CPSIA – Anyone Care about Penalties Yet?

Cassandra here . . . .

Let me try you out on a hypothetical. What would you recommend as “consequences” for the following fact pattern? A company exhibits a pattern of safety incompetence over a period of time. Owing to agency vigilance, they are told multiple times to shape up, which they never get around to doing. No one is injured, but several minor recalls result. As we live in a time of political correctness and hyper-concern over trivial matters, the recalls not surprisingly involve only a few units of numerous products (less than 1000 units over two years). No injuries are reported. Numerous letters go back and forth, and theoretically, some of the culprit’s safety violations could have resulted in injuries.

So what penalty do you hit them with to get your message across?

For perspective, Mattel paid a fine of $2.3 million for about 2 million units recalled. This was national headline news. Mattel also recalled many millions more in other recalls in the same time period. RC2 paid $1.25 million for their recalls of 1.7 million units of Thomas the Tank Engine, a series of recalls that included an embarrassing recall of “thank you” gifts sent to people returning lead-laden Thomases. Target paid $600,000 for its “sins” in three relatively large scale recalls (545,500 total units). And I fully agree, respect and attentiveness to the details of the law are mandatory. Everybody needs to take these issues seriously.

And the answer is . . . . Try $2.05 million. Cash.

You wonder why I say that the CPSC leadership has blood lust . . . .

Oh yeah, I forgot, the CPSC also sicced the U.S. Attorney on ‘em, hitting the company with an injunction, a cease importation order and a mandatory plan of remediation.

Of course, I am alluding to the case of Daiso, the Japanese dollar store chain with a small U.S. presence. I have written about this company in the past, noting that they recalled 40 inflatable baseball bats for phthalates violations. For this and other unpardonable sins, this company was subjected to regulatory horrors on an incomprehensible scale. Here are their five recalls for your consideration:

May 12, 2008: 48 units, two skus
June 3, 2008: 50 units, two skus
July 25, 2008: 40 units, two skus
October 6, 2009: 430 units, four skus
October 6, 2009: 130 units, nine skus

Total over two years: five recalls, 698 units, 19 skus.

I have no personal knowledge of these people or this case. I also agree that the facts suggest that this company was recalcitrant or possibly incompetent. In any event, it’s their responsibility to take our laws seriously. Nevertheless the CPSC press release and the injunction both portray a far more serious situation than the facts seem to demonstrate. This is hardly a case of ingested super-magnets and millions of units in circulation. And the penalty, of course, is so far beyond the pale that I consider it incomprehensible. It is also extremely worrisome.

Today’s CPSC is about sound bites and putting you “on notice”. Whether their tactics are fair or appropriate seem to be a secondary concern. Note this quote from Japan Today: “‘This landmark agreement for an injunction sets a precedent for any firm attempting to distribute hazardous products to our nation’s children,’ commission Chairwoman Inez Tenenbaum said. ‘We are committed to the safety of children’s products, and we will use the full force of our enforcement powers to prevent the sale of harmful products.’ . . . CPSC spokesman Scott Wolfson said the company had been warned several times about violating safety standards.” In other words, this is entirely justified because the company had been warned and laws had been broken. I see.

There is a concept in Anglo-American jurisprudence of a punishment to fit the crime. I wish the CPSC knew something about proportionality in administering justice. Unfortunately, this CPSC seems to think that the importance of public messaging allows them to justify whatever they want to do. There seems to be no constraints, whatsoever. As Mr. Wolfson intones, after all, Daiso had been warned several times. Ergo, it’s fair to whack them with a penalty almost as great as imposed on Mattel. For less than 1,000 units sold.

Have you ever sold less than 1,000 units of something? Has anything ever gone wrong in your business? Uh-oh. Start saving up!

If you are having trouble grasping the point, consider the recent case of the man caught stealing a $3.99 bag of cheese in California. The judge went easy on him, only sentencing him to 7.7 years in jail. Nothing wrong with that, right? As the defendant’s lawyer noted in her closing remarks, “She concluded that his most recent thefts were petty. ‘We’re talking about a pack of cheese,’ she said.” Good thing the judge was listening . . . . This kind of justice brings to mind Midnight Express, the nightmarish story about Turkish jails. We’re not that kind of country, right? Right???

But in this environment, with the pack of jackal consumer groups egging them on, this CPSC is prepared to lower the boom to squish anyone who dares be incompetent. Here’s Consumer Reports on the case: “Our take: This is more evidence that the CPSC has been reinvigorated and that the new leadership at the Commission, plus the new powers under the CPSIA, mean good things for consumers.” In other words, it’s not only okay, it’s a sign of returning “health” in our U.S. government. Yippee.

I agree some sort of penalty may be merited in a case involving a pattern of violations. A large company like this one might need a large-ish penalty to “get the message”. [I wonder about that. Is it certain that this company would not have changed its behavior for a penalty of $50,000 or $150,000? The CPSC never tried smaller penalties first, as escalation seems to not be part of their vocabulary.] Nevertheless, this penalty lacks any rational relationship to the trivial problems cited in the recalls. In other words, it is completely arbitrary.

And for those of us destined to have to deal with the CPSC on resolving problems in the future, the Daiso case in your warning. Under this Commission, the agency has no apparent intention or need to be reasonable. They are unfettered in their ability to punish and exhibit no self-restraint. You won’t be able to fight them, they print their own money. It must be nice to be both judge and jury.

This is what our country has turned into. I CAN’T WAIT TO VOTE AGAIN. November can’t come fast enough for me.

Read more here:
CPSIA – Anyone Care about Penalties Yet?

CPSIA – Game Playing with Phthalates

Last Wednesday during ICPHSO, CPSC General Counsel Cheri Falvey made a direct statement about phthalates testing: You only need to test plasticized parts and paints for phthalates. She also noted that internal components still need to be tested, ridiculous (and expensive) as that may be.

In my post of February 17, I admitted that I hadn’t seen this in writing previously and asked for citations. A reader who knows more than me sent me this link. We think she is refering to this language:

“Not all plastics, however, contain phthalates. Certain plastics, such as polyethylene and polypropylene, generally do not require plasticizers. However, surface coatings and adhesives may contain phthalates. In addition, phthalates could be used in some plastics even though they are not required. Phthalates might also be used in some elastomers or synthetic rubbers. . . .

Manufacturers either know or should know what materials and components go into the products they make, and if the product or its components contain one of the plasticizers specified in section 108 of the CPSIA, the manufacturer or importer certifying the product must test the component or product to ensure that it complies with the CPSIA. Failure to comply with section 108 of the CPSIA is a prohibited act under section 19 of the Consumer Product Safety Act (CPSA) and can result in civil and criminal penalties. Likewise, failure to have a product subject to section 108 of the CPSIA tested by an accredited third-party laboratory and have the appropriate certification for that product is also a prohibited act under section 19 (CPSA).” [Emphasis added]

Aha, that’s it! Or is it? Here’s some more from this document:

“Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are:
• Unfinished metal.
• Natural wood, except for coatings and adhesives added to wood. . .
• Mineral products such as play sand, glass, and crystal.”

I wrote about this provision in my comment letter on the second proposed phthalates standard (see paragraph 7). All the risk is on the manufacturer, there are no safe harbors other than comprehensive testing (even for wood, metals, sand and crystals), and there is no way to assure a dealer of the validity of an “incomplete” test report.. This rule remains an utterly unworkable and confusing standard – nowhere near as simple as Ms. Falvey implies. Although few wars are raging with test labs over this provision (since testing isn’t mandatory yet, “anything” goes), the possibility or probability of chaos remains profound.

I feel strongly that it is wrong of CPSC General Counsel Falvey to make light of this risky situation with an unsupported blanket statement, particularly since she is prone to “tisk tisk” you if you ignore one of her many oral warnings. If her words have the power of law, which they certainly don’t, then presumably they also provide cover. Are you ready to make that bet? In this case, if anyone relies on her statement, they are risking civil penalties or criminal charges according to Falvey’s own written policy.

Oops- that’ll teach you to listen to the General Counsel!

Read more here:
CPSIA – Game Playing with Phthalates

CPSIA – Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this “menace” that they are willing to write an outright ban into the CPSIA, via Mr. Waxman’s new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems’ rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let’s think about the basics here:

• Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids’ pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
• Rhinestones have no history of causing lead poisoning.
• Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.’s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal “danger” of rhinestones:

“[T]he Exponent study submitted [by the FJTA] on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally.” [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones “menace”. Here is Ms. Cowles’ suggestion for those who value their bling:

“In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. ‘People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,’ Cowles said.”

It’s okay, they just want to protect you.

At this point, I have to ask – what on Earth happened to our country? How did we get to this point? I can’t say for myself, I don’t know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today’s New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It’s a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday’s Barron’s Magazine, the Dems’ ability to actually govern is questioned. That’s a “wow”. This small article details how Senator Max Baucus’ jobs bill (written in response to President Obama’s call for more economic stimulus), was gutted by Senate Majority Leader Harry Reid for “speedy” passage:

“So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who’s been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. ‘Democrats are in danger of demonstrating they cannot govern on the most basic level,’ a progressive Democratic party leader said last week.”

That’s right – the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week’s victim. Who is next in line – you?

When are you going to say “ENOUGH”?!

Read more here:
CPSIA – Why Do Dems Want to Ban Rhinestones?

CPSIA – Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this “menace” that they are willing to write an outright ban into the CPSIA, via Mr. Waxman’s new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems’ rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let’s think about the basics here:

• Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids’ pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
• Rhinestones have no history of causing lead poisoning.
• Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.’s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal “danger” of rhinestones:

“[T]he Exponent study submitted [by the FJTA] on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally.” [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones “menace”. Here is Ms. Cowles’ suggestion for those who value their bling:

“In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. ‘People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,’ Cowles said.”

It’s okay, they just want to protect you.

At this point, I have to ask – what on Earth happened to our country? How did we get to this point? I can’t say for myself, I don’t know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today’s New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It’s a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday’s Barron’s Magazine, the Dems’ ability to actually govern is questioned. That’s a “wow”. This small article details how Senator Max Baucus’ jobs bill (written in response to President Obama’s call for more economic stimulus), was gutted by Senate Majority Leader Harry Reid for “speedy” passage:

“So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who’s been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. ‘Democrats are in danger of demonstrating they cannot govern on the most basic level,’ a progressive Democratic party leader said last week.”

That’s right – the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week’s victim. Who is next in line – you?

When are you going to say “ENOUGH”?!

Read more here:
CPSIA – Why Do Dems Want to Ban Rhinestones?

CPSIA – Some ICPHSO Humor

After a day at ICPHSO when

• The General Counsel quizzed the audience perhaps ten times about who was tweeting (my spies indicate that three people tweeted from that session, including me), ribbing us (me?) for letting you know what she was saying. [I blogged live from last year's event, which was noted with shock by some participants.]
• The Chairman instructed us not to believe “Internet rumors” and to only believe websites ending in “dot gov”. You know, you can always believe your government!
• The Chairman told us to stop fighting old battles – in other words, give up, guys!
• The Chairman heralded the work of the Center for Environmental Health, one of the most noxious of the consumer group terrorists active in today’s market. Their tactic of extracting coercive settlements under CA Proposition 65 to set precedent and to fund their activities has been well-documented in this space.
• The looming reality of the public database was shoved in our faces (Tenenbaum: It’s time to get prepared). We confronted the realization that we will be forced to treat every consumer report as an emergency simply because of the database, and
• The Chairman pointed to the Toyota feeding frenzy as the model for future regulatory action on “slow” recalls in this era of populist corporation bashing,

where do you think the ICPHSO planners sent everyone on last night’s social event?

To see “Sheer Madness”, of course!

You have to admit, it was a perfect choice.

Read more here:
CPSIA – Some ICPHSO Humor

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 – 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 – 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 – Mike Green Attacks Anne Northup in WSJ

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

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

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

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

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

Thank you.

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CPSIA – Mike Green Attacks Anne Northup in WSJ

CPSIA – Zhu Zhu Pets Win the Battle But Lose the War

In the modern game of forming public opinion by fanning fear, victory by over-zealous consumer groups and political zealots is all but assured. With an incurious media all too ready to fall in behind unfounded accusations, destruction wreaked by these defenders of our rights is hard to prevent.

I submit as evidence an article in today’s News Journal (DelawareOnline.com) entitled “Choose toys not only for fun value, but safety value” which continues the irresponsible and debunked attack on Zhu Zhu Pets. The article began:

“Zhu Zhu Pets may be the hottest holiday gifts for kids right now, but an investigation into whether the toy is dangerous was enough to deter Lilian Latan from buying one. Latan, who lives in Middletown, has two daughters, ages 6 and 4. She reads safety labels before buying toys and games and pays attention to investigations and recalls. ‘Especially with the 4-year-old, I still have to be very careful’ about her putting things in her mouth, Latan said. ‘I read everything about a toy, and if it’s small and if it’s something that looks like candy, I won’t buy it.’”

The article carries on:

“Still, there have been some high-profile recalls and investigations. The commission recently opened an investigation into the popular Zhu Zhu Pets after the consumer watchdog group GoodGuide reported that the toy hamsters contain higher-than-allowed levels of antimony. If ingested, the heavy metal can sicken children. Cepia, the maker of Zhu Zhu Pets, has disputed the findings.”

In fact, as you know, the CPSC cleared these toys last week. Oops!

This is a current news article. Apparently, the News Journal didn’t know that the CPSC cleared this toy, nor did Lilian Latan, the consumer. They both knew of the ironicly-named “GoodGuide” and its defective test report, however. That’s the problem.

This kind of damage is almost certainly irremediable. Zhu Zhu Pets lost Lilian Latan through no fault of their own. Even the highly-publicized efforts of the CPSC to stop the unfair damage to the year’s hottest toy couldn’t stop this permanent loss of goodwill and good reputation.

It’s time to tell the consumer advocates to stop the game-playing. The toy mania, ongoing for almost three years now, helped identify the abusive practices that we, the consuming public, must resist and oppose. While you are at it, demand more of your news outlets. Newspapers and other news outlets need to ask more questions and make sure they get the story right.

You don’t need to live in a tabloid world – make your opinions heard!

Read more here:
CPSIA – Zhu Zhu Pets Win the Battle But Lose the War

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