CPSIA – Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a “risk of harm”. Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered – but in this case, the rumor mill is churning. That’s my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC’s response “out of context”.

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a “blogger” and a “Small Business” makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don’t have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it – for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email’s author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don’t you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

“The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it ‘might’ be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward.”

Email no. 2 (March 8, from our company):

“Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks.”

Email no. 3 (March 9, from CPSC):

“As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.“

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – My Answer to Slate.com on the CPSIA Database

Dear Mr. Noah,

I read with interest your March 8th article on the CPSC database entitled “Who’s Afraid of the CPSC?” and was disappointed at the inaccuracies in the piece and your blanket dismissal of the business community’s legitimate concerns about the database. The database has devolved into a divisive partisan issue simply because of the utter refusal of consumer groups and their Congressional allies to acknowledge the flaws in the database as well as the law that established it – the Consumer Product Safety Improvement Act (CPSIA).

I’ll try to address the inaccuracies one-by-one:

Database cost – $3 million or $29 million? The cost figure of $3 million sparked a public dispute between the CPSC Chairman Inez Tenenbaum and her fellow Commissioner Anne Northup at a House hearing last month. In response to Ms. Tenenbaum’s testimony on the cost of the database, Ms. Northup testified that the figure of $3 million had never been shared with the CPSC Commission and that the only database cost figure she was familiar with was $29 million. Interestingly, in April 2010, the Associated Press reported, based on information provided by the CPSC, that the cost of the http://www.saferproducts.gov/ website would be about $20 million, and the CPSC apparently saw no reason to update the media with the good news that the cost had shriveled to $3 million until the February 2011 hearing. . . . Hmmm.

The supposedly noncontroversial CPSIA database. Why didn’t anyone kick up a fuss about the database in 2008? A better question is “Why didn’t Congress listen when the business community protested?” Here’s what I said in a letter to each Congressional conferee dated June 25, 2008: “While we support public notice of recalls, we oppose a national database of reports of injury, illness, death or risk of injury. This forum will not be subject to appropriate findings of fact and thus will be a forum subject to considerable abuse. In a society where tort lawsuits are an ever-present risk for all businesses, a risk that can wipe out a lifetime’s work in a heartbeat, the very real potential for abuse by competitors or mischief-makers far outweighs the public’s ‘right to know’. Once the CPSC has adjudicated a case appropriately, made a reasonable finding of fact and determined the right course of corrective action, public notice would be appropriate.”

I continued to try to make my point to CPSIA Congressional conferees in another letter dated July 21, 2008, just ahead of final consideration of the CPSIA: “CPSC Searchable Database: The well-intentioned idea for complete safety transparency is an open invitation to mischief makers. This is a real threat to our business, as we know from hard experience. The better way is to let the CPSC filter this data first. Please remember, even YouTube will take down videos on request. The proposed law won’t give defenseless toy companies the same recourse as YouTube. Is that an appropriate way to regulate an entire industry?”

It wasn’t only me. Many others in the business community opposed the creation of a database that would contain inaccurate or misleading accusations and complaints. That’s the story of the CPSIA in a nutshell – no one was listening when the law was originally drafted, and now three years later, we are fighting City Hall to restore common sense to federal safety law. Please consider the assertion that consumers really need this database, that it is essential to their children’s safety. In fact, there are many places on the Internet where consumers can and do post their experiences without controversy. Why would a federal database be a greater cause for concern? Well, for one thing, this one is called “SaferProducts.gov” and is sponsored by the federal government. Notwithstanding the lawyer language disclaimers all over the website, it is crystal clear that the public will place a lot of credence in these postings. After all, why would our federal government allow misleading or inaccurate information to be posted on a website called SaferProducts.gov? Ms. Tenenbaum is famous for her defense of “dot gov” websites: “I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.” [Keynote speech at ICPHSO, February 17, 2010] She may not be the only one who feels this way.

The NHTSA database exists; ergo a CPSIA database is a good idea? The NHTSA database can be distinguished in several important ways: (a) auto accidents are a leading cause of death in this country (consumer products are not), (b) every use of automobiles is known to be hazardous and the risk to human life from reckless use of cars is obviously magnified (not true for consumer products), (c) the auto industry is one of the largest components of our entire economy – we all use cars and many of us owe our livelihoods to automobiles in one way or the other (the average sale of consumer products is far less than a car), and (d) at all levels, the auto industry is highly consolidated among a relatively small number of massive companies that are well-prepared for litigation and regulatory issues (consumer products is not a consolidated market and there are many small companies involved in the trade). I think GM, Ford, Toyota and other multi-billion dollar automakers can handle the burden and risk of a database of consumer deaths and serious injuries from use of their products. Our family business, Learning Resources, on the other hand, ain’t no GM or Toyota. The NHTSA database is NOT an appropriate precedent for consumer products for all of the foregoing reasons.

“One of the ironies in Pompeo and others screaming bloody murder that the database will kill jobs is that most of the appliances likely to get dinged in the database won’t even be American products.” This remark completely misses the point, unfortunately. It is American companies that are going to be hurt by the misinformation in the database, whether those companies are manufacturers, importers, private labelers or retailers. Even worse, thousands of American small businesses are going to be put at risk with no practical means to defend themselves. Is this the “American Way” at work? Who will pay when jobs are lost from companies shifting away from this market or dropping products to limit exposure to liability? This is just going to be another self-inflicted economic injury from misguided and overzealous regulation.

Whether the product is made in China, the U.S. or India, it should not matter from a safety perspective. Companies must ensure that they market safe and appropriate products no matter where the products are made. The reality is that every product can break, and accidents and other bad things happen to good people. The database will be unforgiving and if filled with post-it-and-forget-it garbage, will harm innocent victims – American companies that employ your neighbors and make products for your schools. Unqualified and unverified complaints on SaferProducts.gov WILL induce consumers to take our products away from children – pending a recall that may never be forthcoming . . . because nothing’s wrong.

Chairman Tenenbaum has publicly encouraged consumers to rely on the postings in the database – to draw conclusions on the likelihood of future injury. This is quite alarming, given that Ms. Tenenbaum also testified in a Congressional hearing in February that the agency will likely post unverified or inaccurate information to the database. She admits that this information will be faulty. As she said in testimony, “that’s what the rub is”.

Claims of inaccuracies are low in the soft launch. Given the short life of the database in its test phase and the small population of registered users, reports of few data problems must be greeted with skepticism. Less than 1000 companies have registered with the CPSC for the database, an absurdly small percentage of the number of companies whose products will be in the database. Taking into account that many consumer product companies (such as Disney) will need to register numerous brands, product lines and corporate divisions to ensure that the right data flows to the right paper pusher, the current registrations are even paltrier. If companies are not registered, it is unlikely they are even aware of the soft launch, let alone that there may be inaccurate claims against their products being sponsored by the federal government.

Sadly, we are likely to confirm that the CPSC’s faulty processes are damaging companies only AFTER the damage is done. Let’s not forget that the agency is all set to launch a big “public awareness” campaign for the new database – in other words, the federal government will soon be beating the bushes for consumer complaint submissions. As usual, consumer advocates hype uncertain and unquantifiable losses (someone somewhere might not know about something that COULD have been in the database and later be injured) to distract Congress and the media from the certain losses that will befall companies with damaged reputations. Good for plaintiff lawyers but maybe no one else.

Our small company in Illinois has already experienced a materially inaccurate submission – in the very first “complaint” we faced – and were unable to block it from the database. The anonymous posting concerned a consumer’s “feelings” about one of our products based on a photograph she found on the Internet. Unfortunately, she was clearly wrong and we could prove it. The CPSC wasn’t impressed by our valid CPSIA test reports or photographic evidence of the consumer’s error. I can safely assure you that misleading and inaccurate claims will not only be submitted to the database and but will be posted by the CPSC knowing full well that the claims are untrue. I wrote about my experiences in my blog.

I hope you will reconsider your views on the CPSIA database and weigh more carefully the legitimate concerns of businesses serving the children’s marketplace. We are in this business for a reason – we are devoted to making children’s lives BETTER. The new database will not further our mission, nor will a database filled with garbage benefit consumers. We can do better, and we MUST do better.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
Vernon Hills, IL
My blog: http://www.learningresourcesinc.blogspot.com/

Read more here:
CPSIA – My Answer to Slate.com on the CPSIA Database

CPSIA – CPSC Punts on "Material Inaccuracy"

The war over the CPSIA Database continues at high pitch. In today’s print edition of Politico, Consumers Union upheld its well-deserved reputation as a fear monger with the below ad entitled “Will this crib leave parents sleepless?” CU intones: “When you buy a crib, you want to know it’s safe. Luckily for parents, the [CPSIA] created an easy-to-use database for the public to report unsafe products. But right now, some members of Congress want to stop that database, putting your children at risk. Don’t let them.”

The ad concludes with this warning “Congress: Don’t play politics with our kids’ safety.”

At the same time, the National Association of Manufacturers launched its own campaign documenting the many incidents of inaccurate data and other related snafus in the database SO FAR. The body of the NAM letter is found here.

The objections to the CPSIA Database by manufacturers, importers, private labelers and retailers is all about inaccurate data. Filling the database with junky, incorrect or idle chatter masquerading as thoughtful analysis presents REAL threats to investments in companies, products and brands. Naturally, this also threatens jobs at many levels in our economy. Were the database maintained by the CPSC with clean and accurate data, I rather doubt the objections to this program would be so intense. However, industry stakeholders know that the media and our government are reactive by nature, tending to report, judge and act on stimuli before adequately investigating or resolving underlying accusations. Consider Toyota braking systems, DryMax diapers, Shrek glasses. It’s a long list of manhandled companies or products. There are legitimate reasons to fear what a mismanaged “post it and forget it” database will do to industry.

I realize industry objections may seem theoretical or somehow calculated to serve a larger purpose. It is worth noting, however, that the NAM letter provides concrete illustrations of the problem facing industry. Likewise, it is important to remember that consumer groups gloss over the objections of companies to pluck heart strings – that’s how they raise funds. To clarify the picture, I have a REAL EXAMPLE to share. It involves the first (and so far only) submission to the database about our company’s products.

The following incident was filed against one of our products during the so-called “soft launch”. The soft launch was intended to allow the CPSC to work the “kinks” out of the database and to practice interacting with the entire U.S. economy on consumer products. As you know from prior blogposts, Inez Tenenbaum has admitted in House testimony that the CPSC is not likely to be able to resolve questions of accuracy before posting the data (but they will try very hard). She said “That’s what the rub is.” Indeed. And you also know that once data appears on the Internet, its traces are all but impossible to remove. The long tail of misinformation is likely to affect brands and companies for years.

The subject product happens to be discontinued. We have protested this particular filing to the CPSC and they replied with the following decision: “[CPSC] staff concluded that the report would be posted in the database but for soft launch”. In other words, as a CPSC policy matter, what follows is a legitimate posting to the database when it goes live.

Put yourself in the position of the CPSC and YOU MAKE THE CALL!

First, consider the final rule on the database. The database is to be populated with “reports of harm”. What’s that? “Report of harm means any information submitted to the Commission through the manner described in § 1102.10(b), regarding any injury, illness, or death; or any risk of injury, illness, or death, as determined by the Commission, relating to the use of a consumer product.” And what is a “harm”? “Harm means injury, illness, or death; or risk of injury, illness, or death, as determined by the Commission.” Who can file? Basically anyone. No direct knowledge of the “incident” is required.

The person making the filing does have to give their name to the manufacturer. In this case, we were faced with an unnamed accuser. Please note that Cheryl Falvey, General Counsel of the CPSC, said at ICPHSO this year that she couldn’t imagine why anyone would withhold their identity in a complaint. This was our first “product incident”. O for 1 so far, Cheri.

Here is what the anonymous filer said:

“I saw this product on the FAO Schwartz website. It looks like a nice idea not very well thought out. The product is called: ‘Smart Snacks Sweet Heart Sayings’. The suggested age states: 2-7 yrs. By: Learning Resources. The Product Description: ‘With 28 plastic hearts that lace together vertically and horizontally, 3 laces, candy scoop and storage jar, this Smart Snacks Sweet Heart Sayings set from Learning Resources® offer a delectable introduction to colors, shapes, matching and printed words. Little hands stay busy too as kids gain confidence in fine motor skills and hand-eye coordination. Charming lacing hearts features a word or picture on each side. Children can create colorful candy designs and cute messages while improving fine motor skills. Hearts are color-coded to help children make sentences.’ These plastic ‘beads’ look very much like the candy conversation hearts sold around Valentines day. Maybe I am over concerned, but this seems like these beads could easily be mistakenly ingested or could pose a choking hazard.” [Emphasis added]

I certainly hope the readers of this space are confident that, in fact, this item complies with U.S. law. In fact it does with test reports to prove it. Of course, small parts are always a concern whenever we design products for children under three years of age. Despite the IMPRESSION apparently given to the unknown filer BASED ON AN IMAGE SEEN ONLY ON A WEBSITE (not a physical examination of the product), the beads do NOT go through a choke tube. There are no small parts.

Put another way, this accusation has no basis in fact and thus cannot be a “report of harm” under any reasonable interpretation. It is unadulterated and inaccurate conjecture. We sent the CPSC our third party test reports and photographs of the parts proving that they won’t pass through a choke tube to support our protest that this complaint is “materially inaccurate”.

Nevertheless, the CPSC apparently determined the complaint states a “risk of harm” and thus should be published in the database.

To get a flavor of the “sympathetic” audience we received at the CPSC when we pushed back, please enjoy selections from the written response we received:

“I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this . . . I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm.” [Emphasis added]

Our claim of material inaccuracy was denied – even though the issue was disposed by a valid third party test report directly on point . . . . Makes you wonder what WOULD be deemed “materially inaccurate”.

So why didn’t our test reports and photos PROVE “material inaccuracy”? After all, the filer states: “Maybe I am over concerned, but this seems like these beads could easily be mistakenly ingested or could pose a choking hazard.” The CPSC explains:

“However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children . . . . As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.”

Can anyone out there feel our outrage? Is this what Congress “intended”? Is it acceptable that the CPSC not exercise ANY judgment whatsoever on filings and that manufacturers be powerless to stop the posting of nonsense? Can’t we expect more of this agency with its 500 employees?

The CPSC informs us that all is well BECAUSE even though the accusation is known to be false, we are allowed to post comments side-by-side with the accusation.

“. . . it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.”

So, there you have it. The CPSC knows it is posting nonsense and other pap, refuses to filter out the bunk and then boldly asserts that it is up to the manufacturer to choose how it wants to counter the misinformation. The term “materially inaccurate” does not apparently extend to factually inaccurate accusations – I believe it only refers to misidentified products. [This is not the first tortured interpretation of the English language to emerge from the CPSC during this administration.] One wonders to what lengths the CPSC will go to post controversial complaints in the database. They have their justification – they must make consumers “safe” with errant complaint data. It is a rich irony that the CPSC doesn’t even argue the complaints are true or accurate and then scurries to hide behind its website disclaimer when asked to defend its lame administrative approach.

No doubt twisting themselves into a linguistic pretzel is only the start for this CPSC.

This position is NOT mandated by the CPSIA – this is a political decision dictated by forces outside the law. Please note that in this case, the CPSC overlooked a valid third party test report mandated by the CPSIA that refutes a conjecture based on a photo posted on a website. Guess that test report doesn’t count for much at the CPSC. But it is ESSENTIAL to keep kids safe. . . .

Right. And so is the rest of the CPSIA and this database. Right.

The CPSC didn’t just “punt” on the meaning of “materially inaccurate” – they punted on the future of your business and the jobs you provide to your teammates. If only we could punt on the jobs of the people who were doing this to us. . . .

Read more here:
CPSIA – CPSC Punts on "Material Inaccuracy"

CPSIA – Perhaps Mark Pryor is Detrimental to the American Public

I have resolved to “out” the politicians who stand between federal law and rationality when it comes to the CPSIA. We endured two years of torture at the hands of Henry Waxman in the House, who spent 18 months denying that anything was wrong with the CPSIA – and then tried to put through an amendment to his liking in the dead of night. I exposed that deceptive effort, but it didn’t change much in Mr. Waxman’s approach.

Now, post-2010 midterm elections, the winds have shifted and there is much more recognition that the CPSIA is deeply flawed. The House is controlled by Republicans who have long recognized and admitted that the law needed to be changed in important ways to save jobs (without sacrificing “safety”). Unfortunately, certain members of the Senate remains wedded to the Waxman script and seem committed to fall on the sword to protect each precious word of that defective and fundamentally flawed law. As they rise up to stand in the way of progress and rationality, I commit to YOU that I will out them in this space.

One person who is already raising his profile to protect this law is Senator Mark Pryor of Arkansas. I am told he has a copy of the signed CPSIA framed in his office (I haven’t seen it personally, I admit) so presumably he is very proud of “his” law. It’s a shame he hasn’t been listening since he cast his vote in 2008. In today’s USAToday, Mr. Pryor opines that de-funding the CPSIA database would be “detrimental to the American public“.

Why does Mr. Pryor think this? “Private consumer complaint websites tend to focus more on performance issues, which is why ‘one central place where consumers can go to find accurate information’ about safety is needed, says Sen. Mark Pryor, D-Ark., who is pushing to keep the funding in place for the database.” [Emphasis added]

Perhaps a place with accurate information about consumer product incidents is “needed” but is the CPSIA database such a thing? Why, precisely, does Mr. Pryor thinks the database information will be “accurate”? After all, we know that Inez Tenenbaum admitted in Congressional testimony that the agency will likely post inaccurate or misleading information. Remember, “that’s what the rub is”. We also know that the General Counsel of the CPSC says that the database will not be trustworthy, featuring “complaints” without shedding light on “causation”. Remember, the General Counsel touts the disclaimers all over the website, which she is considering AMPLIFYING. In other words, she admits/acknowledges/trumpets that the information may not be true and can’t be relied upon. In other words, it’s not accurate.

Senator Pryor, are you listening?

I am sure the answer is “no”. Expect more of this from Mr. Pryor. According to Wikipedia, he is quoted in the movie “Religulous” saying “You don’t need to pass an IQ test to be in the senate“.

No argument here.

Read more here:
CPSIA – Perhaps Mark Pryor is Detrimental to the American Public

CPSIA – ICPHSO Database Panel

Cheryl Falvey, Moderator – I am so excited about this panel because I know how much everyone loves the database.

I assume she was joking. Of course, she might have been thinking of the New York Times . . . .

Members of the panel:

• DeWayne Ray, Dep. Dir., Hazard Identification and Reduction, CPSC
• Mark Schoem, Dep. Dir., Office of Compliance
• Melissa Hampshire, Asst. GC, Div of Enforcement and Information, CPSC
• Scott Wolfson, Dir., Information and Public Affairs, CPSC

Won’t accept anonymous submissions but will only share the info if the reporter (“consumer”) checks a box to allow it. Will prosecute false filings. Won’t publish for ten days after sending out the info to the manufacturers. You get the “whole” ten days.

RW: I am feeling all tingly now!

I just received a comment on my blog: “I think the coming government shutdown is good in so many ways.”

CF: First picture submitted to the database was of a baby’s behind.

And I thought it would be of a horse’s behind . . . .

SF: We are a data-driven agency. Where have we typically received our data? DR: We get data electronically from hospitals and buy death certificates. Put up a bizarre slide with arrows, clouds, pointers, illegible type and so on. This apparently outlines where the data comes from and goes. They call this slide the “cartoon”.

I am getting too much material here. . . .

DR: We really this new data warehouse which will bring real value to the CPSC. This is where they get the tools they need to “do the job”.

The description of the database did not incorporate any response to the vigorous and legitimate concerns of industry. Wayne Morris referred to the database as a “blog”. Ahem – CPSC, any reply?

Which reports of harm will be “public-facing”? MH: Many specific requirements before they can move forward with notifying the manufacturer or publish in the database.

MS: Rarely will postings result in a call to a company. There will be a “triage” team to sort through the data looking for serious issues.

What kinds of “product incidents” will be included in the database? DR: We have an internal process for “material inaccuracy”.

What if they identify the wrong manufacturer? MH: It would be so “great” if you register, since you will get immediate notice after we complete our review of the data for meeting minimum manufacturer. We don’t want to identify the wrong manufacturer.

[RW: Most of the time, manufacturers will not have sufficient data to evaluate that information, nor does ten days provide sufficient time to get this work done. Let's not forget that there's a lot to do in running a business. It is not acceptable that this database becomes the top priority of our company. It's just not fair or sensible to make filings in this database a daily emergency. In addition, very often, identification of the product is the least of the worries. What about the substance of the accusation? What happened to "findings of fact" or determinations of responsibility? The database is very likely to become a standard part of litigation strategy. There's a shocker for you!!]

How can manufacturers make comments on the “report of harm”? MH: Manufacturers can make any comment it wants. In addition, you can object to the inclusion of “confidential information”. Can also claim that the filing is “materially inaccurate”.

[RW: The latter two objections are as likely to be successful as an exemption from the "any lead" requirement. What, there are exemptions possible - look at the CPSIA . . . . So far, there are zero exemptions issued in three years. And there will be very few or no legitimate objections that stand up in the database process.]

CF: We rarely if ever receive confidential information from consumers. Todd Stevenson says it has happened twice since 1972. Staff will scrub the information to prevent this, too. Material inaccuracy is defined as false and misleading and so substantial as to materially mislead consumers. Burden of proof is on the manufacturer to supply EVIDENCE to support their claim of materially inaccuracy. The issue they will be most concerned about is materially inaccuracy relating to hazards. The agency EXPECTS manufacturers to call consumers in those ten days to figure out whether the claim is legitimate.

CF: We have received so many pictures during the soft boot of the database that we need new servers. It’s pretty astounding.

[RW: OMG. This is going to be a feeding frenzy when Scott Wolfson puts his machinery into motion. Why do we need the government to play this role in the market? How are we going to stay in business when the government is encouraging litigation and brand destruction???]

CF: The database has a disclaimer that the agency can’t verify or stand behind the accuracy of the database. We have no opinion on “causation”.

RW: We are SOOOO screwed.

CF: Mentioned the DryMax diaper crisis that took a full year to resolve. [Under the database, every single claim would appear for a year until it emerges that each and every one was false and wrong. Too bad for P&G, I guess.]

RW: So so so screwed.

MH: Discussed link between the database filings and Section 6(b) disclosures. Ditto for FOIA process. [Based on my experience, FOIA couldn't take much of their time, since finishing off FOIA responses is . . . not a priority.]

Tell us about “education and outreach” about the database. SW: This is a tool for consumers. It’s all about the back end.

RW: Now you know where you’ll be getting it.

SW: It is extremely important to sign up for the portal. “Snail mail” won’t work “as effectively”. Think of the ten day window. 700 companies have signed up but it should be in the thousands.

RW: Maybe Aston Kutcher can help!

SW: On the consumer side, Hotline should take fewer calls. Watns to see the reports shift to the database. Will use the Twitter platform to publicize the database, plus blogs. Will continnue to promote the database because they see it as a benefit to consumers. Expects the database to start filling in March but it may as long as a month to have enough “data” to make the searching function to become “useful”.

RW: Plaintiff lawyers, take note! Don’t worry, they have . . . .

No questions taken. Apparently there’s nothing to discuss. Maybe later . . . . Thanks, Cheryl! We get it.

Read more here:
CPSIA – ICPHSO Database Panel

CPSIA – ICPHSO Update on Strategic Plan Panel Discussion

Next up (after audio problems are “fixed”) is the panel discussion on the Strategic Plan. The panel includes:

• Ken Hinson, Executive Director (moderator)
• Matt Howsare, Chief of Staff to Chairman Tenenbaum
• Cheryl Falvey, General Counsel, CPSC
• Jay Howell, Director, Hazard Identification and Reduction, CPSC
• Richard O’Brien, Director, International Programs and Intergovernmental Affairs, CPSC
• DeWayne Ray, Dep. Dir., Hazard Identification and Reductions, CPSC
• Marc Schoem, Dep. Dir., Office of Compliance and Field Operations, CPSC
• Neal Cohen, Small Business Ombudsman, CPSC
• Scott Wolfson, Dir., Information and Public Affairs, CPSC

Update on rulemaking (CF): Final rules issued in 2010 – crib rule, database rule (launching on March 11), “Children’s Product” rule and the civil penalty rule. Also, the mandatory recall rule, infant walkers and bath seat rules.

Draft rules: bike standard, two 15(j) rules on substantial product hazard list (drawstrings and hair dryers), component rule, 15 Month Rule and bassinets.

Rules coming up: cadmium rule (deferred for six months), toddler beds, lead paint and HD-XRF test methods, bed rails, bunk beds, swings, bicycle rules, testing and certification rules, 15(j) rules, 100 ppm lead standard, and notice of proposed rules on play yards and another “safe sleep” initiative category.

[One thinks that after they regulate bunk beds swings, bikes and so on that all the fun will be gone from childhood, bringing to mind an effective cure for cancer (killing the patient). Well, at least kids can still play with rocks . . . . OMG, rocks have lead in them!]

JH: They intend to double the number of rules in place in 1990. [Nice! More rules, more safety!] Rule-making activity is “abating” but have a growing compliance and enforcement workload. The burden is “shifting” to the compliance team. Working with all stakeholders to make sure they are compliant. [Safety is not the word used but instead "compliant". The notion is that compliance is tantamount to safety. Anyone want to discuss this topic?]

Why did the agency take such a “collaborative” approach to the Strategic Plan? MH – The “comprehensiveness” of the collaborative process was incredible. Went through all sorts of “painstaking” efforts to interview so many people in this room. [Perhaps Matt is referring to Raachel Weintraub - who else needed to be consulted, after all?] The Strategic Plan reflects the “consensus” view of the agency’s strategy. The “collaborative” process was designed to guarantee “buy-in”. The Chairman’s focus under the Strategic Plan is the preventative portion. Spoke of Neal Cohen’s area as a focal point. [There's an insight - we small business people are the problem! Thank heavens Neal Cohen can educate up.]

MH also points to “boots on the ground” in China as another feature of the CPSC’s efforts to prevent disaster. He did not say what kind of boots those might be. Jackboots?

Tell us about small business ombudsing, Neal! NC: Start by listening. There’s a lot of confusion, and there are ways to use the work done by the CPSC “to your favor”. [Hmmm, I'd like to know more about that.] NC: I’m not a policy maker at the agency. [RW - that's the rub, ain't it?] NC: I am spreading the word about the problems within the agency. NC has his own website (www.cpsc.gov/sbo). Putting out “plain English” documents to explain the law and the rules. Three tips on compliance: (a) know your product and your supply chain, (b) proactively educate your suppliers, and (c) don’t “assume”. [This is sound advice. It doesn't protect you from anything, however. Were you to follow Neal's advice, it would count for NOTHING if you get recalled. It should but it won't.]

All kidding aside, people have nice things to say about Neal. What he can achieve remains to be seen, however. I have yet to hear about him making problems go away. Most of the problems people are dealing with are nonsense, so if he could move heaven and earth, I think I would start to hear about him going to bat and getting something done for these beleaguered little companies.

International (RO’B): No sign of harmonization efforts in Mr. O’Brien’s presentation. He is leading the effort to get other world regulators to join us in our safety mania.

Scott Wolfson’s turn – “What about consumers and how do they fit into this?” SW: Pool Safely Initiative shows what we can do if we have money to get our messages out. [How have injury statistics changed, Scott? WS: Won't know for years. . . .] Concerned about “sustainability” ($$$). We’re hitting the road to get the message out. Have built a network to get info out. Working on a new logo.

Scott did not update us on Aston Kutcher. Maybe during the Q&A . . . .

RW: This all sounds good as far as it goes. Of course, he does not discuss the impact of OTHER decisions his office makes, like communication of “hazards” like cords on baby monitors or recalls of Shrek glasses. It’s all well and good that the CPSC has a couple billboards up about pool safety, but what about the mania on lead and their communication of those hazards?

Why does the CPSC need to train manufacturers? Why is it the agency’s role? JH: There are various levels of sophistication out in the marketplace. To drive the prevention effort, need to make sure manufacturers understand the rules of the road. [RW - this is one of my original suggestions for the agency in my first speech on the CPSIA. Failures in outreach is one of the main causes of the storm behind the CPSIA.]

JH: We are focusing our efforts around priorities to increase impact and to avoid dilution.

Jay Howell usually sounds pretty sensible. It would be great if the agency sounded more reasonable more of the time. Perhaps Jay can be an agent in that process.

MS: Trying to reduce the time taken to negotiate recalls. [RW: Two-edged sword here, since the concept of due process is flying out the window with the justification that they are "saving lives".] MS: If you’re right, you’re right – just convince us. Also need to get information out to consumers quicker.

RW: This is agency policy talking, probably not Marc Schoem.

SW: We are going out on all platforms, like Twitter, news media, Facebook, blogs – multiple times. MSNBC is doing a monthly “round-up” of recalls.

There was time for only two questions from the audience. Filibuster! I got to ask one of them. Here’s my question:

“I have testified five times at the CPSC, three times at your invitation. I have repeatedly told you that your policies and the CPSIA together are killing small businesses, killing products and killing markets. Last week, the bicycle industry testified that large bike manufacturers have reduced their product lines and small companies have left the market. Given this testimony, what do you think the agency’s responsibility is to small business and how does the Strategic Plan relate to protecting the right of small business to sell children’s products?”

KH: That’s why we have had such a collaborative process in the Strategic Plan. We need to identify hose issues and figure out a solution. RW: But we’re dying now. KH: We do what we do and violative products have to come off the market.

Read more here:
CPSIA – ICPHSO Update on Strategic Plan Panel Discussion

CPSIA – The War Over Pompeo’s Amendment to De-Fund CPSC Database

The players are lining on either side of Rep. Mike Pompeo’s brave amendment to de-fund the terrible CPSC public injury/incident database. The problem with the database is that it will likely be filled with garbage and malicious material that no manufacturer can effectively block. As you know, once the material is out on the Internet, it can’t be retracted in any practical way. This prompted Wayne Morris of AHAM to call the database a government-sponsored “blog” at yesterday’s Congressional hearing. Pompeo’s amendment, no. 545 to the Continuing Resolution on the House Floor right now, is likely be to voted on later today, possibly in the wee hours of night. It’s NOT too late to ask your Congressman to support it!

The National Association of Manufacturers sent out the following email and letter in support of Mr. Pompeo’s amendment:

“Colleagues,

The NAM sent the following letter to all members of the U.S. House of Representatives supporting an amendment by Rep. Mike Pompeo (R-KS) to discontinue funding for implementation and operation of the CPSC’s Product Safety Information Database for the remainder of this fiscal year to allow Congress the time necessary to fix the remaining challenges with the implementing rules. We expect a vote on his amendment #545 to H.R. 1 the Continuing Resolution sometime this evening. You are encouraged to share your support for this amendment to Members of the House.”

And on the other side, Rep. Edward Markey (D-MA) sent out a “Dear Colleague” letter in opposition. It contains the usual tired and worn posturing that we have endured for three years now. Interestingly, Mr. Markey did not attend yesterday’s hearing of the House Subcommittee on Commerce, Manufacturing and Trade which concerned the database in large part. I guess there’s no reason to listen to testimony if you know everything already, right?

Markey’s letter:

“OPPOSE THE POMPEO #545 AMENDMENT ON CONSUMER PRODUCT SAFETY

From: The Honorable Edward J. Markey
Sent By:
Bill: H.R. 1
Date: 2/18/2011

February 18, 2011

OPPOSE THE POMPEO #545 AMENDMENT

PROTECT PARENTS’ ABILITY TO GET EARLY WARNINGS ON POTENTIALLY DEFECTIVE TOYS AND OTHER CONSUMER PRODUCTS

Dear Colleague:

I write to urge a NO vote on amendment #545, which would eliminate funding for the Consumer Product Safety Commission’s (CPSC’s) online, searchable database. This database enables members of the public to report and obtain information about potentially defective products that could cause serious injury or even death.

The Consumer Product Safety Improvement Act (CPSIA) passed the House by a vote of 424 to 1 and was signed into law by President Bush in August 2008. It contained language I originally authored to create this online “Early Warning System” for those who wish to report or research potentially harmful or defective toys and other products.

The need for this database is clear: Before its creation, it often took YEARS before the public ever learned of serious threats to health and safety that some products posed. For example, although both industry and the CPSC were first made aware that small magnets that easily fell out of children’s toys were causing serious, life-threatening injuries in 2000, it took FIVE years before the public was given any information, and more than SEVEN YEARS before a full recall of the products occurred.

The CPSC has implemented my database requirement in a responsible and reasonable way – it allows industry ten days in which to challenge the material accuracy associated with all reports and even provides the opportunity for industry to comment on reports it believes are erroneous, so consumers can hear both sides of the story.

Moreover, a recent poll found that eighty-seven percent of those surveyed want the ability to find out if another consumer experienced a safety hazard with a consumer product.

However, industry now wants to turn the clock back and return to a time when news of products that may maim or kill can be kept secret in the interests of maximizing profits and keeping the public in the dark.

VOTE NO on the Pompeo amendment to take this vital safety tool away from mothers and fathers all across this country.

Sincerely,

Edward J. Markey”

Read more here:
CPSIA – The War Over Pompeo’s Amendment to De-Fund CPSC Database

CPSIA – Save "Lost Souls", Vote for the Slanderbase!

The semi-religious mission of the safety zealots was on full display in today’s New York Times. In an article entitled “Deep Divisions as Vote Nears on Product Safety Database“, the Times profiled the controversy of the pending public database final rule approval (due on November 24th in a rubber stamp Commission session), highlighting on the idealist objectives of the database supporters. As per its typical leftist slant, the Times article gives scant credence to the legitimate concerns of manufacturers or the demonstrable consequences of the unrealistic Utopian vision underlying the CPSIA. After all, we manufacturers only care about money, right?

Every drama needs a hero, villain and victim. The public database controversy has all the right elements – manufacturers and Republicans as “villains”, consumer groups and Democrats as “heroes” and consumers as “victims”. Positioned this way, why would anyone ever support manufacturers? Who would want to even listen to the black hats? Hmmm. Good strategy, Naderites!

Consider the illustration used in the article – Michele Witte suffered the unspeakable horror of losing her child in a crib death. She asserts that the database might have saved her child. Perhaps that is true, perhaps it is not. Nothing can salve the wounds she has suffered . . . but that does not make the database a good idea. [I might feel differently about the database if, for instance, it was limited to deaths.]

The implication that the database is necessary to protect consumers is not a well-examined assertion. There is already a lot of data available to consumers. For instance, the CPSC maintains a massive national injury database called NEISS. A search of crib injuries on the NEISS database for 2009 (classes 1543-1545) reveals 572 reports which extrapolates into a national injury estimate (for 2009 ALONE) of 16,537 incidents.

Here are a few representative NEISS entries (the first five in the above sample):

- CHILD FELL 3 FEET OUT OF CRIB AND LANDED ON TILE FLOOR. CRIED IMMEDIATELY. D:CHI, FOREHEAD HEMATOMA.
- PT FELL WHILE TRYING TO CLIMB FROM HIS CRIB. LANDED ON L SHOULDER ON THE FLOOR. FELL 4 FT. CRIES WHEN PICKED UP UNDER ARM.
- PT FELL OUT OF HER CRIB AND STRUCK HER HEAD. NO LOC. CRIED IMMED. NOW ACTING NORMALLY.
- FELL OUT OF CRIB. DX HEAD INJURY
- PT STANDING UP IN CRIB, FELL BACKWARD AND HIT HEAD ON CRIB, NO LOC BUT MOM STATES PT HAD DAZED LOOK AND HAS BEEN LETHARGIC; HEAD INJURY

Did you learn a lot from this information? Can you verify that it’s true? Can you see ANY issues with attaching (unverified) product identities to this unverified and uninvestigated data? Are you a plaintiff’s attorney?

What are the zealots saying to justify their support of the database in the face of persistent and rational criticism of its design? Commissioner Bob Adler, former Henry Waxman staffer and longtime board member of Consumers Union, sums it up:

“Some folks are worried more about lost sales and not worried enough about lost souls.“

So, in other words, Adler condescendingly asserts that people like me are only concerned with MONEY. Instead, he claims that what’s really at stake here are “lost souls”. What is Adler talking about? Here’s what Wikipedia says about “souls”:

“A soul, in certain spiritual, philosophical, and psychological traditions, is the incorporeal essence of a person or living thing. Many philosophical and spiritual systems teach that humans are souls; some attribute souls to all living things and even to inanimate objects (such as rivers); this belief is commonly called animism. The soul is often believed to exit the body and live on after a person’s death, and some religions posit that God creates souls.” [Emphasis added]

Mr. Adler’s POV makes the question of having a federal database a moral imperative. Wow, now that’s a heavy decision – souls are at stake! Furthermore, Mr. Adler positions those who support the database as moral people and those who oppose it as immoral money-grubbers who prize financial well-being over the safety of consumers. Ugh. I would hate to be a Republican Commissioner voting against the final public database rule with Mr. Adler’s curse hanging over my head! Ouch.

Catching on to the theme, Ami Gadhia of Consumers Union, chimes in: “It’s a slow death . . . . [The] information never gets out in the public.” [Emphasis added] Death . . . souls . . . database! Do I hear a new slogan???

CPSC Chairman Inez Tenenbaum, ever sensitive to criticism, archly defends the agency’s effort to dialogue with people like me. Please recall that part of their “outreach” was to ask me to spend our company’s money to fly to Washington, D.C. to give testimony on the public database. Matt Howsare, Tenenbaum’s then Counsel and now Chief of Staff, told me that they needed more perspective from manufacturers and kindly asked me to prepare testimony. As previously noted, NOTHING that I said in my testimony was adopted or used in any way apparent to me. The NYT notes:

“The commission chairwoman, Inez Tenenbaum, disputed the idea that manufacturers’ concerns had not been properly considered. She said the agency offered numerous forums for comment and some of those ideas were incorporated into the final proposal. ‘We have been abundantly fair,’ Ms. Tenenbaum said.” [Emphasis added]

Apparently, testimony at a CPSC hearing is meant as an outlet for venting, not for listening. That’s “abundantly fair”, we are assured. Makes you wonder what “unfair” might look like . . . .

[A Senate Commerce Committee CPSC oversight hearing is said to be in the offing for next week. One fantasizes that they may take an interest in this issue, but the Senate is still a Dem stronghold. Don't hold your breath. Expect self-congratulatory positioning by the self-serving and deaf Dems.]

Consumer groups are portraying manufacturers demands for Constitutionally-guaranteed due process and other appropriate procedural safeguards as a grab for “advantage”. In other words, procedural safeguards for manufacturers are not legitimate protectible interests in light of the POSSIBILITY that consumers may glean some useful information among the garbage that will accumulate in the “post-it-and-forget-it” slanderbase being put up by the agency. Again, the NYT provides the bully pulpit for the zealots:

“Consumer advocates suggested the opponents were trying to weaken the database to protect business interests. ‘They have a great deal now, and I think they are trying to maintain the status quo by levying these unfounded arguments,’ said Rachel Weintraub, director of product safety for the Consumer Federation of America.” [Emphasis added]

If ever-disingenuous Rachel Weintraub is saying that we Americans have a “great deal” because we enjoy the protections of the Bill of Rights and other Constitutionally-guaranteed rights protecting groups and individuals against persecution and excessive governmental power, I agree. I agree heartily – and don’t want to lose those essential legal protections that form an important basis for our investments. Please REMEMBER, everyone loses something when ANYONE loses their legitimate legal protections. Btw, Bob Adler is a lawyer and a former Scholar in Ethics and Law at the business school at UNC Chapel Hill . . . .

Mr. Adler plays a little fast and loose with his database concepts. Apparently, it’s okay to put garbage into the database because the government “disclaims” its accuracy:

“Mr. Adler, the Democratic commissioner, said the database was not meant to be a legal forum like a court but more like a catalog of consumer experiences. He noted that a disclaimer on the database said the commission did not guarantee its accuracy. ‘”I put my baby in a diaper and my baby developed a rash.” That goes up. It’s an early warning system to alert other consumers,’ Mr. Adler said.”

Ahem: “But Ms. Nord said the proposal remained far too vague. She cited the recent case of Pampers Dry Max, made by Procter & Gamble, in which thousands of parents asserted that the diapers were causing their babies to get a rash. A commission investigation found no link between the diapers and the rashes. ‘We would have posted all these complaints about them even though they proved to be wrong,’ Ms. Nord said.”

Any idea why the CPSC “must” put up such a controversial database? The zealots know that there is legal risk in hosting a database that may include erroneous information or information that might slander manufacturers or tortiously interfere with commerce. They know this might violate manufacturers’ legal rights and could lead to lawsuits – and don’t want the legal liability or the hassle. How to get the data and avoid the legal problems? Get the government to host the legally-dubious information! Clever – but not necessarily in the interests of consumers or American markets.

Is the CPSC supposed to provide Mr. Adler’s catalog of “consumer experiences”? Is that part of its mission? [Readers of my blog know that] I realize we have a right of Freedom of Speech (check out the Bill of Rights), but is the federal government really supposed to foster that Freedom of Speech? I appreciate that Mr. Adler thinks a consumer “experiences” database is a really good idea (I disagree) but since when do our tax dollars need to be used to provide it? Is that the only option that makes sense? And that goes double for such a dangerous proposal that presents the realistic prospect of discouraging investment and other economic activity.

So many words wasted on people who won’t listen. Expect a “spirited” debate on the database as foreplay followed by the 3-2 partisan screwing that masquerades as safety administration these days. The song plays on . . . .

Read more here:
CPSIA – Save "Lost Souls", Vote for the Slanderbase!

CPSIA – The Scoop on the CPSC Database

In response to my last blogpost, a little bird contacted me with some thoughts about the public database that consumer advocates and their leftist political allies are cramming down our throats. Apparently, there’s a big gulf between what the Commissioners are saying publicly and what they are saying privately. Take it for what it’s worth.

While you might not agree with the POV purportedly adopted by the Dems below, it certainly portrays them as rational. I think that’s right – they know what they’re doing and are doing it by choice, rather than by coercion. The fact that their actions will be harmful to the regulated community is not lost on them, but we’re just not their priority. THAT’S the real problem here.

Here’s a few tweets for you:

a. While the Dems “support” the database, they are privately acknowledging that it is a colossal waste of time and staff resources. They do NOT believe the database will be full of useful information to anyone. Why should you believe this? According to a reliable little bird on my window sill, the CPSC has not hired even ONE person to process all the information that will be posted in the database. The reason – the leaders don’t care if the data is correct or not. The phrase “post it and forget it” is their agenda.

Did you catch that? POST IT AND FORGET IT.

I believe I recall Rachel Weintraub touting the credibility and accuracy of this data. Hmmm. My so-and-so detector is going off . . . .

b. The driving plan of the Dems is to spend as little as possible on the database. They consider it a diversion of their scarce staff resources. They believe the database will do nothing – or almost nothing – to improve safety so why put money into it?

But they will vote for it – that’s the price of their political patrons – and I guess the impact of this useless database on your business and your willingness to engage in business activities is none of their concern. So they’ll implement it and fill it with garbage. Who cares . . . .

c. The speeches touting the database are intended to please the consumer groups and the political patrons of the Dems running the shop.

d. There is a recognition that allowing the database to swallow up resources at the agency will interfere with the real work of the agency. The Dems actually want to keep people safe so they are going to spend the bare minimum on the database.

The agency doing the bare minimum on the database should be the most frightening thing you have ever read about the database. And it’s true.

You’re not meant to know any of this. This freedom of speech thing is a real pain in the neck for our overlords.

It’s time to get REALLY scared about the database.

Read more here:
CPSIA – The Scoop on the CPSC Database

CPSIA – On the Database, the Dems Side with the Liars

The vote on the noxious public database rule scheduled for the day before Thanksgiving (November 24) is a foregone conclusion. Says Rachel Weintraub of Consumer Federation of America: “There’s majority support for the proposed rule, which we applaud.” [BNA, "Poised for Database Vote, CPSC Reschedules Meeting at Dissenting Commissioner's Behest "] Says Christine Hines of Public Citizen: “There is nothing they [Nord and Northup] can do about it except yell from the rooftops.” [ibid.]

Let’s not forget, safety is not a partisan issue. Yeah, right.

But it’s true – the Dems control this vote and are going ahead with their rule, damn the consequences. And there will be MANY terrible consequences. I testified about the database last year and laid out many problems (see my testimony here). Industry has in fact pointed out many issues with the database, such as (a) the consequences of inaccurate information, (b) the consequences of manipulative or misleading information posted by trial lawyers or competitors, (c) the irreversibility of damage from adverse publicity, (d) the database as a government-sponsored and administered feeding ground for plaintiffs lawyers, (e) the negative impact of encouraging consumers to disclose problems to a database which withholds information from manufacturers, rather than direct communication, (f) federal government intrusion to replace or supplant private market solutions, (g) the debasement of Constitutionally-guaranteed due process rights and other protections afforded to litigants and possible victims of abuse of government power, and (h) the likelihood that the database will severely punish small businesses while having only marginal impact on the intended targets, mass market companies.

This seems a bit treacherous for something is said to be so “good” for everyone. Is there a problem here with selective hearing?

How do the Dems justify their position? Well, first of all, they don’t need to. Learning at the feet of Nancy Pelosi and Henry Waxman, the Dem Commissioners know that their voting power is all the justification they need. They have the votes, therefore they have a “mandate” from the voters, right? Why else would a Commissioner state publicly that anecdotes aren’t evidence? Troubling details from little people don’t matter anymore – not if the details might get in the way of the “agenda”.

The Dems and their allies also hide behind the NHTSA vehicle defects database. I find this so interesting because the ever-attentive CPSC heard testimony that debunked this example (same hearing that I testified in a year ago). The NHTSA example can be distinguished in many significant ways: (a) auto accidents are a leading cause of death in this country (consumer products are not), (b) every use of automobiles is known to be hazardous (not true for consumer products), (c) the auto industry is one of the largest components of our entire economy – we all use cars and many of us owe our livelihoods to automobiles one way or the other (the average sale of consumer products is far less than a car), and (d) the industry is highly consolidated among a relatively small number of massive companies that are quite well-prepared for litigation and regulatory issues (consumer products is not a consolidated market). General Motors went public today, completing its recovery from bankruptcy and its $60 billion bailout. I think GM and other automakers can handle the burden and risk of a database of deaths and serious injuries from use of their products. Learning Resources, on the other hand, ain’t no GM or Toyota. The NHTSA database sets an inappropriate example for consumer products for all of the foregoing reasons.

Providing further cover is the Rogue’s Gallery of leftist consumer advocates who spin yarns to support the decisions of the Dem Commissioners. Many of their assertions are bald-faced lies.

Example No. 1: “‘Right now, people can’t easily find out about products that they may buy or that they use every day with their family,’ said Rachel Weintraub, director of product safety for the Consumer Federation of America. ‘This database will provide consumers with credible, accurate information.’”

This is two lies by Rachel Weintraub. First lie – consumers “can’t easily find out about products”. Really? I recently wrote about consumer comments on Amazon for a product that was recalled – is that so hard to find? What about ConsumerSearch.com? ePinions.com? Consumer Reports Forums? All the large volume online retailers allow consumer to post reviews. I think it’s certainly true that consumer exchange of information online is both plentiful and easy to find. I also think it’s also a matter of opinion whether the federal government should a role to play here in this exercise of free speech – particularly if in the process, the government tramples on Constitutionally-guaranteed rights of due process of other members of our community.

Second lie (more glaring): “This database will provide consumers with credible, accurate information.” This is a doozie. From Section 1102.42 of the proposed rule: “The Commission does not guarantee the accuracy, completeness, or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC. The Consumer Product Safety Information Database will contain a notice to this effect that will be prominently and conspicuously displayed on the Database and on any documents that are printed from the Database.” [Emphasis added] On the other hand, perhaps Rachel is on to something – by publishing unverified and untrustworthy data on a government-run database, it will certainly LOOK credible and accurate! Practically the same thing these days . . . .

I would observe that while this disclaimer is going to be widely posted on the database, the name of the site is SaferProducts.org. What does this name imply to you? I take away that (1) I should be scared of dangerous products, (2) this website is where I can find out the “truth”, and (3) thank heavens for my government for making me safer (let’s increase the CPSC budget!). Ahem – I thought the CPSC does not guarantee the accuracy, completeness or adequacy of the information in the database so why is the website called “SaferProducts”? Should I feel “safer”? Was I supposed to feel endangered before? That’s the idea, kids.

But if Rachel says the postings are credible and accurate, there’s nothing to worry about, right? Provides some nice cover for our leaders . . . .

Example No. 2: Says Ami Gadhia of Consumers Union: “Commission staffers have worked very hard to ensure that the database is fair to everyone.”

Someone please define “worked very hard” and “ensure” for me. Please watch my testimony again and tell me what protections CPSC staffers designed for ME.

I interpret Ms. Gadhia’s lie as connoting that “fair” to her views is tantamount to “fair to everyone”. My interests don’t matter. Besides, Rachel is sure everything will be credible and accurate. That sounds fair . . . even if it’s completely untrue.

Example No. 3: Says Rachel Weintraub: “Every effort has been made to ensure that the information is accurate. . . . Otherwise, the database won’t be useful to anyone.”

Every effort, huh? Manufacturers don’t get to talk to the person who files the report or to the victim or see photos or samples submitted. Only our government can be trusted with that information for reasons not clear to me. The carefully “vetted” reports must be sent out within five days to manufacturers. We live in a country with 300 million people. Are you telling me that the agency is going to carefully “vet” the reports we inundate them with in just five days? Perhaps they need hire a few hundred more highly-trained associates to push this paper.

You are more than welcome to read the proposed final rule to learn about the agency’s proposed procedure to “ensure that the information is accurate”. Read Section 1102.10 (page 227 in this 248-page document). But I think I can save you some time. The filer has to confirm that he’s not lying (“A submitter of a report of harm must affirmatively verify that he or she has reviewed the report of harm, and that the information contained therein is true and accurate to the best of the submitter’s knowledge, information, and belief”). That’s certainly foolproof. Among the various required redactions and other agency “oversight” of this data, you will NOT find anything like an investigation. They are simply scrubbing and re-publishing someone else’s allegations. Under their procedures, they cannot possibly know if what they are publishing is true or false.

No wonder they disclaim accuracy, completeness or accuracy.

Example No. 4: Christine Hines of Public Citizen (from BNA): “She added that several hearings, workshops, and comment opportunities have provided the public and industry every opportunity to address concerns. ‘Industry has participated fully in the entire process.’”

We, the regulated community, have had “every opportunity” to “address” our concerns. This apparently constitutes participating “fully in the entire process”. This is much more than spin, this is another flat-out lie. You cannot assert that we have participated fully if we have been utterly ignored. The hearings were not for VENTING. As previously noted, Matt Howsare asked me to spend our company’s money to fly to Washington to testify on this database – and then blew off every point I made. Small business concerns were almost explicitly disregarded. We cannot be said to have had “every opportunity” to address our concerns if the impact on small business could be sloughed off. Was Nancy Nord afforded “every opportunity” when she was gaveled silent in the hearing on the database?

This one isn’t a lie: [from BNA:] “[Weintraub] said the CFA, like Public Citizen, supports the current version. ‘We think [the database rule] strikes the right balance between Congress’s intent and making the database usable while protecting manufacturers’ interests,’ Weintraub told BNA. The substitute rule would ‘limit the utility of the database for other consumers and public health professionals in terms of unnecessarily limiting who can report,’ as well as including other limiting provisions, she said.”

Why isn’t that a lie, too? Because she states that it is her opinion. She’s wrong – but at least she’s not lying this time.

The poison in the CPSIA is actually the handiwork of a small and energetic group of individuals, many of whom are featured here. They hide behind consumer-friendly sounding corganization names but are actually just troglodyte anti-business advocates. They are no less cartoonish than the way they portray us, but with the Dems running the CPSC, the “good intentions” of this group and the persuasive power of their phobias have the upper hand.

As all the consumer advocates say, the outcome here is hardly in doubt. But feel good about it – you have had “every opportunity” to address your concerns and have “participated fully” in the entire process.

Empty words and lies. That’s what this mess has become.

Read more here:
CPSIA – On the Database, the Dems Side with the Liars

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