CPSIA – Status of CPSIA Amendment (ECADA)

Having delayed the mark-up of the CPSIA Amendment bill (ECADA), the House is out of session for the next week.  The timing for resumption of the consideration of this bill has not been released.  I think it is incumbent on us to make a fuss over this delay and to press our Congressional representatives to act to pass this law.  Other industry groups are pushing for the meager and surgical relief offered by this law – but the Dems continue to resist.  The Dems moan and groan as though ECADA guts the CPSIA, perhaps banking on a docile media to not challenge their characterization of a very balanced and frankly, rather undramatic bill.  In fact, I was just interviewed by a reporter whose opening question was why the controversy over a bill that changes so little about the CPSIA.  Good question. I have an explanation to offer you  – it’s just politics, pure and simple, 100% politics.  As previously noted, the Republicans were sensitive to the excesses of the law before it was passed.  Given that the CPSIA was passed in August 2008, as America headed to the polls en masse to overwhelmingly elect Mr. Obama as our President, all members of Congress (other than Rand Paul and three others) saw the wisdom of supporting this bill.  The political cost of opposition to the CPSIA was unbearable – as my own representative told me face-to-face in July 2008, even though the CPSIA was over-the-top, he had to vote for it, otherwise he would face election commercials accusing him of defending corporations over children’s safety.  He would not sacrifice his job over this vote.  He assured me that Congress usually goes too far in its bills, but would go back in 12-to-18 months to fix it.  Not in this case, apparently. So the Republicans, like the Democrats, preferred the safe route politically in the summer of 2008, but by all appearances, wanted to go back and fix the bill as predicted by my district’s representative.  To their credit, the Republicans have used the majority  power in the House restored in the 2010 midterm elections to reach out to both sides on this issue, as well as to the Dems, to find appropriate middle ground on this contentious issue.  [I have discussed these efforts in this space over the course of 2011.]  The new General Counsel of the House Energy and Commerce Committee, Gib Mullan, is the ex-General Counsel and ex-Director of Compliance and Field Operations at the CPSC, so let’s posit that he understands the law pretty well from all angles. Even with this new horsepower (intellectual and political), the Dems haven’t responded to the Republicans’ entreaties and resolutely won’t yield on any points.  They continue to fight ECADA tooth and nail. Why? It’s politics, just politics.  Drop any notion that the Dems care about you . . . or your employees . . . or your suppliers . . . or your dealers . . . . or the consumers, teachers, families or schools that want, need and use your products every day.   Jobs, schmobs.  The well-documented and negative consequences of the CPSIA on our markets and economy (not to mention the paltry or nonexistent acheivements of the law) are just not on the Dems’ radar. They only care about getting reelected – their concern is simply themselves.  As in 2008, the ECADA issue is tailor-made for political gains.  As far as I can tell, that’s too tempting a morsel to pass up, damn the consequences on the “little people”.  The Dems argue to the populace that anything that makes the world better for your business necessarily makes life worse for kids.  Zero sum.  It’s a stupid, nonsensical argument, but if you give it no thought, it might SOUND good.  The Dems know their position makes them look good to a dozing electorate and a gullible media, and makes the Republicans push a lot of chips into the center of the table to do the right thing for our country. The Dems are also catering to their power base, the consumerists.  The consumer groups have their own axes to grind. For one thing, if they give an inch here, some people might accuse them of being hypocrites.  After all, they have repeated the Big Lie (“There is no safe level of lead”) for so long that it would come as a shock and disappointment to their true believers if they conceded the (intentional) error of their bumper sticker slogan.  In addition, their budgets are paid for by trial lawyers.  If they give in, there will less money available for tort lawyers to suck out of the system. That won’t work, will it? So the Dems are opposing restoring sanity to the safety laws for entirely self-interested political reasons.  Not ONE Democrat has EVER broken with the Waxman line. They have stuck together like glue.  Hats off to them for being well-organized.  But the Dems should be ashamed of themselves as public citizens – by putting their own PERSONAL interests ahead of the country and its economic engine, they are taking the low road.  Throwing our company, our jobs, our products, the families and schools that need our products, throwing everyone under the bus all to save their own jobs – that’s contemptible.  This is your government at work. Please reach out to your Congressmen to express your outrage.  Send emails and faxes, and ask your friends, relatives and associates to do it, too. Let’s clog the inboxes with complaints.  It’s time to stand up for what’s right!

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CPSIA – Status of CPSIA Amendment (ECADA)

CPSIA – Democratic Memorandum on CPSIA Amendment Mark-up

This appears to be Henry Waxman’s attempt to clarify his position on the CPSIA Amendment ahead of Thursday’s mark-up.

CPSIA – April 7th CPSIA Hearing Video (Unedited)

Watch this video to the end for a surprise!

CPSIA – Where are We Now?

I wanted to give you a sense of where the CPSIA amendment effort is right now.

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 – Oh No, They Didn’t Go Away

As you may have heard, the federal government stuck around this week. No shutdown, which means that the CPSC is still busy, busy, busy protecting us. We should all appreciate it. At least that’s what they tell us. So why do I have such a bad attitude? How would you feel if the people running this federal agency told Congress in writing that you were intent on poisoning children. They didn’t accuse me by name, or you, but instead accused us all together. Perhaps they think we are all intent on doing it. They said, clear as day, that we were ready and waiting to “dose” children with lead. The purposefully-chosen word “dose” suggests an act of volition, something intentional and sinister. The word connotes an unwitting victim. Bottom line, they are saying that we are perversely stalking innocent children unaware of their “fate”. Really, really nice. Especially by a Chairman of the CPSC and her cohorts holding a majority vote controlling the agency. Those of us in business, we tend to take our reputation seriously. It is deeply offensive to be insulted by strangers, people unable to know us or our intentions. I don’t think the word “slander” is too far a stretch. How can the three Democrats (Inez Tenenbaum, Bob Adler and Thomas Moore) be so arrogant to stand before Congress and assert that they (and their law) stand between the American consumer and infamy? I simply can’t say. It really is disgusting. Not only is this is a devastating insult, but it is frankly a crushing blow to the FUTURE restoration of trust in this agency. NEVER previously has there been such a broadcasting of intentions, a profound and dirty bias against manufacturers and in favor of media pandering. Whether they are taking instructions from someone off-stage or not, their letter to Congress confirms that they cannot be trusted to be fair or open-minded. The three Democrats are certainly not a government for all of us because manufacturers and retailers are now frozen out of the community. The Dems have pushed them out. This is not an American government anyone would want. What will Congress do? Rumorville has it that I am not the only one whose jaw hit the ground and whose blood began to boil when they read the Dems’ letter. Some people around town actually care about the fairness of government. Some people believe in fairness and are sensitive to any odor of ignorant prejudice, minds made up before evidence is presented. Some people believe government must be accountable. Some people believe there is no excuse for this kind of behavior. The Dems put themselves in the soup. G-d willing, they will be held to account. Stay tuned.

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CPSIA – Oh No, They Didn’t Go Away

CPSIA – Three Dem CPSC Commissioners Accuse Industry (You) of Dosing Kids with Lead

In a revolting display of cowardly fear mongering, the three Democratic CPSC Commissioners yesterday wrote the House Committee on Energy and Commerce and its Subcommittee on Commerce, Manufacturing and Trade to protest the proposed CPSIA amendment.  In this letter, in defense of the lead-in-substrate provisions, the Dems sow fear by suggesting what you might do: “The CPSIA set one of the most protective lead limits for children’s products in the world. The public health community continues to hold its overwhelming consensus: There is no safe level of lead.   We 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, particularly when the marketplace has for the most part already adjusted to lower lead levels and is well on its way to getting the lead out of children’s products .” [Emphasis added] Hmmmm.  Apparently we evil toymakers, sinister educational product makers, monstrous t-shirt and jeans producers, venal shoemakers, diabolic rhinestone merchants, demonic ATV purveyors, fiendish motocross enthusiasts, vile vending machine operators, corrupt jewelers, slimy resale shop owners, worthless book publishers, perverse pen companies, satanic carpet weavers – we all are just waiting for the CPSC to look the other way so we can “dose” children with lead.   This kind of asinine accusation normally would be something to deride and lampoon in this space, but in this case frankly, it’s not at all funny.  Here you have three CPSC Commissioners with a majority vote (including Chairman Inez Tenenbaum) going national with serious, maligning insults of our values and our integrity.  They can hardly restrain themselves – they go further to assert that we have only “for the most part adjusted” to the new rules – you know, by firing people, cutting products, withdrawing from markets. This is your “leadership” on the Commission.  I want to vomit. CPSC Commissioners are appointed by the Senate.  I wonder if a better word is “planted”. The letters make clear where children have lead exposure risk.  Lead in D.C. tap water, no, that’s fine – what can anybody do about THAT?  House paint, environmental sources – nah!  No, the real problem is industry and its “dosing” through children’s products.  The last line of defense is the CPSIA.  The three Dem Commissioners put it succinctly – change the law and poison children. Better to over-regulate than under-regulate because it’s a zero-sum game, right?  As usual, the Dems don’t mention that THEY CAN’T PRODUCE EVEN ONE INJURY VICTIM FROM LEAD-IN-SUBSTRATE IN CHILDREN’S PRODUCTS.  There are more than 50 million children in this country in the regulated age group and no one can find a single injury victim – EVER. Nonetheless they apparently think it’s perfectly fine to wag their fingers at us and accuse us of unspeakable acts.   Who’d say anything, anyhow?  Won’t get fooled again. . . . I guess we have a hint here how these people might vote on the technological feasibility of 100 ppm.  Giving them an extra year to lower the boom won’t do anything to protect my employees or my customers – they are TELLING US that the die is cast.  That’s because you and I apparently want to “dose” children with lead the first chance we get!  They reinforce the hyperbolic tone by standing pat on the age limits under the CPSIA – we NEED the 12 year old limit.  Why? Because Mommy says so.  Junk science to the rescue! We can’t have kids eating their ATVs, can we? Does anyone wonder why trust in this agency is destroyed beyond repair?  Who in the business community would ever expect to get a fair shake from these consumer group front men?  Government for all us?  Hardly. Defending themselves on a weak point, the Dems contend they are sympathetic to small business. Myself, I can’t measure commitment by limp and syrupy words of consolation – I look at what they do, not what they say.  These people have done precisely ZIPPO for small business after three years of begging, pleading, screaming.  I am tired of hearing about how much they CARE about small business. [Guess who drafted the letter?] As a friend of mine used to say, it’s bullpucky. Here’s a shocker:  I actually agree with one thing these people say – that parents deserve safe products regardless of who makes them. Of course that makes sense (no one cares whether a tortfeasor is a big company or a small company) which is why I want sensible standards that apply equally to everyone. In this case, the government should stop telling us how to run our businesses.  Make a reasonable set of standards based on a real and defined “substantial product hazard” standard and go from there.  This is parent-friendly and quite workable for small business. Of course, my suggestion would make these Democrats much less important and certainly less heroic.  Their letter makes clear who “saved” America – the CPSIA, the Dems in Congress and the Dems on the Commission.  They’re the ones who really CARE.   Won’t get fooled again . . . . Fittingly, the letter wraps up with words dripping with insincerity:  ”Nevertheless, while it is true that no one, including us, wishes to over-regulate, similarly we cannot support under-protecting the American consumer, particularly our nation’s children.” In other words, the Democrat Commissioners are daring Congress to loosen the nose around out necks and are prepared to blame them if anything goes wrong. This also provides cover for zealot Senators who will make sure you have a great opportunity to go bankrupt or remain under the thumb of their out-of-control agency.  I don’t think it’s much of a stretch to say it looks like a conspiracy – Democrats against you. It would be wrong to call this letter disillusioning.  That happened a long time ago.  It also conveys little new information. Anyone truly shocked by this letter by these authors has been asleep at the wheel for the last three years.  This merely confirms or updates what we already knew.  I don’t have a solution to people like this running the show.  I can’t do anything about it.  One of them, Thomas Moore, is now about six months past the end of his term.  Maybe Congress forgot about him.   Pay attention today.  The stakes are high and getting higher.  The CPSC is working against you.  We will need keep fighting to survive.

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CPSIA – Three Dem CPSC Commissioners Accuse Industry (You) of Dosing Kids with Lead

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.

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

CPSIA – NAM Letter Pounds the CPSIA Database

March 8, 2011

Mr. Todd A. Stevenson
Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East West Highway
Bethesda, MD 20814

Dear Mr. Stevenson:

The National Association of Manufacturers respectfully requests the Consumer Product Safety Commission (“CPSC” or “Commission”) to 1) reconsider aspects of its final rule on the Publicly Accessible Database (“Database’),1 and 2) continue for at least three months the “Soft Launch” phase of the Database to allow the Commission and affected business users to address operational and administrative flaws identified in the “Soft Launch” to date.

On January 21, 2011 the Commission announced a “Soft Launch” to test procedures and processes to implement the database requirements, as interpreted by the Commission in its final rule. As the official Database launch date approached, companies have registered or attempted to register to participate in the Database. A total of 723 registrant companies were reported in testimony to the House Subcommittee on Commerce, Manufacturing and Trade on February 17, which is only a fraction of companies manufacturing or importing consumer products in the United States. In addition, due to reported technical problems only a few preliminary “reports of harm” (as defined in the CPSC’s Final Rule on the Database) have now been able to be subject to completed processing. NAM has similarly sought information from manufacturers, importers and private labelers on experiences and problems encountered during such soft launch.

Based upon surveys of manufacturer experience, the following have been discovered to be problems which must be addressed by the Commission prior to final launch of the database:

1. Manufacturers with different divisions and brands among different product lines have indicated an inability on the part of CPSC staff to timely register multiple parties within such corporations. It is important to both the CPSC and manufacturers that the system allow for the assignment of adequate identifiers to permit review and comment on the material inaccuracy of filed complaint data within the database in a timely fashion as required by the final rule, minimizing duplicative filings for multiple corporate entities within a broader organization and allowing for streamlined communications between businesses and the CPSC. The difficulty in registering by brand/product line/division and the slow or incomplete response by the CPSC to registration raises troubling questions about the promised flow of information between the CPSC and registered companies.

2. A number of manufacturers, importers and private labelers have reported that reports not directly involving “Harm” (an express precondition to processing and posting) have contaminated the Database. Some respondents report that as many as 30% of the complaints forwarded were not adequately scrubbed to assure that they involve “harm,” as defined by law, as an express precondition to processing and posting within the database. Other respondents indicate that some claims are simply conjecture based on a review of Internet postings or product listings on a website. Such unresolved errors can undermine the integrity and purpose of the Database.

3. Licensors have indicated that they have received reports that are materially inaccurate since they involve products for which they are not the manufacturer, importer or private labeler, but which have been identified as suitable for posting. This has occurred notwithstanding a response from licensors verifying that they have been falsely identified as the manufacturer, importer or private labeler of the product, when they are not. The challenge to accurately identify the responsible party is apparently not being met by the filers, and these inaccuracies are not currently being rectified by the CPSC staff.2

4. Manufacturers, importers or private labelers have indicated that they have received reports of harm identifying an incident as involving their product that did not in fact involve their product, so were materially inaccurate, and advised CPSC of this fact. They have not received return affirmative confirmation that CPSC staff will not post such false claims in the database. CPSC staffers have indicated they may not possess the resources to adequately scrub the database to avoid posting upon such notification. This is contrary to the express direction of Congress that materially inaccurate information with the potential for irreparable reputational harm be vetted prior to posting. This is essential to fundamental fairness. Although the Commission has sought to transfer the burden of proof to manufacturers, it cannot do so once a claim is made that such data is false or materially inaccurate. The Commission can assure the public during an extended soft launch that no such harm occurs.

5. Registrant businesses also report that the completed complaint forms they received often omitted necessary data such as the model, serial number, date of manufacture or date/tracking code information (required by law to be contained on many products, including specifically children’s products) so as to better identify the products alleged to be involved with the potential for harm. The absence of this critical data makes such reports unverifiable, which can result in unfair damage to the reputation of products, brands and manufacturers.

6. The Commission’s decision in the final rule to define the term “consumer” very broadly appears contrary to the intent of Congress, and will result in the potential for multiple reports of harm involving the identical incident. This will result in public confusion about the potential extent of any possible harm and will result in the inclusion of reports based on second-hand information without the possibility of verification. Experience with paper-based reporting demonstrates that often multiple products are erroneously cited as related to reported injuries without an actual causative connection. This results in misidentification and duplication of reports, which must be avoided in the Database.

While the NAM supports a product incident database serving consumers’ need for accurate product information, we do not believe a poorly-functioning database serves the public interest. Based upon the foregoing, we respectfully request and petition the Commission to reconsider the final rule and extend the “Soft Launch” for a period of three months, so as to enable its staff to implement the statutorily mandated Database in accordance with the conditions imposed under statute and the Commission’s own regulations.

To ensure the accuracy of information submitted to the database, we specifically ask that the Commission reconsider, under its final rule, the expansive definition of “consumer” and “public safety entities” that include attorneys, investigators, or other agents of a consumer and consumer advocates, individuals who work for NGO’s, consumer advocacy organizations and trade associations. Additionally, we ask the Commission to reconsider its provisions for review of claims of materially inaccuracy and its decision not to withhold potentially inaccurate information from publication until it makes a final determination of its accuracy. Last, we ask that the Commission reconsider any provisions or sections of its rule that prevent it from effectively implementing Congressional intent or its stated aims to ensure timely review and processing of database submissions and to ensure the accuracy of its contents.

Sincerely,

Rosario Palmieri
Vice President
Infrastructure, Legal and Regulatory Policy
The National Association of Manufacturers

1 75 Fed. Reg. 76832-76872 (December 9, 2010).

2 According to the CPSC, firms receiving notice of a report of harm that incorrectly identifies them as the responsible manufacturer or private labeler of a product that immediately informs the Commission of such misidentification can reasonably expect the CPSC to stop the 10 day clock for publication of the report in the Database. If the recipient of the report of harm is not the manufacturer or private labeler, the Commission can decide not to post the report either because it is materially inaccurate or because it has determined that the report of harm is missing one of the minimum requirements for publication. CPSC staff has noted that given its experience with the incident reporting system, it recognizes that consumers may misidentify the product manufacturer or private labeler. Such claims of material inaccuracy generally are resolved quickly and easily if the receiving firm provides sufficient information. Staff further notes that Firms have an incentive to immediately report errors to prevent reports of harm from being published in the Database that misidentify them as the manufacturer or private labeler. This underscores the importance of an accurate registration system that allows businesses to be identified and to quickly get reports of harm to relevant business contacts within the company so that a response can be provided. The CPSC has not yet defined what information will be deemed “sufficient” to block publication, leaving manufacturers, importers and private labelers to guess on how to deal with inaccurate identification of their products or brands in database filings.

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CPSIA – NAM Letter Pounds the CPSIA Database

CPSIA – NAM Letter Pounds the CPSIA Database

March 8, 2011

Mr. Todd A. Stevenson
Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East West Highway
Bethesda, MD 20814

Dear Mr. Stevenson:

The National Association of Manufacturers respectfully requests the Consumer Product Safety Commission (“CPSC” or “Commission”) to 1) reconsider aspects of its final rule on the Publicly Accessible Database (“Database’),1 and 2) continue for at least three months the “Soft Launch” phase of the Database to allow the Commission and affected business users to address operational and administrative flaws identified in the “Soft Launch” to date.

On January 21, 2011 the Commission announced a “Soft Launch” to test procedures and processes to implement the database requirements, as interpreted by the Commission in its final rule. As the official Database launch date approached, companies have registered or attempted to register to participate in the Database. A total of 723 registrant companies were reported in testimony to the House Subcommittee on Commerce, Manufacturing and Trade on February 17, which is only a fraction of companies manufacturing or importing consumer products in the United States. In addition, due to reported technical problems only a few preliminary “reports of harm” (as defined in the CPSC’s Final Rule on the Database) have now been able to be subject to completed processing. NAM has similarly sought information from manufacturers, importers and private labelers on experiences and problems encountered during such soft launch.

Based upon surveys of manufacturer experience, the following have been discovered to be problems which must be addressed by the Commission prior to final launch of the database:

1. Manufacturers with different divisions and brands among different product lines have indicated an inability on the part of CPSC staff to timely register multiple parties within such corporations. It is important to both the CPSC and manufacturers that the system allow for the assignment of adequate identifiers to permit review and comment on the material inaccuracy of filed complaint data within the database in a timely fashion as required by the final rule, minimizing duplicative filings for multiple corporate entities within a broader organization and allowing for streamlined communications between businesses and the CPSC. The difficulty in registering by brand/product line/division and the slow or incomplete response by the CPSC to registration raises troubling questions about the promised flow of information between the CPSC and registered companies.

2. A number of manufacturers, importers and private labelers have reported that reports not directly involving “Harm” (an express precondition to processing and posting) have contaminated the Database. Some respondents report that as many as 30% of the complaints forwarded were not adequately scrubbed to assure that they involve “harm,” as defined by law, as an express precondition to processing and posting within the database. Other respondents indicate that some claims are simply conjecture based on a review of Internet postings or product listings on a website. Such unresolved errors can undermine the integrity and purpose of the Database.

3. Licensors have indicated that they have received reports that are materially inaccurate since they involve products for which they are not the manufacturer, importer or private labeler, but which have been identified as suitable for posting. This has occurred notwithstanding a response from licensors verifying that they have been falsely identified as the manufacturer, importer or private labeler of the product, when they are not. The challenge to accurately identify the responsible party is apparently not being met by the filers, and these inaccuracies are not currently being rectified by the CPSC staff.2

4. Manufacturers, importers or private labelers have indicated that they have received reports of harm identifying an incident as involving their product that did not in fact involve their product, so were materially inaccurate, and advised CPSC of this fact. They have not received return affirmative confirmation that CPSC staff will not post such false claims in the database. CPSC staffers have indicated they may not possess the resources to adequately scrub the database to avoid posting upon such notification. This is contrary to the express direction of Congress that materially inaccurate information with the potential for irreparable reputational harm be vetted prior to posting. This is essential to fundamental fairness. Although the Commission has sought to transfer the burden of proof to manufacturers, it cannot do so once a claim is made that such data is false or materially inaccurate. The Commission can assure the public during an extended soft launch that no such harm occurs.

5. Registrant businesses also report that the completed complaint forms they received often omitted necessary data such as the model, serial number, date of manufacture or date/tracking code information (required by law to be contained on many products, including specifically children’s products) so as to better identify the products alleged to be involved with the potential for harm. The absence of this critical data makes such reports unverifiable, which can result in unfair damage to the reputation of products, brands and manufacturers.

6. The Commission’s decision in the final rule to define the term “consumer” very broadly appears contrary to the intent of Congress, and will result in the potential for multiple reports of harm involving the identical incident. This will result in public confusion about the potential extent of any possible harm and will result in the inclusion of reports based on second-hand information without the possibility of verification. Experience with paper-based reporting demonstrates that often multiple products are erroneously cited as related to reported injuries without an actual causative connection. This results in misidentification and duplication of reports, which must be avoided in the Database.

While the NAM supports a product incident database serving consumers’ need for accurate product information, we do not believe a poorly-functioning database serves the public interest. Based upon the foregoing, we respectfully request and petition the Commission to reconsider the final rule and extend the “Soft Launch” for a period of three months, so as to enable its staff to implement the statutorily mandated Database in accordance with the conditions imposed under statute and the Commission’s own regulations.

To ensure the accuracy of information submitted to the database, we specifically ask that the Commission reconsider, under its final rule, the expansive definition of “consumer” and “public safety entities” that include attorneys, investigators, or other agents of a consumer and consumer advocates, individuals who work for NGO’s, consumer advocacy organizations and trade associations. Additionally, we ask the Commission to reconsider its provisions for review of claims of materially inaccuracy and its decision not to withhold potentially inaccurate information from publication until it makes a final determination of its accuracy. Last, we ask that the Commission reconsider any provisions or sections of its rule that prevent it from effectively implementing Congressional intent or its stated aims to ensure timely review and processing of database submissions and to ensure the accuracy of its contents.

Sincerely,

Rosario Palmieri
Vice President
Infrastructure, Legal and Regulatory Policy
The National Association of Manufacturers

1 75 Fed. Reg. 76832-76872 (December 9, 2010).

2 According to the CPSC, firms receiving notice of a report of harm that incorrectly identifies them as the responsible manufacturer or private labeler of a product that immediately informs the Commission of such misidentification can reasonably expect the CPSC to stop the 10 day clock for publication of the report in the Database. If the recipient of the report of harm is not the manufacturer or private labeler, the Commission can decide not to post the report either because it is materially inaccurate or because it has determined that the report of harm is missing one of the minimum requirements for publication. CPSC staff has noted that given its experience with the incident reporting system, it recognizes that consumers may misidentify the product manufacturer or private labeler. Such claims of material inaccuracy generally are resolved quickly and easily if the receiving firm provides sufficient information. Staff further notes that Firms have an incentive to immediately report errors to prevent reports of harm from being published in the Database that misidentify them as the manufacturer or private labeler. This underscores the importance of an accurate registration system that allows businesses to be identified and to quickly get reports of harm to relevant business contacts within the company so that a response can be provided. The CPSC has not yet defined what information will be deemed “sufficient” to block publication, leaving manufacturers, importers and private labelers to guess on how to deal with inaccurate identification of their products or brands in database filings.

Read more here:
CPSIA – NAM Letter Pounds the CPSIA Database

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