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

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

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

CPSIA – CPSC Announces that 100 PPM is Technologically Feasible

The CPSC put out its report today concluding that the 100 ppm lead-in-substrate standard may come into force on August 14, 2011 because it is technologically feasible.  To quote: “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.” This applies to EVERY product and EVERY product category. You are now OFFICIALLY SCREWED and may begin throwing out inventory.  Don’t expect Congress to help you out.

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CPSIA – CPSC Announces that 100 PPM is Technologically Feasible

CPSIA – Fools in Charge

So happy to be so safe . . . and so unemployed! Today’s initial jobless claims report is yet ANOTHER report card on the dense and unthinking approach to economics implemented by Mr. Obama, Mr. Waxman and their Dem minions since the 2008 election.  A full three years after the economic cataclysm, and with a diminishing ability to blame this misfortune on someone else, the Dems stubbornly stick to their over-regulation agenda dooming Americans to safe, safe unemployment.  Can’t be too careful, you know. The CPSIA is the poster child for the Nanny State.  Mr. Obama told David Letterman on September 21, 2009 that the national problem he had to fix was that we had ” too little government, too little regulation “. Our industry has become a classic example of the cure being worse than the disease.  The story has been told again and again.  For instance, the CPSC heard (and promptly ignored) at its February 16th hearing from a representative of the bicycle industry, all the small bicycle manufacturers have left the children’s market and the big makes of bikes have sharply cut their product lines.  They also informed the CPSC that if the 100 ppm lead standard comes into force, the rest of the bikes will disappear from the market.  Quite a stimulus plan – you can imagine all the jobs this useful plan has created.  Other consequences is a general reduction in choice and availability in child-size bikes, which not only punishes families but also retailers. Do any of the numskulls running our safety apparatus have evidence that any child has EVER been poisoned by lead-in-substrate from a bike?  No, they don’t – because there is no evidence that any child was ever injured by lead-in-substrate anywhere using any product at any time.  Did you realize that one of the big problems in making a bike comply with this moronic law is that bikes use recycled steel for the frames – and the law provides that paint does not constitute a “barrier” over the steel.  The lead content of recycled steel is hard or impossible to consistently control at the levels dictated by the law.  The industry representative submitted testimony and evidence to the CPSC (consistent with evidence I have also supplied) showing that tests on the SAME PART in ten places yields ten different lead contents.  This law is killing jobs, products, companies and markets.  The evidence and data is right there for any thinking individual to read and consider.  The true believers stand in the way of rationality. Please send Mr. Waxman and Mr. Obama a thank you note for the weak, sinking economy.  They have CHOSEN this path of Nanny Statism to keep you “safe” although they really can’t demonstrate you were ever unsafe or that you needed this further protection.  If you are one of the unlucky 9.1% who can’t find a job, perhaps you will take some comfort in knowing that your Dem-led government made this choice for you.  Safe but unemployed – that’s what you need, what you want, what you got.  The best government money can buy . . . . The solution to fools in charge is to amend the CPSIA and restore sanity in safety administration.  PASS ECADA AND END THE CPSIA CHARADE!

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CPSIA – Fools in Charge

CPSIA – ECADA Mark-up DELAYED

The mark-up of the long-awaited CPSIA Amendment (ECADA) has been postponed by the House Committee on Energy and Commerce until after Memorial Day. There was purported a time conflict issue with business pending before the committee. This gives time for the two sides to work to a resolution of their differences. It being Washington, however, don’t hold your breath. The Dems continue to be under Mr. Waxman’s thumb and there is no telling what will dislodge that pressure.

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CPSIA – ECADA Mark-up DELAYED

CPSIA – Treatment of Resale Shops and Garage Sales under CPSIA Amendment

A comment was posted recemtly here questioning whether ECADA (CPSIA amendment) truly liberates the resale industry from the CPSIA. In my opinion, it does. I have also conferred with the authors of ECADA for their intentions, and they confirm that resale shops are intended to be exempted under the new language. The authors point to this language: “obtained by the seller, either directly or indirectly, from a person who obtained such children’s product for use and not for the purpose of resale”. This language should give true resale activities, whether in a shop, in your garage, even on eBay, an exemption from all the requirements of CPSIA. What they didn’t exempt is sales by liquidators. In other words, they did not intend to open a loophole in the protections (purported protections) offered to consumers under the CPSIA allowing mass liquidation of potentially violative products Otherwise, real resale activities are exempt. There are some limited exceptions in ECADA to the resale exemption notably. Thanks for posting this question. I hope this helps clear up any infusion.

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CPSIA – Treatment of Resale Shops and Garage Sales under CPSIA Amendment

CPSIA – CPSC’s Shameful Failure of Leadership

On Monday, the CPSC will decide whether or not to extend the testing and certification stay that has been in place for two years. The 16-page document which sets out the parameters of the decision does not mention risk anywhere. That’s because the law prohibits the CPSC from considering safety in its work under the CPSIA. [Ironically, the CPSC warns users that use of its www.SaferProducts.gov website is at their own risk (see par. no. 2 in the user's agreement) - and ironically, we're talking about a "dot gov" website, too!]

The CPSC explains that extension of the stay is only one of its options. It can do nothing, it can roll all the existing stays forward, or just some of them (to heck with the ATV’rs and the bike industry). Presumably, they will choose to roll all of it forward to September 14, 2011. We can all be screwed on the same day. I like the symmetry of that!

The CPSC has not lost sight of the issues. They know they haven’t finished their work. They note that two years ago on February 9. 2009 when the Commission first extended the testing stay. it was because delaying implementation of the testing requirement by a year “give[s] us the time needed to develop sound rules and requirements as well as implement outreach efforts to explain these [new] requirements of the CPSIA and their applicability.”

How time flies! That didn’t happen, so the Commission again extended the stay by another year on December 8, 2010. Why? Chairman Tenenbaum: “I voted to extend the stay on lead content testing and certification until February 10, 2011, in order to allow component testing adequate time to develop and to give our stakeholders adequate notice of new requirements.” Commissioner Robert Adler: “One of the primary rationales advanced for extending the stay is to await the effective date of the so-called 15-month rule.”

Where does the time go?? None of that ever happened. Hey, CPSC, take all the time you need!

So now the Commission is poised to kick the can down the road until September 14, 2011. Why that date? The CPSC Staff report notes that this gives the Commission time to sort out the new, lower lead standard due to be imposed on August 10, 2011. The CPSC is holding a hearing on February 14 on the feasibility of the 100 ppm standard. As Staff notes, if the Commission doesn’t determine that 100 ppm is feasible, then they will have to set a standard between 300 ppm and 100 ppm that is feasible. “Feasibility” was defined in the CPSIA, lest there should be any disagreement, to exclude ANY consideration of economics. In other words, if it’s possible at any price or under any condition, it is considered “feasible” and thus mandated by the law. I can save the CPSC some time – under that definition, it’s definitely feasible. Completely unreasonable and unnecessary but “feasible”.

The idea promoted in the Staff memo is that we will time to get used to all this if the stay lifts a month after the implementation of the new lead standard. [The concept of "learning disability" floats through my head. Have we heard this song before?] “Staff recommends that the Commission extend the stay to allow time for the Commission to determine whether it is technologically feasible to lower the amount of lead in children’s products to 100 ppm.” I guess once the Commission makes up its collective mind, the CPSC will wave a magic wand and make your business, your supply chain and your sales channel comply with the new rules in a matter of days. The fact that the rules are hazy after almost three years is no concern of theirs. Is it a concern of yours?

I love magical rules and magical plans! It must be a job requirement for Commissioners to be wizards, too.

All concerns over the “15 Month Rule” seem to have evaporated. This is presumably Robert Adler’s doing (see his statement above, which is a rant that the 15 Month Rule and the stay are separable issues). The Staff report intones: “While a Commission decision to extend the current stay of enforcement will give industry an opportunity to test and certify finished products and components according to the final rule and provide the Commission time to clarify any confusion regarding the new rule, it is not necessary for the testing rule to be complete to lift the stay as to the initial test for lead compliance.” Can’t see any problem there, can you???

The CPSC doesn’t want you to worry, however. They have apparently promulgated several documents that set out their policy and whatnot on lead, namely “Statement of Commission Enforcement Policy on Section 101 Lead Limits” (February 6, 2009) (6 pages); “Children’s Products Containing Lead: Interpretative Rule on Inaccessible Component Parts” (August 7, 2009)(32 pages); “Statement of Policy: Testing and Certification of Lead Content in Children’s Products” (October 2009)(5 pages); and “Interim Enforcement Policy on Component Testing and Certification of Children’s Products and Other Consumer Products to the August 14,2009 Lead Limits” (December 28, 2009) (4 pages). If these four documents totalling 47 pages don’t clear up everything, the CPSC is ready for you. “Manufacturers of children’s products can seek guidance for what the Commission considers reasonable and representative testing in these rules.”

You may have to wait a few years for a reply, but darn it, they’re going to answer your question. And that’s because they really CARE. We’re the government and we’re here to help!

A few more cock-ups aren’t deterring the agency. The phthalates standard is still undrafted, likewise the certification procedures for phthalate testing labs. Oopsie! Well, they’ve been busy . . . and the much fantasized-over component testing “market” has failed to materialize. Imagine that, businesses that inadvertently serve the children’s market with components or which derive a small percentage of sales from children’s products aren’t volunteering to test their items and expose themselves to the ravages of a crazy and out-of-control federal agency. Shocking!

Those of you who live in the past may recall my mentioning this very issue on November 6, 2008 (yes, 2008) when I addressed the CPSC Lead Panel. [It's a safe assumption no one was listening at the agency - opportunities for stakeholder feedback is not for listening, it's for venting.] I talked about the futility of expecting our suppliers of aluminum foil (widely used in schools in science kits) to test their products. After all, they are allowed to sell it for use with food without testing, so why should they test for me? If I asked them for a test for compliance with the CPSIA, they would certainly refuse and then ask in outrage why I was selling aluminum foil to kids anyway. As I said, who could see this coming? No one . . . .

For all the outrages that this sick situation brings to mind, NOTHING is as shameful as the CPSC’s refusal to admit that this is all administrative, bureaucratic nonsense (or use your own word for “nonsense”) that has nothing to do with SAFETY. Oh yeah, safety – isn’t that word in the name of this agency – the Consumer Product SAFETY Commission. What about safety, guys? Are you concerned about that anymore? This failure of leadership is the basic issue I have with the folks running the agency today. There’s a reason that bureaucrats are called “soul-less”.

The fact is that this administration at the CPSC (Democrats) will not stand up for what’s right – they are prepared to go down with the ship. It’s ironic that they remain so strident and so stubborn. Mr. Obama can smell change in the air and even he has called for reconsideration of the deluge of regulations. The Republicans in the House have declared war on over-regulations and the House Energy and Commerce Committee has made reform of the CPSIA the top priority of Mary Bono-Mack’s subcommittee.

As I have said again and again – this is YOUR government at work. Their shameful acts which are harming your markets and your business are destroying jobs, discouraging innovation and hurting children by impairing the activities of businesses devoted to children’s welfare. This intolerable situation will only be fixed when you MAKE it change. You can do it and you must. There is a new Congress in town and they need to hear from you. Don’t let the Democrats keep on wrecking your industry. This isn’t about safety and never was. This is politics, pure and simple.

Make them pay for their sins. Call your Congressman.

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CPSIA – CPSC’s Shameful Failure of Leadership

CPSIA – Hearing on Testing Stay and Interim Enforcement Policy

There was an important hearing yesterday at the CPSC on the testing stay as well as on the announcement of another interim enforcement policy on component and lead-in-paint testing (their third). I was able to watch about 1:40:00 of the hearing before I lost the signal. I think I got the gist of it, and wanted to give some highlights here.

First and foremost, the tone was relaxed, friendly and open. I want to compliment the Commission and CPSC Staff for making an effort to change the “feel” of their communications. I have not lost sight of the fact that substance matters . . . but so does choice of words, actions and tone. In this space, I have criticized Gib Mullan for this in the past. I would now like to publicly acknowledge Gib for taking pains to communicate his new enforcement policy in a reasonable and business-like tone. There were no threats; quite to the contrary, Gib portrayed the interim policy as flexible, reasonable and measured. I appreciate that.

The Commission and the CPSC Staff are also asking better and more sensitive questions, like whether there is enough lab capacity to do all the tests when required (for instance, there is apparently ONE lab approved to test bikes), how much lead time industry needs to adjust to the component testing rules, whether people are testing components now, and so on. Jay Howell even advised the Commission to weigh the impact on regulated industries when considering how or to what extent to lift the stay. This line of reasoning is another sign that we are being heard, and the issues confronting regulated businesses are on the radar . . . finally.

The content of the hearing was essentially technical. This lengthy discussion was all about compliance with the new requirements. The rules implementing the blessed CPSIA are ornately complex. Mullan in fact informed the Commission that his new interim enforcement policy is replete with footnotes – in other words, the micro-print is now getting smaller. NONE of the discussion involved SAFETY or any discussion of risk.

Let’s consider what that might mean. The CPSC seems obsessed with paperwork now. The two hours I watched were all about how companies might comply, whether they could comply, what forms they had to fill out, who had to perform tests and when, and so on. Of course, that is a critical subject to discuss . . . but it struck me as odd when these details droned on and on without a single mention of the purpose of the discussion – making kids safer.

It is hard to see how this byzantine structure will achieve better safety. To me, the new scheme is all about bureaucracy divorced entirely from purpose. This is the CPSC that the Commission apparently thinks Congress legislated – a bureaucratic agency, one no longer empowered to allocate its resources to prioritized safety threats, instead relegated to paper pushing. Congress has redesigned the agency to be administrative in nature as it relates to children’s products. By defining “safety” precisely in the CPSIA for the CPSC to administer, it forbade the agency from exercising judgment. Likewise, we in the business community are no longer trusted to exercise judgment or operate without governmental supervision. The Nanny State knows best, better than the business community or even the CPSC, and insists now that the CPSC stop thinking and just administrate.

With this new focus, the conversation about safety has taken a bizarre turn, in my opinion. The discussion is principally about how companies can comply. That is the standard against which the new CPSC policies seem to be evaluated. Is there enough testing capacity? Can companies afford it? Can a “home crafter” find paint that was tested by the manufacturer? [By the way, this is a so-called voluntary test - Congress in its INFINITE wisdom decided that makers of children's toys must test paint, not people who actually produce the paint, thus the CPSC has to hope and pray that paint companies will test their paint. Nice!] Which components need to be tested on a little dress? Only the buttons, yippee! No mention of safety or the purpose of this exercise. The high point occurred when both Chairman Tenenbaum and Gib Mullan volunteered that most paint is already certified to be lead-free. This was stated without irony, despite the 20 minutes tortured lecture on how to test paints to ensure compliance. Safety, what’s safety?

So are things now as simple and easy as portrayed? Robert Adler asked if any groups besides the Handmade Toy Alliance had contacted the CPSC with concerns about the lifting of the stay. Jay Howell said no. [My ego survived this minor bruising!] Putting aside the massive failure of business people and trade associations to effectively lobby on this issue, this seems to portray business people as accepting of the lifting of the stay, or at least highly unmotivated on the subject. Ergo, it’s fine to let it go.

What might a lifting of the stay mean? We’ll all have to test. Test what? Ah, that’s the rub. It’s so complicated that I can’t begin to attempt to explain it here. It took them Powerpoint slides upon slides to lay it out, and it is full of asterisks and exceptions. A taste: there still is no phthalates standard or any approved phthalate testing labs or any approved ASTM F963 testing labs. [Makes me wonder what I have been paying for all these years in our tests against F963. . . .] So testing will only be required against some rules, not all, and as new rules come into effect, you will have to figure out what additional tests are required over time. Good luck getting it right.

Sadly, the agency avoids the issue of complexity by focusing on whether it’s POSSIBLE to comply. They put up a photo of a little dress, announce with satisfaction that only the buttons need to be tested, and then assert that button companies will test those buttons to preserve their market. Okay, let’s concede that point – it’s probably true. Does that solve the problem? Not if the rules are so complicated that no one understands them. Even if you understand them, will the people you deal with understand them the same way (your customers, your consumers, consumer groups, the CPSC, Customs, 50 State AGs, the Chicago Tribune, and so on)? THIS ISSUE I have raised again and again (so when the Commission asks about complexity, I want a plug!] Very few people understand these rules so is it realistic to assume they will follow them (even if they are able to comply)?

A typical problem for people who are immersed in something complex and highly-specialized si forgetting that everyone else is not as immersed in the details as they are. It’s a big wide world out there, but the CPSC may only be dealing with people who have invested the time and energy in understanding the complex rules as they have. This may make it look like EVERYONE gets it but in fact, they don’t. The 800 lb. gorilla here is the silence of the majority. What do they know and understand? Not much. This is where the expression Keep It Simple, Stupid (The K.I.S.S. Principle) comes from. The new rules are anything but understandable AND the CPSC tries to solve each identified problem by adding more and more complexity (more rules and exceptions).

So what have we here now? We have a much more congenial and seemingly well-intentioned CPSC that finally grasps the nature of the mess with the regulated community and is trying hard to change course and create a workable solution . . . but all within the context of a law that makes no sense. So to do that, they are building an entirely unworkable sets of rules, unworkable because no one could possibly understand them. Each rule violation is the possible subject of a lawsuit by an eager plaintiff’s attorney, a newspaper investigation spurred on by a consumer group or the subject of a fine or possible jail time, or all of the above. Fear of these externalities will scare people out of the market, simply because they know they can’t control their business environment. This is real. I personally fight these fears every day – and I am someone obsessed with these rules and know them well. But not perfectly. Of course, we could do something else with our time, our resources and our people – but we don’t want to. We are very devoted to the education business and are trying to defend our right to engage in that endeavor without undue risk.

The sad fact is that the CPSC cannot create a workable solution, even with a smile on their faces and good intentions in their hearts, without addressing the deficiencies of the law. A nonsensical law cannot be fixed with implementing rules. At some point, the CPSC is going to figure this out when they see that compliance is very low, and they are overflowing with violations. The rabid and compromised consumer groups have demonstrated their utter lack of character in hunting down technical violations, like sandal insoles, and then mobilizing self-interested local politicians to enforce without even talking to the CPSC. We can certainly expect them to continue to hound innocent makers out of this market.

The details of this hearing are also interesting. The CPSC will be releasing a definition of a “children’s product”, “toy” and “childcare item”. This is a possible hint that some items or product categories may be excised from the law, perhaps including certain educational items used in schools, some kinds of apparel, ATVs and so on. The CPSC Staff has crafted some interesting solutions to testing of lead-in-paint and components, that will help lower costs significantly. They also are aware of the heavy load carried by small volume manufacturers with fixed testing costs and are trying to find an economic solution. They even acknowledge that larger companies also make low volume products, meaning that solutions need to take EVERYONE’S situation into account. All of this is good, it’s progress . . . but it’s not enough. The Commission needs to attack this law and push Congress to get it fixed. If this Commission does not want to leave behind a neutered and impotent CPSC, crippled by a hornet’s nest of ineffective rules, it needs to take on this ultimate battle.

I certainly hope they won’t duck this very important pitch.

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CPSIA – Hearing on Testing Stay and Interim Enforcement Policy