CPSIA – Correction to Klobuchar/Tester ATV Exemption Amendment

Darn it – I thought we could only trust websites ending in “dot gov”.

CPSIA – Tea Party Comments

I received a provocative comment on my recent blogpost on the Tea Party and quote from it here:

“I’ve come on here less and less because the blog is starting to seem less a good source of information and more like a long, angry political rant. If that’s what you want, more power to you. You’ve certainly earned the right to rant. You have the freedom to write what you want and I have the freedom not to read it. If you’re posting this because you care, well yes, I do think you’re alienating quite a few people, myself included.”

This is a fair comment and probably accurate. The blog is angrier and more focused on elections and politics that before. Frankly, I have known for some time that I increasingly lapse into a rant. Why is that?

Here’s the problem – I can’t provide much information to you anymore because there’s nothing much to report. There is a steady drumbeat of ordinary or trivial details from the agency to pass along but the excesses of this CPSC administration have gone on so long that they now bore most people. On a more macro level, the news spigot shut off because (a) the Dems in Congress stopped listening a long time ago and are doing NOTHING to fix this mess, and (b) the CPSC has demonstrated that they are going on their merry regulatory way no matter what we say or think. Time and partisan appointments are giving Mr. Waxman his tacit victory.

So we are stymied. And what tools do I have left at my disposal? Consider what I have already tried: I have employed representation in Washington for now almost two years. The cost of this exercise comes out of my personal pocket. No need to feel sorry for me, but that’s a fact. I have also testified before Congress, I have testified before the CPSC (several times, at their request), I have written numerous comment letters (none of which were answered), I have appeared in endless articles and on 60 Minutes, I have given speeches, sponsored a rally, and yes, given up thousands of hours of my life to write almost 500 blogposts for you (and the CPSC) to read. I have left no stone unturned.

If you had done all this over a two-year period and produced the scant results I had, what would YOU do, Anonymous? Keep mumbling to yourself? Is that really productive? If the problem is as serious as I say it is, then continuing with a losing strategy seems pretty dumb to me. It was Albert Einstein who reportedly said “The definition of insanity is doing the same thing over and over again and expecting different results”. It appears that a change in strategy is needed – if we want to produce a different result.

And blaming the parties responsible is appropriate. My readers know I am being honest and candid here. You know where I stand. The Dems are responsible for this mess. They may have had help creating the law in 2008, even the signature of Mr. Bush to close the deal. Then again, when the carnage became clear, the Dems employed the Nancy Reagan “Just Say No” defense in the face of indisputable evidence of their policy failures. The Dems have been a rock of intransigence and indifference for two years now. The Republicans have not. Again, that’s a fact. And the CPSC is being run by Dem politicians who work consistent with the wishes and desires of the Congressional Dem leadership. I am supposed to overlook this? Possibly not notice, look away? That view, if you hold it, insults my intelligence.

These days I have few choices available to me. I can continue to pursue a clearly ineffective strategy and find my voice increasingly marginalized by its irrelevance, or I can work within the political system (as is my right) and find another route to the desired outcome. I hate the CPSIA and I hate what Congress and the CPSIA have done to the CPSC. I cannot abide by this. So now what? Sucking my thumb is not an option. It’s time to get RID of these people. They made themselves a big part of the problem and deserve what they get. After all, the rules of the games were known in advance, and they knew what they were doing.

It’s my right to take steps politically to fix this situation. I hope I don’t lose you as a reader, Anonymous, but if you have better things to do or better sources of information, I trust you will come here less often. My commitment to our employees, customers, suppliers, consumers and other stakeholders remains unwavering and has to come first. I am loyal to them and won’t be defeated by this year’s version of tyranny.

Onward to November 2 and the defeat of the people responsible for this Greek tragedy!

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CPSIA – Tea Party Comments

CPSIA – August, The Month To Scare (Oops, Save) The Populace

Well, it’s August, almost time for Congress to recess for elections which means it’s also time for your Dem friends to save you again. Makes a nice story for election time. Remember how Congress saved us two years ago, by passing a little bill called the Consumer Product Safety Improvement Act on August 14, 2008? I bet you’re getting ready for the bill’s second birthday party! Anyhow, the Congressional cicadian rhythm drove a couple Pelosi clones, Rep. Jan Schakowsky (D-IL) and Jackie Speier (D-CA), to timely release their latest legislative salvos designed to prove up their worth to you, the voters.

Ms. Schakowsky, one of Illinois’ “finest” who is rated the Number One Spender in Congress by the National Taxpayers Union (thanks, Jan!), offered up another CPSIA-like morsel, the noxious H.R. 5786 Safe Cosmetics Act of 2010. Before we go on, who’s against safe cosmetics? Everyone raise their hands . . . no one? Okay, we’re all for safe cosmetics. So what’s the problem?

• Annual registration with the FDA for all manufacturers, including much proprietary and confidential information.
• A federally-mandated schedule of new fees for the FDA to assess on the now poorer cosmetics companies.
• New safety labels (an old Schakowsky standby to make everyone so much safer).
• FDA review of the “physical, chemical and toxicological properties” of each chemical or mixture listed on the label. And lots of testing.
• New FDA regulations on banned chemicals and so on.
• New prohibitions, meaning that penalties and perhaps criminal actions are possible.
• Mandated public reporting of “adverse health effects”.

The trial bar has to be licking its chops. And Jan gets to claim to her constituents that they can’t live without her. After all, who else is going to save them??? Just like the CPSIA saved our company, our employees and our customers. So, so, soooooo safe and we get an even bigger federal government as an added bonus!

Not content to be outdone, savior-in-training Jackie Speier followed up her ratting out of safe McDonalds Shrek glasses with the newly-minted H.R. 5920 Toxic Metals Protection Act of 2010. Anyone against being protected from toxic metals??? Hmmm, no one? Thank heavens we have such an alert member of Congress ready to sweep in to protect us – right before elections! One of the big effects of this law is to make lots of things illegal and to specify civil and criminal liability for infractions. We really needed this!

Ms. Speier explains her “motivation”: “’Children’s developmental health in this country is threatened by exposure to products containing cadmium,’ said Congresswoman Speier. ‘In May, Wal-Mart removed cadmium-tainted jewelry from its shelves. Last month, McDonald’s recalled over 12 million glasses containing cadmium, and SmileMakers Inc. recalled 68,000 Children’s Happy Charm Bracelets and Football Rings for containing this toxic metal. It’s time to be smart and aggressive about the risks posed by toxic metals that can cause children harm. This legislation is aimed at protecting them from hazardous levels of metals in products they might use.’” Oops, she forgot to mention that the Shrek glasses were acknowledged to be safe by the CPSC or that none of these products is associated with a single injury. Details . . . .

Then there’s the swelling pile of Op-Eds and Editorials touting the “urgent” need to tighten the noose on chemicals (LA Times: “The new regulations will be burdensome on industry — and even more so if the state approves the recommendations we’ve listed here — but they should also pay dividends by lowering health care bills and environmental cleanup costs, as well as spawning a new industry dedicated to developing safer chemicals.”). [Ed. Note: I love the part about how the bill will lower costs! I wish newspaper editorial writers knew how to add and multiply - they could really figure stuff out with those skills.] Henry Waxman, current shield of the CPSIA and guardian of the rules and regulations that ensure the business death of the children’s product industry, wants to finish the job by making us account for every chemical in every product. TSCA Reform – super! We’ll all be so safe . . . in the unemployment line.

Your Congress at work – making the world safe from jobs and prosperity, an August tradition!

Read more here:
CPSIA – August, The Month To Scare (Oops, Save) The Populace

CPSIA – Why Hasn’t Data Changed Opinions at the CPSC?

I have recently published numerous blogs on CPSC recall data documenting the dearth of injuries and deaths from lead in the past decade. I am certainly not indifferent to the suffering of any victim, however, I note that data on injuries is a way to measure the urgency of the threat. There has been one death and three asserted injuries in the last eleven years from lead. We are a country of 300 million-plus and have a $15 trillion dollar economy – presumably, we need to prioritize.

I have also provided CPSC data on injuries and deaths from other hazards, such as cadmium (zero), pool drains (very low, but greater than lead), phthalates (zero) and pool and spa (extremely high, more in an average day than in a decade for lead, phthalates and cadmium put together). In fact, I documented the distribution of injuries and deaths among all recalled children’s products over an 11-year period. At one death and three unverified injuries, lead comes in last among all recall categories with more than eight recalls over 11 years (lead and lead-in-paint accounted for 248 of 899 total recalls in the surveyed period of time). Literally every significant hazard facing children in consumer products is worse and much more dangerous than lead according to the CPSC’s own data.

I have also shown that the data on recalls publicized by the CPSC tends to magnify the scale of lead recalls, making the recalls seem more threatening and the implied hazard more urgent than they really are. Among other things, the quantity of recalled products typically (if not always) includes inventory in the possession of the manufacturer. This inventory NEVER MADE IT TO THE MARKET. In addition, recall data also includes product still on the shelf at retailers. This inventory, which was sold by the manufacturer to the retailer, was never sold to consumers. Inventory in the possession of the manufacturer, its factories or its retailers has no conceivable potential to harm a child. The amount of product in the hands of consumers could be tiny. Please consider these facts when evaluating the claims of consumer groups on the “poor” effectiveness of recalls. The math gets all tangled up, doesn’t it?

Call me crazy, but this seems like some rather shocking data. The deaths and injuries from lead and phthalates are so small that they are trumped in a single day by pool and spa deaths and injuries. [The reported deaths and serious injuries from pools and spas since Memorial Day, at least 210, are AT LEAST FIFTY TIMES THE NUMBER OF DEATHS FROM LEAD IN THE LAST ELEVEN YEARS. In other words, it will take more than 500 years for lead to produce as many deaths and serious injuries as the last 53 days from pools and spas (if the lead death and injury rate doesn't taper off).]

And yet the CPSC seems to have no interest in this data, their OWN data. Why? Well, the best I can say is that they believe every life is precious and thus, economics cannot be considered when designing a response to the hazard. I did not invent this view of the consumer group-dominated Commission – I asked this very question of a person in a position to know, and got this answer. So there you go.

Does this hold water, that economics are irrelevant and should never be considered? First, on the relevance of economics, I think that’s a silly proposition. Of course economics matters. Please don’t feign shock or disgust. Let’s do an exercise: How much shall we spend to save a life? A child died from swallowing a lead charm on a single bracelet several years ago. This is the lone reported death from lead or lead-in-paint from a consumer product in at least 11 years and has been cited as a justification for the CPSIA maelstrom. In this space, I have adopted a proxy estimate of $5.6 billion in annual CPSIA compliance costs for the children’s product industry (based on a submission of the HTA to support their Congressional testimony).

So, is $5.6 billion the “right” amount to spend annually to prevent the next loss of life? Sure, you say, spend the $5.6 billion each year, every life is precious. Okay, does the cumulative spend of $61.9 billion over 11 years (to match the period in which the one death occurred) sound a bit extreme? Can you think of anything else that might be a better use of $61.9 billion? [Like a new national highway system? A new electrical grid? A few more cruise missiles? A few months of national health care?] I would note that $62 billion is double the provisional losses of BP from the Gulf oil spill. That’s a lot of coconuts, if you ask me.

Should we spend $61.9 billion on every cause of death? What about causes of death that are “worse”, meaning that loss of life is greater? Should we spend proportionately? If our resources are limited (I used to think that was relevant but lately, who knows?), how should we allocate our limited dollars? Is it okay to prioritize? Does lead make the cut if we try to allocate rationally?

It is worth noting that the value of a life or an injury is a heavily-litigated subject. It is a staple of tort litigation to estimate damages by assessing the economic value of a life or an injury. The U.S. government also engages in the same analysis. Certain agencies are forbidden by law to issue regulations that do not show an economic profit, that is, the cost of the regulation must be outweighed by its economic benefits. [Money spent or saved by the public versus the government is not relevant to this analysis - a dollar's a dollar no matter who spends it.]

The benefits of the regulation are calculated by assessing the economic value of lives and injuries. To regulate otherwise is economically irrational – which is where the CPSC seems to be. More to the point, economic irrationality is against the weight of U.S. jurisprudence, not to mention laws limiting the ability of the government to issue regulations. Hate to sound trendy, but it is Big Government completely out of control to contend that lives are “priceless” and to assert that the cost to avoid injury or death should not be limited by economic considerations. Please note that the EPA assesses the economic “value” of a life at $6.1 million. For even more perspective, the EPA says that one IQ point lost to lead is worth $8,346. CPSIA compliance costs are not less than $5.6 billion EACH YEAR. Do the math.

Okay, this is bordering on insulting your intelligence. Yet, astoundingly, the CPSC doesn’t get it. What about the behavior of the CPSC itself – do they ever consider economics? Again, at the risk of insulting your intelligence, of course they do. For one thing, they themselves have limited resources. They can’t do everything they want, and have to make choices. They have a BUDGET. They can’t hire everyone they want, can’t inspect everything, can’t process every claim immediately and so on. They also make practical judgments on some things. I reported recently the tarring the Commission received for making a practical judgment about how to implement the pool drain law. In that case, they chose to agree with the recommendations of industry, which is heresy in some circles . Certain members of Congress live in those circles . . . . No doubt the savaging of the Commission over that minor practical judgment will have the intended effect of eliminating whatever shreds of common sense or backbone extant at the CPSC and the Commission. Perhaps this is the end of their consideration of economics . . . .

Where does this leave us? Come on, guys, right where we were for the last two years! We continue to rail against this awful law, and the CPSC gets progressively more and more stone deaf. I feel increasingly like I am mumbling to myself, especially when they won’t respond to their own data or other data-driven rational arguments. Given that the Dems have made their name by being totally deaf to the legitimate concerns of industry, what choices are left to us? I am turning more of my energies to the 2010 Midterm elections. I hope you will also do what you can to change the dynamic in Washington. You’ve seen what these people have done in the last 18 months. Ready for more?

I’m not. And I am doing something about it.

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CPSIA – Why Hasn’t Data Changed Opinions at the CPSC?

CPSIA – A Page Torn from the CPSIA Playbook

The Dems’ Central Command tore a page from Waxman’s CPSIA playbook and, according to the New York Times, is apparently advising Democratic candidates running for Congress to avoid town hall meetings. All the better to avoid feeling the wrath of their constituents, you know, the people they represent. The NYT article reveals the strategy:

“The reception that Representative Frank Kratovil Jr., a Democrat, received here one night last week as he faced a small group of constituents was far more pleasant than his encounters during a Congressional recess last summer. Then, he was hanged in effigy by protesters. This time, a round of applause was followed by a glass of chilled wine, a plate of crackers and crudités as he mingled with an invitation-only audience at the Point Breeze Credit Union . . . . The sentiment that fueled the rage during those Congressional forums is still alive in the electorate. But the opportunities for voters to openly express their displeasure, or angrily vent as video cameras roll, have been harder to come by in this election year. If the time-honored tradition of the political meeting is not quite dead, it seems to be teetering closer to extinction. Of the 255 Democrats who make up the majority in the House, only a handful held town-hall-style forums as legislators spent last week at home in their districts. It was no scheduling accident.”

Here’s the Dems’ genius strategy in a nutshell: last year – hung in effigy; this year – invitation-only, closed door “feedback” sessions. Problem solved!

This master stroke allows the Dems to stage manage a myth, perpetuating the illusion that everything is A-Okay. Of course, this brings to mind Henry Waxman’s refusal to hold CPSIA hearings for almost two years and his staff’s perpetual rebuffing of any criticism of the “perfect” CPSIA. See no evil, hear no evil – therefore there must not be any evil . . . right?

The big question is who will be fooled by the Dems “hiding in plain sight” strategy. Does anyone actually believe that avoiding the people will keep the Dems in control of Congress?

It’s hard not to feel that the Dems think they are ruling us, not governing as our representatives, and aren’t accountable for their actions. It seems the height of arrogance to not stand before constituents and talk about the issues of the day. Perhaps they think we are too dim to remember what we are pissed off about.

Just like the CPSIA. Does anyone remember why we are mad about this law??? Someone needs to remind me . . . .

So the Dems are going to avoid you and your problems. This kind of treatment makes voter anger turn into voter rage. Let’s keep this in mind as we head to the polls. When the Dems are out of office, they can see how they like being ignored.

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CPSIA – A Page Torn from the CPSIA Playbook

CPSIA – Numbers Don’t Lie (2nd Update – An Upside Down World)

I have previously reported that my study of reported lead recalls over the past 11 years shows that there has been ONE reported death, the widely-discussed Jarnell Brown who died after swallowing a lead jewelry charm in Minnesota. This single death, plus three injuries, is the entire database of injuries reported by the CPSC from lead and lead-in-paint in the past 11 years. That’s it.

The New York Times reported on Sunday that data from the EPA sets the economic “value” of a human life at $6.1 million. Whether that number is high or low, it’s a good placeholder for an economic analysis of the CPSIA. [The EPA originally set this figure for an economic analysis of one of its rules.] According to federal rules governing regulations issued by the EPA, the benefits of a regulation must outweigh its costs. Therefore, as the NYT reports, if you save one life (worth $6.1 million) with a new regulation that imposes a compliance cost of $8 million, the regulation is illegal and must be withdrawn.

I wonder if this analysis would give us any insights into the CPSIA. . . .

Another relevant data point from the NYT article is that one IQ point lost to lead poisoning is worth $8,346 over a lifetime. That’s a real figure – think of the cost and disruption imposed on the children’s product industry to avoid the POSSIBILITY of the loss of an IQ point. Consider that the CPSC has reported three injuries from lead-in-paint in 11 years – that’s 3 x $8,346 = $25,038 in “damages” in lost IQ points or a little over $2,200 per year.

Even this miniscule cost is conjectural as I am simply not aware of a single, PROVEN case of lead poisoning from a children’s product. The victims assert a link between their (often undocumented) lead poisoning and the offending children’s product – but the causal link is rarely if ever challenged or conclusively verified. Even the consequences of the (asserted) lead poisoning is itself conjectural – although I am not defending lead poisoning. It is not certain, however, that lead poisoning always leads to long term problems or diminished capacity. [This issue gives fresh perspective on the recent policy of the CPSC to recall ALL lead-in-paint violations, a strict liability standard. This almost certainly violates the "substantial product hazard" standard that governs the ability of the CPSC to issue recalls as a matter of law. CPSC leadership should be held accountable for this change in policy in violation of the "substantial product hazard" statutory standard.]

On the basis of this very doubtful data, my entire industry has been trashed.

Let’s do the math on the CPSIA: In 11 years, one death ($6.1 million) and three IQ points ($25,000) = total cost $6.1 million. On other side of the ledger, the HTA estimates that the ANNUAL cost to test products for compliance with the CPSIA is $5.63 billion. The all-in cost is probably higher by a factor of 2-3x, but the HTA number is fine for illustration purposes. At this rate, ignoring the likely impact of inflation, the 11-year projected cost to comply with the CPSIA would be not less than $61.9 BILLION.

Spend $61.9 billion, save $6.1 million. In other words, thanks to the wondrous CPSIA, Americans spend $1,000 on “safety” to save a buck in injury costs. This is the legislative scheme that your Congressional Dem leaders have been fighting tooth-and-nail to preserve intact for the last two years.

The Dems want you to spend $1,000 to save a dollar. They won’t give an inch and have stubbornly refused to listen to reason for two years. The illegality and remarkable fiscal irresponsibility of this regulatory scheme doesn’t impress them. They tell us there’s no safe level for lead . . . but the real danger appears to be that there is no safe level of Democrats in our government.

November, November. Mr. Waxman, go ahead and fiddle while Rome burns. We’ll see you and your colleagues in the voting booth.

Read more here:
CPSIA – Numbers Don’t Lie (2nd Update – An Upside Down World)

CPSIA – Phthalates and Lead Limits in Waxman Amendment

Two minor but important points in the new Waxman Amendment relate to the ban on phthalates and the 100 ppm lead standard looming in August 2011.

Phthalates: The phthalates ban has been clarified to exclude “inaccessible” components, thus reducing the cost of testing for victims of this poorly-conceived law. The definition of “inaccessible” is based on foreseeable use and abuse by children. The term “reasonably foreseeable use and abuse” is defined, lest anyone misconstrue what the Waxmanis want it to mean, and hence new concepts have been incorporated: “breaking” as well as “the aging of the product”. In the past, “reasonably foreseeable use and abuse” has been interpreted to exclude intentional misuse. The term did not typically include aging since most worn-out products are either handled differently or discarded. The changes wrought by this amendment fundamentally alter the common meaning of “reasonably foreseeable” in quirky ways, making a confusing law all the more difficult to understand or apply.

If “reasonably foreseeable use and abuse” includes breaking the toy, it’s hard to know which parts will ever be considered “inaccessible”. Reading this language by its plain English meaning, I cannot imagine what might survive this legislative test. Worthless. I sense another rulemaking process for the long-suffering CPSC.

The amendment also clarifies that the CPSC can revoke this exception to protect the public health and safety. Remember, we are talking about a rule affecting mandatory testing of internal components that may or may not contain phthalates. Can anyone tell me what threats to the public health and safety could POSSIBLY result from an internal component made with phthalates? Phthalates have been in use in this country for more than 50 years – wouldn’t we know about “leaping phthalates” by now? Oh yeah, I’m sorry, i forgot that reasoning and science don’t matter anymore. . . .

Perhaps concerned that the CPSC was running out of things to do, the authors added yet another rulemaking on “inaccessibility” for this new exception. They are free to adopt the definition already set for lead. It’s up to them. Study up, guys! Can’t wait to give comments . . . .

Can you say . . . mania?

It is worth noting that in taking this route to “resolve” the pain points on phthalates, the Dems have chosen to NOT address a pending issue between the CPSC and California. Attorney General Jerry Brown of California sent a hot letter to the CPSC last year indicating his unwillingness to accept testing of the entire product for phthalates ban purposes. In the wake of his letter, the agency reversed course and rescinded its rule permitting a single test on the entire product. This would have been inexpensive for manufacturers.

It is pure fantasy that the Dems would take on Jerry Brown since our Congressional overlords are largely from CA (Waxman, Pelosi, Boxer, Feinstein) and are busy trying to California-ize the rest of the country. Henry Waxman would certainly never preempt Jerry Brown for the national good. Hence the half-a-loaf approach here.

Lead: The Waxman Amendment makes the pending 100 ppm lead standard prospective. This is a tiny bone thrown in our direction. You may consider it a nod of acknowledgement of your pain from the retroactive application of the lead standards and phthalates ban. Nonetheless, this is all you will get.

Again, this is only half-a-loaf. A more thoughtful and helpful change would have been to draw a FIRM LINE under the 300 ppm standard, eliminating the 100 ppm standard altogether as well as the rule ratcheting down the lead standard in the future (forgot about that one, right?). They could have said that the CPSC would be free to lower the lead standard in the future if necessary to protect public health and safety (taking into account the cost and benefit of any such new rules). But they didn’t.

The Waxmanis have no interest in such concessions. Whether out of zealotry or pride of authorship, no amendments will emerge if they reflect any concession of error or misjudgment in the Perfect Legislative Process. Thus, the 100 ppm standard can’t be removed because they put it there for a reason. We must live with it . . . so they say.

Rumorville has it that the Waxmanis are about to deliver a message to leaders of the business community to fall in line behind this “wonderful” amendment or else . . . they’ll get NOTHING. Don’t you love this? And I used to think THEY worked for US. What an idiot I am!

And on that note, I encourage you to read ONE more blogpost about this toxic amendment. I still need to show you how the authors are trying to deceive you and gut the system that regulates safety of safeguards against governmental abuse. That is, abuse of the interests of your businesses. It’s really something to see.

Read more here:
CPSIA – Phthalates and Lead Limits in Waxman Amendment

CPSIA – Washington Post Says Cadmium Issue is Overblown

Tell me it’s not true – we can’t panic about cadmium anymore?! The Washington Post thinks the CPSC may have gone a bit too far in demanding that every American throw away all their children’s jewelry based on a newspaper article they read somewhere: “Very little is known about cadmium’s potential health effects on children, [Dr. John Rosen, chief of environmental sciences at the Children's Hospital at Montefiore in the Bronx] says, because it’s never been known to be a problem, ‘Pediatricians don’t look for it, they aren’t knowledgeable about it, and there are not any particular concerns about it.’” [Emphasis added]

The Post concludes: “So, while this is certainly no matter to pooh-pooh, and it’s important for the government to take whatever steps it must to keep poisonous metals out of the marketplace, it doesn’t sound like occasion to panic, either.” [Emphasis added]

We knew that Senators are absolutely ignorant of science so their foolishness can be understood, but what about the CPSC? Aren’t they on a different level? In the olde days, the CPSC used its professionals for their highly-refined expertise. Today, the staff brainiacs are used to bureaucratically shovel paper from one end of their desk to the other, or to practice falling in line. The folks at the top, the (Democrat) politicians, seem to have the same mastery of science as their Congressional overlords and a similar disregard for the consequences of their actions.

So Inez Tenenbaum went on a media blitz, ably assisted by her associate Scott Wolfson, and SLAMMED the jewelry industry. They had seemingly done virtually no homework (if reading an AP story doesn’t count as “research”), neglecting to take advice from the many Ph.D.s that they employ, and went ahead with an astoundingly irresponsible spree of rulemaking on the fly. And the consequences to them?

There’s the rub – there won’t be any. But there should be. This kind of tort is remediable in the private sector with lawsuits and damages. Not sure how easy it would be to prosecute such high ranking public officials for their conclusion-jumping. We can certainly count on our fearless leader Obama to COMMEND them for their precautionary actions. Surely by putting the jewelry industry out of business, they must have saved lives . . . somewhere. The nice thing about these folks, if they can assert it, it’s “true”. Or true enough.

What a sorry episode, and even with the Post on record with a calming and balanced summary of cadmium’s risks, the train already left the station. Expect the next attempt at an amendment to the CPSIA to include dramatic restrictions on cadmium. Congress will save us, don’t worry.

Hey, science is overrated. Trust me.

Read more here:
CPSIA – Washington Post Says Cadmium Issue is Overblown

CPSIA – Keeping Government Out of Children’s Products May Require Toxins

The Cadmium circus rolled on today with Senator Amy Klobuchar rushing to save America by calling for hearings on cadmium. Ms. Klobuchar must have been in quite a hurry to save America:

“Jumping on a report about toxic levels of cadmium in children’s jewelry from China, Sen. Amy Klobuchar is pushing for a hearing on the issue. Klobuchar, D-Minn., sent a letter Tuesday to Senate Commerce Committee Chairman Jay Rockefeller, D-W. Va., that says, in part, ‘this metal has no place in children’s toys.’” [Emphasis added]

Jewelry . . . toys . . . it’s all the same, isn’t it? Heck, when you’re saving children’s LIVES, these piddling details are merely the hobgoblins of little minds (Ralph Waldo Emerson must have been from Minnesota). If her heart is in the right place, who cares if she has any idea what she’s talking about?

Not one to let down her adoring public, Ms. Klobuchar shared some of her expertise on the CPSIA and toxins: “Citing [the CPSIA], Klobuchar wrote that although there are ‘currently no cadmium restrictions on toys and jewelry, cadmium is a poison and if ingested, can hinder brain development and lead to other health problems in children.’”

This is, strictly speaking, not true. Well, how can you expect Klobuchar to actually check a factual statement like this? She is one busy Senator, there’s no time for dilly-dallying. It’s not like she’s a lawyer (oops, she is!) or actually participated in writing the CPSIA (oops, she did!) and voted for it (oops again, she did). She probably even read the law at one time (oops . . .).

One of the brilliant changes put through by Ms. Klobuchar and her Congressional brethren in the CPSIA was the codification of ASTM F963 (Section 106 of the CPSIA), the formerly-voluntary standard of the toy industry. This document (it’s really long, don’t blame her for not leafing through it) imposes a requirement of not more than 75 mg/kg of cadmium in toys. The CPSIA even required the CPSC to examine the effectiveness of the ASTM standard within a year . . . and they did it without changing any requirements relating to heavy metals. But that was before the latest headlines.

Of course, Ms. Klobuchar was simply joining the fun along with Senator Schumer who introduced anti-cadmium legislation to save us, and Chairman Tenenbaum who encouraged people to rip jewelry off the necks and wrists of their kids: “We have proof that lead in children’s jewelry is dangerous and was pervasive in the marketplace. To prevent young children from possibly being exposed to lead, cadmium or any other hazardous heavy metal, take the jewelry away.” [Emphasis added] Joe McCarthy would have loved this free-for-all.

Even the AP is now scratching their collective heads. The same AP reporter issued a new article today puzzling over the panicked regulators: “When pressed, Tenenbaum’s spokesman Scott Wolfson explained parents should grab the trinkets and toss them. Just be sure to ‘safely dispose’ of the merchandise under applicable state and federal environmental law.” [When I read quotes like this, I think if there wasn't a Scott Wolfson at the CPSC, we'd have to make one up.]

The AP article carries on: “So what are America’s Moms and Dads to do? While neither Tenenbaum nor Wolfson would outright say not to buy cheap children’s jewelry, that inference was clear, too. A tough conversation around the kitchen table: don’t buy any new stuff, don’t give out any new stuff, don’t play with the old stuff. In fact, get rid of the old stuff, but in a manner that doesn’t risk putting toxins from the jewelry into the environment. And make sure you don’t go out and resell the jewelry through online auctions or to a thrift store, said Wolfson.” [Emphasis added] Wolfson has a way with words, doesn’t he? Reporters must love him . . . .

The AP sums it up: “So instead of focusing in on specific items, as a recall would do, the CPSC officials are taking on an entire industry. . . . [The testing for AP] only looked at 103 pieces of low-priced children’s jewelry — finding 12 items with cadmium content above 10 percent of the total weight. . . . Clearly, the CPSC is worried beyond those limited test results. Even during the height of product recalls from China several years ago — when millions of items of jewelry or painted toys with high lead levels were taken off store shelves — the CPSC did not issue such a public warning. Under the administration of President Barack Obama, and with Tenenbaum replacing commissioner Nancy Nord atop the agency, the CPSC is projecting a much more aggressive image.” [Emphasis added]

Cooool under fire! I think the CPSC isn’t going far enough. It is clear that we in industry do not measure up to our leaders’ high standards and expectations. Imagine having to wonder what will be in the paper every morning, the pressure, the angst. [If it's in print, it must be true - just ask the Zhu Zhu Pets folks.] So, to avoid all that stress, I recommend that the CPSC take the bold step to make everything illegal. We should be required to turn over all of our possessions to the government for safe disposal according to applicable environmental protection laws and then move, naked, back into the caves where things will be much safer. This should make things simple and besides, the enforcement and legal staff create NOTHING BUT WORK for the Commission. My heart bleeds.

But wait, that won’t make us safe just yet. Cadmium is in our food, in our water, in our air, in cigarettes, in batteries and fertilizers, in our workplaces – horrors! I just had an epiphany – Cadmium is so ever-present in our environment that it must be the cause for human mortality. There, I put that sentence in writing and published it – so it must be true. The CPSC therefore should ban food, water and breathing. It’s the only thing they can do to save the human race.

And I used to think we had too much government. You ain’t seen nothin’ yet, baby. . . .

Read more here:
CPSIA – Keeping Government Out of Children’s Products May Require Toxins

CPSIA – Transparency, Tenenbaum/Adler-style!

In a truly creepy decision today, the Democrat-dominated CPSC Commission today voted down Anne Northup’s motion to have a public debate of the agency’s recommended changes to the CPSIA. The vote was 2-2 along party lines. [Party affiliation should NEVER be predictive of positions on safety.] By this vote, the Commission ensures that there will be no public airing of views on the agency’s recommendations for amending the awful CPSIA before their report to Congress is due on January 15 (see below). Apparently, the general public’s interest in understanding this critical debate was deemed by the Democrats to be a low priority.

It is ironic that the Democrats would choose to spurn the Government in the Sunshine Act (“Sunshine Act”) so brazenly. The decision to leave Northup’s item off the upcoming meeting agenda is not technically a violation of the Sunshine Act, but then again it is certainly NOT on the list of exceptions to the public meeting rule (5 U.S.C. 552(b)(c)). In my humble opinion, it is a clear violation of the spirit of the Sunshine Act and can hardly be characterized as “transparent” government. As Ms. Northup noted, the sponsors of the Sunshine Act would be appalled. So why did the Dems do it?

Before I recap and analyze of this incredible event, I would like to quote Inez Tenenbaum on the importance of “transparency” (emphasis added):

• CPSC Press Release (July 9, 2009): “Ms. Tenenbaum identified three major areas of focus for her common sense approach to serving as Chairman. ‘First, I want CPSC to be more accessible and transparent to parents and consumers. By creating an electronic database of product incident reports that consumers can search and by collaborating with state and local agencies and consumer groups, we can give the public confidence that CPSC is working openly and in their best interest,’ she stated.”
• APEC Conference Keynote Address (August 1, 2009): “My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. . . . Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy.”
• Statement Before the Subcommittee on Commerce, Trade, and Consumer Protection (September 10, 2009): “In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve . . . .”
• Keynote Address, 3rd CPSC-AQSIQ Safety Summit (October 21, 2009): “I embrace open government, information sharing with all stakeholders, and a commitment to finding mutual interests.”

With Ms. Tenenbaum’s apparent commitment to “transparency”, it should not be surprising that she originally moved to add an agenda item to discuss this very topic (apparently for today’s brief meeting), and then somehow the decision was voted down 3-1, presumably Tenenbaum, Moore and Adler voting against, Northup voting for, and Nord on leave (she’s back now). [I cannot find any record of this vote on the "wonderful" CPSC website and gave up, sorry.] So at one time at least, Tenenbaum was publicly calling for a public discussion of five Commissioners on this critical subject.

One must wonder who spoke to whom to get this flip flop accomplished. Assuming Ms. Tenenbaum meant what she said publicly about the need for “transparency”, someone must have really put a wet blanket on the idea of publicly discussing this subject. I wonder who might have strong views on the wisdom of an unstaged, open discussion of these issues . . . .

Consider Ms. Northup’s argument: This is one of the most critical issues to come before the Commission. The CPSIA has been controversial and difficult to work with two years now. The Appropriations Committee has asked us to give recommendations on how to change to the law. [See this link, pp. 33-34 for the actual instructions.] There is no disagreement that blood lead levels need to be a top priority in children’s safety but none of the CDC, NIH or EPA point to children’s products as a serious lead threat. The Sunshine Act prevents the Commissioners from meeting other than one-on-one without calling a public meeting, which means we can never sit down together to discuss these issues. The issues are too important to relegate to a game of “telephone”. A hearing is the only way for the five of us to discuss this issue at one time.

Tenenbaum’s response was telling: The Staff has been working night and day on this and everyone has had a chance to put in their comments. Each Commissioner has had some drafting responsibility. Each Commissioner has the right to submit their own statement to Congress and likewise to request to testify to present their own personal views. Given our ability to have “extensive discussions” one-on-one, this debate is best held in private. We should NOT have a public hearing on this subject.

Okay, are you persuaded? This is coming from Ms. Transparency, to judge from her many uses of that old chestnut in various speeches and testimony.

Nancy Nord made the point that the reason to have a Commission is to meet publicly and have discussions openly and transparently. Apparently this didn’t persuade the Dems. Bob Adler amplified the “argument” against trusting the American public to listen in to the debate: After conceding that he would sound like the “Prince of Darkness”, he stated that an open Commission hearing should involve give-and-take but a hearing on this topic would not involve deliberation but instead speeches telling him why he’s wrong and the others are right. He said he was very comfortable with the current process because he knows everyone’s views quite well and besides, so does the public via blogs, tweets, statements and so on. The minority Commissioners are not being “squelched”. He said that a public meeting removes the ability to think out loud. “As soon as you say it [in a public meeting], it’s all over the blogosphere.” [Thanks for the plug, Bob.]

So what does this MEAN? A few thoughts:

- The Dems don’t want to allow an unruly public debate of the issues – why? There are several possible reasons – (a) they have been told a public debate is “not a good idea” by Congressional Dems who have consistently refused to hold public hearings, (b) they have been told that many/most changes are “non-starters” by Guess Who so don’t even think about suggesting them, or (c) they don’t want to defend their views publicly because . . . there is no way to put a good face on their views.

- The Dems were outfoxed today. By putting up the request to discuss this subject publicly, the Republicans forced their fellow Democratic Commissions to stand up publicly – before you, the general public – and try to defend “smoke filled room” politics. Now that’s “Change We Can Believe In!” In other words, they were caught between a rock and a hard place – their Congressional handlers said “no way” and to get this result, they had to publicly wave their arms and try to convince us that secrecy is somehow openness. The Dems can NEVER again say they are all about transparency. If they do, they will expose themselves as being all about . . . something else.

- The “commitment” of the Commission to find middle ground and vote more cohesively as a group, which they achieved after considerable effort on the recent Stay decision (lead testing and certification), is apparently paper-thin. Ms. Tenenbaum obviously knew of Ms. Northup’s motion ahead of the meeting today (she had her response drafted in advance). [Did anyone else catch the chill in the air during the meeting?] So, if they all knew this was coming, where was that commitment to work together? To consider everyone’s views? Forget it. It’s also hardly an advertisement for the ability of the Chairman to steer this group.

- The illusion that this government cares about the mess it made or is making any reasonable effort to fix it has been blown up. The game is fixed and has been fixed from the get-go. You need only read the Appropriations conferee report (link above). The Democrats control both Houses of Congress – so this statement was written by Democrats: “The CPSIA was signed into law on August 14,2008 and is considered to be the most significant piece of consumer protection legislation enacted since the CPSC was established in the early 1970s. The legislation received nearly unanimous bipartisan support in Congress. Congress passed this legislation in the wake of a massive number of consumer product recalls in 2007 and 2008–more than 20 million-many of which involved toys manufactured in China. The conferees strongly support this legislation but are aware of concerns surrounding implementation of certain aspects of the law.” Of course, I have already documented that 43 Senators and 96 Members of the House have either sponsored or voted for CPSIA amendment legislation. It’s a complete mischaracterization of the current reality – but when read by Ms. Tenenbaum into the record during the meeting today, it almost sounded true . . . .

This process is some sort of Kabuki Theater for your amusement. Having fun yet?

Today’s decision is par for the course in a twisted, bass-ackwards debate over safety characterized by ideologues out to steal our legal system, bureaucrats devastating markets that they simply do not understand, regulators witnessing the destruction of their agency to serve a small number of Congressional “masters” with a broad, world-changing agenda. To propel it along, the Dems now propose to shield their work under the cloak of darkness. Does it really matter? Well, Bob Adler already knows what everyone thinks and doesn’t care to be told he is wrong (and others are right). So I guess it really doesn’t matter. His mind is made up, Waxman’s mind is made up – and no one cares what you think.

So, when you have to let a few more people go to cover ridiculous testing costs or to pay your lawyer extortionate fees to keep you on the straight and narrow, or when you cut your product line or drop some customers to find profit elsewhere, just remember: the Democrats on the Commission thought it would be best to have the debate on the CPSIA one-on-one in private, rather than let you understand their views or participate in an open hearing.

Just remember that . . . on November 2, 2010.

Read more here:
CPSIA – Transparency, Tenenbaum/Adler-style!

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