CPSIA – Certainty, CPSIA-style

These days, you can count on the CPSC to hold against regulated companies, particularly in response to media inquiries. Facts are a secondary consideration. The WORST thing that could happen to you or your product is if a reporter calls the CPSC. You’re cooked – safety administration these days is some sort of reality show, and everything’s dangerous if a reporter is sniffing around.

And three years later, they’ll hit you with a big penalty.

This week’s crisis is the “discovery” by the Associated Press that some enamels used on glassware (the outside) have lead or cadmium bound in. The recall fo 12 million acknowledged safe Shrek glasses was the first indicator that we faced a “crisis”.

Heavy metal use in glassware enamel is not exactly big news, nor a particular cause for concern (except for enterprising and paranoid reporters). Consider for example that our ever-wise Congress EXEMPTED these coatings years ago from lead regulation (“[The lead paint ban] does not include printing inks or those materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing.” 16 CFR 1303.2(b)(1)). [You may also be interested to see all the other exemptions to the lead paint ban, in 16 CFR 1303.3.]

When confronted with the “shocking” news that other coated glasses besides Shrek had lead or cadmium in the enamels, the CPSC withered. They caved, and labeled these glasses (all very likely safe but featuring Super Hero images and the like) as “Children’s Products”. Here’s a video of the reporter enjoying his 15 minutes of fame playing off the Shrek scare. He concedes that even HE thinks the risk is “low”. No matter, it’s good to stir up the mud. AP needs all the coverage it can get these days.

I am so happy we are being ruled by junk scientists now.

And the CPSC’s determination that these products are “Children’s Products” means they are subject to CPSIA regulation. This empowers the agency to recall them “out of an abundance of caution” and to impose penalties for failures to comply with the myriad rules of the CPSIA. No matter that this classification was hardly clear previously. Hmmm. Let’s see how the mishmash interpretative rule on “Children’s Products” makes this determination “clear”.

I say “mishmash” because I defy you to figure this out for yourself by reading all the pages they threw at us. In fact, the latest “interpretation” in the so-called Final Rule does NOT seem to override the interpretive dicta in the prior version. It merely comments on the public comments that the agency by-and-large utterly ignored. The CPSC never bothers to reissue or conform past rules or interpretations. That’s a job for us hobbyists.

In any event, it so happens that I addressed this very issue in my comment letter on the rule. The following section comes from the never-overwritten text accompanying the prior version of the rule. Consider this advice given to industry:

“The more of these types of characteristics that a product has, the greater the likelihood that the product is a children’s product. For example, a pen which is decorated or whose advertising and marketing features themes that correspond to obvious children’s interests, e.g., preschool characters, will greatly influence the purchase for preschool children. However, there also are ‘novelty’ pens that could appeal to children 12 years of age or younger as well as older children and adults; such novelty pens would not be considered to be primarily intended for children. For example, a simple ball point stick pen bearing an elementary school’s name, without any other decorations, would likely appeal to anyone (i.e. students, teachers, parents) connected with the school. A pen with a silly head on the top, not associated with any particular mass media (and not sold in toy stores), may have just as much appeal to adults as it would to children. Pens with puzzle features that allow the user to take them apart and reconfigure the design also are likely to appeal to children and adults alike, and thus, are not likely to be considered children’s products because they are not primarily intended for children.”

Clear as mud.

Remember, we in industry must interpret this gobbledygook and run our businesses. Perhaps even more difficult is to use “rules” like this in agreement with your dealers. Basically, since the rules make no sense, it is not possible to agree with many or sometimes ANY of your customers. Welcome to my world.

It is extremely unfortunate that in the wake of conceding the safety of the Shrek glassware, and even worse, in the face of explicit exemptions of glazings in the FHSA, the CPSC would proceed to declare these items within the scope of its regulations, thus exposing yet another group of innocent companies to huge unexpected and unjustified losses. Brands will be further damaged, consumer confidence dented, and no doubt, sales of children’s products will be bruised in the prime selling season. Good going, government!

This agency seems downright dense about the impact of its activities. For myself, this act proves that the CPSC cannot be trusted, has lost any sense of what constitutes safe or unsafe, and is dangerously reactive (especially in response to members of Congress and members of the press). For regulated companies, this is the worst of times – we face a looney regulator who is absolutely devoid of self-discipline or judgment. They administer a kind of “hang-’em-high” justice. If you are ever in the gray area with the CPSC, you can count on them to push you over the edge. Their rationale – you have to err on the side of safety even if you have no reasonable basis to suspect that any safety issues existed.

Okay, I get it. But when the regulator has no idea where “safety” is, erring on the side of safety means pleasing reporters who are trying to sell papers. Reporters sell fear – that’s the only way to sell papers these days. Connect the dots – random losses are coming to all of us.

Selling children’s products is for crazy people. I cannot believe the damage being inflicted by these people.

The database gets approved tomorrow. Enjoy the ride!

Read more here:
CPSIA – Certainty, CPSIA-style

CPSIA – CPSC Calls for Comments on 100 PPM Lead Limit

738 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are 73 days left until Election Day.


The CPSC recently called for comments on the CPSIA’s scheduled reduction in permitted lead limits to 100 ppm on August 14, 2011. This is one of the most disruptive provisions of a truly disruptive law and therefore this call for comments DESERVES YOUR ATTENTION.

Let’s review the situation – the CPSIA requires that the lead limit be lowered to 100 ppm if it is “technologically feasible” (Section 101(a)). This determination can be made product-by-product or even by product class. In other words, some of us might get a free pass because the CPSC decides it isn’t “technologically feasible” for them, but the rest of us might get screwed. Figure that the big guys with the money to put in comments prepared by highly-paid consultants have an advantage here. Big surprise . . . .

The definition of “technological feasibility” is found in Section 101(d) in the CPSIA.

“(d) TECHNOLOGICAL FEASIBILITY DEFINED.—For purposes of this section, a limit shall be deemed technologically feasible with regard to a product or product category if— (1) a product that complies with the limit is commercially available in the product category; (2) technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term; (3) industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or (4) alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.” [Emphasis added]

To help explain what “technological feasibility” means, I have coined this expression – “If Rolex can do it, you HAVE to do it.” Yes, that means that this term has been defined to focus solely on technological capability with an explicit and intentional omission of any economic considerations (how expensive it might be for you to lower your products to this level). A single example of a product produced within these extreme limits is apparently an insurmountable obstacle to an exemption under this provision. No matter that it is extremely expensive. The all-platinum ATV comes to mind.

The meaninglessness of this reduction from a health or safety standpoint is likewise legally irrelevant.

A quick scan of the Request for Comment shows that the CPSC intends to follow its earlier path of exempting materials that are ALWAYS under the 100 ppm limit. I have “criticized” the conclusions of the previous CPSC effort. Expect nothing less than the insights from the CPSC’s last try which authorizes the use of super-expensive materials and by-products of nuclear waste in children’s products. Anyone for an osmium-laced baby blanket?

You will also note that there is ZERO reference to economics in the Request for Comment. In other words, money factors are totally irrelevant. This might matter to you if you project that this requirement could lead to sudden and deadly losses in your business or otherwise hasten your departure from the children’s product market. Not that the Dems (who are driving this thing) or the CPSC give a darn about your little problems.

YOU NEED TO SEND IN COMMENTS ON THE 100 PPM LIMIT. Ideally, you will gather data and make a reasoned argument. PROTECT YOURSELF – this is an important request for comment. Comments are due on SEPTEMBER 27, 2010.

And one last note: despite your government’s current attitude, this remains YOUR country. Please consider how you feel about a law like this and its impact on your stakeholders (owners, employees, customers, suppliers, consumers, community). You don’t need to accept the fate Mr. Waxman and his merry band have in mind for you. There’s an Election Day coming. Don’t waste it.

Read more here:
CPSIA – CPSC Calls for Comments on 100 PPM Lead Limit

Countdown to Rally: April 1st is only 3 Days Away

It is Sunday morning in Chicago and the city is under a white cover of snow. Winter is still here!

With a few moments of quiet and peace to reflect upon what may happen over the next few days, my thoughts are focused on a sense of hope and determination.

I have hope that:

• the few Democratic leaders who are still refusing to allow an open debate will come to their senses;
• the stories we share are recognized as human testimony instead of individual cases. There are so many sad stories to share of those affected by the overreaching impact of the CPSIA.
• there will be renewed dialogue and cooperation as we find answers to the questions below:
  • Are these few leaders afraid to hear the truth? Are they afraid they may regain a sense of humanity?
  • Will they miss this unique opportunity to do the right and decent thing?
  • Will they have the courage of their convictions and participate in a true democratic debate?
  • Will they have the strength of character to listen to our collective testimony?
  • Will the White House stand by silently while all this is unfolding?
  • Are President Obama’s eloquent words of a new political leadership real or empty?

I am determined:

• to share the stories of so many that are being unnecessarily hurt by the unintended consequences of the CPSIA.
• to speak up for those who do not make the newspapers headlines, whose personal finances and potential bankruptcies do not attract the “bailout’ money of our government.
• to create a sense of urgency in order to give some relief to all these men and women who are hardworking and committed to their families and communities. Relief for people whose creative and entrepreneurial spirits should not be squashed.
• to educate the public across the country and within our respective industries enough that they denounce the absurdity of this law and the lack of democratic process associated with its implementation.

I pray that those who have the power to solve the situation do not stay away in the comfort of their “ivory towers” but pay attention to our voices and respond to our request for dialogue.

The sun is now shining in Chicago. Spring is on its way. It is time to teach our children an important life lesson.

It is time to plant the seeds of a better future for all.

Etienne