CPSIA – That’s all, Folks!

Sadly, after four years of CPSIA advocacy, it’s finally time to say farewell. The timing of my goodbye comes as we approach the third anniversary of President Bush signing the CPSIA into law (August 14, 2008). I am paroling myself for time served. This is my final blogpost. This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment ( HR 2715 ) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead “dangers” presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . . The remaining affected industries will not receive additional relief from Congress because any significant political pressure which might drive change has been neutralized. This was a Democratic strategy to make this issue go away (divide-and-conquer), and it worked. I believe the CPSIA will not be amended in the next two years in any way and may not be amended in a meaningful way again for many, many years. Read HR 2715 – that’s all you are likely to get from Congress. I have no realistic expectation of further relief from the CPSC, either. The three Democratic votes on the Commission can’t be beaten, and as I have shown in this space, they always vote as a pack with no meaningful exceptions. One “triple vote” will always beat two votes. These Dems have selective hearing or memory or just don’t give a darn about data or testimony that doesn’t validate their conclusions. The outcome of a CPSC hearing, Commission meeting or request for public comment on a CPSIA issue is about as much in doubt as the average Moscow show trial. [It just takes a little longer. . . .] The comparison to Stalin’s show trials is apt. In the 1930′s, the Soviets cynically used legal proceedings to lend the appearance of legitimacy to its “findings of fact” (generally based on coerced confessions) and its rendering of “justice”. Of course, the trials were just a sham, nothing more than an administrative procedure for implementing a political agenda. And at the CPSC? I cannot point to a single CPSIA issue on which the Democrats showed an open mind or were capable of being influenced by data or reason. Draw your own conclusions, notwithstanding Bob Adler’s self-proclaimed “agony” in always casting his votes against businesses. After naively testifying at, contributing to or analyzing and reporting on so many CPSC proceedings that I have lost count, I have totally given up on these people and consider influencing them a lost cause. It’s not worth my time to continue to attempt to work with them. So with no hope of further legislative relief for the foreseeable future and with closed minds and closed doors at the CPSC, this is not a worthwhile venture for me anymore. I cannot justify it and plan to turn my attention to other opportunities with greater promise of my adding value. I am done with the CPSIA and the CPSC. Despite the almost overwhelming urge to “sum it all up”, I don’t intend to offer any concluding wisdom. Already prone to repeat myself endlessly in this space, I have clearly stated my position on the issues and my opinions haven’t changed. You know how I feel with specificity. Given that I believe it’s all over but the tears, I can’t see what good would come from parting words on the “war”. Kind readers, you have become my friends and family. I really value your readership and your support. This blog reflects your pain and your passion, too. We have fed off each other. I want to thank you. You have sustained me. For those of you who read this blog just to see what I would say about you and who will not miss my little missives (or me), I can only say that I have been completely honest and candid in this space, working with facts and real data, consistently documenting my source materials and my analysis. I respect that you may disagree with my conclusions or opinions, but I don’t respect that you refused to take me on. For all your whining and grousing about me, generally behind closed doors, none of you ever stood up in this space to tell me where or how I was wrong. You apparently lacked the courage to engage in a true, open debate where the outcome was not predetermined in your favor. Perhaps you preferred to ignore me, my arguments and my data, hoping I would go away. In the end, you got your wish. Lucky us. So the battle ends for me, here. Perhaps someday we will see the return of common sense and respect for corporate members of our society in our safety laws. Until then, good luck to you and Godspeed. Rick

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CPSIA – That’s all, Folks!

CPSIA – Obama Will Sign HR 2715 CPSIA Amendment Into Law Today

President Obama is expected to sign HR 2715, the CPSIA amendment that picks winners and losers and represents the end of legislative action to repair the misconceived CPSIA. Obama has to clear his desk before his vacation next week. This will be one of his last “to do’s” before R&R begins. Now what? Here is my prediction: a. The push will be on for the end of CPSIA rulemaking. Not only are the Dems on the CPSC Commission tired of this (times ten) but Congress wants this off their plate, too. Our petty concerns have been “addressed” and besides, what could go wrong anyway? Um, well, consider this ” colloquy ” between three powerful Democrats in the Senate. Before you read on, please note: – HR 2715 is a bipartisan bill, sponsored by both parties (obviously). This dialogue is among three like-minded Democrats. Why isn’t it a colloquy between both parties? Is this even relevant? As you will see, that depends on where you sit. – The three Senators involved have always agreed with each other on this law and have been remarkably resistant to any data, reasoning or argument that opposes their preconceived notions about the CPSIA or its groundings. Should their time-warp views be accorded any relevance? – Inez Tenenbaum has already cited this “colloquy” as her Congressional “instructions”. Dem to Dem. Storm clouds gathering? I have no idea if this dialogue actually took place or is just a figment published to justify the Dem agenda. Not even an interesting question to resolve, frankly. Enjoy: ” Mr. ROCKEFELLER. Mr. President, I rise to engage in a colloquy with my colleagues, Senators Durbin and Pryor, over the passage of H.R. 2715, a bill that passed on the House suspension calendar by a vote of 421-2 and the Senate by unanimous consent. Due to the fact that this bill bypassed regular order and failed to receive consideration in the Commerce Committee, I believe it is important to explain our intent in passing this bill.” Mr. DURBIN. I am frustrated that the Consumer Product Safety Commission has taken too long to promulgate rules required by the Consumer Product Safety Improvement Act, CPSIA, including the rules on third-party testing obligations and the component part testing rule. I did not oppose H.R. 2715, because it does not delay or impede the Commission’s ability to implement those rules–although it may place some increased costs on the Commission due to actions required as a result of new CPSC mandates and authorities–and I urge the Commission to complete its work expeditiously. Mr. ROCKEFELLER. I share the Senator’s concerns about the CPSC’s delay in promulgating its regulations in accordance with the mandates of CPSIA. While I sympathize with the CPSC over its resource constraints, the Commission must accelerate its efforts and complete the important regulations required under CPSIA. The provisions in section 2 of H.R. 2715 were not intended to delay or stop the Commission’s current rulemaking under section 102 (d)(2) of the Consumer Product Safety Improvement Act to implement the critical provision related to the third-party testing of children’s products. I fully expect the Commission to go forward with these important rulemakings with no disruption from the passage of this bill. Given the limited resources of the Commission and recognizing the length of time it has taken to implement the provisions of the Consumer Product Safety Improvement Act, it is intended that most of H.R. 2715′s new mandates on the CPSC are not rulemakings. Some of the new authority, such as the functional purpose exemption and the authority to restrict the scope of the used products exemption, are subject to a notice and hearing requirement, but not to a rulemaking. Others, such as the creation of a new public registry for small batch manufacturers, can be implemented without notice and comment or even a hearing. As such, the Commission should act to effectuate the new mandates of this bill in a most expeditious manner. Mr. PRYOR. I also share the Senator’s view that nothing in H.R. 2715 is intended to delay the Commission’s rulemaking with respect to third party testing and believe that Commission should conclude its testing rulemakings in the next 2 months. I supported H.R. 2715 because it made minor modifications to an important consumer product safety law and supported implementation of important aspect of the Consumer Product Safety Improvement Act such as the consumer product database. This bill will require the CPSC to extend the deadline for posting reports on defective products by 5 days if a business asserts that the information in the report is not accurate. However, this change does not alter the fact that the Commission still must post the report in the database after those 5 days even if it is still reviewing the merits of the complaint. ” So now you know what is going to happen. Tenenbaum is practically broadcasting it. She has received her “instructions”. They’ve heard enough. b. With Thomas Moore’s run at the CPSC ending once and for all in October, and with consumer groups already publicly calling for his replacement ASAP, the Dems will be very anxious to complete as much work as possible before he goes. His replacement’s confirmation through the Senate is not a sure thing at all. Even a recess appointment is not as much an option as in the past (the Senate is running a “pro forma” session right now to head off this step by the President). If Moore is not replaced on a timely basis, the Commission will shrink to just four people which means that Tenenbaum and Adler might actually have to listen to their Republican counterparts and seek COMPROMISE to get things done. Don’t hold your breath – they’d prefer to get it done their way. Expect the worst from the next three months. c. 2012 will be the year of enforcement. In 2012, you will get to find out how well I can predict the future. 2012 won’t be fun for some people, maybe lots of people. Nothing good will be achieved from a safety standpoint but the CPSC will get to strut its stuff. [Does it strike you as ironic that Ms. Tenenbaum brags about falling recall rates under her reign? Is or isn't this the exact reason that Congress got so mad at Nancy Nord? I guess when Dems are in charge, falling recall rates are a good sign. When Republicans are in charge, it's so so bad,] Get ready for some tough times.

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CPSIA – Obama Will Sign HR 2715 CPSIA Amendment Into Law Today

CPSIA – A Comment Not to be Missed

From Anonymous : “I have to say, as a lifelong Democrat, this whole CPSIA thing makes me feel incredibly powerful! You have to admit that to be able to, during a deep recession, force the American people to pay the immense administration costs of the CPSC due to the CPSIA, while burying business in mountains of red tape and testing expense, and to do so while EXPLICITLY STATING that they have no obligation to show efficacy and in the face of a huge body of evidence that the CPSIA will accomplish little in terms of real safety is…Powerful! As a registered Democrat I practically feel I am becoming one with the force. You Republicans can join the force too. All you have to do is close your mind, admit that evidence (when it contradicts your cherished gut feelings) is overrated, and join the Democratic Party. Then you too can blatantly screw the American people.”

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CPSIA – A Comment Not to be Missed

CPSIA – The Senate Moves In the Direction of the House Bill

Confidential discussions are underway for Senate Democrats to accept the House bill amending the CPSIA which passed today 421-2.  The pressure being applied relates to the consequences on U.S. retailers from the retroactive application of the 100 ppm lead standard. If the House bill is accepted by the Senate Dems, it will no doubt be hotlined for quick passage by voice vote, and then this ugly process will be over. With the pending exclusion under the bill of ATV’s, bikes and books (the chosen winners, including the remarkable free pass on metal component testing by bicycle manufacturers), the rest of us (the chosen losers) will remain under the thumb of both the CPSIA and the Dem-controlled CPSC.  I would note that we, the chosen losers, are no doubt the people Inez Tenenbaum refers to as “certain cynical special interests”.  If you disagree with her agenda, you must be a “cynical special interest”, it seems to me.  Thanks to Jan Schakowsky for this nifty idea! I was asked earlier today if I supported the House bill (which subsequently passed 421-2).  I replied that the bill is good for us, but not good enough.  It does not address the big issues imperiling companies like ours, and furthermore, incorporates ineffective provisions on several fronts which are only there to bolster Dem chances for reelection.  That said, I advised supporting the bill because frankly what choice did we have anyway?  The impact of this bill, I noted, is like being offered a better cell in jail.  You gotta take it, if only for the view. But you’re still in jail all the same.

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CPSIA – The Senate Moves In the Direction of the House Bill

CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

According to my information, the Pryor Amendment , as amended to address the needs of resale goods stores , will be hotlined in the Senate this evening (passed by unanimous consent).  The bill then proceeds back to the House which remains a “house-divided”.  Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot.  Who will win the day?  If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately – I am not as clever as some of the other cynical observers of this mess).  If the ATV’rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers.  There are no winners. It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what’s at stake.  We are all depending on a sensible outcome of a quick Conference Committee.  The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny. The next few days will seal our fates, once and for all. More to say later this evening.

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CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

Letters to the Editor Wall Street Journal July 26, 2011 CPSC Should Follow Obama’s Policy As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children’s products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial ” Toying with Deregulation .” You accurately paint a grim picture of the commission’s disregard for President Obama’s appeal that regulatory agencies promote “economic growth, innovation, competitiveness and job creation.” But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome. As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See www.cpsc.gov/pr/northup07202011.pdf . Anne M. Northup Commissioner CPSC Washington

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CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

The sparks were certainly flying at the July 20th Commission meeting last week.  With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting.  I was amply rewarded with a display of regulatory arrogance you rarely see on tape – Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order.  I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman. The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia’s claims that CPSC Staff found that manufacturers intentionally add lead to children’s products (47:31).  While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was “debated”.  [Bickered over is more like it.]  Namely, whether the CPSC has to follow President Obama’s Executive Order  to preform cost-benefit analyses on regulations under the CPSIA.  I have previously addressed this issue in blogposts on July 12 , July 14 ,  July 20  and July 21 . After the usual pointless sparring over the ability of the CPSC to do the right thing (don’t worry, Bob Adler “agonized” over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems supporting of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA. Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah.  The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama’s little note. Chairman Tenenbaum laid down the law at 1:15 in the tape: “I’d like to comment on the Executive Order [which says] ‘Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.’  Congress was very clear. They wanted the lead limits at 600 then 300 then 100.   We have looked at this from all angles.  And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement.  And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children’s products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered .”   [Emphasis added] Take that, Obama!  Your EO is fictional!  Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President.  She pins this on the standards established under the CPSIA.  Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings.  She also glosses over so many other rulemakings which are remote from the standards.  Details, details. . . . The Obama order instructs the CPSC to follow Executive Order 13563 to the extent “permitted” by law.  The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it.  The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of  the Poison Prevention Packaging Act of 1970.  Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere.  The Dem Commissioners didn’t address this point during the July 20th meeting. EO 13563  in relevant part says:  “. . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . . “  The President’s new EO applies this verbiage to the CPSC.  Tenenbaum just blows it off entirely.  The President must be below Henry Waxman.  Ms. T gets pretty snippy at points.  ” There are people on this Commission that want to contort and use this Executive Order.  I have spoken to attorneys at the White House; I know I stand on firm legal ground.  And so please don’t leave this meeting thinking that we expected to do cost-benefit analysis or this Executive Order mandates that we do that.  It does not !” Tenenbaum’s argument – I am judge, I am jury, don’t question me.  Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency: ” It’s also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA].  The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.]  They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy .” Continuing the debate (argument), Bob Adler had much to say as usual.  As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body.  [See " Is that a promise, Bob? "]  At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here: ” My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that’s correct.  But let’s be clear:  it effectively in all major respects precludes us from doing that. When they’ve given us 42 deadlines to achieve in just a very short period of time, when they’ve specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there’s a very clear message from Congress there.  Congress in effect was saying ‘We’ve done the cost-benefit analysis.  Now we want you to implement the law .” So, the reason not to obey the President – Congress couldn’t have meant us to do a cost-benefit analysis because otherwise they wouldn’t have given us so much darned work to do.  In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already “completed” a cost-benefit analysis.  Mr. Adler does not attempt to prove his point, his assertion being enough apparently.  I am always impressed by the self-justifications of regulators who claim to be able to read the “mind” of an inanimate body like Congress.  In law school, they taught us to follow rules of legislative interpretation.  That’s so Old School!  Nowadays you only have to attribute a “thought” to Congress to “prove” legislative intent. Of course, just a few days ago , Bob asserted something rather different: ” It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis .”  [Emphasis added] At that time, Adler seemed to believe that the words “to the extent permitted by law” require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses.  Hmmm.  Does anyone think that legal analysis is just a bit “loose”? Ah, but Bob wasn’t done by any means.  He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter.  No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable.  Details, details. . . . ” One of the things that I this is intriguing . . . is where they say ’Now when you’re doing a cost-benefit analysis, let’s address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.’ How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby’s life.” So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn’t work.  Congress must not have meant us to waste our time . . . .   He later challenged anyone in the room to tell him what the “quantifiable benefits” of two lost IQ points are.  Too bad the EPA wasn’t there. They do that regularly.  Here is a quote from AOL Energy referring to this kind of economic analysis:  “The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using ‘long-standing, peer-reviewed’ practices on the effect of regulations, [EPA] officials said.”  Again, details, details . . . . Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin.  Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children.  As our apparent judge, jury and overseer, one must surmise that he thinks it’s his right to make this judgment, notwithstanding an Executive Order. Oddly, Big Bob does concede that the picture is not quite so clear.  Hmmm. ” I’m not arguing that because we’ve got a lot of work that Congress therefore said don’t do cost-benefit analysis.   [ Editor's Note :  Bob, in fact, that IS what you argued.]   That isn’t all they said.  They said ‘You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate.  In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to .”  Adler goes on to retract this assertion, and return to his claim that Congress DIDN’T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law.  His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one. Adler then launches into his final jab at blowing off the Order: ” I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way.  I think we have taken the approach in an extremely thoughtful way.  But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don’t think that analysis gets us very far .” So Adler wraps up with his “over my dead body” argument – he just doesn’t want to do it. Take that, Obama! Nancy Nord grimly assessed the sad spectacle we witnessed: ” This is an important issue.  And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn’t.  Whether that’s a good idea or a bad idea, we can continue to debate.  But Congress did not say not to do it – Majority did.  And I think that’s unfortunate and I think our rules have suffered because of  that. ” I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it’s at 1:24. With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO.  Nice try, Mr. President, but you’ve met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution.  There’s not much left to hope for with this crew in charge.  Maybe the CPSC will be on the national debt chopping block.  Don’t hold your breath. . . .

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CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

CPSIA – WSJ’s NINTH EDITORIAL Opposing the CPSIA

REVIEW & OUTLOOK JULY 20, 2011 Toying With Deregulation Another agency ignores Mr. Obama’s executive order. Here’s a question for White House regulatory czar Cass Sunstein: Do Presidential executive orders mean anything? Only last week President Obama asked independent agencies to examine existing rules and get rid of the duds, but nobody is listening. Within days of the executive order, the Consumer Product Safety Commission voted 3-2 that it is “technologically feasible” to impose a lower limit on lead content in children’s products, reducing the level to 100 parts per million from 300 parts per million. The new limit, which will go into effect August 14, will mean one more round of hair-pulling for small business owners who will have to change their manufacturing processes and junk existing products that don’t meet the new standard. The three votes in favor came from Mr. Obama’s chairwoman Inez Tenenbaum and two other Democratic commissioners. The Consumer Product Safety Improvement Act passed in 2008 in a frenzy of concern over lead content in toys from China, and it has since tormented anyone who makes or sells bicycles, books, children’s jewelry and so much more. Its strictures have imposed costs for testing, recalls and other inconveniences without any reasonable correlation to the risks to children. “No sweetheart, don’t eat that bicycle!” According to the CPSC, the plan to require that products be 99.99% lead free is reasonable because manufacturers would still be able to find materials and because some products already comply. While the additional safety gain will be negligible, the change will do damage in other ways, causing companies to avoid recycled metal and plastic, which may contain higher amounts of lead. It will also raise costs for metal parts, potentially driving some businesses to substitute plastic for metal, or stop producing children’s products. In the bicycle industry, a quarter of manufacturers have stopped making kids bikes. Instead of fixing its manifest flaws, Congressional Democrats who wrote the law have shrugged off small business complaints and opposed any changes. Energy and Commerce Chairman Fred Upton and Commerce, Manufacturing and Trade Subcommittee Chair Mary Bono Mack introduced reforms earlier this year that would revise the law and give the CPSC greater authority to make regulation decisions based on actual risk. The bill is waiting for a mark-up at full committee but any reprieve would likely come too late for businesses facing the mid-August deadline. Mr. Obama’s recent executive order is voluntary, but the President told agency heads that getting rid of red tape was an opportunity to “forge a 21st-century regulatory system that makes our economy stronger and more competitive.” Perhaps Mr. Sunstein will tell toy makers it’s the thought that counts.

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CPSIA – WSJ’s NINTH EDITORIAL Opposing the CPSIA

CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

The Alliance for Children’s Product Safety, a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA), issued the following statement regarding the CPSC’s passage of the 100 ppm for lead content rule today by a vote of 3-2. “Today, just three days after President Obama issued an Executive Order instructing the CPSC and other independent agencies to examine all rules for ineffective and unnecessary burdens and instructed the agency that decisions should be made only after consideration of the costs and benefits of new regulations, the CPSC enacted yet another costly rule that will do nothing to improve product safety but will cause further job losses in the children’s product market. The CPSC has already acknowledged that businesses will not be able to meet the 100 ppm lead standard without cost and disruption, and that consistent compliance with the new standard will be nearly impossible due to material and inter-lab variability and regulatory uncertainty. Most importantly, overwhelming costs imposed by the new standard will disproportionately affect smaller companies. On the other side of the ledger, the CPSC admits the health benefits of the new standard will be ‘minimal’. President Obama’s Executive Order states ‘Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. . . . To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).’ The President’s order notes the duty of the CPSC to regulate for public health and safety ‘while promoting economic growth, innovation, competitiveness, and job creation.’ The new rule fails Mr. Obama’s test. It is disappointing that the majority of CPSC Commissioners ignored the explicit terms of the President’s order governing regulatory excess. The 100 ppm standard is a prime example of the economic self-destruction caused by the CPSIA: the imposition of costly and burdensome regulations that don’t improve product safety. It is now up to Congress to fix the numerous ‘unintended consequences’ of the CPSIA before more small businesses are forced to go out of businesses and more jobs are lost.” The Alliance for Children’s Product Safety, Chaired by Rick Woldenberg, is a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA). For additional information, please visit www.AmendTheCPSIA.com or contact Caitlin Andrews at 202-828-7637.

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CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

CPSIA – Fait Accompli

Tomorrow the stage is set for the ultimate triumph of the Waxmanis:  the predicted approval of the 100 ppm lead standard by 3-2 party line vote.  The three Democrats will express regret, saying that Congress forced them to do it, and calling on Congress to let them make this standard prospective only.  They will no doubt also assert that this is good for all of us, given that “there is no safe level of lead”, that old chestnut unsupported by any injury data. No doubt the 100 ppm lead limit will fix all of these imaginary problems.  The Republicans will note the pointlessness of it all, and remind us of the cost of the provision.  Jobs will be lost.  The Republicans will be right, but the Dems have a political agenda to implement, and you will be sacrificed.  Mr. Obama’s Executive Order will not give the Dems pause. After three years, I am numb to this behavior.  The Dem Commissioners are and have always been beyond reach, unimpressed by reason or data.  That comes from a strong conviction of the correctness of their position with no need to reconsider.  As Bob Adler’s testimony at the Oversight hearing on July 7th indicates, the Dems are ever ready to defend the CPSIA faith.  [Check out the testimony given in questioning by the estimable Jan Schakowsky.]  Data, schmata. For those of you who have expended energy, or committed resources, to providing information to the CPSC after three years on this provision (comment letters, testimony, etc.), please note that it was all a set-up.  The decision facing the Commission is whether the 100 ppm lead level is “technologically feasible”. The legislative definition of this term of art does NOT take into consideration cost, perhaps because every life is precious and of infinite value.  It does not matter what it costs to comply, only whether it is somehow possible.  CPSC Staff confirms that everything can be made without lead using this definition however absurd.  So the Dems have no reason to vote against the new standard.   No reason . . . .   Consider the views of the American Apparel and Footwear Association in a letter dated July 11, 2011 on this topic: “We strongly urge the Commission to declare that it is not technologically feasible to meet the 100ppm standard for the simple reasons that:  (a) it is impossible to meet a standard retroactively; (b) compliance cannot be assured because of continued issues with material variability, especially with metals; (c) compliance is complicated by the regulatory uncertainty generated by the technological unfeasibility issue as well as the ongoing delay in the so-called “15-month rule”; (d) the new standard will impose significant costs on manufacturers, costs which disproportionately affect smaller companies; and (e) inter-lab variability, especially at the lower limits, make consistent compliance impossible.” Details, details – the Dems DON’T CARE.  Tomorrow the Commission will enact an egregiously out-of-whack rule from a cost-benefit standpoint a mere two days after Obama ordered the CSPC by name to review all rules for being overly burdensome.  Yawn.  After three years of this, what else would you expect?

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CPSIA – Fait Accompli

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