CPSIA – It’s Raining Paper . . . Again

At the April 29th CPSIA hearing, I testified that the CPSIA and associated rulemaking had exploded into more than 2500 pages in new CPSIA laws, rules and documents that pertain to my business. I also noted that 608 pages had been issued in the 30 days preceding the hearing and that the rulemaking process continues unabated. Well, the CPSC just spewed out another ream of paper (396 pages) for you to absorb this week:

1. Publicly Available Consumer Product Safety Information Database, Notice of Proposed Rulemaking, DRAFT Federal Register Notice, May 7, 2010. [150 pages]
2. Testing and Labeling Pertaining to Product Certification, Notice of Proposed Rulemaking, DRAFT Federal Register Notice, May 7, 2010. [164 pages]
3. Conditions and Requirements for Testing Component Parts of Consumer Products, Notice of Proposed Rulemaking, DRAFT Federal Register Notice, May 7, 2010. [82 pages]

At a mere 396 pages, this week’s new rules increases the total paper released in the last 45 days to at least 1,004 pages. In its usual helpful fashion, the agency issued these rules to replace other documents recently released and that you may have already read. Gotta read these pupies from the top, since they aren’t redlined against prior drafts. This doubles the fun of the new rules – you need to master them to run your business PLUS you get to go on an exciting treasure hunt as you try to figure out what has changed! And we get all that fun for free!

Good thing time grows on trees or else I might get frustrated.

Happy reading! Just remember, if you don’t comment on these rules and the CPSC imposes final rules that are unreasonable or crush your business, you will have no one to blame but yourself.

As I said, happy reading!

Read more here:
CPSIA – It’s Raining Paper . . . Again

CPSIA – Broken Record . . . Does Anyone Care Anymore?

Misallocated safety resources – I have made the point again and again, that the misconceived CPSIA diverts limited resources away from real safety issues and lards them on bureaucratic exercises unlikely to produce safety results. [A pile of safety reports up to the sky does not constitute "results", btw.] This misallocation is not restricted to private companies – it also adversely impacts the CPSC. As they say, there are only so many hours in the day, even with an annual budget of $118 million.

The back-up in work at the CPSC is part of the untold story of the CPSIA. Certainly the zealots do not want to expose the damage done by their favorite law to this proud agency. The fantasy goes like this: if the CPSC isn’t acting, there isn’t anything to act on. Ergo if recalls go down, we must be safer – because the all-knowing CPSC is everywhere, instantly processing data, and recalling everything that is “bad”. If you believe that fairy tale, I have a bridge to sell you, or perhaps some lovely swamp land. This fantasy was on display in the recent hearing on the public database in which absurd promises were made about timely agency review of database postings. The agency’s inability to keep up with the data flow, probably from day one, will turn the database into a national commercial slander bulletin board. Among other things, this is because there aren’t and will never be enough hands on deck to manage the work flow with good quality control and concern for truth.

Some recent evidence of misallocated resources was provided by the General Accounting Office in their April 2010 report to Congressional Committees entitled “ALL-TERRAIN VEHICLES: How They Are Used, Crashes, and Sales of Adult-Sized Vehicles for Children’s Use“. Remember, it is almost inevitable that misallocated safety resources will lead to disaster, just as driving while taking your eyes off the road invites tragedy. Tragedy . . . you heard it here first.

The GAO report notes:

“[ATV industry] officials said they are taking actions to prevent the sale of adult-sized ATVs for use by children and Commission staff said they have taken steps to ensure compliance . . . . Since 1998, Commission staff have conducted undercover inspections of ATV dealers, by posing as buyers, to check compliance with the age recommendations. Nevertheless, compliance rates of the ATV dealers that Commission staff checked decreased from 85 percent in 1999 to 63 percent in 2007 . . . . A Commission compliance official said no undercover inspections of dealers had been conducted since early 2008 because Commission staff were focused on preparing to implement the Consumer Product Safety Improvement Act, but that inspections will be resumed in the future. . . .

Because Commission staff had not conducted any undercover inspections of dealers since 2008 and because the number of new entrants in the marketplace that had not been checked (as of February 2010, 37 companies had ATV action plans authorizing them to sell ATVs in the United States, compared with 8 companies in 2008), we conducted undercover operations of selected dealers to check whether dealers were willing to sell adult-sized ATVs for use by children under the age of 16. . . . The dealers who were willing to sell adult-sized ATVs for use by children included retailers that sold ATVs made by the traditional manufacturers and new market entrants as well as those that sold a single brand and a variety of brands. In some cases, sales staff subtly and in other cases blatantly admitted that they should not be selling adult-sized ATVs for use by a 13-year-old, but would do so anyway. In addition, one dealer we visited was selling ATVs manufactured by a company without an ATV action plan.” [Emphasis added]

I quote from this report not to indict ATV’rs. Some bad apples will be in every barrel, so almost any market sweep will turn up something. In this case, however, the GAO confirms that the CPSC has been in a two year nap induced by the CPSIA. And the nap isn’t over, either.

This problem explains why, in a recent conversation, a CPSC staffer referred to the agency as the Children’s Product Safety Commission (that’s not its name!). Something has been diverted or polluted in its mission by the CPSIA.

I feel we are sliding down this slippery slope to the doom of the critical market for children’s products. After two years of whining, I must sound like a broken record. That said, the CPSIA implementing rules aren’t survivable and with full implementation now just months away, there’s almost no time left to do anything about it. I have not yet explained in this space the so-called 15 Month Rule to be discussed this week in Thursday morning’s Commission meeting. When the time comes, you will get a strong sense of what a railroad job this entire process has been. The priority has been irretrievably shifted to paper pushing. The strictures imposed by the testing zealots will snuff out many businesses – or send us all underground.

Consumers will suffer and so will your business. We will see more collapses and will see markets go under-served. You were warned.

Read more here:
CPSIA – Broken Record . . . Does Anyone Care Anymore?

CPSIA – Hugh Hewitt on the Coming Public Database

The Database That Ate American Business

Town Hall
April 9, 2010
By Hugh Hewitt

Very few people outside of the commissioners and employees of the Consumer Products Safety Commission, a few business lawyers and the legion of left-wing so-called “consumer activists” know much about the countdown to the new SaferProducts.gov “database,” but by this time next year American business will be reeling from the launch of what will become a government sponsored virtual bulletin board for the serial slandering of American manufacturing.

Reputations will be ruined and brands deeply damaged once the Congressionally-mandated internet bulletin board becomes operational. Here’s the benign summary of what the law requires, as interpreted by the CPSC in a report to Congress :

To meet the requirement for a public database, CPSC is planning to build SaferProducts.gov (working name only – final still to be determined), which will be a single central location where consumers can go to report product safety incidents, and to search for prior incidents and recalls on products they own, or may be thinking about buying. In conjunction with the web site launch, CPSC will also conduct a public awareness campaign to raise awareness of SaferProducts.gov. Sounds wonderful, right? But how will it operate in reality?

Understand that every “report” received by the CPSC will have to appear on the database, and not just reports of actual injury but also of threat of injury.

And anyone who cares to make the report –activists, plaintiffs’ lawyers, busybodies, disgruntled employees etc– can do so with their anonymity guaranteed. Manufacturers whose products are slandered on this site will be allowed to respond, but the agency has a total of just over 500 employees, and they must oversee the entire process. Anyone care to guess how quickly the agency’s resources will be overmatched by a flood of trolls and mud-slingers?

Congress obviously loved the idea of providing “internet tools” to consumers who are upset with any particular product, but the staffers who wrote this piece of legislation must be unfamiliar with how open forums on the internet actually operate. For a taste of the absurdity of comments received in such a place, sample the comments below for the usual trolls who show up to spew and stomp their virtual feet. Amusing stuff for an opinion columnist, but deeply damaging for a business trying to sell product.

A few lawyers specializing in CPSC law have begun to warn their clients of the perils ahead, especially when the plaintiffs’ bar begins to both hunt for clients among the postings and to use the “reports” found there in courtrooms far and wide as evidence of a pattern or practice of corporate indifference to injury. My colleague Gary Wolensky gave a presentation to the Sporting Goods Manufactures Association this week on the need for every manufacturer in America to design now a response strategy to roll out when the database goes live next spring. Rob Neppell of Kithbridge.com opined on my show last week that any manufacturer in the country that isn’t already methodically scanning the web for mentions of its products is far behind the information curve, a late start that will become lethal if the companies aren’t prepared to monitor and effectively respond to the “reports” to the database.

But even with the best lawyering and real-time monitoring it is hard to imagine American manufacturing being able to keep up with a flood of anonymous “reports” about the dangers posed by their products. The old Mark Twain rule about a lie being half-way around the world before truth has its boots on is even more obviously true in an era of instant connectivity to the global information superhighway.

Congress has ordered the CPSC to arrange for open-season on American manufacturing. If the Congress is returned to saner hands this November perhaps this train wreck can be averted, but don’t count on it. American business is about to take another one on the chin.

Read more here:
CPSIA – Hugh Hewitt on the Coming Public Database

CPSIA – Waxman Amendment, Tenenbaum and “Openness”

Everyone knows that the CPSC under Chairman Inez Tenenbaum is all about openness and transparency, right? She told us about her closely held principles of open government again and again. [If there is any doubt, see below for her many public statements on this topic. I probably missed more than a few, too – please forgive me.] Apparently, this is part of her plan to restore confidence in the CPSC.

Let’s not obsess over her vote with the self-proclaimed “Prince of Darkness”, Commissioner Bob Adler, to prevent a public discussion by the five CPSC Commissioners of the controversial January 15 report to Congress. I am sure she was really trying to be open, but I must be too dumb to understand it.

And then there is the Waxman Amendment 2.0. The anti-business sleight of hand in the pending law has been much discussed in this space. The Waxman Amendment is quite provocative. Many groups have submitted comments to Waxman’s staff, as well as two Commissioners (Nord and Northup). Or is it four Commissioners?

I have reported that Tenenbaum and Adler submitted joint comments on the Waxman Amendment. Their letter was apparently not signed. The only place you can find it, to my knowledge, is in my blog. I believe that senior CPSC officials who asked Ms. Tenenbaum’s office for a copy of it were REFUSED. Is that “open” and “transparent”? You be the judge. By the way, you weren’t supposed to see it, either.

I am told Ms. Tenenbaum previously submitted a secret list to Waxman of 20 changes she wanted in the law, but this document never surfaced. On March 23, I submitted a Freedom of Information Act request to disclose this and other documents relating to these Commissioners’ interactions with Congress on this bill and finally received an acknowledgement from the CPSC on April 1. No joke. Yet I have not received any documents to date. The Tenenbaum and Adler letter is still a thing of mystery.

And now I understand that in response to press inquiries about the mystery comment letter, the CPSC is admitting the authorship of the two Democrats. No explanation is being given for the secrecy, nor for its absence from the CPSC website.

How very transparent. Is this building your confidence in fairness and openness at the CPSC? Perhaps this is the new Washington Mr. Obama is installing. No more business as usual!

Mr. Nixon would be so proud. I wonder if there is an enemies list, too. . . .

In chronological order, the remarks of Ms. Tenenbaum on transparency and openness (emphasis added):

[I particularly like nos. 6 and 12, btw.]

1. [This one is from the agency itself, but it's a good warm-up.] U.S. CONSUMER PRODUCT SAFETY COMMISSION INFORMATION QUALITY GUIDELINES :

“CPSC also achieves transparency through wide dissemination of its information. Most reports and other data products are available both as printed and electronic documents. They are announced on the CPSC web site and most electronic versions can be accessed and downloaded directly from the web site.”

2. Inez Tenenbaum Sworn In As New Chairman of U.S. Consumer Product Safety Commission, July 9, 2009:

“Ms. Tenenbaum identified three major areas of focus for her common sense approach to serving as Chairman. ‘First, I want CPSC to be more accessible and transparent to parents and consumers. By creating an electronic database of product incident reports that consumers can search and by collaborating with state and local agencies and consumer groups, we can give the public confidence that CPSC is working openly and in their best interest,’ she stated.”

3. Testimony of Inez M. Tenenbaum Committee on Commerce, Science and Transportation United States Senate, June 16, 2009:

“Consistent with the President Obama’s approach to governance, if confirmed as Chairman, I will ensure that the Commission is operated in an open, transparent, and collaborative way and in a manner worthy of the American people. . . . If confirmed, I commit to you that under my leadership the Commission will operate in an open, fair, and evenhanded manner and will invite participation by the public, consumer advocacy organizations, and industry.”

4. Remarks of Chairman Inez Tenenbaum at APEC Regulator Dialogue on Toy Safety, August 1, 2009:

“Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy.”

5. Statement of Inez Tenenbaum Chairman U.S. Consumer Product Safety Commission Before the Subcommittee on Commerce, Trade, and Consumer Protection “The Consumer Product Safety Commission: Current Issues and a Vision for the Future”, September 10, 2009:

“In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve; a renewed focus on education and advocacy to all American consumers; and fair, but firm enforcement of the product safety laws we oversee.”

6. Chairman’s Welcome for CPSC 2.0 Press Releases # 09-346, September 22, 2009 (transcript):

“Hello, I’m Inez Tenenbaum, Chairman of the Consumer Product Safety Commission. In my first hours as Chairman, I spoke frankly to families and consumers across the country. I said that as the leader of this important safety agency, I was committed to creating an open and transparent CPSC. We have kept our word.“

7. Chairman Tenenbaum’s Speech at AHAM’s Product Safety and Liability Conference, Washington, DC, October 12, 2009:

“I have said this previously and I want to be clear with all of you – I support the creation of the database, as I believe it furthers the vision of creating a more transparent CPSC and a more informed consuming public.”

8. Chairman Inez Tenenbaum’s Keynote Address, 3rd CPSC-AQSIQ Safety Summit, Wuxi, China, October 21, 2009:

“The spirit of cooperation and dialogue with which we are opening this Summit reflects the philosophy that I have as a regulator. I embrace open government, information sharing with all stakeholders, and a commitment to finding mutual interests.”

9. Chairman Inez Tenenbaum, Keynote Address, ICPHSO/International Cooperation on Product Safety, Toronto, Canada, October 28, 2009:

“With the passage of CPSIA, the proposed product safety legislation introduced here in Canada, , it is more important than ever for industry, consumer groups, and government to work together. We must assure that there is a transparent and fair handling of the vast responsibilities we are being given. Serving as the Chairman of the Consumer Product Safety Commission puts me in a position to oversee a reshaping of consumer product safety issues affecting the global community, and I take my responsibilities seriously.”

10. CPSC Chairman Inez M. Tenenbaum Keynote Address via Video Recording, APEC Toy Safety Initiative Open Dialogue on Toy Safety, January 12, 2010 – Hong Kong:

“I am as committed to transparency as I am to enforcement and as we go forward, I hope all of you will work closely with us through our comments process and open proceedings. It is essential that we find common ground through dialogue on ‘building safety into toys and children’s products.’”

11. CPSC Chairman Inez M. Tenenbaum TIA International Toy Fair, February 15, 2010 – New York:

“I am as committed to transparency as I am to enforcement and as we go forward, I hope all of you will work closely with us through our comments process and open proceedings.”

12. Chairman Tenenbaum ICPHSO Keynote Address, February 17, 2010 – Washington, DC:

“As many of you have heard me say before, I am a believer in open government. It is integral to the Administration’s efforts to change the culture in Washington, and I believe it is integral to changing perceptions of the CPSC. Over these past months, I have made the Commission as accessible to the public as any time in its history. At the same time, I have made myself accessible to both industry and consumer groups. I will continue to have an open door in the years ahead.”

13. Chairman Tenenbaum JPMA Summit Keynote Address, March 9, 2010 – Washington, DC:

“After a tumultuous 2007 and 2008, we made 2009 a year of change at CPSC:
• change that brought new staff and new thinking,
• change that brought new partners and a return to openness, and
• change that has brought renewed confidence to parents.”

14. Chairman Tenenbaum Consumer Federation of America Keynote Address, March 11, 2010 – Washington, DC:

“After a tumultuous 2007 and 2008, we made 2009 a year of change at CPSC:
• change that took us from having only 385 employees in 2008 to having more than 500 in 2010 – and we are still hiring – our goal is to reach 530,
• change that brought new powers and a return to openness . . . .”

15. Chairman Tenenbaum AAFA Executive Summit, Friday, March 12, 2010 – Washington, DC:

“After a tumultuous 2007 and 2008 – we made 2009 a year of change at CPSC:
• change that brought new staff and new thinking as we grow from 385 employees in 2008 to 530 by the end of this year,
• change that brought new partners and a return to openness . . . .

Over these past months, I have made the Commission as accessible to the public as any time in its history. Our public meetings are online – you can watch our Commission meetings every Wednesday morning, — we have hosted public workshops to collect input from the public on major issues and our staff members are presenting useful information to groups like this around the country. At the same time, I have made myself accessible to associations like AAFA and to consumer groups. I will continue to have an open door in the years ahead.”

Read more here:
CPSIA – Waxman Amendment, Tenenbaum and “Openness”

CPSIA – Power Imbalance

When the respected Chairman of the CPSC uses a prominent keynote speech to tell us:

“But now that our team of experts has gone back to the process of building the database, I want those in industry to stop fighting old battles and get prepared.”

and

“Well, to all of you here today, I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.” [Emphasis added]

I believe it is an abuse of power by a public official.

Let’s think about how the cards are stacked in favor of the Chairman:

• She is appointed by the President to a fixed term of office and is not subject to removal but for malfeasance,
• She gets the microphone and media attention at her pleasure and is a regular on popular TV news shows,
• She has a PR machine working for her full-time,
• She supervises the writing of the rules and policy setting (including implementation of the CPSIA), the issuance of penalties, the prosecution of recalls and other cases (up to and including criminal charges), oversees appointment of senior staff, interacts with Congress and the Executive Branch on behalf of the agency, and oversees open forums with stakeholders as well as the solicitation of comments and other feedback loops with stakeholders, and
• She speaks for the Federal Government on consumer product safety.

That’s a lot of firepower. Most people don’t want to cross someone with so much power or influence as well as the almost unrestrained ability to prosecute. Let’s not forget another quote from her speech: “A new Commission that has new powers – and we are not afraid to use them. If you resist our efforts to recall children’s products, be forewarned, this Commission stands ready to be creative in the use of our enforcement authorities.” [Emphasis added] She has a lot of power and wants you to know she’s ready to squish you.

The Chairman is essentially judge and jury in cases and policies that matter a lot to safety stakeholders. Her warnings to “to stop fighting old battles” can be taken as a warning to people like me. It is hard to not believe that she is trying to be intimidating. Likewise, with her federal imprimatur, her remark that you should not “believe everything you read on the Internet, except what you read on Web sites that end in dot gov” feels like an effort choke off debate. Be forewarned, indeed.

This power dynamic is not my imagination. Others facing the overwhelming power of the federal government routinely have had to cave, right or wrong. For example, the latest issue of Fortune magazine features an interview with Stasia Kelly, former General Counsel of AIG. She tried, in vain, to negotiate with Kenneth Feinberg, the federal “Pay Czar” on behalf of her company. Eventually she quit her job, rather than face the consequences of Mr. Feinberg’s unilateral plan. Here is an excerpt from the interview:

“The next huge event for you was the June 2009 entry of Kenneth Feinberg, the special master of compensation for seven companies, AIG very much included, that had received TARP funds and not paid them back. You were AIG’s point person in dealing with Feinberg. I’ve read you emerged from that experience disliking it heartily. Was it bad from the beginning?

Yes, because, first of all, it’s very hard to negotiate when you have no power. Feinberg had the power — unfettered power. Our new CEO, Bob Benmosche, and I tried very hard to let him know what compensation we thought we required to attract and retain the kind of people we needed to pay off our debt to the taxpayers and deal with the risk in FP. We had the New York Fed and Treasury behind us on that. But Feinberg had political and populist considerations to worry about and a need to set amounts that would satisfy those. As we negotiated over the months, it became increasingly obvious to me that we were not going to end up in a good place.” [Emphasis added]

High officials at the CPSC have enough administrative and political power to be tremendously coercive. This goes double for small companies who lack the financial or political firepower to blunt a government attack. You can’t overlook the fact that the powerful Henry Waxman is essentially the CPSIA’s “sponsor” and hence, the principal off-stage player behind this leadership group. When they use their bully pulpit to stifle debate, they are essentially borrowing and wielding his power. This is a caustic environment, and it is not lost on anyone listening to their speeches. While the “have’s” may like it, the “have-not’s” (like me) chafe. This is a bad approach to building a community.

The folks running the CPSC are just trying to do their jobs. So am I. There’s room for both of us. Safety doesn’t have to be all about politics (see the Kelly quote above) and if leadership at the agency can guide us to a place where it isn’t all about politics and populism, the stakeholder fractiousness might die down. Until then, I would appreciate it if leadership would stop trying to stifle debate or discredit independent sources of commentary. It’s not our fault we don’t have a “dot gov” URL.

Read more here:
CPSIA – Power Imbalance

CPSIA – Some ICPHSO Humor

After a day at ICPHSO when

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

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

To see “Sheer Madness”, of course!

You have to admit, it was a perfect choice.

Read more here:
CPSIA – Some ICPHSO Humor

CPSIA – ICPHSO Update – Q&A with CPSC

Q&A’s from this afternoon’s session. Gib Mullan responding unless otherwise noted.

A taste of things to come:

1. The biggest impact of the Public Database is how quickly you will have to reply. Hmmm, where have we heard this before??? Hope you are never on vacation. . . .
2. On confidentiality in the Public Database, it is going to be “hard to deal with”. Info from consumers won’t be confidential. Info from businesses will either be confidential or not, perhaps at the company’s pleasure, but it will be hard to act on info businesses provide WITHOUT making it public. RW: Don’t forget to make comments,guys. Your silence will be taken as your approval, trust me.
3. The plan for the DB is to let companies have “every bit of the time” specified in the statute “AND NOTHING MORE”. There will be “minimal CPSC review”. Aha, just like Tenenbaum said, time to get prepared. . . for the first Tuesday in November.
4. One questioner noted that the recalls on cribs has so rattled consumers that it has stimulated the return of co-sleeping arrangements, known to be one of the most dangerous baby scenarios. Hmmm. The CPSC will be doing education to counteract this development. RW: It is inconceivable that their publicity will match the media frenzy over crib recalls. It’s probably safest just to stop having kids.
5. Will there be a mandatory standard for window coverings – because there is (said to be) one death a month. The CPSC says that they are working on it. For you at home, it’s probably safer to just take down all window coverings and let Mrs. Kravitz have a big day.
6. Somebody called for new regulations on the “end of life”, just like in Japan. OMG . . . . Hey, they mean the end of your product’s life! What were you thinking? The CPSC is watching how this system works but has no present plans to expand its current regulatory scheme.
7. When will a promotional product become a “Children’s Product”? Does it become a Children’s Product if screened with the wrong thing? Cheri Falvey responded that you can’t read the WIMA letter (the pen decision) to address this question. It was a “result-oriented” opinion from a two-person Commission. The new rule on Children’s Products, to be voted on by five Commissioners, will sort this out. Might incorporate the pen decision and broaden it, or it might not. So there you go, might be okay, might not, you should wait and see. [RW: I hate the pen decision because it attempts to solve a compliance issue on a technicality with absolutely no regard for safety. Is a pen safe? The decision cannot be reconciled against that question because it only matters what was intended by the manufacturer. Safety is irrelevant when considering compliance . . . ?]
8. Eric Stone noted that changes in the definition of “Children’s Products” may have consequences for manufacturers and asked if the agency has the legal authority to operate prospectively. Falvey declined to give a legal opinion, but noted her personal opinion that the definition could broaden in the new rule. She noted that she has warned about that in the past. Oh, I see, we are to write down her every word, savoring them like pearls, because her oral warnings in any setting are going to be taken as precedent. We were warned. Too bad for those of you who weren’t here to hear her words. Ha Ha Ha Ha! And you can’t use this blog as a citation, either. Remember, my URL doesn’t end in “dot gov”. I am a liar.
9. When the law goes into effect on cribs, Falvey told us this AM that the standards will be RETROACTIVE. A member of the juvenile products industry referred to this news as a “bomb”. He said there could be 20 or 30 million cribs that don’t comply and would be instantly illegal. Gib says the new rule would be retroactive only for cribs in “public settings” like hotels, motels, day care centers. He says that the Commission has the authority to go even further. Oooh, could be a great chance for the government to come into your home – nice! I really like the concept of this rule – it’s really simple, see, it will be retroactive for some people and prospective for others. Apparently, the CPSC and Congress still haven’t figured out that the U.S. economy is rather complex. I see years of fun ahead for the regulators.
10. Learning Curve asked if all document attachments on the Public Database would be made public. Gib said yes. LCI then asked about consumer-obtained test reports and whether they would also be made public without scrutiny. Gib said he hadn’t thought of that one. I can think of a few plaintiff’s lawyers who would be happy to run a real life seminar about this in the future . . . . This Q illustrates the incredible disarray that awaits us all because of this insanely self-destructive provision fobbed off on us by the consumer groups.
11. Gib: not everything in the database will be public. Some area will be explicitly confidential. Some 15(b) disclosures will not appear in the DB.
12. No decision on whether media reports will be included in the DB. I find this hard to be envision – I trust eventually the consumer groups will force all the trash into the DB to help with all their searches. Oh how I look forward to the new era of Sudden Business Death.
13. Will the agency will reconcile multiple reports of the same incident? One of Cheri Falvey’s associates said they would address it in the rule. The rule is now over 25 pages long. Trust me, it won’t be that short when released.

Read more here:
CPSIA – ICPHSO Update – Q&A with CPSC

CPSIA – ICPHSO Update on Public Database

Remarks of Ming Zhu and Chad Tompkins, Office of Info Technology, on the Public Database. This presentation will apparently be posted online at www.saferproducts.gov.

• They are very excited about the database. They acknowledge that they are IT guys, not lawyers. Gotcha.
• Will give access to “far more” product info than previously available. Will provide much faster access to the info.
• Corporate participants can also get incident reports much more quickly and act much more quickly. [This is an obvious set up for an opportunity to judge the speed of your surveillance and response. I think it's best understood as the basis for compelling a certain helter skelter speed to respond. The populace demands it . . . .]
• Chairman Tenenbaum noted that www.saferproducts.gov has gone live, although the database is not yet functional. She says you can track the progress of the database on the website and kick the tires of its new design before its March 2011 rollout.
• They are looking forward to enhanced early detection of hazards.
• Consumers will have access to all consumer reports and manufacturer replies when making consumer product choices. Oooh, this is a good one. I am so glad I gave comments on this database. Why not just let us put our comment letters through the shredder ourselves?
• Will capture info on the submitters and the incident on the site.
• Phase I is to “turn on the fire hose” and phase II is where the agency improves its infrastructure to handle it. They recounted the overall IT improvement plan.
• Will use Social Media to drive traffic. Earlier in the day, Cheri Falvey noted the popularity of the video showing a carrot being severed by a stroller. Cute!
• They want us to talk about our website at our Tupperware parties. Something to think about.

Read more here:
CPSIA – ICPHSO Update on Public Database

CPSIA – ICPHSO Update on Public Database

Remarks of Ming Zhu and Chad Tompkins, Office of Info Technology, on the Public Database. This presentation will apparently be posted online at www.saferproducts.gov.

• They are very excited about the database. They acknowledge that they are IT guys, not lawyers. Gotcha.
• Will give access to “far more” product info than previously available. Will provide much faster access to the info.
• Corporate participants can also get incident reports much more quickly and act much more quickly. [This is an obvious set up for an opportunity to judge the speed of your surveillance and response. I think it's best understood as the basis for compelling a certain helter skelter speed to respond. The populace demands it . . . .]
• Chairman Tenenbaum noted that www.saferproducts.gov has gone live, although the database is not yet functional. She says you can track the progress of the database on the website and kick the tires of its new design before its March 2011 rollout.
• They are looking forward to enhanced early detection of hazards.
• Consumers will have access to all consumer reports and manufacturer replies when making consumer product choices. Oooh, this is a good one. I am so glad I gave comments on this database. Why not just let us put our comment letters through the shredder ourselves?
• Will capture info on the submitters and the incident on the site.
• Phase I is to “turn on the fire hose” and phase II is where the agency improves its infrastructure to handle it. They recounted the overall IT improvement plan.
• Will use Social Media to drive traffic. Earlier in the day, Cheri Falvey noted the popularity of the video showing a carrot being severed by a stroller. Cute!
• They want us to talk about our website at our Tupperware parties. Something to think about.

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CPSIA – ICPHSO Update on Public Database

CPSIA – My Letter to Inez Tenenbaum (9-17-09)

September 17, 2009 VIA FEDERAL EXPRESS The Honorable Inez Tenenbaum Chairman U.S. Consumer Product Safety Commission 4330 East West Highway Bethesda, MD 20814 Re: Safety of Rhinestones and Crystals Dear Chairman Tenenbaum: I am writing on behalf of the Alliance for Children’s Product Safety, an organization comprised of small businesses in many industries impacted by the Consumer Product Safety Improvement Act (CPSIA). Of particular concern to Alliance members is the “unintended consequences” of the CPSIA, namely that many safe products will be explicitly or effectively forced from the market despite sterling safety records, and that many viable and law-abiding businesses will be economically crippled (or worse) by new testing, labeling and other obligations and liabilities under the new law. We are aware of your recent testimony at a CPSIA oversight hearing conducted by the House Subcommittee on Commerce, Trade and Consumer Protection on September 10, 2009. In your testimony, you expressed concern that swallowing “50 beads” (referring to rhinestones, glass beads or crystals) might lead to measurable change in blood lead levels and would hence be considered “unsafe.” You also indicated that your statement of July 17, 2009 explaining your vote to deny the Section 101(b) exclusion request of the Fashion Jewelry Trade Association and other organizations for such beads was “poorly worded,” and the level of lead in such beads was in fact a cause for concern. You mentioned, in particular, beads with lead levels of 23,000 ppm. We are puzzled by this testimony and kindly request clarification. Notably, you wrote in your statement of July 17 that “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children.” You also stated clearly that risk assessment by the Commission “appears to be in direct conflict with the statutory language [of the CPSIA]” and therefore the agency is foreclosed from considering factors such as “bioavailability of lead, accessibility of the lead to children, foreseeable use and abuse, foreseeable duration of exposure, marketing and life cycle of the product” in any exemption proceeding. We are therefore confused by your testimony that your vote against the exclusion request was actually motivated by a safety concern (risk assessment). The clarity and consistency of CPSC administration of the CPSIA is a serious issue for businesses attempting to comply with the new law. It is well-known that confusion among the regulated industries has caused market chaos and considerable business losses. The rhinestones decision, followed by your recent Congressional testimony, creates serious new issues that will further confuse those trying to comply with the law. We request that the Commission provide clarification on your July 17 contention that exemption requests will be made without regard to risk assessment. If risk assessment is not permitted by the CPSIA in such proceedings (as has been consistently stated by you as well as by Commissioners Nord and Moore), we request that the Commission explain the relevance of the safety considerations of swallowing 50 rhinestones on the rhinestones exemption request decision. If your testimony before Congress indicates that risk assessment is now permitted in CPSIA exemption proceedings, please explain the legal basis for this change in statutory interpretation. We believe that the terms of the CPSIA require that the CPSC deny the exclusion request for rhinestones based solely on the lead levels in the stones; however, we do not believe rhinestones, crystals or glass beads present any health issue for children. Rhinestones are well-known to be safe. These stones are a classic “innocent victim” of CPSIA, like so many other safe product classes similarly affected. We request the information that you used to support your testimony that swallowing 50 beads present a health risk to children. In particular, we believe this conclusion is dependent on two theses: a. That swallowing 50 beads is a “foreseeable use and abuse”. b. That swallowing 50 beads will cause a measurable change in blood lead levels (one micro-gram per deciliter of blood). Likelihood of Swallowing 50 Beads. Based on a review of medical literature, the risk of swallowing 50 beads is minimal for “normal” children. For instance, in “Foreign-Body Ingestion in Children: Experience With 1,265 Cases”, Journal of Pediatric Surgery, Vol. 10, No. 10 (October, 1999), pp. 1472-1476, the authors document 552 cases of proven foreign body ingestion but do not indicate any record of jewels being ingested. Although NEISS data (this author reviewed data from 2005) shows that jewelry is known to be ingested by children, many cases in the database are not proven (merely suspected) or involve products not relevant to this issue, and in the vast majority of cases, the swallowing are inadvertent or accidental. The accidental nature of ingestion of jewelry is quite relevant here, as the accidental ingestion of four bracelets or 20 rings in incontestably improbable. In addition, such a serious incident would take a great deal of time and an intent to create mischief, none of which is considered a “foreseeable use and abuse” of a children’s product. It is notable that rhinestones are not meant to be ingested, have no flavor or smell and are, in fact, rocks. Rocks are not food and are unlikely to be ingested by children with normal mental health or normal intelligence. On February 2, 2009, the Fashion Jewelry Trade Association and related organizations submitted a request for exclusion of these stones from the lead limits of the CPSIA under Section 101(b) (the “February 2 Letter”). In that letter, they provided industry data on the use of decorative stones in jewelry. Notably, the February 2 letter indicates that jewelry intended for children six years or younger contains between 4-15 stones. Thus, a child of six years of age or younger would have to consume 4-13 pieces of his/her jewelry to swallow 50 beads. This appears to be a highly unusual event. We therefore request that CPSC provide data supporting your contention that swallowing 50 beads is a “foreseeable use or abuse” of children’s products containing rhinestones, crystals or glass beads.. Likelihood of Blood Lead Level Changes. In their February 2 letter, the Fashion Jewelry Trade Association and related organizations provided a technical study entitled “Evaluation of Lead in Crystal Beads and Rhinestones” prepared by the respected consulting company, Exponent. In its study, Exponent calculates the lead leaching rate of rhinestones (with lead levels in excess of 600 ppm) in saline (mouthing, 0.15 micro-grams per gram of stones) and acid extraction (ingestion, 0.52 micro-grams per gram of stones). Likewise, it notes that one gram of the most common size of such stones (10PP) equal 333 stones. [Obviously, larger stones require fewer stones to reach one gram in mass, but the analytical results are similar.] Studies of the daily intake of lead for children demonstrate that lead is present throughout the food system and is present in our air and water as well. As a consequence, children will inevitably consume lead throughout the day by simply breathing, eating and drinking water. [It is well-accepted that the largest source for childhood lead is house paint, followed by dirt and air.] A recent study of dietary intake of lead by children in India indicates that tolerable daily intake of lead far exceeds 10 micro-grams per day (see “Dietary and Inhalation Intake of Lead and Estimation of Blood Lead Levels in Adults and Children in Kanpur, India”, Risk Analysis, Vol. 25, No. 6, pp. 1573-1588, December 2005 ). Similarly, the Exponent study submitted on February 2 indicates that the FDA has determined that six micro-grams of lead per day is required to produce a one micro-gram of lead per deciliter change in blood lead levels in children six years old or younger. Thus, to produce such a change in blood lead levels from jewels would require sustained daily ingestion of 12 grams of stones (roughly 4,000 stones or hundreds of pieces of jewelry) or mouthing of 42 grams of stones (roughly 14,000 stones or more than 1,000 pieces of jewelry). Clearly, this is unlikely to occur, particularly accidentally. It goes without saying that ingestion of 50 beads is far more likely to result in physical injury because of intestinal blockage or similar maladies than from lead poisoning. We do not believe any NEISS cases involving the accidental ingestion of jewels were considered a lead poisoning risk by the attending physicians. We kindly request that the CPSC provide data on any incident in the NEISS database documenting that the attending physician considered lead poisoning a risk from the ingestion of jewels. We also kindly request that the CPSC provide back-up data and analysis to support your assertion that the CPSC “could not determine” whether swallowing 50 beads will cause a measurable change in blood lead levels. The Need for Flexibility. Finally, we note that in last week’s hearings, Rep. George Radanovich asked you whether you needed “flexibility so [you] can exempt safe products”. You replied that it was ‘premature” for you to answer that question. We are concerned by your unwillingness to answer this question definitively and kindly request an explanation as to why it is “premature” to ask for flexibility to exempt safe products from the lead limits of the CPSIA. Given that the agency has a limited budget, please explain how the Commission will deploy its resources to regulate and supervise safe products, when the need to deal with unsafe products or safety risks is so overwhelmingly large. Thank you for your prompt consideration of this important matter. Sincerely, Richard Woldenberg Chairman Alliance for Children’s Product Safety cc: Commissioner Robert Adler Commissioner Thomas Moore Commissioner Nancy Nord Commissioner Anne Northrup

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CPSIA – My Letter to Inez Tenenbaum (9-17-09)