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CPSIA – House Hearings Questions about Rock Labels

Rep Butterfield questioned me about whether we REALLY needed to place labels on our rock kits indicating that our rocks might contain lead. As you may recall, I wrote about this last week and provided the clear explanation that the CPSIA bans the sale of any children’s product which has components that may contain lead. That includes rocks in rock kits. Oops. I have embedded the clip of his query below, followed by a clip where Rep. Cassidy (a medical doctor) attempts to clarify the situation further.

I think it is important to note that Mr. Butterfield was making a point he believed in. He was gracious to me and my children before the hearing and I don’t wish to question his intelligence here. I mean no insult or disrespect. Actually, the implication of his question is significant. He had days to study up on this question (he had a copy of my remarks in advance) and relied on Democratic counsel to the committee to analyze this legal point. He and his lawyers got it plainly wrong. As you will see below, Nancy Cowles also fumbled this same ball. The law CLEARLY requires this label of me, and it’s THEIR law (the CPSIA). So what do I conclude? The Dems and the safety zealots don’t understand the workings of the law they so vigorously defend. I believe this speaks directly to the challenge operating businesses face. If the authors don’t get it, how are we supposed to? The answer is self-evident.

The question of WHY they continue to push so hard for a law they don’t understand remains open. I don’t think we can assert that they are bad people or dumb. If that’s the case, and it is, what are they up to? I will chip away at this point in coming days.

Rep. Butterfield on rocks:

Rep. Cassidy on rocks:

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CPSIA – House Hearings Questions about Rock Labels

CPSIA – Canada Tries to "Out-Stupid" Us – Is that EVEN Possible?

When I went to Toronto one year ago to attend the international ICPHSO conference, I came away impressed with the sensibility of the Health Canada folks. They were grounded, they were calm and reflective, they seemed to understand that the CPSIA went too far and was not needed as the basis for Canadian law. I left with a sense of admiration and confidence in them.

And one year later – they are showing troubling signs of declining IQ points, a possible sign of lead poisoning! In a stunning turn of events, Canada apparently has decided to play one-upsmanship with the United States. Not satisfied at losing in the international arena of regulatory lunacy, Canada proceeded to tighten up our oh-so-loose CPSIA lead standards.

Editorial Pause Here – Someday I want to see governments everywhere refer to INJURY STATISTICS when they call for new laws to make people safer. To figure out if people are “unsafe”, one must certainly know if they are being injured . . . right? You’d really want to be able to measure that, wouldn’t you? Please tell me you understand this point . . . . Soooo, if one chooses to argue that we are harming children with “too much” lead in children’s products, isn’t incumbent on the accuser to demonstrate in some meaningful way that the harm we will spend zillions to “eliminate” actually exists, you know, at a bare minimum? Shouldn’t we demand a higher standard of justification than “it stands to reason”?

Back to Canada – Canada announced on November 29th “the most stringent rules in the world” on lead. The Canadians have decided that lead limits should be 90 ppm for toys and any product other than a kitchen utensil intended to come in contact with the mouth for children three years old and under. They will also join us at 90 ppm for lead-in-paint.

Please recall that the dirt in Mr. Obama’s backyard tested for lead at higher levels than 90 ppm. His DIRT. So now we know he won’t be able make toys or teething rings out of his dirt and sell those products in Canada. Finally, the menace is contained!

So why did they do this? “Health Canada says the new limits are needed because while reputable companies do their best to ensure lead has not been added intentionally to their products, companies can still run into trouble with quality control when importing huge volumes of goods in complex supply chains.”

Oh, I see – it’s the fault of darkest China! Good Canadians wouldn’t do this but those evil people in their complex supply chains – they can’t be trusted.

I would toss this off as some kind of joke other than the fact that this creates a massive business problem for us. And, of course, after the cynical and ignorant politicians get past congratulating themselves on saving the populace (from what?), there will be great mystery about what happened to variety of playthings in Canada or why educational products are much harder to find. What a mystery that will be!

As an American supplier of many Canadian school supply dealers and Canadian schools (we make Canada-specific educational products), I want to note that we have never had a single accusation of injury in Canada from any of our products since we were founded in 1984. I do not relish attempting to meet this asinine standard, lower than the loathsome U.S. standard of 100 ppm due to come into being in August for no particular reason other than to kill jobs. Will anyone feel sorry for me when we get our first test report showing lead levels of 93 ppm on a single part in an assembled toy? In other words, compliant with the U.S., but 3 parts-per-million above the arbitrary trace standards of Canada? Nah, it will be ours to savor – no one will care. We have to make children safe, safe, safe and who could put a price of the safety of our children?!

I don’t know how long we will sell products for kids under three in Canada if this law goes forward. Perhaps the Canadians figure the kids can start to be educated after three.

Maybe Canada really has a chance to out-stupid us if they keep this up. Bully for you, Canada! And I thought it couldn’t be done . . . .

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CPSIA – Canada Tries to "Out-Stupid" Us – Is that EVEN Possible?

CPSIA – CPSIA Casualty of the Week for April 9

The Alliance for Children’s Product Safety’s “CPSIA Casualty of the Week” highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring “common sense” to our nation’s product safety laws.

CPSIA Casualty of the Week for April 9, 2010

CPSIA EXPELS EDUCATIONAL PRODUCTS FROM SCHOOL

The approximately 1,500 businesses that comprise the National School Supply and Equipment Association (NSSEA) are dedicated to providing educational supplies, equipment and instructional materials to schools, parents, and teachers. This small industry serves a vitally important market – American schools – providing specialized products that form the backbone of the American educational system. Without the support of this small business-dominated industry, the needs of many American children would be left unmet, including children with disabilities and special learning needs.

The Consumer Product Safety Improvement Act (CPSIA) has had a negative effect on nearly every NSSEA member company, says a recent NSSEA survey of manufacturers/suppliers and dealers.

According to the findings, 64% of surveyed NSSEA suppliers, and almost half of the dealers (46%), have been negatively affected by CPSIA regulations. About 47% of dealers surveyed have removed items from inventory, and 40% of manufacturers have either removed items or discontinued production. Almost 80% have incurred additional testing costs. Unfortunately, all this expense and disruption has served no purpose – the CPSIA has imposed economic turmoil on an industry that has a great safety record. Recalled educational products have been responsible for a total of three reported injuries in the last ten years, one from an overheating battery compartment and two relating to a defective hinge on a changing table.

A NSSEA manufacturer wrote, “We have been forced to discontinue safe products because the testing costs have not justified keeping them in the line. This has had a very negative impact on our bottom line by destroying very good and safe product. Teachers who have been using these products for decades will not have access to them anymore. Going forward, we will not be able to develop niche products that are specific to education because the testing costs will not justify anything with low sales.”

“From delayed orders to confusion regarding the requirements, members have been left with eroding margin, increased labeling and testing expenses, and a decrease of education products available to the marketplace,” wrote NSSEA Vice President Adrienne Dayton in a recent association newsletter.

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CPSIA – CPSIA Casualty of the Week for April 9

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 – Educational Company Woes under the CPSIA

Michael Warring, President of American Educational Products, was quoted in the Nov/Dec issue of NSSEA Essentials in an article called “Realities of the Recession” as follows:

“The resources that we have to invest to comply with CPSIA are truly wasted. The human cost is incredible, never mind the waste of physical and cash resources. I anticipate that CPSIA will generate four to eight hours a year of work for every product that we sell – we will be measuring it in man-years. Existing regulations prior to CPSIA were adequate, and like many regulatory requirements, only needed adequate funding to be completely effective. The timing could not have been worse for our industry.”

. . . .

“As mentioned before, CPSIA has had a significant impact on our business. Every second is spent addressing our customers’ concerns, working with our suppliers to meet requirements. I personally have spent at least about 30 percent of my time this year (on CPSIA) in one form or another. As president of the company, I should be investing my energy (on other things).”

Mike, I feel your pain!

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CPSIA – Educational Company Woes under the CPSIA

CPSIA – CPSIA Casualty of the Week for November 16

The Alliance for Children’s Product Safety’s “CPSIA Casualty of the Week” highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

CPSIA Casualty of the Week for November 16:

“Pockets of Learning” Emptied by CPSIA
Special Needs Products Being Driven from Market By Testing Costs

Pockets of Learning is a Rhode Island-based company that for 20 years has designed, manufactured and sold unique heirloom-quality cloth toys and gifts, many of which offer skill-building experiences to children such as tying, matching, buttoning and counting. The company helps fill niche markets, including special needs, religious and independent retailers. Pockets of Learning has an impeccable safety record, and has never offered a product to the marketplace that had not been tested according to CPSC requirements.

On November 10, 2009, Pockets of Learning informed its customers that thanks to CPSIA, it will no longer sell its “How Do I Feel Today?” wall hanging, a bear-themed product sold for young children with special and emotional needs. The company told its customers that it “can no longer afford to manufacture and offer these products, due to the over 500% increase in safety testing cost…The annual volume of the product does not allow for the investment required to properly safety test under the new CPSIA guidelines.”

The loss of this item was made known to us by a leading distributor of therapy tools and other products for educational professionals and psychologists who had his order cancelled.

Pockets of Learning President Jack Grant told us in an e-mail that this product loss is only the “tip of the iceberg.” Due to the financial impact of CPSIA testing, Pockets of Learning is planning to reduce its product line from about 65 products to approximately 22 because of “the reality that CPSIA testing would typically add 30% or more to the cost of each item” made in small production runs.

Large multinational manufacturers who make high volume items can absorb higher testing costs imposed by CPSIA. But the thousands of small businesses across the country that fulfill specific, niche markets are the untold casualties of this law. Worse yet, kids in need are losing access to essential teaching materials. “How Do I Feel Today?”, indeed!

For more information, please contact Caitlin Andrews at (202) 828-7637 or e-mail caitlin.andrews@bgllp.com

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CPSIA – CPSIA Casualty of the Week for November 16