CSPIA – Treatment of Resale Goods under the Waxman Amendment

The new Waxman Amendment provides an arcane and inadequate resolution of the longstanding complaints about the treatment of resale shops and resale goods under the CPSIA. The amendment adds a new provision, Section 101(b)(3), to address the resale issues.

This short provision has a lot going on:

a. It only applies to lead restrictions. The exceptions for resale goods do NOT apply to the phthalates ban. This means that used toys are unlikely to reappear in resale shops. It also means that anything possibly affected by the phthalates ban, including certain clothing and childcare articles, will be dangerous to sell in resale shops.

The legal niceties are of little import here – these low revenue stores won’t go near trouble. Will they know what’s okay to sell and what’s not? Probably not. Of course, the CPSC could always put out a new guidance brochure for them – something to look forward to!

Arguably, the inability of the Dems to give a clean waiver to the resale industry means that the resale exemption grants little relief in practical effect. That’s my belief, at least. If resale shops do not feel comfortable that the responsible administration of their businesses will keep them out of harm’s way (including being free of the possibility of bad publicity), they are likely to stay out of the market for children’s goods entirely. Resale stores don’t have legal departments . . . . [Who knew?!]

b. The definition of a “used children’s product” is quite interesting:

“The term ‘used children’s product’ means a children’s product that was obtained by the seller for use and not for the purpose of resale or was obtained by the seller from a person who obtained such children’s product for use and not for the purpose of resale.”

This obtuse language is intended to forbid the bulk resale of merchandise by inventory liquidators while permitting charity or consignment sales of children’s product. “For profit” resale shops will also be snagged on this language.

The origins of this language is presumably Commissioner Bob Adler’s odd Solomonic recommendation that charity shops be allowed to sell used clothing but not “for profit” resale shops.

The new definition is confusing because of the peculiar word “obtain”. There is no question that under this provision, you cannot “obtain” children’s products for the purpose of resale. Does this restriction apply to donated goods? Probably not because the legislators presumably believe you don’t “obtain” a donation for a particular purpose. Of course, that’s a fiction – do you think the Salvation Army accepts donations of children’s products with no purpose in mind? Could this language be a backhanded way to approve the distribution of donated goods for free but not for a nominal price? Possibly.

Would this limitation apply to consignment sellers who never take title – do they actually “obtain” the goods? Consignment sales may be okay but no doubt some factual inquiry will be required, a nice case-by-case analytical process to keep the CPSC busy! Ebay resellers and “for profit” resale shops are almost certainly not given relief by this language. The Resale Roundup is not in danger . . . .

The asserted distinction between a reseller of donated goods (a so-called charity shop), a consignment store and a “for profit” resale shop is flimsy and patronizing, in my view, reflecting a patrician view of society and the needs of the “lower class”. As I have explained in the past, the issue should be about safety, not compassion for the impoverished. Is it morally permissible to give dangerous products to children because they are poor? Please, don’t insult my intelligence. If the goods are safe, sell them – and if they’re not, throw them away. It has nothing to do with “needy” kids. This is yet another case of Dem legislators being unwilling to take a reasonable stand on what is and what is NOT safe. They are apparently willing to sacrifice the resale industry to their lack of courage.

c. As if the foregoing didn’t prove that the bill’s authors live in La La Land, the definition of “used children’s product” has several exceptions, namely children’s metal jewelry, painted children’s toys, children’s products comprised “primarily” of vinyl and any other children’s product later identified for this list by the Commission. I guess the charity shops are supposed to keep their eyes peeled.

So apparently the idea is that resale shops can get back into the children’s product business except . . . except . . . except . . . . The simple relief these shops need has been denied in favor of new uber complexity. To the intended beneficiaries of this “relief”, complexity alone will make the law unintelligible or at least unmanageable. Despite the “good intentions”, the effect of the relief will be moot – in other words, nada.

You should be OUTRAGED about this situation. The very FACT that this Dem-controlled Congress has been sucking its thumb over this issue for TWO YEARS, through two cold and snowy winters, is a national embarrassment. Frankly, it more shameful than that. When the Dems finally worked themselves into action, this is the best they could do?

The persistent inability of the Dem Congress to act sensibly on this issue is both demoralizing and illuminating. This situation is the Dems’ handiwork and yet, the disruption of this market affects the neediest Americans, and among them, the youngest and most vulnerable. Quite a departure from Democratic Party traditions. Not only is access to kids’ warm winter clothing impacted, but so many other important products are embargoed, from baby items to educational products to whathaveyou. And even though the needed goods are plentiful, the CPSIA made it prohibitive to offer them for sale at a low price. Too bad, Poor People!

The poor don’t deserve to live in the anti-economy just because the Dems have a phobia. The fact that the Dems can’t apparently empathize with people who really need their support is so shocking.

I hope you won’t support this bill regardless of its impact on you unless it gives real relief to those in need. If we are really a community, we must DEMAND true relief for the resale market. It’s time to take a stand against a stubborn, morally-numb, self-justifying Dem Congress.

Read more here:
CSPIA – Treatment of Resale Goods under the Waxman Amendment

CPSIA – Am I a Libertarian?

I was asked today if I am a Libertarian. I assume that’s because I complain regularly about the growing size, budget and invasiveness of the CPSC coupled with the agency’s diminishing impact. Does that make me anything other than opinionated? Is a label in any way informative or even appropriate? I find the urge to place me and my comments in some sort of category rather disturbing – are my comments so hard to interpret that I can only be understood with the orienting effect of a label? Let me assure you, my views are not guided by a political philosophy. I am simply reacting to the mess made by Congress when it passed a terrible, poorly-conceived law.

Opposing this law has certainly changed me and given me a completely new way of understanding the way our government works . . . or as Senator Byah might say it, doesn’t work. Am I wrong to accuse the planners behind the awful CPSIA of increasing the size and intrusiveness of government to negative effect? I know I must seem like a grumbler – but is that fair?

Often, when I think of my increasing stridency on this topic, my mind drifts back to this Seinfeld clip. The absurdity of the CPSIA situation seems somehow captured by the episode where entrepreneur Kramer starts up a new transportation business in New York City. This is the scene where he is evaluating his new drivers.

Read more here:
CPSIA – Am I a Libertarian?

CPSIA – ICPHSO Update – Q&A with CPSC

Q&A’s from this afternoon’s session. Gib Mullan responding unless otherwise noted.

A taste of things to come:

1. The biggest impact of the Public Database is how quickly you will have to reply. Hmmm, where have we heard this before??? Hope you are never on vacation. . . .
2. On confidentiality in the Public Database, it is going to be “hard to deal with”. Info from consumers won’t be confidential. Info from businesses will either be confidential or not, perhaps at the company’s pleasure, but it will be hard to act on info businesses provide WITHOUT making it public. RW: Don’t forget to make comments,guys. Your silence will be taken as your approval, trust me.
3. The plan for the DB is to let companies have “every bit of the time” specified in the statute “AND NOTHING MORE”. There will be “minimal CPSC review”. Aha, just like Tenenbaum said, time to get prepared. . . for the first Tuesday in November.
4. One questioner noted that the recalls on cribs has so rattled consumers that it has stimulated the return of co-sleeping arrangements, known to be one of the most dangerous baby scenarios. Hmmm. The CPSC will be doing education to counteract this development. RW: It is inconceivable that their publicity will match the media frenzy over crib recalls. It’s probably safest just to stop having kids.
5. Will there be a mandatory standard for window coverings – because there is (said to be) one death a month. The CPSC says that they are working on it. For you at home, it’s probably safer to just take down all window coverings and let Mrs. Kravitz have a big day.
6. Somebody called for new regulations on the “end of life”, just like in Japan. OMG . . . . Hey, they mean the end of your product’s life! What were you thinking? The CPSC is watching how this system works but has no present plans to expand its current regulatory scheme.
7. When will a promotional product become a “Children’s Product”? Does it become a Children’s Product if screened with the wrong thing? Cheri Falvey responded that you can’t read the WIMA letter (the pen decision) to address this question. It was a “result-oriented” opinion from a two-person Commission. The new rule on Children’s Products, to be voted on by five Commissioners, will sort this out. Might incorporate the pen decision and broaden it, or it might not. So there you go, might be okay, might not, you should wait and see. [RW: I hate the pen decision because it attempts to solve a compliance issue on a technicality with absolutely no regard for safety. Is a pen safe? The decision cannot be reconciled against that question because it only matters what was intended by the manufacturer. Safety is irrelevant when considering compliance . . . ?]
8. Eric Stone noted that changes in the definition of “Children’s Products” may have consequences for manufacturers and asked if the agency has the legal authority to operate prospectively. Falvey declined to give a legal opinion, but noted her personal opinion that the definition could broaden in the new rule. She noted that she has warned about that in the past. Oh, I see, we are to write down her every word, savoring them like pearls, because her oral warnings in any setting are going to be taken as precedent. We were warned. Too bad for those of you who weren’t here to hear her words. Ha Ha Ha Ha! And you can’t use this blog as a citation, either. Remember, my URL doesn’t end in “dot gov”. I am a liar.
9. When the law goes into effect on cribs, Falvey told us this AM that the standards will be RETROACTIVE. A member of the juvenile products industry referred to this news as a “bomb”. He said there could be 20 or 30 million cribs that don’t comply and would be instantly illegal. Gib says the new rule would be retroactive only for cribs in “public settings” like hotels, motels, day care centers. He says that the Commission has the authority to go even further. Oooh, could be a great chance for the government to come into your home – nice! I really like the concept of this rule – it’s really simple, see, it will be retroactive for some people and prospective for others. Apparently, the CPSC and Congress still haven’t figured out that the U.S. economy is rather complex. I see years of fun ahead for the regulators.
10. Learning Curve asked if all document attachments on the Public Database would be made public. Gib said yes. LCI then asked about consumer-obtained test reports and whether they would also be made public without scrutiny. Gib said he hadn’t thought of that one. I can think of a few plaintiff’s lawyers who would be happy to run a real life seminar about this in the future . . . . This Q illustrates the incredible disarray that awaits us all because of this insanely self-destructive provision fobbed off on us by the consumer groups.
11. Gib: not everything in the database will be public. Some area will be explicitly confidential. Some 15(b) disclosures will not appear in the DB.
12. No decision on whether media reports will be included in the DB. I find this hard to be envision – I trust eventually the consumer groups will force all the trash into the DB to help with all their searches. Oh how I look forward to the new era of Sudden Business Death.
13. Will the agency will reconcile multiple reports of the same incident? One of Cheri Falvey’s associates said they would address it in the rule. The rule is now over 25 pages long. Trust me, it won’t be that short when released.

Read more here:
CPSIA – ICPHSO Update – Q&A with CPSC

CPSIA – ICPHSO Update – Remarks of Mary Toro and Kris Hatlelid on Toxicity and Risk

Mary Toro is the head of the FHSA Enforcement Division.

• Reviewed regulatory scheme in a fair amount of detail.
• Incorporation of ASTM F963 brought into the law a solubility standard for heavy metals in surface coatings.

Remarks of Kris Hatlelid, Health Sciences:

• Wealth of data on cadmium is from worker exposure or inhalation. There is almost nothing out there about ingestion, including whether it is a carcinogen when ingested. Studies also need to consider life stages. Longer term studies are done on mature animals, which might not be relevant to children. The challenge from the data and its inadequacies are considerable.
• Among other things, Hatlelid noted the importance of dose-response evaluation. This reminds one of the old toxicologists’ saying that “the dose makes the poison.” She also mentioned exposure assessment and risk characterization. It is comforting to be reminded that CPSC scientists are still aware of these issues (I never had a doubt). How can we get the message to the junior scientists in Congress?

The notes on toxicity gives perspective on cadmium and the panic over jewelry. I hope someday the CPSC regains the upper hand on setting safety policy from the Associated Press.

Read more here:
CPSIA – ICPHSO Update – Remarks of Mary Toro and Kris Hatlelid on Toxicity and Risk

CPSIA – Schylling Agrees to a $200,000 Fine for Lead in Paint

What is the principal goal of the CPSC – to protect consumers from unsafe consumer products, or to punish legal transgressors? If consumers haven’t been harmed, how should this aftect the agency’s decision to punish?

These questions come to mind when considering the most recent punishment meted out by the CPSC. In particular, on February 4th, Schylling Associates (”Schylling”) agreed to pay a $200,000 fine for lead-in-paint violations disclosed in 2007. How does this fine affect the CPSC’s mission?

Background: I have no personal knowledge of this situation, although I know the company and some of its principals, and I have had no contact with anyone associated with the fine. My summary of L-I-P recalls from 2007 shows five Schylling recalls, although the CPSC press release does not relate to all of them. The recalls total about 80,000 pieces sold from June 2001 to May 2003. The fine works out to about $2.50 per unit for violations almost seven years old or older. No injuries were reported since the sales began almost nine years ago.

Schylling apparently promptly recalled one of the items upon discovery of the infraction in March 2002 and also terminated the factory. Here is Jack Schylling’s letter to his dealers describing this incident. This item comprised a relatively small portion of the defects. Schylling apparently (mistakenly) believed that the other L-I-P problems had been resolved and therefore did not recall them until 2007 (see below).

In August 2007, a Chicago Tribune article featured a defective Schylling top purchased in an online auction; consequently, several additional L-I-P violations dating back to 2001-2003 were uncovered, promptly disclosed to the CPSC and recalled properly.

Judging from the press release and the settlement agreement, this is a messy fact pattern with some poor judgments. bad operational execution and some violations of serious rules. Schylling was a repeat offender, albeit by all appearances not because of bad intentions. No one was hurt.

That Schylling was in the wrong is only part of the story. Was the fine the right move by the CPSC?

The Schylling Fine is Excessive and Unrelated to the CPSC’s Mission to Protect Consumers. The CPSC is not the Department of Justice. They are the Consumer Product Safety Commission – the agency “is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency’s jurisdiction.” I do not believe this fine is consistent with their mission.

In this case, the fine is removed from the protection mission, as all defective pieces were recalled from the market voluntarily and pursuant to voluntary disclosure. This is “good behavior” since the company sought to mend its ways and fix the problem. In addition, because the offenses lasted two years ending almost seven years ago, this matter is old and cold. Addressing it now seems to unfairly reach back in time. Finally, the amount of the fine is arbitrary and therefore unfair. The size of the fine cannot be related to other fines for similar offenses.

Manufacterers Are Likely to React Badly to Fines Intended to Make Examples. If the mission of the agency is to protect consumers, all of its activities must be judged against that mission. In this case, the fine for Schylling would need to make consumers safer to be consistent with the mission. Ironically, I think it is quite possible that this excessive fine may endanger consumers by discouraging manufacxturer cooperation.

The striking thing about this fine is not simply its excessive size – it is that the fine seems motivated by retribution, not consumer protection. This company appears to have tried, perhaps ineptly or even improperly, to do the “right thing”. They turned themselves in voluntarily. The product was removed from the market voluntarily, although not with all the required CPSC disclosure or as timely as possible.

Ultimately, to be successful, the CPSC needs manufacturers to come forward. The trust factor is crucial. When the CSPC acts to squish people who turn themselves in, perhaps to set an example, businesses may conclude that they cannot afford to throw themselves on the mercy of the CPSC. The Schylling action reinforces the notion that the CPSC is not a trustworthy partner. And this is a very damaging notion for consumers.

Here at the Nuremberg Toy Fair, the tradeshow is abuzz with several examples of companies who suffered grievous losses by disclosing problems to the CPSC. These issues were never of a life-threatening nature. However, the CPSC defaulted to remedies that placed the maximum risk on the manufacturer. Now, to make matters worse, the CPSC is adding large, arbitrary penalties for companies that come forward. Do the math – manufacturers may well see disclosure as a bad deal. Highly publicized punishments like Schylling destroy trust. While some manufacturers may be “scared straight”, many others may simply drop off the radar altogether.

Other agencies in the U.S. government see things more clearly. Customs, for instance, grants full immunity from penalties if you confess your sins before official notice of an investigation. While this too is painful, at least you control you control your own fate and pay no penalties. Customs’ policy encourages disclosure, which is what Customs wants. I contend that disclosure is what the CSPC should want, too – it needs to know what defectivce products are “out there” to protect the public.

A big fine was not the agency’s only possible remedy here. It did not have to hit Schylling with a huge penalty, or any penalty at all. Schylling could havc agreed to implement new safety procedures or to conform to certain standards for future behavior. The CPSC also could have agreed with Schylling on some sort of public service. These options would have sent a strong message to Schylling about the consequences of future infractions, while encouraging openness and cooperation with the manufacturing community.

Unfortunately, a reasonable approach would not satsify a ravenous pack of Democratic members of Congress, consumer groups and newspaper editorial boards who are demanding blood. Giving in to populist outrage buys the CPSC time . . . but at a high cost. A punishment-oriented CPSC will be defeated by its own shortsightedness. As more and more people slink into the shadows, this CPSC might accuse the manufacturing community of venality and launch even stronger actions against bad behavior. A safety police state is possible. Is that what we want?

If the CPSC persists in this approach, it will soon eat its own cooking. It’s time for the mania and blood lust to end, and for rationality to return to safety administration. Fear does not have drive regulation of these markets.

Read more here:
CPSIA – Schylling Agrees to a $200,000 Fine for Lead in Paint

CPSIA – What Constitutes "Safe"?

One of the tragedies of the CPSIA melodrama is that the consumer groups have completely hijacked the concept of safety, turning it utterly away from concepts of risk assessment. To what, you say? Away from management of identifiable risks to avoidance/elimination of perceived risks. In other words, Congress and our regulators now ignore the data on risk and focus instead on the possibility of risk. The POSSIBILITY of injury, not the actuality of injury.

How much of a difference is this? Pretty big, to judge by the frenzy over cadmium in jewelry. Seven Senators have sponsored a bill called the Safe Kids’ Jewelry Act. This law would ban the use of cadmium in kids’ jewelry. Is this “good”? I am not sure how to answer that. To my knowledge, no one has identified a single injury from cadmium in children’s jewelry. It is undeniable that cadmium is a bad element and has the potential to harm. Ergo, jewelry with cadmium is “bad”? I can imagine circumstances where cadmium in jewelry might hurt a child. Then again, if it were so dangerous, where are all the victims?

If this is going to be the new standard, whether a product MIGHT harm someone, I think we are cooked. Assuming that “prevention of possible injury” is to be used as the standard to evaluate products or components of products, let me ask a few questions to see if I understand the “new rules of the road”:

• How certain must the prospect of injury be?
• How specific must the circumstances of the prospective injury be?
• Are we talking about probable injury (more than 50%) or possible injury (odds greater than 0%)? How are those odds to be measured – by unit sold, by contact, by owner, by year, by lifetime use? What’s “reasonable”? [Does anyone care what's reasonable?]
• Are all things that could possibly injure a child now illegal on the same basis?
• If the answer is yes, when will all those other products be banned and/or recalled? Is equity in the treatment of all products “important”?
• If the answer is no, then where do we draw the line?
• How relevant is it that no injuries have been reported?
• How many incidents are required before we declare a product or substance illegal or recalled? How many newspaper articles, editorials or CEH lawsuits are required?
• What responsibility do we have to be consistent in the administration of these rules?

Consistency, that’s important, don’t you think? If cadmium is now tacitly illegal because it might harm a child, do we have to make everything with the possibility of injury to children illegal?

Presumably, since no injuries to children from cadmium has been reported and the Washington Post confirms that doctors do not perceive cadmium as a serious risk (perhaps because it was not prevalent in house paint or in gasoline, hmmm), then anything with the same level of prospective risk would be illegal. That’s more or less everything from water to chicken bones to lead to ruthenium. [Pardon me, ruthenium, one of the world's most expensive and dangerous elements, is a-okay to include in children's products.] Why then aren’t we closing swimming pools which cause more than 250 deaths each year? What about water – you can drown in two inches of water. No more showers?

Is there something special about cadmium, besides that it has appeared in an Associated Press article?

The mania over the prevention of possible injury has turned the business environment into a feeding frenzy that will drive the business community down, down, down. Is that in anyone’s interest? Will we all be safer if we have nothing to buy?

Please consider that the House Energy and Commerce Committee has today weighed in on the Toyota recall. Yes, the same Henry Waxman who is torturing our industry has now turned his talons and sharp teeth on Toyota. Toyota enjoys one of the finest reputations for quality and service in the world. It is renowned as a business leader – and proactively took strong medicine in its gas pedal recall. This is not enough for the venomous Democrats who hate businesses. They need to dig deeper and perhaps damage Toyota enough to help GM and Chrysler, owned by the U.S. government and unions. Bringing the great low, that’s the new American way of the Democrats. It makes me SICK.

I want to close with a note about cows – did you know that cows are killers, too? Yes, they are – the New York Times reports:

“The image of cows as placid, gentle creatures is a city slicker’s fantasy, judging from an article, published on Friday by the Centers for Disease Control and Prevention, reporting that about 20 people a year are killed by cows in the United States. In some cases, the cows actually attack humans — ramming them, knocking them down, goring them, trampling them and kicking them in the head — resulting in fatal injuries to the head and chest.”

COWS kill 20 people a year, cadmium has apparently killed ZERO. We are running pell-mell to ban cadmium from jewelry because a misguided newspaper article fueled panic. Are cows next? Should they be? If cadmium jewelry goes away and cows stay unregulated, will respect for our laws remain?

Respect for Congress, that’s another thing.

Read more here:
CPSIA – What Constitutes "Safe"?

CPSIA – Congressional Eager Beavers Push Anti-Cadmium Law

Congress’ Junior Scientists Club (Senators Klobuchar, Schumer and Nelson) sprung into action Tuesday to solicit co-sponsors for CPSIA knock-off legislation to ban cadmium and various other materials in jewelry. The delicious irony here is their choice of day to launch this effort, namely the day that Massachusetts elected a Republican to replace Ted Kennedy in the Senate, an election result widely interpreted as a firm rejection of this Administration’s government intervention, you know, like this bill.

Let’s not forget that in 1972 the Federal Government created a little known agency to handle “threats” like this, namely the Consumer Product Safety Commission. Congress gave the CPSC the authority it needed to do its job. Oddly, today our Democratic-dominated government seems to think that only it can solve safety problems and further must LEAP into action to save us. I question this. Perhaps the CPSC even questions this.

Even more remarkable is the Dems persistence in pursuing a CPSIA strategy to “stop this cold”. Have these Senators learned nothing from the last 18 months of CPSIA chaos and pain, preferring instead to continue legislating without research, hearings or contemplation? Well, the approach “worked” once before and they did read an AP story about it. . . .

Someday these Senators will be up for reelection. Mark your calendars!

Here’s their letter for your reading pleasure:

Sent: Tuesday, January 19, 2010 12:16 PM
Subject: Cosponsor the Safe Kids’ Jewelry Act – keep cadmium out of children’s jewelry

Senators Schumer, Nelson and Klobuchar are seeking cosponsors of the Safe Kids’ Jewelry Act. A copy of the draft bill is attached. Please let Stacy Ettinger in Senator Schumer’s office know, this week, if your boss would like to cosponsor the bill or if you have any questions about the bill.
Also, appended below, please find the January 10, 2010, by Justin Pritchard on the Associated Press’s investigation into use of cadmium in children’s jewelry and the adverse health effects of cadmium exposure (http://www.msnbc.msn.com/id/34793600/ns/health-kids_and_parenting/print/1/displaymode/1098/ ).

SUPPORT THE SAFE KIDS’ JEWELRY ACT
Protect Children from Exposure to Cadmium and Other Toxic Heavy Metals in Children’s Jewelry

Dear Colleague,

We write to request that you consider cosponsoring the Safe Kids’ Jewelry Act. We believe that this bill is vital to protect children from exposure to cadmium and other toxic heavy metals in children’s jewelry. The legislation would prohibit the manufacture and sale of children’s jewelry – including charms, bracelets, pendants, necklaces, earrings, or rings – containing cadmium, barium or antimony.

Cadmium is a soft, silver-white metal that typically is used to manufacture pigments and batteries and in the metal-plating and plastics industries. Cadmium is a known carcinogen and studies show that direct exposure has adverse developmental and reproductive effects and can lead to kidney disease, among other health problems. Infants and young children are particularly vulnerable to the dangerous effects of cadmium and other toxic heavy metals. Children’s growing bodies absorb these metals at much higher rates than adults and long-term cumulative exposure increases toxicity.

This legislation is needed because test findings show a growing presence of cadmium in children’s jewelry as foreign manufacturers switch from lead – now banned in children’s products – to cheap substitute metals. In lab testing for a recent Associated Press investigation, chemists found significant use of cadmium in a variety of charms, bracelets and pendants sold at several popular retail stores.

In addition to banning children’s jewelry made with cadmium, barium or antimony, the legislation provides for enforcement of the ban, as well as further study on whether other heavy metals should be banned for use in children’s jewelry or other children’s products. Specifically, the bill —

· Protects children. Children are most vulnerable to the health risks from cadmium and other heavy metals. The bill bans the manufacture and sale of children’s jewelry containing cadmium, barium or antimony marketed for children ages 12 and under. Products covered by the ban include charms, bracelets, pendants, necklaces, earrings and rings. The ban would take effect 90 days from enactment of the legislation.

· Gives the CPSC flexibility to designate the most effective testing and certification requirements. The bill gives the Commission authority and flexibility to set stringent, effective testing and certification requirements for manufacturers to ensure the safety of children’s jewelry.

· Sets criminal and civil penalties for violations. Children’s jewelry containing cadmium, barium or antimony would be considered a “banned hazardous substance” under the Federal Hazardous Substances Act (“FHSA”). The bill mandates application of criminal and/or civil penalties under the FHSA for any violations of the Safe Kids’ Jewelry Act. The bill requires the Commission to report annually to Congress on its actions to enforce the Safe Kids’ Jewelry Act, as well as whether the Commission imposed any criminal or civil penalties for violations of the Act.

· Does not preempt State or local law. A significant number of States and localities across the country are now considering enacting laws to ban sales of children’s jewelry containing cadmium and other heavy metals. The bill makes clear that the Safe Kids’ Jewelry Act would not preempt State or local laws relating to regulation of products containing cadmium, barium or antimony. The bill also clarifies that the Safe Kids’ Jewelry Act would not affect any enforcement action or liability of any person under State law.

· Requires CPSC to report to Congress regarding heavy metals which should be banned from children’s products. The bill requires the Commission to study and report to Congress within one year on whether other heavy metals should be banned from use in children’s jewelry or other children’s products.

We hope you will join us in supporting this bill. If you have any questions about the bill or would like to cosponsor the bill, please contact Stacy Ettinger in Senator Schumer’s office (4-7945 or stacy_ettinger@jec.senate.gov); Clint Odom in Senator Nelson’s office (clint_odom@billnelson.senate.gov); or Jonathan Becker in Senator Klobuchar’s office (jonathan_becker@klobuchar.senate.gov).

Sincerely,

/S/
Charles E. Schumer
Bill Nelson
Amy Klobuchar

Read more here:
CPSIA – Congressional Eager Beavers Push Anti-Cadmium Law

CPSIA – Regulation by Newspaper Headline

There was once a time when newspaper headlines did not immediately become law. Those golden days are seemingly a hazy memory, to judge from the swift and judgmental reaction to a recent AP story on cadmium in children’s jewelry.

PLEASE NOTE – This essay is not a defense of cadmium. That’s becoming a tiresome objection, frankly. Cadmium is bad, okay? Back to the story . . . .

The AP story, backed up by test reports that AP will apparently not release, prompted Senator Chuck Schumer to introduce legislation on Wednesday, two days later, to “stop it cold”. After an equally lengthy deliberation and careful consideration of the flimsy facts of this case, Chairman Inez Tenenbaum of the CPSC made this astounding announcement today:

“Because of these recent developments, I have a message for parents, grandparents and caregivers: Do not allow young children to be given or to play with cheap metal jewelry, especially when they are unsupervised.”

Whoa! Tenenbaum is saying that consumers should boycott ALL “cheap” metal jewelry now? Is she trying to put Claire’s Boutique and countless thousands of other small companies out of business entirely, all because of the unconfirmed accusations of an AP reporter about a handful of pieces of jewelry from a tiny number of sources? Within 48 hours, too? I think that’s irresponsible.

Yes, it’s irresponsible, but that’s the way this populist government of reactive politicians wants to govern. The Obamites are apparently shocked to discover that anything ever goes wrong, and if they ever find a single fly in the ointment, they then assume they are facing a broad scale assault. Hence, the immediate action to implement bans and cessations of trade.

Stop it cold, indeed – but what exactly is being stopped? Trade. Jobs. Futures.

Even worse, frankly, is the notion that this problem must be “solved” by legislation. While Senator Schumer was simply doing the usual, pandering for votes, where is it written that this problem is best resolved by Congressional action? [Let's put aside the niggling detail that some further assessment of the nature of this "dire" threat is appropriate before we take ANY action whatsoever.] Apparently, Mr. Schumer believes it’s his job to fix this problem and that in the absence of his decisive action, the rest of the government would fall on its face.

Umm, well, we used to have a federal agency for this very task, the CPSC. Okay kids, gather ’round, let me tell you about a long ago time when the CPSC has actual authority to assess risk and depending on its independent judgment, was entitled to draft and implement rules governing safety in the marketplace. Wasn’t that a wonderful time, kids?! Well, not anymore. Nowadays, apparently only Congress can exercise judgment. And that judgment is best exercised without the use of any scientific advice or reliance on the agency charged with the responsibility for safety administration.

Courtesy of the CPSIA, the CPSC is now a bureaucracy designed to serve the will of the politicians – determining what is safe (and what is not) is not their primary job anymore. Congress has no use for Ph.D.s or other people that actually understand science. With folks running the show like Chuck Schumer who apparently believe that an AP story is a perfect substitute for expert advice, there is no need for the CPSC to do anything other than fuel panic for Congress to assuage. Hence Ms. Tenenbaum’s shocking announcement today.

This is completely wrongheaded and will damage markets almost immediately. It’s all the more amazing because we have been here before, and paid the price with two years of chaos, misery and pain. The lessons of the CPSIA apparently weren’t learned, and to judge from the knee-jerk reaction to the AP story, it appears unlikely that this group of politicians (Democrats) and administrators are capable of ever mastering them.

Remember, I think cadmium is bad. But bad is no justification for legislation or rulemaking on the fly. This is not a sudden and life-threatening crisis. This metal, while undesirable, was probably in the market for years, all without poisoning large swaths of American children. The story of the little boy in Minnesota who swallowed a jewerly bangle and died (monotonously repeated by Senator Amy Klobuchar and now by Inez Tenenbaum), sad as it is, should be retired. I have no interest in seeing the children’s product industry put out to pasture just because of one accident.

Someday I hope we can restore some sense of proportion and restraint in safety administration. It can be done. . . .

Read more here:
CPSIA – Regulation by Newspaper Headline

CPSIA – Republican Senators Call for CPSC Advice on Law Change

Senators Kay Bailey Hutchison and Roger Wicker sent a letter today to Inez Tenenbaum asking for detailed recommendations on how to fix the CPSIA. You can see their letter here. In closing, they note:

“We all agree protection of our children is paramount. Congress can fix the CPSIA to ensure it accomplishes the safety intended without necessarily overburdening our economy. This can only be achieved with your assistance, the mandated detailed report to Congress, and increased transparency of your efforts to implement the law. We look forward to your report.”

Amen, brother!

The Commission noted in its meeting yesterday that the agency has not been given much time to get this report done. In addition, there seems to be little consensus on the Commission on the content of the report. Finally, as you may have figured out by now, I think there may be some value in talking about the issues in an open meeting. . . . So I call on the CPSC to get this report RIGHT. Be late, if you must, but get the recommendations done properly. AND, I call on the Commission to reverse its partisan and ill-considered decision to forgo public debate on the content of this report. Let’s learn from the lessons of Watergate and let the light shine in. Trust the public as they trust you, and let them hear you state your positions and work together as a Commission, not a collection of individuals.

It’s time to step up to the challenge, guys.

Read more here:
CPSIA – Republican Senators Call for CPSC Advice on Law Change

CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

“Bad Optics”.

I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners’ debate over the agency’s recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary “vigorous debate” all of us Americans hope would occur on a five-person Commission.

You are probably scratching your head. What’s the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there’s a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can’t take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.

Here’s some background on the Sunshine Act:

“The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.

Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.

This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public.”

So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say – because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, “it’s all over the blogosphere”. You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.

Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup’s point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.

Errors – that’s an interesting point, isn’t it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .

This leads us back to “bad optics”. As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of “bad optics”. Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company’s sales practices from a member of another Commissioner’s staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: “If I had to give any advice to [Learning Curve] on ‘optics’, I don’t think it’s such a good idea to come in and say ‘We admit we’re breaking the law, we’d like an exclusion but oh, by the way, we’re going to continue selling this product during the pendency of the proceeding.’ I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding.” [Emphasis added] Of course, Learning Curve never said any of this.

You can imagine how Learning Curve must have felt about this – they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve’s lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.

Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday’s meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.

“Bad optics”, indeed. Mr. Adler, what is the message here?

Read more here:
CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

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