CPSIA – That’s all, Folks!

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

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CPSIA – That’s all, Folks!

CPSIA – Hey, Republicans, THANKS SO MUCH for that Pledge for America

Did anyone notice how the CPSIA Amendment (HR 2715) went to the House floor in the middle of the night on a Sunday after closed door horse trading out of the public eye, and was voted on early the next day designated as a “noncontroversial bill” (Monday, August 1).  The amendment didn’t go through a mark-up hearing and was only published a few hours before the vote.  The law includes some surprises, too, as one might expect on a bill emerging from a smoke-filled room.  Naturally, the Senate considered it and put it up for a voice vote in even less time.  How many Members of Congress bothered to read the bill before voting on it?  How many Members of the responsible House and Senate committees read it before voting on it?  Your guess is as good as mine. You may recall that the Republican Party published “A Pledge to America” in 2010 ahead of the Medterm elections, with the nifty subtitle “A new governing agenda built on the Priorities of Our Nation, the Principles We Stand for & America’s Founding Values”.  Impressive. The Pledge includes a section starting on page 33 called “A Plan to Reform Congress and Restore Trust”.  Restore trust – I am all for that!! On page 35 of this document , the Republicans make the following ”promise”: ” Read the Bill    We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives. No more hiding legislative language from the minority party, opponents, and the public. Legislation should be understood by all interested parties before it is voted on. ”   [Emphasis added] Correction:  They’ll do all that stuff unless they don’t.  And in the case of the CPSIA Amendment, well, come on, don’t be such a rule follower . . . .

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CPSIA – Hey, Republicans, THANKS SO MUCH for that Pledge for America

CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

Here is the final form of the CPSIA Amendment  (HR 2715)  that should become law sometime this week. I want to quote from another blog (thank you, Steven Hansen ) on this amendment’s path to the President’s desk: ” This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These ‘legislative’ fixes have been getting passed around in backrooms for months and when they finally did come to a ‘vote’ the ‘fix’ was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that’s too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill. ” Mr. Hansen is completely correct.  We know that even Republican members found out about this amendment when it was docketed for a House floor vote.  Mark-up, schmark-up.  The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote.  These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the “noncontroversial” bill.  After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to “fix” the CPSIA.  There won’t be another “fix” to this law again, perhaps EVER.  You know the bill sucks if Henry Waxman is clucking about it .  In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing “relief” (Eshoo), database (Markey), small batch “relief”). And what did we get for all our good government dollars?  I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point.  I would like, however, to highlight low lights of the bill: Winners :   ATVs, Bicycles, Resale Goods, Books, Libraries Losers :  See above list, and if you’re not on it . . . you. Technical Fixes of Past Congressional Screw-ups :  100 ppm lead standard is prospective now.  And WHY wasn’t Congress able to do this for 300 ppm or 600 ppm?  Good question.  The five CPSC Commissioners called for this particular change back in January 2010.  What’s the hurry now??? Changes to testing requirement to “representative” rather than “random” samples.  And we just hired our third statistician, too! Restricts the phthalates ban to accessible plasticized components.  i guess Congress isn’t worried about kids with serpent tongues any longer. Makes FUTURE crib standards prospective.  And who said the $32 million in recently discarded good fixed-sided crib inventory died in vain?! Shame, Shame, Shame : Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC.  This is the CPSC’s version of the sex offender registry.  Is there ANY basis for singling these people out for special attention?  Why doesn’t Mattel have to register, too?  Oh, come on, you know we must have different rules for Mattel!  They need their own firewalled labs and so on for their efficiency.  [Here's a good example of their efficiency.]  It’s only fair, the real safety worry is the crafters . . . . The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending  little nobodies without doing squat.  How do they do that?  The only “relief” that the CPSC may implement must meet this standard:  “Any such alternative requirements shall provide for reasonable methods to assure compliance  with any applicable consumer product safety rule, ban, standard, or regulation.” [Emphasis added]  This CPSIA term has already been interpreted by this Commission multiple times.  The word “assure” ensures that no relief will ever be given since nothing can “assure” compliance other than prophylaxis.  Notably, the Commission has purportedly looked for this “out” for three years and came up with nada .  And Bob Adler has been “agonizing” over it for that entire time.  [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result? Suckers are welcome to wait longingly for this promised “relief” but they will be disappointed again and again.  Protest is futile. Disgusting, Repellent Hypocrisy : Consider the amazing gimme provided to bicycle manufacturers: ” (B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]. ” They don’t have to test their metal components at all.  AT ALL, EVER.  Bicycle manufacturers are different than you and me. Let me be clear – I think testing metal components on bikes is a stupid and pointless waste of time and money.  The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results.  Whoa!  They proved they had an unsolvable problem and apparently Congress listened.  How heartwarming! I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table.  Congress must have gone deaf by that time.  Oddly, the CPSC staff included this data and my testimony in their 100 ppm report.  So perhaps Congress isn’t just deaf, they may be blind, too.  Or perhaps they just don’t bother with the details. Inquiring minds want to know about this particular term benefiting bicycle manufacturers: 1.   The AAP testified that there is a real risk that kids might lick their bicycles .  Problem?  Apparently not, but the testimony was taken morbidly seriously at the time.  I wonder why Congress wants to protect bike lickers now. 2.   Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels.  This decision was a “major victory” for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the “tipping point” in lead exposure.  [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.]  Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass.   [ Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass.  Where are all the Indian victims from generations of eating off brass?]  The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead.  Is Congress signalling that metal components are uniquely safe in bicycles?  How did Congress figure this out?  Is there something in the Congressional record on this point? The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension.  Bills on suspension cannot be amended.  Hmmm. 3.   I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale.  [Former Commissioner David Pittle told the same tale at a CPSC hearing.]  Bicycles won’t be tested before sale now.  How will consumers be able to sleep peacefully?  How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested?  Won’t they have the same uncertainty again?  I can feel the fabric of our society tearing a little bit . . . . 4.   Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component.  There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous.  Metals are used in components in many children’s products, not just bikes.  It follows that all metal components pose the same issue.  It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in.  So why must we test our grommets and staples when bikes can tool around untested? 5.   Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested?  Is there a known health hazard there that bike companies must protect against?  Will those tests achieve anything for anyone?  And why must every other product category still subject to the CPSIA test every component, whether metal or plastic? 6.   The CPSC has held that it is “technologically feasible” to make every component of every children’s product compliant to the 100 ppm standard.  There were no exceptions to their conclusion.  Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components?  [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.]  Why weren’t bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the “toughest lead standard in the world”?  After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it.  Can’t be too safe and, of course, we all know that safety delayed is safety denied.  Isn’t this action of our all-knowing Congress denying safety? As I have noted, this law picks winners and losers.  Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point.  Congress has decided what’s best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn’t spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.

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CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

CPSIA – The Futility of Protesting the CPSIA

With Congress about to sign-off on a CPSIA Amendment which seals the fate of the regulated community, for better or worse depending on who you are, the question of what remains is quite relevant.  With rights allocated and responsibilities delegated to a Dem-controlled CPSC Commission, what kind of justice can we expect in the future??? As if to answer this question, last week CPSC Chairman Inez Tenenbaum published a troubling Op-Ed dated July 28th (” CPSC Chief to Detractors: ‘Safety Delayed is Safety Denied’ “).  In her article, Ms. Tenenbaum asserted that Democrats on the CPSC Commission are responsible for many “major victories” over the resistance of the minority party Republicans: ” We have made great progress at CPSC, and at times, our achievements have come with support from the two Commissioners in the minority party. Though, consumers should know that vigorous resistance is the rule, rather than the exception, with these two Commissioners. Through a coordinated campaign, these Commissioners have sought to delay and distort our actions in an attempt to circumvent the will of American families and Congress. Their tactics have been unsuccessful, as demonstrated by the strength of the new safety measures we have established. ” Democrats good, Republicans evil. . . .  She continues, openly accusing minority Commissioners of almost venally favoring pocketbook issues over safety: ” We faced another example of this obstructionism in our effort to make sure cribs are safe. From November 2007 to April 2010, there were 36 deaths associated with crib structural defects. To address this critical issue, the Commission voted unanimously last December to establish new crib safety rules. Sadly, two of my colleagues in the minority party then attempted to delay the rules from going into effect last month. They were for it, and then they were against it, all in an effort to put the interests of a few retailers over the interests of hundreds of thousands of parents and very young children. ” Perhaps granting me an honorable mention as an irritant, Ms. T. goes on to lay claim the higher moral ground.  As you know, this is all about the tug of war between good-and-evil . . . . ” It is ironic that the minority party Commissioners and certain cynical special interests continue to gesture wildly, alleging a failure to take the concerns of businesses into account, while many safety-conscious companies have been manufacturing, testing, and selling children’s products for nearly three years that meet and exceed the requirements set by Congress. The minority party’s approach does not solve problems and does not serve the public interest. The Consumer Product Safety Commission under my stewardship will not succumb to efforts to undermine this law. Like justice, safety delayed is safety denied. ” [Emphasis added] [I can't let Ms. T get away with the "safety delayed is safety denied" baloney.  To accept her rationale, one must conclude that safety was at stake in the cited decisions.  Among her claims of "major victories" is the determination that 100 ppm is technologically feasible.  Her own staff indicated that this decision will have "minimal" impact on safety.  And the safety achieved by the decision?  No reply.  She also points to the new phthalates standard.  Her own agency has TWICE considered these same chemicals for safety risks and TWICE given them a clean bill of health.  Isn't it a stretch to call her new standards a "major victory" for consumers or to contend that safety was ever at stake?  Not if data is irrelevant to you.  As is to ensure her own blissful ignorance (and to avoid learning anything inconsistent with her political agenda), Ms. Tenenbaum has never asked for injury statistics to evaluate evidence of the utility of the new rules she KNOWS will choke business.  Why not?  Who wants to spoil a good thing?  Safety delayed is safety denied . . . .  "Safety" perhaps defined in terms of job security.] Commissioners Nord and Northup replied to Tenenbaum’s Op-Ed snarkiness, and you should read their replies. However, I think the real issue is how this Commission will handle its responsibilities once Congress bows out.  Congress is about to let the Commission take it from here.  Now what? The Tenenbaum article raises a question in my mind.  Does Commission voting records give any insight into the Dems’ willingness to listen or their interest in listening to contrary viewpoints?  Is it all so open-and-shut?  Do we even have a fighting chance with these people, given their moral self-justifications?  Commission voting statistics have never been analyzed publicly to my knowledge, so I put them together this afternoon. Please feel free to check my work – here are the Tenenbaum era CPSIA votes . My tabulation excludes procedural votes and votes related to cribs and infant care, the phthalates CHAP and Pool safety. In other words, it is only those votes which relate to my advocacy on the core issues under the CPSIA. Notably, I am unable to access confidential votes – the spreadsheet only applies to votes cast in open sessions of the Commission. There have been 46 votes since her confirmation, and 37 since she began to chair the meetings. Each and every decision of the Commission has been controlled by the Democrats. Each and every vote won by Democrats had all Dem Commissions in tow with two exceptions – the two stays objected to by Adler, an avowed stay-hater.  Every 3-2 vote was three Dems to two Republicans.  No doubt each vote was configured for Ms. Tenenbaum’s consent – she has never voted against a proposed rule or ruling. Think about that – all the Dems voted together on everything, except two dissents by one Commissioner on the same issue, the extension of a stay, and in those cases he wanted to be even less forgiving of reasonable business interests. For perspective on this, consider that this is the Commissioner who claims to “agonize” over every vote but always votes against even the mildest form of relief for business. He is also the one who stated that he wouldn’t allow cost-benefit analysis to be performed ” over my dead body “.  He only veered away from his fellow Dems on two votes on stays.  What does that tell you? After three years of advocacy and the considerable expenditure of cash, time and other resources by so many people affected by this law, it seems apparent from the voting data that nothing we ever said or any data we ever presented were in any way persuasive to the Dems. They were gracious in their expressions of gratitude for our participation in their processes, but given the outcomes, one must conclude that we simply enabled them to give the appearance of justice. After all, we got our day in court, or so they would have you believe. However, if anyone who comes before a particular judge is sentenced to death, one begins to wonder about justice after awhile. The Dems have used slogans to justify their actions: – “There’s no safe level of lead.” – “Safety delayed is safety denied.” – “Over my dead body . . . .” Is there a pattern in these slogans? They are sanctimonious. They wreak of moral superiority, while at the same time pinning their work on other people. Ms. T. tells us that they were just carrying out the will of Congress.  Nevertheless, she would have you believe that their work is necessary and a triumph for you. They are self-righteous. There’s something smug about their contentions. They will block cost-benefit analysis with their dead bodies. They portray themselves as courageous heroes, opposing devious foes. Taking a page out of the estimable Jan Schakowsky’s playbook, Tenenbaum labels those who oppose her as ” certain cynical special interests “. Conspiracy theories bulk up her slender reed of self-justification. The slogans play to emotions and ignore legal precedent and data. Bob Adler’s ” How do you measure the life of a little baby? ” is a great example. Bob Adler is a lawyer and knows full well that the law provides a solid and respected answer to this question. As one practitioner told me, this kind of assessment is done every day in our courts and by other agencies. Adler knows that brains short out when he mentions “little babies” and who can argue that anything is worth more than the life of a “little baby”.  By invoking images of “little babies”, Adler and Co. divert attention from incoherent rationales underlying their decisions. [To save a "little baby", is it okay to eliminate one job? Ten jobs? 100 jobs? 1,000 jobs? 10,000 jobs? 100,000 jobs? 1,000,000 jobs? Where do we draw the line? The implication, if you listen to Mr. Adler (not that he ever listens to me), is that the value of a baby's life is infinite so no economic sacrifice is too great. He won't allow a cost-benefit analysis to be done, despite the fact that it is mandated by an Executive Order and is good law to boot, so the question will never answered.  But isn't it clear - the line must be drawn somewhere. We can't function as a society if it isn't.  Don't expect this kind of thinking as kong as Adler and Tenenbaum hold down the fort at the CPSC, however.] The slogans are cynical, too. Tenenbaum’s repeated request (four times by my count) in the hearing on 100 ppm that businesses are welcome, even encouraged, to file for exemptions from the technological feasibility decision is despicable and cynical. Cynical in a sincere voice and with a smile on your face is cynical all the same. The CPSC staff wrote up a 59-page analysis stating that EVERYTHING is technologically feasible.  She knows this.  Her encouragement can’t and won’t lead to exceptions – The CPSC staff have already “tied her hands”.    Still, she persists.  Consider Ms. Tenenbaum’s advice in her statement on the 100 ppm standard : ” Although the Commission already has voted on this issue today, if a manufacturer were to discover that it is not technologically feasible to manufacture a children’s product or category of children’s products, the agency always will consider a request for a technological feasibility determination through our normal petitioning process. During my tenure, the Commission has docketed and either has resolved or is considering several petitions requesting action on various issues. The criteria for any petition on the technological feasibility of achieving the .01 percent lead limit are laid out clearly by the statute and further explained in the staff briefing package. The process for writing a petition also is clearly set forth in the agency’s regulations. I encourage any business that discovers it manufactures a children’s product or category of children’s products for which it is not technologically feasible to meet the .01 percent limit to come to us with enough specific data to enable our staff to recommend that the Commission make a finding concerning technological feasibility under section 101(d) of the CPSIA. Our door always will be open to considering future requests. As always, for small businesses that may require additional guidance, our small business ombudsman stands ready to work to work with you on any of your concerns. I realize that this process has presented a challenge for manufacturers, and I commend those in industry who have worked so diligently to bring the lead levels in their products below .01 percent. ” [Emphasis added] Makes me want to vomit. This is your government talking.  Or perhaps lying? So as Congress closes the door on helping us, doling out relief to favored groups like ATVs and books, they left the rest of us to fend for ourselves. The issue of how any of this related to safety was never considered in the pending amendments. Congress also chose not to address the abuses of the panel of hanging judges at the helm of the CPSC. The result is painful and a reminder that fighting City Hall is pointless. In this case, the Dems in charge have proven they are beyond reach and will not listen. Further resistance seems futile.

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CPSIA – The Futility of Protesting the CPSIA

CPSIA – CPSC Enforcement Officer Speaks

In a July 29th blogpost , CPSC Commissioner Anne Northup reproduced a letter she received from a CPSC Field Agent.  Like so much data rejected by the Validation Bias Democrats on the Commission, I am sure this letter will be ignored.  Why not decide for yourself if it’s relevant? “I just had an opportunity to read your July 20 statement concerning lead ppm . I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world. Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right . It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy.”  [Emphasis added] I wish I shared the Field Agent’s optimism.  Hey, buddy, those days are looooooong gone.

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CPSIA – CPSC Enforcement Officer Speaks

CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

Senator Pryor today introduced the so-called ” Consumer Product Safety Flexibility Act of 2011 ” to amend the CPSIA.  This four-pager is targeted at three problems: First , it makes the 100 ppm lead-in-substrate standard prospective. Second , it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA.  It also gives a year extension on the standards for all-terrain vehicles. Third , it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard. The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number. This is a useful effort by Senator Pryor.  For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess.  Hats off to Mr. Pryor for at least providing a means to address this issue.  Rumorville has it that the Senator wants to do more than is expressed by this bill.  Other Dem Senators are on the list as purportedly wanting to do more for us.  All I can say is . . . get in touch with your feelings, Senators.  We need help NOW and we would appreciate your help and leadership in particular. As for saving the ATV’rs and bikers, well, they never belonged under this law in the first place.  The devastation wrought by this law should have been addressed long ago.  That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act.  None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates.  The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us.  [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs.  The AAP admits they want youth model ATVs off the road.  This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.] Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is.  The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents.  If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits.  Come on , guys, science kits?!  Do you REALLY want to send America’s science education back to the Stone Ages?  It’s time to loosen the noose on American industry. One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.

Originally posted here:
CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

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

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CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

CPSIA – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

News Flash :  Personal Injury Law Firm Beasley Allen P.A. announced the revelation that the CPSIA Database is a success but is still under attack.  Hmmm. For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a “$150,000,000 verdict in a personal injury case”.  No doubt they are impartial in their views on the database.  Their web address is http://www.southerninjurylawyer.com/ .  To bolster their case in favor of the database, they trot out the informative results of Henry Waxman’s “analysis” of the database released on July 7th .  [Mr. Waxman did not make his data available so his analysis has gone unchallenged.  The only way to review it is to recreate it.  Take it for what it's worth.]  Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument – don’t worry, she plays the violin!), completing the rogues gallery. Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that “[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed.”  Aha. There is an evil side to this controversy, naturally:  “Still, a powerful anti-consumer lobby wants the database shut down , and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations.” [Emphasis added] Oh, yes, the well-known and powerful “ANTI-CONSUMER LOBBY”!  Have you ever met someone who was not a consumer?  Are the people who never consume anything or don’t have relatives or family members?  Or are they people who don’t want consumers to buy their products?  Oh them!  Or perhaps they are people on who oppose personal injury lawyers.  Just a thought. . . . The Southern Injury Lawyers conclude:  “Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses.” So says the lawyers with the $150 million dollar tort lawsuit.  Seems definitive to me. What could the problem possibly be???

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CPSIA – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

What happened on July 20th at the CPSC Commission hearing?  I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online.  Apparently Inez Tenenbaum made some blanket statements rejecting the President’s Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA.  Of course, how would I know what she said?  The video at the Sunshine State of the CPSC is not available to me.  Two days later . . . .  Hmmm.  Do you think they are waiting for me to forget about it??? While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things.  First, BNA in an article entitled “CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity” dated July 20 quoted Ms. T as follows:  “And in a July 20 public meeting on the agency’s priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. ‘ To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed. ‘  She said CPSC has committed to conducting a retrospective review of its regulations, per Obama’s Executive Order, and ‘we will begin our retrospective review and we will solicit comment.’”  [Emphasis added] Fiction, eh?  Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard : “Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors .”  [Emphasis added] Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a “regulation” but is instead a “statutory mandate”.  There is no such thing as a “mandate” in this context from a legal point of view.  See the definition of ” mandate “.  Essentially, what the regulators are referring to as a “mandate” is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.  [It's okay, let it out.  I just doubled over in laughter myself.] What DID Congress tell the CPSC to do about 100 ppm in the CPSIA?  The law instructs the CPSC as follows: Section 101(a)(2)(C):  “100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products .” Section 101(a)(2)(D):  “ALTERNATE REDUCTION OF LIMIT.— If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act.” Section 101(e):  “PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section .” [Emphasis added]  Section 101(e) refers to the process that just concluded as a “rulemaking proceeding”.  I don’t know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me.  This is not a direction to reach a particular conclusion – if it is a “mandate” at all, it is a “mandate” to go through a classic regulatory process.  Read the instructions yourself, it’s right there. President Obama’s Executive Order reads as follows (in relevant part): ” By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows :  Executive Order 13563 of January 18, 2011, ‘Improving Regulation and Regulatory Review,’ directed to executive agencies, was meant to produce a regulatory system that protects ‘public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.’ Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law , independent regulatory agencies should comply with these provisions as well .”  [Emphasis added] Ms. T interpreted the words “to the extent permitted by law” as “to remain true to their statutory mandates”.  Ms. T, a lawyer , is blatantly wrong, laughably so.  Unfortunately, it’s not funny. Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA.  Of course, you know I think that’s a bunch of bunk.  The President’s Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her.  I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.  Does the CPSIA mention “cost-benefit” anywhere?  I am glad you asked . . . .  The CPSIA uses the term “cost-benefit” only once (outside of the Table of Contents): “SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970.  Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.’” If Congress was so concerned that cost-benefit should never apply to these provisions, why didn’t they say it?  They weren’t silent on cost-benefit – Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970.  But as it relates to lead and phthalates, Congress was silent on cost-benefit.  Why might they have been silent?  Perhaps the authors of the law believed it was an illegal provision as applied to these rules.  Perhaps the Dems behind the law felt the CPSIA wouldn’t pass if such an obnoxious term were included in this critical part of the law.  Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn’t write themselves.  As this week’s WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore.  They can run rampant over our laws, our companies, our markets, our jobs, our lives.  They are the law, they are the judges, they are the jury.  They know what’s best for us, and no public hearings are going to change their minds.  Oops, make that no Presidential Executive Order will change their minds . . . .

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CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

CPSIA – Trip Down Memory Lane (WSJ Editorials on CPSIA)

There have been nine editorials by The Wall Street Journal against the CPSIA.  I thought you might enjoy seeing them all in one place.  Below you will find links to all nine editorials, with a short highlight from each one. The more things change, the more they stay the same . . . . First Editorial (January 14, 2009):  Pelosi’s Toy Story “The damage comes from new rules governing lead in children’s products. After last year’s scare over contaminated toys made in China, Congress leapt in to require all products aimed at children under 12 years old to be certified as safe and virtually lead-free by independent testing. The burden may be manageable for big manufacturers and retailers that can absorb the costs of discarded inventory and afford to hire more lawyers. Less likely to survive are hundreds of small businesses and craftspeople getting hit with new costs in a down economy.” Second Editorial (February 6, 2009) Toys for Congress New lead rules hit next Tuesday. Whammo. “CPSC Chairman Nancy Nord has noted that the law has created ‘chaos and confusion,’ and as if to prove her point, yesterday New York federal Judge Paul G. Gardephe ruled that the law’s limits on a plasticizer known as “phthalates” should apply to existing inventory just as lead standards do — overturning a CPSC ruling to the contrary. That makes it even clearer that Congress needs to fix its own mess.  Trouble is, House Speaker Nancy Pelosi is heavily invested in the fiasco. On passing the misguided law in August, she proclaimed that ‘with this legislation . . . we will be removing these products from the shelves.’ Taking store owners and toy entrepreneurs with her.” Third Editorial (March 30, 2009) Pelosi’s Library Quarantine The CPSC is left cleaning up the House Speaker’s messy child-safety law. “Democrats in Congress have leapt to criticize acting CPSC Chairman Nancy Nord, in hopes President Obama will replace her. But the real culprit here isn’t the CPSC, which is overwhelmed with requests from manufacturers trying to make sense of the chaos that Congress created. House Energy and Commerce Chairman Henry Waxman has dismissed efforts to improve the law, claiming the real problem is that “misinformation has spread” about the impact on businesses.” Fourth Editorial (April 3, 2009)   Toys R Congress Ruining the kids motorcycle business   “The multibillion-dollar children’s motorcycle and all-terrain vehicle industry has been clobbered. Kids motorcross racing has boomed in recent years in rural and Western states. And the regulators at the Consumer Product Safety Commission (CPSC) have decided that virtually all of these youth vehicles violate the new standards because of lead in the brakes, tire valves and gears. They’ve ordered motorcycle dealers to stop selling them, putting hundreds of dealers and the entire motorcross industry in a depression. With one stroke of the regulatory pen, an estimated $100 million of inventory can’t be sold, and the industry loss may reach $1 billion.”   Fifth Editorial (August 11, 2009)   Consumer Product Destruction Congress’s lead in toys panic is set to ruin more businesses.   “Jewelry makers now join the legions of other businesses on the hook for millions of dollars in lost sales, inventory or testing costs despite products that pose little to no risk of lead poisoning to children. In the spring, thrift-store operators like Goodwill and the Salvation Army predicted that without regulatory relief they would have to destroy more than $100 million of inventory. Toy stores expected some $600 million in playthings that would have to be trashed and another $2 billion in losses across the industry. Motorcycle and ATV makers predicted total losses and business disruptions around $1 billion. Children’s clothing stores have suffered huge losses, with Gymboree losing 40% of its market value overnight after reporting losses related to the House’s lead-paint panic.”   Sixth Editorial (November 7, 2009)   Congress’s Brass Knuckles Another casualty of the lead toy ‘safety’ law.   “CPSC Commissioner Anne Northrop noted that the decision not to grant a brass exemption shows that ‘the Commission does not believe there is any [flexibility] written into the law.’ Without action from Congress to address the chaos it created, Ms. Northrop said, ‘More small businesses will be forced to shut down.’ CPSC Chairman Inez Tenenbaum has insisted that changing the law would be ‘premature.’ Yet it has already been more than a year of bedlam for manufacturers and retailers negotiating these rules.”   Seventh Editorial (April 6, 2010)   Waxman’s Lead Poison A fix of a bad law that is no fix at all. “Mr. Waxman is insisting that any product applying for an exemption would still be subject to a three-pronged test to determine whether stripping lead from the product is ‘practicable or technologically feasible,’ whether a product might end up in a child’s mouth and whether its exemption would affect public safety. In a response, CPSC Commissioner Nancy Nord explained that since all three tests have to be met for a product to qualify, ‘the exception is as empty as the exception for no absorption of any lead. Such a provision does not really help anyone.’ . . . If Mr. Waxman wants to enhance Congress’s original creation, he should start by letting product safety regulators consider whether products are safe.” Eighth Editorial   (March 11, 2011) Get the Lead Out, Sir Nutty test standards give Obama a real chance to help business. “The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called ’15 Month Rule,’ Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company’s toys and products will cost his company some $15 million per year. . . . At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as ‘necessary to protect kids and families across the country.’ We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.” Ninth Editorial (July 20, 2011) Toying With Deregulation Another agency ignores Mr. Obama’s executive order. “Here’s a question for White House regulatory czar Cass Sunstein: Do Presidential executive orders mean anything? Only last week President Obama asked independent agencies to examine existing rules and get rid of the duds, but nobody is listening. . . . Mr. Obama’s recent executive order is voluntary, but the President told agency heads that getting rid of red tape was an opportunity to ‘forge a 21st-century regulatory system that makes our economy stronger and more competitive.’ Perhaps Mr. Sunstein will tell toy makers it’s the thought that counts.”

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CPSIA – Trip Down Memory Lane (WSJ Editorials on CPSIA)

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