CPSIA – Why Do Dems Want to Ban Rhinestones?

Why indeed. The Democrats apparently have it in for rhinestones and are so uptight about this “menace” that they are willing to write an outright ban into the CPSIA, via Mr. Waxman’s new amendment. No more bling for you!

Have we finally entered the land of the looneys?

The Dems’ rallying cry on rhinestones goes way back. On September 10, 2009, Rep. Bobby Rush welcomed Inez Tenenbaum to the one CPSIA hearing since August 2008 by commending her for bravely banning rhinestones.

Let’s think about the basics here:

• Rhinestones are simple embellishments. They are found in inexpensive jewelry, on clothing and shoes, in craft kits, used in scrapbooking, are decorations on kids’ pageant and athletic costumes, adorn hair bows and barrettes, etc. They are bling.
• Rhinestones have no history of causing lead poisoning.
• Rhinestones are even okay to sell under the obnoxious Proposition 65.

Chairman Tenenbaum has conceded in writing that the stones are not dangerous: “Commission staff recognized that most crystal and glass beads do not appear to pose a serious health risk to children . . . .” Of course, CPSC Staff are just scientists and Ph.D.’s, not lawyers writing important laws.

Unfortunately, Tenenbaum recanted her stance in Congressional testimony on September 10, 2009. On September 17, I wrote a letter to Chairman Tenenbaum about her rhinestone testimony . . . but never received a reply. The letter asks her to back up her assertion in testimony that swallowing rhinestones presents a lead poisoning risk. This is an unsupportable contention and perhaps this is why my letter was never accorded a response. In particular, I made the following point about the literal “danger” of rhinestones:

“[T]he Exponent study submitted [by the FJTA] 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.” [Emphasis added]

As noted, Tenenbaum never answered this letter.

[See also my posts of July 21, July 21 (no. 2), September 10 and September 12.]

Of course, the natural ally of the Dems, the consumer groups, bang the drum mindlessly for banning rhinestones, too. In my September 20 post, I recounted the attack of Nancy Cowles on the rhinestones “menace”. Here is Ms. Cowles’ suggestion for those who value their bling:

“In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. ‘People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,’ Cowles said.”

It’s okay, they just want to protect you.

At this point, I have to ask – what on Earth happened to our country? How did we get to this point? I can’t say for myself, I don’t know how this kind of stridency and absence of BASIC common sense took over our nation. Politics no longer makes sense to me. In today’s New York Times, Senator Evan Byah blasts this theme as he explains why he is dropping out of the Senate after 12 years. It’s a depressing read.

More depressing still is how the Democrats are making such a mess of things and disillusioning so many people, myself certainly included. In yesterday’s Barron’s Magazine, the Dems’ ability to actually govern is questioned. That’s a “wow”. This small article details how Senator Max Baucus’ jobs bill (written in response to President Obama’s call for more economic stimulus), was gutted by Senate Majority Leader Harry Reid for “speedy” passage:

“So Reid selected four provisions that he believes all Senate Democrats and Republicans can agree on: tax breaks for small-business investment; more money for highway construction; expansion of the Build America Bond program, and a payroll-tax exemption for employers hiring someone who’s been jobless for at least 60 days. Speaker of the House Nancy Pelosi is openly opposing the payroll-tax exemption, a stance which has fiscally conservative Democrats near despair. ‘Democrats are in danger of demonstrating they cannot govern on the most basic level,’ a progressive Democratic party leader said last week.”

That’s right – the Dems are failing at the most basic level. The CPSIA saga and the politics/populism infecting CPSC leadership and policy these days are part and parcel of the same phenomenon. Rhinestones are this week’s victim. Who is next in line – you?

When are you going to say “ENOUGH”?!

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CPSIA – Why Do Dems Want to Ban Rhinestones?

CPSIA – What Constitutes "Safe"?

One of the tragedies of the CPSIA melodrama is that the consumer groups have completely hijacked the concept of safety, turning it utterly away from concepts of risk assessment. To what, you say? Away from management of identifiable risks to avoidance/elimination of perceived risks. In other words, Congress and our regulators now ignore the data on risk and focus instead on the possibility of risk. The POSSIBILITY of injury, not the actuality of injury.

How much of a difference is this? Pretty big, to judge by the frenzy over cadmium in jewelry. Seven Senators have sponsored a bill called the Safe Kids’ Jewelry Act. This law would ban the use of cadmium in kids’ jewelry. Is this “good”? I am not sure how to answer that. To my knowledge, no one has identified a single injury from cadmium in children’s jewelry. It is undeniable that cadmium is a bad element and has the potential to harm. Ergo, jewelry with cadmium is “bad”? I can imagine circumstances where cadmium in jewelry might hurt a child. Then again, if it were so dangerous, where are all the victims?

If this is going to be the new standard, whether a product MIGHT harm someone, I think we are cooked. Assuming that “prevention of possible injury” is to be used as the standard to evaluate products or components of products, let me ask a few questions to see if I understand the “new rules of the road”:

• How certain must the prospect of injury be?
• How specific must the circumstances of the prospective injury be?
• Are we talking about probable injury (more than 50%) or possible injury (odds greater than 0%)? How are those odds to be measured – by unit sold, by contact, by owner, by year, by lifetime use? What’s “reasonable”? [Does anyone care what's reasonable?]
• Are all things that could possibly injure a child now illegal on the same basis?
• If the answer is yes, when will all those other products be banned and/or recalled? Is equity in the treatment of all products “important”?
• If the answer is no, then where do we draw the line?
• How relevant is it that no injuries have been reported?
• How many incidents are required before we declare a product or substance illegal or recalled? How many newspaper articles, editorials or CEH lawsuits are required?
• What responsibility do we have to be consistent in the administration of these rules?

Consistency, that’s important, don’t you think? If cadmium is now tacitly illegal because it might harm a child, do we have to make everything with the possibility of injury to children illegal?

Presumably, since no injuries to children from cadmium has been reported and the Washington Post confirms that doctors do not perceive cadmium as a serious risk (perhaps because it was not prevalent in house paint or in gasoline, hmmm), then anything with the same level of prospective risk would be illegal. That’s more or less everything from water to chicken bones to lead to ruthenium. [Pardon me, ruthenium, one of the world's most expensive and dangerous elements, is a-okay to include in children's products.] Why then aren’t we closing swimming pools which cause more than 250 deaths each year? What about water – you can drown in two inches of water. No more showers?

Is there something special about cadmium, besides that it has appeared in an Associated Press article?

The mania over the prevention of possible injury has turned the business environment into a feeding frenzy that will drive the business community down, down, down. Is that in anyone’s interest? Will we all be safer if we have nothing to buy?

Please consider that the House Energy and Commerce Committee has today weighed in on the Toyota recall. Yes, the same Henry Waxman who is torturing our industry has now turned his talons and sharp teeth on Toyota. Toyota enjoys one of the finest reputations for quality and service in the world. It is renowned as a business leader – and proactively took strong medicine in its gas pedal recall. This is not enough for the venomous Democrats who hate businesses. They need to dig deeper and perhaps damage Toyota enough to help GM and Chrysler, owned by the U.S. government and unions. Bringing the great low, that’s the new American way of the Democrats. It makes me SICK.

I want to close with a note about cows – did you know that cows are killers, too? Yes, they are – the New York Times reports:

“The image of cows as placid, gentle creatures is a city slicker’s fantasy, judging from an article, published on Friday by the Centers for Disease Control and Prevention, reporting that about 20 people a year are killed by cows in the United States. In some cases, the cows actually attack humans — ramming them, knocking them down, goring them, trampling them and kicking them in the head — resulting in fatal injuries to the head and chest.”

COWS kill 20 people a year, cadmium has apparently killed ZERO. We are running pell-mell to ban cadmium from jewelry because a misguided newspaper article fueled panic. Are cows next? Should they be? If cadmium jewelry goes away and cows stay unregulated, will respect for our laws remain?

Respect for Congress, that’s another thing.

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CPSIA – What Constitutes "Safe"?

CPSIA – Massachusetts Speaks . . . Will Congress and the CPSC Listen???

On Saturday, the Washington Post published a poll indicating that three-quarters of Massachusetts voters wanted newly-elected Senator Scott Brown to work with Democrats to get Republican ideas into legislation in general. This note was picked up on Face The Nation yesterday, leading to very strong words from host Bob Schieffer:

“My own take is the vote for Brown was not so much a vote for or against policy or party, as it was a vote against the process itself. People don’t like the political games, and they’ve lost confidence in a bumbling bureaucracy that since Katrina can’t seem to get out of its own way. Why trust the government with a complicated health care proposal, when it can’t catch a terrorist whose own father tried to turn him in? It will take the perseverance of Job and a lot of political courage, but if the two sides could somehow pay less attention to the voices on the fringes of the left and the right, take the Massachusetts voters’ advice, and sit down together to see what they could agree on, who knows? They might get something done! They couldn’t do worse. They might even like it – and I don’t need a poll to tell me the rest of us surely would.” [Emphasis added]

Hmmm, Mr. Schieffer has a point. I hope that Congress and others are not so myopic to believe that this message is just about health care. The daily stress event of reading the front page of the paper confirms that vitriol is the new drink of choice for the Obama Administration. The CPSIA saga is another one of those acidic partisan divisions that led to voter revolt. It’s time to recognize that the process is a big part of the problem here.

The Brown election can be seen as a direct rebuke to the CPSIA process but the risk remains that the point might be missed by You Know Who, the CPSC Commission and other parties at interest. There is little sign of any contemplation on this point yet. The stridency is still there. For instance, BNA reported that some consumer advocates were jolly satisfied with the secrecy of the process to prepare last week’s report to Congress: “Rachel Weintraub, director of product safety and senior counsel at Consumer Federation of America (CFA), told BNA Jan. 7 that a public meeting is not necessary since the recommendations were made public once they were submitted.” I guess sunshine doesn’t work for consumer advocates all the time, especially if it might weaken their powerful grip on the CPSIA.

If the parties supporting the CPSIA have no room to compromise on anything and will twist into any pretzel-like shape to prop it up, we’re not going to get anywhere . . . and the anger of the voters will mount. The message from Massachusetts was loud and clear – to those that aren’t deaf.

Now we will see who was listening.

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CPSIA – Massachusetts Speaks . . . Will Congress and the CPSC Listen???

CPSIA – Commission Report to Congress on CPSIA Changes

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

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

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

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

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

Too bad for Henry, huh?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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CPSIA – Commission Report to Congress on CPSIA Changes

CPSIA – The Eyes Glaze Over . . . .

Sometimes I wonder if they have completely lost it at the CPSC. This evening we received the CPSC Federal Register notice on the Stay decision (actually entitled “Consumer Product Safety Act: Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements”). I seriously wonder if anyone read it over in Bethesda. I have NEVER seen anything this dense and unintelligible come out of that office.

As the Commission tucks itself into bed before an exciting day tomorrow in which it can either decently provide enough time for an orderly implementation of this mess of a law or send small businesses down the river, I hope somebody is thinking about the complexity of what they have wrought. Of course, rules always seem more complex when they apply to you than when they apply to someone else. Still, perhaps a quick scan of this document might enlighten the Democrat Commissioners who seem particularly dense on the subject of why businesses want more clarity before the rules go “hard”.

I uncovered this while on a mission from a reader of this space. I had been alerted to the possibility that this document said that the lead content stay was LIFTED. This could not be true, since a ballot vote is definitely docketed for tomorrow on this subject. Even at a Waxman-dominated CPSC, it would be rather ballsy to issue a notice announcing a decision before the vote was tallied. With three Democrats “highly sympathetic” and “seriously considering” the opposing views but by all appearances having irretrievably made up their minds, it is not hard to imagine that skipping a step might have a certain appeal. Why bother waiting for the Republicans to lose (again)???

Well, incredibly, my reader was RIGHT – the document states that the date for the lead content rules to become effective is August 10, 2010, a “date certain”:

“With regard to lead content, the Commission has determined that testing of children’s products for lead content by a third party conformity assessment body and certification based upon that testing should begin on products manufactured after August 10, 2010 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term ‘children’s product.’ An interpretative rule on the meaning of the term ‘children’s product’ would provide firms with additional guidance on when testing for lead content will be required by the Commission.”

Apparently, no one updated this FR notice for this morning’s motion to docket this decision for ballot vote tomorrow. Oops!

Remember the part in the hearing today where they discussed market disruptions and the need for businesses to have time to absorb and adjust to the new rules? Does anyone wonder why we have confusion in the market after you read this document? Please be honest. Myself, I experience shortness of breath when I read dense prose like this. I think the works of David Hume seem more accessible than this kind of thing – so why does the Commission delude itself that anyone undersands the mountains of rules and rulings it spews out? Market confusion is all but certain when implementation is handled this insensitively.

One reason is that some Commissioners hear what they want to hear, and ignore the rest. This is called “selective hearing”; I know all about this topic, as there is at least one person who lives in my house who has been regularly accused of this malady. [No names, please.] For instance, yours truly pointed out serious errors in the presentations by CPSC professional staff during last week’s workshop as well as in the preceding December 2 hearing to a Commission staffer. I don’t blame the CPSC staff nor do I consider these errors to mean much . . . other than the fact that the CPSC staff is supposed to know these rules better than anyone else, and if they make errors (understandable), what do they honestly expect of the regulated community??? If we make these errors, we get whacked with high fines or possibly, if the CPSC is riled up enough, go to the pokey. Isn’t the occurrence of serious errors by CPSC staff an indication of over-complexity? This was all known to the Commission before today’s hearing. Get this – the Emperor has no clothes.

Still not convinced? Try this passage on for size, and then TRY to imagine running a normal business catering to children and in your spare time attempting to comply with this law. Imagine trying to master this law as implemented by the CPSC, given that you are not a lawyer, can’t afford a lawyer or a legal department, and don’t have a few unoccupied months to study the mountains of paper the CPSC emits. It’s something you have to do in between everything else you do in your job. And the CPSC says:

“In the months after the Commission issued the stay of enforcement, the regulatory environment has changed significantly [No problemo!], and both the CPSC and interested parties have increased their understanding of the CPSIA and its requirements. [Yes, bring it, baby!] For example, between February 9, 2009 and the date of publication of this notice, the Commission issued more than 20 FEDERAL REGISTER notices, statements of policy, guidance documents, proposed rules, interim final rules, and final rules pertaining to the CPSIA, and most of these documents pertained to testing and certification issues. [This is not a joke. I didn't write this part, either.] These FEDERAL REGISTER documents include:

• “Third Party Testing for Certain Children’s Products; Notice of Requirements for the Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with the Limits on Total Lead in Children’s Products,” 74 FR 55820 (October 29, 2009);
• “Notice of Availability of a Statement of Policy: Testing and Certification of Lead Content in Children’s Products,” 74 FR 55820 (October 29, 2009);
• Proposed Rule on “Safety Standard for Infant Walkers,” 74 FR 45704 (September 3, 2009);
• Proposed Rule on “Safety Standard for Bath Seats,” 74 FR 45719 (September 3, 2009);
• “Third Party Testing for Certain Children’s Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with Parts 1203,1510,1512, and/or 1513 and Section 1500.86(a)(7) and/or (a)(8) of Title 16, Code of Federal Regulations,” 74 FR 45428 (September 2,2009);
• Final Rule on “Children’s Products Containing Lead; Determinations Regarding Lead Content Limits on Certain Materials or Products,” 74 FR 43031 (Aug. 26, 2009);
• “Notice of Availability of a Statement of Policy: Testing of Component Parts With Respect to Section 108 of the Consumer Product Safety Improvement Act,” 74 FR 41400 (August 17,2009);
• Final Rule on “Children’s Products Containing Lead; Interpretative Rule on Inaccessible Component Parts,” 74 FR 39535 (August 7, 2009);
• Proposed Rule on Requirements for Consumer Registration of Durable Infant or Toddler Products, 74 FR 30983 (June 29, 2009);
• Final Rule on “Children’s Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination of Exclusion,” 74 FR 10475 (Mar. 11,2009);
• Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information, 74 FR 8058 (Feb. 23, 2009); and
• Interim Final Rule on “Children’s Products Containing Lead; Exemptions for Certain Electronic Devices; Interim Final Rule,” 74 FR 6990 (Feb. 12, 2009).

Additionally, the Commission has met with numerous parties to discuss various aspects of the CPSIA or educate interested parties about the CPSIA’s requirements, and, on December 10, and 11, 2009, it held a two-day workshop to discuss issues relating to the testing, certification, and labeling of certain consumer products pursuant to section 14 of the CPSA (see 74 FR 58611 (November 13, 2009). [You know, the one last Thursday and Friday with simultaneous panels going on all day on both days. There has been no time to review or consider the data gathered at the workshop, or the written comments which will continue to come in for the next 25 days.] Given the issuance of many rules and other FEDERAL REGISTER documents, statements of policy, and guidance documents [OMG, there were other documents besides these?!], as well as increased understanding of the CPSIA’s requirements, the Commission believes it is appropriate to phase in the testing and certification requirements as described in more detail below.” [This passage is followed by pages of details of stays lifted, extended, partially extended, whathaveyou. It also includes the errant language on the lead content stay.]

I find myself scratching my head in wonder. What is going on here? Is this being staged for effect, or are they SERIOUSLY trying to regulate this way? Is ANYONE accountable over at the CPSC? Can they get away with anything and everything?

It is sickening that a discussion is even necessary for the extension of the stay on lead content. The Commission should hang its head in shame for foisting this mess off on an innocent manufacturing community. What on earth did we do to deserve this treatment? I am tired of this Commission bowing down to Henry Waxman and a howling pack of fear mongering consumer groups. Those people have never worked for actual operating companies and know nothing about the realities of the marketplace or manufacturing itself. It’s time to stop sticking it to the manufacturing community.

The WSJ noted tonight that Congress and Mr. Obama have hit new lows in popularity. I particularly found interesting that 81% of the participants in the new poll considered this “a period of division where the parties held fast to their positions and showed little willingness to compromise” in Congress. Do we really want this export at the CPSC? As a member of the regulated community, I vote no!

Tomorrow’s vote is going to tell us all a lot about this Commission and its leadership. Watch this space for news.

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CPSIA – The Eyes Glaze Over . . . .

CPSIA – Commission Delays Vote on Lead Content Stay for One Day

In this morning’s hearing on extending the testing and certification stay (the “Stay”), the Commission opted to carve-out lead content from the Stay. The decision on how to handle lead content under the Stay is docketed for a ballot vote tomorrow. [Just to clarify, other aspects of the Stay were extended today including situations where the rules and certifications have not been completed, such as ASTM F963 and phthalates.]

Frankly, the demise of the Waxman CPSIA amendment throws a HUGE curve ball at the Commission. Now that Waxman’s fractious process derailed his attempt to “fix” the CPSIA, however ham-handed that attempt may have been, it seems that change is in the air. Will the Commission plunge on ahead with its big decision as though nothing has changed? Your guess is as good as mine. Unfortunately, things are happening so fast that events are literally overlapping – the news about the dead amendment came as the CPSC was completing its morning hearing. It seems to me that the Commission must now take even more time to carefully consider its next steps – this historic opportunity to force common sense change should not be squandered.

It seems equally important that the Commission reject partisanship and pull together, even if it takes more time and more debating (off-line and in the public eye). The poisoned partisan atmosphere of Waxman’s House Energy and Commerce Committee sadly seems to have migrated to the CPSC Commission. In today’s hearing, Commissioner Northup called for more effort by the Commission to reach 5-0 votes. What a timely call THAT was! The failure of the Waxman amendment can be interpreted as Congressional rejection of partisan control of safety by the Democrats alone. Over the course of the past year, partisan hubris led to extremism, culminating in a small number of Democrats co-opting the law as self-appointed defenders of the “will of Congress”. Safety belongs to everyone – it’s not political. The call to action now is for the Commission to act as one. Whatever damage the Waxman fiasco caused to working relationships needs to be rapidly repaired through the individual leadership of the Chairman and the other Commissioners.

The Commission has balloted Anne Northup’s motion to delay lifting the Stay on lead content until six months after the issuance of the so-called “15 Month Rule”. This proposal, acknowledged by Inez Tenenbaum to be based on “common sense”, is not likely to be adopted without a gentle shove. Ms. Tenenbaum herself stated that manufacturers had asked for a “date certain” when the Stay would be lifted. [One can only hope that she was confusing a reasonable request for certainty, as in knowing what the rules are and when they will be imposed, with a request for a deadline. I cannot imagine who would demand a compliance deadline from the CPSC without knowing what the rules actually are, and if such a (neurotic) person exists, I would like to speak to him/her to better understand WHY they think this would be helpful.]

Even more worrisome, Commissioner Bob Adler contended that “Congress” wanted to be sure that everyone is in compliance with the law. [This personification of Congress is very troubling, especially since the Waxman fiasco makes clear that the original CPSIA votes no longer reflect the will of Congress today - or else how was an amendment by the powerful Henry Waxman stopped? This kind of thinking needs to be revisited.] Mr. Adler further asserted that based on feedback from small manufacturers, the most serious concern today is component testing which will be addressed by the CPSC’s new interim enforcement policy. Adler was rather dismissive of the market impact of the 15 Month Rule beyond component testing and he even asserted that the VAST MAJORITY of manufacturers would be “just fine” with lifting the Stay today if they got effective protection for component testing. I question Mr. Adler’s research on this point.

The lines are drawn for tomorrow’s fight. Mr. Adler has stated a preference for a date certain of August 14, 2010 for full implementation of the testing and certification rules. Ms. Tenenbaum says she would vote to extend the Stay again if the 15 Month Rule is not completed by August 14, thereby signalling her approval of Mr. Adler’s formulation. [Market chaos be damned?] Mr. Moore generally follows the party line so you can count him in, too. If the Dems don’t move off these positions by tomorrow, we are looking at a date certain of August 14 for lifting the Stay on lead content. This would sadly be more of the same. [Makes you wonder why we all took two days out of our lives to go to the CPSC to give comments at last week's 15 Month Rule workshop, or even more bizarre, why the CPSC called for comment letters on the 15 Month Rule by January 11 - if the Commission is seriously thinking of voting tomorrow to lift the Stay without considering ANY of this input. So - which process is a sham, the workshops and the comment letters, tomorrow's vote, neither . . . or both?]

The problem with the August 14 “date certain” proposal is that the following matters have not been resolved:

• Testing frequency
• Component testing
• Re-testing requirements
• Sampling requirements
• ASTM F963
• Lab certifications

It was noted in today’s hearing that only EIGHT certified laboratories have been approved for lead content in children’s non-metal products, three on the West Coast and the rest overseas. Here’s the list:

1. Bureau Veritas (three China lab locations)
2. CTC Group
3. Intertek (two China lab locations)
4. Istituto Italiano Sicurezza Dei Giocattoli S.r.l.
5. MSR Laboratories, LLC
6. SGS (one China lab, one U.S. lab, one India lab location)
7. Specialized Technology Resources Ltd. (one China lab location)
8. Union Technology Research & Service Center

For perspective, consider these long lists of locations for three leading labs: SGS (worldwide), Intertek (China list only) and Bureau Veritas (China list only). That’s just the tip of the iceberg of the testing market (admittedly not all of these labs focus on or serve the children’s product industry). One lab we use, not on the above list, reportedly can’t seem to get someone from the CPSC to visit them to certify them for lead content testing. It’s understandable – the effort to process all these (pointless) certifications is taking a lot of the agency’s resources and time. The CPSC is just not ready to manage this enormous bureaucracy even 16 months after passage of the law. Eight labs to serve the worldwide children’s product industry for access to the U.S. market by August 14 – that’s a BAAAD joke.

With the Waxman amendment behind us, the Commission has a great chance here to focus its efforts in the right direction. The recent Omnibus Appropriations Bill (H.R. 3288) contains these instructions: “The CPSC is directed to assess enforcement efforts of [CPSIA] section 101(a), including difficulties encountered, as well as recommendations for improvement to the statute, and to report to the House and Senate Appropriations Committees, as well as the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee, no later than January 15, 2010.” This report should be the focus for the Commission at this time. The Stay is secondary to this historic opportunity, and as such the Commission should not get caught up in the moment. MANY legitimate concerns have been raised by manufacturers relating to the lead content aspects of the Stay. We are not all guilty until proven innocent – why can’t these valid doubts justify taking the time to “do this right” (as Ms. Tenenbaum called for in a November hearing)?

With change in the air, the Commission needs to seize the moment and lead us out of the wilderness by calling for a technical amendment to the law. The January 15 information request is the golden opportunity. The agency should not simply respond with something designed to please Henry Waxman – that would fumble the ball. Instead, the agency must offer up suggestions designed to meet the will of Congress expressed this week – namely, a proposal to fix the flaws in the CPSIA while providing reasonable protection to children.

It’s time to do the hard work. I am ready to help – are you?

Read more here:
CPSIA – Commission Delays Vote on Lead Content Stay for One Day

CPSIA – Still Steaming Over Mr. Waxman and His Unilateral CPSIA Amendment

I am still trying to unpack what happened late Friday when the Waxman amendment to the CPSIA leaked out. Since the news is so fresh and so few of the actors have come forward to account for themselves, let’s be conservative and analyze only the most positive possible scenario:

• Mr. Waxman now accepts that some aspects of the CPSIA need to be fixed.
• Mr. Waxman now accepts that the CPSC cannot fix the law through rulemaking alone.
• Mr. Waxman is being a “good guy” and showing his “good faith” by allowing a change to the law.
• Ms. Tenenbaum believed that something is better than nothing and made a practical judgment to support the Waxman amendment as a step in the right direction.
• Ms. Tenenbaum concluded that fighting with Ms. Waxman might worsen the situation for the agency and for the victims of the law.
• Ms. Tenenbaum thought that getting an amendment now might open the door to more amendments later.
• Ms. Tenenbaum thought the Commission could use this “loophole” to ease pressure on at least some victims of the law.
• None of this affects the good vibrations that emerged in recent weeks with the CPSC who has noticeably softened its rhetoric and reached out to the regulated community to find amicable solutions to the perplexing issues caused by the CPSIA.

I think that’s about as sympathetic a portrayal as I can paint of the Waxman amendment and the way it was generated. With that sunny scenario in mind, how would I now interpret the events?

1. Waxman is in control, and will not relent. Both minority members of Congress and minority Commissioners have been largely disenfranchised for the future of this law. His need for control made impossible redress of the many other issues documented by the likes of resale shops, education companies and apparel-makers.
2. Waxman will dictate precisely the speed and dimension of fixes to the CPSIA. The pain and disruption in the market does not influence him. As the terms of the original law indicate, he does not regard economics as a factor in setting safety policy. [An economist would characterize this outlook as irrational.] Political pressure does influence him, hence the meager effort to appease the ATV and publishing industries. This amendment is consistent with the longstanding position of his staff – so there is little to indicate further flexibility. If you believe the “one bite at the apple” crowd, this is grim news and contradicts the concept above that one amendment might lead to other amendments.
3. Waxman has no intention to publicly debate the issues under the law. Likewise, he has no intention of possibly losing control of the discussion or the message. Given his stated interest in reforming the Toxic Substances Control Act, it remains critical to portray the CPSIA as a success and as an advance in regulatory “theory”. The Waxman amendment makes clear that the legitimate concerns of the regulated community are taking a permanent back seat to a political agenda set by consumer groups and the California contingent. Again, not good for us. . . .
4. The CPSIA is now clearly the Democrats’ law. Republicans have been exiled from the safety debate. It is shocking that party lines now define the children’s product safety debate since injuring children is not a political issue. Yet, any notion of bipartisanship has been crushed.
5. Whether for political gain, sympathy with the original design of the legislation or for practical reasons, the Democrats on the Commission have fallen in line with the Waxmanites. The teamwork on this amendment makes them appear to be allies. If this means that the Waxman views on implementation will also hold sway, it forecasts grim developments ahead for regulated companies.
6. The appearance of appeasement or even complicity by Ms. Tenenbaum is inescapable. Even in the friendliest interpretation of events, Tenenbaum comes out as a weak defender of the legitimate interests and concerns of the regulated community. And “common sense” seems forgotten. What kind of partner does that make her? Do her statements on consulting with stakeholders and open dialogue seem somehow self-serving now? Right now, it is very hard to know when or whether she will toss regulated companies overboard. This makes partnership with her difficult because you must give to get . . . now that the “get” is in doubt, how can the regulated community become comfortable with the “give”? I also think it’s reasonable to ask why Ms. Tenenbaum allowed this provision to be negotiated in the dead of night. That’s not how a partner behaves.
7. There is a BIG issue of trust within the Commission here. The very public way in which the Republican Commissioners received notice of their irrelevance will cause lasting injury to relationships. It is hard to see collegiality restored quickly on the Commission after this betrayal. Of course, I can’t help but recall the mantra repeated by many pro-CPSIA advocates – that the CPSC needs a five-person Commission. Doesn’t the amendment “process” expose this as a joke? If Tenenbaum and Waxman are going to ignore the Republicans, was Congress really saying that the CPSC desperately needed three Democrats in a majority position? Gosh, I think the Republicans that voted for the law might take issue with this . . . .
8. The inclusion of lead labeling for excluded items confirms the zealotry of the Waxmanites, the impotence of the resistance movement and the persistent disregard for the needs of innocent victims of this law. Of course, difficult-to-obtain exclusions are quite anti-small business, as are the lead labels. The labeling is even more incredible if you take into account that exclusions will only be granted in circumstances where the inclusion of lead will have virtually no conceivable health impact. So if the Chairman would sell us down the river with a useless and extraordinarily-limited amendment without addressing ANY of the other pressing issues or demanding the right of the Commission to assess risk, then what else can we reasonably expect from here on out?

That’s the $64,000 question, isn’t it? Frankly, this amendment and the behind-closed-doors process which excluded all corporate stakeholders and many political stakeholders, sharply erodes trust in all directions. Doing this behind everyone’s backs – during a two-day workshop purportedly designed to solicit stakeholder feedback and get everyone on the same page – seems remarkably disingenuous. You can safely assume many recent conversations in retrospect seem less than candid or straightforward.

To work out the difficulties with this law, leadership on the Commission (Democrats) and in Congress (Democrats) need to come to grips with the fact that the law is incredibly misconceived and destructive. The dream that the Precautionary Principle actually works to anyone’s benefit has been debunked. To cram down this noxious law despite the legitimate concerns of the regulated community will NOT snuff out opposition – but instead will inflame it. The problems won’t go away, and cannot be buried. The issues will fester and rot until addressed.

If the issues marbling the law are allowed to linger long enough, the Democrats can ensure lasting damage to the agency and market catastrophe. I will repeat myself: there is a legacy issue for Tenenbaum and the Dems – and having jettisoned the Republicans, it’s all theirs now. The CPSC can be rendered ineffective and wholly bureaucratic, with all the attendant damage that entails, or it can be restored to glory. The choice is theirs and the stakes are high. Interestingly, the regulated community will support an effort to restore effectiveness at the agency, but that will necessarily involved restoration of risk assessment and political independence at the agency. Hard to see Waxman going along with that.

Do we have the leaders for this effort on the Commission? Time will tell. Like everyone else, they will be judged by their results. You and I are along for the ride, whether we like it or not.

Read more here:
CPSIA – Still Steaming Over Mr. Waxman and His Unilateral CPSIA Amendment

CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

Read more here:
CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?