CPSIA – Amazon to Kids’ Hat Companies: Prove You’re Lead-free by August 7th

Hope your kids don’t need hats.  Perhaps you are aware that absent Congressional action, the new 100 ppm lead standard will be imposed retroactively by August 14th.  The five Commissioners have requested that this provision be applied prospectively (they made this request in January 2010) yet Congress has done nothing about it. As a matter of fact, now that you mention it, they haven’t done anything about any of the problems under the CPSIA.  I guess as Rachel Weintraub suggests, more “discussion” is needed. Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children’s hats.  Anyone out there ever heard of lead poisoning from a hat?  Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the “safety” of their hats. So how do you expect hat companies to respond to this kind of request?  Do you think they can afford the tests?  To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on?  I can think of several likely replies.  First, cut the product line.  Don’t waste money on testing so many hats.  Second, simplify the product line.  Remember cute hats with lots of colors?  Thing of the past.  Better snap ‘em up while you can.  Monochrome is the new rainbow.  Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart’s content.  No one will care. Oh, I know, natural fibers and certain fabrics don’t need to be tested.  Yes, but my customers don’t care much for these niceties.  They want a piece of paper for the files.  If you think we test only when we have to, you are wrong.  That’s the bare minimum.  Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law.  This hat company was pretty depressed by the news delivered by Amazon.  Get used to it. Or go pick up some hats right now.  If you have little kids, buy them in several sizes while you’re at it.  No time like the present. . . . Amazon Letter (excerpts): Dear Amazon Vendor: The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children. New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products. Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at www.cpsc.gov. Specific provisions of the Act discussed in this letter are for ease of reference only. Actions Required: What you need to do By July 31, 2011, each vendor must confirm and report to Amazon.com that all of your children’s products (i) in Amazon.com’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to Amazon.com, will comply with applicable limits set forth in Column I. Limit:  Lead 100 ppm Effective Date of Limit per the Act:  August 14, 2011 Products shipped to Amazon must comply by:  July 31, 2011 Noncompliant products are subject to return to Vendor:  August 7, 2011 Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011. Vendors are responsible for determining whether the products they sell on Amazon.com are compliant with the new lead requirements.

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CPSIA – Amazon to Kids’ Hat Companies: Prove You’re Lead-free by August 7th

CPSIA – Appropriate Recall Points Out The Real Problem

795 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 15 days left until Election Day.

The CPSC today announced a recall of a product called “Bathtub Subs”. The battery-operated bathtub submarine toy is “yellow, has a smiling face, turquoise windows, an orange propeller and an orange periscope that turns the toy on and off. The intake valve has a water pump that sucks in water to propel the submarine.” The cringe-worthy problem: “The intake valve on the bottom of the submarine toy can suck up loose skin, posing laceration hazard to children. . . . CPSC and the company are aware of 19 incidents of lacerations to boys’ genital area. One of the incidents required medical attention.”

This product has a real safety issue, and it has nothing to do with lead. We can understand the problem because the issues can be described accurately and the injuries can be measured. This is how we can measure the right response. The product was aimed at very young children (toddlers) in bath-time play. It seems foreseeable that the toy might rest against “sensitive” areas. The product was not apparently designed with this risk in mind. Please contrast your ability to assess the issue here with, say, rocks, fossils, pens, ATVs, bicycles, musical instruments, children’s underwear, shoes, books and other products that have famously run afoul of the CPSIA’s restrictions on lead without demonstrating any apparent safety issues.

As a toy maker, I hate when this kind of problem happens. It makes all of us look bad, even we had nothing to do with the issue. We all get blamed for problems caused by other companies. This is how CPSIA’s are born.

There were 19 incidents in the last year with this product. Makes you wonder what it takes to get someone to do something about the issue. Do you think this was a “mystery”? Here’s what you find on the Amazon.com review page today (before it gets taken down):

“Dangerous toy, May 25, 2010
By Tyler Warren

I bought this toy for my 12 month old son. He was playing with it in the bath one evening and put it down in his lap. It sucked up some skin on his penis and cut it. I called and put in a complaint to Munchkin and I am very disappointed that this toy is still on the market a month later. This toy is dangerous and should not be given to children.

Comment Initial post: June 15, 2010 8:37 PM PDT

Julie Everett says:

The same thing happened to my 19 month old son tonight. I reported it to the CPSP [sic]. You should do the same since the company didn’t take you seriously. My son has injuries to his penis and testicles. Here is the link if you like. https://www.cpsc.gov/cgibin/incident.aspx

Very Dangerous, June 15, 2010
By Julie Everett (Florida)

My son loves this toy. Tonight he was playing with it in the tub and also set it in his lap and it sucked some of the skin from his penis and his testicles and cut both of them. I will be filing a complaint with the company as well. Do not buy this for your child!

I agree it is a dangerous toy…, August 8, 2010
By Pamela Beightol (Falconer, NY United States)

I had the same thing happen to my 15 month old when he was playing with the toy. His skin from his penis got cut after about 3 minutes play with the toy. I would not let my 5 year old play with it either.

I would have given it no stars if possible, August 26, 2010
By Kendall Tupker

The same thing happened to my 13 month old son. We had just given him this toy to play with in the bathtub and within a few minutes he was screaming in pain. While he was holding it in the water near his lap it caught his foreskin and cut him. Needless to say the sub ended up in the garbage and I made a complaint to the company. Never, ever buy this toy.”

This was publicly available on Amazon for months before either the company or the agency did anything about it. By all appearances, neither did Amazon.

Let’s face it, this item is not exactly a dire threat to our way of life. That being said, this kind of insensitivity to consumer needs and expectations is how unjust laws like the CPSIA get written, passed and revered. It is also raw, red meat for a headline-mad CPSC anxious to justify its existence and its budget. Do I hear massive penalties?! Manufacturers have to think ahead and consider whether they want stories like this told about them. This is a compliance issue, a duty of care issue. It is NOT an issue that requires legislation. Unfortunately, nothing is routine at our regulator these days. Who knows what the implications will be flowing from this recall.

One last thought: among the many reasons that I truly HATE the CPSIA, it is the rising spectrum of a liability feeding frenzy over children’s product safety. This can ruin what we are doing, and in any event, I don’t relish planning my business around protecting myself from ravaging trial attorneys. Paranoid? Well, I received notice of this recall at 5:40 PM CST and in the next 15 minutes found these two sites devoted to this very recall:

Lawsuit Settlement Funding and Lawyers-and-Settlements.com. The latter website invites: “If your child has suffered an injury related to the use of this product, please click the link below and your complaint will be sent to a lawyer who may evaluate your claim at no cost or obligation.” Remember, this was up within 15 minutes of the announcement of the recall.

Think of the chaos that will follow the much-anticipated public database. We can only pray that a Republican Congress will de-fund the database before it gets off the ground. Or else we’ll all be in the ground . . . .

Vote on November 2nd. It’s your duty!

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CPSIA – Appropriate Recall Points Out The Real Problem

CPSIA – ICPHSO Update – Remarks of Gib Mullan, Head of CPSC Enforcement

Gib Mullan’s remarks on enforcement:

• Import surveillance staff is now up to 18 people.
• Using Commercial Targeting Analysis Center (CTAC) to stop things at the port. Can see what’s coming in before it arrives.
• Is working with the International Trade Commission, the folks responsible for HTS Codes (Harmonized Tariff Schedule). The CPSC is trying to “piggyback” on HTS code to identify the products of interest to the agency. Making “significant headway”.
• Imports samples rising at a rapid rate. Only about half of the samples fail.
• Use of XRF is one of the agency’s “secrets for success”. Will use for cadmium, too. Only one-tenth of items scanned are being sampled. This implies that less than 5% of items scanned fail. Most items are not inspected, which is just a numbers game.
• Field Investigation Division is back to a “growth mode”, in 55 locations with 89 investigators. Expanding to Internet surveillance. They have seen a surge in eBay sales of recalled items after recalls are announced. Interesting!
• Created email address for the public to report sales of recalled products. Now everyone can be on a cop on the beat, how wonderful. Hope I can still trust my kids. . . .
• Retailer reports are rising. Participants in this program include WalMart, Sears, Amazon and others. 20,000 reports a year. Also reports by email and on the hot line 800 number are jumping. The total number of reports is cresting at 50,000 per year. All of this is BEFORE the public database. [Soon a system will be fully constructed that will make doing business in the U.S. children's product industry impossible, something to look forward to (this is my thought, not Gib's remarks).]
• Field “blitzes” are increasing. Examples are pool and spas, drywall, drawstrings, cribs. This is a new activity although blitzes at the port are old hat, in my experience.
• Defect Investigations Division has 19 compliance officers.
• Recalls in 2009 DECLINED from 563 to 466. Number of units went up to an all-time high, 229 million units. Lots of big recalls in 2009. Should we feel safer now? I wonder . . . . Gib himself questions whether this is “good or bad”.
• Fast Track recalls are pretty steady. “Fast tracks” are recalls initiated by companies and brought to the CPSC’s attention by the company itself. CPSC-initiated recalls are steady in the 50-60 range. Cases stemming from regulatory violations declined from 167 to 47.
• Early warning system relating to cribs, bassinets and play yards is resulting in faster recalls. [No info on the availability of cribs and so on was provided, or the cost of those goods now.]
• Joint recalls with Canada was done first on February 19, 2009 (that fills in a hole!). Total of 13 joint recalls in 2009 and 16 in 2010 to date. Expects more joint recalls in the future, broadening to other countries. Gib thinks this makes it simpler for companies going through recalls. Again, not sure how I feel about this but am not opposed in principle.
• Regulatory Enforcement Division has 18 Compliance Officers now. This includes Chemical, Children’s, Flammability and Mechanical hazards. Letters of Advice (“LOAs”) fell a bit in 2009 by perhaps 12%. Only a small percentage result in recalls. In 2009, found 338 lead content violations and 118 lead in paint violations, mainly at the port. Recalls have come down considerably, almost to zero. Stops at the port are higher than that, but don’t result in recalls necessarily. Those are declining, too.
• Compliance Division now has 14 of its own attorneys
• Civil penalties rose a lot in 2009. Gib specifically noted that he was not being “gleeful” about penalties but simply noting that penalties are a more serious risk now. I am okay with this tone, it is common sense. Penalties totalled nearly $9 million. I just hope that penalties moderate and become more purposeful, rather than political.
• Made a STRONG point about fraudulent testing. The CPSC caught fraud in lighter testing and it led to criminal charges. They are working on another case now. This is great news as far as I am concerned. Cheating is a REAL problem (an actual problem, not an imaginary problem). The CPSC should find the bad guys and punish them. The resources of the agency are well-served if focused on removing these unscrupulous people from the market.
• The agency is forging new alliances with the State AGs. They have a monthly conference call with this group. This is the CPSC’s proactive effort to reign in the State AGs by making them part of the process. If this works, great. Again, we need to watch out for the lowest common denominator risk.
• Working with China on implementing “best practices”. Getting better, faster. China recalls went DOWN in 2009 and he anticipates improved safety in Chinese products. This, too, is a good use of agency resources. If we really are getting better, faster, Gib and his team should take a bow. Safety benefits everyone. Next up, consideration of the relationship between these initiatives and cost. Safety is an inherently economic subject. We need recognition of this basic fact.

I have omitted all reference to drywall here. This is a one-of-a-kind problem that seems unrelated to the CPSIA as far as I can tell. Likewise, I have not attempted to summarize the issues relating to ATVs and other tangential product/safety issues brought up by Gib. [He did say that repairs to the Rhino seem to be working well, btw.]

To Gib’s credit, I found his presentation quite balanced with no particular effort to frighten. I appreciate the choice of tone for what could be a quite intimidating topic.

Gib’s presentation was one of the few I can recall in the last two years on the topic of enforcement that did not materially raise my blood pressure or make me think dark thoughts about the future. Let’s hope that the CPSC can build on this base to restore trust among the business community. Safety and fear mongering is an unholy alliance. The CPSC needs the cooperation and trust of the manufacturing base.

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CPSIA – ICPHSO Update – Remarks of Gib Mullan, Head of CPSC Enforcement