CPSIA – In Defense of Lead

Perhaps you have been expecting it. After all the “heat” in this blog over the past year, finally, my defense of lead. Hope you’re happy now. . . .

Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler’s paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes – but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler’s reasoning, however, and that makes all the difference.

Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.

Ironically, Mr. Adler’s statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brash bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) – and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn’t.

To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something’s quite wrong if we are celebrating a system so obviously broken.

i believe there are fundamental flaws in Mr. Adler’s views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:

• Lead is bad
• Lead can be dangerous to children
• Harming children is bad, and unacceptable if reasonably foreseeable.
• Lead poisoning in children is largely if not entirely the fault of lead house paint and leaded gasoline

Mr. Adler makes the latter point in his footnote 83: “Clothing is not a significant source of lead poisoning. Far and away the greatest source of lead poisoning is lead paint in older housing, lead-saturated soil from gasoline emanated over the years from automobile exhausts, and lead-saturated dust (both from paint and gasoline).” [Other citations omitted] It is important to remember that Mr. Adler KNOWS that blood lead level problems stem from house paint and the long term consequences of years of leaded gasoline use (particularly in the inner city).

Mr. Adler tries to prove that lead is bad – but that fact beyond dispute. He goes further and builds the case that there is no “safe” level of lead, providing citations. Thus established, he then seems to justify the legislation’s strict terms based on the logic that if science hasn’t identified a safe level for lead, every instance of lead is therefore dangerous: “We may have currently reached the outer limits of our ability to measure negative effects of exposure to small amounts of lead, but that does not mean that no adverse effects are occurring. It basically means that we do not know.” Scary stuff. . . but what does he really think?

It’s hard to tell. Notwithstanding his assertion that no level of lead is safe, Adler seems oddly reassured by the permitted levels set by Congress: “[Given] that lead remains ubiquitous and often unavoidable, policymakers who are fully aware of lead’s risks, have sought to determine some level of lead that would be acceptable – at least until new information becomes available.” And these all-knowing policymakers (Congress) set a retroactive scheme of rapidly declining permitted lead levels. In other words, what was considered “safe” (meaning legal) on February 9, 2009, was “unsafe” on February 10, 2009, and what was considered “safe” on February 10, 2009 became “unsafe” on August 14, 2009, and what was “safe” on August 14, 2009 promises to become “unsafe” on August 14, 2011. Mr. Adler analyzes retroactivity under the CPSIA in his statement and then endorses it. Huh?

I fail to grasp the logic of either Congress or Mr. Adler here. Is lead in substrate dangerous or is it not? Is there a safe level for lead or is there not? Is lead safe on one day, and not safe on the next day? If so, can someone explain the science of that safe/unsafe trigger to me? I believe Mr. Adler’s accommodative attitude toward the lead standards and retroactivity is best explained by politics than by any notions of safety or risk.

It is even harder to take Adler’s stern tones on lead seriously when you consider the volume of lead elsewhere in a child’s life. Will regulation of lead in substrate in children’s products have any material impact on blood lead levels? Can anyone prove that it will, or that the cost of getting rid of all the lead is worth the cost? Remember that we could redeploy the same money for more impactful projects, like eliminating high lead levels in drinking water in schools or remediating soil contaminated with lead. We have already covered the fact that Mr. Adler knows that blood lead levels are fundamentally tied to exposure to leaded house paint and contaminated soil. It is also well-known that cars are coated in lead paint, legally under our laws. Lead is also in our food chain, is found in nature – and enters our bodies every day. [For data on this topic, see "Eat My Dust".] By obsessing on children’s products in the face of these facts, Congress ensured that its new legislation would fail to deliver measurable results.

In essence, the slogan “no safe level for lead” connotes a risk-free condition. “Risk-free” is an unrealistic standard and FAR too expensive as public policy. Mr. Adler uses this formulation in his lengthy analysis of used clothing sales: “In sum, I cannot state with certainty that a “safety” threshold of, say, 1 µg/dL blood level change would never occur from zipper sucking. . . . The fact that I cannot say there is no risk is why I characterize the choice [between allowing and banning resale of used clothing] as between bad and worse.” [Emphasis added] Mr. Adler is not following a legal principle here, he is asserting one. This is the precautionary principle, the famous Nanny State being implemented before your very eyes.

It is difficult to diffuse an argument based on the elimination of all possible risk. If we wish to organize our society around the elimination of risk, rather than the management of risk, we are doomed. All of us, not just the children’s product industry. The sad truth is that no one in the Federal government can prove that the policies of the last 35 years on lead caused injury. Mr. Adler implicitly asserts that our inability to prove that it DIDN’T is enough justification to throw the old system out. This is a belief system, not science.

The fear of risk is fanned by the threat of undetectable dangers. Mr. Adler notes: “To say the effects [of lead on healthy children] are not directly observable is not to say that that they are minor.” He amplifies this point by implying a link to children’s products to lead injuries without any proof of a relationship: “[MRI] technology has permitted us to identify permanent damage in adults stemming from childhood lead exposures.” Exposure to what, precisely? ABC blocks or the soil next to an inner-city apartment building in the leaded gasoline era? Mr. Adler’s assertion that we just don’t know what the harm is dodges the real question – how do you know there is any harm resulting from THESE USES OF LEAD? No answer is supplied because no one can answer that question.

The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children’s products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.

A couple brief notes:

- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That’s enough reasoning for me.

- In calling for change to the lead exemption process, Adler is apparently willing to support only “a modest expansion in the amount of discretion granted to the Commission”. I find this rather curious and unexplained – he only wants a little discretion. Why? Does he worry that the Commission can’t handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of “trust”, namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.

- Adler devotes considerable space to sale of children’s clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children’s clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler’s logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn’t be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can’t be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn’t, don’t. WHO sells it shouldn’t matter. But apparently it does.

An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: “As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law.” For those of you who don’t know this SAT word, “bloviating” is defined as “[to] discourse at length in a pompous or boastful manner” on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don’t expect thanks, but I think this is out of line.

I could go on, but I won’t. Mr. Adler’s voice in the debate is an important one and I appreciate his efforts to set the record straight. I don’t agree with him and appreciate the opportunity to reply.

You be the judge!

Read more here:
CPSIA – In Defense of Lead

The CPSIA Shoves the Poor Off a Cliff

Deputy Headmistress has been kind enough to let us cross-post her personal story. The original and her other knowledgeable and helpful posts about the CPSIA can be found on her blog The Common Room.

In 1992 we had three little girls, ages 2, 8, and 9.  My husband was serving out his enlistment in the Air Force, and I was a sahm.  You may have heard rumours about how little enlisted men get paid.  Those rumours?  They are mostly true.

We weren’t seeking adoption at all, but we heard of two little girls who needed a home together, and we just couldn’t come up with a good reason to say no.   One of the children was severely handicapped, and it was unlikely anybody would take on both of them (nearly 4 and 6 at the time) because of the severity of those disabilities. The birth-mother did not want them separated. And so, over the objections of everybody sensible that we knew, we opened our home to this unplanned blessing.

Unplanned?  Surely, of all the ways to add to a family, ‘unplanned adoption’ doesn’t make much sense- how is that even possible?  It’s funny to call an adoption unplanned, but it really was. What little planning we were able to do came to naught. We were supposed to take the children for weekends over a period of a few months so they could get used to us.   On the Wednesday before the first weekend visit, the birth mother telephoned and called off the adoption.  We notified our friends and relations.  The following day she called and asked the caseworker what time we were picking the girls up.  The case worker asked her what had changed. She had her reasons, and I won’t go into them here, but she did have their very best interests at heart, so the caseworker gave her a time.  And then she dropped a bombshell. “I want you to come and pick them up tomorrow,” the birth-mother said, “but not for a visit.  They need to go to their new parents now, and not come back.”

So… we went to bed with three children and the next morning suddenly gained two more children who came to us with nothing but the clothes on their backs and some immediate and distressing but treatable medical problems, and some longterm and severe medical problems- again, just two weeks before Christmas. We had no clothes for them, no beds, no presents; nothing was in readiness for them, except our hearts (and even those needed some sprucing up). (If you are interested in the longer version of our adoption story, see here.

They came on a Friday.  We went shopping on a Saturday.  Where did we go shopping?  Thrift shops, of course.  We had an immediate and urgent need for clothing, toys, and bedding for two new children, and we lived on an enlisted man’s salary.  It was only two weeks before Christmas.  The thrift shop enabled us to fill the gap between our income and our needs.

We dressed our five girls from thrift shops, consignment stores, and yard sales over the next several years.  Now they dress themselves largely from the same sources- ‘new’ clothes are supplementary.  Not only does this help their budgets, but it also is a culturally and environmentally beneficial practice.

Clothing, books, and toys purchased from thrift shops do not come with all the extra external packaging that new items do.  They are bagged in used bags donated by the public.  They arrive at the thrift shop instead of at a landfill by means of donations.  Many times stores will donate unsold inventory to thrift shops.  These are items that do not contribute toward further burdening of landfills.

Thrift store shopping is culturally beneficial as it teaches children thrift, and is a direct reproach to the consumer oriented materialism of our culture.

Thrift store shopping benefits charities- most thrift shops are run by and for charities and provide job training and other support to those in need.

And thrift store shopping directly benefits the poor- thousands of others, as we did, fill the gap between what they make and what they need by shopping for necessities such as warm coats, hats, boots, snowpants, hats and scarves at thrift shops.   Boots, bikes, and balls can be purchased used anywhere from 1/2 to about a tenth of their price new.  The impact of the CPSIA on the poor is devastating.
One reason for this legislative blind spot, I believe, is that politicians and special interest groups like PIRG and Public Citizen have little understanding of what it means to have no margin of error.

And this is important to remember- when you are poor the margin for error is so very, very thin that the consequence of what seems to some to be a very small error in judgment or very small increased cost due to poorly thought out legislation such as the CPSIA is disproportionately large. Even people who are just barely financially comfortable sometimes just can’t understand how thin that margin of error is. The poor are skating slowly and shakily on razor thin ice. The smallest mistake, theirs or somebody else’s, can send them plunging into life threatening icy waters. You very likely make exactly the same sort of foolish decisions in your financial decisions on a regular basis- but you have a larger cushion to protect you from irresponsibility, whether it’s your irresponsibility or that of legislators who pass unread bills or pass bills without hearing from ALL the stakeholders.

When you are poor, there are no margins. You can’t take money out of the budget in one area and apply to another because there are no surpluses in any area.  There may not be even be a budget.

Being forced to buy a brand new winter coat for your child because thrift shops have had to send all their used coats to the landfill in response to the CPSIA can cause far more devastation for lower income families than the complacently comfortable can imagine.  For those who live precariously from one small paycheck to the next, that legislative error might result in having to choose between warm clothes for winter and having the power turned off or not being able to buy gas for the car that week. It might mean an overdraft at the bank, which will then cost more money as the bank adds an overdraft charge, which then means other checks bounce, which means more overdraft charges.

To the complacently comfortable, this sort of scenario seems overly dramatic, but that’s because they haven’t lived there, and they don’t know what it’s like.  We do. We’ve lived out of an ice chest for three months because we couldn’t afford the deposit to turn on our electricity.  I’ve been reduced to tears when the only food in the house was two eggs, and I dropped one and broke it.

Our thrift shop charges five dollars for winter coats, good winter coats.  If they have to send those coats to the landfill and poor families have to buy brand new coats, we’re looking at a coast increase of at least 75 percent imposed on the families least able to bear it, and their children will be no safer.

The CDC says that on a scale of 1 to 10, the risk to children of lead poisoning from books is maybe .05- that is a rhetorical way of saying nil.  No children I have ever heard of have had an increase of lead blood levels from the zippers on their jackets.

Because I have lived it, the poor to me are very real, living, breathing people, with real flesh and blood children who will be immediately harmed by the impact of the CPSIA as it is written.

To legislators and the special interest groups who pushed this bill through, the poor appear to be an abstract concept, useful for exploitative purposes, as poster children for pet causes, as tools for emotional manipulation and rhetorical propaganda. And that is why they shrug over the reality that they have chosen to impose a very real and immediate harm to poor families by quadrupling clothing expenses for their children in order to avoid the negligible at best and utterly unproven risk of increased blood lead levels in the zipper pull or snaps on a ten year old’s coat.