CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

The sparks were certainly flying at the July 20th Commission meeting last week.  With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting.  I was amply rewarded with a display of regulatory arrogance you rarely see on tape – Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order.  I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman. The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia’s claims that CPSC Staff found that manufacturers intentionally add lead to children’s products (47:31).  While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was “debated”.  [Bickered over is more like it.]  Namely, whether the CPSC has to follow President Obama’s Executive Order  to preform cost-benefit analyses on regulations under the CPSIA.  I have previously addressed this issue in blogposts on July 12 , July 14 ,  July 20  and July 21 . After the usual pointless sparring over the ability of the CPSC to do the right thing (don’t worry, Bob Adler “agonized” over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems supporting of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA. Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah.  The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama’s little note. Chairman Tenenbaum laid down the law at 1:15 in the tape: “I’d like to comment on the Executive Order [which says] ‘Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.’  Congress was very clear. They wanted the lead limits at 600 then 300 then 100.   We have looked at this from all angles.  And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement.  And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children’s products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered .”   [Emphasis added] Take that, Obama!  Your EO is fictional!  Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President.  She pins this on the standards established under the CPSIA.  Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings.  She also glosses over so many other rulemakings which are remote from the standards.  Details, details. . . . The Obama order instructs the CPSC to follow Executive Order 13563 to the extent “permitted” by law.  The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it.  The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of  the Poison Prevention Packaging Act of 1970.  Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere.  The Dem Commissioners didn’t address this point during the July 20th meeting. EO 13563  in relevant part says:  “. . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . . “  The President’s new EO applies this verbiage to the CPSC.  Tenenbaum just blows it off entirely.  The President must be below Henry Waxman.  Ms. T gets pretty snippy at points.  ” There are people on this Commission that want to contort and use this Executive Order.  I have spoken to attorneys at the White House; I know I stand on firm legal ground.  And so please don’t leave this meeting thinking that we expected to do cost-benefit analysis or this Executive Order mandates that we do that.  It does not !” Tenenbaum’s argument – I am judge, I am jury, don’t question me.  Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency: ” It’s also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA].  The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.]  They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy .” Continuing the debate (argument), Bob Adler had much to say as usual.  As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body.  [See " Is that a promise, Bob? "]  At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here: ” My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that’s correct.  But let’s be clear:  it effectively in all major respects precludes us from doing that. When they’ve given us 42 deadlines to achieve in just a very short period of time, when they’ve specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there’s a very clear message from Congress there.  Congress in effect was saying ‘We’ve done the cost-benefit analysis.  Now we want you to implement the law .” So, the reason not to obey the President – Congress couldn’t have meant us to do a cost-benefit analysis because otherwise they wouldn’t have given us so much darned work to do.  In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already “completed” a cost-benefit analysis.  Mr. Adler does not attempt to prove his point, his assertion being enough apparently.  I am always impressed by the self-justifications of regulators who claim to be able to read the “mind” of an inanimate body like Congress.  In law school, they taught us to follow rules of legislative interpretation.  That’s so Old School!  Nowadays you only have to attribute a “thought” to Congress to “prove” legislative intent. Of course, just a few days ago , Bob asserted something rather different: ” It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis .”  [Emphasis added] At that time, Adler seemed to believe that the words “to the extent permitted by law” require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses.  Hmmm.  Does anyone think that legal analysis is just a bit “loose”? Ah, but Bob wasn’t done by any means.  He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter.  No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable.  Details, details. . . . ” One of the things that I this is intriguing . . . is where they say ’Now when you’re doing a cost-benefit analysis, let’s address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.’ How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby’s life.” So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn’t work.  Congress must not have meant us to waste our time . . . .   He later challenged anyone in the room to tell him what the “quantifiable benefits” of two lost IQ points are.  Too bad the EPA wasn’t there. They do that regularly.  Here is a quote from AOL Energy referring to this kind of economic analysis:  “The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using ‘long-standing, peer-reviewed’ practices on the effect of regulations, [EPA] officials said.”  Again, details, details . . . . Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin.  Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children.  As our apparent judge, jury and overseer, one must surmise that he thinks it’s his right to make this judgment, notwithstanding an Executive Order. Oddly, Big Bob does concede that the picture is not quite so clear.  Hmmm. ” I’m not arguing that because we’ve got a lot of work that Congress therefore said don’t do cost-benefit analysis.   [ Editor's Note :  Bob, in fact, that IS what you argued.]   That isn’t all they said.  They said ‘You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate.  In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to .”  Adler goes on to retract this assertion, and return to his claim that Congress DIDN’T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law.  His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one. Adler then launches into his final jab at blowing off the Order: ” I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way.  I think we have taken the approach in an extremely thoughtful way.  But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don’t think that analysis gets us very far .” So Adler wraps up with his “over my dead body” argument – he just doesn’t want to do it. Take that, Obama! Nancy Nord grimly assessed the sad spectacle we witnessed: ” This is an important issue.  And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn’t.  Whether that’s a good idea or a bad idea, we can continue to debate.  But Congress did not say not to do it – Majority did.  And I think that’s unfortunate and I think our rules have suffered because of  that. ” I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it’s at 1:24. With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO.  Nice try, Mr. President, but you’ve met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution.  There’s not much left to hope for with this crew in charge.  Maybe the CPSC will be on the national debt chopping block.  Don’t hold your breath. . . .

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CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

CPSIA – The CPSC Finds a New Way to Scr*w You

The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous.  Is it, really? Commissioner Nancy Nord points out that this decision was a compromise of a Hobson’s Choice nature: “I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change.” What was that last bit? Ummm, well, the ASTM is actually updating the F963 standard right now.  It will be done by year end. and as a result of the CPSC’s wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 – and probably necessary to test to the new standard, too!  Doesn’t that sound great?!  Now you can deliver TWO test reports when one might have sufficed.  But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one.  Just think of it . . . . Ms. Nord explains:  “When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating.” I no longer have a sense of humor, so you can rest assured that I am NOT making this up. Why the heck was the Commission in such a big, hot hurry to get this done?  Again, Ms. Nord explains: “We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays.” Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn’t want to vote for any more stays?  So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery.   The Dems on the Commission almost always vote as a pack.  Can you connect the dots? Not surprisingly, Nancy Nord can connect dots: “However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button.” Another Commission decision, another shellacking of the poor fools left serving children’s markets.  After three years of this torture, I am just not surprised.  When will our country wake up and notice this travesty?

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CPSIA – The CPSC Finds a New Way to Scr*w You

CPSIA – AAP Publicity Campaign Tries to Block CPSIA Amendment With Half-Truths and Worse

The notorious American Academy of Pediatrics, a political organization masquerading as a scientific organization, is mounting a furious effort to stop Congress from amending its baby, the misconceived and defective CPSIA.

CPSIA – Dem CPSC Commissioner Bias Against Manufacturers MUST Be Stopped!

Before the April 7th House hearing on the CPSIA, the three Democratic CPSC Commissioners joined together to assert that in the absence of their “leadership” at the agency and their vaunted CPSIA law, manufacturers would be “dosing” children with lead in ever greater amounts. To be precise , they said they oppose “any change in the law that would lead to an increase in the doses of lead to which our children are exposed on a daily basis . . . .” According to them, changing the law means that “doses” of lead WILL increase (but leaving everything “as is”, including their position at the helm, means that children will remain “safe”). In other words, they were warning Congress that “we” are planning to or will inevitably increase lead “doses” upon a change in the law. Our company is a manufacturer of children’s products, in particular educational materials and educational products. This scurrilous libel applies to me. I don’t like it one bit, either. Despite having previously raised this point in this space, I am still not quite sure people fully comprehend how offensive this action by Tenenbaum, Adler and Moore actually is. Of course, we all know the word “dosing” is offensive on its face. Everyone also knows that accusing me and my manufacturing peers of an absence of values and integrity, not to mention an actual present intent to harm children, is remarkably slanderous, unfair, untrue and completely unknowable. It’s practically a blood libel . But what I don’t think is clear is how grievously the three Democrats have violated a basic tenet of American social justice. in their panicky effort to appease consumer group zealots, the Dems have demonstrated a bias, a dyed-in-the-wool prejudice against an amorphous mass of people tied together only by false accusation. It would be their undoing if they had used the same logic to attack just about anyone else. Consider the following: How would you feel IF Inez Tenenbaum said she was opposed to changes in CPSIA lead rules because she didn’t want black people or gays to start “dosing” children with more lead? or . . . IF Bob Adler objected to changes in CPSIA lead rules because he said he wanted to prevent Jews from “dosing” children with more lead as they are wont to do? or . . . IF Thomas Moore pointed to Muslims as the principal danger in relaxing CPSIA lead rules? The shock waves would reach tsunami heights. None of these people would still be working for the federal government, either. Public outrage would ride them out on a rail. Of course, they didn’t say any of these things (to my knowledge). Instead, the three Dem CPSC Commissioners stood shoulder-to-shoulder and simply said they can’t abide the changes because manufacturers will “dose” children with lead. Can’t trust manufacturers . . . . This apparently is quite believable. The media bites down hard on the silly story, that’s for sure. Consider Jeff Gelles of the Philadelphia Inquirer : “With bigger matters at stake, it was easy to overlook another drama unfolding last week: a little-noticed assault on the Consumer Product Safety Commission’s efforts to improve children’s safety and the transparency of its complaint-handling process. But it sadly fits right into the theme of a Republican Party eager to please its core constituencies – in this case, business groups that often bristle at any regulation, even ones designed to protect children from unsafe products.” If it’s “obvious”, it must be true, right? Yes, if you are biased . . . or a bigot . . . or gullible. So apparently, it’s “believable” when politicians abuse their power by accusing me of an intent to harm children (despite the fact that we have a virtually unblemished record of safety and I have devoted my business life to making children’s lives better) – all because I am a member of a group called “manufacturers”. Had they leveled the same accusation at me or at a group including me based on race, creed, color, gender, religion, sexual preference or some such, they would be banished from our government. This is a dirty bias exposed, plain and simple. The Dems’ accusation is also the height of cowardice, relying on political power to bludgeon a group of randomly-selected citizens for political gain. They know they have overwhelming power and are unlikely to be accountable for this malicious lie. This isn’t the first time Inez Tenenbaum has resorted to this kind of unscrupulous media and Congressional pandering. You may recall my outrage over her statement to ABC News on the first day of the Xmas selling season last year (September 30th) when she used the occasion of Mattel’s 11 million unit recall to warn America against “manufacturers” who don’t design in safety up front. In my blogpost entitled ” Recall the CPSC “, I questioned why Ms. Tenenbaum was warning American consumers about our company – after all, we are a manufacturer. What had we done to deserve this treatment from Ms. Tenenbaum? Had WE suffered a massive recall? Had WE injured children? Did she have ANY evidence that WE were doing a bad job of “[building] safety into the product from the very beginning”? Nope, she didn’t – she made that accusation without any cause to do so. Mattel erred (if they actually did), NOT US. This is called bias. Read her remarks but substitute in the words “Jews”, “black people”, “gays” or “Muslims” for “manufacturers” to see the effect clearly. She was WAAAAAY off-base, but who held her to account? No one. It’s okay to have a bias against manufacturers. What can we do about this? I think it’s incumbent on Congress to do something about it. Let’s be frank – Congress appointed these people and they are accountable for the government that we “enjoy”. Is Congress ready to let bigotry and bias form the basis of our laws and our regulatory system? Is Congress ready to abandon its responsibility for oversight and to manage these rogues? How about a sense of basic fairness – there are huge numbers of manufacturers serving the American market. They are our neighbors, our friends, our relatives. Are we satisfied having a government run by people who HATE and DISTRUST manufacturers, think that “justice” involves taking away their due process and deciding cases before evidence is heard? I sure hope somebody’s listening. This is a MAJOR PROBLEM. It’s time to end the reign of terror at the CPSC!

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CPSIA – Dem CPSC Commissioner Bias Against Manufacturers MUST Be Stopped!

CPSIA – Witness List for April 7th CPSIA Amendment Hearing

Memo to Members of the House Subcommittee on Commerce, Manufacturing and Trade: When you listen to Dr. Dana Best fling around numbers tomorrow, please remember that “bazillions” is not a real number. When she asserts that there are possibly “millions” of injured children from lead-in-substrate, please demand real, auditable data! The Witnesses: Panel 1 Mr. Robert Jay Howell Assistant Executive Director Hazard Identification and Reduction U.S. Consumer Product Safety Commission  Dr. Barbara D. Beck, Ph.D., DABT, FATS Principal Gradient Dr. Dana Best, MD, MPH, FAAP American Academy of Pediatrics  Panel 2 Ms. Erika Z. Jones Partner Mayer Brown On Behalf of the Bicycle Product Suppliers Association   Mr. Paul C. Vitrano General Counsel Motorcycle Industry Council Principal Ms. Sheila A. Millar Partner Keller and Heckman LLP Caroline Cox Research Director Center for Environmental Health Panel 3 Mr. Frederick Locker Locker Greenberg & Brainin PC Mr. Charles A. Samuels Member Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Mr. Dan Marshall Vice President, Handmade Toy Alliance Co-Owner, Peapods Natural Toys & Baby Care   Ms. Rachel Weintraub Director of Product Safety and Senior Counsel Consumer Federation of America

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CPSIA – Witness List for April 7th CPSIA Amendment Hearing

CPSIA – Majority Staff Memo on CPSIA Amendment for April 7th Hearing

The Majority Staff memo on the CPSIA hearing was sent out to members of the committee to explain the CPSIA amendment ahead of the hearing. You can read it HERE

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CPSIA – Majority Staff Memo on CPSIA Amendment for April 7th Hearing

CPSIA – The Hill Publishes My Op-Ed on CPSIA Hearings

Enough already! It’s time to amend the lead law By Richard Woldenberg 04/06/11 02:51 PM ET After almost three years of bickering over the law regulating lead in children’s products, a comprehensive amendment is finally up for discussion in the House of Representatives. It’s about time. In August 2008, the 110th Congress passed the Consumer Product Safety Improvement Act (CPSIA) in an overreaction to notorious lead-in-paint toy recalls. Claiming that weak regulation “caused” these violations of law (lead-in-paint has been illegal for decades), consumer groups coined a slogan to sum it up: “There is NO safe level of lead”. Stooping low to sow fear, they have even warned the CPSC about the perils of bicycle licking and playing brass instruments in the school band. Their lead slogan has been repeated endlessly to justify a stifling, over-reaching law which has accomplished little but damaged many fine companies, killed jobs and depressed markets. The CPSIA deems companies “guilty until proven innocent” by forcing them to test products over and over again at huge expense to prove compliance with the new lead standard. The screams of law-abiding companies have been consistently ignored by CPSC as it has implemented ever-harsher regulations under the new law. The safety agency is even considering ratcheting down permissible lead from 300 ppm to the unimaginably low 100 ppm level. Economics be damned!   In contrast to the claims of CPSIA backers warning that the sky is falling, CPSC recall records list only four alleged lead injuries from 1999 to 2010 among the nation’s 50+ million young children. Advocates have never produced victim case histories to justify the draconian rules and simply wag their fingers at anyone daring to question their cherished law.  As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope. Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government. We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands. The CPSIA was written in response to failings of big companies, but hammers small and medium-sized companies with particular vengeance. Our small business has already lost customers who now feel that selling toys is too confusing or too much of a “hassle”. Market shrinkage courtesy of the federal government is our new reality. The technical rules and ever-changing legal requirements are beyond the capability of all but the most highly-trained quality managers or lawyers to comprehend. For this reason, small businesses bear the greatest risk of liability under the law, despite being responsible for almost no injuries from lead in the last decade. The double whammy of massive new regulatory obligations and the prospect of devastating liability are driving small businesses out of the children’s market. Our family business makes educational products, and we work tirelessly to ensure that our products are safe. We have tested our products for decades now.  None of us could ever tolerate lead poisoning. Nevertheless, I believe that our company should not be crushed by our government over some consumer groups’ phobias and junk science.  The 112th Congress should know better after years of hearings, comment letters, op-eds, pleading and even direct appeals from the five CPSC Commissioners. To quote The Who, “We won’t get fooled again.” If Congress is serious about fixing our economy and creating jobs, it’s time to lift the yoke of the CPSIA and set the children’s product market free once again. Richard Woldenberg is Chairman of Learning Resources, Inc.

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CPSIA – The Hill Publishes My Op-Ed on CPSIA Hearings

CPSIA – Star-Tribune Op-Ed Blasts CPSIA for ATV Effects

[Editor's Note: I have a postscript to add to this Op-Ed. See the bottom for an additional fact to consider.]

Mike Larson: Toy lead ban puts kids on ATVs at risk

By MIKE LARSON
March 27, 2011
Commentary

In a month or so, the snow will be gone, the Twins will again be fighting for a pennant and thousands of families will be hitting the trails on ATVs looking for fun and adventure.

Unfortunately, this year more kids are likely to be riding larger, adult-sized ATVs because thousands of dealers like me can’t sell youth model ATVs or mini bikes.

Why? Because of a ridiculous political fight in Washington, D.C., that is putting our kids in danger.

ATV dealers and others in our industry are caught in the middle of a political tug-of-war because of the Consumer Product Safety Improvement Act (CPSIA), a law that included new, strict standards for lead in toys — but created such a broad definition of “children’s products” that it ended up banning the sale of youth model ATVs, mini-bikes and other off-highway vehicles because they contain small amounts of lead.

Yes, you read that correctly: ATVs and motorcycles designed to meet the size and performance needs of young riders ages 6 to 12 became “banned hazardous substances” under the new law.

Because lead must be ingested in order to be a health risk, the small amounts of lead that are embedded in metal parts, like the frame and the battery terminals to enhance the safety and functionality of these components, pose no risk to kids.

While not one case of lead poisoning can be documented from children riding youth model ATVs, the Consumer Product Safety Commission’s own data shows that more than 90 percent of youth injuries and fatalities occur on larger, adult-size vehicles.

In fact, the CPSC, the ATV industry, safety advocates and parents all agree that it’s critical to keep youth riders off adult-sized ATVs, and have cooperated for years to educate ATV riders that children should ride only ATVs that are the correct size for them.

The CPSC’s own scientists agree that the presence of lead in these products does not present a health hazard to children. CPSC staff wrote to Rep. John Dingell, D-Mich., who helped write the bill:

“The possibility that children will suffer significant lead exposures from [youth model ATVs] appears to be remote at best….A child using an adult ATV as a substitute would face a far graver and more immediate risk than that of the possible lead exposure from the youth ATVs.”

Dingell is now calling for Congress to fix the law.

The CPSC also tried to temporarily address the ban by issuing a stay of enforcement in 2009.

Unfortunately, this hasn’t helped because the many manufacturers and dealers have chosen not to sell the smallest youth model ATVs because of the risks of selling under the stay, and there’s now a limited availability of these products for consumers.

In fact, half of the major ATV manufacturers are no longer selling youth model off-highway vehicles.

The financial impact on our industry has been devastating. Many dealerships throughout the country have closed because of losing the sales of youth-sized machines on top of an already depressed market. Many dealerships have had to lay off workers to stay open. These actions add job losses to an already challenging economic environment.

ATV and motor-sports enthusiasts have sent hundreds of thousands of letters and e-mails to Congress urging an end to the ban. Sen. Amy Klobuchar has pledged her support, and we urge her and other Minnesota members of Congress to take a leadership role in resolving this ridiculous situation. We’ve heard a lot of talk from both Republicans and Democrats that this ban must end, but for two years nothing has been done as politics has prevented Congress from addressing this problem.

Kids aren’t licking or eating their ATVs, but they just might ride adult-sized ATVs thanks to this ban. Congress is putting kids in danger by refusing to address this problem.

Mike Larson is owner of Larsons Cycle in Cambridge, Minn.

Editor’s Postscript: I attended a meeting of stakeholders on January 6th in Washington hosted jointly by Republican and Democratic staff for the House Committee on Energy and Commerce to discuss possible changes to the CPSIA. [I wrote about this meeting a couple times earlier this year.] At this meeting, Cindy Pelligrini of the AAP admitted that the fact that the CPSIA tacitly banned youth model ATVs was fine with her and her employer. Why? As she noted, the AAP has long wanted youth model ATVs banned. Changing the law would only open the door to a reversal of this other policy objective of theirs. In other words, the AAP is using its standing with Democratic legislators to push an agenda with a “double benefit”. Rather than fighting to ban youth model ATVs directly, a battle it would certainly lose, the AAP used the indirect route of overselling a lead standard that they knew ATVs could not meet. ATVs weren’t banned under this law by accident. They were hardly an “unintended consequence.” The damage to Minnesota businesses has been significant under this law. Next time, Ms. Klobuchar should pick her allies more carefully.

Read more here:
CPSIA – Star-Tribune Op-Ed Blasts CPSIA for ATV Effects

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 . . . .

Read more here:
CPSIA – Good News and Bad News (Update No. 1)

CPSIA – Answers to Supplemental House Questions (Hearing of Feb. 17th)

This is my Response for the Record to questions posed by Rep. Mike Pompeo after the February 17th hearing held by the Subcommittee on Commerce, Manufacturing and Trade:

February 17, 2011
Commerce, Manufacturing, and Trade Subcommittee:
“A Review of CPSIA and CPSC Resources”

Congressman Mike Pompeo

1. Did your company have to buy a copy of the F-963 standard? Why? How much did that cost?

Our company has purchased several copies of ASTM F963 over the years. According to the ASTM International website (http://www.astm.org/Standards/F963.htm), the current cost of F963 is $62, or $74 (redline version). [This means that the ASTM literally charges companies EXTRA to figure out what changed in this legally-mandated standard.] To my knowledge, this standard is only available from the ASTM. Ironically, even the CPSC is unable to provide access to this document (as acknowledged in this CPSC Powerpoint presentation http://www.cpsc.gov/BUSINFO/intl/toyweb2_en.pdf) which casts doubt on its ability to guide companies attempting to comply with the law. The lack of access and cost of access to this standard certainly makes compliance burdensome for small businesses.

The F963 standard has been updated regularly over the years, and we need to have access to the current version of the standard at all times. Until the CPSIA was enacted, the F963 standard was the tacit equivalent of a mandatory standard because the toy industry adopted it as a “voluntary” standard with the encouragement of the CPSC. At one time, voluntary standards were the preferred way the agency regulated many industries, including our industry. We have always used the F963 standard as a reference in product development and safety administration and frequently tested for compliance with the standard.

2. You’ve been dealing with all of the agency’s rules for the last few years. By my reckoning, an entrepreneur with, say, a good idea for a board game would have to pay to buy a copy of F-963 from ASTM (not a small price to pay for some small or start-up toymakers). Then, because the standard is literally dozens of pages long of densely spaced text, he’d have to hire a lawyer to tell which parts of the standard apply to his product. Then, he’d have to find a third-party test lab to test and certify a random sample of his actual production line for compliance with all of the F-963 requirements. And, if any product fails, you are basically back to the drawing board. And, of course, he’d have to do all this before ever selling a single toy. Do you think the next board game entrepreneur (e.g., Trivial Pursuit) might have a hard time getting off the ground under this regime? Has this agency effectively killed entrepreneurship in the toy market? Does a start-up company stand any chance of being able to navigate the CPSC’s new rules and regulations on its own?

The CPSIA has had the effective of creating new barriers of entry in the children’s product market, once one of America’s most entrepreneurial industries. The burdens are heavy in the toy industry but even worse in related industries like juvenile products. Large companies with steady cash flow enjoy considerable and valuable advantages over entrepreneurs who must put large sums of money at risk in their initial investment in compliance costs before receiving their first dollar of revenue. The effect of the CPSIA is one of picking winners and losers in affected markets. I question whether this is the appropriate role of the federal government in our markets.

We believe that these heavy costs will discourage investment in new products, by new entrants, by existing players and especially by small businesses. Recently, at the CPSC’s hearing on the looming 100 ppm lead standard, representatives of the bicycle industry noted that in the wake of the 300 ppm lead standard, many small bicycle manufacturers have already left the market and large companies cut their product lines considerably. I have long predicted a reduction in product diversity as a necessary consequence of the CPSIA. Other evidence of market contraction exists, as well. At this year’s ICPHSO, CPSC Acting Director of the Office of Compliance and Field Operations Robert (“Jay”) Howell noted the CPSC’s challenge in identifying a test lab that has or will agree to equip itself as a certified test lab for ATVs. Why? So many ATV manufacturers have stopped producing youth model ATVs under the effective ban by the CPSIA’s lead standards that testing labs can’t justify the capital investment to provide CPSIA compliance testing. Product diversity is declining all over the children’s product market.

Toymakers will experience the same depressing effect and yes, that means that the next Trivial Pursuit inventor may be washed out. We may never know because the absence of a new toy or novel game will be hard to detect in the ad-driven, promotional toy market. It is clear, however, that entrepreneurs are free to deploy their capital wherever they want – they are seeking returns on their capital – so the combination of high CPSIA compliance costs, high regulatory risk, high legal costs and a generally hostile regulatory environment seems unlikely to attract new entrants to the toy market. War stories will also discourage new entrants – the well-known experience of toymakers who have suffered under this regulatory regime.

As a practical matter, the rules and regulations put out by the CPSC to implement the CPSIA for toys are incomprehensible, not to mention incomplete. We are now 31 months into the CPSIA era, yet the CPSC has yet to promulgate a final phthalate standard or certify even one phthalates testing lab. EACH and EVERY toy must be “phthalate-free” but the CPSC has yet to tell us how to know it has achieved this goal. This means we are subject to the risk that they will invalidate all the work we have done since 2008. While this regulatory delay is simply outrageous, it is more likely proof of the defects in the CPSIA than a sign of failure by the CPSC. Even the largest companies have complained to the CPSC about the blizzard of rules and interpretations. One of great frustrations in attempting to comply with the new rules is that many CPSC legal interpretations have been given in private letters, orally in speeches or even in the form of voicemails. Access to such information may be critical but is obviously inaccessible to anyone not obsessively watching every minute of every video, reading every letter, attending every meeting or hearing and talking to every stakeholder in an attempt to master the breadth of this ever-morphing regulatory scheme.

3. Does the existence of a small business ombudsman at the agency solve the compliance problem?

The office of the Small Business Ombudsman serves a useful purpose as a friendly point of contact and possible advocate for small business within the agency. That said, there is no evidence that the office has power to make decisions, change policy or offer its own definitive interpretation of rules. For small businesses totally at a loss, the ombudsman is a good place to turn to for plain English answers to basic questions about rules. Notably, the office is not permitted to make decisions on behalf of the agency. The Ombudsman does not have the authority to make problems “go away”. For this reason, the ombudsman function appears to be the regulatory equivalent of a shoulder to cry on. The current ombudsman, Neil Cohen, has been a good friend to the small business community, but unfortunately, he doesn’t write the rules.

4. What problems do you anticipate occurring as a result of the public database?

We know that the public database will be administered on a post-it-and-forget-it basis. Based on our dealings with the agency, I believe that the agency will post all incidents unless a mistaken identity can be proven. As a consequence, we anticipate that the database will be allowed to be filled up with “incidents” that are conjectural, misleading or even proven WRONG. In the first and only filing against our company, an anonymous complaint accused one of our products of posing a small parts hazard. That accusation was based on an image viewed on a website – there is no indication that the filer had ever handled our product. Consequently, the filer had no reasonable basis for the small parts claim. As a matter of fact, we routinely test for small parts and have done so for years, and when we presented a valid CPSIA test report under F963 (and EN71, the European standard), we were told by the General Counsel of the CPSC that the claim would nevertheless be eligible to be published under current rules. Thus, we KNOW that the false and misleading filings will KNOWINGLY be published by the CPSC even if PROVEN false. We believe this flagrantly violates our basic right to due process and creates the potential for damaging “feeding frenzies” that can consume our products and brands.

Other claims may relate to “hazards” which affect a wide swath of products already well-known by regulators and industry. This presents many risks to industry and to brands. What will a consumer make of a “report of harm” relating to a general hazard and only one particular product? Is this a minor incident or a harbinger of a real risk? Should they stop using the product? Should they stop using the particular model or brand which is subject of the complaint? Given that many products may present the same hazard (for instance, that an electrical cord could pose a strangulation hazard), how does this information help consumers? Will consumers actually understand the issue and be able to put it into some sort of perspective? And when incidents accumulate, as they are likely to do, presumably the brands and models with the largest numbers in distribution will have more incidents even though, ironically, they may be better constructed and “safer” than the alternatives. Will consumers falsely conclude that the models with more incidents are less safe and turn to something that really is?

Responding to this type of complaint obviously creates a new and terrible dilemma for manufacturers. Should they expend resources to respond? Do they need to lay out “a brief” about the nature of the failure and why their product is named? Will people just view whatever they say as unreliable, self-serving information or will they really be able to internalize the data? As noted above, most people will not be able to put these incidents in any kind of perspective. The only thing we know for certain is that brands and companies will be the losers.

The public portrayal of the database belies the unverified nature of the filings. Notwithstanding the disclaimers made by the agency, even esteemed media outlets like The New York Times refer to the database as a “database of unsafe products”. Unsafe? That label presumes some kind of judgment or filter prior to filing, which even The New York Times must assume is being provided by the CPSC. Ironically, the CPSC is doing everything possible to avoid providing that service. The result may be disastrous for American manufacturers, importers, private labelers and retailers of children’s products. It will be yet another self-inflicted economic injury.

5. What can Congress do to return the agency to one that regulates on the basis of risk?

Congress should mandate that the CPSC use principles of risk assessment to make all decisions relating to regulation of children’s products. The legislatively-mandated use of judgment and proportionality will likely lead to better rulemaking and more regulatory common sense. It is the legislative banishing of the exercise of judgment that led to the devastation of the bicycle industry, the elimination of youth model ATVs from the market (even though those products owe their very existence to a concerted effort by the CPSC to protect children from injury on adult-sized ATVs), the banning of all products made of brass, the senseless and almost neurotic banning of rhinestones as embellishments on children’s clothing, shoes and jewelry, and so on. NONE of these changes in rules have been tied to even ONE avoided injury.

Congress should also mandate the use of principles of cost-benefit analysis by the agency in its rulemaking processes. Under the CPSIA, all considerations of economics have flown out the window with predictably disastrous results. We can operate our government better according to basic common sense notions of cost-benefit analysis.

Read more here:
CPSIA – Answers to Supplemental House Questions (Hearing of Feb. 17th)

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