CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

Last week, the Democrats took action to protect you and your kids from the perils of lead.  As we have been relentlessly reminded by non-scientists, there is “no safe level of lead” – just ask Bob Adler and Inez Tenenbaum.  Now, in the wake of the conclusion that reducing lead content from 300 ppm (lead-in-substrate) to 100 ppm will produce “minimal” health benefits (read, none), the CPSC Commission voted three Democrats to two Republicans to reduce the lead limit to 100 ppm.  Reducing lead standards from 300 ppm to 100 ppm can be expressed a different way mathematically.  This is a reduction from 99.97% lead-free to 99.99% lead-free.  [ Credit to Anne Northup for the mathematics!] This will cost billions and the economic devastation was ALSO documented by the CPSC Staff in their analysis on the 100 ppm standard .  Nevertheless, the non-scientists who rule the roost at the CPSC saw nothing but health upsides in this technologically feasible but economically absurd feat.  And, as we know, injuries to children have an infinite value when you are unable to assess risk.  The numbers work out – yes, the cost may be in the billions and the reduction in incentives will cost yet more, but the savings are infinite!  Even one avoided injury is an infinite savings.  Queue the tears . . . .  What-a-deal! Ironically, last week the EPA bowed to political pressure and in an exercise of common sense, eased up on precautions against lead-in-paint in housing stock.  Hello?  Did you catch that one?  Twelve Senators signed a letter in April to protest this proposed rule as excessive and damaging to small business, and bingo, something good finally happened.  Olympia Snowe was so delighted that she put out a press release to celebrate it.  Please note that the EPA acknowledges that lead-in-paint in housing stock is the principal source of lead poisoning in the United States.  [It sure ain't toys.]  They have previously acknowledged in writing ( lucid writing, actually ) that their rules on lead need to be measured and that the economic impact of their rules must also be carefully assessed. The EPA does not attach an infinite value to injuries, even to children .  They aren’t idiots.  Draw your own conclusions. Hello, Senators, anyone home? The foundation of the “no safe level of lead” slogan has been laid by the American Academy of Pediatrics, a political organization masquerading as a professional organization.  This organization was aggressively and justifiably attacked by Anne Northup during the 100 ppm Commission meeting.  It is rare to see anyone attack these people, perhaps besides me (not a fan . . .), but do they ever deserve it.  Here is what Dr. Dana Best of the AAP told a House Subcommittee on April 7, 2011: ” Exposure to lead is amply documented to cause the loss of intellectual capacity. On average, children whose blood lead levels (BLLs) rise from 10 to 20 micrograms per deciliter (mcg/dL) lose two to three IQ points. More recent studies have shown an even greater impact on IQ of BLLs under 10 mcg/dL. Key studies reported a loss of 4 to 7 IQ points in children whose lead levels rose from 1 mcg/dL to 10 mcg/dL. These studies suggest that “low” levels of exposure – meaning BLLs less than 10 mcg/dL – cause proportionately greater harm than higher levels. . . . The medical and scientific literature are in substantial agreement that an increase of 1 mcg/dL in blood lead level is capable of causing the loss of approximately one IQ point in children whose blood lead level is under 10 mcg/dL.”  [Enphasis added] Dr. Best, well-known for her fear of children licking bicycles , has previously posited “millions” of victims of lead-in-substrate .  Despite taking such a dramatic stand, Dr. Best cannot seem to name even ONE victim or lead-in-substrate or provide a single case history demonstrating that such a victim has ever been located . . . anywhere.  Not even one.  Doesn’t matter, apparently.  When you’re right, you’re right. But is Dr. Best actually RIGHT?  Fascinatingly, when Dr. Best plugs the notion that driving lead concentrations below 10 mcg/dl will have some defined (definite) health benefits, she flies in the face of the official AAP Policy Statement on Lead Exposure in Children (recently restated on May 1, 2009).  The Policy Statement does NOT support her assertions – and she is on the committee that wrote/approved the statement.  You might say she got it wrong, or you might just say she’s a liar.  Is it really possible to be that incompetent?  Here’s what the Policy Statement says : ” Canfield et al recently extended the relationship between blood lead concentration and IQ to blood lead concentrations less than 10 g/dL. They observed a decrease in IQ of more than 7 points over the first 10 g/dL of l ifetime average blood lead concentration. . . . To confirm the adverse effects of lead on IQ at these concentrations, however, more children whose blood lead concentration has never been more than 10 mcg/dL should be studied. A reanalysis of the primary data from several of the prospective studies is underway to help resolve this issue. At the moment, however, these data have not yet been incorporated into policy, and the CDC16 and AAP24 both currently use 10 mcg/dL (Table 2) as the blood lead concentration of concern. “  [Emphasis added] The Canfield study is the study Dr. Best cites in her Congressional testimony above.  Canfield predates the restated Policy Statement (obviously, or else it wouldn’t be cited), and thus forms part of the basis of the recommendation for further study.  The AAP recommends further study to confirm its suspicions - and those studies aren’t done.  Dr. Best certainly didn’t cite them.  The AAP Policy Statement goes on to recommend: “RECOMMENDATIONS FOR GOVERNMENT:  Fund studies to confirm or refute the finding that blood lead concentrations of less than 10 mcg/dL are associated with lower IQ. The next important step in lead research is conducting of studies in which confounding by socioeconomic factors is not so strong. Funding of studies in this area needs to be given high priority, as was done in the early 1980s when the question of effects of blood lead concentrations less than 20 mcg/dL was raised.”  [Emphasis added] So the AAP acknowledges in its policy statement that the case is not exactly open-and-shut.  Dr. Best, a member of the AAP’s Committee on Environmental Health , continues to bash away on the hustings with her hyperbolic and conclusory message.  Perhaps she feels that no one will likely check her work or contest her blather, so why not? Senators?  Congressmen?  Does anyone care about the effects on business when it comes to the out-of-control CPSC?  There are now 25 days until the 100 ppm standard goes into effect retroactively .  Starting packing up, guys.  Will Congress act?  I have no idea – this is not, and never has been, a question of doing the right thing for you or me or for anyone, really.  The Dems have an agenda, a political agenda, and your problems are beneath their consideration.  I can’t say who will be the winners, but the losers are well-known by now. 

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CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

The Alliance for Children’s Product Safety, a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA), issued the following statement regarding the CPSC’s passage of the 100 ppm for lead content rule today by a vote of 3-2. “Today, just three days after President Obama issued an Executive Order instructing the CPSC and other independent agencies to examine all rules for ineffective and unnecessary burdens and instructed the agency that decisions should be made only after consideration of the costs and benefits of new regulations, the CPSC enacted yet another costly rule that will do nothing to improve product safety but will cause further job losses in the children’s product market. The CPSC has already acknowledged that businesses will not be able to meet the 100 ppm lead standard without cost and disruption, and that consistent compliance with the new standard will be nearly impossible due to material and inter-lab variability and regulatory uncertainty. Most importantly, overwhelming costs imposed by the new standard will disproportionately affect smaller companies. On the other side of the ledger, the CPSC admits the health benefits of the new standard will be ‘minimal’. President Obama’s Executive Order states ‘Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. . . . To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).’ The President’s order notes the duty of the CPSC to regulate for public health and safety ‘while promoting economic growth, innovation, competitiveness, and job creation.’ The new rule fails Mr. Obama’s test. It is disappointing that the majority of CPSC Commissioners ignored the explicit terms of the President’s order governing regulatory excess. The 100 ppm standard is a prime example of the economic self-destruction caused by the CPSIA: the imposition of costly and burdensome regulations that don’t improve product safety. It is now up to Congress to fix the numerous ‘unintended consequences’ of the CPSIA before more small businesses are forced to go out of businesses and more jobs are lost.” The Alliance for Children’s Product Safety, Chaired by Rick Woldenberg, is a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA). For additional information, please visit www.AmendTheCPSIA.com or contact Caitlin Andrews at 202-828-7637.

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CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

CPSIA – 100 ppm Vote – What They Knew and When They Knew it

What did they know and when did they know it?  The vote on 100 ppm is going on this AM, so it’s too late to do anything about the projected 3-2 vote implementing this pointless and self-destructive provision of the CPSIA.  From my perspective, having investing time and money in trying to stop this train wreck, it has been a long time since there was anything we could do about it.  It’s not our country. I have written about this provision endlessly in this space. I thought I would just put up a couple bits of info previously disclosed here for perspective on the vote. The 100 ppm lead limit vote is a vote of conscience.   The Commission knows what they are about to unleash.  I told them in no uncertain terms during my February 16th testimony : From the CPSC Staff analysis of 100 ppm : “[While] staff does not have data on potential lead exposure from products that have lead content less than 300 ppm, but more than 100 ppm, staff expects that the overall contribution of such products to lead exposure in children is minimal.” “Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). . . . Without the intentional use of lead in materials or the use of certain recycled materials, the lead content of most materials is substantially below the mandated limits.” Notably, NO consumer group has responded to my call or Congress’ call for the identities of previous victims of the “hazard” that the CPSC purports to regulate.  With no victims identified EVER ANYWHERE , the claims of benefits from this provision are spurious at best. What is the EPA’s opinion on lead in dirt ?   400 ppm in play yards and 1200 ppm elsewhere is just fine.  No word yet whether G-d, the manufacturer of dirt, has to provide comprehensive testing for compliance. What is the economic impact of this change?   The CPSC did not do a cost-benefit analysis as Obama’s Executive Order requires now, but only provided “Economic Information” (cost only, no benefit analysis): “[Bringing] products that do not currently comply with the 100 ppm limit into conformance is generally expected to result in increased manufacturing costs. . . . [Manufacturers] of children’s bicycles experienced a 20 to 25 percent increase in the costs of metallic components when the lead content limits were reduced from 600 ppm to 300 ppm. . . . Learning Resources, Inc., a manufacturer of educational materials and learning toys, said it expects a 10 to 20 percent increase in the cost of producing finished goods when the lead content limit is reduced to 100 ppm. . . . testing costs may rise . . . . Because there are limits to the reduction in profits that firms are willing and able to accept, some manufacturers are likely to reduce their selection of children’s products or exit the children’s market altogether. Some manufacturers may even go out of business. . . .” “The higher costs associated with metal components will probably result in some efforts to substitute lower cost materials. Plastics, for example, might be substituted for metal parts in some products. Some of these types of substitutions may affect the utility of the children’s products. . . . Additionally, and as noted in comments from the Handmade Toy Alliance and the Bicycle Product Suppliers Association, it is likely that the costs will have relatively greater consequences for smaller manufacturers and artisans, who have less bargaining power with components suppliers, fewer technical resources, smaller production runs to spread testing costs over, and smaller product lines.. . . ,There appear to be few readily available options for mitigating the costs associated with the 100 ppm content limit. . . .” Mr. Obama’s Executive Order requires the agency to make actual cost-benefit assessments of this change in law now.   I made the same call on February 16, 2011 during my testimony on 100 ppm: You can find numerous other clips from the 100 ppm hearing in posts in this space in late February or on YouTube.  You can also read my comment letter on 100 ppm.

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CPSIA – 100 ppm Vote – What They Knew and When They Knew it

CPSIA – Letter to CPSC re Executive Order on Regulatory Review

President Obama issued an  Executive Order yesterday instructing the CPSC to institute “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”   Notably, the order specifies “allowing interested members of the public to have a meaningful opportunity to participate in rulemaking”. In the White House blog announcing the Executive Order, Inez Tenenbaum is quoted as follows:   “Earlier this year, I directed agency staff to reinvigorate CPSC’s voluntary review process, which is intended to look at ways to maximize openness and public participation, and effectively review substantive regulations that may require revision, repeal, or strengthening . . . . I believe this approach is consistent with President Obama’s call for a sensible and streamlined regulatory system that is protective of public health and safety, and I look forward to working with the President and Congress, as appropriate, as our review process moves forward.” As you know, I have participated in CPSC public forums numerous times in the last three years, in addition to testifying before a House subcommittee twice on the CPSIA.  I have testified at the CPSC at least five times by my count, several times at the invitation/request of the agency.  I have done so at my expense.  In each case, I believe my testimony was disregarded.  My positions on the CPSIA have been publicly documented, principally in my blog which I know you read.  My positions have been consistent and backed up by data open to anyone’s review.   Now that the CPSC is subject to an Executive Order demanding real public input, I call on the agency to break with its past of disregarding inconvenient opinions or those that may subvert a political agenda, and allow the public to participate MEANINGFULLY in this critical process.  Those of us who have attempted to stop the CPSIA train wreck have been thoroughly marginalized by a process that uses us to create an impression of public dialogue without actually taking any meaningful feedback or adjusting any preexisting plans.  The President did not order the agency to provide a public forum for VENTING.  He has ordered the CPSC to afford the public a “meaningful opportunity to participate in rulemaking”.   To me, the Executive Order means that when we present reasoned arguments with actual data, the agency has NO OPTION other than to listen and take into account our views.  There is nothing in the Executive Order that indicates that consumer groups speak for the public or should be accorded extra weight in your deliberations, nor that manufacturers are somehow excluded from the group considered to be “the public”. It is time to recognize the legitimacy of the views of those of us who create much-needed jobs.    With that in mind, I call your attention to a blogpost I wrote on cost/benefit analysis of CPSC decisions and policies under the CPSIA.  Please see my post ” Do Accidents Happen? ” dated June 29th.  In this post, I explain that, as a matter of accepted economic theory and legal theory, the policies and decisions of the CPSC in the wake of the CPSIA have crossed the line into inefficiency and bad public policy.  This is PRECISELY the issue that the President has charged  the agency with investigating and resolving.  Speaking as a business owner in the field of children’s products, I can assure you that time is of the essence.  Every day counts at this point  as the cumulative impact of three years of CPSIA duress has taken a terrible economic toll with virtually no identifiable public health benefit. Writing a law with noble intentions does not ensure that it will be good law or one that benefits society.  In the case of the CPSIA, the issue has never been “What price safety?”  A failure to effectively enforce the law prior to the CPSIA never constituted a need for new safety rules anymore that a failure to enforce traffic laws means that we need lower speed limits.  New approaches to enforcement, perhaps, but new standards, no.  The question today is “What price survival”? Businesses and markets have been punished mercilessly in service of the CPSIA but to what end? President Obama’s order comes after years of public outrage over regulatory excesses and significantly, was issued shortly after a House Oversight hearing featuring two CPSC Commissioners examining the question of economy inefficiency in rulemaking.  I fully believe that the agency can never fix this mess without taking a strong stance on real CPSIA reform. The CPSIA took away the agency’s right to assess risk, not its ABILITY to assess risk.  This is a truly counterintuitive approach to safety, as safety is all about risk management.  There is no logic to this approach which sadly renders the expert opinions of the CPSCs legions of Ph.D.s meaningless at critical junctures for my market.  I am frustrated, to put it mildly, that ALL CPSC Commissioners do not regularly protest this subversion of process and responsibility.  This problem is at the core of the issue with the CPSIA and should be offensive to Democrats and Republicans alike.  The failure of any Commissioner to demand the right to exercise his/her honest judgment is akin to acknowledging that they do not trust themselves to act prudently and in the interest of the public.  Do the Commissioners really believe that taking away their authority is necessary to ensure sound decision-making?  That reasoning never worked with my teenagers.   Resolving the issues that the President has ordered the CPSC to examine will certainly require the exercise of judgment.  It is inescapable that the Commission must be prepared to deliver this unpleasant news to Congress for better or worse.   I look forward to a meaningful public process investigating these issues, and pledge my support and engagement in this process. I want to be helpful but ask in return that the agency turn over a new leaf and let rational arguments supported with data influence outcomes in CPSIA rulemakings and policies. Please do not hesitate to contact me with your comments and questions.  Thank you for considering my views on this important subject. Respectfully, Richard Woldenberg Chairman Learning Resources, Inc. Vernon Hills, Illinois

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CPSIA – Letter to CPSC re Executive Order on Regulatory Review

CPSIA – Futile Provision or Gimme for Big Biz?

In response to my blogpost on the “Functional Purpose” exception so desperately desired by the Dems (Waxman and his Waxmanis, plus the Dem CSPC Commissioners) as the “solution” to the inflexibility of the CPSIA restrictions on lead, I am informed that some people think the door is still cracked open for exclusions. I must disagree. Here is the language on the functional purpose exception from the last published version of ECADA :  “(1) FUNCTIONAL PURPOSE EXCEPTION.—(A) IN GENERAL.—The Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the prohibition in subsection (a) for a specific product, class of product, material, or component part if the Commission, after notice and comment in accordance with subparagraph (B), determines that—(i) the product, class of product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, class of product , material, or component part , as the case may be, in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible; (ii) the product, class of product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse of such product, class of product, material, or component part by a child; and (iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into account normal and reasonably foreseeable use and abuse.”  I have added color to the key words in this section.  In blue , I have highlighted that the exemption will ONLY apply to those products or materials which “require” the inclusion of lead.  In yellow , I have highlighted the two parts of the exception, namely cases where the inclusion of lead is not practicable or not technologically feasible.  Who will benefit from this provision, and how will they benefit? First, to take advantage of this provision, you must demonstrate that your product “requires the inclusion of lead”.  When might lead be required?  According to the CPSC Staff in their recently released report on the ”technological feasibility” of 100 ppm lead , no products or components under 600 ppm concentration requires lead:  “Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). Therefore, staff does not believe that children’s product manufacturers intentionally design or make products or components with the maximum allowable lead content because lead concentration near the maximum limit would have no benefit or purpose to the product or the manufacturer.”  No benefit whatsoever of trace lead content.  Who would have guessed that?! Thus, this provision only applies to items, components or materials well over 600 ppm lead.  For those of you on the sidelines hoping that this will save your trace levels of lead in components, like metals in bicycle components, sorry!  It’s not for you. I believe this provision is only intended for a very limited list of components – namely, brass, metal alloys or possibly rhinestones.  In reality, it’s just for metal alloys which actually require lead as a component, like engine components (or brass).  There will be almost no argument possible where there is a market substitute that the CPSC thinks is adequate. They get to run your business now, don’t forget. Rhinestones are so done. For those items, components or materials that make it through the “requires the inclusion of lead” filter, the provision then further limits coverage where avoiding the inclusion of lead is not “practicable” or technologically feasible.  The above-referenced report states the opinion of CPSC Staff that NOTHING requires the inclusion of lead as defined by the CPSIA:  “Based upon this analysis, the staff could not recommend that the Commission make a determination that it is not technologically feasible for a product or product category to meet the 100 ppm lead content limit for children’s products under section 101(d) of the CPSIA. No such determination has been made by the Commission. Therefore, all children’s products sold, offered for sale, manufactured for sale, distributed in commerce, or imported for sale in the United States must meet the 100 ppm lead content limit beginning August 14, 2011 as statutorily mandated by the CPSIA unless otherwise excluded . . . .” Some people believe the legal definition of “practicable” in certain legal rulings (case law) takes into account economics  and is intended to be a more pragmatic standard allowing applicants to plead that the law will ruin their businesses.  This theory depends on a richer, more nuanced meaning of the term than provided in online legal dictionaries (” when something can be done or performed ” or ” anytime something can be done or performed “). A more detailed explanation, closer to the wishes of those pinning their hopes on this provision, comes from JustAnswer.com :  ” Normally one would say, in a legal arena, that if it does not cause an undue hardship to one party or the other, then it is ‘practicable’. An example would be if during a child support hearing, one party wants the other party to pay for a brand new corvette for their 16 years old child to drive, that would be considered impracticable whereas if they asked for the other parent to provide safe transportation and it is agreed to get a used Ford Escort, that would be practicable. If during a hearing on a property easement the land owner wants $200,000 for a 40 foot easement, the easement holder to pour a new driveway for them both to use, and he can only use it on Fridays, that would be impracticable. Does that make sense? It is basically saying that if there is a reasonable way to provide whatever is being asked, or rather ‘whenever practicable’, that should be done .” Anyone hoping to win an exception under this provision must be prepared to explain that there is no reasonable way to accomplish their goal, that it is in that sense not “practicable”.  This definition does not permit exceptions simply because in their absence costs might rise.  The cost must be “unreasonable” but can be much greater than zero.  What might be deemed an “unreasonable” cost by this CPSC Commission? Well, I think some factors are quite relevant in evaluating whether such exceptions will EVER be granted.  First, the three Dem Commission has taken the position publicly that there is no safe level of lead .  This is wrong, as we know, because since every human takes lead into his/her body every minute of the day and night through lead in air, water, food and dirt (at a minimum), we cannot conclude that life degrades in the presence of lead alone.  The source, concentration and exposure to lead determines the nature of the risk (as they say, the dose makes the poison).  Unfortunately, these Dem non-scientists are beyond convincing.  Try telling them that money is more important than their unthinking appraisal of the “risks” confronting children with lead.  I can’t see it. As if that weren’t enough, the CPSC Staff has publicly stated that everything can be made lead-free based on the bizarre definition of “technological feasibility” under the CPSIA. That term of art does not have the expected meaning of its English words since economics were written out of the definition.  This Commission knows that everything can be made without lead, and given their caveman fear of lead, any applicant will have to explain why other available options are no good.  The concept of technological feasibility and not practicable are not really as divorced as they seem. CPSC Staff shed some light on practicability in their 100 ppm report: a.  ” . . . low-lead materials that can be used in the production of children’s products generally appear to be commercially available in the market place” b.  “In general, for cost increases affecting a broad base of industries, there will be a mixture of effects: both increases in the retail prices of children’s products and reductions in overall production levels.” c.  “Alternatively, some manufacturers may need to redesign or re-engineer their products. Valve stems for bicycles, for example, may need to be fitted with more secure caps, which will effectively render them inaccessible and potentially more difficult to use. In addition, products may be simplified to reduce the number of components for testing.” Overall, the implication of the economic analysis is that the bulk of economic damage (rising costs) has already occurred.  In addition, the CPSC seems to think there is more than one way to skin a cat – and that would be quite relevant in any proceeding under the Functional Purpose Exception provision  Which items would likely be eligible for consideration for relief?  It would likely only be items that are being sold subject to a stay (ATVs and bicycles) because everything else that’s on the market is already compliant.  And how many items are being openly sold today are NOT in compliance with the current lead standards?  Damn near zero.  As Mike Larson notes in the Star-Tribune (March 27, 2011):  “Unfortunately, this hasn’t helped because the many manufacturers and dealers have chosen not to sell the smallest youth model ATVs because of the risks of selling under the stay, and there’s now a limited availability of these products for consumers.  In fact, half of the major ATV manufacturers are no longer selling youth model off-highway vehicles.” My conclusion:  No one can apply for this exception and if they do, they are highly likely to be turned down. Just like the last three years.  It’s a big win for Waxman – he appears to be “listening” but instead is perpetrating a fraud on all the dupes in the children’s product industry.  He cares not about your petty problems (that he created).  It’s truly heartwarming . . . . One last thought:  Who really gets the short end of the stick here?  It’s you as usual, the little guy.  The CPSC Staff acknowledges that the 100 ppm standard is anti-small business:  “Despite the existence of complying materials and components in the marketplace, some manufacturers, especially very small ones, may not be able to readily purchase these materials and components due to the lack of available distribution channels. For example, the Handmade Toy Alliance stated that its members would be unable to consistently obtain materials complying with such a low lead limit because its members do not purchase raw materials, but instead purchase component parts from retail stores.” But, heck, who will take the time to actually read their 59-page report?  Believe me, Waxman ain’t losing sleep over the possibility that you will read it, much less actual members of Congress. And then there’s the practicality of the exception process – it’s like major litigation against the government. Think of the cost – you would need to hire experts, lawyers, consultants and would have to prepare dossiers on each and every material, component and product you want exempted.  You will bear the burden of proof, you will be judged ONLY on the “proof” you submit, and best of all, you will be judged by a panel controlled by Tenenbaum, Adler and Moore.  Who on Earth will waste their money and their time on this?  Perhaps Mattel, WalMart and a few Asian manufacturers of bicycles (China makes 58% of world bicycle production).  It’s not for you – you can’t afford it.  This is a meager gimme for big business, like “firewalled test labs”, something to ease the troubles of the mega companies affected by the CPSIA. As for the rest of us, let’s not forget the wisdom of Senator Dick Durbin’s office : “I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions).” [Correspondence dated April 16, 2009] I think the real false assumption is that the Democrats care about anything other than getting reelected.

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CPSIA – Futile Provision or Gimme for Big Biz?

CPSIA – Do Accidents Happen?

Accidents happen . It’s an old saying. Once upon a time acts of fate were no one’s fault and we each bore the risk individually. Today, things seem different – when bad things happen, the search begins for someone to blame. The media and politicians feed this trend in hysterical tones (they profit by doing so). Individual responsibility is passé. In the case of children’s products today, blame is often laid at the feet of the product or its manufacturer by the CPSC. In some cases, the fault is clear (the hazard is “substantial”); in other cases, it’s not nearly as clear. In this article, I am only interested in those more ambiguous cases where there is an element of fate or other factors outside the control of the manufacturer. Should we be satisfied with how the CPSC draws the line? CPSC as Allocator The CPSC’s assignment of responsibility for injuries (in the form of recalls) is an inherently “legal” process. Our laws allocate risk and responsibility in society in the form of rights. About 75 years ago, legal theorists developed a field of inquiry known as “ law and economics ” which held that legal systems incorporate economic principles which ensure efficient allocation of resources and promote economic activity. “Rights” are essentially factors of production in economic terms. Ronald Coase of the University of Chicago Law School won the Nobel Prize in Economics in 1991 for his seminal work on law and economics over the preceding 50+ years. Notably, Obama regulations “czar” Cass Sunstein is an ex-University of Chicago Law School law professor, as is President Obama himself.  Sunstein is closely associated with the study of law and economics . The issues confronting the CPSC over injuries to children are not emotional in nature at all. They are actually purely economic issues because the CPSC is a market regulator. It is an objective fact that injuries to children or other consumers are a cost we bear in exchange for the benefits of economic activity (availability of innovative manufactured products, the provision of jobs, etc.). Naturally, as a community we want to bear as few such costs as is efficient, again to promote growth, hence a societal interest in reducing injuries. The interest in reducing injuries is economic, however; we are not indifferent to cost and judge them in light of corresponding benefits. For instance, this explains why you do not wear a crash helmet on the way to work despite your awareness that fatal auto accidents happen every day. The costs outweigh the benefits. As a regulator, the agency brokers costs among a large group of parties. Consumer costs related to injury (including emotional loss and lost income, among other things) are weighed against manufacturer and market costs (recall costs, damage to brands, decreased growth, lost jobs, etc.). Whether the CPSC does the math properly or not, their decisions allocate resources by directing that one party incur costs to protect other parties from incurring costs. These decisions are purely economic even if stated in emotional terms. It is therefore clear that CPSC regulators have the capacity to promote economic growth or stifle it. Is the Goal “No Injuries” Ever? The CPSC has a legal responsibility to differentiate between a product hazard that causes accidents and accidents caused by the hand of fate. Congress limited the authority of the agency to regulate only those product hazards deemed “substantial” (a term of art under the CPSA and FHSA). As stated here many times previously, I believe the CPSC under current leadership regularly exceeds its legislative authority in this regard. The CPSC acts as though its role is to move society toward a Utopian ideal in which children are never injured or die prematurely. While I certainly don’t endorse injuries to children, the Utopian ideal of injury-free childhoods is illusory. In fact, an injury-free childhood could only be achieved at a very high cost. If the CPSC attaches an almost infinite value to preventing injuries, their allocation decisions will always constitute a transfer (a tax) and cause economic inefficiency (depress economic activity). This over-appraisal of the cost and consequence of childhood injury is illustrated by recent remarks of Chairman Inez Tenenbaum about a recall of one million pool drain covers. Ms. Tenenbaum appears to justify the recall on the possibility of injury despite media reports confirming that no deaths had occurred since 2009: “I want to make it clear that this recall announcement does not mean that one million drain covers will need to be replaced or repaired. The recalled covers were marked with the wrong flow rating . . . . Now for those public pools and spas that need their covers replaced or fixed, I have an obligation to advise that those facilities be closed at this time. They should reopen as soon as the work is completed that addresses the recall and brings the facility into compliance with the law. I know this is a very difficult message for many communities to hear so close to Memorial Day weekend, but we cannot risk a child becoming entrapped in a recalled drain cover .” [Emphasis added] This unstated policy attaching infinite value to childhood injury is much more than a strict liability standard because the CPSC only acts after an assessment of fault (rather than simply assigning responsibility). Isn’t the agency saying that the actions or inactions of manufacturers cause accidents? Recent Recalls Allocate Uncontrollable Costs to Manufacturers Consider some recent recalls for perspective: a. Big Lots recalls bunk beds recalled after a three-year-old child died when caught under a futon. b. Maclaren recalls one million strollers sold over 11 years because of more than a dozen fingertip amputations caused by a hinge. c. Mattel recalls more than 7,000,000 children’s trikes sold over 14 years because of genital injuries to ten young girls jumping on the trike. While it may be hard to look past these sometimes grisly childhood injuries, each of these cases calls into question whether the injuries were really the fault of the manufacturer. It’s not worth defending the product designs – let’s concede that in retrospect the products could have been better designed. Parental supervision appears to be an issue in each case. Manufacturers are typically unwilling to resist CPSC recalls by blaming consumers for injuries incurred using its products. That route is very risky and may in fact be more costly than going along with the CPSC’s dictates. As a result, the record in these cases is usually very one-sided – the CPSC has the first and last word on the subject, often on TV. Why would anyone stand up for these companies in public? There’s no incentive to do so; after all, the costs are paid by only one party, and that party isn’t talking. There is a fundamental error in routinely blaming manufacturers for accidents or fate. It is widely accepted that laws operate efficiently when they allocate responsibility for risk to the party in the best position to address the risk. Manufacturers can efficiently bear many such costs – but not all. For instance, product safety is best assigned to manufacturers rather than consumers. This is fairly obvious – manufacturers know their own products better than consumers do and are best able to take steps to keep products safe at the lowest possible cost (most efficient). This is the reason why the common law tort system assigns product liability costs to manufacturers. So who is in the best position to control costs associated with accidents or fate? Risks associated with acts of fate are difficult to control.  In fact, many foreseeable risks leading to childhood injuries are completely outside the control of manufacturers: 1. Fate 2. Failures of adult supervision 3. Product abuse or misuse 4. Mental deficiencies or mental illness (e.g., pica) 5. Risks well-known to the user (e.g., knives are sharp). I would advance that good adult supervision is the lowest cost way to prevent accidents with children’s products. There are significant limitations to what a manufacturer can achieve on behalf of consumers who don’t adequately supervise their children. Of course, drawing the line is a big issue here. But can’t an argument be made that adult supervision of the toddlers using the Mattel trike could have prevented foreseeable injuries from jumping on the trike? That a parent must carefully supervise the location of a child’s hands before closing a stroller? This is a simple point – manufacturers cannot control these factors from their offices or warehouses. The cost for a manufacturer to do so would be excessive. Some people might argue that assigning blame for matters of fate to manufacturers of consumer products is a neat way to efficiently spread cost among the community. Why not make the manufacturer pay the uncontrollable cost of fate relating to their products, and let them pass the costs along to consumers in the form of higher prices? Manufacturers can be converted into involuntary insurers by public policy, risk intermediaries for events of misfortune. The appeal is irresistible; after all, it doesn’t cost tax dollars to pay for these losses if we force responsibility on manufacturers. Of course, if you are a careful consumer, you might resent paying more to subsidize free-riding consumers who don’t take appropriate precautions.  But money aside, doesn’t it reflect a hardening of our society if if we ignore heart tugs when kids are injured? Is this heartless . . . or sensible? Is the CPSC doing the American public a favor by increasingly pushing responsibility for uncontrollable risks to manufacturers? The Important Role of Economic Efficiency in Laws Governing Children’s Products I believe bad things do sometimes happen to good people. What is the economic effect of assigning these costs to manufacturers by default? Unfortunately, this invariable result is not economically efficient and will have the effect of a tax on the children’s market. In other words, the economic incentive to participate in markets will shrivel as manufacturer returns on investment decline because of legal risks (costs) they cannot control. This is basic stuff, folks – the reduced economic incentive causes market participants to withdraw, just as high taxes cause people to stop taking risks (trading). Ronald Coase addressed this subject in two articles that led to his Nobel Prize. In a 1937 paper on the nature of the firm , Coase articulated what became known as the Coase Theorem which holds that if trade in an externality is possible (in this case, childhood injuries) and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. Translated into English and applied to the facts here, Coase theorized that it would not matter which party was responsible to pay the costs of an injury (victim or tortfeasor) if there was no cost to bargaining between the parties. This of course is not the case in the real world. Coase returned to the subject in a 1960 article entitled “ The Problem of Social Cost ” and explored the role of regulations in achieving economic efficiency when economic activity creates social costs. This eminently readable article is a foundation stone of modern legal theory. Considering the social costs of human activity (such as pollution or injuries from the use of children’s products), Coase concluded that efficient allocation of resources would be achieved regardless of allocation of rights relating to social costs (responsibility to pay those costs) provided that trading can be conducted without transaction costs. In other words, in an efficient market, economic factors (resources) will always be put to their highest and best use through allocation of resources and bargaining. Through bargaining in an efficient market, the party with the most productive use of economic factors will ultimately possess the resources, thus ensuring compensation for social costs regardless of who has been assigned legal rights. Coase cites numerous examples (including torts) in making this point. Coase notes the symmetry of these disputes in his analysis. When cattle overrun crops causing economic losses, there would be no damage without the cattle, and likewise no damage without the crops! Causation is not black-and-white to an economist interested in efficient outcomes. As he notes, a smoothly operating pricing system ensures that “the fall in the value of production due to the harmful effects would be a cost for both parties.” Nevertheless, Coase recognized that there ARE transaction costs in the real world (e.g., legal expenses, bargaining holdouts, etc.). These costs of altering and recombining rights allocated by the legal system can interfere with the ability to bargain and thus prevent the efficient allocation of resources in the market. He argued therefore that regulations are justified to the extent they allocate rights to the most efficient risk-bearer. Regulations can supersede market transactions by imposing the most efficient outcome. This is presumably the underpinning of President Obama’s call for more federal regulation. According to him, this will be good for us.  Coase might demur, noting that it all depends on the facts as we shall see below. Coase was realistic in his assessment of the inherent dangers of regulation: “But the governmental machine is not itself costless. It can, in fact, on occasion be extremely costly. Furthermore, there is no reason to suppose that the restrictive and zoning regulations, made by a fallible administration subject to political pressures and operating without any competitive check, will necessarily always be those which increase the efficiency with which the economic system operates. Furthermore, such general regulations which must apply to a wide variety of cases will be enforced in some cases in which they are clearly inappropriate. . . . It is my belief that economists, and policy-makers generally, have tended to over-estimate the advantages that come from government regulation.” Coase’s solution: perform a cost-benefit analysis to make sure that regulations increase economic output (the all-in costs must be less than the all-in benefits when reduced to dollars). We encounter situations regularly in which the party causing a legal nuisance does not bear the consequential costs. For instance, a home remodeler does not have to pay compensation to neighbors for noise and debris that may adversely affect them. He may feel a social obligation to give them freshly-baked cookies but is under no legal obligation to do so. This is one of many legalized nuisances. Why is this the legal rule? The allocation of rights takes into account that as a society, we want to encourage investment and capital improvements. The small cost of dealing with these inconveniences is considered a cost we all should bear in exchange for the benefits received from the economic activity. This rule does not apply to exceptional cases of nuisance where the costs outweigh the benefits. Not every instance of damage is remediable under our legal system for good reason. Coase cites a fascinating real world example of this rule carried to a surprising extreme: under traditional English law, railroads are protected from liability for fires caused by sparks from their engines. Coase devotes considerable ink to prove that this legal rule creates an efficient allocation of resources (a positive effect for society) notwithstanding that there are “winners” and “losers”. This result would be very difficult to achieve through bargaining. Clearly a railroad would have a very difficult time working out a deal with every landowner along its lines as a precondition to laying down track. Importantly, Coase points out that the opposite rule (where the railroad must pay for the fires its engines cause) does much more than just transfer liability. It also shifts incentives to everyone’s detriment. A farmer along the track now can gamble with the railroad’s money – he can get a market price from market buyers if he can harvest his crops or from the railroad if there is a fire. The farmer’s return is thus guaranteed, the incentive to take care is removed, and he will be rewarded for planting crops likely to be burned. This alternative rule’s transfer of costs to the railroad will simultaneously reduce tje potential reward for constructing tracks and likely result in fewer train lines, reducing the broadly-distributed economic benefits that come with the expansion of the rail system. In other words, shifting liability in this case makes everyone along the train line poorer. Coase notes that “nuisances” are not always against our interest: “[Pigou] is wrong when he describes these actions as ‘anti-social’. They may or may not be. It is necessary to weigh the harm against the good that will result. NOTHING COULD BE MORE ‘ANTI-SOCIAL’ THAN TO OPPOSE ANY ACTION WHICH CAUSES ANY HARM TO ANYONE.” [Emphasis added] CPSC, are you listening? Placing the cost for nuisances on the producers’ shoulders may be well-intentioned but it is not necessarily the right result because it does not provide any incentive to consumers to take steps to prevent injury. “A tax system which was confined to a tax on the producer for damage caused would tend to lead to unduly high costs being incurred for the prevention of damage.”  The CPSC’s tendency to blame products via recalls and bans is the equivalent of a tax in this case. The “unduly high costs” leads to a reduction or suspension of economic activity. We can observe this in the children’s market over the past three years – the agency and Congress have both received considerable testimony on this topic (and seemingly ignored it). Coase won the Nobel Prize for pointing out that regulators often neglect to look at the full economic picture and thus fail to achieve optimal social results. It goes without saying that the regulators may nevertheless achieve optimal newspaper headlines. Conclusion Why is it inefficient to invariably push costs to manufacturers for injuries associated with children’s products? As Prof. Coase notes, in a raucous marketplace, transaction costs can distort the allocation of resources. In this case, the prospect of liability and uncontrollable losses are a high transaction cost that affects the efficient allocation of resources by trade. Coase posits that a cost-benefit analysis must be performed to make sure that efficiency is achieved. The rule for such analyses is quite clear – the all-in cost of the regulation must be less than the all-in economic benefits achieved. The best way to understand the formula in this case is to look at all marginal children’s recalls as a class. Let’s agree that there actually are some “substantial” product hazards out there and exclude them from our analysis.  [Manufacturers are in the best position to evaluate and prevent "substantial" hazards on behalf of consumers.]  We must also assess all the money spent as a result of CPSC action as a group. It does not matter who spends the money – we want to tote up all the costs and lay them off against all the benefits. The benefits are easy to calculate – there is an economic value to a life and also to injuries. This type of analysis is not only common, it is a requirement of federal law (as a result of Coase’s work outlined above). The government has tables of these values . Likewise, the costs are pretty easy to tote up: out of pocket costs for the recall, replacement of inventory, damage to reputation and brand, legal and regulatory costs, lost jobs, reduced investment, etc. In the case of accidents or other uncontrollable factors leading to injury, the CPSC’s calculus is defective. It is quite telling that the regulators are not interested in my point that no victims have been identified. Lead-in-substrate victims – NONE. Phthalates victims – NONE. The ledger on the benefits side is undocumented, vague and untested, but the regulators’ indifference suggests that they place an almost infinite value on injury or even the possibility of injury. On the cost side, the regulator also seems to largely ignore the impact on markets. As noted by Coase, the regulators are not subject to competitive pressures so they can easily overlook these costs. The math does not add up, and as a result, their decisions inevitably will choke the market. The CPSC acts as though not subject to the laws of economics . The legislative fix for this misguided regulatory effort is clear – mandate economic analyses as a justification for any CPSC regulation. It is also necessary to restore (actually, to mandate the use of) risk assessment by the CPSC. Risk is all about cost allocation and cost management. By removing the ability to assess risk, Congress essentially removed the wiring necessary for the CPSC to make an intelligent assessment of the economics of their decisions. While the CPSIA was clearly written and passed into law in anger, enough time has passed to expect cooler heads to prevail. Congress, it’s time to act!

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CPSIA – Do Accidents Happen?

CPSIA – What’s the Difference?

The current debate over the need for mandatory CPSIA testing of children’s products derives from consumer advocate assertions that American consumers “want” this testing to be “assured” that products are not laden with lead.  This assertion has never been backed up with real data (other than ” push poll ” data) but strikes a nice chord with certain politicians seeking to have something nice to say on the stump. Has this very notion, that mandatory testing “assures” anxious consumers, ever been tested?  More to the point, how does mandating testing achieve anything – given that the core issue preceding the CPSIA was compliance with the rules.  In other words, prior to the CPSIA, a small number of companies making children’s products (some of them large multinationals like Mattel) did a poor job of following the rules. Some quite  notoriously ignored the rules , too.  Despite the fact that the agency had the legal power to enforce against these companies and despite the fact that these companies were not following the rules, Congress decided what we really needed were more rules.  Apparently, when companies don’t follow one set of rules, there is a big need for more rules. More rules certainly solved the problem. . . . And out of that effort grew the myth that mandated testing was absolutely necessary to keep America safe.  Of course, mandated testing for real hazards isn’t controversial.  For instance, you will not find one peep from me about testing for lead-in-paint since 2008.  That’s a real hazard, actually linked to real, actual victims.  However, the CPSIA invented a couple new standards concerning “hazards” not previously documented to have caused any actual injuries, and instituted mandated testing.  This was Congress’ solution to a perceived lack of compliance by the market. How does that work logically?  There were standards or rules previously, and they were notoriously ignored by a small number companies. That made everyone “mad” and gave people like Dick Durbin something to spout off about.  But the fact is, the rules were well-known and were nevertheless ignored.  We can certainly conclude from this experience that the existence of a rule is not assurance that the rule will actually be followed.  Compliance is independent from posted restrictions.  [Have you ever been cited for speeding?  'Nuf said.] The new rules mandated third party testing for every product.  Why?  Purportedly to make SURE that every product complied with the standards that Congress felt were being ignored.  Since we “cannot trust” companies to obey these standards, they must test.  Apaparently, we trust these companies to test even though they previously ignored the mandated standards.  And this apparently helps the CFA sleep better at night. But if a small number of companies were ignoring the old rules, what makes Congress think a small number of companies won’t ignore the NEW rules and simply lie about their testing or cut a few corners . . . until they get caught?  Good question?  I have no answer to it.  The Dems don’t like to talk about this.  In their perfect world, while the old standards were rules that might be ignored, the replacement rules (mandated testing) will CERTAINLY be universally followed.  No reason for this conclusion has ever been provided.  The lack of rationale has not deterred the Dems from clinging to this idea like grim death . . . . Not all of the new CPSIA rules work to protect consumers, but disclosure of the facts is not forthcoming if it might reflect badly on the agency or Congress.  For instance, you may recall that companies can petition to certify firewalled in-house labs to conduct testing on a “trust me” basis - this rule effectively only benefits big companies like Mattel.  Yet when Mattel recalled 11 million units of its toys last September , nothing was disclosed about the involvement of its firewalled labs in the recalls.   Were any of these items tested in0house and passed?  Let’s not forget that Mattel is largely responsible for the CPSIA because of its bad acts.  Was the firewalled lab rule a bummer for American consumers?  This is not a question welcomed by Dems. And if a small number of companies will skirt the NEW rules on madndated testing, what happens to the rest of us?  Well, our costs will certainly go through the roof and put us at a disadvantage to the scofflaws.  In other words, the more compliant you are, the worse you fare competitively.  Many of us would rather eat sand than knowingly break the law.  So our costs skyrocket, and the basic problem that Congress wanted to solve (presumably, making consumers safer, not making consumer advocates sleep easier in their naivete) is not advanced at all. Is this economically-efficient? Stupid question - to this politicos, it only matters what the CPSIA sounds like on the stump.  Is anyone safer?  Well, first tell me whether a markedly lower percentage of cheaters are present in the market. Let’s get one thing straight:  there is no way to know if you are complying with lead content standards without testing.  Whether testing is mandated or not, testing will need to take place to assess compliance with mandated levels of lead in children’s products.  Mandating compliance with the standard and mandating testing is the SAME THING – but the big difference is that in the former case, we can run our businesses and succeed or fail based on our ability to run those businesses well and competitively.  In the latter case, the government becomes our partner and nothing we do is beyond their scrutiny and “advice” (needed or not). After all, they have nothing better to do.  Catch criminals?  Please – watching over our shoulders is all they have time for. We can only hope that some Dems will wake up and do the right thing for our economy and job creation.  This three-year disaster is a metaphor for everything that’s wrong with our current government and political leadership.  I wish it were otherwise, but there is no sign that the Dems care what we have to say.  Until this storm breaks, we are doomed to slowly asphyxiate through mandated testing under the supervision of the government.

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CPSIA – What’s the Difference?

CPSIA – Battles Lines Drawn

As ECADA moves toward a mark-up, possibly next week, the action over the CPSIA is happening elsewhere on the Hill.  In yesterday’s The Hill newspaper, it was announced that the pending Appropriations Bill knocks out all funding for the noxious CPSIA database.  It is symptomatic of the partisan gridlock in Washington that a policy debate has to be dealt with by withholding funds.  The parties are simply unable to agree on anything.  To agree is to give up political advantage.  In gridlock, it is always possible to blame the other party and to paint them with whatever black brush is handy.  This is particularly attractive to a minority party like the Dems in the House – they want their majority back.  Thus, while the “defenses” for the absurdly over-reaching rules governing the database are almost laughable, the Dems posture as though any change threatens the American way of life. That said, it’s a good thing that the Appropriations Bill is doing the work that the House Energy and Commerce Committee hasn’t done or perhaps cannot do.  Brokering agreement with someone as unyielding and unreasonable as Henry Waxman is no small feat.  Rationality and reason, not to mention good policy, have no apparent effect on this ideologue.  He won’t concede that Rep. Mike Pompeo, and the other database haters, have legitimate concerns.  NO ONE is asking that the database die, just that it be a fair game for everyone.  It’s only because the Dems won’t give a millimeter that you get the Appropriations Bill.  If Energy and Commerce can’t change the database, or the CPSIA, I commend the Appropriations Committee for taking action to protect American businesses from government-sanctioned slander.  Somebody had to do it. There’s no telling where all this goes.  The Republican majority in the House may be able to shine a light on the issues of the CPSIA, but since the Dems control the Senate and White House, it seems as though the Dems are capable of blocking progress.  Three years of work have no persuaded one Dem of anything, by all appearances.  [Hence my disillusionment, frustration and outrage.]  There is little sign that the Dems will give an inch – and you know what that likely means.  You and I are (remain) screwed.  Stasis means the 100 ppm standard gets implemented in two months, possibly retroactively.  It means that you must continue to test internal components for phthalates and test and retest everything else endlessly without relief of any kind.  It means that the 12-year-old age limit for everything stays in place, rhinestones and brass remain illegal (but osmium, iridium and ruthenium are still a-okay!), books and bikes and ATVs remain under the thumb of the CPSC, and many, many businesses will further weaken.  NO child will be safer, and NO injury will be avoided.  The advocates can’t provide evidence that ANYONE was EVER injured so there is no rational reason to believe this massive disruption will save a life or even a paper cut. The battle lines are drawn.   Perhaps now you know why I was so disappointed when only one wiener resigned from Energy and Commerce today. I can think of a few more that ought to go . . . . VOTE FOR ECADA AND END THE CPSIA CHARADE!

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CPSIA – Battles Lines Drawn

CPSIA – I Think I Found Someone Who Lost a Few IQ Points . . . .

Morons on parade . . . . Never failing to disappoint, the Tribune (via its South Florida Sun-Sentinel) today published the latest left wing tripe about the CPSIA Amendment (ECADA).  In an article entitled ” Pandering politicians threaten to make hay of product safety “, Nicole Brochu unquestioningly falls in line with Henry Waxman and Rachel Weintraub on ECADA and trashes safety legislation she clearly does not understand. I am pretty sure Ms. Brochu is not a regular reader of this blog.  She has successfully remained ignorant of many indisputable facts about safety in children’s products, not to mention the detailed nature of the problems caused by CPSIA.  That certainly makes it easier to react emotionally to the “threat” posed by ANY effort to change the ill-conceived CPSIA.  And that she does . . . . Ms. Brochu starts by confirming her bias against business and ruling out any consideration of opposing viewpoints (possibly involving FACTS):   ” I don’t know about you, but when it comes to keeping the nation’s supply of kids’ toys and other consumer products safe, I’m going with the advice of doctors, scientists and watchdogs. I’m not sure we can rely on toymakers and motorcycle distributors to have the public’s collective back on this one . . . . [The] only thing [ECADA] proposes to enhance is special interests’ bottom lines — not the CPSC’s authority, or its protections of the consumers in its care.” Ah, special interests again!  She must have been talking to the estimable Jan Schakowsky.  As everyone knows, I am a “very cynical . . . special interest”.  You should see my lapel pin! Ms. Brochu regurgitates the platitudes and slogans of the shrill groups opposing any change to the law: ECADA and CPSIA are toy bills. CPSIA was passed by an overwhelming majority of both Houses of Congress and was signed by “pro-business Republican President George W. Bush”. As a result of the CPSIA, there has been a “noticeable improvement in the public’s wounded confidence” (presumably in children’s products and the federal government). “[A] bunch of pandering politicians [are trying] to muck it all up for us.  Since Republicans took over majority control of the U.S. House last year (and even before), they have set their sights on diminishing the safety act’s laudatory provisions in the name of lifting the burden off small-business owners.”  [ Ed. Note :  This is a variant of the argument that only Democrats and consumer groups care about kids, certainly not businesses or Republicans.] ECADA is “a hyperventilating overreach that would put the country’s health and safety at risk.  And that’s just what an impressive contingent of folks — including the American Academy of Pediatrics, American Medical Association, Consumers Union, Consumer Federation of America, Kids In Danger, Public Citizen, Union of Concerned Scientists, the U.S. Public Interest Research Group and the CPSC’s chairman and two of its commissioners — say this measure would do.”  ECADA “[waters] down the safety act’s firm hold on lead content in children’s products . . . .” The book industry and motorcycle  industry are “special interests” seeking a pass for their products. No matter the merits of their claims, the law’s protections cannot be weakened in any way.  [ Ed. Note :  This is the "zero sum" argument again - if manufacturers are made better off by ECADA, it follows "logically" that children MUST BE worse off.] In each case, I have already replied to these misstatements and mischaracterizations in this space.  Since I seem to repeat myself endlessly, I am going to spare you one more trip around the same block today.  You can find the answers in my recent postings on ECADA. The author finishes up with one of the biggest misconceptions promoted by the opponents of ECADA: ” The bill would do away with the requirement that manufacturers test their products before bringing them to market, putting the onus instead on the tax-funded CPSC to conduct extensive, costly analyses to determine if testing is necessary. Taxpaying consumers shouldn’t shoulder the burden, or the cost, of making sure the products they buy are safe. In any reasonable scenario, that responsibility should fall on the businesses — big or small — making money selling their wares to the American public.” This remark reflects a gross misunderstanding of how businesses operate and how the proposed change in law affects businesses regulated under the CPSIA.  ECADA does not eliminate the need to test children’s products for compliance with the strictures of the CPSIA.  The lead standards are still on the books, the rabid regulators are still breathing down our necks and THERE IS NO WAY TO KNOW IF YOU COMPLY WITHOUT PERFORMING PRODUCT TESTS.  What ECADA accomplishes, Ms. Brochu, is to stop the government from telling us how to run our businesses.  We know better how to comply with these rules than they do, and can save vast sums of money wasted on government-mandated testing overkill.  We will STILL HAVE TO TEST. There is no way around it.  And if we screw up, we pay.  This is not really a change, btw.  We have always been subject to American tort law and have always been on the hook for our failures. I wonder if the knuckleheads who believe that ECADA eviscerates the CPSIA understand that the government has no way to force businesses to test.  Mandated testing does not mean that every children’s product will be tested, any more than posted speed limits mean that you will never get a speeding ticket.  To survey compliance, the CPSC will always have to test products – and cops will always need radar guns.  Scurrilous businesses that don’t want to spend the money to comply will lie – and good businesses will spend themselves into bankruptcy paying for endlessly repetitive tests.  The mandated testing regime has little to do with these behaviors because this is the realm of compliance .  Rules do not eliminate bad behavior as common experience instructs.   The drafters of ECADA get this point, and have incorporated the modest concession that the standards are more important to safety than attempting to manage thousands of businesses.  Ms. Brochu would know this if she read my blog. I want to draw your attention AGAIN to the important point that Ms. Brochu’s safety neurotics have yet to answer my query – WHERE ARE THE VICTIMS OF LEAD-IN-SUBSTRATE?  If we are saving children from a dreaded threat NOW, presumably children were suffering grave consequences in the past.  Yet when asked to name these victims and provide case histories and other identifying and validating data, the advocates cannot name even ONE victim – from any country, at any time, using any children’s product by any manufacturer under any living conditions.  Zero known victims – but we must bear billions in costs to comply with a neurotics’ legislative and regulatory wet dream.  Notably, in May 2010 I published my own analysis of 11 years of CPSC recalls from 1999-2010 and found only three alleged injuries (all from lead-in-paint) and one death (from swallowing a lead bangle from a bracelet).  That’s it – and there are no known victims of lead-in-substrate in the CPSC’s publicly-available recall records in that time period to the best of my knowledge.  Or at any other time in the history of the world .  The absence of lead-in-substrate injuries is stark in comparison to prosaic risks we bear EVERY DAY.  Stair falls have killed almost as many people in Japan as fires despite the fact that many structures in Japan are made of wood (1976).  In Canada, injuries and fatalities on stairs are at least ten times greater than those from natural disasters (1985).  In the UK, it has been estimated that more than 100,000 stair injuries occur annually (1999).  Yet the federal government wants us to spend literally BILLIONS OF DOLLARS annually to protect against a health threat not associated with a SINGLE documented injury.  We are being governed by idiots. Maybe someday we can expect the media to think before it speaks.  Maybe someday the standards for journalism will include knowing what you’re talking about, investigating and challenging preconceived notions and a healthy skepticism for pat answers.  Until then, we have the Tribune and Ms. Brochu. VOTE FOR ECADA AND END THE CPSIA CHARADE!

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CPSIA – I Think I Found Someone Who Lost a Few IQ Points . . . .

CPSIA – Fools in Charge

So happy to be so safe . . . and so unemployed! Today’s initial jobless claims report is yet ANOTHER report card on the dense and unthinking approach to economics implemented by Mr. Obama, Mr. Waxman and their Dem minions since the 2008 election.  A full three years after the economic cataclysm, and with a diminishing ability to blame this misfortune on someone else, the Dems stubbornly stick to their over-regulation agenda dooming Americans to safe, safe unemployment.  Can’t be too careful, you know. The CPSIA is the poster child for the Nanny State.  Mr. Obama told David Letterman on September 21, 2009 that the national problem he had to fix was that we had ” too little government, too little regulation “. Our industry has become a classic example of the cure being worse than the disease.  The story has been told again and again.  For instance, the CPSC heard (and promptly ignored) at its February 16th hearing from a representative of the bicycle industry, all the small bicycle manufacturers have left the children’s market and the big makes of bikes have sharply cut their product lines.  They also informed the CPSC that if the 100 ppm lead standard comes into force, the rest of the bikes will disappear from the market.  Quite a stimulus plan – you can imagine all the jobs this useful plan has created.  Other consequences is a general reduction in choice and availability in child-size bikes, which not only punishes families but also retailers. Do any of the numskulls running our safety apparatus have evidence that any child has EVER been poisoned by lead-in-substrate from a bike?  No, they don’t – because there is no evidence that any child was ever injured by lead-in-substrate anywhere using any product at any time.  Did you realize that one of the big problems in making a bike comply with this moronic law is that bikes use recycled steel for the frames – and the law provides that paint does not constitute a “barrier” over the steel.  The lead content of recycled steel is hard or impossible to consistently control at the levels dictated by the law.  The industry representative submitted testimony and evidence to the CPSC (consistent with evidence I have also supplied) showing that tests on the SAME PART in ten places yields ten different lead contents.  This law is killing jobs, products, companies and markets.  The evidence and data is right there for any thinking individual to read and consider.  The true believers stand in the way of rationality. Please send Mr. Waxman and Mr. Obama a thank you note for the weak, sinking economy.  They have CHOSEN this path of Nanny Statism to keep you “safe” although they really can’t demonstrate you were ever unsafe or that you needed this further protection.  If you are one of the unlucky 9.1% who can’t find a job, perhaps you will take some comfort in knowing that your Dem-led government made this choice for you.  Safe but unemployed – that’s what you need, what you want, what you got.  The best government money can buy . . . . The solution to fools in charge is to amend the CPSIA and restore sanity in safety administration.  PASS ECADA AND END THE CPSIA CHARADE!

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CPSIA – Fools in Charge

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