CPSIA – How We Were Forced to Deal with A Misleading Database Entry

As you may recall from yesterday, we were confronted with a false, misleading and inaccurate complaint submitted to the CPSIA database in its “soft launch”. We submitted definitive information to the CPSC attesting to the error (or whatever) by the filer and were REJECTED. We were told by a senior staff person at the agency (who should know better) that the complaint needed to be posted based on the facts (the filer THOUGHT she spotted a safety issue). Our evidence that the anonymous filer’s musings were flat-out WRONG were not persuasive because this is a “consumer database” and as such, our evidence did not reflect on how the anonymous filer felt. As far as I can tell, that’s all that matters, unless they misidentify our product. That seems to be the only “out” (although I can’t find that sentence in the law).

Get it? I wish I did.

In some respects, this controversy didn’t add up to much because the complaint won’t go into the database. No filings made during the “soft launch” will go into the database. It’s all practice (until tomorrow morning). However, the CPSC made a policy decision in our case. Don’t say you weren’t warned. NEXT TIME THIS COMPLAINT WILL GO INTO THE DATABASE.

Because everyone’s “practicing” now, we decided to practice by filing a “comment” to this complaint even though it won’t be published either. This will no doubt become a standard approach for most people. There’s little point and maybe even some downside to pushing back on a complaint. [What if the CPSC takes a look and makes a call that THERE IS A RISK OF HARM? It all seems so innocuous until they lower that boom on you . . . .] The soundest practice is probably to not protest these filings at all (feel the shaft yet?) and simply publish your own comments to be juxtaposed with the complaint.

To craft this “comment”, we consulted our lawyer. Cha-ching! Don’t worry, we’re used to legal fees at this point. I would note that this took two person’s time at our office and we had to drop everything to process this baloney complaint as if it were the most pressing matter in our little universe. Consider the cumulative waste of resources and the cost of distraction and disruption across the entire economy all owing to this database. Sounds grrrrrreat!

Our comment is reproduced here for your interest:

“The Smart Snacks Sweet Heart Sayings product has been tested for compliance with ASTM F963, the federally mandated safety standard for small parts and has passed all applicable tests with an independent test lab. The company believes this product incident report is materially inaccurate because the product does not present a small parts hazard and the complainant has provided no evidence to the contrary. As such this allegation is completely unsubstantiated.”

I wonder if Congress and the CPSC can come up with even more effective ways to piss me off. Chances are they are working on it right now! I can’t wait to raise more money for Republicans in the next election cycle . . . .

Read more here:
CPSIA – How We Were Forced to Deal with A Misleading Database Entry

CPSIA – My Answer to Slate.com on the CPSIA Database

Dear Mr. Noah,

I read with interest your March 8th article on the CPSC database entitled “Who’s Afraid of the CPSC?” and was disappointed at the inaccuracies in the piece and your blanket dismissal of the business community’s legitimate concerns about the database. The database has devolved into a divisive partisan issue simply because of the utter refusal of consumer groups and their Congressional allies to acknowledge the flaws in the database as well as the law that established it – the Consumer Product Safety Improvement Act (CPSIA).

I’ll try to address the inaccuracies one-by-one:

Database cost – $3 million or $29 million? The cost figure of $3 million sparked a public dispute between the CPSC Chairman Inez Tenenbaum and her fellow Commissioner Anne Northup at a House hearing last month. In response to Ms. Tenenbaum’s testimony on the cost of the database, Ms. Northup testified that the figure of $3 million had never been shared with the CPSC Commission and that the only database cost figure she was familiar with was $29 million. Interestingly, in April 2010, the Associated Press reported, based on information provided by the CPSC, that the cost of the http://www.saferproducts.gov/ website would be about $20 million, and the CPSC apparently saw no reason to update the media with the good news that the cost had shriveled to $3 million until the February 2011 hearing. . . . Hmmm.

The supposedly noncontroversial CPSIA database. Why didn’t anyone kick up a fuss about the database in 2008? A better question is “Why didn’t Congress listen when the business community protested?” Here’s what I said in a letter to each Congressional conferee dated June 25, 2008: “While we support public notice of recalls, we oppose a national database of reports of injury, illness, death or risk of injury. This forum will not be subject to appropriate findings of fact and thus will be a forum subject to considerable abuse. In a society where tort lawsuits are an ever-present risk for all businesses, a risk that can wipe out a lifetime’s work in a heartbeat, the very real potential for abuse by competitors or mischief-makers far outweighs the public’s ‘right to know’. Once the CPSC has adjudicated a case appropriately, made a reasonable finding of fact and determined the right course of corrective action, public notice would be appropriate.”

I continued to try to make my point to CPSIA Congressional conferees in another letter dated July 21, 2008, just ahead of final consideration of the CPSIA: “CPSC Searchable Database: The well-intentioned idea for complete safety transparency is an open invitation to mischief makers. This is a real threat to our business, as we know from hard experience. The better way is to let the CPSC filter this data first. Please remember, even YouTube will take down videos on request. The proposed law won’t give defenseless toy companies the same recourse as YouTube. Is that an appropriate way to regulate an entire industry?”

It wasn’t only me. Many others in the business community opposed the creation of a database that would contain inaccurate or misleading accusations and complaints. That’s the story of the CPSIA in a nutshell – no one was listening when the law was originally drafted, and now three years later, we are fighting City Hall to restore common sense to federal safety law. Please consider the assertion that consumers really need this database, that it is essential to their children’s safety. In fact, there are many places on the Internet where consumers can and do post their experiences without controversy. Why would a federal database be a greater cause for concern? Well, for one thing, this one is called “SaferProducts.gov” and is sponsored by the federal government. Notwithstanding the lawyer language disclaimers all over the website, it is crystal clear that the public will place a lot of credence in these postings. After all, why would our federal government allow misleading or inaccurate information to be posted on a website called SaferProducts.gov? Ms. Tenenbaum is famous for her defense of “dot gov” websites: “I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.” [Keynote speech at ICPHSO, February 17, 2010] She may not be the only one who feels this way.

The NHTSA database exists; ergo a CPSIA database is a good idea? The NHTSA database can be distinguished in several important ways: (a) auto accidents are a leading cause of death in this country (consumer products are not), (b) every use of automobiles is known to be hazardous and the risk to human life from reckless use of cars is obviously magnified (not true for consumer products), (c) the auto industry is one of the largest components of our entire economy – we all use cars and many of us owe our livelihoods to automobiles in one way or the other (the average sale of consumer products is far less than a car), and (d) at all levels, the auto industry is highly consolidated among a relatively small number of massive companies that are well-prepared for litigation and regulatory issues (consumer products is not a consolidated market and there are many small companies involved in the trade). I think GM, Ford, Toyota and other multi-billion dollar automakers can handle the burden and risk of a database of consumer deaths and serious injuries from use of their products. Our family business, Learning Resources, on the other hand, ain’t no GM or Toyota. The NHTSA database is NOT an appropriate precedent for consumer products for all of the foregoing reasons.

“One of the ironies in Pompeo and others screaming bloody murder that the database will kill jobs is that most of the appliances likely to get dinged in the database won’t even be American products.” This remark completely misses the point, unfortunately. It is American companies that are going to be hurt by the misinformation in the database, whether those companies are manufacturers, importers, private labelers or retailers. Even worse, thousands of American small businesses are going to be put at risk with no practical means to defend themselves. Is this the “American Way” at work? Who will pay when jobs are lost from companies shifting away from this market or dropping products to limit exposure to liability? This is just going to be another self-inflicted economic injury from misguided and overzealous regulation.

Whether the product is made in China, the U.S. or India, it should not matter from a safety perspective. Companies must ensure that they market safe and appropriate products no matter where the products are made. The reality is that every product can break, and accidents and other bad things happen to good people. The database will be unforgiving and if filled with post-it-and-forget-it garbage, will harm innocent victims – American companies that employ your neighbors and make products for your schools. Unqualified and unverified complaints on SaferProducts.gov WILL induce consumers to take our products away from children – pending a recall that may never be forthcoming . . . because nothing’s wrong.

Chairman Tenenbaum has publicly encouraged consumers to rely on the postings in the database – to draw conclusions on the likelihood of future injury. This is quite alarming, given that Ms. Tenenbaum also testified in a Congressional hearing in February that the agency will likely post unverified or inaccurate information to the database. She admits that this information will be faulty. As she said in testimony, “that’s what the rub is”.

Claims of inaccuracies are low in the soft launch. Given the short life of the database in its test phase and the small population of registered users, reports of few data problems must be greeted with skepticism. Less than 1000 companies have registered with the CPSC for the database, an absurdly small percentage of the number of companies whose products will be in the database. Taking into account that many consumer product companies (such as Disney) will need to register numerous brands, product lines and corporate divisions to ensure that the right data flows to the right paper pusher, the current registrations are even paltrier. If companies are not registered, it is unlikely they are even aware of the soft launch, let alone that there may be inaccurate claims against their products being sponsored by the federal government.

Sadly, we are likely to confirm that the CPSC’s faulty processes are damaging companies only AFTER the damage is done. Let’s not forget that the agency is all set to launch a big “public awareness” campaign for the new database – in other words, the federal government will soon be beating the bushes for consumer complaint submissions. As usual, consumer advocates hype uncertain and unquantifiable losses (someone somewhere might not know about something that COULD have been in the database and later be injured) to distract Congress and the media from the certain losses that will befall companies with damaged reputations. Good for plaintiff lawyers but maybe no one else.

Our small company in Illinois has already experienced a materially inaccurate submission – in the very first “complaint” we faced – and were unable to block it from the database. The anonymous posting concerned a consumer’s “feelings” about one of our products based on a photograph she found on the Internet. Unfortunately, she was clearly wrong and we could prove it. The CPSC wasn’t impressed by our valid CPSIA test reports or photographic evidence of the consumer’s error. I can safely assure you that misleading and inaccurate claims will not only be submitted to the database and but will be posted by the CPSC knowing full well that the claims are untrue. I wrote about my experiences in my blog.

I hope you will reconsider your views on the CPSIA database and weigh more carefully the legitimate concerns of businesses serving the children’s marketplace. We are in this business for a reason – we are devoted to making children’s lives BETTER. The new database will not further our mission, nor will a database filled with garbage benefit consumers. We can do better, and we MUST do better.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
Vernon Hills, IL
My blog: http://www.learningresourcesinc.blogspot.com/

Read more here:
CPSIA – My Answer to Slate.com on the CPSIA Database

CPSIA – "Must Read" in PSL

In the March 9th edition of the Product Safety Letter, Eric Stone published an analysis entitled “Is There a Need to “Recall to Repair” the Relationship Between the CPSC Compliance Staff and Business Community?“

My response: Amen, brother!

For those of you who don’t know Eric, he is the former Director of the Legal Division of the CPSC and also former Acting Director of the Recalls and Compliance Division of the Office of Compliance at the CPSC. He is currently a partner at K&L Gates LLP. To say the least, he is an authoritative figure in all matters CPSC.

Please read Eric’s Op-Ed.

Read more here:
CPSIA – "Must Read" in PSL

CPSIA – NAM Letter Pounds the CPSIA Database

March 8, 2011

Mr. Todd A. Stevenson
Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East West Highway
Bethesda, MD 20814

Dear Mr. Stevenson:

The National Association of Manufacturers respectfully requests the Consumer Product Safety Commission (“CPSC” or “Commission”) to 1) reconsider aspects of its final rule on the Publicly Accessible Database (“Database’),1 and 2) continue for at least three months the “Soft Launch” phase of the Database to allow the Commission and affected business users to address operational and administrative flaws identified in the “Soft Launch” to date.

On January 21, 2011 the Commission announced a “Soft Launch” to test procedures and processes to implement the database requirements, as interpreted by the Commission in its final rule. As the official Database launch date approached, companies have registered or attempted to register to participate in the Database. A total of 723 registrant companies were reported in testimony to the House Subcommittee on Commerce, Manufacturing and Trade on February 17, which is only a fraction of companies manufacturing or importing consumer products in the United States. In addition, due to reported technical problems only a few preliminary “reports of harm” (as defined in the CPSC’s Final Rule on the Database) have now been able to be subject to completed processing. NAM has similarly sought information from manufacturers, importers and private labelers on experiences and problems encountered during such soft launch.

Based upon surveys of manufacturer experience, the following have been discovered to be problems which must be addressed by the Commission prior to final launch of the database:

1. Manufacturers with different divisions and brands among different product lines have indicated an inability on the part of CPSC staff to timely register multiple parties within such corporations. It is important to both the CPSC and manufacturers that the system allow for the assignment of adequate identifiers to permit review and comment on the material inaccuracy of filed complaint data within the database in a timely fashion as required by the final rule, minimizing duplicative filings for multiple corporate entities within a broader organization and allowing for streamlined communications between businesses and the CPSC. The difficulty in registering by brand/product line/division and the slow or incomplete response by the CPSC to registration raises troubling questions about the promised flow of information between the CPSC and registered companies.

2. A number of manufacturers, importers and private labelers have reported that reports not directly involving “Harm” (an express precondition to processing and posting) have contaminated the Database. Some respondents report that as many as 30% of the complaints forwarded were not adequately scrubbed to assure that they involve “harm,” as defined by law, as an express precondition to processing and posting within the database. Other respondents indicate that some claims are simply conjecture based on a review of Internet postings or product listings on a website. Such unresolved errors can undermine the integrity and purpose of the Database.

3. Licensors have indicated that they have received reports that are materially inaccurate since they involve products for which they are not the manufacturer, importer or private labeler, but which have been identified as suitable for posting. This has occurred notwithstanding a response from licensors verifying that they have been falsely identified as the manufacturer, importer or private labeler of the product, when they are not. The challenge to accurately identify the responsible party is apparently not being met by the filers, and these inaccuracies are not currently being rectified by the CPSC staff.2

4. Manufacturers, importers or private labelers have indicated that they have received reports of harm identifying an incident as involving their product that did not in fact involve their product, so were materially inaccurate, and advised CPSC of this fact. They have not received return affirmative confirmation that CPSC staff will not post such false claims in the database. CPSC staffers have indicated they may not possess the resources to adequately scrub the database to avoid posting upon such notification. This is contrary to the express direction of Congress that materially inaccurate information with the potential for irreparable reputational harm be vetted prior to posting. This is essential to fundamental fairness. Although the Commission has sought to transfer the burden of proof to manufacturers, it cannot do so once a claim is made that such data is false or materially inaccurate. The Commission can assure the public during an extended soft launch that no such harm occurs.

5. Registrant businesses also report that the completed complaint forms they received often omitted necessary data such as the model, serial number, date of manufacture or date/tracking code information (required by law to be contained on many products, including specifically children’s products) so as to better identify the products alleged to be involved with the potential for harm. The absence of this critical data makes such reports unverifiable, which can result in unfair damage to the reputation of products, brands and manufacturers.

6. The Commission’s decision in the final rule to define the term “consumer” very broadly appears contrary to the intent of Congress, and will result in the potential for multiple reports of harm involving the identical incident. This will result in public confusion about the potential extent of any possible harm and will result in the inclusion of reports based on second-hand information without the possibility of verification. Experience with paper-based reporting demonstrates that often multiple products are erroneously cited as related to reported injuries without an actual causative connection. This results in misidentification and duplication of reports, which must be avoided in the Database.

While the NAM supports a product incident database serving consumers’ need for accurate product information, we do not believe a poorly-functioning database serves the public interest. Based upon the foregoing, we respectfully request and petition the Commission to reconsider the final rule and extend the “Soft Launch” for a period of three months, so as to enable its staff to implement the statutorily mandated Database in accordance with the conditions imposed under statute and the Commission’s own regulations.

To ensure the accuracy of information submitted to the database, we specifically ask that the Commission reconsider, under its final rule, the expansive definition of “consumer” and “public safety entities” that include attorneys, investigators, or other agents of a consumer and consumer advocates, individuals who work for NGO’s, consumer advocacy organizations and trade associations. Additionally, we ask the Commission to reconsider its provisions for review of claims of materially inaccuracy and its decision not to withhold potentially inaccurate information from publication until it makes a final determination of its accuracy. Last, we ask that the Commission reconsider any provisions or sections of its rule that prevent it from effectively implementing Congressional intent or its stated aims to ensure timely review and processing of database submissions and to ensure the accuracy of its contents.

Sincerely,

Rosario Palmieri
Vice President
Infrastructure, Legal and Regulatory Policy
The National Association of Manufacturers

1 75 Fed. Reg. 76832-76872 (December 9, 2010).

2 According to the CPSC, firms receiving notice of a report of harm that incorrectly identifies them as the responsible manufacturer or private labeler of a product that immediately informs the Commission of such misidentification can reasonably expect the CPSC to stop the 10 day clock for publication of the report in the Database. If the recipient of the report of harm is not the manufacturer or private labeler, the Commission can decide not to post the report either because it is materially inaccurate or because it has determined that the report of harm is missing one of the minimum requirements for publication. CPSC staff has noted that given its experience with the incident reporting system, it recognizes that consumers may misidentify the product manufacturer or private labeler. Such claims of material inaccuracy generally are resolved quickly and easily if the receiving firm provides sufficient information. Staff further notes that Firms have an incentive to immediately report errors to prevent reports of harm from being published in the Database that misidentify them as the manufacturer or private labeler. This underscores the importance of an accurate registration system that allows businesses to be identified and to quickly get reports of harm to relevant business contacts within the company so that a response can be provided. The CPSC has not yet defined what information will be deemed “sufficient” to block publication, leaving manufacturers, importers and private labelers to guess on how to deal with inaccurate identification of their products or brands in database filings.

Read more here:
CPSIA – NAM Letter Pounds the CPSIA Database

CPSIA – Age Limits under the CPSIA

As the House continues to dicker over how to amend the CPSIA (yes, they will give it a go soon, rumor has it), I thought the website Woot.com neatly illustrates the absurdity of the arbitrary and over-protective age grading rules inspired by Congress and the maniacal CPSIA. [Thanks to loyal reader Ben for this story!] In this case, the subject is the magnet rules spawned by the 2007 Magnetix deaths.

Perhaps you remember that last year the CPSC “in cooperation with” a company called Maxfield and Oberton LLC announced a recall of “Buckyballs”, a magnetic ball toy for age grading issues. What age grading issues, in particular? To quote the CPSC: “The high powered magnets sets were labeled “Ages 13+” and do not meet the mandatory toy standard F963-08 (effective August 17, 2009) which requires that such powerful magnets are not sold for children under 14. Magnets found by young children can be swallowed or aspirated. If more than one magnet is swallowed, the magnets can attract each other and cause intestinal perforations or blockages, which can be fatal.” [Emphasis added]

Woot.com sells this product and I love their spin on this safety “issue”:

“Buckin’ Magnets, How Do They Work? If you’re 14 or older, Buckyballs promise hours of addictive magnetic fun! If you’re 13 or under, they promise fatal intestinal blockages!”

They continue to explain:

“When exactly does a child become an adult? Different societies have answered this question with different milestones . . . . Now the Consumer Product & Safety Commission has settled it once and for all: a child is an adult when they can be trusted not to accidentally swallow tiny but powerful magnets. This past spring, the CPSC told the Buckyballs people that they had to yank their compulsively play-withable little magnetic to- uh, ‘desk decorations’ to re-label them ‘Keep Away From All Children’. It seems the previous label of ‘Ages 13+’ did not comply with consumer guidelines that ‘such powerful magnets are not sold for children under 14′, because even 13-year-olds were liable to swallow them and suffer perforated or blocked intestines. Yep, that year from your 13th birthday to your 14th makes all the difference. ‘Consumers should take the Buckyballs® high powered magnets away from children under 14 immediately,’ quoth the CPSC. Kids swallow the darnedest things!” [Emphasis added]

Indeed.

Of course, this illustrates the U.S. safety mania at its worst and its most damaging. Is this product actually dangerous? If it is, why does the CPSC allow it to remain on the market? Does labeling actually “solve” the problem? If there really is a difference developmentally between a 13-year-old and a 14-year-old on mouthing toys, I think it is incumbent on the CPSC to tell the public what it is. In the CPSC publication, “Which Toys for Which Child“, the agency acknowledges what is generally accepted as true, namely that children over three don’t put objects in their mouth: “Most children in [the 3, 4, 5 age group] can begin using toys with smaller components. If child is still mouthing objects, select toys with without small parts.” Duh. But 13-year-olds? This is regulatory hypocrisy at its worst.

As long as the mania continues, and as long as Congress continues to try to meddle either legislatively or by applying political pressure to the agency, we will continue to see economic victims and economic losses. Jobs will be lost. And the safety zealots will never be able to prove that anyone is safer.

The only thing that will be beyond dispute is that there are fewer companies making fewer products for sale into a smaller market. In other words, the law and the CPSC will have engineered their very own mini-recession.

Nice!

Read more here:
CPSIA – Age Limits under the CPSIA

CPSIA – Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

I have prepared some clips from the CPSC hearing on 100 ppm Lead Standard on February 16, 2011. I have not prepared comprehensive clips on every presentation. For instance, I omitted the testimony of the testing companies from the second panel (here’s a hint – guess what they are ready and willing to do?). If you want to see video that I have not delivered to you on a silver platter, check out the CPSC video of the Morning Session (consumer groups and testing companies) and Afternoon Session (industry representatives, including my testimony).

There is a lot of interesting testimony not in my clips, in particular in the afternoon. Although I think I am giving you a lot of relevant information in the clips I prepared, you are always welcome to check my work. I was quite impressed by the other presenters in the afternoon session, and the vigorous and interesting discussion that followed, but anticipated that you would not likely spend 4-5 hours watching the entire thing. If that floats your boat, please enjoy the links above.

In this post, I am embedding several clips from the morning session where the consumer groups stated their “case”. I hesitate to characterize the testimony as “tall tales” but watch for yourself and see what you think. I have come to believe that the consumer groups will say ANYTHING to prop up their beloved CPSIA. [Consider the laughable "consumer poll" prepared by the Consumers Union promoted by Henry Waxman on the eve of the House Hearings on February 17, 2011. CU shamed themselves with this pathetic effort to "win" the debate with garbage polling data.] This may include the remarkable hyperbole in the clips below. We can speculate among ourselves whether Don Mays really shakes with fear at the thought of his daughter playing a brass instrument (he says he would be “very concerned”).

Likewise, does Dr. Dana Best believe the nonsense statistics she flung around last week, like the one about ingesting an object with 300 ppm lead costing a child four IQ points? Please, dear G-d, that statistic is absurd on its face. The assertion that children are losing four IQ points from swallowing objects with trace levels of lead is irresponsible and misleading at a minimum, and something much worse if done with understanding or intent. The spectacle of Ms. Best’s testimony included calculations of the “cost” of 1 million injured children DESPITE the inability of any consumer group to produce the case history of a single child injured from lead-in-substrate in children’s product EVER. [I replied to Dana Best in my testimony.]

We must hold Dana Best responsible for the words that came from her mouth. Interestingly, Dr. Best was the only nominal author of the seminal testimony on lead in the CPSIA debacle. According to her colleague Cindy Pelligrini, Dr. Best didn’t write her 2007 Congressional testimony (Pelligrini told me in a phone interview in 2008 that she wrote it for Dr. Best to deliver). Did Dr. Best write last week’s testimony or was it another Cindy Pelligrini job? One can’t help but wonder, given the shocking assertions based on misleading and garbled data. The AAP should be ashamed.

Dr. Dana Best (AAP) on losing IQ points and “millions” of victims:

Dr. Dana Best worries about children licking their bicycles . . .

My 17 year old daughter came along on this adventure and at breakfast the next morning, asked me why a child would like their sibling’s bike rather than their parent’s? After all, the adult bike is not regulated. I thought that was a good point, and added that if we posit that the child was going to lick something inappropriately, why would they lick a bike – why not the family car, which is coated with lead paint? Of course, I got it wrong. I was later corrected by someone who, after listening to this story, reminded me that the two year old wouldn’t lick either bike or even the car – they would play in the pool of oil under the car. You can take it from there . . . .

Don Mays (Consumers Union) and Dana Best (AAP) on the frightening prospect of children playing in brass bands:

Read more here:
CPSIA – Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

CPSIA – House Hearings Clips of Questions for Both Panels

A few select clips for you from last week’s House Subcommittee hearings. I will provide just a bit of commentary to accompany the clips. I will also be posting two other clips in a separate blogpost to follow.

Questions by Rep. John Dingell for Inez Tenenbaum and Anne Northup:

This clip features John Dingell trashing the CPSIA and pushing HARD for change. Listen to him BASH the Senate for mucking up his law!

Clip of Inez Tenenbaum and Anne Northup arguing about what the public injury/incident database cost – $3 million or $29 million.

The bickering over this critical point reflects a real misunderstanding on the CPSC Commission. What explains this? Not sure, really. Jennifer Kerr wrote about this topic today for the AP and noted that she had previously been quoted at $20 million by the CPSC. Oops. . . .

Clip of Inez Tenenbaum admitting that the CPSC will likely post INACCURATE information into the database . . . .

Shocked?! She also admits that only 723 companies have registered in the “soft launch” of the new database. Is that a lot? We registered seven brand names, so count me for 1% myself. I cannot say we control 1% of the economy. Draw your own conclusions . . . .

Clip of Rep. Jan Schakowsky questioning me!

Smackdown! I ran the Finance Committee for Ms. Schakowsky’s opponent in the 2010 midterm elections. She gave the quote above to the Wall Street Journal in a profile of my role in that campaign. Have fun!

Clip of Rep. Olson questioning me about the 15 Month Rule and destructive testing.

Check out how many units the CPSC wants me to destroy in testing EVERY year!

Clip of Rep. Marsha Blackburn questioning Nancy Cowles of Kids in Danger on the sources of lead poisoning in America.

Clip of Rep. Blackburn questioning me about our testing costs.

Clip of Rep. Harper questioning me about testing standards.

Read more here:
CPSIA – House Hearings Clips of Questions for Both Panels

CPSIA – ICPHSO Update on Strategic Plan Panel Discussion

Next up (after audio problems are “fixed”) is the panel discussion on the Strategic Plan. The panel includes:

• Ken Hinson, Executive Director (moderator)
• Matt Howsare, Chief of Staff to Chairman Tenenbaum
• Cheryl Falvey, General Counsel, CPSC
• Jay Howell, Director, Hazard Identification and Reduction, CPSC
• Richard O’Brien, Director, International Programs and Intergovernmental Affairs, CPSC
• DeWayne Ray, Dep. Dir., Hazard Identification and Reductions, CPSC
• Marc Schoem, Dep. Dir., Office of Compliance and Field Operations, CPSC
• Neal Cohen, Small Business Ombudsman, CPSC
• Scott Wolfson, Dir., Information and Public Affairs, CPSC

Update on rulemaking (CF): Final rules issued in 2010 – crib rule, database rule (launching on March 11), “Children’s Product” rule and the civil penalty rule. Also, the mandatory recall rule, infant walkers and bath seat rules.

Draft rules: bike standard, two 15(j) rules on substantial product hazard list (drawstrings and hair dryers), component rule, 15 Month Rule and bassinets.

Rules coming up: cadmium rule (deferred for six months), toddler beds, lead paint and HD-XRF test methods, bed rails, bunk beds, swings, bicycle rules, testing and certification rules, 15(j) rules, 100 ppm lead standard, and notice of proposed rules on play yards and another “safe sleep” initiative category.

[One thinks that after they regulate bunk beds swings, bikes and so on that all the fun will be gone from childhood, bringing to mind an effective cure for cancer (killing the patient). Well, at least kids can still play with rocks . . . . OMG, rocks have lead in them!]

JH: They intend to double the number of rules in place in 1990. [Nice! More rules, more safety!] Rule-making activity is “abating” but have a growing compliance and enforcement workload. The burden is “shifting” to the compliance team. Working with all stakeholders to make sure they are compliant. [Safety is not the word used but instead "compliant". The notion is that compliance is tantamount to safety. Anyone want to discuss this topic?]

Why did the agency take such a “collaborative” approach to the Strategic Plan? MH – The “comprehensiveness” of the collaborative process was incredible. Went through all sorts of “painstaking” efforts to interview so many people in this room. [Perhaps Matt is referring to Raachel Weintraub - who else needed to be consulted, after all?] The Strategic Plan reflects the “consensus” view of the agency’s strategy. The “collaborative” process was designed to guarantee “buy-in”. The Chairman’s focus under the Strategic Plan is the preventative portion. Spoke of Neal Cohen’s area as a focal point. [There's an insight - we small business people are the problem! Thank heavens Neal Cohen can educate up.]

MH also points to “boots on the ground” in China as another feature of the CPSC’s efforts to prevent disaster. He did not say what kind of boots those might be. Jackboots?

Tell us about small business ombudsing, Neal! NC: Start by listening. There’s a lot of confusion, and there are ways to use the work done by the CPSC “to your favor”. [Hmmm, I'd like to know more about that.] NC: I’m not a policy maker at the agency. [RW - that's the rub, ain't it?] NC: I am spreading the word about the problems within the agency. NC has his own website (www.cpsc.gov/sbo). Putting out “plain English” documents to explain the law and the rules. Three tips on compliance: (a) know your product and your supply chain, (b) proactively educate your suppliers, and (c) don’t “assume”. [This is sound advice. It doesn't protect you from anything, however. Were you to follow Neal's advice, it would count for NOTHING if you get recalled. It should but it won't.]

All kidding aside, people have nice things to say about Neal. What he can achieve remains to be seen, however. I have yet to hear about him making problems go away. Most of the problems people are dealing with are nonsense, so if he could move heaven and earth, I think I would start to hear about him going to bat and getting something done for these beleaguered little companies.

International (RO’B): No sign of harmonization efforts in Mr. O’Brien’s presentation. He is leading the effort to get other world regulators to join us in our safety mania.

Scott Wolfson’s turn – “What about consumers and how do they fit into this?” SW: Pool Safely Initiative shows what we can do if we have money to get our messages out. [How have injury statistics changed, Scott? WS: Won't know for years. . . .] Concerned about “sustainability” ($$$). We’re hitting the road to get the message out. Have built a network to get info out. Working on a new logo.

Scott did not update us on Aston Kutcher. Maybe during the Q&A . . . .

RW: This all sounds good as far as it goes. Of course, he does not discuss the impact of OTHER decisions his office makes, like communication of “hazards” like cords on baby monitors or recalls of Shrek glasses. It’s all well and good that the CPSC has a couple billboards up about pool safety, but what about the mania on lead and their communication of those hazards?

Why does the CPSC need to train manufacturers? Why is it the agency’s role? JH: There are various levels of sophistication out in the marketplace. To drive the prevention effort, need to make sure manufacturers understand the rules of the road. [RW - this is one of my original suggestions for the agency in my first speech on the CPSIA. Failures in outreach is one of the main causes of the storm behind the CPSIA.]

JH: We are focusing our efforts around priorities to increase impact and to avoid dilution.

Jay Howell usually sounds pretty sensible. It would be great if the agency sounded more reasonable more of the time. Perhaps Jay can be an agent in that process.

MS: Trying to reduce the time taken to negotiate recalls. [RW: Two-edged sword here, since the concept of due process is flying out the window with the justification that they are "saving lives".] MS: If you’re right, you’re right – just convince us. Also need to get information out to consumers quicker.

RW: This is agency policy talking, probably not Marc Schoem.

SW: We are going out on all platforms, like Twitter, news media, Facebook, blogs – multiple times. MSNBC is doing a monthly “round-up” of recalls.

There was time for only two questions from the audience. Filibuster! I got to ask one of them. Here’s my question:

“I have testified five times at the CPSC, three times at your invitation. I have repeatedly told you that your policies and the CPSIA together are killing small businesses, killing products and killing markets. Last week, the bicycle industry testified that large bike manufacturers have reduced their product lines and small companies have left the market. Given this testimony, what do you think the agency’s responsibility is to small business and how does the Strategic Plan relate to protecting the right of small business to sell children’s products?”

KH: That’s why we have had such a collaborative process in the Strategic Plan. We need to identify hose issues and figure out a solution. RW: But we’re dying now. KH: We do what we do and violative products have to come off the market.

Read more here:
CPSIA – ICPHSO Update on Strategic Plan Panel Discussion

CPSIA – Come On, Sean, Get Real!

Sean Oberle took issue with my analysis of the Summer Infant recall of baby monitors tonight in an essay in the Product Safety Letter. In my recent blogposts, I noted that sale of the Summer Infant baby monitors can’t be resold without their kit of the label, the new instructions and the clips. True fact. As a practical matter, this is essentially a ban of resale of this item because in the REAL WORLD, resale shops do not have the time to lavish on researching this kind of nonsense.

Does ANYONE think a resale shop is going to verify that a baby monitor has the right sticker on it? What planet are you from? They WILL, however, note that this item has been recalled. In the mist of time, the reason WHY it was recalled will be long forgotten. Again, who has the time to figure all this out? Maybe Sean Oberle and Scott Wolfson, but the rest of us won’t do it.

That the items can somehow be resold legally is simply a technicality. Ask any resale shop.

As for my “confusion” between the “reason” for the recall and the “remedy”, I believe I was not confused at all. For one thing, the supposed “remedy” is no remedy at all. A warning label about the cord is superfluous by any definition and absurdly ineffective to prevent further harm. The “reason” for the recall has nothing to do with a hazard related to this item. It may relate to a proactive step recommended by the company’s lawyers, given the likelihood that they have been sued over the two unfortunate accidents. I stand by my position that this hazard falls into the category of parental supervision, not a product “defect”. I may not be alone in this view, to judge by the hundreds of comments on this MSNBC article.

More fantastic is Mr. Oberle’s characterization of the recall and how “voluntary” it was. I have no person knowledge of this situation, so perhaps he is right. Then again . . . rumors of CPSC coercion on this kind of thing are rampant. Threats of penalties, preemptive press releases and possible litigation have been rumored in many cases. Ms. Tenenbaum is not above sabor rattling in speeches, either. Think of last year’s ICPHSO keynote speech, for example. We have received at least one threat from the CPSC which I have thusfar restrained myself from discussing in this space. It’s very real. “Voluntary” is in the eyes of the beholder.

I must also say that I don’t see the benefit that the CPSC brings to this party IF the recall was “voluntary”. If this was REALLY the company’s idea, why does the CPSC have to sign off on it? Why is the CPSC in a better position to figure out how to best resolve this informational issue? After all, Summer Infant had 1.7 million reasons to get this right (plus an unknown number of lawsuits). I don’t buy the idea promoted by Mr. Wolfson in the Chicago Tribune’s hyperbolic article on pool drains: “CPSC spokesman Scott Wolfson declined to comment on AquaStar’s actions. In general, though, he said: ‘A company is not allowed to take unilateral action that is intended to fix a safety problem with their product without reporting and coordinating that action with the CPSC.’” Scott, where does it say that, precisely?

Even more to the point, why is this a “recall” anyhow? The CPSC could have avoided the entire issue by labeling this event an “alert”. There would be no implications for resale shops had they chosen that path. Was it REALLY the company’s idea to RECALL these items? Were they offered an “alert” but refused? Oh, sure.

At some point, I hope the CPSC will take more responsibility for its actions, rather than justify whatever they choose to do. Mr. Wolfson may have an answer for everything but that doesn’t make the agency’s actions right, fair or appropriate. The many comments on the MSNBC article indicate that no one is being fooled. Recall upon recall upon recall is alienating the public, NOT making them feel safer.

Come on, Sean, get real. The CPSC can raise its game, and as a member of the Fourth Estate, you can push them in that direction. I am not the enemy here.

Read more here:
CPSIA – Come On, Sean, Get Real!

CPSIA – New York Times Notices the CPSIA

The New York Times this evening gave some coverage to last week’s hearings in an article entitled “Child-Product Makers Seek to Soften New Rules“. Reflecting the usual bias of the Times against business, the article intones: “Emboldened by a Republican majority in the House of Representatives, manufacturers of toys and other children’s products are making a last-ditch effort to quash new safety regulations that they say are unfair or too onerous . . . . The manufacturers are also trying to scale back new regulations, drafted by the commission, that would require third-party testing to determine the safety and lead content of children’s products. They have found a receptive audience among House Republicans.” [Emphasis added]

So let me ask you, does it appear that I am “emboldened” by the Republican majority in the House? Is that accurate? As I recall, I began working against this excessive and irresponsible legislation in September 2007 and began my “war” with intensity when I was invited to present at the CPSC Lead Panel on November 6, 2008. That was more than two years ago, long before the “emboldening” Republican majority. In fact, I worked hard in the last election to put the Republican majority into office.

Why?

Because no one on the other side of the aisle would listen. What the NYT noticed is that someone is listening . . . finally.

Am I trying to “quash” the legislation? I think that’s an unrealistic goal and have never asked for it. I have stated repeatedly that the legislation has few achievements to boast about and that it is defective as drafted (can’t be fixed). It is also killing jobs, companies, markets and products. It needs to go but, as noted, I think that’s unrealistic. I think fixing it is the best we can hope for.

And I promise that our efforts are not “last ditch”. We’re not going to be done until the CPSIA is fixed.

The article goes on to note that at least one Democrat thinks the CPSIA stinks: “Other lawmakers, including at least one Democrat, Representative John D. Dingell of Michigan, suggested that new regulations requiring third-party testing of all children’s products for safety and lead were too broad and needed to be revised.” John Dingell, who’s he? “At least one Democrat . . . .” Ummm, Mr. Dingell is not only the longest serving member of Congress in the history of the United States but he also happens to be the longstanding Chairman of the House Committee on Energy and Commerce who also sponsored the legislation to create the CPSC in 2972. I think he is something more than just another Democrat – he is a major historical figure and a person of great standing in this matter. When he came out against the CPSIA on Thursday, he broke with Waxman and stood up for the TRUTH.

The Times gives the consumer groups the last word: “Representatives of consumer groups, meanwhile, are fretting. They said they were worried that the tougher standards they fought for, and seemed to have finally won, were now in jeopardy. ‘You have folks who are seeing that there is a chance to undo consumer protections that they never liked in the first place,’ said Ami Gadhia, policy counsel for Consumers Union.”

That’s true – we never liked the law in the first place. It is a massive waste of money, is hurting markets, companies, jobs and kids, has mired the agency and industry in a three year mud fight and isn’t making anyone safer.

It’s time to end the posturing and the story telling. We need to fix this awful law before it kills more companies and more products. How many companies need to die before Congress and the New York Times gets the message?

Read more here:
CPSIA – New York Times Notices the CPSIA

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