CPSIA – Consumers Union is Hazardous to Your Health

Lies, innuendos, misstatements, twists – which is it this time? Today Ami Gadhia, one of the Consumers Union CPSIA hacks (a.k.a. “Policy Counsel”) weighed in with her usual bunk about the lurking “dangers” in children’s products.  In particular, today’s tripe is a protest against modifying the CPSIA.  Her writings and utterances are invariably infuriating for their lack of perspective, tall tales and general fear mongering.  In her article ” Turning Back the Clock on Child Safety Protections “, Ms. Gadhia continues her fine tradition of twisting and obfuscating the facts.  Considering her background in the subject matter and her law degree, one must assume ill-intent.  This can’t be accidental. Let me debunk her junk one-by-one: a.  “Turning Back the Clock on Child Safety Protections”:  The Op-Ed’s title is absurd in light of the actual bill’s wording.  The CPSIA Amendment (ECADA) is a mild and surgical bill intended to offer minimal but effective relief from over-regulation while preserving the structure of the CPSIA.  Killing the CPSIA is politically impossible, it appears, so this is the best that can be offered at this time.  Ms. Gadhia must be asserting that ANY change in the CPSIA is a setback.  This argument is always left unproven – but no one ever holds her accountable so why not tell the tall tale?  The consumer groups rely on the appeal of the “zero sum” argument which also goes unchallenged.  It goes like this:  ANY change in the CPSIA which might benefit a business is THEREFORE a setback for children’s safety.  If the Cubs lose 15-5, they are somehow better off if they instead lose 13-5.  Right. . . . b.  Ms. Gadhia, like her fellow manipulators in the consumer “advocacy” field, relies on an emotional appeal to kick off her crock – the story of a child who swallowed magnets, leading to gory injury.  A few notes on this line of reasoning: The CPSIA is NOT a toy law.  Despite Ms. Gadhia’s relentlessly repetitive references to toy safety, the law applies equally to ALL children’s products, from shoes and t-shirts to pens to rhinestones to ATVs and bikes to books to educational products to carpet to what-have-you.  By focusing on toy gore, Ms. Gadhia lulls her reader into overlooking the awesome overreach of this bill.  We don’t want kids injured by magnets . . . ergo , we should ban all hazards in all things.  Huh? The magnet hazard she refers to had never been seen by the agency previously.  It was a classic latent hazard, unregulated specifically because it was unrecognized.  You can see Gib Mullan, the current General Counsel of the House Energy and Commerce Committee and former General Counsel and Director of Compliance at the CPSC say ON VIDEOTAPE (at the CPSC Tracking Labels hearing ) that the agency first thought the problem was a small parts issue, not a strong magnets issue.  No law can effectively regulate UNKNOWN hazards.  Claiming that the CPSIA “solves” this safety issue is pure baloney. The magnet hazard was addressed promptly and effectively by the agency without the need for changes implemented by the CPSIA. The agency had this power under its 1972 enabling legislation and following laws. Sometimes bad things happen to good people. c.  Ms. Gadhia intones ominously about banned phthalates and their links to “a variety of health risks”.  As has been well-documented here, that provision was placed in the law at the last minute by Diane Feinstein, true to her San Francisco roots.  This is the same place that worked for years to ban circumcision.  Yes, they are really scientific in that community.  For a discussion of phthalates, please watch the 60 Minutes segment in which I appeared. d.  Ms. Gadhia trots out yet another misleading but longstanding justification for not changing the CPSIA – namely that it passed by an overwhelming majority of Congress.  I fail to grasp the intellectual power of this “infallibility of Congress” argument, and further note that dozens of members of Congress have been trying to change the law ever since.  There has been more than a dozen bills floated to amend this “perfect” law since August 2008.  In addition, the timing of passage of this law (three months ahead of the 2008 Presidential poll electing Mr. Obama) made it very dangerous politically to vote against this terrible law if you wanted to keep your job in Congress.  Even Mr. Bush had to sign it for political reasons.  The political and media frenzy in 2008 made rationality impossible, and minds were made up.  Have you ever made a bad call when you were furious?  ‘Nuf said . . . by everyone except the dangerous Ms. Gadhia. e.  The Consumers Union storyteller informs us that ECADA “would poke some serious holes in the product safety net”.  What a dream if Ms. Gadhia were actually right that this amendment would actually dent the CPSIA that I hate.  It doesn’t, regrettably.  To “prove” her points, she lists four lies : “The bill undermines safety testing for children’s products”.   The bill eliminates MANDATORY testing as required by the CPSIA.  It does not ban testing, nor does it discourage or remove the incentive to test.  Excessive testing is one of the original problems cited in the bill, and has cost our company well in excess of $1 million since the passage of the bill – all without making even one product in our product range safer, even a little bit.  This term is the brainchild of the consumer groups (Rachel Weintraub?), reasoning that if the government didn’t require mandatory testing, no testing would be done.  This misconception overlooks the enforcement of the new standards.  It is IMPOSSIBLE to assess whether you comply with the standard without testing.  Enforcement of the standard, as is anticipated, means that everyone WILL test.  What is being eliminated is the role of Mother Government “helping” us by telling us how to run our businesses.  If the standard is enforced, people will HAVE TO test.  If they don’t enforce the standard, they won’t enforce mandatory testing either. What’s the big deal here?  Just the opportunity for Ms. Gadhia to mindlessly bang her drum. “The bill undermines lead protections”.    Ms. Gadhia informs us that consumer confidence would “erode” if the current one-size-fits-all standard is replaced with “a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts, and other factors.”  OMG – standards that are reasonably tailored to the individual hazard and individual product!  NO – please tell me we still live in a world where books, t-shirts, diamonds and rubies, ATVs, bicycles, appliances, pens, carpets, DVDs and toys are ALL subject to exactly the same rules. What is the world coming to???  I presume Ms. Gadhia thinks we are idiots, or else this is all she has, which ain’t much.  Anyone surprised? “The bill undermines the effectiveness of the new crib safety standard”.   I have previously addressed this issue – the three Dem Commissioners made this same baseless accusation a few days ago.  See my reply in this space. “The bill undermines the new public database for people to report and read about product safety problems”.   Ms. Gadhia warns “the provisions in this legislation would place onerous burdens on the person making the complaint, thereby discouraging parties with valuable safety information from reporting.”  Whoa – you mean we won’t get to see stuff like this , this  and this again??? Ms. Gadhia needs to get one last jab in:  “The Leisy family’s experience shouldn’t happen to another child.”  Okay, I don’t want to see any child injured ever again for any reason . . . but does Ms. Gadhia even make a coherent argument here?  Does one thing have ANYTHING to do with another? It’s time to turn back the clock on irrationality and lowest common denominator government.  Who should set the tone for us – the Anthony Weiners of the world (did you hear that his wife is pregnant?) or people that are interested in children’s safety AND the viability of American businesses that provide jobs to your neighbors and valued products to your kids?  I think it’s time that our representatives in Congress, especially those in Congress calling themselves Democrats, to stand up for WHAT’S RIGHT rather than what’s easy or what’s safe (for their job security).  We pay them to lead, not to cower.  PASS ECADA AND END THE CPSIA CHARADE!

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CPSIA – Consumers Union is Hazardous to Your Health

CPSIA – Good News and Bad News (Update No. 1)

Tokyo tap water is no longer suitable for babies 12 months or younger. The impact of the Fukushima nuclear disaster spreads. Black smoke is seen coming out of Unit 3 at the nuclear plant and workers are evacuated again. Won’t be allowed back for 24 hours. Not to worry you . . . but they have no idea why it’s smoking. Japanese Broccoli is now found to give you a healthy glow (an extra “benefit”) and the import of many Japanese foods from the region have been banned by the U.S. FDA and by Hong Kong, soon to be followed by South Korea. One Austrian scientist says this disaster will be similar to Chernobyl, and their crud is blowing over here.

Back on the home front, we are not worried about radioactivity from Japan. Harmless! Rather than focusing on the impact of nuclear material showering down on us from the heavens, into our food, our water, our produce, onto our skin and breathed into our lungs every moment of the day now, those valiant defenders of children, the CPSC, will be holding a highly-publicized hearing on pool drains – because a newspaper currently in bankruptcy hired an uncertified lab to perform tests on drain covers that have not apparently been involved in injuries. This is a TOP priority of our nurturing government. Who says we don’t need more government? Come on, baby, give me MORE!

Of course, I make light – after all, I am a blogger, I must do so. The real scourge for children, as anyone can tell you, is not airborne radioactive material, but lead – which is why our CPSC has worked so tirelessly for three years to identify dangerous items like ballpoint pens, rhinestones, brass bushings on toy car wheels, ATV engine blocks, bicycle frames and bicycle vinyl seats, branding them as unsuitable for sale (or exposure) to children under 13 years of age.

Of course, there’s plenty of legal mumbo-jumbo to consider, provisos and the like. Having carefully sorted out the hazard, our CPSC has determined that pens are only dangerous if they are intended for use by children. [Ballpoint pens have a tiny brass ball at the ink end, and brass contains 2-4% lead by weight. I bet you're scared now!] The ACTUAL USE of pens is not the health concern – what matters instead is what the manufacturer intended – you know, their state of mind at the time of sale. Hasn’t your mother ever told you that it’s what’s in your heart that REALLY matters? The CPSC took this on board. After much cogitating, they determined that it’s not a problem if 100% of children use ballpoint pens – no, it’s only a problem if kids use a ballpoint pen INTENDED for use by children. THAT’S unacceptably dangerous and big penalties and recalls can result if you step over the line. They must have figured out that the state of mind of the manufacturer changes the physical character of the pen – pens literally take on the power to harm when a manufacturer thinks about selling them to kids!

It’s a good thing we employ so many scientists at the CPSC. I hate to think about the crazy rules they’d come up with if they didn’t have such a solid grounding in real science. Of course, they also employ many lawyers . . . . Could it be the lawyers???

Of course, I jest. The CPSC is certainly right – how could such an august organization err? And experts have told them they’re right – that’s a double-check right there. At the February 16th hearing on the 100 ppm lead standard, Don Mays from Consumers Union, a REAL expert, kicked off his testimony by reminding the Commission that there is NO safe level for lead. [I did not provide you with a clip of those magical words, but you can dig them up yourself if you don't believe me.] Mr. Mays was joined on the consumer group panel by another RENOWNED expert, Dr. Dana Best of the American Academy of Pediatrics. Mr. Mays and Dr. Best had a revealing dialogue with Commissioner Anne Northup on the horrors of brass instruments. You will see that the CPSC has no choice, the risks to children are so severe. Here’s a transcript (you can see the video here):

AN: “Do you think that children that are in the 3rd and 4th grade should be prohibited from playing brass instruments considering the lead content of that brass?”

DM: “I think children should not be exposed to lead unnecessarily. And children in the 3rd and 4th grade, I have a daughter in the 4th grade and I certainly wouldn’t want her to be exposed to lead if that was coming from an instrument.”

AN: “So you would not let her play, like, the horn.”

DM: “I would be very concerned about that, that’s for sure. She does not play the horn, she plays the violin. Ha Ha Ha.”

DB: “The mouthpieces on most of those instruments are not brass.”

AN: “Yes, exactly. But they’re holding them. They sling them around and hold them. . . . They could practice at night and play it every day during class. That would mean an every day exposure. I just wondered if that would alarm you.”

DB: “Uh, it would alarm me that children were exposed unnecessarily to lead. And that’s again the responsibility of the CPSC to determine, to look at the studies on individual cases. I’m here to talk about the harms of lead to children and how they need to be protected.”

Frankly, I can’t remember if Ms. Northup started banging her head against a wall at that point or not . . . .

With this kind of counsel, you can rest assured that the CPSC has its priorities straight. Don Mays and Dana Best are on the case! Just PLEASE don’t mention bicycle licking . . . .

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CPSIA – Good News and Bad News (Update No. 1)

CPSIA – Congress and CPSC in the Clouds . . . .

I have heard from an old friend today, a resale shop owner. The store owner is as frustrated as anyone by the CPSIA and has some interesting observations. The store owner’s point is that it is utterly impractical for store personnel to be up-to-date on recalls or to manage recall issues on a day-to-day basis. Think recalled baby monitors with “remedies” like a new warning label. Think also of the national chain of resale shops that told us that many of their MANAGERS are paid $8 per hour. Can you get a sense of the brilliance of Congress’ master plan yet?

The store owner sent me a picture worth a thousand words:

The store owner: “The photo I’ve attached is of my six-inch binder of printouts for every recall on children’s items since the early 90′s. The papers on the floor are the new recalls since September 2010. I printed those last week, so I need to go back and print the newer ones. I take this binder to all my events and strive to search it thoroughly to keep recalled items out of our events. I’m going shopping today to pick up a second six-inch binder as I’m obviously going to need it.” [Emphasis added]

Sounds very practical. I am sure Scott Wolfson and Sean Oberle have some useful tips for this store owner on how to manage all this data. It is worth NOTING that rifling through 20 years of CPSC recalls is not the store owner’s main business – their business is selling gently-used merchandise – but it probably seems like it nowadays.

The store owner is also a victim of unscrupulous “gaming” by a competitor who seeks to capitalize on fear and the ambitions of local politicians to put pressure on him/her. The store owner: “I’m no longer comfortable posting publicly about CPSIA since a local children’s resale full-time store owner has told several of her shoppers that she’s planning to call the [local] Attorney General to come investigate my next seasonal consignment event to be sure I’m in compliance with CPSIA. Since I don’t have XRF vision, there is no way to prove I’m in compliance with the instructions to not resell anything over the lead limits, despite the fact that I’m not required to test. I still don’t have a clue what do to about phthalates, but I’ve banned all bath books, bath toys, & teething toys from our events anyway.” [Emphasis added]

There’s a stimulus plan for you. . . .

Did you catch the store owner referring to any topic relating to safety, such as injuries or concern for the health of children? Nope. It isn’t the concern of the competing store owner or the local Attorney General, either. This is about officious bureaucracy, paperwork for paperwork’s sake, all to satisfy a neurotic anxiety without a basis in FACT.

I used to ask “Where are the victims?” The zealots in the last three years have been able to produce exactly ZERO injured children from lead or phthalates in children’s products. So I guess I have to nominate my friend the store owner – a prototypical victim of this law.

Job well done, Congress and CPSC!

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CPSIA – Congress and CPSC in the Clouds . . . .

CPSIA – Richmond Times-Dispatch Editorial "REGULATION: Protection Racket"

REGULATION: Protection Racket

By Staff Reports
Published: May 9, 2010

We live in the safest society in world history, Michael Crichton observed in State of Fear, yet Americans seem to go about their day in abject terror of minuscule threats. Perhaps nowhere is this more apparent than in Washington’s approach to child safety.

At the instigation of the American Academy of Pediatrics, federal bureaucrats at the FDA, the Department of Agriculture, and the Consumer Product Safety Commission are studying whether to require the nation’s hot-dog makers to redesign hot dogs to reduce the likelihood of choking. Choking is a serious hazard — about 15,000 children receive medical attention each year because of it. But children choke on a wide range of items, from candy and gum to balloons and small change. In 2006, only 61 choking deaths were food-related, and hot dogs accounted for only 13 of those.

Any child death is tragic. Yet it’s worth noting, as The Washington Times did not long ago, that children under age 10 eat almost 2 billion — yes, 2 billion — hot dogs a year. On a per-hot-dog basis, the odds of a child choking to death are 13 divided by 2 billion, which comes to . . . well, a microscopically small number. The odds that a person will be struck by lightning in any given year are about 4,000 times higher than the odds of a child choking to death on a hot dog. Given that context, redesigning hot dogs looks like a solution in search of a problem.

But it’s not just hot dogs. The Consumer Product Safety Commission also has sounded the alarm about baby slings, which have enjoyed a recent surge in popularity because the close physical contact allows for greater parent-child bonding. In extremely rare instances, children can slip out of the slings or smother in them. The CPSC says slings are responsible for as many as 13 deaths — in the past two decades.

The CPSC also has announced the recall of 1.2 million high chairs. No deaths have been attributed to the high chairs, but the agency says they do pose a fall hazard because screws securing the front legs of the chairs can loosen and fall out. Earlier this year the CPSC announced a recall of more than a half-million drop-side cribs because of “31 . . . incidents. In six of those incidents children were entrapped between the drop side and crib mattress. Three children suffered from bruises as a result of the entrapment.”

Three children suffered bruises.

Of course it is possible to understate hazards that can endanger children, epecially young children. But if it is possible to understate the hazards, then it also is possible to overstate them. Context and perspective matter. If the regulatory state has reached a point at which it is warning about the dangers of patently safe products, then the public might reasonably wonder what, exactly, is being protected — the health of young children, or the jobs of federal employees?

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CPSIA – Richmond Times-Dispatch Editorial "REGULATION: Protection Racket"

CPSIA — ICPHSO Update – Remarks of Jay Howell on Hazard Reduction

Remarks of the CPSC’s Jay Howell on Hazard Identification and Reduction (again, this is not a transcript, just the points I found interesting or notable on issues typically discussed here):

Reasonable Testing Program is applicable for “non-children’s products”. There are several elements to this:

• product specs
• applicable certification test
• product testing plan
• remedial action plans
• program design and implementation documentation

Howell says these are common sense good business practices. I agree, by and large. Some of this is bureaucratic, however, and sets expectations better suited to mass market businesses than to small businesses. Will small businesses devote the considerable resources to this kind of paper pushing? If not, do these requirements set up those small businesses for possible big penalties? Perhaps.

Howell also discussed the need for “event-triggered testing”. Again, this is mainly common sense. On “periodic testing”, Howell acknowledges that there is no “one size fits all” answer to questions of frequency. He points out that testing frequency relates to the potential size of recalls. The more frequently you test, the smaller the batch size and the smaller the potential recall (with tracking labels). This is interesting if they actually will allow businesses to make this assessment themselves. The ability to make risk-reward choices would be a step in the right direction. One can only hope . . . .

He advises that you consider these factors:

• severity of possible injury
• production volume
• variability in test results
• test results close to applicable limits
• testing costs
• product complexity or uniqueness
• hidden hazards
• history of incident reports, warranty claims and returns.

Again, I consider this list to be sensible and basically a description of how to make a “duty of care” decision about your products. This kind of coaching by the CPSC is highly constructive and valuable. My only worry is whether this is a set-up for gotchas. I hope to someday restore my trust of the agency so that I can stop worrying about gotchas. This could be a “gotcha”. The CPSC needs to make sure that coaching is coaching, not a set-up.

The CPSC is sensitive to the issues of small volume producers, custom products, and the need for component part testing rules. There are a lot of issues buried in here. WATCH OUT for these rule releases and REMEMBER that your silence will be taken as TACIT APPROVAL. You will NEED TO send in detailed comments.

Jay also confirmed to me earlier today that the CPSC is now doing some recalls jointly with Health Canada. I noticed this last week but don’t know when it started. Not sure whether this is good or bad, especially since safety issues for manufacturers should be dealt with across all sales regions. Not sure how this will affect costs or risk. Legal actions in other countries can be excruciatingly expensive, and if encountered, has the potential to kill small businesses instantly.

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CPSIA — ICPHSO Update – Remarks of Jay Howell on Hazard Reduction

CPSIA – Keeping Government Out of Children’s Products May Require Toxins

The Cadmium circus rolled on today with Senator Amy Klobuchar rushing to save America by calling for hearings on cadmium. Ms. Klobuchar must have been in quite a hurry to save America:

“Jumping on a report about toxic levels of cadmium in children’s jewelry from China, Sen. Amy Klobuchar is pushing for a hearing on the issue. Klobuchar, D-Minn., sent a letter Tuesday to Senate Commerce Committee Chairman Jay Rockefeller, D-W. Va., that says, in part, ‘this metal has no place in children’s toys.’” [Emphasis added]

Jewelry . . . toys . . . it’s all the same, isn’t it? Heck, when you’re saving children’s LIVES, these piddling details are merely the hobgoblins of little minds (Ralph Waldo Emerson must have been from Minnesota). If her heart is in the right place, who cares if she has any idea what she’s talking about?

Not one to let down her adoring public, Ms. Klobuchar shared some of her expertise on the CPSIA and toxins: “Citing [the CPSIA], Klobuchar wrote that although there are ‘currently no cadmium restrictions on toys and jewelry, cadmium is a poison and if ingested, can hinder brain development and lead to other health problems in children.’”

This is, strictly speaking, not true. Well, how can you expect Klobuchar to actually check a factual statement like this? She is one busy Senator, there’s no time for dilly-dallying. It’s not like she’s a lawyer (oops, she is!) or actually participated in writing the CPSIA (oops, she did!) and voted for it (oops again, she did). She probably even read the law at one time (oops . . .).

One of the brilliant changes put through by Ms. Klobuchar and her Congressional brethren in the CPSIA was the codification of ASTM F963 (Section 106 of the CPSIA), the formerly-voluntary standard of the toy industry. This document (it’s really long, don’t blame her for not leafing through it) imposes a requirement of not more than 75 mg/kg of cadmium in toys. The CPSIA even required the CPSC to examine the effectiveness of the ASTM standard within a year . . . and they did it without changing any requirements relating to heavy metals. But that was before the latest headlines.

Of course, Ms. Klobuchar was simply joining the fun along with Senator Schumer who introduced anti-cadmium legislation to save us, and Chairman Tenenbaum who encouraged people to rip jewelry off the necks and wrists of their kids: “We have proof that lead in children’s jewelry is dangerous and was pervasive in the marketplace. To prevent young children from possibly being exposed to lead, cadmium or any other hazardous heavy metal, take the jewelry away.” [Emphasis added] Joe McCarthy would have loved this free-for-all.

Even the AP is now scratching their collective heads. The same AP reporter issued a new article today puzzling over the panicked regulators: “When pressed, Tenenbaum’s spokesman Scott Wolfson explained parents should grab the trinkets and toss them. Just be sure to ‘safely dispose’ of the merchandise under applicable state and federal environmental law.” [When I read quotes like this, I think if there wasn't a Scott Wolfson at the CPSC, we'd have to make one up.]

The AP article carries on: “So what are America’s Moms and Dads to do? While neither Tenenbaum nor Wolfson would outright say not to buy cheap children’s jewelry, that inference was clear, too. A tough conversation around the kitchen table: don’t buy any new stuff, don’t give out any new stuff, don’t play with the old stuff. In fact, get rid of the old stuff, but in a manner that doesn’t risk putting toxins from the jewelry into the environment. And make sure you don’t go out and resell the jewelry through online auctions or to a thrift store, said Wolfson.” [Emphasis added] Wolfson has a way with words, doesn’t he? Reporters must love him . . . .

The AP sums it up: “So instead of focusing in on specific items, as a recall would do, the CPSC officials are taking on an entire industry. . . . [The testing for AP] only looked at 103 pieces of low-priced children’s jewelry — finding 12 items with cadmium content above 10 percent of the total weight. . . . Clearly, the CPSC is worried beyond those limited test results. Even during the height of product recalls from China several years ago — when millions of items of jewelry or painted toys with high lead levels were taken off store shelves — the CPSC did not issue such a public warning. Under the administration of President Barack Obama, and with Tenenbaum replacing commissioner Nancy Nord atop the agency, the CPSC is projecting a much more aggressive image.” [Emphasis added]

Cooool under fire! I think the CPSC isn’t going far enough. It is clear that we in industry do not measure up to our leaders’ high standards and expectations. Imagine having to wonder what will be in the paper every morning, the pressure, the angst. [If it's in print, it must be true - just ask the Zhu Zhu Pets folks.] So, to avoid all that stress, I recommend that the CPSC take the bold step to make everything illegal. We should be required to turn over all of our possessions to the government for safe disposal according to applicable environmental protection laws and then move, naked, back into the caves where things will be much safer. This should make things simple and besides, the enforcement and legal staff create NOTHING BUT WORK for the Commission. My heart bleeds.

But wait, that won’t make us safe just yet. Cadmium is in our food, in our water, in our air, in cigarettes, in batteries and fertilizers, in our workplaces – horrors! I just had an epiphany – Cadmium is so ever-present in our environment that it must be the cause for human mortality. There, I put that sentence in writing and published it – so it must be true. The CPSC therefore should ban food, water and breathing. It’s the only thing they can do to save the human race.

And I used to think we had too much government. You ain’t seen nothin’ yet, baby. . . .

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CPSIA – Keeping Government Out of Children’s Products May Require Toxins

CPSIA – Eroding Trust in Our Leaders

The CPSIA spectacle over the past two years of Democratic leadership in Congress has been a sign of the times, something that revealed basic problems with these new stewards of our futures. Not only have the Democrats alone stood up against altering the CPSIA, the source of well-documented misery and phantom benefits, but they have ruled with an iron fist in an attempt to suffocate opposition. Please note that for two years, Congress under the leadership of Californians Henry Waxman and Nancy Pelosi has successfully resisted having a hearing about this law with stakeholder witnesses who could shed light on the problems (rather than the joke of hearing last Fall featuring one witness, a newly-appointed Party-loyalist Chairman of the CPSC). The message control and forum management has been revolting. Despite the fact that these folks work for us, there seems to be NOTHING we can do about this sham process.

Readers of this blog are well-aware of the mounting ANGER over this astounding indifference to facts the awful CPSIA and our suffering. The latest low point engineered by Democrats is the Commission’s failure to approve public discussion of the recommended changes to the CPSIA, a report due next Friday. This is no small issue – read my post from yesterday for a summary of legal changes necessary to restore sanity to safety administration in children’s products – yet the Dems apparently feel discussion of these issues in front of you might somehow limit their discretion. Huh? It is very tempting to believe that handlers from Congress (Guess Who) have given strict instructions to the Dem Commissioners that there will be NO public debate of these issues. And there won’t.

These blows to our faith in government raises serious questions of character. Leadership is accountable to the American public. A failure to operate openly and with an open mind is intolerable. People will not forget.

I understand that bipartisan meetings between Congressional staffers and the CPSC have been cancelled or postponed until the report is issued. Furthermore, I believe that Mr. Waxman is already circulating new language for his amendment redux quietly, sans hearing or public discussion. Connect the dots – the Democrats have decided what the report will say (they have the votes to ram it through), it has been pre-approved by Guess Who (which means it will not fix the CPSIA because the Dems on the Hill don’t care about our little problems) and a public discussion between Commissioners is pointless. As the self-appointed Prince of “Darkness”, Bob Adler, put it, “I think the positions at this point are pretty firmly set.” Right – set by Guess Who. Discussion in public will only embarrass the Dems on the Commission – they are only allowed to read from the script and will be unable to defend loopy positions without looking loopy themselves.

If all of this has not fully eroded trust in these folks, let’s not forget that we are not living in a vacuum. The behavior of the Dems on other issues is part of the milieu. These same “leaders” are making other messes for us to regard, such as Harry Reid’s “apology” for incredibly racist remarks about Obama’s skin color and “dialect”. OMG, can you believe the shamelessness? The Dems made everything nicey-nice by Obama and Al Sharpton forgiving Reid’s “poor choice of words”. Please, you can’t say something like that without thinking it, and if you think it, you are a bigot. Plain and simple. No apology will cover up this disgusting fact. ANY person in a minority will tell you that prejudice is deeply rooted, and no apology will rid the system of that poison. Reid’s apology rings rather hollow to me. And he’s the voice of the Dems in the Senate.

And then there’s health care. To protect you, Mr. Obama and the jackals crying out for health care reform have insisted on taxing “Cadillac” health care plans. This sounds “bad”, right – like someone’s getting something they don’t deserve, all at your expense. More benefits for “fat cats”, right? A great sound bite for the saviors to make their case . . . .

That’s what Obama and the other Democratic do-gooders are all about, making things fair for “regular” Americans, isn’t it? Well, Fortune Magazine has a different slant on this critical term in the Obamacare plan – namely, that the tax on so-called “Cadillac” plans will mainly punish the elderly. Why? Well, here’s a shocker, more expensive health care is generally health care delivered to sicker populations, like older Americans. Here’s an example of a plan that crosses the Cadillac boundary: “Now to Medicare — no Cadillac plan — which will spend about $510 billion this year to cover fewer than 46 million people. That’s more than $11,000 a person, well over the Cadillac threshold of $9,850 for single retirees 55 and up. And that’s without counting Medigap coverage (for which I have no numbers), which would send the average higher.” Right – Medicare, the health plan for older Americans.

I am sick of the misleading messaging, the manipulation, the indifference, the obstruction of this crop of Democrats. I have no idea if the CPSC Democratic leadership will rise to the occasion and do the right thing or whether the House and Senator Democrats will wake up to the terrible mess they made and take the appropriate steps to fix it or whether (as seems likely) the fix is in and we are cooked, but this much I DO know – I am sick of this treatment. I cannot support this kind of leadership and cannot abide by it.

The Democrats have made this mess entirely themselves. No one forced them to be so deaf and so indifferent. No one required their arrogance, high-handedness or insensitivity to the misery that they caused. When November 2 comes around and the American people exact their revenge, the party leadership will have no one to blame but themselves.

I look forward to that day.

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CPSIA – Eroding Trust in Our Leaders

CPSIA – Brass Bushings Petition Rejected – Now What?

Disclaimer: I am in a bit of a rush today, but wanted to get this out to you. I normally give you quotes and citations, but today am working on a deadline. If I get a small detail wrong, my apologies – please correct me. I will try not to put the wrong words in people’s mouths . . . .
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As expected today, the CPSC Commission rejected the petition of Learning Curve to exempt brass bushings in the wheel assemblies of its toy cars. I have written about this several times in recent weeks, most recently issuing my own “ruling”. This innocent request was a loser from the start, not because of any safety issue but because of a very rigid and technical law that caught up brass bushings in its terrible web.

Some quick comments and tidbits:

a. Anne Northup emerged as the beacon of rationality in this debate, constructively offering a lawyer’s argument that the word “any” means de minimus amounts of lead, not none. She pointed out that Congress okayed 300 ppm lead content in substrate suggesting that it considered some amount of lead to be tolerable. Adler called this analysis “brilliant” but disagreed with it, contending that the clear meaning of the word “any” is . . . “any”. [The word "any" is critical to derive meaning from Section 101(b), the lead exemption section of the CPSIA. He also pointed out that the precedent in prior Commission decisions is that "any" means "any". [Who knew they'd read all those old decisions anyhow?!] Mr. Adler dipped into the consumer group handbook and stressed the health dangers of lead and repeated the “no safe level of lead” mantra. [It is hard to defend lead, and I have no intention of doing so, but as a matter of science, I think this is flat out wrong. Aside from the fact that we all consume lead by breathing, eating and drinking every day and must therefore being slowly poisoned with the government's apparent permission, toxicologists will tell you that the dose makes the poison. Thus, there are in fact safe levels for lead, notwithstanding that lead is a known neurotoxin.]

I agree with Adler’s legal analysis and support reading the law using the plain English meaning of the words. I prefer the OUTCOME offered by Northup, but a rational set of laws depends on use of the plain meaning of the words. I am also supportive of respecting precedent if we want to maintain a sense of the Rule of Law. So . . . this means we are stuck with this awful law and its awful strictures until it is amended.

b. I wasn’t the only one who realized that Congress needs to get engaged for the Commission to emerge from this corner. The debate on this topic was vigorous and fascinating. I recommend that you check out the video at your convenience. Adler pointed out that the language of the law is stringent (“rarely seen anything this emphatic”), intentionally so. Nord expressed severe reservations over this removal of discretion, noting that the CPSC is “the expert agency”.

Nord and Northup wanted the vote on the LCI petition delayed or enforcement stayed until the CPSC could seek guidance from Congress or feedback from OMB. Adler would have none of it. He cited the super-majority that voted for the law and expressed the view that Congress didn’t need to hear from the CPSC on this subject because of its decisive action. There were echoes in Adler’s argument of assertions by House staffers that the CPSIA didn’t need amendment because of its “perfect legislative process”, implying an all-knowing, never incorrect or regretful Congress. He said Congress “shot real bullets” and went so far as to state that not only would Congress refuse to act if CPSC approached it, but that it might actually harden its stance ESPECIALLY if the CPSC reached out. In other words, according to Adler, going to the Hill to get relief or guidance might not make things better, it might antagonize them and make things worse. Believe it or not.

c. Northup noted that she was the only Commissioner who has served in Congress and confirmed . . . (are you sitting down?) that some members of Congress do not master every nuance of every bill. Some might not read the bills at all. OMG! Anyhow, she says that the exemption section was likely considered by members of Congress voting for the CPSIA to be a real, if stringent, exemption process, not the inert and impotent process that it has become. This argument did not seem to persuade Adler or Tenenbaum. Adler said he had seen no indication yet that Congress was interested in changes to the law. This got a hot reply from Nord who offered him her file of letters from members of Congress asking for change in the law (including a letter from Senator Klobuchar (MN) specifically on the point of the meaning of “any”).

The meeting veered off in a schizophrenic direction at the end when Northup and Nord asked for a public debate to be scheduled on the meaning of this precedent and its far reaching implications. Adler replied that he wanted to see their “letter” because he said he might be “very sympathetic”.

I found this last exchange extremely confusing. Adler gave me the impression of speaking out of both sides of his mouth. Tenenbaum remained basically silent, which was disappointing, given the importance of this decision and of her leadership role on the Commission. She can provide more leadership to this group than by simply presiding over the meeting. A lack of coordination among the Commissioners or perhaps off-line dialogue seems to be missing. In any event, I may be some kind of political idiot but the Commission’s strategy or even the thinking about how to resolve this terrible impasse is not apparent to me. For them to reject the LCI petition (voted down 3-2, with the deciding vote cast by a MIA Thomas Moore), refuse the opportunity to kick the can down the road by asking Congress for guidance and then to seem interested in reaching out in some way anyhow, left me utterly confused. Should we trust them to guide us home, or are they lost, too? What’s the path forward, and why won’t they ‘fess up to both their problems and their strategy? What happens next and who will protect us? These are troubling questions.

The business community will be understandably horrified and demoralized by this decision. The strict interpretation of the CPSIA has now been blessed by a full Commission. They have hardened on the plain meaning of the law. While the Rule of Law has been upheld, and that’s a good thing, it also means that the worst parts of the law will be respected, too. Thus, the economic destruction that we have been predicting based on the plain meaning of the law was given a boost today by the Commission. If you want to see the future, read the law. It’s all in there. Until proven otherwise, this Commission has yet to signal an interest in going across town to talk to Mr. Waxman and his lot.

Interesting Side bar: Learning Curve apparently brazenly and openly continued to sell these items during the pendency of this petition. That risky strategy involved knowingly selling a product that they believed was illegal (that’s why they asked for an exemption). That’s a no-no, although it had no safety consequences for anyone (as acknowledged by CPSC Staff and certain Commissioners in today’s debate). Notably, Mr. Adler asserted that the CPSC Staff would let their own kids play with these cars even if the kids’ blood lead levels were right at some sort of hypothetical lead “tipping point” – in other words, the cars are perfectly safe, no point denying it. Nevertheless, Mr. Adler upbraided LCI for this procedural faux pas. He cited them for bad “optics”.

Bad optics – after today’s decision, I think that’s something for the Commission to think about.

Read more here:
CPSIA – Brass Bushings Petition Rejected – Now What?

CPSIA – ICPHSO Toronto Update

I attended this week’s ICPHSO meeting in Toronto. The meeting was located in Toronto and focused much attention on the proposed amendment to Canada’s 40-year-old Hazardous Products Act (the so-called Bill C-6). The meeting was attended by more than 250 people, largely comprised of Health Canada officials (the analog to the CPSC), CPSC staff, including Chairman Inez Tenenbaum directly from China, a variety of testing companies, mass market companies, Canadian companies, lawyers and other interested parties.

I thought I would share a few tidbits from the meeting:

Chairman Tenenbaum’s Keynote Speech: Chairman Tenenbaum addressed the conference on Wednesday morning. Her speech is posted on the CPSC website. The speech included a few hints of movement toward accommodation of businesses under the CPSIA, but unfortunately, it is only provides hints at this point. It is worth noting that sidebars at the conference suggest that there is more sensitivity to business concerns than CPSC public statements might suggest, but then again, we can only rely on real action, not just words. The next development to look for is a change in tone and a change in actions. When we can triangulate from words to actions, and see a real easing of the intense pressure on businesses, then we can take the off-line assurances more seriously.

Some highlights from the speech:

• The “good”: The “15 Month Rule” is due soon. Tenenbaum promised a special two-day workshop on this rulemaking IN ADDITION to normal public outreach. She emphasized that they want to “get it right”. [Ed. Note: Rumorville has it that this rulemaking will be delayed, and the two day workshop may precede the issuance of the draft rule. Likewise, there is growing suspicion that the testing stay may therefore have to be stayed. There are multiple reasons why this may have to happen.]
• She emphasized a need to minimize the burden on small businesses. [Minimize is a relative term, let's not get too giddy yet. Need to see what they have up their sleeves.]
• The CPSC is reaching out to SAGs to make them partners in the safety process. She wants to minimize competition between the CPSC and the SAGs. I consider this a major advancement in CPSC practice and a nice contribution by Ms. Tenenbaum in the early days of her administration. Arguably, the 2007-8 crush of State legislation and SAG grandstanding evidenced strong State feelings of isolation and legal impoverishment (in addition to a general desire of local politicians to appeal to the populace before elections). A proactive approach by the CPSC to working with the SAGs is the best chance for ANY OF US to neutralize or minimize the disruptive behavior of States and SAGs in the future.
• Ms. Tenenbaum announced a substantial change to the penalty factors when she said: “In cases where CPSC may impose a financial penalty on a U.S importer for violations, CPSC may to take into account whether the importer has safety or compliance programs in place and whether they conducted pre-market and production testing to minimize safety risks.” Gib Mullan also acknowledged that the penalty factors will be changing. This is another faint sign that we are being heard. The penalty factors were very harsh in the first draft. After a bit of an uproar, it appears now that the agency is going to moderate its approach somewhat. If this turns out to be a “real” shift, it is good news indeed.
• The “bad”: The overall tone of the speech remained harsh and somewhat threatening, at least that’s how it felt to me. Phrases such as the following were reminders that the CPSC has a big club and intends to use it:

- “Chinese suppliers and U.S. importers are now on notice from both governments that it is a mistake to depend on good intentions and a few final inspections to ensure compliance with safety requirements.”

- “We will enforce in a firm but a fair manner the new federal law that puts strict limits on lead and phthalates in children’s products and makes all toy requirements mandatory.” [The emphasis was hers in the live speech.]

- “As I have consistently stated, we intend to enforce this law that Congress put in place in a firm but fair manner. CPSC also has a federal rule making underway that puts U.S. importers on notice.”

- “Another area that we at CPSC are rethinking is the singular approach used in the past to identify risks and simply recall products when necessary. This is one aspect of enforcement that will not work if pursued alone.”

So Ms. Tenenbaum maintained the tough tone but gave hints of a coming thaw. We’ll see in due course if I am imagining things. Needless to say, I hope not!

Remarks of Gib Mullan: Gib Mullan, the CPSC chief enforcement officer, gave a short speech summarizing the CPSIA and recent events. I must say I found some of this speech positively chilling. For one thing, Mr. Mullan noted with apparent satisfaction the first recall of a toy for violations of the phthalates ban. I believe this refers to the recall of 40 inflatable toy baseball bats previously highlighted in this space. Aside from the fact that Mr. Mullan confirmed that the enforcement focus of the agency is (supposedly) bath squeeze toys, which certainly does not include inflatable baseball bats, this micro-recall of 40 bats is highly suggestive of a strict liability enforcement policy. If that is so, then what is the purpose of pointing out this recall to the crowd at ICPHSO? I would suggest that it is intended to scare the business community. Mission accomplished?!

Further to that mission, Mr. Mullan announced that the agency is attempting to be more “consistent” and “rigorous” in assessing penalties. Okay kids, think of Target’s $600,000 penalty – if the CPSC is going to be “consistent”, what does that precedent mean for the rest of us? If Target gets hit with a massive penalty after it performed preshipment testing, had no actual knowledge, was increasing its safety surveillance and turned itself in voluntarily after catching its own errors, what should we expect from a “consistent” penalty practice at the agency now? Mr. Mullan continued by noting (again, with a bit too much relish) the rising tide of penalties assessed by the agency in 2009, and further noted that they haven’t even cracked the 2007 lead-in-paint violations yet. He said larger penalties should be expected now, given the new powers allowed the agency under the CPSIA.

What is the purpose of this announcement? What else could it be, besides an intent to scare you and me? And, hats off to the chef, it succeeded. Among the many outrages of this new practice is the focus on retribution for old recalls with new penalties. Why is this a problem in my view? Well, for one thing, no one can do anything about the 2007 recalls at this point. Is the CPSC under the impression that the toy industry hasn’t “learned its lesson” yet? If that isn’t their view, then why lay on mega-penalties for matters that were apparently closed with significant expense now almost three years ago?

At what point is our penance complete? I can only supply a couple suggestions to explain this new penalty practice – (a) vindictiveness (as in CPSC meting out “justice”, rather than simply ensuring a safe marketplace), and (b) terrorizing the corporate community into “compliance”. Both rationales are wrongheaded and destructive. I continue to return to my original comment (December 17) on the penalty factors – CPSC penalties can only be consistent, rigorous, purposeful and (importantly) predictable if they are restricted to egregious conduct. Until the CPSC disciplines itself to a fairer penalty system, ALL OF US will assume we are next in line to get whacked like Target. After all, the CPSC has said publicly that they intend to be consistent and rigorous on penalties – in other words, they are telling us that we can and should learn from Target’s experience. That message unleashes a parade of horribles. The CPSC needs to take this on board.

One last observation about Mr. Mullan’s speech – he noted that recalls from China fell by 40% in 2009, the first fall in years. This is of course good news for everyone, most of all the children’s product industry. As we know, success has many fathers but failure is an orphan. Many pundits point to the CPSIA as the reason that recalls have fallen. Mr. Mullan added another factor, the deep recession of 2009. Both of these factors contributed, but I think the real “father” of this success is that the notorious publicity of the new law and the new strict enforcement of the lead-in-paint rules (under the old law) led various companies and industry organizations to get mobilized to address safety practices. Who among us wasn’t shocked and horrified by the suicide of the owner of a Chinese factory that supplied Mattel with lead-in-paint toys? The horrors of the recall frenzy and everything it entailed led to changes in practice. The remaining hubbub of the new law is just a hang-over IMHO, and does not explain the good recent reduction in recalls. For this reason, I believe the focus of the CPSC and its enforcement activities can and should SHIFT toward maintaining these gains through industry outreach, education, targeted and focused enforcement, and development of new and modern systems appropriate to the changing marketplace. It even calls into question the value of the law’s kneejerk requirement of prophylactic testing, something I am on record opposing.

Health Canada and Bill C-6: Frankly, I have not had time to dig into the Bill C-6 yet but it got a lot of air-play at ICPHSO. Much of the brass at Health Canada was there, and I attended several talks by these professionals. I must say I left impressed with the Health Canada leadership. They were incredibly approachable and engaged. I was not made to feel like the “enemy”. Especially notable was their TONE. They don’t even imply that businesses are populated with bad or untrustworthy people. They repeatedly pledged to work cooperatively with businesses and noted that they have done well for 40 years with voluntary recalls and non-confrontational relationships. Hmmm, could it really be true that you catch more flies with honey than with vinegar?

They also stressed their interest in hearing about “lessons learned” and engaging in real dialogue as the new bill is crafted and refined. They noted some real gaps in their enforcement empowerment under the existing law, which they characterize as outmoded, but then again, they also stressed that these powers are intended to be used only if necessary. What a different tone they struck. They convinced me that they are nice people who mean to be partners in safety with industry. A refreshing change.

The contrast with the last year of CPSC hostility was palpable. It gave me reason to reflect on the course of my own relationship with the CPSC. Interestingly, I was a big fan of the agency until about two years ago. For 17 years I trusted them, I consulted with them, I had no reluctance to work with them and thought of them as partners, I advised friends to trust them, I did not see them as the ‘enemy”. The CPSIA and the feeding frenzy of the last two years sadly eroded that trust. Trust has to be earned, of course. I believe trust in the CPSC can be restored but not without real effort and real action. The Health Canada folks struck the right tone, and we can only hope that the CPSC was listening. Industry and the CPSC do not have to be at loggerheads, and there can be trust (there MUST BE trust). To get there, the “new” CPSC may need to make some concessions, but a path to this worthy karma level does exist. This detente does not need to involve endangering children, either. Health Canada implicitly recognizes that industry has no interest in harming children. Considerable efforts by industry are expended to avoid this terrible outcome. The presence of a few bad or incompetent actors in a massive marketplace of many thousands of companies and millions of different products does not make the rest of the market participants into bad guys, too. This is the notion that must be abandoned.

Final Thoughts: ICPHSO was a great event for networking, off-line conversations and sharing of perspectives. I feel that there is room for more dialogue. We can only hope that some barriers are being broken down, and that we may see some positive surprises (for a change). It is also clear, as Health Canada demonstrated, that a regulator can be effective and non-confrontational at the same time. We know the CPSC has a big stick, perhaps they can stop reminding us with harsh rhetoric and harsh actions (we won’t forget about the stick, trust me). Next on the agenda is a rationalizing of the rules to allow businesses to function economically. Unfortunately, I cannot conceive of this development without a change in the law. To do this, the CPSC must summon up its resolve and TELL Congress that changes are needed. I do not see any way to avoid this. Time has a value, too, so the CPSC leadership must weigh the consequences of waiting – costs are mounting rapidly as time goes by.

I hope I’m not dreaming. This can be done. The coming weeks will reveal a lot about the direction and resolution of the pending issues confronting the business community.

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CPSIA – ICPHSO Toronto Update

CPSIA – WSJ Publishes Fifth Editorial Against the CPSIA

REVIEW & OUTLOOK AUGUST 11, 2009, 7:31 P.M. ET Consumer Product Destruction Congress’s lead in toys panic is set to ruin more businesses

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CPSIA – WSJ Publishes Fifth Editorial Against the CPSIA