CPSIA – What does "Any" Mean, Anyhow? Waxman Staff Weighs in.

The Waxman Amendment 2.0 is still percolating but with Congress on its Spring break, progress has stopped briefly. That does not mean, however, that discussions have ended or that the Amendment is “dead”. It will likely spring back to life shortly as Congress wakes up again next week.

Those of you who savor fractiousness and gridlock in your government will no doubt be pleased to know that the usual bickering and stubborn disputes over the awful CPSIA continues unabated.

In a meeting last week about the Waxman Amendment, senior Waxman staff again rejected the concept of allowing the CPSC to assess risk. [Given the extraordinary conservatism of this CPSC Commission, I can't imagine what Waxman is worried about . . . .]

The position of the Waxmanis has significant implications for the controversy over the word “any” in the lead exemption provision. Some commentators have argued that “any” does not mean none and that if “any” is accorded that meaning, then the exemption process would never yield any exemptions. [CPSC staff have reached similar conclusions, hence their universal rejection of exemption requests. This also explains their puzzling approval of nuclear waste for inclusion in children's products.] Resolution of this issue might not only crack the door for exemptions but might also help narrow the scope of CPSC responsibilities by eliminating obviously safe products from the lead rules. This would be good, to restate the obvious.

According to Waxman staff, the CPSC got it exactly right – the word “any” is meant to prevent exemptions if ANY lead could pass from the subject item into the human body. No matter that this means that there will never be any exemptions possible under the exemption process (!). No matter that there are many other environmental sources of lead which pose a far greater hazard in a child’s life than almost all children’s products. No matter that many useful products might be banned (see my latest casualty post). In the Waxmanis’ estimable view, Congress “wanted” ZERO lead in the communal toy box. Otherwise, there might be a “perverse” effect on safety. Or so they say.

This is exceptionally unlikely to be true. Interviews with MANY members of Congress over the past two years confirms that “Congress” believed that the CPSIA included a real and workable mechanism for sensible exemptions. Not that anyone thought about the details of this bill for more than a few micro-seconds, but if they did, they thought there was a viable exemption process. Actually, it takes virtually no effort these days to find members of Congress who assert that the CPSIA was a toy bill. Gotta keep ‘em guessing, I suppose.

It must be nice to be able to project your own views onto an entire institution. This is a good way to defect blame. What did Congress “want”? No one can know what that amorphous institution wanted or wants. At this point, the Waxmanis are self-appointed interpreters of the Congressional psyche. In reality, it only matters what “House baron Henry Waxman” wants. In this case, an impotent exemption process is exactly what he wants. The sham also provides him with cover against more skeptical members of Congress. That you can see through it hardly matters – do you actually expect members of Congress to read the law and figure out how it works? Come on!

That’s participatory government for you. Unfortunately, you only think you are participating. Mr. Waxman will let you know when he needs your input. . . .

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CPSIA – What does "Any" Mean, Anyhow? Waxman Staff Weighs in.

CPSIA – Commission Delays Vote on Lead Content Stay for One Day

In this morning’s hearing on extending the testing and certification stay (the “Stay”), the Commission opted to carve-out lead content from the Stay. The decision on how to handle lead content under the Stay is docketed for a ballot vote tomorrow. [Just to clarify, other aspects of the Stay were extended today including situations where the rules and certifications have not been completed, such as ASTM F963 and phthalates.]

Frankly, the demise of the Waxman CPSIA amendment throws a HUGE curve ball at the Commission. Now that Waxman’s fractious process derailed his attempt to “fix” the CPSIA, however ham-handed that attempt may have been, it seems that change is in the air. Will the Commission plunge on ahead with its big decision as though nothing has changed? Your guess is as good as mine. Unfortunately, things are happening so fast that events are literally overlapping – the news about the dead amendment came as the CPSC was completing its morning hearing. It seems to me that the Commission must now take even more time to carefully consider its next steps – this historic opportunity to force common sense change should not be squandered.

It seems equally important that the Commission reject partisanship and pull together, even if it takes more time and more debating (off-line and in the public eye). The poisoned partisan atmosphere of Waxman’s House Energy and Commerce Committee sadly seems to have migrated to the CPSC Commission. In today’s hearing, Commissioner Northup called for more effort by the Commission to reach 5-0 votes. What a timely call THAT was! The failure of the Waxman amendment can be interpreted as Congressional rejection of partisan control of safety by the Democrats alone. Over the course of the past year, partisan hubris led to extremism, culminating in a small number of Democrats co-opting the law as self-appointed defenders of the “will of Congress”. Safety belongs to everyone – it’s not political. The call to action now is for the Commission to act as one. Whatever damage the Waxman fiasco caused to working relationships needs to be rapidly repaired through the individual leadership of the Chairman and the other Commissioners.

The Commission has balloted Anne Northup’s motion to delay lifting the Stay on lead content until six months after the issuance of the so-called “15 Month Rule”. This proposal, acknowledged by Inez Tenenbaum to be based on “common sense”, is not likely to be adopted without a gentle shove. Ms. Tenenbaum herself stated that manufacturers had asked for a “date certain” when the Stay would be lifted. [One can only hope that she was confusing a reasonable request for certainty, as in knowing what the rules are and when they will be imposed, with a request for a deadline. I cannot imagine who would demand a compliance deadline from the CPSC without knowing what the rules actually are, and if such a (neurotic) person exists, I would like to speak to him/her to better understand WHY they think this would be helpful.]

Even more worrisome, Commissioner Bob Adler contended that “Congress” wanted to be sure that everyone is in compliance with the law. [This personification of Congress is very troubling, especially since the Waxman fiasco makes clear that the original CPSIA votes no longer reflect the will of Congress today - or else how was an amendment by the powerful Henry Waxman stopped? This kind of thinking needs to be revisited.] Mr. Adler further asserted that based on feedback from small manufacturers, the most serious concern today is component testing which will be addressed by the CPSC’s new interim enforcement policy. Adler was rather dismissive of the market impact of the 15 Month Rule beyond component testing and he even asserted that the VAST MAJORITY of manufacturers would be “just fine” with lifting the Stay today if they got effective protection for component testing. I question Mr. Adler’s research on this point.

The lines are drawn for tomorrow’s fight. Mr. Adler has stated a preference for a date certain of August 14, 2010 for full implementation of the testing and certification rules. Ms. Tenenbaum says she would vote to extend the Stay again if the 15 Month Rule is not completed by August 14, thereby signalling her approval of Mr. Adler’s formulation. [Market chaos be damned?] Mr. Moore generally follows the party line so you can count him in, too. If the Dems don’t move off these positions by tomorrow, we are looking at a date certain of August 14 for lifting the Stay on lead content. This would sadly be more of the same. [Makes you wonder why we all took two days out of our lives to go to the CPSC to give comments at last week's 15 Month Rule workshop, or even more bizarre, why the CPSC called for comment letters on the 15 Month Rule by January 11 - if the Commission is seriously thinking of voting tomorrow to lift the Stay without considering ANY of this input. So - which process is a sham, the workshops and the comment letters, tomorrow's vote, neither . . . or both?]

The problem with the August 14 “date certain” proposal is that the following matters have not been resolved:

• Testing frequency
• Component testing
• Re-testing requirements
• Sampling requirements
• ASTM F963
• Lab certifications

It was noted in today’s hearing that only EIGHT certified laboratories have been approved for lead content in children’s non-metal products, three on the West Coast and the rest overseas. Here’s the list:

1. Bureau Veritas (three China lab locations)
2. CTC Group
3. Intertek (two China lab locations)
4. Istituto Italiano Sicurezza Dei Giocattoli S.r.l.
5. MSR Laboratories, LLC
6. SGS (one China lab, one U.S. lab, one India lab location)
7. Specialized Technology Resources Ltd. (one China lab location)
8. Union Technology Research & Service Center

For perspective, consider these long lists of locations for three leading labs: SGS (worldwide), Intertek (China list only) and Bureau Veritas (China list only). That’s just the tip of the iceberg of the testing market (admittedly not all of these labs focus on or serve the children’s product industry). One lab we use, not on the above list, reportedly can’t seem to get someone from the CPSC to visit them to certify them for lead content testing. It’s understandable – the effort to process all these (pointless) certifications is taking a lot of the agency’s resources and time. The CPSC is just not ready to manage this enormous bureaucracy even 16 months after passage of the law. Eight labs to serve the worldwide children’s product industry for access to the U.S. market by August 14 – that’s a BAAAD joke.

With the Waxman amendment behind us, the Commission has a great chance here to focus its efforts in the right direction. The recent Omnibus Appropriations Bill (H.R. 3288) contains these instructions: “The CPSC is directed to assess enforcement efforts of [CPSIA] section 101(a), including difficulties encountered, as well as recommendations for improvement to the statute, and to report to the House and Senate Appropriations Committees, as well as the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee, no later than January 15, 2010.” This report should be the focus for the Commission at this time. The Stay is secondary to this historic opportunity, and as such the Commission should not get caught up in the moment. MANY legitimate concerns have been raised by manufacturers relating to the lead content aspects of the Stay. We are not all guilty until proven innocent – why can’t these valid doubts justify taking the time to “do this right” (as Ms. Tenenbaum called for in a November hearing)?

With change in the air, the Commission needs to seize the moment and lead us out of the wilderness by calling for a technical amendment to the law. The January 15 information request is the golden opportunity. The agency should not simply respond with something designed to please Henry Waxman – that would fumble the ball. Instead, the agency must offer up suggestions designed to meet the will of Congress expressed this week – namely, a proposal to fix the flaws in the CPSIA while providing reasonable protection to children.

It’s time to do the hard work. I am ready to help – are you?

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CPSIA – Commission Delays Vote on Lead Content Stay for One Day