February 9, 2009, was “unsafe” on February 10, 2009, and what was considered “safe” on February 10, 2009 became “unsafe” on August 14, 2009, and what was “safe” on August 14, 2009 promises to become “unsafe” on August 14, 2011. Mr. Adler analyzes retroactivity under the CPSIA in his statement and then endorses it. Huh?

I fail to grasp the logic of either Congress or Mr. Adler here. Is lead in substrate dangerous or is it not? Is there a safe level for lead or is there not? Is lead safe on one day, and not safe on the next day? If so, can someone explain the science of that safe/unsafe trigger to me? I believe Mr. Adler’s accommodative attitude toward the lead standards and retroactivity is best explained by politics than by any notions of safety or risk.

It is even harder to take Adler’s stern tones on lead seriously when you consider the volume of lead elsewhere in a child’s life. Will regulation of lead in substrate in children’s products have any material impact on blood lead levels? Can anyone prove that it will, or that the cost of getting rid of all the lead is worth the cost? Remember that we could redeploy the same money for more impactful projects, like eliminating high lead levels in drinking water in schools or remediating soil contaminated with lead. We have already covered the fact that Mr. Adler knows that blood lead levels are fundamentally tied to exposure to leaded house paint and contaminated soil. It is also well-known that cars are coated in lead paint, legally under our laws. Lead is also in our food chain, is found in nature – and enters our bodies every day. [For data on this topic, see "Eat My Dust".] By obsessing on children’s products in the face of these facts, Congress ensured that its new legislation would fail to deliver measurable results.

In essence, the slogan “no safe level for lead” connotes a risk-free condition. “Risk-free” is an unrealistic standard and FAR too expensive as public policy. Mr. Adler uses this formulation in his lengthy analysis of used clothing sales: “In sum, I cannot state with certainty that a “safety” threshold of, say, 1 µg/dL blood level change would never occur from zipper sucking. . . . The fact that I cannot say there is no risk is why I characterize the choice [between allowing and banning resale of used clothing] as between bad and worse.” [Emphasis added] Mr. Adler is not following a legal principle here, he is asserting one. This is the precautionary principle, the famous Nanny State being implemented before your very eyes.

It is difficult to diffuse an argument based on the elimination of all possible risk. If we wish to organize our society around the elimination of risk, rather than the management of risk, we are doomed. All of us, not just the children’s product industry. The sad truth is that no one in the Federal government can prove that the policies of the last 35 years on lead caused injury. Mr. Adler implicitly asserts that our inability to prove that it DIDN’T is enough justification to throw the old system out. This is a belief system, not science.

The fear of risk is fanned by the threat of undetectable dangers. Mr. Adler notes: “To say the effects [of lead on healthy children] are not directly observable is not to say that that they are minor.” He amplifies this point by implying a link to children’s products to lead injuries without any proof of a relationship: “[MRI] technology has permitted us to identify permanent damage in adults stemming from childhood lead exposures.” Exposure to what, precisely? ABC blocks or the soil next to an inner-city apartment building in the leaded gasoline era? Mr. Adler’s assertion that we just don’t know what the harm is dodges the real question – how do you know there is any harm resulting from THESE USES OF LEAD? No answer is supplied because no one can answer that question.

The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children’s products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.

A couple brief notes:

- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That’s enough reasoning for me.

- In calling for change to the lead exemption process, Adler is apparently willing to support only “a modest expansion in the amount of discretion granted to the Commission”. I find this rather curious and unexplained – he only wants a little discretion. Why? Does he worry that the Commission can’t handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of “trust”, namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.

- Adler devotes considerable space to sale of children’s clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children’s clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler’s logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn’t be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can’t be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn’t, don’t. WHO sells it shouldn’t matter. But apparently it does.

An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: “As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law.” For those of you who don’t know this SAT word, “bloviating” is defined as “[to] discourse at length in a pompous or boastful manner” on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don’t expect thanks, but I think this is out of line.

I could go on, but I won’t. Mr. Adler’s voice in the debate is an important one and I appreciate his efforts to set the record straight. I don’t agree with him and appreciate the opportunity to reply.

You be the judge!

Read more here:
CPSIA – In Defense of Lead

CPSIA – Massachusetts Speaks . . . Will Congress and the CPSC Listen???

On Saturday, the Washington Post published a poll indicating that three-quarters of Massachusetts voters wanted newly-elected Senator Scott Brown to work with Democrats to get Republican ideas into legislation in general. This note was picked up on Face The Nation yesterday, leading to very strong words from host Bob Schieffer:

“My own take is the vote for Brown was not so much a vote for or against policy or party, as it was a vote against the process itself. People don’t like the political games, and they’ve lost confidence in a bumbling bureaucracy that since Katrina can’t seem to get out of its own way. Why trust the government with a complicated health care proposal, when it can’t catch a terrorist whose own father tried to turn him in? It will take the perseverance of Job and a lot of political courage, but if the two sides could somehow pay less attention to the voices on the fringes of the left and the right, take the Massachusetts voters’ advice, and sit down together to see what they could agree on, who knows? They might get something done! They couldn’t do worse. They might even like it – and I don’t need a poll to tell me the rest of us surely would.” [Emphasis added]

Hmmm, Mr. Schieffer has a point. I hope that Congress and others are not so myopic to believe that this message is just about health care. The daily stress event of reading the front page of the paper confirms that vitriol is the new drink of choice for the Obama Administration. The CPSIA saga is another one of those acidic partisan divisions that led to voter revolt. It’s time to recognize that the process is a big part of the problem here.

The Brown election can be seen as a direct rebuke to the CPSIA process but the risk remains that the point might be missed by You Know Who, the CPSC Commission and other parties at interest. There is little sign of any contemplation on this point yet. The stridency is still there. For instance, BNA reported that some consumer advocates were jolly satisfied with the secrecy of the process to prepare last week’s report to Congress: “Rachel Weintraub, director of product safety and senior counsel at Consumer Federation of America (CFA), told BNA Jan. 7 that a public meeting is not necessary since the recommendations were made public once they were submitted.” I guess sunshine doesn’t work for consumer advocates all the time, especially if it might weaken their powerful grip on the CPSIA.

If the parties supporting the CPSIA have no room to compromise on anything and will twist into any pretzel-like shape to prop it up, we’re not going to get anywhere . . . and the anger of the voters will mount. The message from Massachusetts was loud and clear – to those that aren’t deaf.

Now we will see who was listening.

Read more here:
CPSIA – Massachusetts Speaks . . . Will Congress and the CPSC Listen???

CPSIA – Congressional Eager Beavers Push Anti-Cadmium Law

Congress’ Junior Scientists Club (Senators Klobuchar, Schumer and Nelson) sprung into action Tuesday to solicit co-sponsors for CPSIA knock-off legislation to ban cadmium and various other materials in jewelry. The delicious irony here is their choice of day to launch this effort, namely the day that Massachusetts elected a Republican to replace Ted Kennedy in the Senate, an election result widely interpreted as a firm rejection of this Administration’s government intervention, you know, like this bill.

Let’s not forget that in 1972 the Federal Government created a little known agency to handle “threats” like this, namely the Consumer Product Safety Commission. Congress gave the CPSC the authority it needed to do its job. Oddly, today our Democratic-dominated government seems to think that only it can solve safety problems and further must LEAP into action to save us. I question this. Perhaps the CPSC even questions this.

Even more remarkable is the Dems persistence in pursuing a CPSIA strategy to “stop this cold”. Have these Senators learned nothing from the last 18 months of CPSIA chaos and pain, preferring instead to continue legislating without research, hearings or contemplation? Well, the approach “worked” once before and they did read an AP story about it. . . .

Someday these Senators will be up for reelection. Mark your calendars!

Here’s their letter for your reading pleasure:

Sent: Tuesday, January 19, 2010 12:16 PM
Subject: Cosponsor the Safe Kids’ Jewelry Act – keep cadmium out of children’s jewelry

Senators Schumer, Nelson and Klobuchar are seeking cosponsors of the Safe Kids’ Jewelry Act. A copy of the draft bill is attached. Please let Stacy Ettinger in Senator Schumer’s office know, this week, if your boss would like to cosponsor the bill or if you have any questions about the bill.
Also, appended below, please find the January 10, 2010, by Justin Pritchard on the Associated Press’s investigation into use of cadmium in children’s jewelry and the adverse health effects of cadmium exposure (http://www.msnbc.msn.com/id/34793600/ns/health-kids_and_parenting/print/1/displaymode/1098/ ).

SUPPORT THE SAFE KIDS’ JEWELRY ACT
Protect Children from Exposure to Cadmium and Other Toxic Heavy Metals in Children’s Jewelry

Dear Colleague,

We write to request that you consider cosponsoring the Safe Kids’ Jewelry Act. We believe that this bill is vital to protect children from exposure to cadmium and other toxic heavy metals in children’s jewelry. The legislation would prohibit the manufacture and sale of children’s jewelry – including charms, bracelets, pendants, necklaces, earrings, or rings – containing cadmium, barium or antimony.

Cadmium is a soft, silver-white metal that typically is used to manufacture pigments and batteries and in the metal-plating and plastics industries. Cadmium is a known carcinogen and studies show that direct exposure has adverse developmental and reproductive effects and can lead to kidney disease, among other health problems. Infants and young children are particularly vulnerable to the dangerous effects of cadmium and other toxic heavy metals. Children’s growing bodies absorb these metals at much higher rates than adults and long-term cumulative exposure increases toxicity.

This legislation is needed because test findings show a growing presence of cadmium in children’s jewelry as foreign manufacturers switch from lead – now banned in children’s products – to cheap substitute metals. In lab testing for a recent Associated Press investigation, chemists found significant use of cadmium in a variety of charms, bracelets and pendants sold at several popular retail stores.

In addition to banning children’s jewelry made with cadmium, barium or antimony, the legislation provides for enforcement of the ban, as well as further study on whether other heavy metals should be banned for use in children’s jewelry or other children’s products. Specifically, the bill —

· Protects children. Children are most vulnerable to the health risks from cadmium and other heavy metals. The bill bans the manufacture and sale of children’s jewelry containing cadmium, barium or antimony marketed for children ages 12 and under. Products covered by the ban include charms, bracelets, pendants, necklaces, earrings and rings. The ban would take effect 90 days from enactment of the legislation.

· Gives the CPSC flexibility to designate the most effective testing and certification requirements. The bill gives the Commission authority and flexibility to set stringent, effective testing and certification requirements for manufacturers to ensure the safety of children’s jewelry.

· Sets criminal and civil penalties for violations. Children’s jewelry containing cadmium, barium or antimony would be considered a “banned hazardous substance” under the Federal Hazardous Substances Act (“FHSA”). The bill mandates application of criminal and/or civil penalties under the FHSA for any violations of the Safe Kids’ Jewelry Act. The bill requires the Commission to report annually to Congress on its actions to enforce the Safe Kids’ Jewelry Act, as well as whether the Commission imposed any criminal or civil penalties for violations of the Act.

· Does not preempt State or local law. A significant number of States and localities across the country are now considering enacting laws to ban sales of children’s jewelry containing cadmium and other heavy metals. The bill makes clear that the Safe Kids’ Jewelry Act would not preempt State or local laws relating to regulation of products containing cadmium, barium or antimony. The bill also clarifies that the Safe Kids’ Jewelry Act would not affect any enforcement action or liability of any person under State law.

· Requires CPSC to report to Congress regarding heavy metals which should be banned from children’s products. The bill requires the Commission to study and report to Congress within one year on whether other heavy metals should be banned from use in children’s jewelry or other children’s products.

We hope you will join us in supporting this bill. If you have any questions about the bill or would like to cosponsor the bill, please contact Stacy Ettinger in Senator Schumer’s office (4-7945 or stacy_ettinger@jec.senate.gov); Clint Odom in Senator Nelson’s office (clint_odom@billnelson.senate.gov); or Jonathan Becker in Senator Klobuchar’s office (jonathan_becker@klobuchar.senate.gov).

Sincerely,

/S/
Charles E. Schumer
Bill Nelson
Amy Klobuchar

Read more here:
CPSIA – Congressional Eager Beavers Push Anti-Cadmium Law

CPSIA – Commission Report to Congress on CPSIA Changes

The CPSC Commission issued its January 15 Congressional report on recommended changes to the CPSIA last Friday. As promised by Inez Tenenbaum, the Commissioners were afforded the opportunity to present individual statements to accompany the Commission report. Four of the Commissioners (Tenenbaum, Adler, Nord and Northup) chose to present their own statements. Adler also promised a supplemental statement on the subject of lead, which has not been released yet to my knowledge.

The Report and the accompanying statements make interesting reading. I do not propose to summarize the documents here, but have set out a few thoughts:

a. The Commission’s Consensus is Important. The Commissioners made a big effort to speak with one voice in the report. While they certainly did not agree on everything, their effort to achieve bipartisanship agreement in the report sends a good message. The Commission needs to work harder to find this middle ground more consistently and less fractiously. There is NO JUSTIFICATION for turning safety into a game of political football. If the Commission can work better together, confidence in their administration will grow and extremes will be avoided.

The prohibition against full Commission meetings in private (the Sunshine Act) is a hidden factor in the report. Since the Commission ill-advisedly voted down a public discussion of the report, the Commissioners were prevented from meeting in groups of three, four or five. When you read this report, imagine how it might have read if the five Commissioners were allowed to sit in a room and duke it out. It might have been a better document, more complete and more prescriptive.

b. Where’s the Functional Purpose Exception??? The report is as interesting for what it DOESN’T say as for what it does say. Most importantly, the functional purpose exemption is GONE. Rumorville has it that the functional purpose exception became more and more ornate and complex as the Commissioners struggled to write a recommendation until even its most ardent supporters had to concede that it wasn’t going to work. This was set up to be Waxman’s excuse to do nothing or nearly nothing. It’s not there anymore.

Too bad for Henry, huh?

c. The Commissioners’ Statements Reveal that Common Sense is Divided on Party Lines. The Commissioners’ statements reveal a lack of communication within the Commission. I know they were talking but it appears that some messages weren’t being heard. The statements of the two Democrats (Moore apparently did not prepare a statement) were straight out of Central Casting. Disappointingly, Ms. Tenenbaum chose to repeat a fairy tale about the law’s origins:

“In response to the flood of dangerous imported products, which were involved in tragic fatalities, poisonings and injuries involving children, Congress closely examined the needs of the CPSC and the statutory changes necessary to enhance the regulatory safety net maintained by the agency. Congress spent considerable time reviewing these needs and continually consulted with the agency’s leaders, staff, consumer groups, and the regulated community in order to carefully craft the proper legislation to achieve this end. Seeing a clear need to reauthorize and reinvigorate CPSC with new energy and purpose, Congress passed a sweeping law.” [Emphasis added]

The re-characterization of what was essentially an anger-fueled legislative mania into some sort of group hug is apparently the Democrats’ effort to justify a passive or inert approach to fixing the law. In addition, both Tenenbaum and Adler repeated the misleading togline about the dangers of lead, although I don’t think that’s news anymore. It’s also not really relevant to discussing the issues under the law – and their persistent refusal to acknowledge this is disappointing.

The Republicans (Nord and Northup) delivered rational and balanced statements that calmly and appropriately diagnosed the issues with the law. They are cognizant of the excesses of the law, the dramatic impact on both the regulated community and the hobbled agency itself. The Reps make no effort to prop up the CPSIA – you know, the law passed by REPUBLICANS AND DEMOCRATS ALIKE. There’s no pride of authorship by the Reps – to their credit, these Commissioners seem to be trying to restore a rational system of law and regulation designed to provide appropriate levels of safety at an affordable cost.

I am tired of the Dems on the Commission simply being good Dem soldiers rather than committed stewards of safety. The ANGER expressed in Massachusetts today is a strong message to the Dems – America is sick and tired of government aggressively inserting itself into every aspect of our lives, including by way of the CPSIA and its precautionary principle. See tonight’s Wall Street Journal for more details. It will be interesting to see if Massachusetts impacts the CPSIA amendment process.

d. Does it Matter What’s Safe Anymore? I am struck again by the absurdity of the debate over lead. As I see it, the debate is over which incidents of lead that are illegal should be permitted. This is different from defining what constitutes safe lead. This used to be a simple decision. Now the premise is that there is NO safe level of lead. Is that really TRUE?

Think of ALL cases where lead is found in children’s products. Now separate them into two piles, one that is labeled “safe” and one that is labeled “not safe”. How do these piles compare to the piles made by the CPSIA, FHSA and CPSA? Well, that question never comes up in the debate. The big question is about compliance with law, not safety.

This is not a rational system for administering risk. First of all, if lead were so deadly that it needed to be eliminated in all cases in all children’s products, then presumably we would be even MORE motivated to remove it from our food, water and air (not to mention dirt). After all, we consume food etc. and the lead in the food gets into our bloodstreams. But this isn’t an issue today because the CPSIA didn’t make it illegal – and apparently the CPSC does not feel lead is dangerous in food, water or air (or else it would have acted on the threat under the FHSA). It gets worse – consider that lead paint is illegal on children’s products but not on cars. If lead is so dangerous and mere contact with lead-in-substrate is so dangerous that it is utterly intolerable in a modern, sophisticated society likes ours, then why does the CPSC permit kids to touch or even ride in cars? After all, the zipper pull on a kid’s golf bag is illegal if it has a dot of lead paint on it. But a whole car dripping with lead paint, that’s fine.

The answer – it doesn’t matter what’s safe when it comes to lead, it only matters what’s legal. The Dems prefer to portray what’s illegal as unsafe, and imply that what’s legal is safe. [Call this the All-Knowing Congress argument.] It’s hard to take this seriously. It’s time for them to drop the precautionary principle pretense and start being accountable for the rationality of their regulatory positions. If lead is a crisis as they say, then please ban everything with lead in it, including our entire food chain. I am ready to be safe, finally.

e. What Has Been Accomplished in the Last 18 Months??? Does it bother you as much as me that so little has been accomplished by the last 18 months of chaos? The many steps and achievements documented in the report and statements might make a bureaucrat blush with pride but how have injury statistics changed? [Recall statistics are a poor measure of the effectiveness of safety rules.] How much did we pay as a society for these extremely meager achievements? If you add in the cost to our society of a crippled safety agency, the price we paid is staggering. The waste is sickening. It’s not possible for me to read the recounting without a sense of loss.

f. Does Anyone Else Want An Exemption? Umm, Yeah! It’s important to note that the low number of exemption requests does not reflect a lack of interest in exemptions. Exemption requests are very expensive to prepare and are complex. In many cases, the exemption request will obviously be rejected or is too broad to state in any compelling way. For instance, educational products span so many categories that it is impossible to state a coherent exemption request. More importantly, the real inhibition to filing is a fear of losing the request. For many companies, it just doesn’t pay to ask for permission – they prefer to beg for forgiveness if a problem ever arises.

Anne Northup correctly notes in her statement that it is bad law to require that regulated companies line up for exemptions. She is not arguing on behalf of the companies – she focuses on the huge burden these requests place on the CPSC and the Commission. She is TOTALLY correct. The idea that we should have a safety system based on exceptions would only appeal to the IRS. Somebody needs to listen to Northup on this point.

g. The Report Whitewashes Ineffective Help for Resale Shops. It is a sad joke to assert that coaching resale shops with the CPSC’s guidance document and a few workshops is somehow a solution to the massive problem caused by the CPSIA. For one thing, it is quite clear that this message has not reached its audience. The CPSC’s approach is inherently inefficient and unlikely to bring relief to many affected stores. A better law is the necessary solution. Second, it is apparent that the CPSC’s efforts did not relieve anxiety – the stores are still dropping children’s items. This lack of accountability begins to look cynical when you consider that only last week, Scott Wolfson was warning people not to sell cheap jewelry on auction sites or in resale shops. Hmmm, that sounds very reassuring, doesn’t it? Problem solved!

If the Commission truly cares about resale shops, then a more effective approach (including a communication strategy) needs to be implemented.

With the issuance of the report and statements, the shuttlecock has been batted back to Congress. The next step is to work on a long-needed amendment of this awful law. Stay tuned.

Read more here:
CPSIA – Commission Report to Congress on CPSIA Changes

CPSIA – Washington Post Says Cadmium Issue is Overblown

Tell me it’s not true – we can’t panic about cadmium anymore?! The Washington Post thinks the CPSC may have gone a bit too far in demanding that every American throw away all their children’s jewelry based on a newspaper article they read somewhere: “Very little is known about cadmium’s potential health effects on children, [Dr. John Rosen, chief of environmental sciences at the Children's Hospital at Montefiore in the Bronx] says, because it’s never been known to be a problem, ‘Pediatricians don’t look for it, they aren’t knowledgeable about it, and there are not any particular concerns about it.’” [Emphasis added]

The Post concludes: “So, while this is certainly no matter to pooh-pooh, and it’s important for the government to take whatever steps it must to keep poisonous metals out of the marketplace, it doesn’t sound like occasion to panic, either.” [Emphasis added]

We knew that Senators are absolutely ignorant of science so their foolishness can be understood, but what about the CPSC? Aren’t they on a different level? In the olde days, the CPSC used its professionals for their highly-refined expertise. Today, the staff brainiacs are used to bureaucratically shovel paper from one end of their desk to the other, or to practice falling in line. The folks at the top, the (Democrat) politicians, seem to have the same mastery of science as their Congressional overlords and a similar disregard for the consequences of their actions.

So Inez Tenenbaum went on a media blitz, ably assisted by her associate Scott Wolfson, and SLAMMED the jewelry industry. They had seemingly done virtually no homework (if reading an AP story doesn’t count as “research”), neglecting to take advice from the many Ph.D.s that they employ, and went ahead with an astoundingly irresponsible spree of rulemaking on the fly. And the consequences to them?

There’s the rub – there won’t be any. But there should be. This kind of tort is remediable in the private sector with lawsuits and damages. Not sure how easy it would be to prosecute such high ranking public officials for their conclusion-jumping. We can certainly count on our fearless leader Obama to COMMEND them for their precautionary actions. Surely by putting the jewelry industry out of business, they must have saved lives . . . somewhere. The nice thing about these folks, if they can assert it, it’s “true”. Or true enough.

What a sorry episode, and even with the Post on record with a calming and balanced summary of cadmium’s risks, the train already left the station. Expect the next attempt at an amendment to the CPSIA to include dramatic restrictions on cadmium. Congress will save us, don’t worry.

Hey, science is overrated. Trust me.

Read more here:
CPSIA – Washington Post Says Cadmium Issue is Overblown

Next Page »