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CPSIA – What Does the CPSC Know that the EPA Doesn’t?

At the recent 100 ppm hearing before the CPSC Commission, Nancy Nord asked presenters to submit regulations put out by other agencies restricting lead in our environment. She presumably wanted perspective on whether a reduction to 100 ppm lead-in-substrate content in children’s products would actually improve health or instead, simply further punish the fools who stubbornly remain in the children’s products market.

I submit here EPA regulations on permissible lead levels in play yards and residential dirt. Pleae note that lead in dirt is soluble, so it actually presents a health risk to children. In 2001, the EPA implemented a revised legal/regulatory architecture to protect children from lead-in-paint and lead in the environment. The regulations (40 CFR Part 745) are entitled “Lead; Identification of Dangerous Levels of Lead; Final Rule”.

I think this is an interesting rule because we sell sand and soil as part of children’s science kits. Hmmm. The CPSIA restricts lead content in everything we sell, even fossils and rocks, hence our well-known lead labels. Does the EPA permit something that the CPSC forbids?

Guess!

Consider what the EPA said about its new regulations:

“EPA is also promulgating amendments to the regulations for leadbased paint activities under the authority of TSCA section 402 (15 U.S.C. 2682) and to the State and Tribal program authorization requirements under authority of TSCA section 404 (15 U.S.C. 2684). These changes are needed to ensure consistency among the various regulations covering lead risks under TSCA.”

Consistency seems to be a concern of the EPA. How quaintly passé.

Nonetheless, the EPA seems to understand what is at stake for American children when it comes to lead:

“Reducing exposure to lead has been an important issue for EPA for more than 2 decades. Young children are especially vulnerable to the toxic effects of lead because their nervous systems are still developing and they absorb more of the lead to which they are exposed. Many of the health effects associated with lead are thought to be irreversible. Moreover, the effects at lower levels of exposure are often asymptomatic. In light of the impacts on children and the nature of the health effects, EPA’s goal is to eliminate exposure to harmful levels of lead.” They get it, right?

Uh-oh. The EPA veers away from the current script . . . .

“First and foremost, the Agency faces the difficulty of determining the level at which to set the standards given the uncertainties in information on cause and effect–what environmental levels in which specific medium may actually cause particular blood lead levels that are associated with adverse health effects. The Agency has tools, which are only generally consistent, that show that certain increases in environmental lead levels are associated with certain increases in blood lead levels. Given the range of uncertainty shown in its analysis supporting the establishment of a hazard level under this rule, EPA has developed a technical analysis that considers hazard standards for dust and soil at the lowest levels at which the analysis shows that across-the-board abatement on a national level could be justified. EPA recognizes, however that for any levels of lead in dust or soil judgment must be exercised as to how to treat the medium, and interim controls as well as abatement could be effective.” [Emphasis added]

Sounding like administrators from another planet, the EPA continues:

“In performing its analyses for this rule, the Agency could not quantitatively compare interim control strategies with abatement strategies because there are only limited data available on the effectiveness of interim controls over extended periods of time, and those data which are available are not suitable for quantitative comparisons with abatements. In comparing interim control strategies with abatement strategies, one must make a number of assumptions
concerning the costs of administrative management, and frequency of monitoring and renewal over the planning horizon. For the 50–year planning horizon which the Agency used in its dust and soil analyses, one would have to compare the time stream of interim control expenses, for as long as such expenses are necessary, and weigh the possible differences in potential blood-lead reductions, to make a fair comparison of abatement and interim control strategies.” [Emphasis added]

Later, the EPA warns: “Also, identification of lead-based paint hazards under this regulation is sure to have impacts that could be expensive even though the range of expenses is, itself, difficult to resolve because of the uncertainty of individual behavior and the willingness of individuals to accept risks that EPA may identify. Thus, if EPA were to choose standards that are too low, the public could be unable to distinguish between trivial risks at the low levels of lead from the more serious risks at higher levels. This could result in clean up for little to no health benefit, or conversely, it could result in almost no clean up because persons would question the credibility of the ‘hazard’ determination.” [Emphasis added]

Clearly the EPA just does not get around very much. Damn the expense, man, there is NO safe level of lead!!!

Importantly, the EPA seems to grasp the difference between CORRELATION and CAUSATION. I wish Congress understood that idea a bit better. . . .

“For dust and soil, EPA had substantial raw data on environmental levels and blood lead levels, even though it faced substantial uncertainty in correlating the levels. . . . If EPA were to set unreasonable standards (e.g., standards that would recommend removal of all lead from paint, dust, and soil), States and Tribes may choose to opt out of the Title X lead program and property owners may choose to ignore EPA’s advice, believing it lacks credibility and practical value. Consequently, EPA needed to develop standards that would protect children without wasting resources by chasing risks of negligible importance and that would be accepted as reasonable by States, Tribes, local governments, and property owners.”

Hope you weren’t eating while you read that last bit. Sorry!

I could quote from this document all day. In light of the nightmare that is the CPSIA, the EPA rules read like some sort of comedy routine. Unfortunately, the joke is on us.

So what did the EPA actually do?

“As stated in Unit II.F.3., today’s rule establishes two hazard standards for bare residential soil; 400 ppm for play areas and an average of 1,200 ppm for the rest of the yard. [See 40 CFR §745.65(c)] EPA recommends that organizations and individuals consider some action in certain areas even where levels in bare soils are below the hazard standard, particularly, if there is a concern that children 6 years and under might spend substantial time in such areas, or if there is concern that the bare soil in such areas may contribute to lead levels in the dwelling, or in the play areas. However, this rule does not mandate that any action be implemented when levels are found to be below the lead hazard standard. Moreover, the kind of response that organizations and individuals might consider could include modest actions such as planting grass (or other ground cover) to more extensive actions such as covering the bare soil with several inches of clean fill.”

Yes, you read that correctly. The standard for play yards (sand) is 400 ppm lead and for bare soil is 1200 ppm lead. If we put a bag of dirt in a child’s science toy, the current CPSC limit is 300 ppm and at this very moment, the Commission is mulling a reduction of the lead limit in that soil to 100 ppm. This change will make more science products either illegal or unsalable for children under 13 years of age. We don’t believe lead labels solve the problem.

The CPSC’s rule on our products will have no effect on play yards, bare soil or anything except items defined as “Children’s Products” under the incomprehensible rule adopted by the Commission.

The longer this goes on, the more I am convinced that only a new government solves the problem. Sad . . . but true.

Read more here:
CPSIA – What Does the CPSC Know that the EPA Doesn’t?

CPSIA – Listening but Disagreeing – or Not Listening At All?

We know that the CPSC plunged ahead with the database on Friday despite the outcry of many industry stakeholders. Among the protesters was the National Association of Manufacturers, not exactly a lightweight organization. Industry protests fell on deaf ears. It goes without saying that the resistance of the two Republican Commissioners (who drafted their own database rule) aligned with industry objections. None of this apparently mattered.

As if to make the point that the CPSIA database will be misunderstood, misused and dangerous, the New York Times announced the arrival of the database in an article entitled “Consumer Agency to Post a Database of Unsafe Products“. Nice work, New York Times! The information in the database is unverified and in many cases will NOT be true. There is simply no way to conclude that the products referenced in the database are “unsafe”. Good luck convincing anyone of that now.

It is embittering and frustrating to be so flagrantly disregarded. There seems to be so much at stake, and the fix was seemingly so simple. No one asked to kill the database, just protect innocent businesses from damaging inaccurate postings on a website enjoying the prestige of a federal safety agency. Even the Pompeo Amendment was promoted as “hitting the pause button”. It is hard to fathom why dialogue was so impossible to start. Actually, after a few years of this war, it is not hard to fathom at all.

I know we were rejected – it is hard not to conclude we were ignored completely from the beginning.

My involvement in this issue began when I was asked to testify before the Commission on the issues relating to a searchable database of product incidents. Actually, I had been on record of objecting to the database even before the CPSIA became law (you can see excerpts of letters I sent in my response to Slate). I was called by Matt Howsare, then counsel to Inez Tenenbaum (now her Chief of Staff) who asked me to fly to Washington to testify. He told me that they “needed” me. Wanting to be helpful and to pitch in when asked by the agency (I was charmingly naive at that time), I agreed. I posted video of my testimony in this space, and as you will see, I was cut off by Ms. Tenenbaum. Get it? I was asked by her staff to present because they needed industry testimony, and when I gave my remarks, they cut me off – one suspects they had heard enough . . . .

This experience left me disgusted in a way that, frankly, hasn’t worn off.

Later, the agency called for a two-day workshop on the database. Owing to the discourtesy of my treatment at the hearing and because of their apparent utter disinterest in my views, I declined the opportunity to continue banging my head against the wall by attending their database confab. Later, as we know, the Democrats released a 248-page rule that greatly expanded the database rule from Congressional intent. Written as though edited by Consumer Federation of America, the rule produced howls of protest, but as has been the case thusfar in this CPSIA saga, it mattered not. The three Dems voted as they would have in the absence of any protests and the defective rule was adopted.

I continue to believe that the criticisms of the rule were (and remain) legitimate. That is, they were rational and reasonable, and lent themselves to reasonable and understandable resolution. The Dems did not make any effort to address these reasonable concerns, rejecting them out of hand.

This pattern of ignoring stakeholders while calling for comments and participation has been a hallmark of the Tenenbaum era. I am trying not to take it personally but wonder how we can be so consistently “wrong”. The Dems barely pause to discuss industry objections other than to simply reiterate that their policy objectives are more pressing. Are we so obviously wrong that our objections don’t merit an answer?

I have trouble reaching that conclusion. I have made the same points consistently over and over, yet I cannot put my finger on a single response to my objections other than outright rejection. There is a question of good faith here. The rejection of my company’s PROOF of a material error in the one filing made against one of our products in the soft launch of the database seems to call into question whether the agency can ever be trusted under this group of administrators. The response by SENIOR STAFF at the agency that the consumer in question had stated a “risk of harm” when his/her accusation was PLAINLY WRONG means that even the English language is being corrupted in service of the database. How can trust exist in an environment like this?

Ask around among industry stakeholders. Trust is GONE. No one trusts the CPSC these days.

Looking back on the database saga, it makes me all the more certain that I am doing the right thing pushing back against these people. They are not operating in good faith and have no apparent concern for the well-being of our company, our employees or the countless companies, schools, families and children who depend on us. This cancer on our markets must be stopped. We have another election coming up and I will be working hard to put more Democrats OUT OF WORK. They have no one to blame but themselves. They won’t listen . . . .

So we need to get rid of them.

Read more here:
CPSIA – Listening but Disagreeing – or Not Listening At All?

CPSIA – My Testimony at the CPSC Hearing on 100 ppm Lead Standard 2-16-11

Here are clips from my testimony at the CPSC Hearing on 100 ppm Lead Standard on February 16, 2011. As noted in previous blogposts, there’s much more to see and hear in this panel discussion. The clips focus on me and my testimony. I admire the testimony of the other panelists and especially the quality of the dialogue after the testimony under questioning by the Commission. If you want to see it unedited, check out the full video at the CPSC website.

I have already published the links from the morning session. Viewing those clips before watching these clips may help you understand the flow of the argument better.

My full testimony:

[Notably, Ms. Tenenbaum cut me a break and let me go over my 10 minute allotment. I appreciate that courtesy.]

Commissioner Bob Adler questions me on the future of small business under the CPSIA and the need for the Commission to “follow the law” and implement the new standard despite the known consequences. This may be the most interesting interchange on the troubling issues under the CPSIA that I have participated in over the past four years. Check it out!

Commissioner Anne Northup asks about the ability of small business to obtain exemptions from the lead standard:

Commissioner Nancy Nord questions me about recycled materials, the cost implications of the new standards and injuries:

My call for a Five Year Stay on the new lead standard to allow for development of real injury statistics:

Read more here:
CPSIA – My Testimony at the CPSC Hearing on 100 ppm Lead Standard 2-16-11

CPSIA – Committee Press Release About CPSIA Hearing

FOR IMMEDIATE RELEASE
February 18, 2011

CONTACT: Press Office
(202) 226-4972

Commerce, Manufacturing, and Trade Subcommittee Examines Unintended Consequences of 2008 Law on Jobs and Small Businesses

WASHINGTON, DC – The House Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade, chaired by Rep. Mary Bono Mack (R-CA), Thursday convened a hearing to examine the unintended consequences of the Consumer Product Safety Improvement Act of 2008 on American job creators including small businesses and thrift stores. It reviewed the impact of the recent legislation on Consumer Product Safety Commission (CPSC ) resources and its ability to protect consumers. In addition to several small business owners, CPSC Chairman Inez Tenenbaum and Commissioner Anne Northup were also among the witnesses.

“As a mother, I have very strong, passionate feelings about protecting all children,” said Bono Mack. “But as a former small business owner, I know all too well how unnecessary regulations – even well intentioned ones – can destroy lives, too. This is a rare opportunity to put aside the differences that often divide this great body and put our heads together to make a good law even better.”

Rick Woldenberg, the operator of Learning Resources, Inc., a small business making educational products and educational toys, testified on the many difficulties associated with the new, burdensome requirements.

“Children are our business and the safety of children is our number one priority,” said Woldenberg. “The CPSIA, unfortunately, purportedly to protect children from vaguely-defined dangers, has dramatically impacted our business model, reduced our ability to make a profit and create jobs, pared our incentive to invest in new products and new markets, and generally made it more difficult to grow our business. Given these considerable sacrifices, I wish I could say the law made our products safer, but the fact is that it hasn’t. Our company, Learning Resources, Inc., has recalled a grand total of 130 pieces in a single recall since our founding in June 1984 (these products were all recovered from the market). Our management of safety risks was highly effective long before the government intervened in our safety processes in 2008. The government’s ‘help’ has not raised our safety game but it has reduced our bottom line and cost some of our employees their jobs.”

CPSC Commissioner Northup testified on the exorbitant costs to small businesses, stating, “In March 2009, Commission staff reported that the economic costs associated with the CPSIA would be ‘in the billions of dollars range.’… Small businesses without the market clout to demand that suppliers provide compliant materials have been hit the hardest. Many report that the new compliance and testing costs have caused them to cut jobs, reduce product lines, leave the children’s market completely, or close… According to a brief small business analysis by our agency, the cost to test one toy could range from $3,712 to $7,348 – not taking into account that the toy will likely change to stay competitive for the next Christmas season, or sooner, and every material change triggers a whole new set of tests.”

Jolie Fay, owner of Skipping Hippos, which makes handmade children’s ponchos provided some emotional testimony, stating, “Our businesses were born from the desire for safe children’s products. We make them with care and attention, most often from materials purchased from our local craft stores. Our dreams were to build heritage products that will be cherished and remembered, and saved for generations… The CPSIA makes no provision for these businesses to be able to operate.”

Fay went on to elaborate on the challenges that confront many small businesses. “For example, at the Hollywood Senior Center in Portland, there is a small retail shop. The items in the shop are exclusively made by their members. Handmade trucks and planes are made by retired loggers in their 70’s and 80’s. They are on an incredibly small fixed income and would never be able to afford a single ASTM laboratory test. The workmanship that has developed over a lifetime helps contribute a small, but very substantial supplement to their monthly income. These projects keep them active and give them meaning to each day. These are artisans, but this law makes them criminals.”

Chairman Upton, who pledged to address the problem, stated, “We all care deeply about our children and their safety – nearly every one of us on this dais has a child or grandchild. No one wants to put little children at risk. But this law may be doing exactly that. By dictating so much of the Commission’s work, in too many cases we have shifted its attention to products that pose little or no risk and away from more significant issues. At the same time, we have deprived the Commission of the flexibility to develop common-sense solutions to the problems of implementation. The retroactive effect of the law has caused the Salvation Army, Goodwill Industries and thrift stores across the land to destroy used products, including even winter clothing that is sorely needed by millions of American children.”

Read more here:
CPSIA – Committee Press Release About CPSIA Hearing

CPSIA – John Stuart Mill and Crib Safety

“I have observed that not the man who hopes when others despair, but the man who despairs when others hope, is admired by a large class of persons as a sage.”

John Stuart Mill
1828

The CPSC recently congratulated itself for banning drop-side cribs. Scott Wolfson clucked on Twitter: “RT @Scott_wolfson: The lifesaving crib rules approved by #CPSC today are a key part of the #CPSIA. #CPSC wants all babies to have a #safesleep.” Other people, like Rep. Jan Schakowsky, also rushed forward to take credit for this change in regulation.

To judge from these press releases, a real crisis in public safety has been addressed. Is that true?

Wasn’t it Winston Churchill who once said that history is written by the victors???

I have not touched the crib issue previously because, frankly, it’s too hot to handle. Who would want to defend a product associated with baby deaths? There but for the grace of G-d goes I. On the other hand, the projected compliance expense of $550 million is breathtaking, particularly given the fact that the agency’s ruling is both retroactive and mandates replacement of cribs in certain childcare facilities. Even Commissioner Robert Adler calls this expansion of the CPSC’s role as “uncharted territory“. This sets a new precedent for government (CPSC) intrusion that I find troubling, even under these circumstances.

The always astute Lenore Skenazy questions the CPSC’s justification of three fatalities a year linked to drop-side cribs. She labels herself “subversive” for looking at the numbers. [You know you were thinking it, admit it!] Based on the injury figures released by the CPSC, she notes that the deaths attributed to drop-side cribs are less than those attributed to spider bites (five per year). She puts the drop-side crib-related deaths in the context of 4 million births per year and asks where the limit is in our effort to save ourselves.

Skenazy rattles off many other death statistics (such as 1,300 per year from stair falls) for further perspective on the scale of the drop-side crib “crisis”. She does not discuss pool deaths, which number between 1-2 per day and generate 11-12 childhood emergency room treatments for serious injuries daily. But the obsession of this CPSC is drop-side cribs, so we should not worry about those other things . . . .

Lenore makes a good point. What IS the limit? And how much should we pay? Is this really a public health crisis, and if it is, aren’t all those other causes of childhood deaths similarly a crisis? Who gets to decide which crisis is our top priority?

As J.S. Mill points out, despair sells well so we are naturally inclined to accept on face value the shrill self-congratulations of the politicians who are so busy making us so safe. I have been battling the same self-justifications and self-praise by politicians and consumer “advocates” over lead for three years. Does the absence of injury statistics matter to anyone?

Interestingly, the CPSC provides some context on its crib decision. If you read through the document announcing the change, you will find out a few interesting tidbits:

  • Despite Ms. Schakowsky’s claim to have created this regulatory storm, the industry has been working on standards for many years. ASTM F 1169–10, the full-size crib standard, was originally published in 1999 and has been revised several times since 1999, including 2010. The same can be said of the voluntary standards for non-full-size cribs. The statement in the CPSC press release noting that “[t]he federal crib standards had not been updated in nearly 30 years” is pretty misleading – the voluntary standards relied upon by the agency and the industry have been regularly revised. [Until this administration took over, the CPSC relied on voluntary standards as a matter of public policy.] Even more remarkably, please note that the current CPSC action adopts these voluntary standards as the new mandatory standards with minimal amendments, calling the adopted standards “substantially the same” as the voluntary standards. Hmmm.
  • The CPSC initially issued mandatory standards for cribs in 1973 and amended them in 1982. There has been on-and-off activity at the agency in the ensuing years. Crib safety was not a new subject to the Commission when Ms. Schakowsky announced the latest crisis. Ms. Schakowsky didn’t solve the crisis either when she purportedly wrote this provision of the CPSIA. Is it actually certain that there ever was a crisis in drop-side cribs . . . or was Ms. Schakowsky simply looking to bulk up her hagiography?
  • Annual sales of cribs are estimated at 2.4 million per year, including non-full-size cribs (approximately 300K per year). Thus, over 11 years (2000-2010), that’s 32 deaths and an estimated 26.4 million cribs sold and 40 million babies born. Crisis? There are approximately 591 models of full-size cribs and 81 non-full-size cribs on the U.S. market, according to the CPSC. In recent years, the CPSC has recalled 11 million “dangerous” cribs defect” since 2007 (about 40% of the estimated total sales in the last 11 years).
  • A pilot CPSC project of data gathering on crib injuries from November 1, 2007 to April 11, 2010 generated a total of 3,584 “incidents”, including 147 deaths associated with full-size cribs. Some of these incidents go back as far as 1986, btw. Of the 147 fatalities, 107 were not related to any structural defect in any way. Of the 35 fatalities related to “structural problems”, 18 were related to drop-side cribs. [The CPSC document contains a detailed analysis of the injuries, as well.] So of entire pool of fatalities from cribs in this period, 18 of 147 were related to drop-side cribs in some way – 12% of the total fatalities. The CPSC press release somehow omitted this additional fact.

This data cannot be correlated to the December 17 CPSC press release in which they note 32 deaths since 2000 (11 years). There is no data provided on the AGE, CONDITION or QUALITY of the cribs involved in the deaths, no information on the MAINTENANCE or STRUCTURAL INTEGRITY of those cribs or whether the hardware failure was apparent or not. In its May 7th press release, the CPSC notes however that the 32 deaths include “some [fatalities which] occurred in cribs where the drop side detached without caregivers noticing the detachment, while some other deaths occurred after a consumer tried to repair the detached drop side, but the repair ultimately failed.” [Check out the photos to see what a consumer "repair" might look like.] No quantification whatsoever. Arguably, this CPSC statement suggests that any solution to the problem involves, in whole or in part, user education.

The CPSC did not supply data to distinguish between product failures/defects and parental or caregiver error or misuse. It’s all laid at the feet of the crib design. The CPSC’s “analysis” is pretty simple – you don’t need drop-sides for your baby to sleep comfortably in a crib, and if we eliminate drop-sides from the market, presumably a certain number of unnecessary infant deaths can be avoided. It’s a presumption, however.

It’s hard to argue with their logic but it’s also hard to know what has been accomplished. We do know that the ban of drop-side cribs costs a lot of money, however. Isn’t that relevant, even a little bit? If user education is essential to ANY “solution”, how do we know we have spent our $550 million well or achieved anything whatsoever? The precise mechanism leading to the fatalities cannot be determined from the paltry data released to the public. Table pounding by advocates is, regrettably, not data. As Mr. J.S. Mill notes, the advocates’ histrionics are likely to be taken as “sage” in this case. What if we knew that ten years out, the replacement cribs caused the same number of deaths or perhaps even MORE deaths? The rate of fatalities in these cribs in already remarkably low. How can we be sure that the new cribs will be better? Should we just take Nancy Cowles’ word for it?

I find it interesting that the crib industry has been rather quiet on this change in rules. There are literally dozens of suppliers of cribs in this country, and more than 11 million units have been recalled. Why such quiet from these companies? I suspect the reason is that most consumer do not blame the brands for these recalls, and few people are motivated to return their cribs. [That includes me. Consumer advocates label recalls "unsuccessful" when we the people don't do what they want us to do.] So the cost of the recalls is probably modest BUT the government is mandating that $550 million be spent by childcare providers on NEW cribs. Why would crib manufacturers object to this cost-effective stimulus plan?! Surely many people taking the old drop-side crib out of the attic will say “Whoa, that was recalled. I better buy a new one . . . .” Many, many people.

Thank you, CPSC, for making us so darned safe! The crib industry probably loves you (secretly). Not so sure about hotels and childcare providers. Ultimately I know who pays for all this, however, and it isn’t the consumer advocates or the regulators. It’s the guy who stares back at you from your bathroom mirror.

The CPSC for its part did something easy and self-serving: they saved us from yet another lurking danger that none of us could see, all at our expense. I wonder if the CPSC would be as enthusiastic in their actions if they had to pay for it out of their own budget (or pocket). The money they spend is OURS, and they never even need to steady their hand to write the check. I don’t know about you, but I think it’s much easier to spend someone else’s money, especially when there are a lot of zeroes involved. The CPSC is making us do it for our own good. Does anyone see a problem here?

The new rule sets dangerous new standards for CPSC (government) intrusion into our businesses and into our lives. The CPSC’s action means that the Commission thinks it’s now okay to take retroactive action with impunity. This is a BIG change in regulatory policy. Bob Adler notes: “The Commission has never before entered into a rulemaking, whether or not required by Congress, that not only has retroactive applicability, but also requires the replacement of every product in a given product class – particularly in an occupational setting like child care facilities.” OMG – and this is okay . . . why??? Because he says it’s a crisis and it’s important to do.

This is government power without restraint, and it’s a serious issue. This is much more serious that drop-side crib deaths. I do not know how to run a business in a market regulated by people who make up the rules to suit their mood. I thought there were protections against this.

Let’s hope Mr. Adler and his associates made a good judgment for all of us. They are spending our money and we have no choice but to do as we’re told. That’s “government of the people, by the people, for the people” nowadays, I guess.

I wonder what Abe Lincoln would think of this government . . . .

Read more here:
CPSIA – John Stuart Mill and Crib Safety

CPSIA – Last Ditch and Pointless Comments on Public Database

The CPSC Commission will be voting on a final rule governing the new public database for product safety complaints on Wednesday. The final rule tips the scales at 248 pages.

I know I am a public utility. . . but it’s confession time – I didn’t read it. I know what’s in there and the Powers-That-Be don’t care what I think anyhow.

Commissioners Nord and Northup have published their own alternate rule. It must be worse than the CPSC’s proposed final rule because it’s much shorter, only 27 pages long. I read the Nord/Northup rule – they asked for comments and I believe they will actually listen. It won’t matter because the Commission now votes on party lines, so our comments are irrelevant. The Dems already know what they intend to do. Adler, Tenenbaum and the out-of-office Moore vote as a pack and do as they collectively please. Perhaps this time they won’t even bother to make a pretense of listening to Nord or Northup. I picture the meeting going quickly as the Dems all put on their iPods and ear buds while Nord and Northup have their say. Might as well bop to iTunes, Commissioner communication is at a standstill anyhow.

Relax and enjoy it, kids! You’ll love it. What could possibly go wrong???

Before I tell you all the reasons why I detest the public database, I want to give you my comments on the Nord/Northup draft:

  1. I greatly appreciate the effort and the gesture. They didn’t have to do this, and made a game effort to help out. Their rule has as much of a future as the 2010 Cubs but nonetheless, I admire their commitment to their job responsibilities and to the market the CPSC regulates. Nord and Northup recognize the many risks implicit in the database idea and attempt to fix as much as they can within the context of the deeply-flawed CPSIA, the law of the land. Thank you for trying.
  2. The proposal commendably attempts to limit who can post in the database by narrowly interpreting the CPSIA. This is an appropriate regulatory agency response to an excessive law, something a well-run federal agency would do to keep the trains moving on time. Naturally, the agency has not opted for that courageous route over the past two years.
  3. Much of the proposed rule involves what can be disclosed, how to protest inaccurate information and the disclosure of confidential information. It is highly technical – your eyes will glaze over. It’s all necessary to make the best of a bad situation.

The basic concept of the database is that the government must set up coercive rules to make “bad” companies do the right thing. Apparently, the geniuses behind the database assumed that we cartoonish corporate bad guys would never exercise good judgment without the pressure of the public database. Many steps backward resulted. For instance, the Nord/Northup proposal says that manufacturers will not be provided the name or contact information of the submitter of the complaint or the injured party. We also won’t receive photographs of the injury. And this is for what purpose? Apparently by withholding this information, the CPSC enhances the ability of manufacturers to do their job. I believe this is a reversal of current practice.

There are many consumer “advocates” out there who are telling misleading stories about the database. A good example is “Wallet Pop” who provided an update on the database on November 12th. Here’s how he portrays the situation:

a. “Trying to keep your family safe from dangerous products is extraordinarily challenging.”

RW – Is that really true? What is the evidence that we are all “in danger”? This is not an exaggeration – this is a LIE.

b. “As much energy as the U.S. Consumer Product Safety Commission spends trying to alert consumers to hazardous products, an alarming amount of the information it possesses is kept secret.”

RW – Enforcement investigations and enforcements themselves are very closely associated with litigation. Confidentiality is absolutely ESSENTIAL for any semblance of due process, a Constitutionally-guaranteed right, even for corporations. The Rule of Law protects us all, even if we must tolerate some sacrifices, such as the sanctity of confidential investigations.

That DARNED Constitution, so inconvenient.

c. “Releasing all this information is a frightening and annoying prospect to many companies, who fear tarnished reputations.”

RW – There’s a lot more to fear in the database than just tarnished reputations. Let’s not overlook that the Internet exists. We manufacturers live in a world where the consumer is KING – our reputations are on the line every day already. There are already many websites ready and willing to let you bash away at us, as long as you let them sell ads. So it MUST be something more than “tarnished reputations” that is causing all that fear. Could it be . . . heightened litigation and liability risk???

d. “Nancy Nord and Anne Northup want further restrictions on such things as whose reports can be included in the database (no lawyers acting on a victim’s behalf, thank you) . . . . Traditionally, Nord and Northup are on the losing side of 3-2 votes, but they’re not going down quietly.”

RW – Safety is now PARTISAN at the CPSC. In other words, in their spin machine, Democrats CARE deeply about kids and Republicans are heartless money-grubbers. These days the caring Dems run the show and money-grubbers are always outvoted.

I know you like a good story at bedtime! Bad Republicans, good Democrats. Sweet dreams.

e. Companies will still make huge profits after this database is made public. Is it wrong for a handful of large and powerful corporations to perhaps take complaints a bit more seriously when they come in instead of choosing to dismiss them until hundreds are hurt or innocent children lose their lives?” [Emphasis added]

RW – The CLASSIC mischaracterization of our market that it’s all about big companies. This guy has Mattel and Graco on the mind. The irony is that the mass market companies could care less. The ones who will be CRUSHED are the small businesses. Let’s not forget that Mattel gets to test its own products – and when it LATER had a recall of 11 million units of its merchandise, no one asked any questions about testing. The rules are hardly even a blip to those guys. The cost to Mattel from that massive recall: ONE PENNY PER SHARE. The database is just anothe sidelight to those guys. The story is rather different for small businesses, however.

Not that the CPSC cares . . . .

So why do I hate the database?

1. There is a big difference between restaurant reviews and “United Breaks Guitars”, and product liability. The database is all about litigation and liability risk. Reputational reviews are about goodwill, but the database has to do with systemic risk for our businesses. It is a pro-plaintiff distortion in an already out-of-control tort system. Fundamentally, reputation is about consumer as king. Liability is about bloodsucking lawyers as king. This database is not designed to inform consumers well – the information is not certified. So why have a garbage in-garbage out database. It’s intended to foster more vexatious litigation. Read the WalletPop article again – it’s clear that the database is intended to be coercive. How do you suppose it will be coercive?

2. The government has no business lending a hand to tort lawyers. The tort system which provides the “little guy” with a way to seek redress functions just fine. The New York Times just published a study on hedge fund investing in tort lawsuits. Must be quite the cash cow if those guys are getting into it. The database gives them a new target – you. Why is it appropriate for the CPSC to oversee the disbursement of this information?

Do you think this will raise our standard of living? Create jobs? Increase capital available for investment?

It is worth noting that the database will create an expansion of the role of government in our markets. This is classic government bureaucratic creep where the government attempts to compete with the open market. Yes, there is that Internet thing. All those new tedious jobs, those eyes-glaze-over procedures must be administered by freshly-minted bureaucrats. The database must be built and maintained on government servers. Decisions will need to be made, filings and “transmittals” processed, deadlines watched, complaints followed up. This is PURE overhead. [And there is also the even larger devotion of resources that will need to be deployed by manufacturers.] Read the rules and ask yourself – will the world be better with all the new rules? With this expansion of our government? Isn’t this what you read about in the papers every day?

I am so, so sick of it. When will it end?

3. There is no economic justification for the excessive risk that the government is forcing on the market. The children’s market has not been killing or maiming kids in large numbers. Let’s not forget that we are a country of 300 million and it is not a utopia – some injuries will happen. [My apologies, I don't mean to burst your bubble.] Far more kids are killed or maimed in swimming pools than in any other children’s product activity. Apparently those kinds of deaths and injuries are not as troubling as other kinds of childhood deaths and injuries – there is no database on swimming pools.

4. The database is definitely subject to manipulation by competitors and other agents of corporate extortion and destruction (like bloodsucking lawyers). That is, under the proposal that Tenenbaum and Co. will pass when they take off their ear buds on Wednesday. For myself, I am particularly apprehensive about the stress that the database will place on our company. We will get notice in five days and have ten days to reply. Since the agency is going to launch a publicity campaign to convince the public to report every nit in the database, I expect MANY such postings. Now every broken toy will be a potential liability for our company, and trivial incidents will become our top priority. Forget about growing out business – it’s catering to the exigencies of the database that will matter. Still, I cannot imagine making the database the centerpiece of my business life. I also don’t know how we are supposed to answer a lawyer who asks how we monitor this database if we ignore it. Damned if you do and damned if don’t.

Not that the CPSC cares.

I can hear the advocates now – “This is what we want companies to do. They need to be ‘responsible’ and pay attention to their products and their customers.” Well, that presumes that we weren’t doing that already. In any event, we choose what we do every day. If you make us miserable enough, we’ll get out of this market fast. And that’s what the CPSC seems committed to do.

I think the database will quickly supplant the old way of finding out that there was a problem with our products – namely that our customers would call or write us. So they will place this information anonymously in a database and we will not be able to interview them or see their product. This puts us more in the dark and makes our job much harder. Or impossible. Brave new world . . . .

The whole subject depresses me. Be prepared for more fireworks and then the expected outcome on Wednesday. Our opinions will not sway the Majority (remember, Adler told us that anecdotes aren’t evidence, so they are free to ignore us and our amusing anecdotes).

And after this ugly business is concluded, you know what’s next . . . the 15 Month Rule. Then we’re goners, once and for all. Eric Cantor, where are you???

Read more here:
CPSIA – Last Ditch and Pointless Comments on Public Database

CPSIA – Nord/Northup DB Proposal REVEALED

The embargoed counter-proposal on the public database published this week by Republican CPSC Commissioners Nancy Nord and Anne Northup was briefly available online. During its fleeting moment in the sunshine, we were able to capture it and make it avaiable for your reading pleasure now.

The apparent reason that the Powers-That-Be took this proposal down was that Nord and Northup asked you to give “comments” on their ideas. Whoa, that’s across the line, baby! Comments solicited from the public must be authorized by a vote of the Commission, especially if the proposal was not written by a Democrat.

Unfortunately, I have not been able to verify what kind of Commission vote is required to READ public comments.

I suggest you send comments in to Nord and Northup urgently. I think they might even read them!

Read more here:
CPSIA – Nord/Northup DB Proposal REVEALED

CPSIA – Something’s Cooking on "Children’s Product" Definition

763 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 47 days left until Election Day.

I have written in this space about the recent shocking release by the CPSC of the final rule on the interpretation of the term “Children’s Product” under the CPSIA. The agency’s official interpretation of this defined term will dictate the creeping scope of the awful CPSIA and likewise has the potential to trim its sails. Many people gave detailed comments on the agency’s troubling initial draft of the interpretative rule, including me. I bashed the rule for its many problematic flaws.

The release of the final rule was stunning because, as I have noted again and again, the agency basically ignored or dismissed ALL comments on its draft rule and more or less installed the draft law as “final”. I interpreted this move as signalling the end of the CPSC’s rulemaking phase under the CPSIA. I assert that this came about as a result of a directive “from the top” to stop dithering and finalize the rules NOW, damn the consequences.

Why stop writing rules now? The CPSIA rulemaking process has left the agency and its Dem leadership exhausted and impatient. The Dems do not want to spend any more time writing rules – it wants to start catching “crooks”. The remarkably small number of consumer injuries by products regulated under the CPSIA is no deterrent to these people – the Dems were given their jobs to catch bad guys, and catch (and perhaps manufacture) bad guys they will. As Ms. Tenenbaum has promised time and again, 2011 will be the year of enforcement. This promise implies a couple things: CPSIA rules need to be finalized quickly AND the testing stay must be lifted in February 2011. Oh yeah, the testing stay, almost forgot about that little guy . . . . Thus, time is running out on rulemaking and hence the agency’s need to ignore our comments – no matter that their rules are shamelessly fouled-up and defective.

Congress “wants” it this way, or at least Mr. Waxman and his staffers insist on it. The Dems on the Commission are there to play ball.

In case you doubt my “paranoid” theory, check out the CPSC website today. Anyone notice that something is missing? Where’s the CPSIA banner today? The law is now listed below in small type. The CPSIA is over, it’s so yesterday . . . .

And if you buy the foregoing, then the pending rulemakings on component testing and reasonable testing programs/testing frequency should have you fouling your pants. Those two “bad boys” have pushed me into politics. I am trying to stave off disaster – I believe the agency will turn those deadly draft rules into final rules simply to avoid extending the testing stay and further to avoid delivering a very unwelcome message to Mr. Waxman that his masterwork law is thoroughly defective. And if the Dems rush it, they can inflict all this damage before Republicans can save the day after retaking the House and Senate. Tea Partiers, please take note.

But wait . . . there’s something up at the CPSC. The rule on Children’s Product was originally scheduled for a rubber stamp vote on September 9th. Then it was rescheduled for September 15 and then pushed forward to September 22. What’s up with this?

Normally, the delay of a rubber stamp action means there is a big disagreement behind closed doors and Commissioners are duking it out in private shuttle diplomacy between staffers. [Sunshine Act rules prohibit a meeting of more than two Commissioners without holding a public meeting that you can witness - so disputes are resolved using intermediaries. Just like in the Middle East, working through third parties is a great way to work out disputes . . . .] In other words, somebody on the Commission may actually know how shameless it is to ignore legitimate and fair comments in a public rulemaking process, even if those darned comments are so inconvenient. And, ouch!, if they must remodel the rule, they might have to release it subject to another comment period. Another comment period could pose BIG problems for the testing stay, creating a real dilemma for our Dem friends. If they push out the stay AGAIN, that more or less seals it – they clearly need infinite years to implement the CPSIA, which confirms that it is a thoroughly defective law.

And there is also the looming possibility of a Commission quorum problem. What?! Well, Commissioner Thomas Moore’s term ends in late October and he can only serve until year end. Then things get very complicated. If he is not replaced promptly, OMG, it’s a deadlocked Commission again! Tenenbaum and Adler won’t be able to get their way anymore – AW SHUCKS! – they MIGHT actually have to listen to Nord and Northup at least until another Obama puppet is put in place. And if the Senate goes to the Republicans, it might be pretty hard to confirm the usual zealot. Hmmm.

See the reason for the urgency yet???

The whole situation makes me want to tear my hair out. I have a business to run – can you IMAGINE being held hostage by this kind of idiocy in your own government? Well, we ARE being held hostage by our own dysfunctional government.

Tea Partiers, and anyone with a reawakened sense of OUTRAGE, take note. Election day is November 2nd, in case you didn’t hear. . . .

Read more here:
CPSIA – Something’s Cooking on "Children’s Product" Definition

CPSIA – Losing Sight of the Issue in Pool Deaths

These are the people who are protecting you:

“[The] CPSC, which kicked off a pool-safety campaign Thursday, emphasized that [pool safety] issues go beyond drains: At least 70 people drowned in pools since Memorial Day; 80 more almost drowned. ‘There were thankfully zero drain entrapment deaths in 2009,’ says CPSC spokesman Scott Wolfson. ‘Our campaign is aimed at reducing child drownings and keeping entrapment deaths to zero again this year.’” [Emphasis added]

USA Today, July 3, 2010 “Pool-safety advocates decry loss of drain backup rule

Yes, the safety enforcement circus carries on. The USA Today reports that AT LEAST 70 people have died in pool drownings since Memorial Day (May 31). The July 3 article appears 33 days after Memorial Day, so that’s more than TWO DEATHS A DAY. Another 80 almost drowned – the total serious injuries and deaths is about FIVE A DAY. And the CPSC’s reaction – if the deaths didn’t occur from pool drains, we can all breathe a sigh of relief. WHEW! If they had died from a pool drain, that would have been really TERRIBLE.

Of course, the victims are still dead. Not a safety concern, apparently. We must stay focused on pool drains . . . .

I know you think I’m kidding BUT to judge by the reality-detached hyperbole of our heroic Democratic Congressional leaders, you’d never know it. Consider the remarks of the estimable Rep. Debbie Wasserman Schultz, one of Ms. Pelosi’s attack dogs in the CPSIA drama: “CPSC interpreted the law in the ‘most egregious and narrow way possible’ by eliminating the requirement for backup systems, Rep. Debbie Wasserman Schultz, D-Fla., and co-sponsors of the law said in a letter to CPSC Commissioner Robert Adler last month.” [USA Today article]

And why did Ms. Wasserman Schultz think this action was so “egregious”? Here are her words: “We understand that the interpretation that CPSC adopted is the same one that the pool and spa industry endorsed, and is not the interpretation that public interest groups and victims’ families had urged the Commission to adopt.” Aha – how DARE the CPSC defy consumer groups in favor of evil industry?! Doesn’t the agency know that if industry wants something, it must be bad for consumers?!

Democratic Senators pitched in as well they could. Drawn from the same rogue’s gallery that brought you the noxious CPSIA (Pryor, Durbin, Klobuchar, Nelson (FL) and Dodd), the Senators stated that the Commission violated “both the spirit and the letter of the act.

Okay, Junior Scientists of Congress, committed to making us so so SOOOO safe, please note that deaths from pool drains totalled 11 in ten years according to the CPSC. However, total deaths from pools is more than two a day since Memorial Day, and has averaged 385 per year for children under 15 in recent years. So you guys are hassling the agency over a design flaw that causes 11 deaths a decade, and seemingly want it to be the priority of the agency over, say, general pool deaths which total almost 4,000 kids each decade (about 3,000 are under five). Perhaps you should have sent your letters to the families of the 70 victims in the last 33 days so they’d know how much you care.

For a change (it’s been a long-g-g-g-g time coming), the agency was trying to make a practical decision on how to implement a very expensive law focusing on a small problem. The data now suggests that the expense of the Virginia Graeme Baker repairs are prohibitively high, especially in light of the infrequent injuries (however horrific).

Sadly, when it could finally take the high road, the agency flinched in front of the press, insulting the memory of the 70 recent drowning victims. To slough off the 70 recent deaths because they weren’t caused by pool drains is nothing short of abdication of duty (or resignation to failure). I don’t know about you, but I am plenty tired of politically-motivated, pet project, holier-than-thou safety. This benefits no one other than the pandering politicians hoping to dupe you into voting for their reelection.

Will this madness EVER end???

Read more here:
CPSIA – Losing Sight of the Issue in Pool Deaths

CPSIA – McDonald’s Shrek Glasses Weren’t an "Imminent Hazard"

Some people apparently think I contend that product recalls can only take place if the CSPC insists. I have certainly argued that the CPSC has no authority to demand or even ask for a recall unless certain specific conditions are met. Hate to be the bearer of bad news, guys, but there are limits to the agency’s legal authority. Companies themselves can recall products for any reason. There need not be a safety reason – you can recall something from the market because the color’s wrong, the material is somehow less than expected, wrong size, wrong instructions, wrong packaging, whatever. A company’s ability to recall its own products is not limited by law.

In the case of the McDonald’s Shrek glasses, yes, McDonald’s declared a voluntary recall. That’s not unusual – the vast majority of recalls are voluntary. Only a tiny handful of recalls every year are “mandatory”. In any event, the critical issue here is NOT that McDonald’s made this choice. As we have discussed, the publicity from this event forced McDonald’s hand – they had to protect their brand at all costs. The issue here is that the CPSC apparently “urged” the company to “do the right thing”. [These words come from the OnSafety blog, the official blog of the CPSC, believed to be written by Scott Wolfson, Director of Public Affairs.] It was apparently the “right thing” to do although the agency conceded that the glasses were “not toxic”, in other words SAFE.

While companies are allowed to choose to recall safe products at their pleasure, the CPSC does not have the unlimited legal authority to reach out to American companies and tell them to take this kind of voluntary action.

The power to recall emanates from certain provisions of the CPSA and FHSA. Notably, Section 12(a) of the CPSA, the agency can’t go to court unless there is an “imminent hazard”. What might that be? “As used in this section, and hereinafter in this Act, the term ‘imminently hazardous consumer product’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.” Given that the glasses have been acknowledged to be “non-toxic”, this standard is impossible to meet.

The relevant term in the FHSA is “banned hazardous substance”. In Section 2(q)(1)(A), it is defined as “any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted”. [If a ban is done pursuant to subsection (B) of this clause as a "household item" because it is chemical in nature, it must be done by rule, subject to comment and so on. There was no rulemaking process involved in this case.]

“Hazardous material” is defined in Section 2(f)(1)(D) in relevant part as “Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 3(e) of this Act, presents an electrical, mechanical, or thermal hazard.” And Section 3(e) refers only to electrical, mechanical or thermal hazards, clearly inapplicable here.

Bottom line, the McDonald’s glasses are outside the reach of the CPSC . . . if the wording of its principal empowering laws matter anymore.

Read more here:
CPSIA – McDonald’s Shrek Glasses Weren’t an "Imminent Hazard"

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