CPSIA – Decorum

I have received some comments in the last 24 hours that I consider abusive and personal in nature. This blog space is intended to be a forum for discussion of a limited topic, the issues surrounding the CPSIA, its implementation and its administration. I do not attack people personally for their views, although I certainly reserve the right to disagree with the positions, tactics or methods of the various actors in this drama. This is not personal and will not become personal while I am on the watch.

Let’s keep it clean, guys. I do not filter comments to this blog and do not want to. To date, the only comments I have deleted are comments that promote other people’s businesses (generally, these comments promote “adult” businesses) and one comment that I felt was insulting to a Commissioner (a Democrat, as it turns out). Some things are just across the line. I do not want to restrain your ability to comment here BUT if you won’t obey the rules, I will turn on the filter and will shut you down.

Please don’t ruin this for everyone. I will not tolerate personal attacks or other violations of ordinary decorum in this space.

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CPSIA – Decorum

CPSIA – Mike Green Attacks Anne Northup in WSJ

In Thursday’s Wall Street Journal, Mike Green of the notorious Center for Environmental Health, a known Proposition 65 bounty hunter, attacked Commissioner Anne Northup for her criticisms of the CPSIA:

“Anne Northup notes that the Consumer Product Safety Improvement Act (CPSIA) passed with bipartisan support, so it is surprising to see her partisan attack on this children’s health protection law (”There Is No Joy in Toyland,” op-ed, Dec. 24). She states that lead in metals used in children’s products is not “bioavailable,” and thus cannot harm children. This will come as a shock to Juanna Graham, whose son died after swallowing a metal charm. At least eight other children have suffered lead poisoning after sucking on or swallowing small lead pieces from toys or jewelry.

Ms. Northup also errs in stating that lead is not absorbable in materials other than paint. Over the past five years we have found high levels of lead in numerous vinyl children’s items, including baby bibs, lunchboxes, rain gear, toys, and others. Independent lab tests showed that lead in these products can wipe off and expose children to unsafe levels of lead.

Michael Green
Executive Director
Center for Environmental Health
Oakland, Calif.”

This is nonsense, of course. It is very important to leave comments on this misleading and manipulative letter at the WSJ.com website. If you click at the link above, you will see a block to leave a comment. I left one and you should, too.

Thank you.

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CPSIA – Mike Green Attacks Anne Northup in WSJ

CPSIA – How Important is Testing After All?

Let’s zoom up to 40,000 feet and look down on the CPSIA mess. If Martians were watching this affair unfold before their uncomprehending eyes, what would they think?

In 2007/8, a large number of toy recalls and jewelry recalls dominated the newspaper headlines. A closer examination of these recalls shows that they were largely restricted to lead-in-paint and lead-in-jewelry, but few people bothered with the details – hysteria was a lot easier. Sold on a rationale that it is “impossible” to know if something’s safe without testing it, Congress wrote up legislation to require prophylactic testing of all children’s products, a mind-boggling array of products ranging from pens to t-shirts to science kits to ATVs to shoes.

Being entirely unable to anticipate any problems with this brilliant construct, Congress was shocked to find that the CPSC couldn’t implement these requirements without crushing small businesses (among others). A finger-pointing contest broke out, where Congress insisted that the CPSC had the power to implement the new law with “common sense” (read, make up law to make the whiners go away) and the CPSC pushed back that it lacked regulatory flexibility under the CPSIA and legally was forbidden to assess risk. Standoff!

Of late, a weary and perhaps more sensitive CPSC is now taking a more conciliatory stance, expressing an interest, in the words of Ms. Tenenbaum, “to get it right”. Aside from soliciting feedback from stakeholders, the agency is clearly trying to draft rules permitting small companies to reduce their compliance costs. The net effect: testing is ebbing away. Now with component testing, it is possible for companies to get out of testing altogether for many of their products. Other rules, like flexible rules on rules on sampling and testing frequency, among other rules being crafted, are further reducing the testing burden. [I strongly support this movement by the CPSC, let there be no doubt.]

But I am confused now. Rachel Weintraub of the Consumer Federation of America famously taught us that “Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested.” [Emphasis added.] Yet the CPSC seems to be pulling away from Ms. Weintraub and her wisdom on testing. Is testing critical or not? Is safety achievable in other ways (perhaps various elements in combination)? If testing isn’t so essential after all, what’s really going on here?

I have a theory to share on this question: The recent movement by the CPSC on testing is tacit acknowledgement of our argument that there is more to safety administration than testing. Furthermore, the ebbing of testing requirements is a further acknowledgement that we are not facing a massive public health crisis in children’s products – and never were. Yes, that means poison zippers, brass bushings, ATVs, pens and bikes really is a joke, as you thought. So why the big fuss, why isn’t everyone linking arms and singing Kumbaya, if there is acceptance that a lesser standard will be sufficient to ensure safety?

It’s simple – the issues go beyond this law, and that’s why the Dems in Congress will budge. In fact, we are pawns in a bigger game, namely the battle to establish the precautionary principle in the Toxic Substances Control Act (TSCA). This is Mr. Waxman’s dream legislation, his effort to rein in the chemical industry. The folks behind the TSCA reform legislation are deeply suspicious of chemicals in our lives and want to regulate them on a precautionary basis, not entirely unlike the way we approve drugs. It’s the “fear of everything” all over again but BIGGER.

How does this tie back to the CPSIA? We are the test case, kids. The CPSIA was the first skirmish in the TSCA war. The two substances regulated on a precautionary basis under the CPSIA, lead and phthalates, either make or break the case on TSCA. If the Dems give in to our demands and acknowledge that their precautionary scheme didn’t work, that it ate up the regulatory agency (now nicknamed the Children’s Product Safety Commission), then how can they win approval of TSCA?

This is why the Dems are so resistant to rational change of this ridiculous law. This is why they won’t listen to reason or consider facts. The facts are contrary to their larger goals, so they need to ignore them or deny them. In this context, it is better to send us down the river than deal with our issues. Although their tough testing scheme is being unraveled, they won’t admit that it means that the crisis never was; without a crisis to fix, the entire logic of the CPSIA and their precautionary trial balloon fizzles. The Dems must insist that the crisis is still severe and that there is only one solution, the precautionary principle. Otherwise, they don’t get TSCA.

[Side note: There was a "telltale" in the Waxman amendment to the CPSIA last week on TSCA. A big issue in TSCA reform legislation is the possible use of "junk science" to justify removing valuable chemicals from use in our country. With all the self-appointed consumer representatives clamoring for a chemical-free world, there is good reason to fear manipulative use of science under TSCA to disrupt the chemical industry. It's no different than the misuse of lead toxicity and antimony health effects by consumer groups to attack toys and other children's products under the CPSIA. Some people have been insisting on a "peer-review" standard for these scientific challenges to chemical use - which Mr. Waxman fear may hobble his precautionary principle law. This term is used in Section 101 (b) in the CPSIA to make it more difficult to get exemptions - but was stripped out of the law in Mr. Waxman's unilateral amendment. See my first blogpost on his amendment. His "generous act" in removing this ridiculous stumbling block wasn't a signal of increasing sympathy with our problems. No, in fact, it was simply aimed at resolving one of his problems with TSCA.]

I have no easy answers for how this ends. If you feel your anger welling up, you’re not alone. Actually, I think the regulators are sick of it, too. The CPSIA has truly consumed the CPSC and made the daily affairs of that agency some kind of purgatory for the staff there. I can’t imagine it’s much fun being a Commissioner either. Frankly, the biggest shame of all is that by Congress (the Dems, really) insisting on an unworkable scheme for reasons unrelated to children’s product safety, the agency has been rendered ineffective, bureaucratic and stuck in gridlock. The CPSC’s essential role has been mooted. That’s bad for everybody – in a perfect world, the agency is free to do its job and look for real safety problems to solve. Instead, it has to spend its time figuring out whether water slides are primarily intended for children and the like. What a tragic waste.

In the wake of last week’s demise of the Waxman amendment and the extension of the lead content Stay, we must retain our focus and continue to push hard for a change in the law. The facts are piling up and the excuses for inaction are fading. It’s time for action – for the good of consumers, for the good of industry and for the good of the CPSC.

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CPSIA – How Important is Testing After All?

CPSIA – Commission Delays Vote on Lead Content Stay for One Day

In this morning’s hearing on extending the testing and certification stay (the “Stay”), the Commission opted to carve-out lead content from the Stay. The decision on how to handle lead content under the Stay is docketed for a ballot vote tomorrow. [Just to clarify, other aspects of the Stay were extended today including situations where the rules and certifications have not been completed, such as ASTM F963 and phthalates.]

Frankly, the demise of the Waxman CPSIA amendment throws a HUGE curve ball at the Commission. Now that Waxman’s fractious process derailed his attempt to “fix” the CPSIA, however ham-handed that attempt may have been, it seems that change is in the air. Will the Commission plunge on ahead with its big decision as though nothing has changed? Your guess is as good as mine. Unfortunately, things are happening so fast that events are literally overlapping – the news about the dead amendment came as the CPSC was completing its morning hearing. It seems to me that the Commission must now take even more time to carefully consider its next steps – this historic opportunity to force common sense change should not be squandered.

It seems equally important that the Commission reject partisanship and pull together, even if it takes more time and more debating (off-line and in the public eye). The poisoned partisan atmosphere of Waxman’s House Energy and Commerce Committee sadly seems to have migrated to the CPSC Commission. In today’s hearing, Commissioner Northup called for more effort by the Commission to reach 5-0 votes. What a timely call THAT was! The failure of the Waxman amendment can be interpreted as Congressional rejection of partisan control of safety by the Democrats alone. Over the course of the past year, partisan hubris led to extremism, culminating in a small number of Democrats co-opting the law as self-appointed defenders of the “will of Congress”. Safety belongs to everyone – it’s not political. The call to action now is for the Commission to act as one. Whatever damage the Waxman fiasco caused to working relationships needs to be rapidly repaired through the individual leadership of the Chairman and the other Commissioners.

The Commission has balloted Anne Northup’s motion to delay lifting the Stay on lead content until six months after the issuance of the so-called “15 Month Rule”. This proposal, acknowledged by Inez Tenenbaum to be based on “common sense”, is not likely to be adopted without a gentle shove. Ms. Tenenbaum herself stated that manufacturers had asked for a “date certain” when the Stay would be lifted. [One can only hope that she was confusing a reasonable request for certainty, as in knowing what the rules are and when they will be imposed, with a request for a deadline. I cannot imagine who would demand a compliance deadline from the CPSC without knowing what the rules actually are, and if such a (neurotic) person exists, I would like to speak to him/her to better understand WHY they think this would be helpful.]

Even more worrisome, Commissioner Bob Adler contended that “Congress” wanted to be sure that everyone is in compliance with the law. [This personification of Congress is very troubling, especially since the Waxman fiasco makes clear that the original CPSIA votes no longer reflect the will of Congress today - or else how was an amendment by the powerful Henry Waxman stopped? This kind of thinking needs to be revisited.] Mr. Adler further asserted that based on feedback from small manufacturers, the most serious concern today is component testing which will be addressed by the CPSC’s new interim enforcement policy. Adler was rather dismissive of the market impact of the 15 Month Rule beyond component testing and he even asserted that the VAST MAJORITY of manufacturers would be “just fine” with lifting the Stay today if they got effective protection for component testing. I question Mr. Adler’s research on this point.

The lines are drawn for tomorrow’s fight. Mr. Adler has stated a preference for a date certain of August 14, 2010 for full implementation of the testing and certification rules. Ms. Tenenbaum says she would vote to extend the Stay again if the 15 Month Rule is not completed by August 14, thereby signalling her approval of Mr. Adler’s formulation. [Market chaos be damned?] Mr. Moore generally follows the party line so you can count him in, too. If the Dems don’t move off these positions by tomorrow, we are looking at a date certain of August 14 for lifting the Stay on lead content. This would sadly be more of the same. [Makes you wonder why we all took two days out of our lives to go to the CPSC to give comments at last week's 15 Month Rule workshop, or even more bizarre, why the CPSC called for comment letters on the 15 Month Rule by January 11 - if the Commission is seriously thinking of voting tomorrow to lift the Stay without considering ANY of this input. So - which process is a sham, the workshops and the comment letters, tomorrow's vote, neither . . . or both?]

The problem with the August 14 “date certain” proposal is that the following matters have not been resolved:

• Testing frequency
• Component testing
• Re-testing requirements
• Sampling requirements
• ASTM F963
• Lab certifications

It was noted in today’s hearing that only EIGHT certified laboratories have been approved for lead content in children’s non-metal products, three on the West Coast and the rest overseas. Here’s the list:

1. Bureau Veritas (three China lab locations)
2. CTC Group
3. Intertek (two China lab locations)
4. Istituto Italiano Sicurezza Dei Giocattoli S.r.l.
5. MSR Laboratories, LLC
6. SGS (one China lab, one U.S. lab, one India lab location)
7. Specialized Technology Resources Ltd. (one China lab location)
8. Union Technology Research & Service Center

For perspective, consider these long lists of locations for three leading labs: SGS (worldwide), Intertek (China list only) and Bureau Veritas (China list only). That’s just the tip of the iceberg of the testing market (admittedly not all of these labs focus on or serve the children’s product industry). One lab we use, not on the above list, reportedly can’t seem to get someone from the CPSC to visit them to certify them for lead content testing. It’s understandable – the effort to process all these (pointless) certifications is taking a lot of the agency’s resources and time. The CPSC is just not ready to manage this enormous bureaucracy even 16 months after passage of the law. Eight labs to serve the worldwide children’s product industry for access to the U.S. market by August 14 – that’s a BAAAD joke.

With the Waxman amendment behind us, the Commission has a great chance here to focus its efforts in the right direction. The recent Omnibus Appropriations Bill (H.R. 3288) contains these instructions: “The CPSC is directed to assess enforcement efforts of [CPSIA] section 101(a), including difficulties encountered, as well as recommendations for improvement to the statute, and to report to the House and Senate Appropriations Committees, as well as the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee, no later than January 15, 2010.” This report should be the focus for the Commission at this time. The Stay is secondary to this historic opportunity, and as such the Commission should not get caught up in the moment. MANY legitimate concerns have been raised by manufacturers relating to the lead content aspects of the Stay. We are not all guilty until proven innocent – why can’t these valid doubts justify taking the time to “do this right” (as Ms. Tenenbaum called for in a November hearing)?

With change in the air, the Commission needs to seize the moment and lead us out of the wilderness by calling for a technical amendment to the law. The January 15 information request is the golden opportunity. The agency should not simply respond with something designed to please Henry Waxman – that would fumble the ball. Instead, the agency must offer up suggestions designed to meet the will of Congress expressed this week – namely, a proposal to fix the flaws in the CPSIA while providing reasonable protection to children.

It’s time to do the hard work. I am ready to help – are you?

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CPSIA – Commission Delays Vote on Lead Content Stay for One Day

CPSIA – Interesting Admissions by Mattel

In a November 9 Product Safety Letter article, Mattel spokesmen were quoted bemoaning the burdens and confusion of the CPSIA.

In Mattel’s public meeting with Commissioner Bob Adler, Mattel sounded bedraggled and overwhelmed by the new law:

“Peter Biersteker, a lawyer for Mattel with the law firm Jones Day in Washington D.C., said his client is finding the CPSIA difficult to decipher. The law, he said, is unclear on what products the company needs to test, how often it needs to test them, and how many samples need to be tested. ‘It’s a lot of work. I don’t know how smaller companies do it,’ Biersteker told Commissioner Robert Adler. Despite Mattel’s large team of in-house lawyers, he said, the company needed to hire outside lawyers to help understand the CPSIA. He said Mattel holds weekly conference calls on the issue, discussing how to comply with the act while remaining ‘cost competitive.’”

Ed. Note: Hmmm, where have I heard this before??? Oh yeah, in this space, about 100 times since the blog went live in January. Key points:

• The new law is unclear
• The implementing rules are unclear
• CPSC guidance has not resolved these mysteries (and IMHO made them worse)
• A team of lawyers is needed to interpret the mess – a team of business people is insufficient
• Small businesses have no chance under the CPSIA
• Internal resources are overwhelmed by the CPSIA’s legal demands – even for companies with a large internal law department
• The seriousness of the legal risks under the CPSIA means that any prudent company MUST hire expensive outside experts to provide compliance advice (and for many small businesses, this is just not a realistic option economically)
• Remaining “cost competitive” is a seemingly unsolvable puzzle under this law.

And if Mattel says so, it MUST be true.

Adler was sympathetic (I can see the tears welling up . . . ):

“Adler responded with, ‘Believe me. I’ve been struggling to learn it myself.’ He said it’s hard for CPSC to issue guidelines that are applicable to both large and small firms.”

So the Commissioners themselves don’t understand the law and the agency’s rules. Join the club. And Adler admits that the law doesn’t permit the agency to address small business concerns adequately.

Perhaps the CPSC leadership should talk to Congress??? Hey, that’s an interesting thought . . . .

More good news – Mother Mattel is trying get the rest of the world to adopt the U.S. insanity:

“[Jim Walter, Mattel's senior vice president of product integrity & chief regulatory officer] said Mattel is working to internationally harmonize future product safety standards, finding that harmonizing standards after they have been issued is too difficult.”

I have also heard directly from the TIA and others that lobbying efforts are underway to make the CPSIA a world standard. In other words, by drumming up support for this craziness, the big toy companies can ensure that no one will escape the costs that they must incur to remain active in the world’s largest toy market, the U.S. To heck with small business interests! How generous of Mattel to get behind the law developed in response to its own bad behavior. I am so grateful for their guidance and oversight – they did such a great job in 2007/8, no doubt they will do even better now!

About the only consolation I can offer is that I don’t think the failings of the CPSIA are lost on the outside world. The recent ICPHSO conference in Toronto made clear that no one in Canada is clamoring to use the CPSIA as a model for their new safety law. Contentions to the contrary by officials in this country must be taken with a grain of salt. It is abundantly clear that the CPSIA is yet another self-destructive U.S. initiative by the worst Congress in U.S. history – and no foreign government is any hurry to work that magic on their own economy just because Henry Waxman and his merry band has Hari-Kari in mind for us. Interestingly, other countries seem to know that jobs matter.

Mattel’s admissions frame the challenge for the rest of us. We need to make sure that the CPSC is well-aware of the completely unrealistic scenarios they are forcing on businesses (large and small) and to hold them accountable to push Congress to address these issues SOON. 2010 is an election year and it will be increasingly obvious to one and all that we will have our chance to replace those members of Congress who will not cooperate with our reasonable requests. Let’s hope that they can see the future . . . and choose to act before it’s too late.

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CPSIA – Interesting Admissions by Mattel

CPSIA – Testing Guidance Comments

The CPSC put out long awaited guidance on testing and certification. The hearings on this guidance took place on November 9. I wanted to give some preliminary comments:

General Comments:

The Guidance is generally helpful and clearly well-intended. This is a helpful change in tone that will be welcomed by the business community. I encourage the CPSC to keep working on the tone of its communications to rebuild trust with the business community.

As a general matter, I find that this guidance speaks with two voices, one focused on reasonableness and good judgment with the goal of safety, and the other focused on rule-following and a byzantine structure for compliance judgments that is divorced from concepts of safety. For instance, the guidance stresses the importance of third party testing of lead-in-paint on children’s products. The guidance includes an extensive section with very specific suggestions on how to accommodate lab testing for various paint scenarios (Sec. D), suggesting that the CPSC thinks that lab testing is absolutely required to assure compliance with this standard. Later, the guidance notes that “Painted non-children’s products likely to be used in the home and around children, and wet paint in the can also must comply but can be accompanied by a general certificate of conformity.” So, the CPSC apparently thinks it is essential to test SOME products for lead-in-paint that children will regularly encounter in the home, and as for the rest, they are prepared to trust the manufacturer. It also suggests a much lower sense of urgency on lead levels in those other products. From a safety perspective, one of these approaches must be right but they both cannot be right at the same time. How does the CPSC expect their rules to be respected (or understood) if they blow hot and cold on such an important subject?

There are other conundrums, such as conflicting uses of the term “reasonable certainty” and “reasonable assurance” when describing compliance. These terms have very different meanings and connotations. [The better term is "reasonable assurances" because "reasonable certainty" is an illogical term akin to "nearly precise".] In addition, at times in the guidance, the CPSC describes in great detail the factors that a reasonable manufacturer should weigh in making judgments, and then in other seemingly similar circumstances, articulates bright line compliance requirements. Bright line rules are almost certain to cause chafing, as there are so many different industries affected, and many companies have innovated in safety and supply chain processes designed to assure good quality. Specific bright line rules will offend innovators and will tend to force them to share or squander their proprietary efficiency gains. For instance, phthalate testing plans and frequency is something that should be left to the best judgment of manufacturers. Why? Because phthalates are additives not found in nature, and if the manufacturer’s supply chain has been trained to eliminate it as an additive, testing and retesting won’t find it. The incentive to run your business well is eliminated when you cannot capture the benefits of efficiency.

It would be my strong preference that the CPSC rethink this guidance from the perspective solely of a safe environment for children. As a starting point, the CPSC Staff must candidly decide if they think children are in danger now and describe precisely how they are in danger. The concept of “no safe levels of lead” has been debunked by CPSC Staff and even the Commission itself. To my recollection, no lead exemption request under Section 101(b) has been rejected for safety reasons, only for lack of flexibility in the statute. In addition, in last week’s brass bushings hearing, Commissioner Adler repeated the consumer group’s slogan “no safe level for lead” and then went on to state that the Learning Curve toy cars (subject of the exemption request) were perfectly safe to use even with a child at some hypothetical tipping point in blood lead levels. Thus, both CPSC staff and Commissioners concede that there are safe (tolerable) levels of lead. We need to move past sound bites and refocus on the real safety problems faced by children. Some of these problems probably involve lead (bio-available lead). I believe the agency can identify those risks that deserve attention, and would concede that the rest do not (at this time). This is crucial for a system of rules that will be respected by the stakeholders in the safety debate. Silly implementing rules lead to silly results, unfortunately; famously, the CPSC has “okayed” several metals for inclusion in children’s products that are KNOWN to be quite dangerous – all because they are also known to be lead-free. A set of rules focused on real safety considerations will be much better received and will be far more effective, too.

It is also worth noting that the complexity of this guidance will likely defeat its purpose. When it takes 31 pages to explain how to sensibly test your products, with two dozen FAQs to clarify the ornate rules, it is clear that something’s wrong. If the CPSC wants rules that will be understood by the “masses”, the rules must be simpler and more focused and manageable. It is important that to note that the regulated community will not put the time into mastering the nuances of these rules like the few interested parties have done for the last year. Rules that work are shorter and simpler. My preference would be rules along the line of the factors listed in B.4 coupled with a requirement that manufacturers exercise good faith, make best efforts to comply and use reasonable or best judgment in making decisions. This both describes how a best-of-class enterprise thinks through safety issues and creates a basis for the CPSC to take action against “bad guys”. The rules can sacrifice some complexity and even some coverage in favor of ease of understanding in order to assure practical effectiveness.

Specific comments:

a. The Five Steps approach to designing a “reasonable testing program” creates a mega-bureaucracy, but to what end? Is this being created because the CPSC thinks it is necessary to solve a known safety problem or crisis, or just to accommodate a badly-written law? I think it’s the latter, and thus I believe it is appropriate to consider the new mega-bureaucracy to be a misdirected tax we will pay (to testing companies and others) annually. I think that’s bad government policy, as I think taxes (if necessary) should be paid to the government, not to private parties. Notably, the five steps do not include any advice on supply chain management. The issues in supply chain management (addressed in part in a different list in B.4.) are the source of most non-design legal compliance issues. A testing-focused set of guidelines is unlikely to change safety statistics, in my view.

b. I am blown away by the list of items subject now to GCCs outside children’s products. This completely escaped my attention previously. I think this will shock a lot of people. Again, this is a most unwelcome creation of new bureaucracy that is unlikely to serve any safety purpose. It is not designed to solve a real problem and thus cannot be justified.

c. The guidance makes the following distinction: “regulations concerning reporting, recordkeeping, inspections,: guaranties, certification, or tracking labels are not ’similar’” but “any requirement of a rule, standard or ban under another act enforced by the Commission other than the CPSA that requires a warning or instruction, or specifies the form thereof, is similar”. How are manufacturers supposed to figure this out? What’s an “instruction”? Why is a “tracking label” not “similar” but a “warning” is “similar”?

d. In the section entitled “Will the Commission Require General Conformity Certification that a Product is Not Subject to a Ban?”, the guidance articulates a rule that everything within a class of products subject to a ban must be tested to back up a GCC. This will significantly increase costs but may not contribute to safety. The better rule is again to leave it to the reasonable judgment of manufacturers, as this will retain a focus on compliance, rather than testing for compliance. Overtesting, for instance for phthalates, will hurt small businesses disproportionately. If a business can organize its affairs to comply, they should be rewarded, not subjected to the same costs of companies less capable of managing their compliance obligations.

Overtesting and other bureaucracy that is not focused on safety will tend to punish U.S. small businesses in the international marketplace. Many companies, like ours, make a significant market outside the U.S. where our competitors do not have to follow U.S. rules to compete in those foreign markets. Overtesting for the U.S. market, or barriers like retesting for changing suppliers, will tend to create a long term cost advantages for foreign companies in foreign markets, reducing the ability of U.S. small business to enter foreign markets or remain competitive there. [Some members of the toy industry are advocating for international harmonization around U.S., rather than attempting to get U.S. standards and practices to become more rational. This "race to the bottom" can do tremendous damage - we need to rise above and set up a system that works but costs a lot less.]

e. The guidance should differentiate treatment of ink under the L-I-P rules and should state plainly the basic rule that if the can says “ink”, it’s ink and is not subject to the L-I-P test requirements.

f. The rules on retesting for a change in manufacturer need to be loosened. The guidance strongly favors mass market companies for their economies of scale and creates a barrier preventing or inhibiting small volume manufacturers from lowering their manufacturing costs. It goes without saying that lowered costs cannot sacrifice legal compliance or the duty of care toward consumers. It rarely does, in fact. The requirement for retesting will significantly hurt small businesses, however. It is important to note that changes in manufacturers is the most common reason for a change in components. For companies with stable product lines, swapping of components may not be very common. In our business, it is rare to change a component and not change the factory. Thus, we will gain little advantage from the rules focused on switching out components.

g. In Section B.2, the guidance strongly encourages annual testing. This will hurt small businesses. Our company’s focus is on producing safe and legally compliant products. We tend to focus on those issues that might affect safety or legal compliance. In our case, few things change in our manufacturing processes that would affect either safety or compliance over time. Thus, annual testing is a waste of money and rarely provides useful information in the administration of our business. If you test and test and test and get the same results each time, what is likely achieved by the next test? Again, the guidance should be focused on substantive safety compliance, not substantive testing compliance. The ONLY solution that will work for all companies in all circumstances is a rule dependent on good faith and best judgment. The principles outlined in B.4. form a good starting point on principles of supply chain management for this purpose.

h. The concept that someone can track the myriad different testing cycles by the components in a product, for most businesses, is a fantasy. In addition, the guidance notes that it may make sense to simply retest the whole product on a regular schedule “a means of simplifying cost, administrative burdens, or other factors.” In other words, the CPSC concedes that the market will not likely accept this relief. The scheme is unworkable as a practical matter. The CPSC should not put out rules it knows won’ t work.

i. Small volume is not best described as 10,000 units. Remember, there are 300 million people living in this country and more than 100,000 elementary schools. TRU won’t sell a product that sells only 10,000 pieces per year in its stores – and that’s just one outlet. The better definition would be 100,000 pieces or at a minimum, 50,000 pieces.

j. The guidance confuses the purpose of testing for compliance with the purpose of MAQL testing/inspections. Testing for MAQL (Minimum Acceptable Quality Levels) requires a MILSPEC sample size. This is appropriate because you are usually looking for defects in manufacturing, not legal compliance issues. In my experience, most if not all defects that have legal compliance implications are managed adequately with a single sample. Think of lead-in-paint, for instance. Multiple samples pulled from the same lot will NEVER produce different test results unless there are two or more sources of paint being used. That’s so rare and unexpected that it cannot justify regular testing of multiple samples. As with most of this guidance, the variance from the standard approach should only be justified by a real need, nothing less.

k. I must admit that while I find the rules on component testing helpful, I cannot help but think that they are making the CPSIA testing regime into a sham. A thick bundle of component tests performed at different times, in different labs, for a patchwork quilt of standards, will defeat the CPSC’s, Customs’ and our customers’ best efforts to understand them. If the purpose of the testing is not to communicate information, then what are we trying to achieve? The absurdly complex result from the component testing rules may bring relief to small businesses but at a high cost – by turning the entire testing scheme into a “check the box” exercise for manufacturers, dealers and regulators. If that’s what this is all about, why is anyone contending that children are not safe and need all these tests to be “safe”? This scheme is simply a by-product of writing rules to implement a mis-focused law, resulting in misguided rules that don’t make a lot of sense for their original purpose, rendering the entire system an embarrassing mess. Rather than burn in a terrible legacy of high costs, incomprehensible rules and test reports that cannot be interpreted, why not rethink the system from scratch and come up with rules responding to real, known problems, and leaving everything else to the best judgment and good faith of manufacturers? After all, without any additional regulation by the CPSC, every manufacturer is already subject to a common law duty of care. Why not simply describe minimally some basics of a duty of care and let the market sort out the rest, reserving the right to regulate in greater detail as real dangers are identified?

l. The sample size rules on lead-in-paint will not work for products purchased through trading companies. This is a somewhat complex subject that requires more details than I can provide in this space right now (it’s late!). Again, there needs to be some recognition that the general purpose of the legislation is to get people to test for lead-in-paint. If so, why not leave the rules on this to the best judgment of manufacturers when facing the de minimus paint issue? These instances are not likely to be true human health issues anyhow. The CPSC should also consider a de minimus rule on lead-in-paint to avoid the massive and wasteful losses from recalls like the Sarge cars in 2007 (over 400,000 units recalled because of two bad cans of paint used for detailing the cars). If you can’t obtain enough paint from one sample to perform the test, perhaps the amount of lead at issue is simply not worth worry about!

m. The guidance (logic) on one-of-a-kind products (which allows the manufacturer to exercise judgment as to whether versions are “the same product”) should apply to all manufacturers and all products. That is, manufacturers should be free to exercise this judgment on all products to simplify their testing without making any compliance sacrifices. This is something they can likely do with great insight. Consider, for instance, a manufacturer of 3-D topographical maps: do they need to test each different map or can they consider each variant the same “product”? The rules should permit this reasonable judgment by ALL manufacturers.. This will save many companies a lot of money. They are waiting for the CPSC to say it’s okay, and then they can start grouping test reports to save money. This will be a big win for small businesses, if accepted by the CPSC.

n. The CPSC should put out a FAQ about the formation of groups for testing purposes. In other words, they should bless companies or trade associations testing on behalf of groups of users of components or materials.

To sum up, the rules are helpful but would be much better if refocused on real safety issues, if shorter and less complex, and if they were more reliant on the good faith and best judgment of manufacturers based on common sense principles of duty of care.

Read more here:
CPSIA – Testing Guidance Comments

Obama Urged to Fill Product-Safety Post

Here is an article in today’s Wall Street Journal: Obama Urged to Fill Product-Safety Post as Complaints Mount

Letter to Moore: Jennifer of Chapter One Organics

March 22, 2009

Dear Commissioner Moore,

I am writing in response to the letter you wrote to Representative Dingell
that was posted to the CPSC website on March 20, 2009.

While I realize your letter was directed to Representative Dingell, I am
writing to share with you my concerns about your letter.  I own an organic
cotton baby clothing business that is impacted by the CPSIA.  Specifically
in this paragraph I am in disbelief at the way you address businesses
affected by CPSIA, “Congress has entrusted this agency with a large and
important mission.  The passage of the CPSIA was a huge vote of confidence
for the agency and despite the hue and cry of some in the business community
who will never be happy with the closer scrutiny and accountability required
by the Act, it is a major accomplishment of the last Congress, and one that
your leadership was instrumental in achieving.”

As a business owner who cares about child safety and who is affected by this
new law I will tell you that I am opposed to CPSIA, but not for the reason
you have mentioned.  CPSIA is deeply flawed as Ms. Nord and the CPSC staff
outlined in their comprehensive letter submitted to Representative Dingell
on March 20, 2009.  As a business owner and mother, I am constantly
accountable for my actions.  We manufacture products that have been tested
in which all of our components test well below 100 ppm but yet this law will
require me to test our product continually for lead.  The CPSIA does not
differentiate among the size of business, the materials used, the
commodities, the industries, the accessibility of parts, and so on…the
list is rather endless.

The majority of us in the business community would like to see a smart law
that is focused on products that pose risks and the CPSIA is clearly not the
answer.  We are seeing huge losses being reported by small and large
companies and it isn’t because their products are toxic, it is because the
law does not work.

It is astonishing to me that after six months of dealing with this, your
response to Representative Dingell’s questions didn’t even scratch the
surface of the issues regarding this law and instead seemed completely
politically driven.  As a tax payer, I resent that you are unable to work as
a team with Ms. Nord.  In the private sector we often have to work in
imperfect environments.  If we don’t design, create, solve problems and
implement, we don’t produce products, money, or jobs.

Let me reassure you that I would not have spent the past four to five months
of my life and money to figure out why and how to comply with the CPSIA if I
were not accountable.  We don’t mind complying with laws that work but the
CPSIA doesn’t work.

I would like to get back to what I was doing five months ago which was
building a business, creating a safe organic product, and employing women in
need.  Furthermore, I would rather not be spending my time or money to
travel to Washington on April 1 for the Rally and Congressional Briefing
with my colleagues but, if I don’t, I may not have a business to continue
working in.

I mean no disrespect but I would truly appreciate it if you could put aside
your politics and not wait to realize that there are devastating
consequences to this law that aren’t in the name of safety and aren’t a
result of businesses not wanting to be accountable.  If our businesses are
forced to wait for your world to be perfect, our citizens lose jobs and
businesses close their doors.

Thank you for your time.

Sincerely,

Jennifer Murphy
President/Founder
Chapter One Organics, Inc.
jennifer@chapteroneorganics.com
312.860.1186
www.chapteroneorganics.com
www.thegreeneaters.com