CPSIA – That’s all, Folks!

Sadly, after four years of CPSIA advocacy, it’s finally time to say farewell. The timing of my goodbye comes as we approach the third anniversary of President Bush signing the CPSIA into law (August 14, 2008). I am paroling myself for time served. This is my final blogpost. This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment ( HR 2715 ) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead “dangers” presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . . The remaining affected industries will not receive additional relief from Congress because any significant political pressure which might drive change has been neutralized. This was a Democratic strategy to make this issue go away (divide-and-conquer), and it worked. I believe the CPSIA will not be amended in the next two years in any way and may not be amended in a meaningful way again for many, many years. Read HR 2715 – that’s all you are likely to get from Congress. I have no realistic expectation of further relief from the CPSC, either. The three Democratic votes on the Commission can’t be beaten, and as I have shown in this space, they always vote as a pack with no meaningful exceptions. One “triple vote” will always beat two votes. These Dems have selective hearing or memory or just don’t give a darn about data or testimony that doesn’t validate their conclusions. The outcome of a CPSC hearing, Commission meeting or request for public comment on a CPSIA issue is about as much in doubt as the average Moscow show trial. [It just takes a little longer. . . .] The comparison to Stalin’s show trials is apt. In the 1930′s, the Soviets cynically used legal proceedings to lend the appearance of legitimacy to its “findings of fact” (generally based on coerced confessions) and its rendering of “justice”. Of course, the trials were just a sham, nothing more than an administrative procedure for implementing a political agenda. And at the CPSC? I cannot point to a single CPSIA issue on which the Democrats showed an open mind or were capable of being influenced by data or reason. Draw your own conclusions, notwithstanding Bob Adler’s self-proclaimed “agony” in always casting his votes against businesses. After naively testifying at, contributing to or analyzing and reporting on so many CPSC proceedings that I have lost count, I have totally given up on these people and consider influencing them a lost cause. It’s not worth my time to continue to attempt to work with them. So with no hope of further legislative relief for the foreseeable future and with closed minds and closed doors at the CPSC, this is not a worthwhile venture for me anymore. I cannot justify it and plan to turn my attention to other opportunities with greater promise of my adding value. I am done with the CPSIA and the CPSC. Despite the almost overwhelming urge to “sum it all up”, I don’t intend to offer any concluding wisdom. Already prone to repeat myself endlessly in this space, I have clearly stated my position on the issues and my opinions haven’t changed. You know how I feel with specificity. Given that I believe it’s all over but the tears, I can’t see what good would come from parting words on the “war”. Kind readers, you have become my friends and family. I really value your readership and your support. This blog reflects your pain and your passion, too. We have fed off each other. I want to thank you. You have sustained me. For those of you who read this blog just to see what I would say about you and who will not miss my little missives (or me), I can only say that I have been completely honest and candid in this space, working with facts and real data, consistently documenting my source materials and my analysis. I respect that you may disagree with my conclusions or opinions, but I don’t respect that you refused to take me on. For all your whining and grousing about me, generally behind closed doors, none of you ever stood up in this space to tell me where or how I was wrong. You apparently lacked the courage to engage in a true, open debate where the outcome was not predetermined in your favor. Perhaps you preferred to ignore me, my arguments and my data, hoping I would go away. In the end, you got your wish. Lucky us. So the battle ends for me, here. Perhaps someday we will see the return of common sense and respect for corporate members of our society in our safety laws. Until then, good luck to you and Godspeed. Rick

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CPSIA – That’s all, Folks!

CPSIA – The House Answers with its Own (Bipartisan) Suspension Bill

The Republicans and Democrats on the House Energy and Commerce Committee have apparently suddenly agreed on a new 29-page draft CPSIA Amendment .  This is a modification of ECADA and is probably the best that the House Republicans could extract from the Dems.  It is also part of a game of chicken between the House and Senate on how to amend the CPSIA.   The bill is sponsored by Mary Bono-Mack and G.K. Butterfield, meaning that it is a bipartisan bill.  It will proceed to the House floor for a vote tomorrow, cannot be amended and will only  pass by 2/3 majority vote.  It could be a voice “consensus” vote and will likely pass without opposition given its bipartisan character. A quick review of this amendment: a.  100 ppm lead standard is made prospective. b.  Functional Purpose exception process remains part of the amendment.  [I have written extensively on how this provision is a sham .  I haven't changed my mind.] c.  ATV exception is included.  This is death knell for any hope of later CPSIA amendments. This signals the end of the road. d.  The terms of the bike stay are made into law.  They also get a really sweet deal – as far as I can tell, they don’t have to test metal components anymore.  That provision is buried on page 19 in the book exception section.  All the better to sneak it through.  Nice for them . . . but no word as to why we must test metal components.  Too bad for us, I guess. . . . e.  Resale goods exception is included. f.  Testing rules are now based on “representative” samples, not “random” samples.  The rest of the provision is based on the Eshoo amendment requiring further “inquiry” on reducing costs of third party testing.  The Eshoo model still requires “assuring compliance” with the lead standards.  This is the big dollar issue, as everyone knows, and is the one issue that touches everyone, all the ordinary businesses.  This provision is a punt and offers little prospect for future relief.  This provision is a huge time-waster and will never result in anything useful because the standard for relief is in the context of “assuring compliance”.  It also calls for more business “instruction” like that found in the current draft of the “15 Month Rule”.  [The status of the 15 Month Rule is not apparently addressed and may still emerge from the agency to bite us later this year.]  The authors of the 15 Month Rule draft rule know exactly zippo about the real world and if we are ever supposed to follow their sage dictates, the losses will mount . . . fast.  In any event, this Commission will never feel comfortable with anything less than prophylactic assurance, injury statistics be damned.  I hate this provision because I don’t trust the CPSC Commission under current leadership. Notably, this provision does not stay compliance with the testing rules due to go off stay at the end of the year pending resolution of the Eshoo inquiry.  Congress has not dictated that the stay be extended, and believe me, it won’t be.  The reasoning behind this provision escapes me. g.  Small batch manufacturers receive minimal relief (” reasonable methods to assure compliance “).  The real sham part of this is the tantalizing prospect that the CPSC will actually deliver on this demand for testing relief.  Call me a cynic, but they have received testimony out the wazoo for three years on this topic, and have yet to find a way to “help” the remaining micro-businesses in the market.  And the reason we should believe they will make a afety testing discovery in the future?  Your guess is as good as mine.  They won’t. Small batch manufacturers have to register before benefiting from this wonderful “relief”.  The registration requirement is deeply offensive to me and really shames Congress and the agency.  What did these little companies do to deserve this treatment?  What makes the House (Dems) think this is a good idea?  It smacks of 1984 and is utterly detached from any rational assessment of risk.  Do small batch manufacturers have an exceptionally bad safety track record meriting this kind of surveillance?  Of course not.  That they would accept or even support this treatment is shocking to me.  In any event, no relief is offered to any company with gross revenues in excess of $1,000,000, so it’s really just for the benefit of the really micro micro-businesses.  It won’t benefit me even for small unit volume items we currently sell – our top line makes us ineligible for any possible relief.  Happy registering, little guys! h.  Ordinary books and printed materials get a pass. i.  Durable Nursery Products standards provision (not reviewed). j.  Phthalates standard applied only to “plasticized” components and not to inaccessible components.  Guess that means no more testing of paper, wood and metal. k.  Authority to exclude items from tracking labels provision is given to the CPSC based on practicability.  This is promising although the Dem hanging judges on the Commission have yet to make a single decision that saved a business a dollar for any reason. Don’t hold your breath. l.   Database rules are tweaked in a meaningless way consistent with the Markey proposal on database.  NO relief offered. THERE IS NO RELIEF GIVEN TO EDUCATIONAL MATERIALS.  Thanks, Congress.  I am glad my kids are out of elementary school by now. That’s it, more or less.  Hope you like it, that’s all you’re going to get.

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CPSIA – The House Answers with its Own (Bipartisan) Suspension Bill

CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

According to my information, the Pryor Amendment , as amended to address the needs of resale goods stores , will be hotlined in the Senate this evening (passed by unanimous consent).  The bill then proceeds back to the House which remains a “house-divided”.  Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot.  Who will win the day?  If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately – I am not as clever as some of the other cynical observers of this mess).  If the ATV’rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers.  There are no winners. It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what’s at stake.  We are all depending on a sensible outcome of a quick Conference Committee.  The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny. The next few days will seal our fates, once and for all. More to say later this evening.

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CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

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 – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

The sparks were certainly flying at the July 20th Commission meeting last week.  With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting.  I was amply rewarded with a display of regulatory arrogance you rarely see on tape – Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order.  I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman. The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia’s claims that CPSC Staff found that manufacturers intentionally add lead to children’s products (47:31).  While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was “debated”.  [Bickered over is more like it.]  Namely, whether the CPSC has to follow President Obama’s Executive Order  to preform cost-benefit analyses on regulations under the CPSIA.  I have previously addressed this issue in blogposts on July 12 , July 14 ,  July 20  and July 21 . After the usual pointless sparring over the ability of the CPSC to do the right thing (don’t worry, Bob Adler “agonized” over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems supporting of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA. Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah.  The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama’s little note. Chairman Tenenbaum laid down the law at 1:15 in the tape: “I’d like to comment on the Executive Order [which says] ‘Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.’  Congress was very clear. They wanted the lead limits at 600 then 300 then 100.   We have looked at this from all angles.  And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement.  And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children’s products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered .”   [Emphasis added] Take that, Obama!  Your EO is fictional!  Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President.  She pins this on the standards established under the CPSIA.  Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings.  She also glosses over so many other rulemakings which are remote from the standards.  Details, details. . . . The Obama order instructs the CPSC to follow Executive Order 13563 to the extent “permitted” by law.  The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it.  The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of  the Poison Prevention Packaging Act of 1970.  Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere.  The Dem Commissioners didn’t address this point during the July 20th meeting. EO 13563  in relevant part says:  “. . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . . “  The President’s new EO applies this verbiage to the CPSC.  Tenenbaum just blows it off entirely.  The President must be below Henry Waxman.  Ms. T gets pretty snippy at points.  ” There are people on this Commission that want to contort and use this Executive Order.  I have spoken to attorneys at the White House; I know I stand on firm legal ground.  And so please don’t leave this meeting thinking that we expected to do cost-benefit analysis or this Executive Order mandates that we do that.  It does not !” Tenenbaum’s argument – I am judge, I am jury, don’t question me.  Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency: ” It’s also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA].  The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.]  They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy .” Continuing the debate (argument), Bob Adler had much to say as usual.  As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body.  [See " Is that a promise, Bob? "]  At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here: ” My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that’s correct.  But let’s be clear:  it effectively in all major respects precludes us from doing that. When they’ve given us 42 deadlines to achieve in just a very short period of time, when they’ve specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there’s a very clear message from Congress there.  Congress in effect was saying ‘We’ve done the cost-benefit analysis.  Now we want you to implement the law .” So, the reason not to obey the President – Congress couldn’t have meant us to do a cost-benefit analysis because otherwise they wouldn’t have given us so much darned work to do.  In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already “completed” a cost-benefit analysis.  Mr. Adler does not attempt to prove his point, his assertion being enough apparently.  I am always impressed by the self-justifications of regulators who claim to be able to read the “mind” of an inanimate body like Congress.  In law school, they taught us to follow rules of legislative interpretation.  That’s so Old School!  Nowadays you only have to attribute a “thought” to Congress to “prove” legislative intent. Of course, just a few days ago , Bob asserted something rather different: ” It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis .”  [Emphasis added] At that time, Adler seemed to believe that the words “to the extent permitted by law” require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses.  Hmmm.  Does anyone think that legal analysis is just a bit “loose”? Ah, but Bob wasn’t done by any means.  He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter.  No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable.  Details, details. . . . ” One of the things that I this is intriguing . . . is where they say ’Now when you’re doing a cost-benefit analysis, let’s address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.’ How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby’s life.” So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn’t work.  Congress must not have meant us to waste our time . . . .   He later challenged anyone in the room to tell him what the “quantifiable benefits” of two lost IQ points are.  Too bad the EPA wasn’t there. They do that regularly.  Here is a quote from AOL Energy referring to this kind of economic analysis:  “The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using ‘long-standing, peer-reviewed’ practices on the effect of regulations, [EPA] officials said.”  Again, details, details . . . . Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin.  Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children.  As our apparent judge, jury and overseer, one must surmise that he thinks it’s his right to make this judgment, notwithstanding an Executive Order. Oddly, Big Bob does concede that the picture is not quite so clear.  Hmmm. ” I’m not arguing that because we’ve got a lot of work that Congress therefore said don’t do cost-benefit analysis.   [ Editor's Note :  Bob, in fact, that IS what you argued.]   That isn’t all they said.  They said ‘You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate.  In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to .”  Adler goes on to retract this assertion, and return to his claim that Congress DIDN’T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law.  His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one. Adler then launches into his final jab at blowing off the Order: ” I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way.  I think we have taken the approach in an extremely thoughtful way.  But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don’t think that analysis gets us very far .” So Adler wraps up with his “over my dead body” argument – he just doesn’t want to do it. Take that, Obama! Nancy Nord grimly assessed the sad spectacle we witnessed: ” This is an important issue.  And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn’t.  Whether that’s a good idea or a bad idea, we can continue to debate.  But Congress did not say not to do it – Majority did.  And I think that’s unfortunate and I think our rules have suffered because of  that. ” I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it’s at 1:24. With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO.  Nice try, Mr. President, but you’ve met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution.  There’s not much left to hope for with this crew in charge.  Maybe the CPSC will be on the national debt chopping block.  Don’t hold your breath. . . .

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CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

CPSIA – Not to State the Obvious, but the Debt Ceiling Fiasco Imperils ECADA

Among the many reasons for despondency at this time of national gridlock is that the Washington national debt standoff likely signifies the demise of ECADA (the pending CPSIA Amendment).  A week from this Friday is the last work day before Congress’ all-important summer recess.  [As you know, Congress needs its R&R.]  The CPSIA will remain unamended unless a bill moves through Congress by then.  You don’t need to be a seasoned Washington vet to see that Congress ground to a halt while the national debt food fight is going on.  With the likely pressure of world market volatility, U.S. credit rating downgrades and other homegrown massive financial calamities, and you have a recipe for Congress’ attention being somewhere besides the CPSIA.  With the President and his minions playing the market manipulation card (Daley and Geithner were dispatched to the Sunday talk shows to spread their gloomy prediction of market cracks on Monday), the ability of Congress to focus on its actual work is just about nil now.  Mine certainly is, too. It will be the ultimate irony if the debate over the size of our government is what wins day for an engorged CPSC focusing on fake health crises as directed by the CPSIA.  Victory to Rachel Weintraub, Henry Waxman and Bob Adler all because our national leaders can’t decide how much to spend beyond our national means?  Three years of fighting may end up on the rocks, simply because of bad timing. If ECADA does not become law before August 14, the 100 ppm lead standard will be retroactive, the THIRD such scr*wing imposed on us by the soulless bureaucrats at the CPSC since August 2008.  Oh yes, I know, they have no choice.  Woe is me, they feel so badly about it, but what can you do??? Tell that to our employees, our suppliers, our dealers and the millions of families, schools and teachers who depend on our company and its products.  Hey Dems, why not finish the job with a big tax increase, too?!  Stay tuned.

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CPSIA – Not to State the Obvious, but the Debt Ceiling Fiasco Imperils ECADA

CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress’ inaction on the CPSIA.  Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee). Thank you! “Hi.  At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far. But we still need your help. Urgently! A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules. This amendment ( H.R. 1939 ) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business. This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action. Help us bring commonsense back to our product safety rules. Time for action is now. Your voice matters. Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress. Click here to make your voice heard and help get action on this important issue. Thanks. Steve Lamar Executive Vice President American Apparel and Footwear Association Please see below some important resources: – Copy of NAM ad that appeared in the Hill Newspaper urging action – Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment – Editorial from The Wall Street Journal – Read ECADA ”

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CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

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 .

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

CPSIA – Sound Bite Justice

Today the CPSC Commission voted 3-2 to impose the 100 ppm lead standard retroactively as of August 14, 2011 , having concluded that there are no materials or products that the CPSC staff could identify for which this level of lead is not “technologically feasible”.  This vote has been long predicted and anticipated.  The entire meeting was conducted in a thoroughly partisan manner, with sharp dividing lines between Dems and Republicans.  What-a-shock.  I experienced a range of emotions watching this two-hour hearing.  None of them were surprise.  I experienced some boredom, as the debate was so predictable and so repetitive of past meetings.  Many self-serving remarks by the Dem zealots.  I experienced a mild sense of hopelessness, as it is clear that the Dems are unreachable. I experienced rising exasperation over their refusal to listen or consider data – unless it agrees with pre-existing agendas and alliances.  It is hard to not feel you are appearing before the Hanging Judge.  I won’t attempt to analyze what was really going on today, you already know it.  The posturing was sickening among the Dems.  That said, you deserve some flavor of the event.  Here are a few tidbits for your amusement or annoyance: She’s just the nicest! Inez Tenenbaum explained that the 100 ppm standard would have gone into effect if the CPSC had not chosen to decide the question of “technological feasibility”.  As she sees it, ” this [decision] is a courtesy to people .” What, Boeing isn’t covered by the CPSIA?! After vigorously stating her case on the cost-benefit analysis of this rule and condemning the possible adoption of this rule as a violation of the recent Executive Order applicable to the CPSC, Ms. Nord restates the obvious. Unfortunately, the power of her logic was lost on at least three of her colleagues by my estimate:  ” Just because a material is out there for a jet plane, doesn’t mean that it’s appropriate for a toy plane .”  No! Is that a promise, Bob? Defending caveman logic to his followers, Bob Adler rebuffed the Executive Order argument and the order of the person who appointed him to his post:  ” This is not a new Executive Order . . . . [They] said could you at least do a plan for economic analysis and I do think that we are planning on doing that and we have done that in the past. It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis. If you look at the data . . . nine [CPSC] standards in 30 years using those procedures. I am not against cost-benefit analysis; I am definitely against the kind of cost-benefit analysis that’s contained in our statute. Section 101 does not EXPLICITLY bar a cost-benefit analysis but it effectively does so .”  [Emphasis added] I find this rather interesting as he challenged me on February 16 with the question of whether I recommended that he violate the law.  It was a tense moment – he was trying to corner me into telling him to spurn his Congressional mandate.  Nevertheless, it is appears that Bob can pick and choose which laws bind him and which do not.  That shouldn’t surprise anyone who went to law school.  Law school profs always know the right answer, even if it makes no sense to anyone but themselves.  They care sooooo much, they really feel our pain . . . . Ms. Tenenbaum set the records straight on the purity of her good intentions:  ” I so believe that we have been diligent in looking at the marketplace and surveying materials. We have admitted it would be an extra cost to some companies and been out front. But, again, ‘technological feasibility’ the definition is not ‘economic feasibility’. Not that I don’t sympathize with small business owners and that is why we have worked on other rules [like the component part rule]. We are trying to be as flexible as possible and work with small businesses and the industry to accomplish what Congress mandated for us to do .” I know it’s just a detail but in the last three years, what exactly has this “effort” achieved?  Oh yeah, I forgot about Neal Cohen – we can cry on his shoulder!  In fact, Ms. T. closed the event with the offer that Cohen has his box of Kleenex ready for you whenever you need him. Somebody’s getting the shaft, let the record reflect. Nancy Nord noticed something the Dems must have missed:  ” You know, one of the things that is of concern to me is that the penultimate recommendation from the staff here is that ‘complying materials APPEAR to be commercially available for most products.’ Listen to the hedge words there in the staff recommendation. They ‘appear to be’? Well, let’s find out for sure and let’s do it on a product category basis. ‘Most products’? Well, what about the ones that can’t meet it? That’s our responsibility as [regulators], colleagues .” Hmmm.  Professor Adler grades the final exam. Bob Adler was in top form today.  The “over my dead body” remark was just an appetizer.  He went on to inform us that comment letters which arrive late are not operative, especially if they did not properly read his mind on what he wanted to see: ” I do want to also comment on some of the last minute submissions we got from our friends in industry, and I always appreciate those comments and I do consider a lot of these folks to be good friends both of this agency and of mine. But it’s really hard to take it seriously when it comes in at the penultimate or ultimate moment when you’ve had a lot of time to get that kind of information to us . . . . [Recites all the opportunities to comment prior to this hearing.] All of that, if you want to make a point, would have been very helpful especially we’d had the kind of hard quantitative data that SGS and the Hong Kong-American Chamber of Commerce gave us. And I’m going to just make a brief comment = you’re free to do it, it’s not helpful to tell us we’ve read the law incorrectly. I think we’ve read it correctly. I don’t think it’s helpful just to tell us that it’s going to be difficult and more expensive to get compliant materials. I think we know that, I think the staff told us that. What we needed was more hard data demonstrating the points that you’re making because what we really got were a lot of conclusory assertions when what we really needed was some hard quantitative data. And all the hard quantitative data I’ve seen really points in the opposite direction. So I really appreciate all the last minute comments. Too little, too late as far as I am concerned .”  [Emphasis added] This lecture was repeated three times by Mr. Adler unprompted, for reasons best understood by him.  Interestingly, Mr. Adler seems to have forgotten that I presented hard quantitative data on this same topic in my timely-filed 100 ppm comment letter and in my Febuary 16 testimony.  Of course, it did not agree with the SGS or HKACC submissions.  I guess since he found their data useful, mine must have been wrong.  According to his remarks today, I didn’t even submit it, which is rather surprising since it was discussed extensively in the Staff report :  “Learning Resources reported 98.3 percent compliance with the 100 ppm standard for its products, but found this compliance level to be unacceptable because of the difficulty in identifying where the noncomplying components would turn up.” Bob Adler flips his flop. You would think with three repetitions of his condescending lecture on late submissions, that Professor Adler must mean it.  Can’t get a good grade in his class with that behavior, right?  Well, maybe not for the teacher’s pet:  ” One very quick point, well two. One is that the [AAP] study you shared with us, and again thank you so much Commissioner Northup, is a 2005 study. We got a letter last night from the American Academy of Pediatrics reiterating their support for moving down to these levels. . . . ” Bob Adler wings it. . . . In the face of a vigorous attack by a well-prepared Anne Northup on the shoddy scientific data presented by the AAP supporting the “no safe level of lead” assertion, Mr. Adler lapses into hyperbole and fantastic assertions incapable of validation: “It isn’t just the [AAP]. A lot of what they’ve done has been drawn from research done around the world on the effects of lead. I’ll bet there must be ten thousand, I know there are thousands and thousands of studies on lead, all of which point to the very severe toxic effects associated with [these products] .” Mother knows best! In a truly shocking display of personal preference substituting for appropriate policy and regulation, Ms. Tenenbaum decided that we don’t need recycled materials in children’s products because who would want them anyway?  ” The scientific community has shown us over and over again that lead is cumulative and so I think there are safety benefits in reducing the exposure to lead and the accumulation of lead in the body. Also, I don’t know that parents are interested in having products that their children use, particularly infants and young children, that are mouthable being made of recycled materials, recycled materials that may contain a higher level of lead. Recycled plastic – do you want your child to have a recycled pacifier? Well, that is why Congress has set these strict limits.” [Full disclosure, we recently won a toy industry award for environmentally-friendly toys made of recycled plastic.  No one has objected to them to my knowledge, and believe me, they are wonderfully and thoroughly tested for compliance.] And the support for Ms. T’s bald assertion is . . . what?  Did she find something in the legislative record?  Is there some verbiage in the law?  I have not heard this previously from anyone at the CPSC but notably I have repeatedly noted that the CPSIA will be the death of recycled materials in children’s products .  Still, Ms. T’s logic is irresistible – she is there to figure these things out for us and certainly knows best.  After all, she loves children, probably much more than any of us. She cares.  What else do you need to know?  With her power to impose policy, her preferences will become our marketplace.  Brave New World, courtesy of the Nanny Staters. Tenenbaum says you can ALWAYS file for an exemption! Ms. T. reminded the audience at least four times that if they wanted to, they could ALWAYS file for an exemption if they can prove their product or material can’t be made to the new standard subject to the non-economic technological feasibility test.  The door is always open . . . . This promise seems to be in denial of reality.  Let’s start with the fact that the CPSC staff studied this question for more than a year and concluded, as summarized in a 59-page tome, that EVERYTHING is technologically feasible.  That seems to put us all against the wall when it comes to exemption petitions.  And then there’s the fact that for three years, nobody has been able to get an exemption for anything, regardless of how obvious the case, unthreatening the use or how well-funded the supplicant. Notes Ms. Northup:  ” I just think we should warn the public that it is unlikely that any petition would be accepted and that that is, first of all, for anybody to file it would be far more costly than to just pay for the materials and increase the cost of their products in all likelihood, not to mention the delay they would have in us in actually addressing their petition .” And Nancy Nord speculates that petitions for relief are highly unlikely in any event:  ” I will just tell you, in my conversations with folks out there, there is a feeling that ‘why bother?’ There is a comment weariness, there is a sense that it isn’t worth the candle, and so I guess if you’re not a company that’s either been put out of business or not making the product, you don’t have the money to hire the lawyer to file the petition. So I think that’s just an empty option for most people .” Who do you believe?  Hey, as Ms. T says, the door’s always open even if it’s the door to oblivion. The outcome of the decision to implement the 100 ppm standard was foretold but let’s not forget something important – this is a retroactive rule as implemented today .  Unless Congress acts, we are all in the soup.  Even worse than before.  Call your Congressman and don’t stop until they take action.  Mr. Obama must sign something by August 14 or all hell breaks out . . . again.

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CPSIA – Sound Bite Justice

CPSIA – Fait Accompli

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

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CPSIA – Fait Accompli

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