CPSIA – That’s all, Folks!

Sadly, after four years of CPSIA advocacy, it’s finally time to say farewell. The timing of my goodbye comes as we approach the third anniversary of President Bush signing the CPSIA into law (August 14, 2008). I am paroling myself for time served. This is my final blogpost. This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment ( HR 2715 ) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead “dangers” presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . . The remaining affected industries will not receive additional relief from Congress because any significant political pressure which might drive change has been neutralized. This was a Democratic strategy to make this issue go away (divide-and-conquer), and it worked. I believe the CPSIA will not be amended in the next two years in any way and may not be amended in a meaningful way again for many, many years. Read HR 2715 – that’s all you are likely to get from Congress. I have no realistic expectation of further relief from the CPSC, either. The three Democratic votes on the Commission can’t be beaten, and as I have shown in this space, they always vote as a pack with no meaningful exceptions. One “triple vote” will always beat two votes. These Dems have selective hearing or memory or just don’t give a darn about data or testimony that doesn’t validate their conclusions. The outcome of a CPSC hearing, Commission meeting or request for public comment on a CPSIA issue is about as much in doubt as the average Moscow show trial. [It just takes a little longer. . . .] The comparison to Stalin’s show trials is apt. In the 1930′s, the Soviets cynically used legal proceedings to lend the appearance of legitimacy to its “findings of fact” (generally based on coerced confessions) and its rendering of “justice”. Of course, the trials were just a sham, nothing more than an administrative procedure for implementing a political agenda. And at the CPSC? I cannot point to a single CPSIA issue on which the Democrats showed an open mind or were capable of being influenced by data or reason. Draw your own conclusions, notwithstanding Bob Adler’s self-proclaimed “agony” in always casting his votes against businesses. After naively testifying at, contributing to or analyzing and reporting on so many CPSC proceedings that I have lost count, I have totally given up on these people and consider influencing them a lost cause. It’s not worth my time to continue to attempt to work with them. So with no hope of further legislative relief for the foreseeable future and with closed minds and closed doors at the CPSC, this is not a worthwhile venture for me anymore. I cannot justify it and plan to turn my attention to other opportunities with greater promise of my adding value. I am done with the CPSIA and the CPSC. Despite the almost overwhelming urge to “sum it all up”, I don’t intend to offer any concluding wisdom. Already prone to repeat myself endlessly in this space, I have clearly stated my position on the issues and my opinions haven’t changed. You know how I feel with specificity. Given that I believe it’s all over but the tears, I can’t see what good would come from parting words on the “war”. Kind readers, you have become my friends and family. I really value your readership and your support. This blog reflects your pain and your passion, too. We have fed off each other. I want to thank you. You have sustained me. For those of you who read this blog just to see what I would say about you and who will not miss my little missives (or me), I can only say that I have been completely honest and candid in this space, working with facts and real data, consistently documenting my source materials and my analysis. I respect that you may disagree with my conclusions or opinions, but I don’t respect that you refused to take me on. For all your whining and grousing about me, generally behind closed doors, none of you ever stood up in this space to tell me where or how I was wrong. You apparently lacked the courage to engage in a true, open debate where the outcome was not predetermined in your favor. Perhaps you preferred to ignore me, my arguments and my data, hoping I would go away. In the end, you got your wish. Lucky us. So the battle ends for me, here. Perhaps someday we will see the return of common sense and respect for corporate members of our society in our safety laws. Until then, good luck to you and Godspeed. Rick

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CPSIA – That’s all, Folks!

CPSIA – Hey, Republicans, THANKS SO MUCH for that Pledge for America

Did anyone notice how the CPSIA Amendment (HR 2715) went to the House floor in the middle of the night on a Sunday after closed door horse trading out of the public eye, and was voted on early the next day designated as a “noncontroversial bill” (Monday, August 1).  The amendment didn’t go through a mark-up hearing and was only published a few hours before the vote.  The law includes some surprises, too, as one might expect on a bill emerging from a smoke-filled room.  Naturally, the Senate considered it and put it up for a voice vote in even less time.  How many Members of Congress bothered to read the bill before voting on it?  How many Members of the responsible House and Senate committees read it before voting on it?  Your guess is as good as mine. You may recall that the Republican Party published “A Pledge to America” in 2010 ahead of the Medterm elections, with the nifty subtitle “A new governing agenda built on the Priorities of Our Nation, the Principles We Stand for & America’s Founding Values”.  Impressive. The Pledge includes a section starting on page 33 called “A Plan to Reform Congress and Restore Trust”.  Restore trust – I am all for that!! On page 35 of this document , the Republicans make the following ”promise”: ” Read the Bill    We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives. No more hiding legislative language from the minority party, opponents, and the public. Legislation should be understood by all interested parties before it is voted on. ”   [Emphasis added] Correction:  They’ll do all that stuff unless they don’t.  And in the case of the CPSIA Amendment, well, come on, don’t be such a rule follower . . . .

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CPSIA – Hey, Republicans, THANKS SO MUCH for that Pledge for America

CPSIA – A Comment Not to be Missed

From Anonymous : “I have to say, as a lifelong Democrat, this whole CPSIA thing makes me feel incredibly powerful! You have to admit that to be able to, during a deep recession, force the American people to pay the immense administration costs of the CPSC due to the CPSIA, while burying business in mountains of red tape and testing expense, and to do so while EXPLICITLY STATING that they have no obligation to show efficacy and in the face of a huge body of evidence that the CPSIA will accomplish little in terms of real safety is…Powerful! As a registered Democrat I practically feel I am becoming one with the force. You Republicans can join the force too. All you have to do is close your mind, admit that evidence (when it contradicts your cherished gut feelings) is overrated, and join the Democratic Party. Then you too can blatantly screw the American people.”

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CPSIA – A Comment Not to be Missed

CPSIA – As Predicted, the Senate Adopted House Bipartisan Bill Amending CPSIA

After three years of warring, Congress has finally passed an amendment to the CPSIA.  HR 2715 was approved by the Senate this evening by voice vote. This is expected to be the last legislative relief (thusfar the only legislative) relief from the CPSIA. 

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CPSIA – As Predicted, the Senate Adopted House Bipartisan Bill Amending CPSIA

CPSIA – The Senate Moves In the Direction of the House Bill

Confidential discussions are underway for Senate Democrats to accept the House bill amending the CPSIA which passed today 421-2.  The pressure being applied relates to the consequences on U.S. retailers from the retroactive application of the 100 ppm lead standard. If the House bill is accepted by the Senate Dems, it will no doubt be hotlined for quick passage by voice vote, and then this ugly process will be over. With the pending exclusion under the bill of ATV’s, bikes and books (the chosen winners, including the remarkable free pass on metal component testing by bicycle manufacturers), the rest of us (the chosen losers) will remain under the thumb of both the CPSIA and the Dem-controlled CPSC.  I would note that we, the chosen losers, are no doubt the people Inez Tenenbaum refers to as “certain cynical special interests”.  If you disagree with her agenda, you must be a “cynical special interest”, it seems to me.  Thanks to Jan Schakowsky for this nifty idea! I was asked earlier today if I supported the House bill (which subsequently passed 421-2).  I replied that the bill is good for us, but not good enough.  It does not address the big issues imperiling companies like ours, and furthermore, incorporates ineffective provisions on several fronts which are only there to bolster Dem chances for reelection.  That said, I advised supporting the bill because frankly what choice did we have anyway?  The impact of this bill, I noted, is like being offered a better cell in jail.  You gotta take it, if only for the view. But you’re still in jail all the same.

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CPSIA – The Senate Moves In the Direction of the House Bill

CPSIA – The Futility of Protesting the CPSIA

With Congress about to sign-off on a CPSIA Amendment which seals the fate of the regulated community, for better or worse depending on who you are, the question of what remains is quite relevant.  With rights allocated and responsibilities delegated to a Dem-controlled CPSC Commission, what kind of justice can we expect in the future??? As if to answer this question, last week CPSC Chairman Inez Tenenbaum published a troubling Op-Ed dated July 28th (” CPSC Chief to Detractors: ‘Safety Delayed is Safety Denied’ “).  In her article, Ms. Tenenbaum asserted that Democrats on the CPSC Commission are responsible for many “major victories” over the resistance of the minority party Republicans: ” We have made great progress at CPSC, and at times, our achievements have come with support from the two Commissioners in the minority party. Though, consumers should know that vigorous resistance is the rule, rather than the exception, with these two Commissioners. Through a coordinated campaign, these Commissioners have sought to delay and distort our actions in an attempt to circumvent the will of American families and Congress. Their tactics have been unsuccessful, as demonstrated by the strength of the new safety measures we have established. ” Democrats good, Republicans evil. . . .  She continues, openly accusing minority Commissioners of almost venally favoring pocketbook issues over safety: ” We faced another example of this obstructionism in our effort to make sure cribs are safe. From November 2007 to April 2010, there were 36 deaths associated with crib structural defects. To address this critical issue, the Commission voted unanimously last December to establish new crib safety rules. Sadly, two of my colleagues in the minority party then attempted to delay the rules from going into effect last month. They were for it, and then they were against it, all in an effort to put the interests of a few retailers over the interests of hundreds of thousands of parents and very young children. ” Perhaps granting me an honorable mention as an irritant, Ms. T. goes on to lay claim the higher moral ground.  As you know, this is all about the tug of war between good-and-evil . . . . ” It is ironic that the minority party Commissioners and certain cynical special interests continue to gesture wildly, alleging a failure to take the concerns of businesses into account, while many safety-conscious companies have been manufacturing, testing, and selling children’s products for nearly three years that meet and exceed the requirements set by Congress. The minority party’s approach does not solve problems and does not serve the public interest. The Consumer Product Safety Commission under my stewardship will not succumb to efforts to undermine this law. Like justice, safety delayed is safety denied. ” [Emphasis added] [I can't let Ms. T get away with the "safety delayed is safety denied" baloney.  To accept her rationale, one must conclude that safety was at stake in the cited decisions.  Among her claims of "major victories" is the determination that 100 ppm is technologically feasible.  Her own staff indicated that this decision will have "minimal" impact on safety.  And the safety achieved by the decision?  No reply.  She also points to the new phthalates standard.  Her own agency has TWICE considered these same chemicals for safety risks and TWICE given them a clean bill of health.  Isn't it a stretch to call her new standards a "major victory" for consumers or to contend that safety was ever at stake?  Not if data is irrelevant to you.  As is to ensure her own blissful ignorance (and to avoid learning anything inconsistent with her political agenda), Ms. Tenenbaum has never asked for injury statistics to evaluate evidence of the utility of the new rules she KNOWS will choke business.  Why not?  Who wants to spoil a good thing?  Safety delayed is safety denied . . . .  "Safety" perhaps defined in terms of job security.] Commissioners Nord and Northup replied to Tenenbaum’s Op-Ed snarkiness, and you should read their replies. However, I think the real issue is how this Commission will handle its responsibilities once Congress bows out.  Congress is about to let the Commission take it from here.  Now what? The Tenenbaum article raises a question in my mind.  Does Commission voting records give any insight into the Dems’ willingness to listen or their interest in listening to contrary viewpoints?  Is it all so open-and-shut?  Do we even have a fighting chance with these people, given their moral self-justifications?  Commission voting statistics have never been analyzed publicly to my knowledge, so I put them together this afternoon. Please feel free to check my work – here are the Tenenbaum era CPSIA votes . My tabulation excludes procedural votes and votes related to cribs and infant care, the phthalates CHAP and Pool safety. In other words, it is only those votes which relate to my advocacy on the core issues under the CPSIA. Notably, I am unable to access confidential votes – the spreadsheet only applies to votes cast in open sessions of the Commission. There have been 46 votes since her confirmation, and 37 since she began to chair the meetings. Each and every decision of the Commission has been controlled by the Democrats. Each and every vote won by Democrats had all Dem Commissions in tow with two exceptions – the two stays objected to by Adler, an avowed stay-hater.  Every 3-2 vote was three Dems to two Republicans.  No doubt each vote was configured for Ms. Tenenbaum’s consent – she has never voted against a proposed rule or ruling. Think about that – all the Dems voted together on everything, except two dissents by one Commissioner on the same issue, the extension of a stay, and in those cases he wanted to be even less forgiving of reasonable business interests. For perspective on this, consider that this is the Commissioner who claims to “agonize” over every vote but always votes against even the mildest form of relief for business. He is also the one who stated that he wouldn’t allow cost-benefit analysis to be performed ” over my dead body “.  He only veered away from his fellow Dems on two votes on stays.  What does that tell you? After three years of advocacy and the considerable expenditure of cash, time and other resources by so many people affected by this law, it seems apparent from the voting data that nothing we ever said or any data we ever presented were in any way persuasive to the Dems. They were gracious in their expressions of gratitude for our participation in their processes, but given the outcomes, one must conclude that we simply enabled them to give the appearance of justice. After all, we got our day in court, or so they would have you believe. However, if anyone who comes before a particular judge is sentenced to death, one begins to wonder about justice after awhile. The Dems have used slogans to justify their actions: – “There’s no safe level of lead.” – “Safety delayed is safety denied.” – “Over my dead body . . . .” Is there a pattern in these slogans? They are sanctimonious. They wreak of moral superiority, while at the same time pinning their work on other people. Ms. T. tells us that they were just carrying out the will of Congress.  Nevertheless, she would have you believe that their work is necessary and a triumph for you. They are self-righteous. There’s something smug about their contentions. They will block cost-benefit analysis with their dead bodies. They portray themselves as courageous heroes, opposing devious foes. Taking a page out of the estimable Jan Schakowsky’s playbook, Tenenbaum labels those who oppose her as ” certain cynical special interests “. Conspiracy theories bulk up her slender reed of self-justification. The slogans play to emotions and ignore legal precedent and data. Bob Adler’s ” How do you measure the life of a little baby? ” is a great example. Bob Adler is a lawyer and knows full well that the law provides a solid and respected answer to this question. As one practitioner told me, this kind of assessment is done every day in our courts and by other agencies. Adler knows that brains short out when he mentions “little babies” and who can argue that anything is worth more than the life of a “little baby”.  By invoking images of “little babies”, Adler and Co. divert attention from incoherent rationales underlying their decisions. [To save a "little baby", is it okay to eliminate one job? Ten jobs? 100 jobs? 1,000 jobs? 10,000 jobs? 100,000 jobs? 1,000,000 jobs? Where do we draw the line? The implication, if you listen to Mr. Adler (not that he ever listens to me), is that the value of a baby's life is infinite so no economic sacrifice is too great. He won't allow a cost-benefit analysis to be done, despite the fact that it is mandated by an Executive Order and is good law to boot, so the question will never answered.  But isn't it clear - the line must be drawn somewhere. We can't function as a society if it isn't.  Don't expect this kind of thinking as kong as Adler and Tenenbaum hold down the fort at the CPSC, however.] The slogans are cynical, too. Tenenbaum’s repeated request (four times by my count) in the hearing on 100 ppm that businesses are welcome, even encouraged, to file for exemptions from the technological feasibility decision is despicable and cynical. Cynical in a sincere voice and with a smile on your face is cynical all the same. The CPSC staff wrote up a 59-page analysis stating that EVERYTHING is technologically feasible.  She knows this.  Her encouragement can’t and won’t lead to exceptions – The CPSC staff have already “tied her hands”.    Still, she persists.  Consider Ms. Tenenbaum’s advice in her statement on the 100 ppm standard : ” Although the Commission already has voted on this issue today, if a manufacturer were to discover that it is not technologically feasible to manufacture a children’s product or category of children’s products, the agency always will consider a request for a technological feasibility determination through our normal petitioning process. During my tenure, the Commission has docketed and either has resolved or is considering several petitions requesting action on various issues. The criteria for any petition on the technological feasibility of achieving the .01 percent lead limit are laid out clearly by the statute and further explained in the staff briefing package. The process for writing a petition also is clearly set forth in the agency’s regulations. I encourage any business that discovers it manufactures a children’s product or category of children’s products for which it is not technologically feasible to meet the .01 percent limit to come to us with enough specific data to enable our staff to recommend that the Commission make a finding concerning technological feasibility under section 101(d) of the CPSIA. Our door always will be open to considering future requests. As always, for small businesses that may require additional guidance, our small business ombudsman stands ready to work to work with you on any of your concerns. I realize that this process has presented a challenge for manufacturers, and I commend those in industry who have worked so diligently to bring the lead levels in their products below .01 percent. ” [Emphasis added] Makes me want to vomit. This is your government talking.  Or perhaps lying? So as Congress closes the door on helping us, doling out relief to favored groups like ATVs and books, they left the rest of us to fend for ourselves. The issue of how any of this related to safety was never considered in the pending amendments. Congress also chose not to address the abuses of the panel of hanging judges at the helm of the CPSC. The result is painful and a reminder that fighting City Hall is pointless. In this case, the Dems in charge have proven they are beyond reach and will not listen. Further resistance seems futile.

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CPSIA – The Futility of Protesting the CPSIA

CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

According to my information, the Pryor Amendment , as amended to address the needs of resale goods stores , will be hotlined in the Senate this evening (passed by unanimous consent).  The bill then proceeds back to the House which remains a “house-divided”.  Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot.  Who will win the day?  If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately – I am not as clever as some of the other cynical observers of this mess).  If the ATV’rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers.  There are no winners. It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what’s at stake.  We are all depending on a sensible outcome of a quick Conference Committee.  The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny. The next few days will seal our fates, once and for all. More to say later this evening.

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CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

Senator Pryor today introduced the so-called ” Consumer Product Safety Flexibility Act of 2011 ” to amend the CPSIA.  This four-pager is targeted at three problems: First , it makes the 100 ppm lead-in-substrate standard prospective. Second , it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA.  It also gives a year extension on the standards for all-terrain vehicles. Third , it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard. The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number. This is a useful effort by Senator Pryor.  For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess.  Hats off to Mr. Pryor for at least providing a means to address this issue.  Rumorville has it that the Senator wants to do more than is expressed by this bill.  Other Dem Senators are on the list as purportedly wanting to do more for us.  All I can say is . . . get in touch with your feelings, Senators.  We need help NOW and we would appreciate your help and leadership in particular. As for saving the ATV’rs and bikers, well, they never belonged under this law in the first place.  The devastation wrought by this law should have been addressed long ago.  That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act.  None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates.  The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us.  [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs.  The AAP admits they want youth model ATVs off the road.  This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.] Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is.  The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents.  If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits.  Come on , guys, science kits?!  Do you REALLY want to send America’s science education back to the Stone Ages?  It’s time to loosen the noose on American industry. One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.

Originally posted here:
CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

CPSIA – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

News Flash :  Personal Injury Law Firm Beasley Allen P.A. announced the revelation that the CPSIA Database is a success but is still under attack.  Hmmm. For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a “$150,000,000 verdict in a personal injury case”.  No doubt they are impartial in their views on the database.  Their web address is http://www.southerninjurylawyer.com/ .  To bolster their case in favor of the database, they trot out the informative results of Henry Waxman’s “analysis” of the database released on July 7th .  [Mr. Waxman did not make his data available so his analysis has gone unchallenged.  The only way to review it is to recreate it.  Take it for what it's worth.]  Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument – don’t worry, she plays the violin!), completing the rogues gallery. Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that “[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed.”  Aha. There is an evil side to this controversy, naturally:  “Still, a powerful anti-consumer lobby wants the database shut down , and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations.” [Emphasis added] Oh, yes, the well-known and powerful “ANTI-CONSUMER LOBBY”!  Have you ever met someone who was not a consumer?  Are the people who never consume anything or don’t have relatives or family members?  Or are they people who don’t want consumers to buy their products?  Oh them!  Or perhaps they are people on who oppose personal injury lawyers.  Just a thought. . . . The Southern Injury Lawyers conclude:  “Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses.” So says the lawyers with the $150 million dollar tort lawsuit.  Seems definitive to me. What could the problem possibly be???

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CPSIA – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

CPSIA – NAM Ad In The Hill Supporting Passage of ECADA

From The Hill Newspaper, dated July 21, 2011: The time left to Congress to act on amending the CPSIA before the 100 ppm lead standard boom crushes more businesses and jobs is only 24 days .  [ Html version of the ad ]  This includes the time to get through the Senate, then conference, then to the President for signature.  Not a lot of time . . . and par for the course for this government, I suppose.  Will they act in time?  I certainly hope so but with Henry Waxman doing his evil best to prevent any progress on this issue, I don’t have high expectations.  Let’s hope some Democrats still have a conscience.

Excerpt from:
CPSIA – NAM Ad In The Hill Supporting Passage of ECADA

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