CPSIA – You Can Add 43 Pages to the Heap

The CPSC published its Civil Penalty Factors today. It’s only 43 pages long. Get reading . . . .

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CPSIA – You Can Add 43 Pages to the Heap

CPSIA – Video Blog – Understanding the CPSIA!

I get calls all the time from my readers – “what do I need to read to understand the CPSIA?” Well, you gotta read, read, read! Unfortunately, the CPSC has not provide a list of documents for you to read. To help out, I prepared a little document list for you, and explained it in this video blog:

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CPSIA – Video Blog – Understanding the CPSIA!

CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

Inez Tenenbaum gave a keynote address at lunch at ICPHSO today. I would have preferred to rely on the actual text of the speech before writing about it (not yet available online at the CPSC website), but wanted to give you my impressions quickly. If I took erroneous notes, I apologize and will correct errors, if any, later.

Critical points from the speech:

• The speech was tough and hostile to “uncooperative” businesses.
• She gave plugs to Consumers Union, PIRG and CEH. Draw your own conclusions. She balanced those plugs with a hearty pat on the back for RILA which she said has proposed its own uniform testing “problem”. Oops, Freudian slip . . . she corrected herself to clarify that it is actually a uniform testing program. Program, problem – these are synonyms at the new CPSC.
• She wants to dispel the “rumor” that the agency is overwhelmed by mandates and is distracted from its mission. Further to this point, with regard to Internet “rumors” like the foregoing, she recommends that you only believe websites that end in “dot gov”.

Let me repeat that last one: Tenenbaum says you should ONLY believe websites that end in “dot gov”. That means you shouldn’t believe me, just her. Don’t be cynical, guys. Speaking for myself, when a high public official tells me not to believe the media chatter, just to believe them, I always take the heartfelt advice. After all, they only mean to protect me from scurrilous gossip that I am too dumb to figure out for myself. For instance, I still believe everything John Edwards says . . . .

• Regarding recalls involving a death, Tenenbaum warned companies NOT to blame parents in the press even if they are involved in litigation with the family. If they do, Tenenbaum promised (in strong terms) to “call [them] out”. I was floored by this. Is she our mother now? Our mother government, perhaps.
• She urged us to “stop fighting old battles” and get prepared. She was referring to the new era of the Public Database. Hmmm. We are to stop fighting old battles. Okay, everyone, put down your arms!
• She reiterated that the CPSIA was the “most substantial and positive” development in the CPSC’s (recent) history. She noted her love of the tracking labels provision and the removal of lead from zippers. Apparently my many comments and objections to tracking labels were ALL wrong. Darn! I must learn to love tracking labels. Repeat five hundred times, I must learn to love . . . .
• On the subject of voluntary standards, she emphasized that if industry doesn’t move fast to do it the CPSC’s way, the agency will just put out mandatory standards more to its liking. She specifically cited the JPMA and ASTM on the crib standards. She sounds really open-minded on that one. Tenenbaum also recommends that industries proactively make their standards more stringent so the agency can make them MANDATORY. Or . . . the agency will just do it itself. Nice! I feel trust building, building, building.
• She noted that the law applies to big and small companies ALIKE “for good reason”. Hey, crafters, get the message – there will no free pass for you. Of course, this actually makes sense because product injuries should not be okay simply because the manufacturer is small. The way to fix things for small companies is to rework the definition of hazard to be limited to ACTUAL hazards only, which will focus safety efforts in a logical fashion, thereby helping out the small guys. The crafters are a victim not of fair rules that are blind to small business interests – but instead of a terrible law that is so fatally flawed that no business can deal with it.

Here’s the best part:

1. Chairman Tenenbaum said that she won’t tolerate resistance to recalls that the agency wants to make. If you do dare resist, the agency will use its many tools to force the “right” outcome. Chairman of the CPSC or Chairman of the Politburo? Individual rights and due process are apparently a secondary consideration now, to judge from Tenenbaum’s fiery speech. There’s a big incentive to invest, right?
2. Tenenbaum cited Toyota as an example of how “this government” will NOT tolerate slow recalls. Oh boy. Think of the Toyota food fight when you imagine the future of CPSIA enforcement. Recall first, ask questions later and let the media sort out the details. And be sure to bring the mighty down low. That sounds so fair!

There are many industries that are going to be victimized by this new enforcement regime. The list will be LONG.

Lots of tough talk, saber rattling and scare tactics. Of particular concern is the implicit erosion in corporate legal rights and the continuing demonization of businesses and business people. The Obamist populist rhetoric was quite recognizable, and one must wonder who Tenenbaum really intended to reach with the speech. Whoever they are, I hope they were happy. As for me, I got the willies and thought that whatever progress I sensed earlier today was an illusion.

Will the Dems ever learn?

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CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

Inez Tenenbaum gave a keynote address at lunch at ICPHSO today. I would have preferred to rely on the actual text of the speech before writing about it (not yet available online at the CPSC website), but wanted to give you my impressions quickly. If I took erroneous notes, I apologize and will correct errors, if any, later.

Critical points from the speech:

• The speech was tough and hostile to “uncooperative” businesses.
• She gave plugs to Consumers Union, PIRG and CEH. Draw your own conclusions. She balanced those plugs with a hearty pat on the back for RILA which she said has proposed its own uniform testing “problem”. Oops, Freudian slip . . . she corrected herself to clarify that it is actually a uniform testing program. Program, problem – these are synonyms at the new CPSC.
• She wants to dispel the “rumor” that the agency is overwhelmed by mandates and is distracted from its mission. Further to this point, with regard to Internet “rumors” like the foregoing, she recommends that you only believe websites that end in “dot gov”.

Let me repeat that last one: Tenenbaum says you should ONLY believe websites that end in “dot gov”. That means you shouldn’t believe me, just her. Don’t be cynical, guys. Speaking for myself, when a high public official tells me not to believe the media chatter, just to believe them, I always take the heartfelt advice. After all, they only mean to protect me from scurrilous gossip that I am too dumb to figure out for myself. For instance, I still believe everything John Edwards says . . . .

• Regarding recalls involving a death, Tenenbaum warned companies NOT to blame parents in the press even if they are involved in litigation with the family. If they do, Tenenbaum promised (in strong terms) to “call [them] out”. I was floored by this. Is she our mother now? Our mother government, perhaps.
• She urged us to “stop fighting old battles” and get prepared. She was referring to the new era of the Public Database. Hmmm. We are to stop fighting old battles. Okay, everyone, put down your arms!
• She reiterated that the CPSIA was the “most substantial and positive” development in the CPSC’s (recent) history. She noted her love of the tracking labels provision and the removal of lead from zippers. Apparently my many comments and objections to tracking labels were ALL wrong. Darn! I must learn to love tracking labels. Repeat five hundred times, I must learn to love . . . .
• On the subject of voluntary standards, she emphasized that if industry doesn’t move fast to do it the CPSC’s way, the agency will just put out mandatory standards more to its liking. She specifically cited the JPMA and ASTM on the crib standards. She sounds really open-minded on that one. Tenenbaum also recommends that industries proactively make their standards more stringent so the agency can make them MANDATORY. Or . . . the agency will just do it itself. Nice! I feel trust building, building, building.
• She noted that the law applies to big and small companies ALIKE “for good reason”. Hey, crafters, get the message – there will no free pass for you. Of course, this actually makes sense because product injuries should not be okay simply because the manufacturer is small. The way to fix things for small companies is to rework the definition of hazard to be limited to ACTUAL hazards only, which will focus safety efforts in a logical fashion, thereby helping out the small guys. The crafters are a victim not of fair rules that are blind to small business interests – but instead of a terrible law that is so fatally flawed that no business can deal with it.

Here’s the best part:

1. Chairman Tenenbaum said that she won’t tolerate resistance to recalls that the agency wants to make. If you do dare resist, the agency will use its many tools to force the “right” outcome. Chairman of the CPSC or Chairman of the Politburo? Individual rights and due process are apparently a secondary consideration now, to judge from Tenenbaum’s fiery speech. There’s a big incentive to invest, right?
2. Tenenbaum cited Toyota as an example of how “this government” will NOT tolerate slow recalls. Oh boy. Think of the Toyota food fight when you imagine the future of CPSIA enforcement. Recall first, ask questions later and let the media sort out the details. And be sure to bring the mighty down low. That sounds so fair!

There are many industries that are going to be victimized by this new enforcement regime. The list will be LONG.

Lots of tough talk, saber rattling and scare tactics. Of particular concern is the implicit erosion in corporate legal rights and the continuing demonization of businesses and business people. The Obamist populist rhetoric was quite recognizable, and one must wonder who Tenenbaum really intended to reach with the speech. Whoever they are, I hope they were happy. As for me, I got the willies and thought that whatever progress I sensed earlier today was an illusion.

Will the Dems ever learn?

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CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

CPSIA – ICPHSO Update (Remarks of Cheri Falvey, General Counsel)

The annual ICPHSO conference in Washington, D.C. takes place this week, and today is “CPSC Day”. The first speaker was Cheri Falvey, the General Counsel of the CPSC.

She recommends that we “get over” the testing requirements and start to focus on the public database. Hmmm.

Other salient points:

• Stay on testing and certification doesn’t mean you can stop testing. This is a simple point – you need to comply with the standards, and if you don’t test, you won’t know. No shock here, and presumably, not an issue for responsible companies.
• No certification will be required on tracking labels. This is “definitive”.
• Component testing WILL be allowed but final rule is not available. Interim guidance permits it.
• Lead exclusions relieve you from testing. Good news for all you ruthenium users!
• Phthalate testing is ONLY required for “plasticized component parts” and paints. This is news to me – do any of you know where this is written? In any event, this is literally what Falvey said, so tell your testing labs. Please note that this means you DON’T have to test the entire product.
• The CPSC staff is still working on inaccessible components for phthalate tests. That said, you STILL need to test inaccessible parts for phthalates until they figure out how to give you a pass.
• The CPSC has “gotten incredibly positive feedback” on the new public database. This means your silence is being taken as your tacit approval. Happy?
• 48 Federal Register notices have been published by the CPSC since the awful CPSIA was passed. Bureaucrats everywhere take note: that’s some serious paper pushed.
• Mandatory recalls require disclosure of factory identity. Whether this applies to voluntary recalls has not been determined.
• Several rules to come out in the next four weeks: Civil penalties, meaning of “Children’s Products” under CPSIA and the meaning of “Toy” and “Child Care Articles” under the CPSIA. The big issue for “Children’s Product” is how to deal with the “intent” aspect of the rule, and she is focusing on the “primary” intention of the “manufacturer”. The definition of “Toy” may diverge from the ASTM F963 definition. She seems to be hinting that the definition of “Toy” may be BROADENED (”things made for children”).
• They will also bring out rules on “public accommodation” under the Virginia Graeme Baker Pool and Spa Safety Acts, as well as process and procedures for the awful Public Database.
• The Public Database will “increase the pressure” on the agency to “run down everything”. So the Public Database is projected to be used to create a more rigid and unforgiving system, a tacit strict liability safety regime. Happy? Think of the first Tuesday in November.
• CPSC is discussing cadmium with State AGs and is studying the current voluntary standard for cadmium or other heavy metals in the surface coatings of toys. They are looking at whether to drive the standard into the substrate. Book it, Danno!
• Chemical regulation is coming. BPA is an example of the beginnings of this effort. They are looking at whether the rules on cadmium and other metals as a maximum soluble migrated element test (EN71) total content test (a la lead-in-substrate). The agency wants feedback on this.
• Dialogue with State AGs are ongoing and joint efforts are being considered. Not sure if this is good or bad, but it has the potential to reduce the risk of wild cards. That said, the State AGs are often wacky on safety and so there is a lowest common denominator risk here.

I have omitted Falvey’s comments on cribs, drywall and other issues tangential to the issues discussed in this space over the last year.

Falvey didn’t mention anything about the impact of these many new rules on the marketplace. That seems to not be her concern. I certainly hope this doesn’t mean she is oblivious to the issue. I know our CFO and sales reps aren’t. She did articulate a system to put an end to small businesses however, when she urged us to think about tracking labels on everything, integrating certifications, testing, labels. No mention of what this would achieve or why it would be worth the expense (the top priority for devotion of our limited capital) or how small businesses could start up in this environment. Love them Democrats! Think of this as their latest jobs program.

One thing she was seemingly obsessed with is Twitter. She brought up the possibility that we were tweeting perhaps ten times. Does this mean she knows we’re going to tell you what she said, or that she resents it? Not clear. It may have been funny the first time she did it (may . . . have . . . been) but it wasn’t funny as she repeated herself. Intimidating free speech is unbecoming for a General Counsel.

The negatives in her presentation seems to confirm the increasingly political nature of the CPSC where safety is a secondary concern to political winds. Is phthalates such a danger that it needs to be driven out of all children’s products? The provision made its way into the law because of the work of Diane Feinstein, not a well-known scientist. Now this Californiazation effort has taken on a life of its own. Get used to creep in these rules. That’s the conclusion I reach from listening to Falvey.

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CPSIA – ICPHSO Update (Remarks of Cheri Falvey, General Counsel)

CPSIA – Commission Report to Congress on CPSIA Changes

The CPSC Commission issued its January 15 Congressional report on recommended changes to the CPSIA last Friday. As promised by Inez Tenenbaum, the Commissioners were afforded the opportunity to present individual statements to accompany the Commission report. Four of the Commissioners (Tenenbaum, Adler, Nord and Northup) chose to present their own statements. Adler also promised a supplemental statement on the subject of lead, which has not been released yet to my knowledge.

The Report and the accompanying statements make interesting reading. I do not propose to summarize the documents here, but have set out a few thoughts:

a. The Commission’s Consensus is Important. The Commissioners made a big effort to speak with one voice in the report. While they certainly did not agree on everything, their effort to achieve bipartisanship agreement in the report sends a good message. The Commission needs to work harder to find this middle ground more consistently and less fractiously. There is NO JUSTIFICATION for turning safety into a game of political football. If the Commission can work better together, confidence in their administration will grow and extremes will be avoided.

The prohibition against full Commission meetings in private (the Sunshine Act) is a hidden factor in the report. Since the Commission ill-advisedly voted down a public discussion of the report, the Commissioners were prevented from meeting in groups of three, four or five. When you read this report, imagine how it might have read if the five Commissioners were allowed to sit in a room and duke it out. It might have been a better document, more complete and more prescriptive.

b. Where’s the Functional Purpose Exception??? The report is as interesting for what it DOESN’T say as for what it does say. Most importantly, the functional purpose exemption is GONE. Rumorville has it that the functional purpose exception became more and more ornate and complex as the Commissioners struggled to write a recommendation until even its most ardent supporters had to concede that it wasn’t going to work. This was set up to be Waxman’s excuse to do nothing or nearly nothing. It’s not there anymore.

Too bad for Henry, huh?

c. The Commissioners’ Statements Reveal that Common Sense is Divided on Party Lines. The Commissioners’ statements reveal a lack of communication within the Commission. I know they were talking but it appears that some messages weren’t being heard. The statements of the two Democrats (Moore apparently did not prepare a statement) were straight out of Central Casting. Disappointingly, Ms. Tenenbaum chose to repeat a fairy tale about the law’s origins:

“In response to the flood of dangerous imported products, which were involved in tragic fatalities, poisonings and injuries involving children, Congress closely examined the needs of the CPSC and the statutory changes necessary to enhance the regulatory safety net maintained by the agency. Congress spent considerable time reviewing these needs and continually consulted with the agency’s leaders, staff, consumer groups, and the regulated community in order to carefully craft the proper legislation to achieve this end. Seeing a clear need to reauthorize and reinvigorate CPSC with new energy and purpose, Congress passed a sweeping law.” [Emphasis added]

The re-characterization of what was essentially an anger-fueled legislative mania into some sort of group hug is apparently the Democrats’ effort to justify a passive or inert approach to fixing the law. In addition, both Tenenbaum and Adler repeated the misleading togline about the dangers of lead, although I don’t think that’s news anymore. It’s also not really relevant to discussing the issues under the law – and their persistent refusal to acknowledge this is disappointing.

The Republicans (Nord and Northup) delivered rational and balanced statements that calmly and appropriately diagnosed the issues with the law. They are cognizant of the excesses of the law, the dramatic impact on both the regulated community and the hobbled agency itself. The Reps make no effort to prop up the CPSIA – you know, the law passed by REPUBLICANS AND DEMOCRATS ALIKE. There’s no pride of authorship by the Reps – to their credit, these Commissioners seem to be trying to restore a rational system of law and regulation designed to provide appropriate levels of safety at an affordable cost.

I am tired of the Dems on the Commission simply being good Dem soldiers rather than committed stewards of safety. The ANGER expressed in Massachusetts today is a strong message to the Dems – America is sick and tired of government aggressively inserting itself into every aspect of our lives, including by way of the CPSIA and its precautionary principle. See tonight’s Wall Street Journal for more details. It will be interesting to see if Massachusetts impacts the CPSIA amendment process.

d. Does it Matter What’s Safe Anymore? I am struck again by the absurdity of the debate over lead. As I see it, the debate is over which incidents of lead that are illegal should be permitted. This is different from defining what constitutes safe lead. This used to be a simple decision. Now the premise is that there is NO safe level of lead. Is that really TRUE?

Think of ALL cases where lead is found in children’s products. Now separate them into two piles, one that is labeled “safe” and one that is labeled “not safe”. How do these piles compare to the piles made by the CPSIA, FHSA and CPSA? Well, that question never comes up in the debate. The big question is about compliance with law, not safety.

This is not a rational system for administering risk. First of all, if lead were so deadly that it needed to be eliminated in all cases in all children’s products, then presumably we would be even MORE motivated to remove it from our food, water and air (not to mention dirt). After all, we consume food etc. and the lead in the food gets into our bloodstreams. But this isn’t an issue today because the CPSIA didn’t make it illegal – and apparently the CPSC does not feel lead is dangerous in food, water or air (or else it would have acted on the threat under the FHSA). It gets worse – consider that lead paint is illegal on children’s products but not on cars. If lead is so dangerous and mere contact with lead-in-substrate is so dangerous that it is utterly intolerable in a modern, sophisticated society likes ours, then why does the CPSC permit kids to touch or even ride in cars? After all, the zipper pull on a kid’s golf bag is illegal if it has a dot of lead paint on it. But a whole car dripping with lead paint, that’s fine.

The answer – it doesn’t matter what’s safe when it comes to lead, it only matters what’s legal. The Dems prefer to portray what’s illegal as unsafe, and imply that what’s legal is safe. [Call this the All-Knowing Congress argument.] It’s hard to take this seriously. It’s time for them to drop the precautionary principle pretense and start being accountable for the rationality of their regulatory positions. If lead is a crisis as they say, then please ban everything with lead in it, including our entire food chain. I am ready to be safe, finally.

e. What Has Been Accomplished in the Last 18 Months??? Does it bother you as much as me that so little has been accomplished by the last 18 months of chaos? The many steps and achievements documented in the report and statements might make a bureaucrat blush with pride but how have injury statistics changed? [Recall statistics are a poor measure of the effectiveness of safety rules.] How much did we pay as a society for these extremely meager achievements? If you add in the cost to our society of a crippled safety agency, the price we paid is staggering. The waste is sickening. It’s not possible for me to read the recounting without a sense of loss.

f. Does Anyone Else Want An Exemption? Umm, Yeah! It’s important to note that the low number of exemption requests does not reflect a lack of interest in exemptions. Exemption requests are very expensive to prepare and are complex. In many cases, the exemption request will obviously be rejected or is too broad to state in any compelling way. For instance, educational products span so many categories that it is impossible to state a coherent exemption request. More importantly, the real inhibition to filing is a fear of losing the request. For many companies, it just doesn’t pay to ask for permission – they prefer to beg for forgiveness if a problem ever arises.

Anne Northup correctly notes in her statement that it is bad law to require that regulated companies line up for exemptions. She is not arguing on behalf of the companies – she focuses on the huge burden these requests place on the CPSC and the Commission. She is TOTALLY correct. The idea that we should have a safety system based on exceptions would only appeal to the IRS. Somebody needs to listen to Northup on this point.

g. The Report Whitewashes Ineffective Help for Resale Shops. It is a sad joke to assert that coaching resale shops with the CPSC’s guidance document and a few workshops is somehow a solution to the massive problem caused by the CPSIA. For one thing, it is quite clear that this message has not reached its audience. The CPSC’s approach is inherently inefficient and unlikely to bring relief to many affected stores. A better law is the necessary solution. Second, it is apparent that the CPSC’s efforts did not relieve anxiety – the stores are still dropping children’s items. This lack of accountability begins to look cynical when you consider that only last week, Scott Wolfson was warning people not to sell cheap jewelry on auction sites or in resale shops. Hmmm, that sounds very reassuring, doesn’t it? Problem solved!

If the Commission truly cares about resale shops, then a more effective approach (including a communication strategy) needs to be implemented.

With the issuance of the report and statements, the shuttlecock has been batted back to Congress. The next step is to work on a long-needed amendment of this awful law. Stay tuned.

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CPSIA – Commission Report to Congress on CPSIA Changes

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 – Let the SUNSHINE In!

Play this video LOUD – maybe the CPSC Commission will hear it!

[Thank you, Jennifer.]

Read more here:
CPSIA – Let the SUNSHINE In!

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!

CPSIA – It’s 2010, Our Fourth Year of Travails

I can’t believe it’s 2010. We are now entering the fourth year of the CPSIA mess. The children’s product safety fiasco began in 2007 with large scale lead-in-paint recalls by a limited number of companies. The perceived betrayal of trust was enough to set off an unstoppable legislative tsunami, giving birth to the noxious CPSIA. Today, years later, we find ourselves beleaguered by

1. An inflexible law which is especially penal to small business,
2. A deaf Congress, resolute in its refusal to hold a real, open hearing or to foster debate,
3. A paralyzed CPSC so hobbled by the problems and tasks of the new law that it cannot even meet deadlines with 15 months lead time, and
4. A demoralized manufacturer community, numbed and confused by the process.

On the bright side, Henry Waxman floated a CPSIA amendment last month, apparently publicly conceding that the law needs to be changed and that the CPSC cannot fix the problems by themselves. In addition, the CPSC will be filing its own requests and recommendations on January 15 to satisfy a requirement in its appropriations grant.

Our struggle to foster change is producing results but we are not done. This terrible, distracting journey is not at an end, and we must steel ourselves for more fighting if we want to be governed again with common sense and rationality. So with a hearty Happy New Year, I wish you strength of character and a head of steam for the fight that lays ahead.

I will close this post with a poem by Paul Eldridge published in 1945 entitled “I Bring a Sword”:

To the beasts preying upon my people
To the hyenas mocking their grief
To the hounds barring their gates
To the ostriches burying their heads
To the crocodiles shedding tears
To the snakes hissing malignities
To the monkeys chattering diplomacies
To the asses braying profundities
To the cocks crowing prophecies
To the owls hooting defeat -
I BRING A SWORD!

Let that be our motto for 2010!

Read more here:
CPSIA – It’s 2010, Our Fourth Year of Travails

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