CPSIA – Phthalates and Lead Limits in Waxman Amendment

Two minor but important points in the new Waxman Amendment relate to the ban on phthalates and the 100 ppm lead standard looming in August 2011.

Phthalates: The phthalates ban has been clarified to exclude “inaccessible” components, thus reducing the cost of testing for victims of this poorly-conceived law. The definition of “inaccessible” is based on foreseeable use and abuse by children. The term “reasonably foreseeable use and abuse” is defined, lest anyone misconstrue what the Waxmanis want it to mean, and hence new concepts have been incorporated: “breaking” as well as “the aging of the product”. In the past, “reasonably foreseeable use and abuse” has been interpreted to exclude intentional misuse. The term did not typically include aging since most worn-out products are either handled differently or discarded. The changes wrought by this amendment fundamentally alter the common meaning of “reasonably foreseeable” in quirky ways, making a confusing law all the more difficult to understand or apply.

If “reasonably foreseeable use and abuse” includes breaking the toy, it’s hard to know which parts will ever be considered “inaccessible”. Reading this language by its plain English meaning, I cannot imagine what might survive this legislative test. Worthless. I sense another rulemaking process for the long-suffering CPSC.

The amendment also clarifies that the CPSC can revoke this exception to protect the public health and safety. Remember, we are talking about a rule affecting mandatory testing of internal components that may or may not contain phthalates. Can anyone tell me what threats to the public health and safety could POSSIBLY result from an internal component made with phthalates? Phthalates have been in use in this country for more than 50 years – wouldn’t we know about “leaping phthalates” by now? Oh yeah, I’m sorry, i forgot that reasoning and science don’t matter anymore. . . .

Perhaps concerned that the CPSC was running out of things to do, the authors added yet another rulemaking on “inaccessibility” for this new exception. They are free to adopt the definition already set for lead. It’s up to them. Study up, guys! Can’t wait to give comments . . . .

Can you say . . . mania?

It is worth noting that in taking this route to “resolve” the pain points on phthalates, the Dems have chosen to NOT address a pending issue between the CPSC and California. Attorney General Jerry Brown of California sent a hot letter to the CPSC last year indicating his unwillingness to accept testing of the entire product for phthalates ban purposes. In the wake of his letter, the agency reversed course and rescinded its rule permitting a single test on the entire product. This would have been inexpensive for manufacturers.

It is pure fantasy that the Dems would take on Jerry Brown since our Congressional overlords are largely from CA (Waxman, Pelosi, Boxer, Feinstein) and are busy trying to California-ize the rest of the country. Henry Waxman would certainly never preempt Jerry Brown for the national good. Hence the half-a-loaf approach here.

Lead: The Waxman Amendment makes the pending 100 ppm lead standard prospective. This is a tiny bone thrown in our direction. You may consider it a nod of acknowledgement of your pain from the retroactive application of the lead standards and phthalates ban. Nonetheless, this is all you will get.

Again, this is only half-a-loaf. A more thoughtful and helpful change would have been to draw a FIRM LINE under the 300 ppm standard, eliminating the 100 ppm standard altogether as well as the rule ratcheting down the lead standard in the future (forgot about that one, right?). They could have said that the CPSC would be free to lower the lead standard in the future if necessary to protect public health and safety (taking into account the cost and benefit of any such new rules). But they didn’t.

The Waxmanis have no interest in such concessions. Whether out of zealotry or pride of authorship, no amendments will emerge if they reflect any concession of error or misjudgment in the Perfect Legislative Process. Thus, the 100 ppm standard can’t be removed because they put it there for a reason. We must live with it . . . so they say.

Rumorville has it that the Waxmanis are about to deliver a message to leaders of the business community to fall in line behind this “wonderful” amendment or else . . . they’ll get NOTHING. Don’t you love this? And I used to think THEY worked for US. What an idiot I am!

And on that note, I encourage you to read ONE more blogpost about this toxic amendment. I still need to show you how the authors are trying to deceive you and gut the system that regulates safety of safeguards against governmental abuse. That is, abuse of the interests of your businesses. It’s really something to see.

Read more here:
CPSIA – Phthalates and Lead Limits in Waxman Amendment

CPSIA – Waxman’s New Amendment – Needed Changes

Here is my full list of needed changes to the CPSIA:

Needed Changes to the CPSIA That Will Guarantee Safety and Promote U.S. Jobs:

1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment by giving the Commission the discretion to set age and product definition criteria for 300 ppm lead standard and phthalate ban. Eliminate the 100 ppm lead standard.

2. Definition of “Children’s Product” should not include anything primarily sold into or intended for use in schools or which is used primarily under the supervision of adults. Other explicit exceptions: apparel, shoes, pens, ATVs, bicycles, rhinestones, books and other print materials, brass, connectors, others? This would take these items outside the law, including tracking labels.

3. The standards/bans for lead and phthalates should be prospective from February 10, 2009, allowing the sale of merchandise manufactured in compliance with law prior to the implementation of the law.

4. Lead-in-substrate and phthalate testing should be a “reasonable testing program”, not mandated outside testing. Leave 300 ppm standard in place, but place burden on manufacturer and supply chain for compliance activities. Phthalate testing requirements should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood.

5. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. Clarify that all inks are excluded from the lead-in-paint ban. Eliminate the definition of “technologically feasible”. Eliminate the “periodic review” provisions that require ratcheting up of requirements (e.g., periodic review of F963 to achieve “highest levels of safety” that are “feasible”). Eliminate the whisteblower provision.

6. Definition of “Children’s Product” should be limited to children 6 years or younger and should eliminate the difficult to apply “common recognition” factor of Section 3(a)(2)(c) of the CPSA. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger and should explicitly refer only to products in the form used in play.

7. Restore ASTM F963 to voluntary standard status. Eliminate CPSC certification of laboratories (rely on the market to provide good resources).

8. Add penalties (up to and including felonies) for false or misleading accusations of violations of law or safety violations.

9. Rewrite penalty provision on resale of used product such that violations are only subject to penalty if intentional (actual knowledge or reckless endangerment) and if the violation led to an actual injury. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. Completely reformulate penalties to restrict them to egregious conduct (including patterns of violations), reckless endangerment or conduct resulting in serious injury.

10. Restore the ability to export non-compliant product as long as the product is compliant with the destination jurisdiction’s law.

11. Mandatory tracking labels should be explicitly restricted to cribs, bassinets, play pens, all long life “heirloom” products with a known history of injuring the most vulnerable children (babies). Tracking labels would be voluntary on all other children’s products and if in use, can be used to trim scale of recalls (as with other data maintained by businesses).

12. Public injury/incident database restricted to recalls only. Private, confidential database permitted for other injuries.

Read more here:
CPSIA – Waxman’s New Amendment – Needed Changes

CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

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

Critical points from the speech:

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

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

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

Here’s the best part:

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

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

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

Will the Dems ever learn?

Read more here:
CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

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

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

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

Other salient points:

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

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

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

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

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

Read more here:
CPSIA – ICPHSO Update (Remarks of Cheri Falvey, General Counsel)

CPSIA – More "Rhinestone Cowboy" Action

How much of a set-up was last week’s hearing? In case it isn’t obvious that this one-witness, check-the-box hearing had a pre-ordained outcome, let’s look at one issue as an illustration (my favorite, rhinestones): Chairman Bobby Rush of the Subcommittee hosting the hearing kicked things off by heralding the CPSC’s rhinestones decision as a sign of Ms. Tenenbaum’s good administration: “When you took over the helm, Madame Chair, you showed courage, good sense and a preference for rulemaking over eleventh hour stays. One of the first agenda items you scheduled was whether to exclude crystals and glass beads in children’s jewelry from the lead content restriction in Section 101(a) of the CPSIA. You applied the facts as you found them to the CPSIA’s lead limits and to real world facts and foreseeable possibilities. For example, you talked and wrote about how children handle and play with this jewelry by mouthing, ingesting, and swallowing the beads, and how any amount of lead constituted too much lead in these beads.” Let’s not forget these are the words of the Democratic Subcommittee Chairman, not Ms. Tenenbaum. Her words, at the time, were rather different. In Ms. Tenenbaum’s statement on the rhinestones decision, she set out the following logic to justify her voting decision: a. Exemptions under the law are only permitted if it can be scientifically determined that NO lead will pass from the rhinestones into the body from foreseeable use and abuse of the product. b. Rhinestones violate the CPSIA lead limits, and therefore need an exemption to be sold legally. c. Industry data shows that some leaching of lead from ingested rhinestones will occur. She acknowledges blood lead level changes may not measurable. d. Swallowing or mouthing rhinestones is a “normal” and “foreseeable” use and abuse of jewelry. She reinforced this with her assertion that jewelry is one of the top five items (inappropriately) ingested by children. e. The law does not require that the lead leached from rhinestones be deemed “harmful”. f. Notwithstanding that CPSC staff “recognized that most crystal and glass beads do not appear to pose a serious health risk to children “, the fact that some lead will pass into the body makes it impossible to grant an exemption. g. Risk assessment is no longer permitted by the CPSC in making exemption determinations, including topics like the bioavailability and accessibility of the lead in the crystals. So Mr. Rush recharacterized the rhinestones decision as one using common sense safety judgments, and Ms. Tenenbaum’s statement was the opposite, namely that a decision to reject the exemption was compelled by law, not safety risk. Other than Mr. Rush’s revisionist history, what’s my gripe? Well, I have two problems with this. First, Ms. Tenenbaum herself rose to the occasion of rewriting history when she took the opportunity to insert risk assessment into her decision retroactively. When Rep. George Radanovich asked her if the Commission has the “flexibility to exempt safe products that don’t meet the [lead limit] exemption standard”, she first replied that “interpretation” of her comments muddied the waters by implying that rhinestones “pose no hazard at all to children”. She then said her statement was “poorly worded”. Noting that leaching from one bead would not meet the old FHSA “substantial illness or injury” standard, Ms. Tenenbaum then argued that the CPSC “could not determine” if swallowing “50 beads” might in fact cause substantial illness or injury. In other words, she reversed field and defended the rhinestones decision on basis of RISK ASSESSMENT (which never occurred), rather than the bright line lead limit rule set by Congress. Yes, rhinestones are apparently dangerous now, according to Ms. Tenenbaum, although she explicitly ruled out risk assessment in the original decision/statement. This fits the message control implicit in Mr. Rush’s glowing introduction and matches his faulty characterization of the original decision. Unfortunately, it’s fiction. Second, Ms. Tenenbaum passed on stating the obvious to Congress, namely that many safe products are being sent to the gallows by an overly broad and inflexible law. When cornered by Rep. Radanovich about whether she needed “that flexibility so [she] can exempt safe products”, she said it was “premature for [her] to answer that question at this time because these beads went all the way up to 23,000 ppm.” In so answering, Ms. Tenenbaum threw good and moral businesses to the dogs, all to avoid criticizing the “good statute” (CPSIA). After all, she noted that Congress set the lead limits after due deliberation at 300 ppm (the “safe level for lead”), the implication being that the law DEFINES what’s safe and relieves her of any responsibility to make that judgment. If this confuses you, don’t feel too badly. It makes no sense. Incredibly, the head of the CPSC refused to take a position on whether she needed the flexibility to grant exemptions for safe products. You would think that’s an easy question to answer, wouldn’t you? She claimed it was “premature” because “Congress struggled with this very issue”. I am afraid Ms. Tenenbaum is setting the tone for her next four years. While businesses are welcome to “dialogue” with her, because she wants an “open” CPSC, she apparently has no intention to exercise judgment. That responsibility has been given to Congress and from now on, her definition of “safe” is dependent solely on test reports. Something to think about the next time you want to “dialogue” with the CPSC. Lalala, I can’t hear you. . . .

Excerpt from:
CPSIA – More "Rhinestone Cowboy" Action

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