CPSIA – Pool Drain Hearing – Assessing Risk or Doling out Political Favors?

The CPSC has announced hearings on April 5th on the adequacy of TESTING of pool drains under the Virginia Graeme Baker Pool and Spa Safety Act (VGB). This follows on the heels of the recent meeting between CPSC Chairman Inez Tenenbaum and Senators Dick Durbin and Amy Klobuchar. Mr. Durbin requested this meeting urgently in the wake of the disclosure by the Chicago Tribune questioning the adequacy of TESTING of certain VGB drains. No allegations of actual injury have been made yet, to my knowledge. Ms. Klobuchar tagged along, having previously expressed concern about the VGB drain covers. The pending CSPC hearing has been reported by the estimable AboutLawsuits.com blog, an outlet for ambulance chasers.

Ms. Klobuchar is up for reelection in this cycle. Mr. Durbin’s term extends to 2014.

The Chicago Tribune apparently was late to the drain game. I have uncovered a much earlier and more detailed investigation by ABC News that presumably spawned the CPSC investigation of this matter last Fall. ABC asserts that variability in flow data suggests less water flow with certain models than expected. The report was not uncontroversial, however. Flow was not zero, and the manufacturers note that flow depends on the pump used in the test and also the test installation method. An ANSI standard governs pool drains and three specific labs have been cleared to test pursuant to those standards: the National Sanitation Foundation (NSF), Underwriters Laboratories (UL), and the International Association of Plumbing and Mechanical Officials (IAPMO). Not exactly a rogue’s gallery of shady operators. The alternative testing cited by the Tribune was NOT performed by any of the three authorized labs.

[Remember how darned critical it was to use "CPSC-certified" labs under the CPSIA? It's absolutely essential . . . unless media or regulators want to do something else. Industry can't be trusted to use any old lab, however.]

The CPSC issued subpoenas to these three labs and received back a tidy sum of 17,000 pages of documents. Hey, that’s even more pages than toy safety rules, wow! Anyhow, they have scheduled a show trial to investigate the purportedly nefarious goings-on with these drains.

Perhaps you remember also that the Tribune article was apparently spurred by Paul Pennington, chairman of the “non-profit Pool Safety Council”. According to the Tribune article, “Paul Pennington . . . said he has sent 73 e-mails to CPSC and standards officials, pleading with them to do something about unsafe drain covers since the new law took effect in December 2008.” What a guy that Pennington is, a public-minded private citizen only interested in pool safety. . . . and maybe also (just a little bit) his company, Vac-Alert Industries, which owns patented technology that could supplement or replace the drains at enormous expense to pool owners.

Pennington previously succeeded in inducing a bevvy of left wingers in Congress (all Dems) to stand up for his technology, including Ms. Klobuchar and notably, Rep. Debbie Wasserman Schultz (D-FL20):

“Once it is considered unblockable, a single main drain no longer is required to have a backup device, such as a safety vacuum release system. The [Congressional] letter writers believe the new definition for unblockable drains leaves pool users vulnerable. ‘A dangerous drain outlet is not safe just because an ‘unblockable’ drain cover is installed,’ Congress member Wasserman Schultz said through her spokesman, Jonathan Beeton. ‘Drain covers can and do come off, or they can be improperly installed. … The VGB Act is very clear that multiple layers of protection are needed.’ The House letter also revisits what has been a hot-button issue throughout the formulation and interpretation of the legislation — whether backup devices should be required on all pools, even those with multiple drains. ‘Backup protection should be installed for every pool or spa, regardless of the number of drain outlets, unless there is no drain, or the drain itself is an unblockable drain,’ Wasserman Schultz said.” [Emphasis added]

Paul Pennington (a California resident, but a Florida company owner) contributed to Ms. Wasserman-Schultz’s reelection campaigns in 2008, 2006 and 2004.

Hmmm.

The company making the allegedly dangerous pool drain covers noted to the Tribune that you would have to weigh 500 pounds to block its drain. Very few children weigh 500 pounds . . . . In case you are dense, Pennington clarified his message to the Tribune: “Some child is going to die.”

Get it? Ms. Wasserman-Schultz certainly did.

So the big question here is – is this a real safety issue? In the post-CPSIA era, it “looks” like a safety issue. Why? Because the TESTS have been questioned. It’s not about actual risk or incidents that reveal a risk, it’s all about a controversy over a precautionary step in the product cycle, namely testing (the paperwork). The certified lab test by the certified lab is now in question and a publicity event is being staged to “reassure the public”. No injuries have been reported which suggests that the public has little reason to actually be alarmed, but then again, the papers are not in order.

Welcome to the Third World . . . .

The CPSC had to do something, since a leading Democrat Senator demanded ACTION, accompanied to the photo opp by another Democrat Senator up for reelection in a state leaning right after voting left for some time. After all, who put the Dems in charge of this CPSC? Appointments to the Commission come from where? The (Democrat-controlled) Senate. One wonders what the political calculations might have been. What can the Democrats running the CPSC do to help out??? Why not let Ms. Klobuchar save some portion of the populace? If there were a hearing, the Minnesota Senator could take credit and use that on the stump to help retain the seat. The next election will be essential and the Minnesota Senatorial race might affect both the balance of power in Congress as well as Mr. Obama and his chances to retain the Presidency. Gotta stick together. . . .

Does anyone care that no one has been injured by these drains? Does anyone care that the person apparently driving this controversy has a vested interest in stirring up the mud? Of course not. This is not about making pools safe, this is about manufacturing of political headlines.

The politicization of safety under this CPSC should be of great concern to every stakeholder. It is a great distortion of the rules of the safety game and of our legal and regulatory system. Random and excessive cost will punish industry. Worse still, no one will be made any safer. The news cycle will help feed a rapacious media and reward the political power elite, as well.

The only one guaranteed to be a loser is industry. Consumers won’t win, industry is sure to lose and the politicians will win. Whose country is this anyway?

Like I don’t know . . . .

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CPSIA – Pool Drain Hearing – Assessing Risk or Doling out Political Favors?

CPSIA – First Update on House CPSIA Meeting

I am going to be feeding updates on yesterday’s Washington meeting over the next few days. There is a fair bit to digest and explain. I want to do justice to the importance of the topic. Please bear with me!

In the meantime, here are some basic documents to read. The meeting was attended by the following people or groups, and some of them presented their positions in writing. If they gave out written remarks, I have linked to the documents below:

American Academy of Pediatrics
Handmade Toy Alliance
American Apparel & Footwear Association
Consumer Federation of America
Consumers Union
Printing Industries of America
Toy Industry Association
Fashion Jewelry and Accessories Trade Association
National Association of Manufacturers
Alliance for Children’s Product Safety (yours truly)
American Chemistry Council
ATV Industry
Retail Industry Leaders Association

The meeting was also attended by staff representing both the Majority (Republicans) and Minority (Democrats) on the House Energy and Commerce Committee, as well as interested parties like staff from the offices of various members of Congress (notably, Rep. Mary Bono-Mack, incoming Chair of the Subcommittee on Commerce, Manufacturing and Trade).

More later!

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CPSIA – First Update on House CPSIA Meeting

CPSIA – Are Toys Supposed To Be Fun Anymore?

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

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

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

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

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

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

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

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

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

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CPSIA – Are Toys Supposed To Be Fun Anymore?