CPSIA – What Does the CPSC Know that the EPA Doesn’t?

At the recent 100 ppm hearing before the CPSC Commission, Nancy Nord asked presenters to submit regulations put out by other agencies restricting lead in our environment. She presumably wanted perspective on whether a reduction to 100 ppm lead-in-substrate content in children’s products would actually improve health or instead, simply further punish the fools who stubbornly remain in the children’s products market.

I submit here EPA regulations on permissible lead levels in play yards and residential dirt. Pleae note that lead in dirt is soluble, so it actually presents a health risk to children. In 2001, the EPA implemented a revised legal/regulatory architecture to protect children from lead-in-paint and lead in the environment. The regulations (40 CFR Part 745) are entitled “Lead; Identification of Dangerous Levels of Lead; Final Rule”.

I think this is an interesting rule because we sell sand and soil as part of children’s science kits. Hmmm. The CPSIA restricts lead content in everything we sell, even fossils and rocks, hence our well-known lead labels. Does the EPA permit something that the CPSC forbids?

Guess!

Consider what the EPA said about its new regulations:

“EPA is also promulgating amendments to the regulations for leadbased paint activities under the authority of TSCA section 402 (15 U.S.C. 2682) and to the State and Tribal program authorization requirements under authority of TSCA section 404 (15 U.S.C. 2684). These changes are needed to ensure consistency among the various regulations covering lead risks under TSCA.”

Consistency seems to be a concern of the EPA. How quaintly passé.

Nonetheless, the EPA seems to understand what is at stake for American children when it comes to lead:

“Reducing exposure to lead has been an important issue for EPA for more than 2 decades. Young children are especially vulnerable to the toxic effects of lead because their nervous systems are still developing and they absorb more of the lead to which they are exposed. Many of the health effects associated with lead are thought to be irreversible. Moreover, the effects at lower levels of exposure are often asymptomatic. In light of the impacts on children and the nature of the health effects, EPA’s goal is to eliminate exposure to harmful levels of lead.” They get it, right?

Uh-oh. The EPA veers away from the current script . . . .

“First and foremost, the Agency faces the difficulty of determining the level at which to set the standards given the uncertainties in information on cause and effect–what environmental levels in which specific medium may actually cause particular blood lead levels that are associated with adverse health effects. The Agency has tools, which are only generally consistent, that show that certain increases in environmental lead levels are associated with certain increases in blood lead levels. Given the range of uncertainty shown in its analysis supporting the establishment of a hazard level under this rule, EPA has developed a technical analysis that considers hazard standards for dust and soil at the lowest levels at which the analysis shows that across-the-board abatement on a national level could be justified. EPA recognizes, however that for any levels of lead in dust or soil judgment must be exercised as to how to treat the medium, and interim controls as well as abatement could be effective.” [Emphasis added]

Sounding like administrators from another planet, the EPA continues:

“In performing its analyses for this rule, the Agency could not quantitatively compare interim control strategies with abatement strategies because there are only limited data available on the effectiveness of interim controls over extended periods of time, and those data which are available are not suitable for quantitative comparisons with abatements. In comparing interim control strategies with abatement strategies, one must make a number of assumptions
concerning the costs of administrative management, and frequency of monitoring and renewal over the planning horizon. For the 50–year planning horizon which the Agency used in its dust and soil analyses, one would have to compare the time stream of interim control expenses, for as long as such expenses are necessary, and weigh the possible differences in potential blood-lead reductions, to make a fair comparison of abatement and interim control strategies.” [Emphasis added]

Later, the EPA warns: “Also, identification of lead-based paint hazards under this regulation is sure to have impacts that could be expensive even though the range of expenses is, itself, difficult to resolve because of the uncertainty of individual behavior and the willingness of individuals to accept risks that EPA may identify. Thus, if EPA were to choose standards that are too low, the public could be unable to distinguish between trivial risks at the low levels of lead from the more serious risks at higher levels. This could result in clean up for little to no health benefit, or conversely, it could result in almost no clean up because persons would question the credibility of the ‘hazard’ determination.” [Emphasis added]

Clearly the EPA just does not get around very much. Damn the expense, man, there is NO safe level of lead!!!

Importantly, the EPA seems to grasp the difference between CORRELATION and CAUSATION. I wish Congress understood that idea a bit better. . . .

“For dust and soil, EPA had substantial raw data on environmental levels and blood lead levels, even though it faced substantial uncertainty in correlating the levels. . . . If EPA were to set unreasonable standards (e.g., standards that would recommend removal of all lead from paint, dust, and soil), States and Tribes may choose to opt out of the Title X lead program and property owners may choose to ignore EPA’s advice, believing it lacks credibility and practical value. Consequently, EPA needed to develop standards that would protect children without wasting resources by chasing risks of negligible importance and that would be accepted as reasonable by States, Tribes, local governments, and property owners.”

Hope you weren’t eating while you read that last bit. Sorry!

I could quote from this document all day. In light of the nightmare that is the CPSIA, the EPA rules read like some sort of comedy routine. Unfortunately, the joke is on us.

So what did the EPA actually do?

“As stated in Unit II.F.3., today’s rule establishes two hazard standards for bare residential soil; 400 ppm for play areas and an average of 1,200 ppm for the rest of the yard. [See 40 CFR §745.65(c)] EPA recommends that organizations and individuals consider some action in certain areas even where levels in bare soils are below the hazard standard, particularly, if there is a concern that children 6 years and under might spend substantial time in such areas, or if there is concern that the bare soil in such areas may contribute to lead levels in the dwelling, or in the play areas. However, this rule does not mandate that any action be implemented when levels are found to be below the lead hazard standard. Moreover, the kind of response that organizations and individuals might consider could include modest actions such as planting grass (or other ground cover) to more extensive actions such as covering the bare soil with several inches of clean fill.”

Yes, you read that correctly. The standard for play yards (sand) is 400 ppm lead and for bare soil is 1200 ppm lead. If we put a bag of dirt in a child’s science toy, the current CPSC limit is 300 ppm and at this very moment, the Commission is mulling a reduction of the lead limit in that soil to 100 ppm. This change will make more science products either illegal or unsalable for children under 13 years of age. We don’t believe lead labels solve the problem.

The CPSC’s rule on our products will have no effect on play yards, bare soil or anything except items defined as “Children’s Products” under the incomprehensible rule adopted by the Commission.

The longer this goes on, the more I am convinced that only a new government solves the problem. Sad . . . but true.

Read more here:
CPSIA – What Does the CPSC Know that the EPA Doesn’t?

CPSIA – Taking Advice from Idiots

In a recent article entitled “Advice on avoiding a toxic Christmas“, USA Today attempted to take Christmas paranoia to new heights. Naturally, the premise of the article is that companies are criminally irresponsible or venal and certainly can’t be trusted, and consumer advocates and any pediatrician that will talk to a reporter are better people, better informed and by definition trustworthy. In this article, USA Today’s Liz Szabo consults “experts” to reach the following conclusions:

a. “No one knows how much lead people absorb from holiday decorations, says pediatrician Bruce Lanphear, of Canada’s Simon Fraser University.” And if he said it, it must be true. [Of course, pediatrician Philip Landrigan, of Mount Sinai School of Medicine in New York, notes "In the whole scheme of things, is it a huge risk? No."]

What’s the problem with Xmas lights, you say? Lead in the PVC. According to Alicia Voorhiess, a mom with a blog, manufacturers “use it” in the PVC. Right – you got us! Don’t worry, though, after much digging, she found two companies that offer Xmas lights which comply with Restriction of Hazardous Substances (RoHS), a European standard which limits the presence of lead in lights.

Ummm, Alicia, RoHS is a standard to designed to prevent leaching of heavy metals to protect the environment and only applies to electronics. This MEANS that the lead is restricted in the bulbs and fittings, not the PVC. Whatever, it sounds safer, doesn’t it?

The author of the article quotes Dr. Alan Greene (my college classmate) saying that you should handle your Xmas lights with gloves. Why stop there? Moon suits, anyone?

b. Artificial Christmas trees are made of PVC, too, and we know what manufacturers are wont to do with PVC. The solution – use a real tree grown without pesticides.

I find this a most uncreative solution, myself. Here’s a few more:

• Post a picture of a beautiful tree near the spot you might have placed your tree. Keep it away from the fire, however.
• Consider just displaying your Xmas lights in their packaging. No touching!
• Use an artificial tree, but place under a glass enclosure or something air tight like Saran Wrap. Stand at least five feet away at all times.

All of these remedies will protect you from lead. That said, please remember there is NO safe level for lead. And a holy, jolly Christmas to you, too!

Shame that USA Today didn’t focus in on the fact that there is lead in the air, in our water and in our food. OOPSIE! In fact, lead in water is conveniently piped into Washington, D.C. homes for kids to drink in their own bathrooms and kitchens. Nice! Somehow USA Today missed this. Shocking . . . .

c. Candles with metal wicks might also have lead in them, or then again, maybe they won’t. In a blow to poorly-researched newspaper articles, the CPSC apparently banned these wicks in 2003. Who knew the CPSC actually tried to its job before the CPSIA? Somebody should have told Congress.

According to this all-knowing newspaper, candles also contain paraffin, a wax made from petroleum. Not sure why I should care about that, but it sounds ominous. And some fragrances in candles have phthalates in them “which can affect the hormonal system”. Isn’t knowing nothing about science FUN???

The solution – The author of this article actually recommends that you use pure beeswax candles. Happy hunting! They also suggest you “poke cloves into oranges”. Ah, the old clove poking trick! That sounds like fun but IS IT SAFE? This article says oranges have lead in them. NO! And, for an extra kicker, it also says they have cadmium, too: “If the soils contain toxic metals like lead, mercury and cadmium then the consumers may be poisoned as happened in the “Ouchi-ouchi” disease in Japan . . . and similar episodes.” Wow, Ouchi-Ouchi! Scott Wolfson, do you hear a bell ringing? [Eating oranges didn't cause "Ouchi-Ouchi" but then again, researching these things is sooooo time-consuming.]

So there you go. Skip Christmas this year, too dangerous. I wonder if a Festivus pole is lead-free . . . .

Read more here:
CPSIA – Taking Advice from Idiots

CPSIA – What Lead Threat, says EPA.

760 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 51 days left until Election Day.

I know Congress told us that lead is a major health threat in children’s products. Far be it from me to doubt the Junior Scientists Club that the Dems have fashioned in Congress. I am sure they know what they’re talking about.

Unfortunately, the Junior Scientists forgot to coordinate with the EPA. Well, why would we think the Environmental Protection Agency would know anything about neurotoxins in the environment or in the home? Strangely, the EPA happens to be very concerned about the presence of lead in the home. In fact, they published a brochure entitled “Protect Your Family From Lead in Your Home“. A friend recently signed a lease in the Land-of-Fruit-and-Nuts and was handed this brochure for his safety.

I couldn’t help but be curious. The EPA wants to protect against lead in the home. SURELY they would mention lead in children’s products. Children, our most vulnerable consumers, blah blah blah. Right?

Ummm, no. There is no mention of children’s products, much less lead-in-substrate. The focus is on lead-in-paint ON THE WALLS.

A few “shocking” revelations from dumb ole’ EPA:

a. “People can get in their bodies by breathing or swallowing lead dust, or by eating soil or paint chips containing lead.”

b. “In most cases, lead-based paint that is in good condition is not a hazard.” [Think of all the CPSC recalls for a dot of lead-in-paint.]

c. “Lead is even more dangerous to children under the age of 6.” [Waxman has refused categorically to compromise on this fix for the ridiculous and unsupportable age range of the CSPIA.]

d. “Where Lead-Based Paint is Found” [No mention of anything other than paint found on walls, or in the soil around a home which can pick up dust from interior paint or air pollution.]

e. “Identifying Lead Hazards”

• Lead-based paints
• Deteriorating lead-based paint (peeling, chipping, chalking, crackling or damaged).
• Lead dust
• Lead in soil

No mention of consumer products of any kind. Not even ATVs or bicycle seats!

f. “Other Sources of Lead”

• Drinking water
• The job
• Old painted toys and furniture
• Food and liquids stored in leaded crystal or lead-glazed pottery or porcelain
• Lead smelters
• Hobbies that use lead
• Folk remedies

Hmmm. Lead paint was illegal for YEARS before the CPSIA. Apparently, the EPA was totally asleep at the switch until Congress discovered the mortal hazard of lead lurking in every conceivable consumer product and reengineered the CPSC in its paranoid image. As we know, under Congress’ direction, Inez Tenenbaum assures us that the CPSC “[looks] at what the danger is”. And that danger is the lead bogeyman. Odd, isn’t it, that the EPA continues to circulate this document so out of touch with Congress’ and the CPSC’s insights?

Gotta love good government!

Read more here:
CPSIA – What Lead Threat, says EPA.

CPSIA – Component Testing Rule Comment Letter

August 3, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 820
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)

Re: Docket No. CPSC–2010-0037 Conditions and Requirements for Testing Component Parts of Consumer Products.

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on the Conditions and Requirements for Testing Component Parts of Consumer Products (Docket No. CPSC–2010–0037) published in the Federal Register on May 20, 2010 (the “Proposed Rule”).

This request for comments comes after, among other things, a two-day workshop held at the CPSC on December 10-11, 2009. Our company incurred the expense of sending three people (all panelists on multiple panels) to attend this “sold out” event which was purportedly to solicit stakeholder feedback on this rule and the so-called “15 Month Rule” (also up for comment today). There is little evidence from the Federal Register that any of our feedback was taken or possibly even heard. I have lost track of how many comment letters I have filed, panels or hearings I have appeared at and essays or letters I have written about the CPSIA and these issues. So far, my comments have added up to . . . nothing. Nevertheless, I am filing this letter in the vain hope that perhaps this will be my lucky day and you may listen to me, finally.

I would like to make some general comments first.

a. Some Positives in the Proposed Rule. I am in favor of the concept of component testing and applaud the Commission for taking steps to make it a reality, however flawed. In addition, I am also enthusiastic about composite testing. Regrettably, however, the devil is in the details.

b. CPSC Data Demonstrates that Risk is Low, so the Proposed Rule does not Need to be so Strict. I have analyzed the recall data published on the CPSC website and determined that from 1999 – 2010, the CPSC can account for ONE DEATH and THREE ASSERTED INJURIES from lead or lead-in-paint. If the goal of these rulemakings is to reduce deaths and injuries from lead, then these data must be borne in mind. With so few incidents involving lead injury of any kind in children’s products (less than occurs on AN AVERAGE DAY from swimming pools and spas in the U.S.), there is no justification for building such an ornate rule for something simple and logical like component testing or composite testing. Likewise, incidents of fraud in testing are equally infrequent and in any event, already addressed by other statutes. Congress did not require this complicated regulatory scheme, and the data cannot justify it.

c. The Proposed Rule Puts Compliance First, Before Safety. This rule seems to place a very high emphasis on the need to comply, as opposed to the need to make children safer. One is not necessarily the equivalent of the other. My favorite example is our company’s record of compliance. Founded in 1984, our company has recalled a grand total of 130 pieces in its history, all recovered, out of perhaps one billion pieces sold. Not bad. Were we to meet the myriad requirements of this rule, I cannot fathom that our products would be safer. Does all that extra compliance benefit anyone? It certainly will cost a lot (we pay, you don’t). As I read your rule, I wondered why you didn’t list the wire transfer instructions for the top testing companies. You might as well . . . . Still, the casual waste of our resources cannot make anyone safer – they were already completely safe.

Safety is the reason the CPSC exists. This document fails because it confuses the desire to powerfully enforce the CPSIA with actually making people safer. The only thing that may be accomplished is business death for many companies, principally small ones. Swashbuckling enforcement may make great headlines but no one will be any safer. Compliance is not safety.

d. Science Has Apparently Been Rendered Moot at the CPSC. While I accept that Congress has banned certain phthalates in toys, I do not accept that the ban is a SCIENTIFIC CONCLUSION. It is legislation, not science. Notably, the CPSC has twice investigated phthalates and held that phthalates were safe in toys. Yet, on page 28213 in the Federal Register, the Proposed Rule discusses the “risk” presented by a product that might have a violative concentration of phthalates in a component, but with an overall concentration that wouldn’t violate the ban. It goes on to assert that a component-based rule is “more protective of human health”, as though the agency had reached the scientific conclusion that phthalates were dangerous – which is not true. Re-characterizing the legislative ban as an assessment of “risk” may appear to legitimize your rule, but it is certainly not an accurate statement of the historical position of the agency. I object to the rule’s equating of a ban by politicians to a scientific judgment. Science is under enough assault without the stamp of approval of the CPSC announcing its death.

My specific comments on this proposal:

1. Component Testing Looks Better Than It Is. I wish I felt we (or anyone else) would use component testing extensively in the future. There are several reasons why this option will be of little use to anyone, particularly the small companies that it was intended to benefit. [Companies with enough scale may find the Proposed Rule useful – one of the many ironies of the CPSIA is that its principal beneficiaries may be the companies that prompted its passage.]

a. Limited Market Availability for Component Certificates. While some high volume components of children’s products may quickly be tested to meet these requirements, many other kinds of components are not likely to be tested:

i. Low volume components
ii. Components made in small lots
iii. Components made by small suppliers (many fabrics)
iv. Components which derive only a tiny percentage of revenues from regulated products or which principally cater to other industries (e.g., paper clips or aluminum foil in a science kit)

Unfortunately, it appears to me that the logic of this rule is that if we can be certain that some certificates will be widely available (e.g., paint, plastic pellets), therefore all other certificates will be available. That’s plainly ridiculous.

b. Complexity. The subdividing of compliance testing into component parts and the whole, some tests done on parts and some on the whole, with tests of varying dates substituting from time to time, is simply a mindboggling mess. I cannot imagine that this can be successfully managed on any scale (how many products need to take advantage of this rule before test reports develop big and inconsistent holes?). And how will retailers be able to interpret this patchwork quilt of tests? This scheme will be self-defeating on all levels.

Add to this the requirement that components need to be traceable, and you basically rendered the component testing opportunity moot. Of course, I am presuming that industry will take your rules seriously. To me, it’s completely inconceivable that anyone will build your traceability system. [Traceability will not raise revenues, only mindless complexity, and as noted above, cannot conceivably improve safety.] If you take these rules seriously, you will cry, laugh/scream – or walk away. The paperwork required for this exercise is well beyond almost all companies’ capabilities. [Does the CPSC have ANY tangible evidence that its requirements can be met by anyone . . . other than Mattel and Wal-Mart? Presumably, no one at the agency living in the real world thinks that traceability rules can be met by the typical Handmade Toy Alliance member, or other small businesses like ours.]

c. Unrealistic Expectations on Manufacturing Control and Traceability. To take advantage of this rule, a manufacturer must take responsibility at the sub-micro-level for manufacturing quality. Let’s recall for a moment that we are not making drug treatments here, nor are we building the Space Shuttle. We are making simple plastic toys and games, children’s shoes, pens, shirts, books, educational materials and so on. Consider this instruction from your new rule: “The manufacturer must exercise due care that the manufacturing process does not add a prohibited chemical from an untested source, such as the material hopper, regrind equipment, or other equipment used in the assembly of the finished product.” Our company has several hundred vendors producing thousands of SKUs – do you honestly believe we could possibly manage how all these independent companies wash out their molding machines or manage their regrinding operations? Is this some kind of sick joke?

By the way, this verbiage will end the use of recycled materials in children’s products. This is completely unjustified for safety reasons and is certainly very unfriendly to the environment. As noted above, your agency’s responsibility is to manage safety. You have no basis in fact for asserting that these theoretical sources of lead are or could constitute a public safety risk.

d. Liability Risk. The Proposed Rule goes to great length to ram home the message that all the risk is on our shoulders. The monotonously repetitive use of the term “due care” throughout this document makes abundantly clear that the CPSC is perfecting a myriad of claims to be made against any and all manufacturers of children’s products when it suits the purpose of the agency. Many of the claims may be perfected with the agency’s 20-20 hindsight. The Proposed Rule minces few words on this preservation of rights: “The above information is needed so that, if noncomplying products are found, the Commission can use this information to determine whether a finished product certifier, component part certifier, or third party conformity assessment body is not complying with the appropriate requirements.” Under the Proposed Rule, even a missing piece of paper can be the basis of charge of failed due care. A fear of criminal charges seems realistic.

Will aggravating letter writers be the first to suffer under this hammer? The answer is – it’s entirely up to YOU under your rule. Small companies will see how the deck is stacked against them and steer far from the component testing option (if they understand the obtuse wording of the rule).

2. If Few Companies Can or Will Use Component Testing, Has the Agency Provided “Relief”? Of course, the answer is NO. The Proposed Rule may look like good policy, but if the practical impact of the rule is that few people can or will take advantage of it, it is simple window-dressing. The impact on small businesses, exemplified by the well-known and sympathetic Handmade Toy Alliance, will be severe. They are not the only ones in need of help, either. If small companies like HTA members cannot take advantage of these rules in large part or would be too scared to take a chance in the face of the awesome display of governmental power in the rule’s terms, then they will suffer and shrink. I would note that the Notice on the “15 Month Rule” explains how a failure to protect small companies could play out badly (see “Caveats and Possible Market Reactions to Third Party Testing Requirements” on page 28358). Those negative impacts could result from a failure of policy here, too.

3. Maintenance of Records for the Life of a Product Plus Five Years Is Unduly Burdensome (Not to Mention Pointless). Please consider our case: We still produce certain items from our original product line in 1984. Clocks don’t go out of style in education, even if Tickle Me Elmo and Furby last only one year. The requirement that we must retain records for the life of the product plus five years could theoretically be forever in our case. Perhaps the CPSC can provide us free unlimited warehouse space for all these records. In any event, our case also makes clear how pointless this requirement is. We have only had one recall in 26 years, which we successfully administered without the assistance or guidance of the thousands of pages of rules and legislations that befell us under the CPSIA. How, precisely, will decades of records improve the public weal in OUR case? Your rule is very good at spending our money, our resources and our time, but doesn’t make a reasoned connection to safety in any way. We are not Mattel and in any event, they don’t define the market. Had you listened to us in December 2009 at your workshop, you would know this already.

4. Composite Testing Rule for Paint LOWERS the Lead Standard to Sub-trace Levels. In yet another example of overly risk-averse rulemaking, the agency’s new composite testing rule for paints requires that lead content must never exceed that for any individual component paint in the composite. This slices the 90 ppm limit by two-thirds for a three-paint sample and by 75% for a four-paint sample. This super-stringent rule ensures that it is literally a gamble to use composite testing – so why would anyone bother? Even more bothersome, since the new policy of the agency is to impose strict liability for lead-in-paint violations, this new rule demonstrates the ascendency of the debunked notion that there is “no safe level for lead”. If the agency really wants to take this position, it should not permit composite testing for paints. Too risky . . . .

5. The Regulatory Flexibility Analysis is Flawed and Self-Justifying. The analysis justifying this Proposed Rule is a “best case” scenario, and takes none of the foregoing into account. If in fact the rule will hard or impossible to use, or will create too many legal risks or recordkeeping burdens and thus go largely unused, the reasoning in this section will be completely inapplicable.

6. The Burden of Recordkeeping is FAR GREATER than Asserted in the Proposed Rule. At our company, we produce about 1500 “catalog” items and several thousand other SKUs and custom products through a network of hundreds of factories in various countries. We do not control these factories – they are generally family businesses like our company, and are independent of us. Typically, we provide only a small share of annual revenue of any of our factories and thus have limited leverage over their business practices. Like many small businesses, we have a very limited infrastructure in place to supervise factories “on the ground”, although it is worth noting that our safety record indicates that our business methods have worked well for more than two decades.

To implement the recordkeeping set forth in this rule, I estimate that we would have to spend $50,000 – $100,000 in software development expenses to store and manage the desired records. In addition, we would need to expand our staff significantly. To reach out to all of our factories, negotiate and monitor many new business practices, will take a significant increase in staff. I posit that we would need to open an Asian office with as many as 5-10 local employees. A Chinese office would cost us at least $500,000 per annum. In addition, we would have to increase our clerical and management staff in the U.S. to help with data input, software management, project management, audits, vendor relations and general management. This would cost us at least $250,000 per annum. We anticipate that this intrusion on the business practices of our vendors would cost us business relationships and would lead to significant cost increases. The total cost of these disruptions would add another $500,000 or more per annum. It is not inconceivable that we ALONE could incur annual expenses of $1.5 million and certainly at least 10 man-years of labor (more than 20,000 hours) to comply with these rules. There are THOUSANDS of companies affected by this rule. We estimate that the assessment of cost and man-hours in the Paperwork Reduction Act section of the Proposed Rule is LOW by a factor of 100x-5,000x.

I would suggest that this rule be greatly simplified by making the following changes:

a. Eliminating the Requirement for Traceability Recordkeeping. As noted above, this ornate rule architecture is completely inappropriate for the minimal, almost non-existent threat, demonstrated by the CPSC’s own injury data. Recordkeeping requirements should minimized or dropped altogether.

b. Encourage the Exercise of Business Judgment. The presumption that only the CPSC (or Congress) can make sound judgments when considering safety issues is simply not supported by the data. Again, our company is a good example of that – we scrupulously maintained our safety record without the CPSC’s oversight, coercion or even encouragement since 1984. The concept of “business judgment” is well-defined in U.S. common law and has real meaning under the law. I think the concept of using components supported by GCCs is simple enough. Given that the restrictions on lead are clear under the CPSIA, why not let businesses exercise their judgment on how to meet those requirements and then measure them on their success in doing so? What is to be gained by inserting the CPSC into all aspects of how we conduct business? We were doing just fine before you arrived on the scene.

Given the few lead injuries noted in the CPSC’s historical data, the agency could save its scarce resources and remain effective as a safety administrator by focusing on known safety issues and incidents and leave the vast majority of law-abiding and safety-conscious companies ALONE. The data suggests that higher and higher mountains of regulations will never reduce injuries from the historically miniscule levels documented on the CPSC website.

c. Allow Composite Testing Using the Overall Concentration as the Pass/Fail Measure. Again, this is justifiable based on the historically minimal risk posed by the regulated substances. The already low lead levels specified in the CPSIA have not reduced injuries or deaths from the negligible levels that predated it. Since the number of recalls is so dramatically affected by agency policy (e.g., strict liability or not, how recalls are accounted for, etc.), the only reliable measure of the effectiveness of policy is injuries. Composite testing holds the promise of real savings to the many law-abiding companies affected by the CPSIA. Loosen the noose and they may actually save some money.

Component testing can be a simple and effective way to lower costs, but a different approach is necessary to get to that result. A sharp reconsideration of the Proposed Rule will be required to achieve this goal.

Thank you for considering my views on this important subject.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Read more here:
CPSIA – Component Testing Rule Comment Letter

GUEST BLOG – The Solution to Too Many Warning Labels….More Labels!

Rick has blogged several times about the new Illinois lead law (see here, here and here) and predicted that the resulting labeling requirements would result in only confusion for consumers.

In one blog, Rick stated “Consumers will not ignore these labels and will treat your product as though it were poisonous or radioactive.”

We are letting Rick pick our Lotto numbers next week.

A faithful reader of this blog brought to our attention this article from the Channel 9 News website in Denver, Colorado.

The article, “Confusing warning tags on toys spark concerns for parents,” (Did Rick write that headline?) reported that consumers are shocked, SHOCKED, by a tag on a small toy in a Babies R Us store that read “Warning: Contains Lead. May be harmful if eaten or chewed. May generate dust containing lead.”

The article goes on to quote the consumer who tipped off the station of the “dangerous” stuffed animal stating “We couldn’t believe our eyes when we read the removable paper label . . . I can’t imagine anyone buying this product.”

Is the toy toxic? Nope.

The story goes on to report that a Toys R Us statement to the TV station explains that the products with these tags “meet or exceed federally mandated requirements for children’s products.” and says the tag “is related to more stringent laws passed in Illinois and California. The Illinois law, for instance, requires a warning label if a material exceeds a limit of 40 ppm, in essence the amount of lead found naturally in the environment.” (emphasis added)

The company spokesperson said “it would be too difficult for the company to maintain a separate inventory for those states.”

“To comply with Illinois law, these labels have been placed on the required items that are carried in our stores in all states,” the Toys R Us statement read.

Thanks, Illinois.

Don’t worry readers, CPSC has a solution.

CPSC Spokesperson Scott Wolfson (who would be a wealthy man if he received $5 for every mention in this blog) says “even if a toy doesn’t conform to California and Illinois’ limits for lead, as long as a toy meets federal guidelines they are extremely safe. . . The agency is now considering adding new tags to all toys which meet federal standards, in hopes of relieving their fears.”

That’s right. The CPSC’s solution to too many warning labels? More labels!

We found an Illinois license plate fitting for this situation:

Posted by the Staff of the Alliance for Children’s Product Safety

Read more here:
GUEST BLOG – The Solution to Too Many Warning Labels….More Labels!

CPSIA – Lead in the News

The New York Times published an expose on lead poisoning earlier this week. Here’s a shocker – APPARENTLY, the main cause of lead poisoning in American children is lead house paint (leaded gasoline having been long eliminated as a source of lead in our environment). Isn’t it strange that the Times never mentioned the dangers of educational products, toys, t-shirts, ATVs, bikes, pens, rhinestones (oooo, rhinestones, so dangerous!) and the like? What ‘s wrong with those people?

The article cites an example of the lead poisoning problem:

“But the invisible threat persists in the city’s so-called lead belts — areas of Brooklyn, Queens and Staten Island where the rates of children showing elevated levels are routinely the highest in the city. Last summer, E.P.A. officials took hundreds of soil samples near a long-closed lead factory on Staten Island suspected in the chronically higher rates of lead poisoning among children in the North Shore neighborhoods of Port Richmond, Stapleton and St. George. The area was once filled with heavy industry, and lead contamination can be found in parks and industrial sites. Of the children tested from those neighborhoods, about 7 out of 1,000 had elevated lead levels, health department data show, compared with a citywide average of 4.5 out of 1,000.

But when the soil sampling results came in last month, the lead contamination found in six residential blocks was traced to peeling paint, not the plant. . . . Walter Mugdan, the E.P.A.’s regional Superfund director, said that the paint had contaminated backyard soil that could also harbor traces of leaded gasoline.”

What-a-shock.

The NYT article points readers to the Lead home page on the CDC website. If you click forward to the poisoning prevention page, you get the straight scoop from the CDC: “Lead-based paint and lead contaminated dust are the main sources of exposure for lead in U.S. children. Lead-based paints were banned for use in housing in 1978. All houses built before 1978 are likely to contain some lead-based paint. However, it is the deterioration of this paint that causes a problem. Approximately 24 million housing units have deteriorated leaded paint and elevated levels of lead-contaminated house dust. More than 4 million of these dwellings are homes to one or more young children.”

[You should also check out the NYT video on the CDC's efforts to eliminate lead poisoning.]

With House hearings on the CPSIA pending this week, this reminder of the real threat to children’s health is helpful. As we have been saying for two years, the real health risks in children’s products today are lead-in-paint and leaded jewelry. [I am not even so sure about jewelry but accept the concern as legitimate.] There is no hint that the CDC is any way fixated on the same “threats” as your Congress. Interestingly, if the issues spotlighted by the CPSIA were so serious, they might show up as centerpieces in CPSC outreach programs. After all, the CPSIA did NOTHING to remove these supposedly dangerous items from American homes and schools – it merely ended new supply. As the longstanding effort to remove lead house paint makes clear, our government is capable of acting to remove dangerous products or conditions from our living spaces. Congress made no such effort here – and the CDC saw no need either.

Our businesses have been torched by a phobia. It’s shameful.

For a lighter news item about lead perils, check out this criminal case from Texas which sent the lead perpetrator to cool his heels in jail. Don’t worry, it was just something fishy.

Read more here:
CPSIA – Lead in the News

CPSIA – Illinois Finally Issues Its Lead Labeling Rules

At long last, Illinois has published its rulemaking under the Illinois Lead Poisoning Prevention Act. The relevant pages are 5568-5575. As you will see, true to their word, Illinois has clarified that the lead limitation pertaining to toys only affects paint.

It is still regrettable that Illinois felt the need to keep its standard for lead-in-paint below the federal standards, especially since there is no demonstrated difference in Illinois 40 ppm level and the federal standard of 90 ppm from a health standpoint. It is important to remember that background lead levels in the environment very often exceed the limit in the Illinois law, including famously in the Obama’s vegetable garden at the White House.

Hopefully this law will cause minimal disruption or random loss of capital for those companies that elect to stay active in children’s products in Illinois.

Read more here:
CPSIA – Illinois Finally Issues Its Lead Labeling Rules

CPSIA – Are Toys Supposed To Be Fun Anymore?

In a wonderful Op-Ed last week, Windsor Mann lampoons the ridiculous CPSIA by announcing his intent to not give any presents this year. His plan is as simple as the subtitle of his essay: “Giving children what they need most – nothing”. Mr. Mann expands: “As someone who loves to be a wonderful person for a brief period of time, I enjoy this season of temporary giving. I am obsessed with helping people, especially children, and the best way to help children is by not giving them Christmas presents.”

Sadly, Mr. Mann observes that “toys are not something to play around with”, noting the recent recall of toy darts because an 8-year-old almost choked on a dart that he was chewing. This is a real case. [This recall is eerily similar to a life-imitates-art spoof on The Onion entitled "Fun Toy Banned Because Of Three Stupid Dead Kids".]

Mr. Mann recounts in hilarious fashion various recent recalls illustrating the fact that we seem to have lost sight of what constitutes safety. [He even mentions the unfortunate Timberland ankle-high boots recalled for the lead-in-paint logo on their insoles.] To make his point, Mr. Mann notes the useful instructions provided by the CPSC in its “The Super Sitter” manual for babysitters. Here’s some tips the government felt the need to give babysitters:

• “Keep the youngsters safe by preventing accidents.”
• “Running or horseplay on [stairs] can lead to falls.”
• “In the event of accidental choking, apply first aid measures to clear the child’s airway.”

He quips: “(In the event of intentional choking, do not apply first aid measures.)”

The fear of everything, railed at in this essay, is the philosophical underpinning of the misconceived CPSIA. There is no solution to this disease short of changing the law. In a world dominated by the fear of everything, nothing is safe and everything must be feared. Mr. Mann’s strategy of not giving gifts seems to be an appropriate response in this environment.

It’s a funny article, but it’s not a funny problem for those of us stubborn enough to remain in the children’s product market. I don’t know how it comes as a surprise to anyone that misuse of products or the absence of individual responsibility may result in injuries, but that plague has descended on our industries. The issues inherent in this shift away from common sense are many:

• Fear of liability creates a perception of COST that deters investment in products and markets. Random costs feed the fear.
• Unjustified fear of injury by consumers translates into lower sales or higher costs in making sales. Markets shrink. Consumer needs become difficult to meet.
• An atmosphere of fear affects regulators, who tend to recall more often and to assess more penalties (even if non-monetary) because it’s politically-expedient or follows the trend. In other words, it’s “safer” for regulators to err on the side of caution – but that cost is borne by somebody . . . businesspeople.
• Rules tighten illogically, diverting attention from real issues, increasing the cost of participating in the market. All parties suffer from the consequences of complexity, including regulators.
• Misallocation of resources (expending too much energy on unimportant things) leads eventually to true crisis, fueling the fire of the original proponents of the legislation. The obvious solution – even MORE government.

And the joke will be on you and on us, if we don’t do something about it. Mr. Mann takes a lighthearted swipe at the silliness of your Congress, but it’s really no laughing matter.

Read more here:
CPSIA – Are Toys Supposed To Be Fun Anymore?

CPSIA – CPSC Clears Zhu Zhu Pets . . . But The Damage Can’t Be Repaired

Last week, in the heat of the post-Thanksgiving holiday buying crush, yet another unscrupulous or incompetent consumer group, so the so-called “GoodGuide” out of San Francisco chose to launch an attack on a high-profile toy, the “Zhu Zhu Pet”, specifically “Mr. Squiggles”. The Zhu Zhu Pet product line is this year’s Must-Have Toy, a perfect target for selling papers and promoting fear. Mr. Squiggles’ “crime” was purportedly the presence of microscopic amounts of tin and antimony above the absurdly cautious CPSIA standards for those elements. GoodGuide (for purposes of this blogpost, let’s call them “MisleadingGuide”) cited Mr. Squiggles for having “elevated levels” of the elements in its hair and on its cute little nose. The offending levels: tin (I can’t find the data anywhere) and antimony, 93 ppm on the hair and 103 ppm on the nose. The federal limits under the CPSIA is 60 ppm.

The MisleadingGuide report was issued on Saturday Dec. 5, and to the CPSC’s credit, it acted promptly today by announcing its intention to swiftly investigate, and later (on the same day), cleared the toys. In response to the storm over its accusations, MisleadingGuide acknowledged that it used a XRF gun to test the surface and did not use the federal wet test methods. Oopsie-daisy! MisleadingGuide apparently regrets its error. Interestingly, the retraction/correction of MisleadingGuide is nowhere to be found on its review of Mr. Squiggles. The MisleadingGuide rating is also unchanged as are the misleading results that MisleadingGuide says it “regrets” but hasn’t gotten around to correcting. Notably, in the small print of one of its disclaimers, MisleadingGuide notes that much of its data comes from consumer group luminaries regularly heralded in this space such as HealthyToys.org and the ever-present Center for Environmental Health. Now that’s some fine company!

This very sorry and sickening episode is the latest instance of consumer group terrorism playing up to an easily panicked and understandably rattled American public. Using the imprimatur granted by their self-appointed role as protectors of public welfare, consumer groups nowadays shoot first and ask questions later. An unskeptical media republishes their garbage without comment, other than to whip up the flames of fear. The cost and the consequence is the random devastation of businesses for “crimes” that are very often imaginary. In this case, the tiny company responsible for this monster hit has only 16 employees. Not exactly a Mattel with a large in-house legal department or the other resources of a mega-company accustomed to being kneecapped by Naderites. A real U.S. success story – brought low by consumer group incompetence and irresponsibility. As everyone knows, there is no recourse for these entrepreneurs as their franchise is damaged mid-Christmas selling season. Dreams dashed, and the consumer groups hardly even blink. Of course, MisleadingGuide does “regret” its error. A bit of cold comfort for the 16 employees at Cepia as they examine the lumps of coal in their Xmas stockings.

Part of the consumer group M.O. is to stoke fear by tossing around figures that no one understands. In this case, they chose some new, unfamiliar elements to create the illusion of irresponsibility by a toy company. Tin? Antimony? I thought the culprits these days were lead and phthalates? No, when those items fade, new threats are manufactured to spread fear and distrust. I should point out that MisleadingGuide is arguing about being 33 and 43 PARTS PER MILLION over the new federal limit.

Tin and antimony are not radioactive, these ultra-amounts are basically undetectable. There is no indication anywhere that exposure to an incremental amount of these elements at this level would be dangerous. However, the new standard is misleadingly portrayed by these unscrupulous or unsophisticated consumer groups as a human health exposure limit, reasoning that anything above the limit is a sign of DANGER. The press is all too willing to make their claims seem legitimate: “Tests in animals have attributed a series of ailments large-scale consumption of antimony, the Department of Health and Human Services’ (DHHS) Agency for Toxic Substances and Disease says. Yet the DHHS also says it does not ‘know what other health effects would occur to people who swallow antimony.’” Ah, the seeds of doubt! Notably, unless you gorge on Zhu Zhu Pets regularly, large-scale consumption of antimony is irrelevant in this case. This kind of reporting hands a “win” to the consumer groups. The losers outnumber the winners by a wide margin.

I think there are many damaged parties in this pathetic episode. Let me list them:

• You. The American consumer loses EVERY TIME as confidence in our neighbors and in our stream of commerce is nicked again and again by nincompoops who spread salacious gossip and commercial slander without a full and thoughtful investigation.
• Science. The abuse of science will eventually lead to a mistrust of science. Science misused for the purposes of raising contributions or gathering proceeds from fines or contingent legal fees discredits it as a source of understanding of our world. Our country will lose out to countries not as obsessed with small-minded paranoia.
• Specialty Markets and Small Business Interests. What kind of crazies want to do business in this environment where consumer group terrorists rule the planet? Business people read these articles and feel an injury to themselves. We all know we could be next. It’s random and unpredictable, since junk science can be deployed anywhere and anytime by the evil tandem of an unquestioning press and unscrupulous consumer advocates.
• Our National Competitiveness. By allowing consumer groups to pick innocent victims without recourse for the tortious devastation they cause, the incentive to innovate or even trade is sharply curtailed. Businesses seek exits, not growth – some jobs program, huh? The costs imposed on healthy businesses to stay ahead of the maniacs will further cripple competitiveness. As a nation, we will gradually sink into an abyss of irrelevance.

How long must we tolerate consumer group terrorists? I think it’s time for Congress to create a new cause of action against this kind of irresponsible behavior. Someone needs to be accountable for the spreading of misinformation, damaging innocent and honest American businesses trying to create jobs and provide needed products and services to American families and schools. The torts of the consumer group creeps need a remedy. Let’s turn the tables on these fronts for plaintiff’s attorneys and take back our country.

Read more here:
CPSIA – CPSC Clears Zhu Zhu Pets . . . But The Damage Can’t Be Repaired

CPSIA – Do-Gooder Congress Ends The Green Toy Movement

Read more here:
CPSIA – Do-Gooder Congress Ends The Green Toy Movement

Next Page »