CPSIA – Am I a Tea Partier?

I have heard the comment that I am too harsh on the Democrats and risk marginalizing myself as some sort of Right Wing Nutjob, a Tea Party extremist.

Is this a fair criticism?

My POV is that this criticism fails to take into account my experiences in this business tragedy and does not consider that my views and my anger did not come from the sky – they were built, block by block, by Congressional Democrats and by the leadership at the CPSC.

I won’t defend my being perpetually angry at the agency or Congress for their defiant stance of indifference. [Some Dems cloak their indifference in words of sympathy, never matched by actions consistent with their purported tears. I follow actions, not words, and prefer to ignore insincere blubberings unless something concrete is offered. It never is.] I have been working on this project for three years now, and actively working to get the CPSIA fixed for almost two years. That’s a punishing death march, guys, particularly since almost everything I have written or pushed for has been disregarded or completely ignored. It seems improbable that I have been wrong about everything without exception for two long years – even a blind squirrel finds the occasional acorn. Hence the anger and the mounting frustration.

Of course, there are other sources of anger and frustration. The process of implementing this flawed law by the CPSC has destroyed so much good in the process. What we have left is much less protective of public health or well-being. The constant media pandering and the relentless positioning of businesses and business people as evil societal elements that must be controlled is, frankly, embittering. Under the pressure of this relentless drumbeat, it is hard to not feel unprotected and in great danger. We have no defenders and are on notice that we are prime suspects.

No defense, but please someone, tell me, what am I supposed to do now? Grin and bear it? Give in and pretend everything’s okay? If you think either option is realistic, you really don’t understand my situation or my motivation. These aren’t realistic options. I am fighting off doomsday – grin-and-bear-it doesn’t work when the Grim Reaper is coming your way. And there are no days off.

So if I can’t go along to get along and if the CPSC and Congress have proven beyond a shadow of a doubt that they have made up their mind and have no interest in me or my problems, what options are left to me? The process of advocacy that I have been practicing and that I have been financing hasn’t produced enough results – we are still in the soup. If I can’t give up and if what I am doing just doesn’t work – logic suggests I need to do something else.

So what I have been doing is telling the truth – it’s the Dems who have done all this and it’s the Dems who refuse to fix it. It’s the Dems who won’t listen and it’s the Dems that refuse to acknowledge their errors. If everyone in Congress voted to save their job by supporting passage of the CPSIA in August 2008 rather than face reelection attack ads, that was then and this is now. The Dem leadership has chosen to ignore the OBVIOUS and continue to deny that anything can or should be done in this matter. There’s nothing wrong or politically-incorrect about speaking the truth – and that’s the truth. We are where we are because of the Dems. They own it.

If the politicians who are busily engaged in snuffing out our business enterprises won’t listen and cannot be influenced, then what’s left to me? I must enter the political arena to specifically target them for removal. And that’s what I am doing. It’s only fair – they act like they want my business dead. So we need to put different people in their place. And we need to do it right away.

If this makes me a Tea Partier or a Right Wing nutjob, so be it. My head is not bowed. My customers, my suppliers and my working associates and partners know where I stand. I am fighting for our business life and will not rest until the people responsible for this mess are brought to justice.

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CPSIA – Am I a Tea Partier?

CPSIA – Consumer Groups are Grasping at Straws

Last week, in their usual pre-Xmas slanderfest, the full range of consumer groups unleashed their annual list of bad and dangerous toy lists on a pandering media. The pickin’s were slim this year, but that didn’t stop them.

I have heard from friends outside the toy industry who expressed horror and disbelief at these widely-publicized attacks. Toy industry insiders are used to it, frankly. Actually, speaking candidly, some of these annual efforts are useful and appreciated. I think that bad products (generally reflecting poor judgment, nothing more venal than that) have been usefully exposed by these groups in the past. However, of late the consumer groups have been obsessed by “toxics” – pushing the notion that toys are poisonous, rather than simply irresponsibly-designed. I think the reason is simple – the media and reactive politicians respond to this accusation, so why give up a “good thing”? You have to wonder if their goal is to simply make toys safer. Their attacks are remain more vicious than in the past and much more pointed.

The consumer group continue to package the idea that consumers do not realize that “no government agency tests toys before they are put on the shelves.” This self-declared “fact” is an essential justification of their “precautionary principle” – that is, we need an activist government approving everything before you get your hands on it. President Obama’s assertion on Late Night with David Letterman that we need a lot more government these days is right in line with the precautionary principle. Others call this movement the Nanny State.

The precautionary principle holds that no risk is too small to address – in advance. Thus, the neurosis underlying the assertion that Americans think the government must be “testing” toys before they are sold is the same as Consumer Union’s David Pittle’s admission in the TSCP hearing (beginning at about 90 minutes in the video) that he is “nervous” when he buys a toy (not sure what or whom to trust), and ergo, his rules for how manufacturers run their businesses must be imposed. Mr. Pittle’s demands seem designed to relieve his anxieties, rather than improve safety. [He might contend that it is one and the same but I disagree.] Inciting terror through various means, the consumer groups place a real emphasis on how consumers FEEL and whether products and their manufacturers have earned consumer confidence (an emotional standard), not whether (objectively or actually), the products are actually safe.

Perhaps your mother told you once that it is hard to control how others feel – you can only control what you do and how you do it. Maybe she should be running Congress . . . .

In any event, the number of offending children’s products uncovered this year by the consumer groups is rather meagre. As previously noted, Center for Environmental Health (CEH) drummed up seven items after six weeks of testing on 250 items. The CEH rogue’s gallery featured NO soluble lead in toys, but did feature one pair of shoes with lead in the soles . . . a pair of sandals with lead in the insole . . . a trinket with a bad connector link . . . a poncho with lead in the vinyl material, etc. And now the PIRGs have joined in the fun. The annual Trouble in Toyland report was issued this week by national PIRG and the equally hyperbolic Illinois PIRG issued its own “Chemical Compliance: Testing for Toxics in Children’s Products” report. [I am only focusing on lead and phthalates in these reports.] The PIRG “bounty”: a zipper “pull” and a yellow cow with lead-in-paint, one piece of lead jewelry, and two toys with phthalates (one an “unidentified” phthalate that might not be illegal, and the other just slightly over the limit). Illinois PIRG found only a small handful of violative products: only six of 87 products tested positive for violative lead levels using XRF guns, winnowing down to three items when tested by an independent lab.

Illinois PIRG failed to find lead or phthalates in the items featured in this TV segment. Unfortunately, that makes bad TV, so the head of Illinois PIRG lowered the standard to create something new to worry about (watch from 1:00 for 30 seconds in the video): “Most of the toys PIRG bought at target came up clean. But three of the toys had small amounts of lead — MUCH LESS THAN the current safety standard but enough for the gun to detect. ‘Really, children shouldn’t be exposed to lead at all,’ said [Brian] Imus.” [Emphasis added]

An implication of the 2009 reports is that the onerous new CPSIA lead standards are simply not tough enough. For instance, PIRG says “Regulations should simply ban lead except at trace amounts (90-100 ppm), whether in paint, coatings or any toys, jewelry or other products for use by children under 12 years old.” Where did this come from? Some ideas:

• They are laying the groundwork for the August 2011 determination by the CPSC about implementing a 100 ppm lead limit. To do so, the agency must conclude that it is “technologically feasible” as defined in the CPSIA.
• The groups are desperate to make their work seem relevant and constructive.
• They are confused or want to confuse consumers about HOW lead harms children, ignoring, covering up or blurring important distinctions between bio-available lead and inaccessible lead.

The latter point is so critical to understand. Lead can only harm a child if it gets into the bloodstream. Notably, lead is present throughout the environment (lead is found in at least 40 ppm concentrations in dirt, unless you are referring to the Obama’s vegetable garden which has lead in concentrations of 93 ppm). Lead is in our food, drink and air, so kids consume it all the time. Apparently, lead in certain amounts must not be a problem, or else we would all have suffered reduced IQs (no comment in my case). The lead that should concern us is soluble lead, as in lead-in-paint and in jewelry, because it can easily get into the bloodstream. In any event, PIRG knows that toys and children’s products aren’t the problem. In their report, they cite a 2005 article (“Lead Exposure in Children: Prevention, Detection and Management,” Pediatrics, 1036-1048 (October 2005)) which makes clear that the problem with childhood blood lead levels is in lead-in-paint used in housing. There is NO mention anywhere that I can find where academic studies blame national blood lead levels on toys, etc., and likewise, I find all credit for lowering blood lead levels is given to efforts to rid the world of lead-in-paint in housing. Period.

So why does PIRG and its brethren continue to flog the notion that lead in all manifestations is dangerous? And why are they now saying that ANY lead, even below the draconian levels in the current law, is dangerous to children’s health?

Questions worth pondering.

Finally, not content to blur the lines on lead, PIRG also recommends that the phthalates ban be extended: “CPSC should ban phthalates in toys and other products intended for children under five and work with the Federal Trade Commission to ensure that toys labeled ‘phthalate-free’ do not contain phthalates.” So apparently PIRG wants ALL phthalates eliminated from toys, no matter the absence of science behind their new manic fear. Even more importantly, they apparently concede that the blanket ban on six phthalates for toys intended for children 6-12 is excessive and damaging. At least that’s a positive contribution!

So another Xmas toy bashing seems to be behind us. The pseudo-science underlying the consumer groups’ attacks on children’s products was again exposed, as was the basic integrity and safety of the marketplace. Does that do us any good? That remains to be seen. Perhaps the leadership at the CPSC will tire of this relentless war (which is eroding their professional reputations) and do something to get Congress to fix a truly defective and damaging law. Let’s hope so.

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CPSIA – Consumer Groups are Grasping at Straws

CPSIA – Further Developments in Brass Bushings Case

There have been a couple further developments in this case:

a. Both Anne Northup and Nancy Nord put out press releases today lambasting the Learning Curve decision. The (apparent) polarization of the debate has now gone very public. The shame of it is that the Republicans seem to be the ones advocating for common sense while the Democrats continue to support decisions that would puzzle the man on the street. There is no reason that common sense should divide the Commission. Of course, it would be wrong to accuse the Democratic appointees of lacking common sense. Still, it’s hard to argue with the position of the Republicans from the perspective of real world problems and risks. At least they are speaking out against Congressionally-sponsored folly compelling the agency to hold hearings about how many angels can dance on the head of a pin.

b. Commissioner Bob Adler called me today to retract his accusation discussed at the end of my last blogpost in a short section entitled “Interesting Side bar”. Mr. Adler was contacted by representatives of Learning Curve who were upset at the idea that they had been selling toy cars in violation of the ban. It turns out that this is not true. When Mr. Adler became of his mistake, he (decently) sought to correct the record immediately. For that, he is to be commended. I want to make clear – the testimony at the LCI hearing that I reported actually took place BUT the substance of Mr. Adler’s remarks was incorrect. Mr. Adler expressed his regret to me, and asked that I pass it along to you.

You have to admit that this is rather ironic. Mr. Adler accused Learning Curve of exhibiting “bad optics”. Bad optics, indeed. The source of his misinformation was a staffer to one of the Commissioners who bought a LCI car from Amazon.com and assumed that this meant that LCI was violating the ban. This staffer took it upon himself/herself to pass on this assumption as a FACT to Mr. Adler. Actually, the inventory for sale on Amazon had been bouncing around for some time, and did not come from LCI after the ban went into effect.

To me, this mistake (and that’s all it was) demonstrates several important points:

• The CPSC has a VERY HARD TIME understanding supply chains. There may be a tendency among some people working at the CPSC to see the economy as a very simple, linear beast. It’s not. This situation illustrates the danger is making assumptions about how the economy is organized or underestimating the complexity of how goods go to market. Let’s not forget the immortal words of Felix Unger in The Odd Couple TV Show: “When you assume you make an ass out of u – you – and me.”
• To a business person (like me), it feels so often that the CPSC holds businesses guilty until proven innocent. Mr. Adler made a mistake, and that’s to be expected of all of us mortals, BUT it feels too easy for the CPSC to judge us without digging too deeply into the merits. Maybe the business community isn’t a nest of vipers. Just a thought. . . .
• The Commission has a tremendous ability to do harm. This (minor) incident will certainly not enhance LCI in any way. The Commission treads with elephant feet – it needs to try to be a ballet dancer.
• The problem of “bad optics” is resident at the CPSC today. The issue of tone and appearance and how they affect market participants – that is VERY deserving of consideration at the CPSC TODAY.

I hope this incident is reviewed carefully at the CPSC for “lessons learned”. Mr. Adler’s culpability here is not, IMHO, the issue. The bigger concern is the hair trigger, the guilty-until-proven-innocent atmosphere, the power to do harm, the effect of words and actions and inactions on behavior in the market. The Commission needs to pause for a moment and use this incident to do some soul searching. If that exercise is productive, we will all be grateful that this mistake took place.

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CPSIA – Further Developments in Brass Bushings Case

CPSIA – My Answer to Sean Oberle on Resale Shops and Tenenbaum

Some of you may have been following the recent debate in the Product Safety Letter (PSL) on the CPSC’s noxious Resale Roundup program. A wave of unfavorable media coverage has dogged the new CPSC initiative, noting the risk of high fines and the unwelcome intrusion of federal regulators into an innocent American ritual, the garage sale. A highly-publicized Fox News piece apparently triggered a response by CPSC Chairman Inez Tenenbaum in PSL on October 3 entitled “Garage Sales and CPSC — Sorting the Facts from the Myths“. In this piece, Ms. Tenenbaum promised not to fine garage sale operators, and chose to emphasize the CPSC’s noble goal of ending the resale of recalled products.

Next, Rob Wilson of Challenge and Fun, Inc., a Massachusetts-based toy company, published an Op-Ed in PSL on October 9 entitled “Consumer Confusion Comes From CPSC Guidance, Not the Media” in which he noted that the fear Ms. Tenenbaum sought to calm came not from media reports but instead from CPSC policy. In particular, he pointed out the impractical and confusing advice given in the CPSC’s own CPSC Handbook for Resale Stores and Product Resellers. Mr. Wilson closed with the following observation: “Chairman Tenenbaum vowed at her Senate confirmation hearing to bring a common sense approach to CPSIA implementation. We are still waiting for signs of common sense from the agency regarding CPSIA.” Ah, that “common sense” thing again!

Sean Oberle, owner, publisher and editor of PSL, replied to Mr. Wilson in his own publication on October 13 in an editorial entitled “Clarity and Accuracy — CPSC, the Media and Garage Sales” in which he defended Ms. Tenenbaum on the grounds that her limited statement did not constitute a comprehensive summary of her feelings or actions on the CPSIA. It’s a remarkable piece, I hope you will read it. [In his editorial, Mr. Oberle makes the following observation: "a quick search of the blogosphere and other new-media sites finds more pieces running the gamut from mild warnings to doomsday predictions" - hmmm.] Interestingly, Mr. Oberle stresses his “neutrality” and “defense of accuracy and clarity” THREE TIMES. Draw your own conclusions.

Well, I sent Mr. Oberle MY Op-Ed reply to the debate he not only published but contributed to. Suffice it to say, he turned me down. I am publishing the Op-Ed here for your review and consideration. I would be interested in your thoughts.

I think it is critical to reflect on this rebuff and to delve into its deeper meaning. [My ego can take it, btw.] The Product Safety Letter (along with BNA) was cited by John “Gib” Mullan (Assistant Executive Director, Office of Compliance and Field Operations, CPSC) as the definitive source for information on safety issues at last February’s ICPHSO meeting. An august publication, apparently. Yet, what does a stilted debate in PSL’s pages signify? Only Mr. Oberle can say for sure. My article asks Ms. Tenenbaum to be accountable for the actions of the CPSC in implementing the defective CPSIA. Mr. Oberle has already publicly stated his neutrality on agency issues several times. [Quoting from Hamlet, "The lady doth protest too much, methinks."] What’s going on here?

The American way of life is frankly dependent on our Constitutionally-guaranteed freedom of speech. The foundation of the visionary American system of a free media is its INDEPENDENCE. What if the media organs we depend on lose their independence? What if fear of retribution or a possible chilling in access to information challenges editorial decisions? In thinking about the end of the debate about the CPSC’s Resale Roundup in PSL, these questions resonate. I hope this is not the Obama Revolution we have all been hearing about.

My Op-Ed for your reading pleasure:

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CPSIA – My Answer to Sean Oberle on Resale Shops and Tenenbaum

CPSIA – My Ruling on Brass Bushings

The Learning Curve request for exemption for brass bushings on their toy cars is still pending at the CPSC. It is supposedly up for a vote this week. As I have noted in two prior blogposts, this decision will set an important precedent for a number of other products. If, as expected, the Commission votes down the LCI request, brass will be essentially banned in all children’s products, except for the pretzel logic of the pen decision (previously derided in this space). [The logic in the pen decision has never reappeared in another CPSC decision, and therefore should not be used as precedent for ANY other situation under the CPSIA until it actually reappears as part of CPSC common law. The pen decision was simply a gift to the writing implement industry, such as a convoluted and fantastic legal decision can be a gift.]

Among the anticipated victims of the LCI decision (to recap):

• Toys
• Connectors of all kinds
• Brass zippers, grommets and other apparel and footwear components and accessories
• Brass instruments (rentals to schools, certainly), musical bells and certain strings used in string instruments
• Children’s jewelry

It is worth noting, amateur scientists in Congress, that brass has germicidal properties which is one reason why brass is used in doorknobs (icky germs!). Might actually be useful in some children’s products for this reason . . . .

The presence of brass in daily life is an immutable fact. If the CPSC bans brass in children’s products because of the idiotic CPSIA, NOTHING will eliminate the following uses of brass in the daily life of children:

• House keys (good for sucking)
• Doorknobs and locks (touching and licking?)
• Plumbing fixtures and drinking fountains (touching and sucking)
• Pipes to convey potable water (assuming those pipes aren’t made of pure lead)
• Components in cell phones (definitely good for licking)
• Clocks, antiques, artwork (touching)
• Railings (licking)
• Jewelry (sucking)
• Guns and ammunition (no comment)
• Tools (you can poke out an eye with a tool!)
• Etc. etc. etc.

This does not even address the widespread presence of lead in, among other things, our food system, our potable water and our air. There are federal safety standards for allowable lead content in each category. Children are known to consume food, water and air throughout their daily lives without interruption. The obliviousness of the CPSIA in setting such stiff standards for bio-unavailable lead-in-substrate in children’s products in the context of these other lead instances is shameful – and the source of the current issues with brass.

The CPSC Staff has determined that the CPSIA does not allow an exemption for brass bushings. In the understatement of the year, the staff concluded “that the estimated exposure to lead from children’s contact with the [LCI] die-cast toys would have little impact on the blood lead level.” Staff states clearly that they consider brass bushings safe and that the lead transmission from brass bushings is inconsequential and certainly not rising to the level of a hazardous substance. Unfortunately, the Commission has thus far shown no interest in taking bold stands and rejecting the legitimate legal (but nonsensical) conclusions of the CPSC Staff under the CPSIA. Common sense be damned.

In a perfect world (what a joke), the Commission’s decision in this case would hold that although LCI brass bushings are caught up in the limits of the CPSIA, they present NO substantial hazard to children, and therefore using their seldom-used discretion, the Commission grants an exemption for brass bushings in children’s products conditionally. The decision would explicitly state that this decision should be taken as precedent for brass in all children’s products (to cut down on repetitive exemption requests). The decision would be dependent on TWO CONDITIONS, namely that: (a) the particular use of brass in children’s products is not known or held by CPSC Staff to present a substantial hazard to children under the FHSA, and (b) the exemption will be lifted when Congress acts to ban brass from everyday life and takes concrete steps to retrofit America for a brass-free future, replacing all brass doorknobs, artwork, cell phones, keys and locks, plumbing fixtures and water pipes (including, what the heck, lead pipes, too) and so on. For so long as brass remains part of children’s daily life in their home and school environments, the CPSC will not act to restrict brass in children’s products.

The Commission, using common sense not previously known in the CPSIA era, would note that banning brass bushings would be utterly ineffective to change the net exposure of children to lead in their lives but would wreak terrible losses upon the marketplace. Senseless economic destruction is un-American and lacks a social conscience since the losses will be spread ratably throughout society among suppliers, sellers and consumers of all things brass. Finally, the Commission would note that unless and until its decisions to restrict children’s products materially impact safety, the Commission will not keep safe products or components off the market for technical violations of the CPSIA. Brass bushings, in my fantasy, would be granted an exemption to the awful CPSIA.

This idle fantasy can come true if the Commission summons up the courage to act sensibly and to stop being complicit in the shoddy legislative work of Congress. As an independent agency of the U.S. government, NOT a subsidiary of the legislative branch or an organ of the House Energy and Commerce Committee, the CPSC has the authority to make up its own mind and to set rational policy. It’s time that the Commission draw a line for one and all to see. Especially Mr. Waxman.

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CPSIA – My Ruling on Brass Bushings

CPSIA – Wanted, a Demonstration of CHARACTER

I hear from readers of this Blog practically every day. It is obvious that I am not alone in my strong opposition to the CPSIA

See the original post here:
CPSIA – Wanted, a Demonstration of CHARACTER