CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

Here is the final form of the CPSIA Amendment  (HR 2715)  that should become law sometime this week. I want to quote from another blog (thank you, Steven Hansen ) on this amendment’s path to the President’s desk: ” This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These ‘legislative’ fixes have been getting passed around in backrooms for months and when they finally did come to a ‘vote’ the ‘fix’ was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that’s too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill. ” Mr. Hansen is completely correct.  We know that even Republican members found out about this amendment when it was docketed for a House floor vote.  Mark-up, schmark-up.  The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote.  These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the “noncontroversial” bill.  After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to “fix” the CPSIA.  There won’t be another “fix” to this law again, perhaps EVER.  You know the bill sucks if Henry Waxman is clucking about it .  In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing “relief” (Eshoo), database (Markey), small batch “relief”). And what did we get for all our good government dollars?  I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point.  I would like, however, to highlight low lights of the bill: Winners :   ATVs, Bicycles, Resale Goods, Books, Libraries Losers :  See above list, and if you’re not on it . . . you. Technical Fixes of Past Congressional Screw-ups :  100 ppm lead standard is prospective now.  And WHY wasn’t Congress able to do this for 300 ppm or 600 ppm?  Good question.  The five CPSC Commissioners called for this particular change back in January 2010.  What’s the hurry now??? Changes to testing requirement to “representative” rather than “random” samples.  And we just hired our third statistician, too! Restricts the phthalates ban to accessible plasticized components.  i guess Congress isn’t worried about kids with serpent tongues any longer. Makes FUTURE crib standards prospective.  And who said the $32 million in recently discarded good fixed-sided crib inventory died in vain?! Shame, Shame, Shame : Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC.  This is the CPSC’s version of the sex offender registry.  Is there ANY basis for singling these people out for special attention?  Why doesn’t Mattel have to register, too?  Oh, come on, you know we must have different rules for Mattel!  They need their own firewalled labs and so on for their efficiency.  [Here's a good example of their efficiency.]  It’s only fair, the real safety worry is the crafters . . . . The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending  little nobodies without doing squat.  How do they do that?  The only “relief” that the CPSC may implement must meet this standard:  “Any such alternative requirements shall provide for reasonable methods to assure compliance  with any applicable consumer product safety rule, ban, standard, or regulation.” [Emphasis added]  This CPSIA term has already been interpreted by this Commission multiple times.  The word “assure” ensures that no relief will ever be given since nothing can “assure” compliance other than prophylaxis.  Notably, the Commission has purportedly looked for this “out” for three years and came up with nada .  And Bob Adler has been “agonizing” over it for that entire time.  [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result? Suckers are welcome to wait longingly for this promised “relief” but they will be disappointed again and again.  Protest is futile. Disgusting, Repellent Hypocrisy : Consider the amazing gimme provided to bicycle manufacturers: ” (B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]. ” They don’t have to test their metal components at all.  AT ALL, EVER.  Bicycle manufacturers are different than you and me. Let me be clear – I think testing metal components on bikes is a stupid and pointless waste of time and money.  The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results.  Whoa!  They proved they had an unsolvable problem and apparently Congress listened.  How heartwarming! I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table.  Congress must have gone deaf by that time.  Oddly, the CPSC staff included this data and my testimony in their 100 ppm report.  So perhaps Congress isn’t just deaf, they may be blind, too.  Or perhaps they just don’t bother with the details. Inquiring minds want to know about this particular term benefiting bicycle manufacturers: 1.   The AAP testified that there is a real risk that kids might lick their bicycles .  Problem?  Apparently not, but the testimony was taken morbidly seriously at the time.  I wonder why Congress wants to protect bike lickers now. 2.   Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels.  This decision was a “major victory” for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the “tipping point” in lead exposure.  [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.]  Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass.   [ Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass.  Where are all the Indian victims from generations of eating off brass?]  The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead.  Is Congress signalling that metal components are uniquely safe in bicycles?  How did Congress figure this out?  Is there something in the Congressional record on this point? The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension.  Bills on suspension cannot be amended.  Hmmm. 3.   I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale.  [Former Commissioner David Pittle told the same tale at a CPSC hearing.]  Bicycles won’t be tested before sale now.  How will consumers be able to sleep peacefully?  How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested?  Won’t they have the same uncertainty again?  I can feel the fabric of our society tearing a little bit . . . . 4.   Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component.  There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous.  Metals are used in components in many children’s products, not just bikes.  It follows that all metal components pose the same issue.  It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in.  So why must we test our grommets and staples when bikes can tool around untested? 5.   Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested?  Is there a known health hazard there that bike companies must protect against?  Will those tests achieve anything for anyone?  And why must every other product category still subject to the CPSIA test every component, whether metal or plastic? 6.   The CPSC has held that it is “technologically feasible” to make every component of every children’s product compliant to the 100 ppm standard.  There were no exceptions to their conclusion.  Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components?  [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.]  Why weren’t bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the “toughest lead standard in the world”?  After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it.  Can’t be too safe and, of course, we all know that safety delayed is safety denied.  Isn’t this action of our all-knowing Congress denying safety? As I have noted, this law picks winners and losers.  Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point.  Congress has decided what’s best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn’t spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.

More here:
CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

CPSIA – CPSC Enforcement Officer Speaks

In a July 29th blogpost , CPSC Commissioner Anne Northup reproduced a letter she received from a CPSC Field Agent.  Like so much data rejected by the Validation Bias Democrats on the Commission, I am sure this letter will be ignored.  Why not decide for yourself if it’s relevant? “I just had an opportunity to read your July 20 statement concerning lead ppm . I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world. Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right . It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy.”  [Emphasis added] I wish I shared the Field Agent’s optimism.  Hey, buddy, those days are looooooong gone.

Read the article:
CPSIA – CPSC Enforcement Officer Speaks

CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

Senator Pryor today introduced the so-called ” Consumer Product Safety Flexibility Act of 2011 ” to amend the CPSIA.  This four-pager is targeted at three problems: First , it makes the 100 ppm lead-in-substrate standard prospective. Second , it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA.  It also gives a year extension on the standards for all-terrain vehicles. Third , it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard. The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number. This is a useful effort by Senator Pryor.  For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess.  Hats off to Mr. Pryor for at least providing a means to address this issue.  Rumorville has it that the Senator wants to do more than is expressed by this bill.  Other Dem Senators are on the list as purportedly wanting to do more for us.  All I can say is . . . get in touch with your feelings, Senators.  We need help NOW and we would appreciate your help and leadership in particular. As for saving the ATV’rs and bikers, well, they never belonged under this law in the first place.  The devastation wrought by this law should have been addressed long ago.  That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act.  None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates.  The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us.  [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs.  The AAP admits they want youth model ATVs off the road.  This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.] Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is.  The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents.  If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits.  Come on , guys, science kits?!  Do you REALLY want to send America’s science education back to the Stone Ages?  It’s time to loosen the noose on American industry. One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.

Originally posted here:
CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

Letters to the Editor Wall Street Journal July 26, 2011 CPSC Should Follow Obama’s Policy As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children’s products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial ” Toying with Deregulation .” You accurately paint a grim picture of the commission’s disregard for President Obama’s appeal that regulatory agencies promote “economic growth, innovation, competitiveness and job creation.” But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome. As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See www.cpsc.gov/pr/northup07202011.pdf . Anne M. Northup Commissioner CPSC Washington

Read More:
CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

CPSIA – Nancy Nord Op-Ed on the Wasteful 100 ppm Lead Standard

From the Washington Times (July 18, 2011): NORD: Playing around with toy makers Stricter lead regulations will cost jobs without making children’s products safer The Obama administration has recognized that excessive and unnecessarily burdensome regulation is a drag on the economy. As the administration has worked to promote job creation, it has publicized its efforts directing agencies to eliminate or revise unnecessarily burdensome and inefficient regulations. Apparently, the Consumer Product Safety Commission has not gotten the word. The commission’s failure to get the word is no more apparent than in its efforts to implement the Consumer Product Safety Improvements Act. The legislation was enacted after agency recalls of imported products illuminated the issue of import safety. The goal of the law is to assure that products intended for children are safe, a goal for which there is universal agreement. The devil, of course, is in the details, and the details of implementing this laudable statutory goal are devilish for sure. For the rest of the article, please click here .

View post:
CPSIA – Nancy Nord Op-Ed on the Wasteful 100 ppm Lead Standard

CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

Last week, the Democrats took action to protect you and your kids from the perils of lead.  As we have been relentlessly reminded by non-scientists, there is “no safe level of lead” – just ask Bob Adler and Inez Tenenbaum.  Now, in the wake of the conclusion that reducing lead content from 300 ppm (lead-in-substrate) to 100 ppm will produce “minimal” health benefits (read, none), the CPSC Commission voted three Democrats to two Republicans to reduce the lead limit to 100 ppm.  Reducing lead standards from 300 ppm to 100 ppm can be expressed a different way mathematically.  This is a reduction from 99.97% lead-free to 99.99% lead-free.  [ Credit to Anne Northup for the mathematics!] This will cost billions and the economic devastation was ALSO documented by the CPSC Staff in their analysis on the 100 ppm standard .  Nevertheless, the non-scientists who rule the roost at the CPSC saw nothing but health upsides in this technologically feasible but economically absurd feat.  And, as we know, injuries to children have an infinite value when you are unable to assess risk.  The numbers work out – yes, the cost may be in the billions and the reduction in incentives will cost yet more, but the savings are infinite!  Even one avoided injury is an infinite savings.  Queue the tears . . . .  What-a-deal! Ironically, last week the EPA bowed to political pressure and in an exercise of common sense, eased up on precautions against lead-in-paint in housing stock.  Hello?  Did you catch that one?  Twelve Senators signed a letter in April to protest this proposed rule as excessive and damaging to small business, and bingo, something good finally happened.  Olympia Snowe was so delighted that she put out a press release to celebrate it.  Please note that the EPA acknowledges that lead-in-paint in housing stock is the principal source of lead poisoning in the United States.  [It sure ain't toys.]  They have previously acknowledged in writing ( lucid writing, actually ) that their rules on lead need to be measured and that the economic impact of their rules must also be carefully assessed. The EPA does not attach an infinite value to injuries, even to children .  They aren’t idiots.  Draw your own conclusions. Hello, Senators, anyone home? The foundation of the “no safe level of lead” slogan has been laid by the American Academy of Pediatrics, a political organization masquerading as a professional organization.  This organization was aggressively and justifiably attacked by Anne Northup during the 100 ppm Commission meeting.  It is rare to see anyone attack these people, perhaps besides me (not a fan . . .), but do they ever deserve it.  Here is what Dr. Dana Best of the AAP told a House Subcommittee on April 7, 2011: ” Exposure to lead is amply documented to cause the loss of intellectual capacity. On average, children whose blood lead levels (BLLs) rise from 10 to 20 micrograms per deciliter (mcg/dL) lose two to three IQ points. More recent studies have shown an even greater impact on IQ of BLLs under 10 mcg/dL. Key studies reported a loss of 4 to 7 IQ points in children whose lead levels rose from 1 mcg/dL to 10 mcg/dL. These studies suggest that “low” levels of exposure – meaning BLLs less than 10 mcg/dL – cause proportionately greater harm than higher levels. . . . The medical and scientific literature are in substantial agreement that an increase of 1 mcg/dL in blood lead level is capable of causing the loss of approximately one IQ point in children whose blood lead level is under 10 mcg/dL.”  [Enphasis added] Dr. Best, well-known for her fear of children licking bicycles , has previously posited “millions” of victims of lead-in-substrate .  Despite taking such a dramatic stand, Dr. Best cannot seem to name even ONE victim or lead-in-substrate or provide a single case history demonstrating that such a victim has ever been located . . . anywhere.  Not even one.  Doesn’t matter, apparently.  When you’re right, you’re right. But is Dr. Best actually RIGHT?  Fascinatingly, when Dr. Best plugs the notion that driving lead concentrations below 10 mcg/dl will have some defined (definite) health benefits, she flies in the face of the official AAP Policy Statement on Lead Exposure in Children (recently restated on May 1, 2009).  The Policy Statement does NOT support her assertions – and she is on the committee that wrote/approved the statement.  You might say she got it wrong, or you might just say she’s a liar.  Is it really possible to be that incompetent?  Here’s what the Policy Statement says : ” Canfield et al recently extended the relationship between blood lead concentration and IQ to blood lead concentrations less than 10 g/dL. They observed a decrease in IQ of more than 7 points over the first 10 g/dL of l ifetime average blood lead concentration. . . . To confirm the adverse effects of lead on IQ at these concentrations, however, more children whose blood lead concentration has never been more than 10 mcg/dL should be studied. A reanalysis of the primary data from several of the prospective studies is underway to help resolve this issue. At the moment, however, these data have not yet been incorporated into policy, and the CDC16 and AAP24 both currently use 10 mcg/dL (Table 2) as the blood lead concentration of concern. “  [Emphasis added] The Canfield study is the study Dr. Best cites in her Congressional testimony above.  Canfield predates the restated Policy Statement (obviously, or else it wouldn’t be cited), and thus forms part of the basis of the recommendation for further study.  The AAP recommends further study to confirm its suspicions - and those studies aren’t done.  Dr. Best certainly didn’t cite them.  The AAP Policy Statement goes on to recommend: “RECOMMENDATIONS FOR GOVERNMENT:  Fund studies to confirm or refute the finding that blood lead concentrations of less than 10 mcg/dL are associated with lower IQ. The next important step in lead research is conducting of studies in which confounding by socioeconomic factors is not so strong. Funding of studies in this area needs to be given high priority, as was done in the early 1980s when the question of effects of blood lead concentrations less than 20 mcg/dL was raised.”  [Emphasis added] So the AAP acknowledges in its policy statement that the case is not exactly open-and-shut.  Dr. Best, a member of the AAP’s Committee on Environmental Health , continues to bash away on the hustings with her hyperbolic and conclusory message.  Perhaps she feels that no one will likely check her work or contest her blather, so why not? Senators?  Congressmen?  Does anyone care about the effects on business when it comes to the out-of-control CPSC?  There are now 25 days until the 100 ppm standard goes into effect retroactively .  Starting packing up, guys.  Will Congress act?  I have no idea – this is not, and never has been, a question of doing the right thing for you or me or for anyone, really.  The Dems have an agenda, a political agenda, and your problems are beneath their consideration.  I can’t say who will be the winners, but the losers are well-known by now. 

Continue Reading:
CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

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.

See original article:
CPSIA – Functional Purpose Exception Is All About Dollars Now

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.

Follow this link:
CPSIA – Futile Provision or Gimme for Big Biz?

CPSIA – Shams and the People Who Perpetrate Them

As far back as December 2009, CPSIA zealots have been promoting the notion that a “functional purpose” exemption is the centerpiece of any fix to the CPSIA.  See Henry Waxman’s first attempt at a middle-of-the-night amendment to the CPSIA.  Chairman Inez Tenenbaum chimed in in January 2010 to support the need for a functional purpose exemption:  ” I have learned through our implementation of the law, however, that there are circumstances where the exclusion of lead in certain materials or component parts is extremely problematic. Accordingly, it would be helpful for Congress to create a new exclusion to the section 101(a) lead content limits that would allow some flexibility in cases where lead is required for a functional purpose and the elimination of the lead is impracticable or impossible. “  At their insistene, this term has always been part of each draft of CPSIA amendment being discussed by the House Committee on Energy and Commerce. This same approach lives on in ECADA today.  Does it really make sense to offer an “out” for items or materials which “[require] the inclusion of lead because it is not practicable or not technologically feasible to manufacture” without violative lead levels?  How might that judgment be made?  No matter – the exemption sounds like a nice gesture by the powers-that-be, doesn’t it?  Leaves the door cracked just a bit so that companies in the children’s market can preserve hope, right?  The provision also addresses the unfortunate but predictable fact that the CPSC has been “unable” to grant even one exemption to the CPSIA in the last three years.  Zero, zip, zilch, nada, nothin’.  Advocates insist that this exemption process solves the problem of an overly-inflexible law without unnecessarily “endangering” children from dreaded lead. I wonder if you would feel differently if you knew that there are no conceivable materials or products that meet this standard.  The CPSC Staff confirmed it in writing.  The CPSC report on 100 ppm released last week confirms once and for all that the functional purpose exemption is an outright SHAM.  This darling of Rep. Henry Waxman and his minions (including Adler and Tenenbaum) will never be used to grant even one exemption, thus perpetuating the hoax that the CPSIA has exemptions.  It doesn’t, it never has and if the Dems get their way with this provision, it never will.  This is no accident. The CPSC Staff report concludes that the 100 ppm lead level is “technologically feasible” for all products and all materials.  Thus, they recommend the implementation of the new standard on time on August 14 to apply to everything.  This is critical – they conclude that every material and every product can be produced at the 100 ppm level.  This is actually a narrow judgment under very specific conditions set out in the CPSIA.  “Technologically feasible” is a term of art under the law – it does not have the ordinary English language meaning you might otherwise expect.  Of particular note, the definition does not refer to cost or economics in any fashion.  In other words, if it can be done (at any expense, regardless of how ridiculous), it must be done.  As the staff discovered, almost anything is “technologically feasible” under this definition in a low tech business like children’s products.  Of course, you might have to spend a lot of money or take a lot of economic risk.  The law is indifferent to these pedestrian concerns.  To reach this conclusion, staff also dispensed with the notion that anyone “used” lead at these trace levels. They note that intentional uses of lead were always at concentrations well above 300 ppm:   ”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.”  In other words, lead is never “included” in children’s products at these levels.  [Note to the Dem Commissioners - you can now officially apologize for your insulting remark that we manufacturers intend to "dose" children with lead if standards are even slightly loosened.] Staff also confirmed the obvious on health issues relating to these trace levels:  The contribution of products with lead levels of between 100 ppm and 300 ppm is “minimal”. In so concluding, the staff apparently rejected the testimony of the AAP’s estimable Dana Best that IQ points were being lost left and right from trace levels of lead.  So why are the Dems still insisting on a “functional purpose” exemption process?   Well, substantively, there is no rational justification for it anymore – it cannot be granted given staff’s conclusions.  That said, who is going to figure that one out?  It sounds good, makes good press for an easily-duped media, and allows Dems to adopt the stump-worthy posture of “listening” to corporate victims while still protecting children against evil companies out to poison them.  As I said, who is going to connect the dots and figure this one out?  Expect every draft of the pending CPSIA amendment to include this obsolete notion no matter the facts.  It’s good for you, remember! This is called leadership in Washington today.

View post:
CPSIA – Shams and the People Who Perpetrate Them

CPSIA – What’s the Difference?

The current debate over the need for mandatory CPSIA testing of children’s products derives from consumer advocate assertions that American consumers “want” this testing to be “assured” that products are not laden with lead.  This assertion has never been backed up with real data (other than ” push poll ” data) but strikes a nice chord with certain politicians seeking to have something nice to say on the stump. Has this very notion, that mandatory testing “assures” anxious consumers, ever been tested?  More to the point, how does mandating testing achieve anything – given that the core issue preceding the CPSIA was compliance with the rules.  In other words, prior to the CPSIA, a small number of companies making children’s products (some of them large multinationals like Mattel) did a poor job of following the rules. Some quite  notoriously ignored the rules , too.  Despite the fact that the agency had the legal power to enforce against these companies and despite the fact that these companies were not following the rules, Congress decided what we really needed were more rules.  Apparently, when companies don’t follow one set of rules, there is a big need for more rules. More rules certainly solved the problem. . . . And out of that effort grew the myth that mandated testing was absolutely necessary to keep America safe.  Of course, mandated testing for real hazards isn’t controversial.  For instance, you will not find one peep from me about testing for lead-in-paint since 2008.  That’s a real hazard, actually linked to real, actual victims.  However, the CPSIA invented a couple new standards concerning “hazards” not previously documented to have caused any actual injuries, and instituted mandated testing.  This was Congress’ solution to a perceived lack of compliance by the market. How does that work logically?  There were standards or rules previously, and they were notoriously ignored by a small number companies. That made everyone “mad” and gave people like Dick Durbin something to spout off about.  But the fact is, the rules were well-known and were nevertheless ignored.  We can certainly conclude from this experience that the existence of a rule is not assurance that the rule will actually be followed.  Compliance is independent from posted restrictions.  [Have you ever been cited for speeding?  'Nuf said.] The new rules mandated third party testing for every product.  Why?  Purportedly to make SURE that every product complied with the standards that Congress felt were being ignored.  Since we “cannot trust” companies to obey these standards, they must test.  Apaparently, we trust these companies to test even though they previously ignored the mandated standards.  And this apparently helps the CFA sleep better at night. But if a small number of companies were ignoring the old rules, what makes Congress think a small number of companies won’t ignore the NEW rules and simply lie about their testing or cut a few corners . . . until they get caught?  Good question?  I have no answer to it.  The Dems don’t like to talk about this.  In their perfect world, while the old standards were rules that might be ignored, the replacement rules (mandated testing) will CERTAINLY be universally followed.  No reason for this conclusion has ever been provided.  The lack of rationale has not deterred the Dems from clinging to this idea like grim death . . . . Not all of the new CPSIA rules work to protect consumers, but disclosure of the facts is not forthcoming if it might reflect badly on the agency or Congress.  For instance, you may recall that companies can petition to certify firewalled in-house labs to conduct testing on a “trust me” basis - this rule effectively only benefits big companies like Mattel.  Yet when Mattel recalled 11 million units of its toys last September , nothing was disclosed about the involvement of its firewalled labs in the recalls.   Were any of these items tested in0house and passed?  Let’s not forget that Mattel is largely responsible for the CPSIA because of its bad acts.  Was the firewalled lab rule a bummer for American consumers?  This is not a question welcomed by Dems. And if a small number of companies will skirt the NEW rules on madndated testing, what happens to the rest of us?  Well, our costs will certainly go through the roof and put us at a disadvantage to the scofflaws.  In other words, the more compliant you are, the worse you fare competitively.  Many of us would rather eat sand than knowingly break the law.  So our costs skyrocket, and the basic problem that Congress wanted to solve (presumably, making consumers safer, not making consumer advocates sleep easier in their naivete) is not advanced at all. Is this economically-efficient? Stupid question - to this politicos, it only matters what the CPSIA sounds like on the stump.  Is anyone safer?  Well, first tell me whether a markedly lower percentage of cheaters are present in the market. Let’s get one thing straight:  there is no way to know if you are complying with lead content standards without testing.  Whether testing is mandated or not, testing will need to take place to assess compliance with mandated levels of lead in children’s products.  Mandating compliance with the standard and mandating testing is the SAME THING – but the big difference is that in the former case, we can run our businesses and succeed or fail based on our ability to run those businesses well and competitively.  In the latter case, the government becomes our partner and nothing we do is beyond their scrutiny and “advice” (needed or not). After all, they have nothing better to do.  Catch criminals?  Please – watching over our shoulders is all they have time for. We can only hope that some Dems will wake up and do the right thing for our economy and job creation.  This three-year disaster is a metaphor for everything that’s wrong with our current government and political leadership.  I wish it were otherwise, but there is no sign that the Dems care what we have to say.  Until this storm breaks, we are doomed to slowly asphyxiate through mandated testing under the supervision of the government.

Visit link:
CPSIA – What’s the Difference?

Next Page »