CPSIA – A Consequence of Being Governed by Idiots

At what point will we all rise up and say we are SICK of the oppression of the CPSIA? Today’s offense is the discovery that an innovative educational products developer has begun to sell a chemistry kit that advertises that it is “chemical-free” .

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 – NAM Letter Pounds the CPSIA Database

March 8, 2011

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

Dear Mr. Stevenson:

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

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

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

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

CPSIA – ICPHSO Presentation on CPSC Strategic Plan

You know they have a strategy . . . .

I am at ICPHSO for the next couple days, reporting from this safety convention “live” for the third year in a row.

As in the past, I am working “live” and off my notes, so take it for what it’s worth. I may make some mistakes (which I regret), but heck, this is a blog. According to my critics, you shouldn’t believe half of what I say anyhow . . . .

The Opening Session today featured Ken Hinson, the Executive Director of the CPSC. Ken is a relatively new addition to the senior staff of the agency.

Mr. Hinson argues that employment at the CPSC is directly correlated to safety. Reported incidents are skyrocketing, but investigations are declining. This statistic does not capture what the agency is DOING as a result of those investigations, notably.

The agency is “extremely excited” about the product database. One wonders what they are so “extremely excited” about, given the extensive testimony about the problems with the database. Wayne Morris of AHAM testified in Congress last week that when erroneous information is posted, as it certainly will be, there is NOTHING that can be done to remove it from the Internet. He compared the database to a “blog”. A blog! I testified in the same Congressional hearing that the effect of the database will be to encourage consumers to NOT communicate directly with us about product issues but instead to post to the database, and since the CPSC restricts our access to this data, it is likely that the database will INCREASE safety risks.

Lots to be “extremely excited” about, indeed!

The CPSC Strategic Plan is now online. I requested to be interviewed as part of the process of developing the Strategic Plan, as I was invited to do, but somehow they failed to call. Hmmm.

Five goals:

1. Leadership in Safety
2. Commitment to Prevention
3. Rigorous Hazard Identification
4. Decisive Response
5. Raising Awareness

First goal: Will create annual plans to address the most pressing merging safety hazards. Supposedly will be working closely with stakeholders, you know, like readers of this blog. Okay, not us, but somebody. I bet consumer groups might be on that list . . . .

Second goal: They want us to “build safety into consumer products”. Presumably the CSPC thinks this is a new idea because with an ex post facto approach to safety, any injury means the manufacturer screwed up. We’re always wrong, thus inviting the government to get involved in what we do to make things “better”. As Ronald Reagan said, the most frightening sentence in the English language is “We’re the government and we’re here to help!”

They’re going to give us proactive education on how to design our products more safely and will create incentives to encourage us. I can imagine those “incentives” might be based on penalties imposed and threats made by the agency in recent years.

Third goal: This is the scary one – they will be looking deeply for hazards, like cords on baby monitors . . . . Presumably, when they find a “hazard”, well, you know what happens next. They are working on increasing their ability to obtain, analyze and act on information of “hazards”.

My problem with this is that the definition of what constitutes a “hazard” has been lost. Perhaps this is a picky point, but they don’t have the legislative authority to do whatever they want. They are restricted to work on SUBSTANTIAL PRODUCT HAZARD. In fact, they are limited by the law. Someone should tell them about this.

Mr. Hinson: “This is all about speed.” There’s a confidence builder for me – hasty judgments are always better by definition.

Fourth goal: The CPSC plans to act fast and “hold manufacturers responsible”. It’s all about “speed”. Again, agency policy seems to be to encourage hasty judgments. Based on industry chatter, this policy does not involve dithering or considering defenses or due process. The CPSC is judge and jury, legislature and executive branch. In fact, often it is a junior and inexperienceds staffer who is judge and jury. See how you like it when you are on the receiving end.

This will be SUPER until all products are finally killed off.

Raising awareness is critical to empowering consumers, so says Mr. Hinson. I question whether empowering them to panic or make judgments based on scant, erroneous or inappropriate data is a really good idea or good public policy. The “good news” is that they have set this plan in motion, so your opinions and mine don’t matter.

Fifth goal: The raising awareness goal certainly incorporates the wonderful new database. Likewise, Neal Cohen and the small business liaison office is part of this plan.

Btw, raising awareness is a really good goal for the agency but if it doesn’t know what a hazard is, or have good processes to encourage trust among manufacturers, they can do a lot of damage with their clean heart and good intentions. Sucking up to left wing politicians and consumer groups does not necessarily produce good public policy. The agency might consider taking more seriously criticism of its activities and actually taking on board suggestions by knowledgeable stakeholders, including ex-CPSC staff.

Read more here:
CPSIA – ICPHSO Presentation on CPSC Strategic Plan

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 – Last Ditch and Pointless Comments on Public Database

The CPSC Commission will be voting on a final rule governing the new public database for product safety complaints on Wednesday. The final rule tips the scales at 248 pages.

I know I am a public utility. . . but it’s confession time – I didn’t read it. I know what’s in there and the Powers-That-Be don’t care what I think anyhow.

Commissioners Nord and Northup have published their own alternate rule. It must be worse than the CPSC’s proposed final rule because it’s much shorter, only 27 pages long. I read the Nord/Northup rule – they asked for comments and I believe they will actually listen. It won’t matter because the Commission now votes on party lines, so our comments are irrelevant. The Dems already know what they intend to do. Adler, Tenenbaum and the out-of-office Moore vote as a pack and do as they collectively please. Perhaps this time they won’t even bother to make a pretense of listening to Nord or Northup. I picture the meeting going quickly as the Dems all put on their iPods and ear buds while Nord and Northup have their say. Might as well bop to iTunes, Commissioner communication is at a standstill anyhow.

Relax and enjoy it, kids! You’ll love it. What could possibly go wrong???

Before I tell you all the reasons why I detest the public database, I want to give you my comments on the Nord/Northup draft:

1. I greatly appreciate the effort and the gesture. They didn’t have to do this, and made a game effort to help out. Their rule has as much of a future as the 2010 Cubs but nonetheless, I admire their commitment to their job responsibilities and to the market the CPSC regulates. Nord and Northup recognize the many risks implicit in the database idea and attempt to fix as much as they can within the context of the deeply-flawed CPSIA, the law of the land. Thank you for trying.
2. The proposal commendably attempts to limit who can post in the database by narrowly interpreting the CPSIA. This is an appropriate regulatory agency response to an excessive law, something a well-run federal agency would do to keep the trains moving on time. Naturally, the agency has not opted for that courageous route over the past two years.
3. Much of the proposed rule involves what can be disclosed, how to protest inaccurate information and the disclosure of confidential information. It is highly technical – your eyes will glaze over. It’s all necessary to make the best of a bad situation.

The basic concept of the database is that the government must set up coercive rules to make “bad” companies do the right thing. Apparently, the geniuses behind the database assumed that we cartoonish corporate bad guys would never exercise good judgment without the pressure of the public database. Many steps backward resulted. For instance, the Nord/Northup proposal says that manufacturers will not be provided the name or contact information of the submitter of the complaint or the injured party. We also won’t receive photographs of the injury. And this is for what purpose? Apparently by withholding this information, the CPSC enhances the ability of manufacturers to do their job. I believe this is a reversal of current practice.

There are many consumer “advocates” out there who are telling misleading stories about the database. A good example is “Wallet Pop” who provided an update on the database on November 12th. Here’s how he portrays the situation:

a. “Trying to keep your family safe from dangerous products is extraordinarily challenging.”

RW – Is that really true? What is the evidence that we are all “in danger”? This is not an exaggeration – this is a LIE.

b. “As much energy as the U.S. Consumer Product Safety Commission spends trying to alert consumers to hazardous products, an alarming amount of the information it possesses is kept secret.”

RW – Enforcement investigations and enforcements themselves are very closely associated with litigation. Confidentiality is absolutely ESSENTIAL for any semblance of due process, a Constitutionally-guaranteed right, even for corporations. The Rule of Law protects us all, even if we must tolerate some sacrifices, such as the sanctity of confidential investigations.

That DARNED Constitution, so inconvenient.

c. “Releasing all this information is a frightening and annoying prospect to many companies, who fear tarnished reputations.”

RW – There’s a lot more to fear in the database than just tarnished reputations. Let’s not overlook that the Internet exists. We manufacturers live in a world where the consumer is KING – our reputations are on the line every day already. There are already many websites ready and willing to let you bash away at us, as long as you let them sell ads. So it MUST be something more than “tarnished reputations” that is causing all that fear. Could it be . . . heightened litigation and liability risk???

d. “Nancy Nord and Anne Northup want further restrictions on such things as whose reports can be included in the database (no lawyers acting on a victim’s behalf, thank you) . . . . Traditionally, Nord and Northup are on the losing side of 3-2 votes, but they’re not going down quietly.”

RW – Safety is now PARTISAN at the CPSC. In other words, in their spin machine, Democrats CARE deeply about kids and Republicans are heartless money-grubbers. These days the caring Dems run the show and money-grubbers are always outvoted.

I know you like a good story at bedtime! Bad Republicans, good Democrats. Sweet dreams.

e. “Companies will still make huge profits after this database is made public. Is it wrong for a handful of large and powerful corporations to perhaps take complaints a bit more seriously when they come in instead of choosing to dismiss them until hundreds are hurt or innocent children lose their lives?” [Emphasis added]

RW – The CLASSIC mischaracterization of our market that it’s all about big companies. This guy has Mattel and Graco on the mind. The irony is that the mass market companies could care less. The ones who will be CRUSHED are the small businesses. Let’s not forget that Mattel gets to test its own products – and when it LATER had a recall of 11 million units of its merchandise, no one asked any questions about testing. The rules are hardly even a blip to those guys. The cost to Mattel from that massive recall: ONE PENNY PER SHARE. The database is just anothe sidelight to those guys. The story is rather different for small businesses, however.

Not that the CPSC cares . . . .

So why do I hate the database?

1. There is a big difference between restaurant reviews and “United Breaks Guitars”, and product liability. The database is all about litigation and liability risk. Reputational reviews are about goodwill, but the database has to do with systemic risk for our businesses. It is a pro-plaintiff distortion in an already out-of-control tort system. Fundamentally, reputation is about consumer as king. Liability is about bloodsucking lawyers as king. This database is not designed to inform consumers well – the information is not certified. So why have a garbage in-garbage out database. It’s intended to foster more vexatious litigation. Read the WalletPop article again – it’s clear that the database is intended to be coercive. How do you suppose it will be coercive?

2. The government has no business lending a hand to tort lawyers. The tort system which provides the “little guy” with a way to seek redress functions just fine. The New York Times just published a study on hedge fund investing in tort lawsuits. Must be quite the cash cow if those guys are getting into it. The database gives them a new target – you. Why is it appropriate for the CPSC to oversee the disbursement of this information?

Do you think this will raise our standard of living? Create jobs? Increase capital available for investment?

It is worth noting that the database will create an expansion of the role of government in our markets. This is classic government bureaucratic creep where the government attempts to compete with the open market. Yes, there is that Internet thing. All those new tedious jobs, those eyes-glaze-over procedures must be administered by freshly-minted bureaucrats. The database must be built and maintained on government servers. Decisions will need to be made, filings and “transmittals” processed, deadlines watched, complaints followed up. This is PURE overhead. [And there is also the even larger devotion of resources that will need to be deployed by manufacturers.] Read the rules and ask yourself – will the world be better with all the new rules? With this expansion of our government? Isn’t this what you read about in the papers every day?

I am so, so sick of it. When will it end?

3. There is no economic justification for the excessive risk that the government is forcing on the market. The children’s market has not been killing or maiming kids in large numbers. Let’s not forget that we are a country of 300 million and it is not a utopia – some injuries will happen. [My apologies, I don't mean to burst your bubble.] Far more kids are killed or maimed in swimming pools than in any other children’s product activity. Apparently those kinds of deaths and injuries are not as troubling as other kinds of childhood deaths and injuries – there is no database on swimming pools.

4. The database is definitely subject to manipulation by competitors and other agents of corporate extortion and destruction (like bloodsucking lawyers). That is, under the proposal that Tenenbaum and Co. will pass when they take off their ear buds on Wednesday. For myself, I am particularly apprehensive about the stress that the database will place on our company. We will get notice in five days and have ten days to reply. Since the agency is going to launch a publicity campaign to convince the public to report every nit in the database, I expect MANY such postings. Now every broken toy will be a potential liability for our company, and trivial incidents will become our top priority. Forget about growing out business – it’s catering to the exigencies of the database that will matter. Still, I cannot imagine making the database the centerpiece of my business life. I also don’t know how we are supposed to answer a lawyer who asks how we monitor this database if we ignore it. Damned if you do and damned if don’t.

Not that the CPSC cares.

I can hear the advocates now – “This is what we want companies to do. They need to be ‘responsible’ and pay attention to their products and their customers.” Well, that presumes that we weren’t doing that already. In any event, we choose what we do every day. If you make us miserable enough, we’ll get out of this market fast. And that’s what the CPSC seems committed to do.

I think the database will quickly supplant the old way of finding out that there was a problem with our products – namely that our customers would call or write us. So they will place this information anonymously in a database and we will not be able to interview them or see their product. This puts us more in the dark and makes our job much harder. Or impossible. Brave new world . . . .

The whole subject depresses me. Be prepared for more fireworks and then the expected outcome on Wednesday. Our opinions will not sway the Majority (remember, Adler told us that anecdotes aren’t evidence, so they are free to ignore us and our amusing anecdotes).

And after this ugly business is concluded, you know what’s next . . . the 15 Month Rule. Then we’re goners, once and for all. Eric Cantor, where are you???

Read more here:
CPSIA – Last Ditch and Pointless Comments on Public Database

CPSIA – Hugh Hewitt on the Coming Public Database

The Database That Ate American Business

Town Hall
April 9, 2010
By Hugh Hewitt

Very few people outside of the commissioners and employees of the Consumer Products Safety Commission, a few business lawyers and the legion of left-wing so-called “consumer activists” know much about the countdown to the new SaferProducts.gov “database,” but by this time next year American business will be reeling from the launch of what will become a government sponsored virtual bulletin board for the serial slandering of American manufacturing.

Reputations will be ruined and brands deeply damaged once the Congressionally-mandated internet bulletin board becomes operational. Here’s the benign summary of what the law requires, as interpreted by the CPSC in a report to Congress :

To meet the requirement for a public database, CPSC is planning to build SaferProducts.gov (working name only – final still to be determined), which will be a single central location where consumers can go to report product safety incidents, and to search for prior incidents and recalls on products they own, or may be thinking about buying. In conjunction with the web site launch, CPSC will also conduct a public awareness campaign to raise awareness of SaferProducts.gov. Sounds wonderful, right? But how will it operate in reality?

Understand that every “report” received by the CPSC will have to appear on the database, and not just reports of actual injury but also of threat of injury.

And anyone who cares to make the report –activists, plaintiffs’ lawyers, busybodies, disgruntled employees etc– can do so with their anonymity guaranteed. Manufacturers whose products are slandered on this site will be allowed to respond, but the agency has a total of just over 500 employees, and they must oversee the entire process. Anyone care to guess how quickly the agency’s resources will be overmatched by a flood of trolls and mud-slingers?

Congress obviously loved the idea of providing “internet tools” to consumers who are upset with any particular product, but the staffers who wrote this piece of legislation must be unfamiliar with how open forums on the internet actually operate. For a taste of the absurdity of comments received in such a place, sample the comments below for the usual trolls who show up to spew and stomp their virtual feet. Amusing stuff for an opinion columnist, but deeply damaging for a business trying to sell product.

A few lawyers specializing in CPSC law have begun to warn their clients of the perils ahead, especially when the plaintiffs’ bar begins to both hunt for clients among the postings and to use the “reports” found there in courtrooms far and wide as evidence of a pattern or practice of corporate indifference to injury. My colleague Gary Wolensky gave a presentation to the Sporting Goods Manufactures Association this week on the need for every manufacturer in America to design now a response strategy to roll out when the database goes live next spring. Rob Neppell of Kithbridge.com opined on my show last week that any manufacturer in the country that isn’t already methodically scanning the web for mentions of its products is far behind the information curve, a late start that will become lethal if the companies aren’t prepared to monitor and effectively respond to the “reports” to the database.

But even with the best lawyering and real-time monitoring it is hard to imagine American manufacturing being able to keep up with a flood of anonymous “reports” about the dangers posed by their products. The old Mark Twain rule about a lie being half-way around the world before truth has its boots on is even more obviously true in an era of instant connectivity to the global information superhighway.

Congress has ordered the CPSC to arrange for open-season on American manufacturing. If the Congress is returned to saner hands this November perhaps this train wreck can be averted, but don’t count on it. American business is about to take another one on the chin.

Read more here:
CPSIA – Hugh Hewitt on the Coming Public Database

CPSIA – Power Imbalance

When the respected Chairman of the CPSC uses a prominent keynote speech to tell us:

“But now that our team of experts has gone back to the process of building the database, I want those in industry to stop fighting old battles and get prepared.”

and

“Well, to all of you here today, I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.” [Emphasis added]

I believe it is an abuse of power by a public official.

Let’s think about how the cards are stacked in favor of the Chairman:

• She is appointed by the President to a fixed term of office and is not subject to removal but for malfeasance,
• She gets the microphone and media attention at her pleasure and is a regular on popular TV news shows,
• She has a PR machine working for her full-time,
• She supervises the writing of the rules and policy setting (including implementation of the CPSIA), the issuance of penalties, the prosecution of recalls and other cases (up to and including criminal charges), oversees appointment of senior staff, interacts with Congress and the Executive Branch on behalf of the agency, and oversees open forums with stakeholders as well as the solicitation of comments and other feedback loops with stakeholders, and
• She speaks for the Federal Government on consumer product safety.

That’s a lot of firepower. Most people don’t want to cross someone with so much power or influence as well as the almost unrestrained ability to prosecute. Let’s not forget another quote from her speech: “A new Commission that has new powers – and we are not afraid to use them. If you resist our efforts to recall children’s products, be forewarned, this Commission stands ready to be creative in the use of our enforcement authorities.” [Emphasis added] She has a lot of power and wants you to know she’s ready to squish you.

The Chairman is essentially judge and jury in cases and policies that matter a lot to safety stakeholders. Her warnings to “to stop fighting old battles” can be taken as a warning to people like me. It is hard to not believe that she is trying to be intimidating. Likewise, with her federal imprimatur, her remark that you should not “believe everything you read on the Internet, except what you read on Web sites that end in dot gov” feels like an effort choke off debate. Be forewarned, indeed.

This power dynamic is not my imagination. Others facing the overwhelming power of the federal government routinely have had to cave, right or wrong. For example, the latest issue of Fortune magazine features an interview with Stasia Kelly, former General Counsel of AIG. She tried, in vain, to negotiate with Kenneth Feinberg, the federal “Pay Czar” on behalf of her company. Eventually she quit her job, rather than face the consequences of Mr. Feinberg’s unilateral plan. Here is an excerpt from the interview:

“The next huge event for you was the June 2009 entry of Kenneth Feinberg, the special master of compensation for seven companies, AIG very much included, that had received TARP funds and not paid them back. You were AIG’s point person in dealing with Feinberg. I’ve read you emerged from that experience disliking it heartily. Was it bad from the beginning?

Yes, because, first of all, it’s very hard to negotiate when you have no power. Feinberg had the power — unfettered power. Our new CEO, Bob Benmosche, and I tried very hard to let him know what compensation we thought we required to attract and retain the kind of people we needed to pay off our debt to the taxpayers and deal with the risk in FP. We had the New York Fed and Treasury behind us on that. But Feinberg had political and populist considerations to worry about and a need to set amounts that would satisfy those. As we negotiated over the months, it became increasingly obvious to me that we were not going to end up in a good place.” [Emphasis added]

High officials at the CPSC have enough administrative and political power to be tremendously coercive. This goes double for small companies who lack the financial or political firepower to blunt a government attack. You can’t overlook the fact that the powerful Henry Waxman is essentially the CPSIA’s “sponsor” and hence, the principal off-stage player behind this leadership group. When they use their bully pulpit to stifle debate, they are essentially borrowing and wielding his power. This is a caustic environment, and it is not lost on anyone listening to their speeches. While the “have’s” may like it, the “have-not’s” (like me) chafe. This is a bad approach to building a community.

The folks running the CPSC are just trying to do their jobs. So am I. There’s room for both of us. Safety doesn’t have to be all about politics (see the Kelly quote above) and if leadership at the agency can guide us to a place where it isn’t all about politics and populism, the stakeholder fractiousness might die down. Until then, I would appreciate it if leadership would stop trying to stifle debate or discredit independent sources of commentary. It’s not our fault we don’t have a “dot gov” URL.

Read more here:
CPSIA – Power Imbalance

CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

Inez Tenenbaum gave a keynote address at lunch at ICPHSO today. I would have preferred to rely on the actual text of the speech before writing about it (not yet available online at the CPSC website), but wanted to give you my impressions quickly. If I took erroneous notes, I apologize and will correct errors, if any, later.

Critical points from the speech:

• The speech was tough and hostile to “uncooperative” businesses.
• She gave plugs to Consumers Union, PIRG and CEH. Draw your own conclusions. She balanced those plugs with a hearty pat on the back for RILA which she said has proposed its own uniform testing “problem”. Oops, Freudian slip . . . she corrected herself to clarify that it is actually a uniform testing program. Program, problem – these are synonyms at the new CPSC.
• She wants to dispel the “rumor” that the agency is overwhelmed by mandates and is distracted from its mission. Further to this point, with regard to Internet “rumors” like the foregoing, she recommends that you only believe websites that end in “dot gov”.

Let me repeat that last one: Tenenbaum says you should ONLY believe websites that end in “dot gov”. That means you shouldn’t believe me, just her. Don’t be cynical, guys. Speaking for myself, when a high public official tells me not to believe the media chatter, just to believe them, I always take the heartfelt advice. After all, they only mean to protect me from scurrilous gossip that I am too dumb to figure out for myself. For instance, I still believe everything John Edwards says . . . .

• Regarding recalls involving a death, Tenenbaum warned companies NOT to blame parents in the press even if they are involved in litigation with the family. If they do, Tenenbaum promised (in strong terms) to “call [them] out”. I was floored by this. Is she our mother now? Our mother government, perhaps.
• She urged us to “stop fighting old battles” and get prepared. She was referring to the new era of the Public Database. Hmmm. We are to stop fighting old battles. Okay, everyone, put down your arms!
• She reiterated that the CPSIA was the “most substantial and positive” development in the CPSC’s (recent) history. She noted her love of the tracking labels provision and the removal of lead from zippers. Apparently my many comments and objections to tracking labels were ALL wrong. Darn! I must learn to love tracking labels. Repeat five hundred times, I must learn to love . . . .
• On the subject of voluntary standards, she emphasized that if industry doesn’t move fast to do it the CPSC’s way, the agency will just put out mandatory standards more to its liking. She specifically cited the JPMA and ASTM on the crib standards. She sounds really open-minded on that one. Tenenbaum also recommends that industries proactively make their standards more stringent so the agency can make them MANDATORY. Or . . . the agency will just do it itself. Nice! I feel trust building, building, building.
• She noted that the law applies to big and small companies ALIKE “for good reason”. Hey, crafters, get the message – there will no free pass for you. Of course, this actually makes sense because product injuries should not be okay simply because the manufacturer is small. The way to fix things for small companies is to rework the definition of hazard to be limited to ACTUAL hazards only, which will focus safety efforts in a logical fashion, thereby helping out the small guys. The crafters are a victim not of fair rules that are blind to small business interests – but instead of a terrible law that is so fatally flawed that no business can deal with it.

Here’s the best part:

1. Chairman Tenenbaum said that she won’t tolerate resistance to recalls that the agency wants to make. If you do dare resist, the agency will use its many tools to force the “right” outcome. Chairman of the CPSC or Chairman of the Politburo? Individual rights and due process are apparently a secondary consideration now, to judge from Tenenbaum’s fiery speech. There’s a big incentive to invest, right?
2. Tenenbaum cited Toyota as an example of how “this government” will NOT tolerate slow recalls. Oh boy. Think of the Toyota food fight when you imagine the future of CPSIA enforcement. Recall first, ask questions later and let the media sort out the details. And be sure to bring the mighty down low. That sounds so fair!

There are many industries that are going to be victimized by this new enforcement regime. The list will be LONG.

Lots of tough talk, saber rattling and scare tactics. Of particular concern is the implicit erosion in corporate legal rights and the continuing demonization of businesses and business people. The Obamist populist rhetoric was quite recognizable, and one must wonder who Tenenbaum really intended to reach with the speech. Whoever they are, I hope they were happy. As for me, I got the willies and thought that whatever progress I sensed earlier today was an illusion.

Will the Dems ever learn?

Read more here:
CPSIA – ICPHSO Update -Remarks of Chairman Inez Tenenbaum

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