CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

What happened on July 20th at the CPSC Commission hearing?  I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online.  Apparently Inez Tenenbaum made some blanket statements rejecting the President’s Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA.  Of course, how would I know what she said?  The video at the Sunshine State of the CPSC is not available to me.  Two days later . . . .  Hmmm.  Do you think they are waiting for me to forget about it??? While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things.  First, BNA in an article entitled “CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity” dated July 20 quoted Ms. T as follows:  “And in a July 20 public meeting on the agency’s priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. ‘ To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed. ‘  She said CPSC has committed to conducting a retrospective review of its regulations, per Obama’s Executive Order, and ‘we will begin our retrospective review and we will solicit comment.’”  [Emphasis added] Fiction, eh?  Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard : “Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors .”  [Emphasis added] Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a “regulation” but is instead a “statutory mandate”.  There is no such thing as a “mandate” in this context from a legal point of view.  See the definition of ” mandate “.  Essentially, what the regulators are referring to as a “mandate” is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.  [It's okay, let it out.  I just doubled over in laughter myself.] What DID Congress tell the CPSC to do about 100 ppm in the CPSIA?  The law instructs the CPSC as follows: Section 101(a)(2)(C):  “100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products .” Section 101(a)(2)(D):  “ALTERNATE REDUCTION OF LIMIT.— If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act.” Section 101(e):  “PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section .” [Emphasis added]  Section 101(e) refers to the process that just concluded as a “rulemaking proceeding”.  I don’t know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me.  This is not a direction to reach a particular conclusion – if it is a “mandate” at all, it is a “mandate” to go through a classic regulatory process.  Read the instructions yourself, it’s right there. President Obama’s Executive Order reads as follows (in relevant part): ” By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows :  Executive Order 13563 of January 18, 2011, ‘Improving Regulation and Regulatory Review,’ directed to executive agencies, was meant to produce a regulatory system that protects ‘public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.’ Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law , independent regulatory agencies should comply with these provisions as well .”  [Emphasis added] Ms. T interpreted the words “to the extent permitted by law” as “to remain true to their statutory mandates”.  Ms. T, a lawyer , is blatantly wrong, laughably so.  Unfortunately, it’s not funny. Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA.  Of course, you know I think that’s a bunch of bunk.  The President’s Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her.  I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.  Does the CPSIA mention “cost-benefit” anywhere?  I am glad you asked . . . .  The CPSIA uses the term “cost-benefit” only once (outside of the Table of Contents): “SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970.  Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.’” If Congress was so concerned that cost-benefit should never apply to these provisions, why didn’t they say it?  They weren’t silent on cost-benefit – Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970.  But as it relates to lead and phthalates, Congress was silent on cost-benefit.  Why might they have been silent?  Perhaps the authors of the law believed it was an illegal provision as applied to these rules.  Perhaps the Dems behind the law felt the CPSIA wouldn’t pass if such an obnoxious term were included in this critical part of the law.  Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn’t write themselves.  As this week’s WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore.  They can run rampant over our laws, our companies, our markets, our jobs, our lives.  They are the law, they are the judges, they are the jury.  They know what’s best for us, and no public hearings are going to change their minds.  Oops, make that no Presidential Executive Order will change their minds . . . .

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CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

CPSIA – Lies and the Lying Liars Who Tell Them

We live in interesting times.  There has been no action by Congress to deal with the CPSIA since its controversial passage in August 2008 despite consistent and loud hue and cry.  Right now, Dems are blocking progress.  Apparently, they think the biggest threat to America is ANY change to the CPSIA. Our markets, our jobs, our livelihoods will be a necessary sacrifice to . . . what?  Reelection. During this crisis of thousands of businesses catering to children, a Democrat on the House Committee on Energy and Commerce, the committee charged with managing the CPSIA mess, has been emailing photos of his you-know-what to women and girls all over America.  One of Anthony Weiner’s email correspondents was reportedly voted ” Most likely to be involved in a tabloid scandal ” by her high school class (she’s only 21, it wasn’t long ago).  I think you get the (sordid) picture.  Mr. Weiner has been of no use on the CPSIA, riding the high horse “protecting children” with his Dem brethren, at the VERY SAME TIME he was using the Internet for interactions that are, at a minimum, pretty creepy.  So Weiner is against letting even a notch out on the CPSIA belt around our necks, too unsafe . . . but he thinks it’s okay to creep around on the Internet, shooting pics of himself in the Congressional locker room and sending them out to his female Internet pals ( one of whom was a porn star ).  Hypocrisy?  How can that be, the Dems are cloaked in white, right??? Mr. Weiner remains perplexingly in office.  As Chairman of the Republican National Committee Reince Priebus noted on Meet the Press : ” What we called for is for Nancy Pelosi and the Democratic leaders in this country to do what every American knew had to be done immediately and call for his resignation. Now, it seemed to me that for the first 10 days in this circus that the only job [in America] that Nancy Pelosi was interested in saving was Anthony Weiner’s . We’ve got crushing unemployment in this country, we’ve got a president that’s, that’s whistling past the graveyard, we’ve got families that are struggling, and instead we’ve got leadership in a Democratic Party that are defending a guy that deserves no defense .”  [Emphasis added] And back at the ranch, the CPSIA Amendment (ECADA) is stalled.  Why?  Consider the May 25th words of Rep. Henry Waxman, Ranking Member on the Energy and Commerce Committee and principal roadblock to relief: ” But instead of refining a good law, the Republican bill goes after the law with a wrecking ball . The result is an assault on children’s safety.  The Republicans call their bill the ‘Enhancing CPSC Authority and Discretion Act.’ A better name is the ‘Unsafe Toy Act.’ “  [Emphasis added] That’s right – the Dem leader is calling the work of the Republican majority the “Unsafe Toy Act”.  Hmmm.  Please NOTE that the General Counsel of this committee (Gib Mullen) is the former General Counsel of the CPSC and its former Director of Compliance.  Is the implication that this former Kirkland & Ellis partner is a “hack”, lacking principle and integrity and is simply doing as he is told by Republican overlords who don’t care about children’s safety?  Please, if you believe that, I have a bridge to sell you. The label “Unsafe Toy Act” is an insult and a lie in so many ways.  First of all, it isn’t true.  As I have discussed extensively in this space, ECADA is a surgical revision to the CPSIA, designed to fine tune the law without restructuring it.  Reporters have called me to ask what the big deal is.  Good question but the answer is obvious.  No rational person subject to the laws of the United States or residing here would want to make toys, or any children’s product, “unsafe”.  If you insist that they would, Mr. Waxman, PROVE IT.  Oh yeah, you don’t do that, do you? Second, Mr. Waxman impugns the dignity and integrity of anyone who would dare support ECADA.  That includes me since for more than 20 years my career has been devoted to making educational products (with perhaps the best safety record in the entire children’s product industry).  Mr. Waxman’s label plainly announces to the general public that I favor poisoning kids to make more money.  That is rather offensive, to say the least.  Members of the House of Representatives are permitted to speak their minds, through and including libelous remarks, while on the House floor.  They literally can say ANYTHING with impunity – I can’t sue them for this slander.  As such, there is no recourse for this slander. This unfortunate label is at the heart of what the Dems are after – political advantage.  Those of you who periodically pepper me with defenses of good Democrats fail to recognize the consistent pattern of obstruction and failure to act reasonably among the small group (cabal) of Dems and associated consumer groups behind this roadblock.  The pattern of lies is all for political effect.  Can you imagine the reelection commercials?  Good for the Dems, bad for anyone who disagrees with them.   The threat even applies to Dems who might have a conscience and be willing to stand up to the demagogues – the consumer groups are ready to attack them, too.  Everyone knows it, no one wants to say it. Mr. Waxman trots out the usual lies and misstatements, relying on the trick of portraying this law as a “toy law”: ” The Unsafe Toy Act triples the amount of lead allowed in most children’s toys. For some children’s products, the bill would allow lead levels to increase 100 times or more.  The bill eviscerates the requirement that toys imported from China be independently tested for safety. . . . Just listen to what the experts are saying about this bill. The Consumer Federation of America says that the bill creates ‘huge loopholes.’ Consumers Union says it will ‘lower standards and roll back safeguards for children and infants.’  The American Academy of Pediatrics and 100 other experts in children’s health wrote to express their ‘deep concern’ over the bill because it ‘would have the effect of permitting more lead in toys.’  Chairman Inez Tenenbaum of the Consumer Product Safety Commission and a majority of the Commission wrote that the bill ‘would effectively revoke key protections … and fails to adequately protect the health and safety of American children.’ ” I have rebutted the consumer group ”arguments” numerous times in this space already. I am not going to repeat myself here.  Mr. Waxman’s reference to “triple” lead levels refers to a new limitation on the excessive and useless 100 ppm lead standard that, btw, has never been deemed technologically feasible by the CPSC.  The “change” to lead levels of 100 times or more than existing standards refers to the rule exempting metal alloys (like brass) complying with the stay authorized by the CPSC Commission.  OMG, you mean we can still use brass in children’s products like pens and trumpets?  The HORROR! Neither the consumer groups nor Mr. Waxman and his Dem brethren have answered my question – Where are the victims?   This question was asked several times in the April 7th hearing by members of the committee.  To date, no one has supplied even one case history. No one calls Mr. Waxman to account for his lies and innuendos, so he persists in trashing those who can’t defend themselves.  This is not unlike his unjustified attacks on Toyota that were later proven FALSE .  Mr. Waxman did something similar at the April 7th hearing first discussing the CPSIA Amendment.  In his opening statement , Mr. Waxman laid it on thick:  ” But your discussion draft, which is the subject of today’s hearing, takes a wrecking ball to the law and would endanger young children. . . . Your discussion draft is a very different document. Democrats, consumer groups, and health experts were not consulted. The result is a one-sided proposal that provides relief to industry, but sacrifices children’s health and safety. . . . I have learned over the last few months that there seems to be no limit to the ability of the new Republican majority to pass bad legislation in this Committee and on the House floor. I have no doubt that if you want to do so, you could do so again with your draft bill.  But there is no chance that a bill this extreme could ever become law. It would not survive in the Senate and if it did, it would be vetoed by the President . ” [Emphasis added] It’s always nice to end with a threat. The title of this post refers to a lampoon written by now Senator Al Franken (D-MN).  In this book , he contends that Republicans are liars.  Well, well, well, how times change, huh?  Mr. Franken???  Any comment? I didn’t think so.

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CPSIA – Lies and the Lying Liars Who Tell Them

CPSIA – A Malefactor Exits Stage Right

In the sad, pathetic CPSIA saga, several players have taken up their chips and moved on.  Some, like David Strickland, found other industries to prey upon and destroy (good job with Toyota!).  Others have just disappeared in the mist. I have not heralded the departure of Congressional staff who have played a role in ruining our businesses – they were just doing their jobs, if incompetently. But now one of the true movers and shakers behind the CPSIA has chosen to find other things to do.  And I am speaking of the notorious Cindy Pelligrini of the American Academy of Pediatrics.  Cindy’s last day to create havoc at the AAP is June 3rd; after that, she takes her act over to the March of Dimes.  [What is the lead content in dimes anyhow?]  Cindy deserves special mention, right up there with the Queen Bee herself Rachel Weintraub, as responsible for the mess we all find ourselves in. I have discussed Ms. Pelligrini in this space numerous in the past.  -  Here is Cindy Pelligrini ghosting federal testimony and intercepting questions for its purported author, the estimable Dr. Dana Best.  Dr. Best is a real live doctor.  Ms. Pelligrini told me she holds a degree in political science. .  . .  -  Here is Cindy Pelligrini arguing against risk assessment because it would be too BURDENSOME on the CPSC .  I practically weep over her compassion for the regulators!  She also is the one who promoted the notion of background “contamination” of lead at 40 ppm (as if the presence of a naturally-occurring element is contamination), lower than the lead content of the dirt in Mr. Obama’s garden.  [ Ibid .]  -  Here’s Cindy Pelligrini and the AAP misquoting or misstating the data from their own cited sources on lead poisoning .  I guess the truth is what you make of it.  -  Here is Cindy Pelligrini admitting that she is using the CPSIA strictures to achieve a different end that has nothing to do with lead poisoning , namely the tacit ban of youth model ATVs.   Is manipulation and distortion less offensive if you brazenly admit it? Wow, that’s a hard act to follow!  The pressure’s on Rachel now . . . . As a fitting tribute to Ms. Pelligrini, I offer up quotes from scholarly articles cited in a May 11, 2011 lead scare email she authored with an AAP associate. Most of the citations were not provided with links, perhaps to make this exercise more difficult.  Sorry, Cindy, I cracked the code!  Here are a few nuggets: a.    “Multivariable analysis indicated that residence in older housing, poverty, age, and being non-Hispanic black are still major risk factors for higher lead levels. . . . Risk of lead exposure by year housing built defined as follows . . . 1999–2004: low risk, built 1978 and later; medium risk, built between 1950 and 1977; high risk, built before 1950.”   Jones RL, Homa DM, Meyer PA, Brody DJ, Caldwell KL, Pirkle JL, Brown MJ. Trends in Blood Lead Levels and Blood Lead Testing Among US Children Aged 1 to 5 Years, 1988–2004 . Pediatrics, Mar 2009; 123: e376 – e385.  [Apparently, old homes come equipped with children's products with dangerously high lead content.  How could there be any other possible explanation for this data?!] b.    “CDC is conducting several activities to focus efforts on preventing lead exposures to children. First, beginning in 2003, CDC required state and local health departments receiving funding for lead poisoning prevention activities to develop and implement strategic childhood lead poisoning elimination plans. Second, CDC and its federal partners, the Department of Housing and Urban Development and the Environmental Protection Agency, launched new initiatives to control leadbased paint hazards in the highest risk housing, addressing where successive cases of lead poisoning have been identified. Third, CDC and other federal agencies are developing a systematic and coordinated response to identify and eliminate nonpaint sources of exposure (e.g., lead jewelry, food and traditional medicines, and cosmetics). . . . The most common high-dose sources of lead exposure for U. S. children are lead-based paint and lead-contaminated house dust and soil.” Advisory Committee on Childhood Lead Poisoning Prevention.  Preventing Lead Poisoning in Young Children.  A Statement by the Centers for Disease Control and Prevention .  August 2005.   [What, no reference to children's products?!  Does the CDC know what it's doing?  Come on, there's no safe level for lead . . . .] c.  See my blogpost of May 11 for an analysis of this article. Self-selecting factors may explain the data on lead poisoning, not the hazard itself.  Hmmm.   Chen A, Dietrich KN, Ware JH, Radcliffe J, Rogan WJ. IQ and blood lead from 2 to 7 years of age: are the effects in older children the residual of high blood lead concentrations in 2-year-olds? Environ Health Perspect. 2005;113(5):597-601. d.     “Lead can be found in high concentrations in three media to which children may be directly or indirectly exposed: paint, interior dust, and exterior soil or dust. This section discusses the distribution of lead in these media and their relationships to one another and to blood lead levels (BLLs) in children (Figure 2.1). Lead in tap water, generally a lower dose source of exposure, is also addressed.” Centers for Disease Control and Prevention. Managing Elevated Blood Lead Levels Among Young Children: Recommendations from the Advisory Committee on Childhood Lead Poisoning Prevention . Atlanta, GA: Centers for Disease Control and Prevention.; 2002.  [Again, the CDC screws up - no apparent awareness of the plague of contaminated children's products.  So dopey, good thing we have the AAP and CFA to ensure that the 100 ppm lead standard is imposed on lead-in-substrate in children's products.  It's a mere detail that no one has EVER produced a single victim of lead poisoning linked to lead-in-substrate in any jurisdiction at any time anywhere in the world.] e.  Article discussing the later consequences of lead poisoning. Does not discuss sources of lead poisoning. “Residual and unmeasured confounding are always of concern in observational studies where all possible covariates cannot be assessed and those available are not measured with equal precision. . . . The inclusion of neuropsychological variables examined in this sample such as measures of executive functioning, attention, and IQ may have amplified the predictive vigor of the models. . . . The possibility that early exposure to Pb may lead to a higher risk of antisocial behavior in later life through its effects on neuropsychological functions is interesting and will be the subject of future analyses of these data. Variables independently associated with measures of antisocial behavior included maternal intelligence and lower birth weight. The association with lower parental IQ was not unexpected and a few studies suggest that delinquency is related to medical complications at birth.”   Dietrich KN, Ris MD, Succop PA, Berger OG, Bornschein RL. Early exposure to lead and juvenile delinquency. Neurotoxicol Teratol. Nov-Dec 2001;23(6):511-518 [Emphasis added] [In other words, lead might explain the social dysfunction of some kids. Then again, so might many other uncontrollable variables well-beyond the ability of this study to analyze or even detect. Clear as mud . . . .] f. A classic “garbage in, garbage out” study, this article argues that a loss of an IQ point results in a corresponding loss of about 0.1 years of schooling. If, however, you note the conclusions or suspicions in the article referenced above in par. c above, you may conclude there may well be other factors at play, such as family income or poverty, age of housing, neighborhood setting, other family dynamics (such as educational background), and the basic intelligence of the kids affected by lead poisoning. Kids presenting as lead poisoned may be the least likely kids to be successful in school for other reasons separate from lead poisoning – in other words, lead poisoning might be a symptom of a larger problem, not the problem itself. The article does not sonsider this possibility. Salkever D. Updated Estimates of Earnings Benefits from Reduced Exposure of Children to Environmental Lead. Environmental Research , 70:1-6: 1995. I could go on and on – Ms. Pelligrini and her associate provide bundles of citations all making similar points. Ms. Pelligrini leaves behind a record replete with misleading conclusions and head fakes. In the process, she accomplished little for kids but managed to ruin many businesses, drive entrepreneurs into other markets, kill jobs and eliminate valued products that kids, families and schools needed and wanted. She had a willing accomplice in the Dems who employ populism to get reelected. Damn the science, we need to make kids safer . . . even if we have no idea what that means! As I noted earlier this year, Walter Lippmann, founding editor of The New Republic and winner of the Presidential Medal of Freedom1964, once cited the components of wartime mythmaking as “the casual fact, the creative imagination, the will to believe, and out of these three elements, a counterfeit of reality.” Counterfeit of reality, that’s our Cindy. Cindy, we’ll miss you! Not.

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CPSIA – A Malefactor Exits Stage Right

CPSIA – Committee Press Release About CPSIA Hearing

FOR IMMEDIATE RELEASE
February 18, 2011

CONTACT: Press Office
(202) 226-4972

Commerce, Manufacturing, and Trade Subcommittee Examines Unintended Consequences of 2008 Law on Jobs and Small Businesses

WASHINGTON, DC – The House Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade, chaired by Rep. Mary Bono Mack (R-CA), Thursday convened a hearing to examine the unintended consequences of the Consumer Product Safety Improvement Act of 2008 on American job creators including small businesses and thrift stores. It reviewed the impact of the recent legislation on Consumer Product Safety Commission (CPSC ) resources and its ability to protect consumers. In addition to several small business owners, CPSC Chairman Inez Tenenbaum and Commissioner Anne Northup were also among the witnesses.

“As a mother, I have very strong, passionate feelings about protecting all children,” said Bono Mack. “But as a former small business owner, I know all too well how unnecessary regulations – even well intentioned ones – can destroy lives, too. This is a rare opportunity to put aside the differences that often divide this great body and put our heads together to make a good law even better.”

Rick Woldenberg, the operator of Learning Resources, Inc., a small business making educational products and educational toys, testified on the many difficulties associated with the new, burdensome requirements.

“Children are our business and the safety of children is our number one priority,” said Woldenberg. “The CPSIA, unfortunately, purportedly to protect children from vaguely-defined dangers, has dramatically impacted our business model, reduced our ability to make a profit and create jobs, pared our incentive to invest in new products and new markets, and generally made it more difficult to grow our business. Given these considerable sacrifices, I wish I could say the law made our products safer, but the fact is that it hasn’t. Our company, Learning Resources, Inc., has recalled a grand total of 130 pieces in a single recall since our founding in June 1984 (these products were all recovered from the market). Our management of safety risks was highly effective long before the government intervened in our safety processes in 2008. The government’s ‘help’ has not raised our safety game but it has reduced our bottom line and cost some of our employees their jobs.”

CPSC Commissioner Northup testified on the exorbitant costs to small businesses, stating, “In March 2009, Commission staff reported that the economic costs associated with the CPSIA would be ‘in the billions of dollars range.’… Small businesses without the market clout to demand that suppliers provide compliant materials have been hit the hardest. Many report that the new compliance and testing costs have caused them to cut jobs, reduce product lines, leave the children’s market completely, or close… According to a brief small business analysis by our agency, the cost to test one toy could range from $3,712 to $7,348 – not taking into account that the toy will likely change to stay competitive for the next Christmas season, or sooner, and every material change triggers a whole new set of tests.”

Jolie Fay, owner of Skipping Hippos, which makes handmade children’s ponchos provided some emotional testimony, stating, “Our businesses were born from the desire for safe children’s products. We make them with care and attention, most often from materials purchased from our local craft stores. Our dreams were to build heritage products that will be cherished and remembered, and saved for generations… The CPSIA makes no provision for these businesses to be able to operate.”

Fay went on to elaborate on the challenges that confront many small businesses. “For example, at the Hollywood Senior Center in Portland, there is a small retail shop. The items in the shop are exclusively made by their members. Handmade trucks and planes are made by retired loggers in their 70’s and 80’s. They are on an incredibly small fixed income and would never be able to afford a single ASTM laboratory test. The workmanship that has developed over a lifetime helps contribute a small, but very substantial supplement to their monthly income. These projects keep them active and give them meaning to each day. These are artisans, but this law makes them criminals.”

Chairman Upton, who pledged to address the problem, stated, “We all care deeply about our children and their safety – nearly every one of us on this dais has a child or grandchild. No one wants to put little children at risk. But this law may be doing exactly that. By dictating so much of the Commission’s work, in too many cases we have shifted its attention to products that pose little or no risk and away from more significant issues. At the same time, we have deprived the Commission of the flexibility to develop common-sense solutions to the problems of implementation. The retroactive effect of the law has caused the Salvation Army, Goodwill Industries and thrift stores across the land to destroy used products, including even winter clothing that is sorely needed by millions of American children.”

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CPSIA – Committee Press Release About CPSIA Hearing

CPSIA – Dear President Obama

An Open Letter to President Obama:

Dear President Obama,

Tuesday’s election results were a message to your administration. The “shellacking” you experienced was a referendum on your economic policies as well as a passionate call for smaller government.

Readers of my blog have heard all about these issues for two years. It is frustrating to me that you and your administration remain in the dark. You weren’t listening.

My industry, children’s products, suffered mightily at the hands of your administration. Admittedly the problem began on Mr. Bush’s watch but it was your Democrats who refused to relent or admit their errors. Since passage of the Consumer Product Safety “Improvement” Act in 2008, your party has refused to consider our industry’s increasingly pathetic pleas for mercy. The result has been utter market chaos and dramatic financial loss. This regulatory “railroad job” has driven many of us into politics against you and your party out of desperation and profound anger over this undeserved and insensitive treatment.

If you take the midterm election results seriously, you must reexamine the impact of this law on our industry and promptly offer sensible relief.

The problems with the CPSIA can be divided into four categories – Cost, Complexity, Risk and Intrusion. Please give up the idea that these problems can be overcome with tax relief or some sort of economic incentive. If you break my leg, I won’t be able to get up and run like an Olympic champion no matter how many carrots you dangle in front of my nose. It’s time to be accountable for the damage that the CPSIA wrought – and then directly address it.

Cost: The many ridiculous new rules in the CPSIA dramatically raise the cost of operating our businesses. It goes far beyond the asphyxiating testing costs that the CPSIA imposes. Wasteful administrative costs are skyrocketing in every direction. For instance, tracking labels do not magically appear on our products – we must hire people to redesign each of our products and our manufacturing processes, and we must hire yet more people to make sure we don’t screw up these tasks. We sell or manufacture literally thousands of skus (items) – but have had only one tiny recall in the last 26 years. This is PURE UNADULTERATED WASTE. We nevertheless must incur these costs to keep the CPSC happy.

These well-documented costs come from somewhere. You may wonder why we’re not hiring. [In fact, I have previously disclosed in this space that our head count continues to decline, an uninterrupted trend since 2007 to this very day.] Well, we must fund these unproductive costs from productive activities – sales, marketing, product development – you know, activities that produce new revenue. [Please note: your proposed tax increases will be paid from the same kitty.] Unlike you, we can’t solve our money problems by printing more dollar bills – we have to EARN them. If you make us waste our money, we must shrink our business to pay these new costs. WE GIVE UP GROWTH TO PAY THESE WASTEFUL COSTS.

I find it exasperating to have to explain this to you.

Complexity: We now face perhaps 3,000 pages of new safety rules and laws applicable to our business. I have never included rules on childcare or infant items in this total. For those miserable companies who stubbornly persist in making this kind of item, their total is probably well in excess of 3,000 pages. Each word of those pages is a possible felony.

The pre-CPSIA total was about 100 pages of rules, most of which were inapplicable to our business. There was very little to remember – which made it easy for us to administer our business. We could teach the rules, we could remember the rules, we could follow the rules, we could set up sensible priorities oriented around safety (not merely compliance). This is no longer the case.

Face it, President Obama, NO ONE understands these new rules. I include the CPSC on that list. There are just too many rules, and they are riddled with inconsistencies, flaws and head scratchers. The rules are also a mess, existing in many forms, in many places, never correlated or conformed, and are certainly not indexed. The rules have no underlying logic, so it is not possible to anticipate how any rule should work or does work – you have to find the rule and study it, preferably with an expensive lawyer helping you. Even finding a particular rule is quite a treasure hunt.

We are pretty busy – this does not enhance our productivity.

I believe that unless one is a rabbinic scholar or some kind of savant, it is not possible to master 3,000 pages of dense and inconsistent rules. The CPSC has done little to make sense of these rules.

Consider the paradox of musical instruments – full-sized musical instruments are not considered “Children’s Products” even if marketed EXCLUSIVELY to children. Does that make ANY sense to you? Remember, these are SAFETY rules so if musical instruments are unsafe for some reason, wouldn’t logic suggest that we should not let children interact with them? And if they’re safe, then they shouldn’t be regulated at all. Right? Interestingly, the CPSC says that if you shrink the same instruments down for children, they WOULD BE considered “Children’s Products” and subject to the CPSIA, even if marketed side-by-side with slightly larger, full-sized instruments which are not regulated. This makes absolutely no sense, is completely indefensible as public policy and creates a terrible quandary for any business attempting to interpret and apply these rules.

The complexity and opacity of the rules outstrips EVERYBODY’S abilities. We are completely stymied – and it’s your fault. You and your team refused our advice on how to resolve these issues.

Risk: The CPSIA is a tort lawyers’ dream. With the coming public database, our industry will be a feeding trough for these vipers. To say the least, you have permitted the government to set up a system DESIGNED to be gamed by lawyers and litigants.

How do you think business people will react to this massive expansion of the tort system? Please note that NO ONE contends that there are more injuries to address – it is absolutely clear that the effect of the CPSIA is to create many more claims of action. More cost, more risk – and as a result, there WILL be less economic activity.

Good job, guys!

Add to this misery the current practice of this CPSC to press for recalls that do not meet the CPSA’s legal standards for recalls (substantial risk of injury or death) and to impose huge vindictive penalties. The agency is on the war path, trying with all its might to scare us to death. This is an especially powerful economic depressant for small businesses which typically lack the resources to resist these pressures. Small businesses are more conservative and tolerate risk less comfortably as they manage their own money and see themselves as having more to lose than mass market companies or public companies.

The aggression of the new CPSC is out of control. The current Chairman likes to BRAG about her big penalties. Trust has been utterly destroyed in the manufacturing community. In two short years, the CPSC squandered its reputation as a partner in safety, someone to be trusted. Who in their right mind would trust this CPSC? If you doubt me, ask McDonald’s how they feel about being pressured to recall 12 million acknowledged safe Shrek glasses (and the ensuing media frenzy over cadmium – all without ANY documented injuries from cadmium in children’s products EVER). Or ask Schylling Associates or Daiso how they feel about penalties imposed on them for rule violations without any injuries. By all appearances, those penalties reflected regulatory anger, not endangered public safety.

[While you're at it, ask the CSPC why they never completed their FOIA disclosure to me on the Schylling penalty.]

Seemingly, almost any violation of these rules can be twisted into a felony charge now. We joke in our office about visiting each other in jail – but it’s not really funny at all. I simply cannot fathom conducting my affairs in a way that risks being charged with a felony. As a lawyer, the criminal risk imposed by the CPSIA is completely unacceptable to me and highly offensive. I often say that felonies cannot be committed accidentally – except in the Children’s Product industry. The unavoidable accumulation of trivial infractions with heavy penalty risk gives the CPSC winning leverage in any negotiation. The game is FIXED. Everyone knows it, too.

This is no stimulus plan, by the way.

Intrusion: It’s this simple – we have a new partner who showed up two years ago – the U.S. government. They don’t know anything about our business and have never run any operation similar to ours but they now reserve the right to check all our work and to second-guess us. Mother May I? That’s the new game in our business.

Could we live without ANY of this? Yes, most definitely. While the zealots behind this self-destructive law like to emphasize the POSSIBILITY of injury from lead and love to repeat the simple-minded chestnut that there is “no safe level of lead”, they FAIL utterly to tie these claims of POSSIBLE injury to data of ACTUAL injury. There is no “nexus”. Lead may be “bad” but it has no history of causing injury in children’s products. Leaded gasoline, house paint and industrial pollution are the culprits that caused blood lead levels to rise materially – that’s undeniably true. Congress missed the boat entirely with the CPSIA – it’s all cost, no benefit.

Lead injuries from children’s products are virtually unknown. My study of CPSC recalls in 1999-2010 totals one death (from a piece of jewelry) and three unverified injuries from lead in 11 years. Given the truly massive size of our industry and the children’s marketplace, and the literally trillions of interactions with our industry’s products each year, this injury total is statistically equivalent to ZERO. Instead of punishing our industry, you should give us a good citizenship award. We have earned the trust of U.S. consumers.

The path forward is clear but frankly, I Still don’t think you get it. Trust has been broken. Until you and your administration DEMONSTRATE that you are taking a DIFFERENT path, we will continue to conduct a war against the CPSC and Congress. This defective law deserves a FULL repeal. It is misconceived and has cost countless jobs. I hope you and your associates will not continue to deny the obvious, to fly in the face of data and reason. The voters are on to this scam. They voted many Democrats out of work in midterm elections. If you and your team don’t wise up quickly, in the over-regulation of our industry and other industries, they’ll vote the rest of you out in two years.

The problem was never the law. Before Congress “improved” it, the CPSA was a powerful law that enabled the CPSC to closely supervise children’s markets. Let’s not forget that the recalls in 2007/8 were conducted under PRIOR law – the unamended CPSA had plenty of teeth. The recalls in 2007/8 were clearly a COMPLIANCE problem, not a problem with the rules themselves. For various reasons, some people weren’t following the law closely enough. As objectionable as that may be, it is also important to remember that the 2007/8 recalls were associated with virtually NO injuries. So what should we have done, in lieu of all the tough new standards and venal penalty provisions in the CPSIA?

The agency should have been reorganized to work on compliance more effectively. The agency needed to invest in education, outreach to industry and more effective partnership with industry. This idea that we in the business community can’t be trusted is revolting and completely untrue – it is a populist idea you and your allies flogged to get elected. If you want to keep your jobs for much longer, you need to drop this caustic idea. We are not bad people or incompetent people – we can be trusted and can be good partners (as our record proves). No, not everyone will be good or conscientious. Bad people and incompetent organizations cannot be legislated away (at a reasonable cost). Still, the data indicates that a lower cost approach of partnership and education will produce very good results.

Fixing this law will be a stimulus plan that creates JOBS. Please give us back control of our financial statements and we will find a good way to spend our own money to grow our businesses. We don’t need your help – we need you to GET OUT OF THE WAY.

Yours sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
Vernon Hills, Illinois

Read more here:
CPSIA – Dear President Obama

CPSIA – Election Day is FINALLY Here

810 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA.

ELECTION DAY IS TOMORROW.

[Here's the long version of this clip, with people screaming out the windows "I'm as Mad As Hell and I'm NOT going to TAKE THIS anymore!"]

Tuesday is the BIG DAY, guys. We have an opportunity to pay back the perpetrators of the CPSIA in the voting booth. Don’t miss this opportunity – it’s your right as a citizen, speak out and tell them where you stand. Ideally, make them PAY with their jobs for their refusal to listen.

I have thrown my efforts into two Congressional campaigns – Bob Dold running in Illinois’ 10th district against Dan Seals, and Joel Pollak running in Illinois’ 9th district against CPSIA perpetrator Jan Schakowsky. As you know from this space, I have given up on the process of “dialogue” – no one in the Democratic Party will listen anymore (if they ever did). The next phase is politics. If they won’t listen, we will throw them out.

Tomorrow is the day we measure what we have achieved.

It didn’t have to be this way. When Inez Tenenbaum came on board as Chairman of the CPSC, she promised to engage in dialogue and to listen to all stakeholders. As far as I can tell, that was a bald-faced lie. If it wasn’t a lie, it turned out to be completely untrue. Sham processes like two-day workshops and comment periods were thrown up as a smoke screen to cover up a scheme to impose draconian regulatory change whether we wanted it or not.

Listening isn’t this CPSC’s forte. Nor is data analysis. With the cram downs evidenced in the final rules on the definition of “Children’s Product” and the public database, it is perfectly clear that Ms. Tenenbaum has no interest in views that diverge from hers, whether based on fact or data or reasoning. She’s on a mission – and there’s hell to pay if you stand in the way. Just look at her penalty record.

The next big event at the CPSC is implementation of the final rules on component testing and testing frequency/reasonable testing programs. This is coming SOON – all to ensure that the stay on testing requirements can be lifted in February – you know, so we can all be so damned safe. [Do you have a sense, by the way, that we are UNSAFE today - despite the stay? Oh yeah, that's data and reasoning again. Pah!] When they cram down those rules, your goose is cooked.

You’ve been warned (many times).

So tomorrow is your big chance to tell the Democrats that you aren’t going to take this anymore. That goes double for the people principally responsible for the CPSIA, like Jan Schakowsky, Henry Waxman, Bobby Seals, Barbara Boxer and other Democratic “luminaries” up for reelection. Here is a list of the members of the House Committee on Energy and Commerce – I hope you will vote AGAINST any and ALL Democrats on this Committee. NONE of them did ANYTHING to help us despite our pathetic pleas for help literally for years. They have PROVEN they don’t care – and you need to throw them OUT.

People ask me – how can I be so certain that the Republicans will help us? Will they be better than the Democrats, really? Aside from the fact that some Republicans have gone to great lengths to try to help us, taking political risk along the way (something I will never forget), I can say this with CONFIDENCE – I know EXACTLY what to expect from the Democrats. If we don’t make a change, we’re goners. So the Republicans are my choice and my strong recommendation to you. When they are in power, we’ll see what they will do. I am confident, but as voters, we all must remember that the proof is in the pudding. In the meantime, we need to make some serious changes NOW.

After the Election winds down, I have a long “to do” list and will publish a number of essays on CPSIA subjects that deserve your attention. In addition, we must engage in dialogue on how to fix the mess Ms. Tenenbaum and Mr. Waxman have created. That’s to follow . . . but as for now, you must vote.

MAKE THE CPSIA PERPETRATORS PAY WITH THEIR JOBS.

Read more here:
CPSIA – Election Day is FINALLY Here

CPSIA – What Are We Trying Achieve?

787 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 23 days left until Election Day.

Sean Oberle published a lengthy contemplation of the issue raised in my last post on the relationship between compliance and safety as objectives for regulators and for industry. Mr. Oberle’s essay speaks for itself, so I will not attempt to summarize it. He concludes with the following message: “Therein lies the frustrating and frightening aspect of product safety. Those of you tasked with ensuring product safety – industry rep, consumerist, and regulator alike – are trying to quantify ambiguity amid a chaos of demands … all of them in flux … I don’t envy you.”

Sean, boy are you right!

I think it’s worth discussing a few issues on compliance versus safety since Mr. Oberle devoted so much ink (or electrons) to the topic.

1. The law defines what the CPSC can and cannot do. It’s a shame no one told them . . . .

First and foremost, the CPSC exists because of the CPSA and its activities are governed by the CPSA. Recall authority is governed by Section 15 which limits the agency’s recall authority to “substantial product hazards”, namely a product that “. . . creates a substantial risk of injury to the public”. [Section 12 gives the agency additional powers to seek a court order for "imminent hazards".] In other words, the CPSC does not have the legislative authority to tilt at windmills – it cannot demand recalls for anything unless it presents a “substantial risk of injury to the public”.

Consider recalling 12 million glasses that the CPSC acknowledges in writing are SAFE. Substantial risk of injury?

Consider recalling more than seven million trikes sold over 14 years that caused six children to cut themselves. Children who were under three years of age and should have been under the care of attentive adults. Substantial risk of injury?

Consider recalling more than 400,000 Sarge cars because the little yellow dot on the wheel hubcap violated the lead-in-paint ban, and those dots were produced from two cans of paint. Substantial risk of injury?

One must distinguish between legerdemain and reality, between policy and what the law intended. It is a little focused-upon responsibility of the agency to exercise this judgment. Is it even possible for everything that happens to be a “substantial” risk? We know of cases where a single broken toy without an injury provoked an official investigation at the agency. Fair? Is this an activity that the CPSA authorizes? It is . . . if you are running the agency and you say it is. Arguably, the recall of the 480,000 Mattel Wheelies on September 30 was just such a case. Consumers apparently reported two broken cars with wheels that fell off, and no injuries were reported or implied. Substantial risk of injury? I question that.

2. The notion that we need all this supervision flies in the face of injury statistics. But it sure makes the CPSC look irreplaceable, doesn’t it?

I have already published and discussed ad nauseum the historical injury statistics from lead based on CPSC recall notices – ONE DEATH and THREE UNVERIFIED INJURIES over 11 years (1999-2010). If we were facing such a dire public health crisis, why weren’t kids dropping like flies from lead poisoning over such a long time period of “lax regulation”? If the harm was so widespread and so devastating, why aren’t any of these actual victims known? Names, addresses, photos, case histories?

A friend replied to me recently reasoning that there is no safe level of lead. Okay, I concede that lead can be dangerous but it is absolutely true that lead in present throughout our environment and in the air, food and water that we consume every minute of every day. So since we take in lead from several sources all the time, we know we are building up lead and this leads to several questions. If lead is so harmful at all levels, why aren’t we ALL showing the effect of our cumulative build-up of lead? How can you demonstrate that children’s products contribute meaningfully to the asserted “problem”? How can you prove that “fixing” children’s products will meaningfully change lead blood levels? And if you could prove those things (which cannot be done), how can you measure the return on investment of our multi-billion dollar annual investment? Remember, we can only spend those dollars one time – so is flushing them down the toilet on test reports REALLY our best use of scarce and irreplaceable dollars? How would you measure that?

But the more that the CPSC enforces the law against “bad” corporations, the more they scam the public into thinking they needed the help all along. They talk about recall statistics but never put them in the context of injury statistics. The proponents never compare lead injury statistics to other injury statistics like swimming pools.

[Is a child injured by lead "worse" that a child killed in a pool? It better be - because we are spending billions to prophylactically eliminate the possibility of purported lead injuries while leaving swimming pools open to continue a continuing skein of killings of more than one child each day. That's okay according to our Democrat-run Congress. Tell that to the family of drowning victim - they can take comfort in knowing that their child didn't have lead poisoning thanks to the relentless and remorseless enforcement of the CPSIA . . . .]

So as the regulators abuse and confuse the definition of hazard, they create an atmosphere of dependence. Oh thank you Mother Government for saving me! What would I do without you?!

3. Mr. Oberle reminds us that “Lack of incidents may not mean a product is safe.” And just because you’re paranoid doesn’t mean they AREN’T out to get you.

Mr. Oberle does not take an offensive stance on this topic, btw. He is right, you can sometimes catch something dangerous before it creates harm. Presumably a quicker recognition of the hazard in Magnetix might have prevented injuries. Responsible companies need to always keep a lookout for insights that reveal latent hazards.

On the other hand, injury statistics are a useful tool. If, as is the case for lead, the assertion is that the hazard is widespread and present over a lengthy period of time, injury statistics become QUITE relevant. So, if lead was such a terrible problem in children’s products (putting lead-in-paint aside, long ago banned), injury statistics over many years would reveal a latent problem. Think of the breadth of the definition of “Children’s Products” and think of the years of recall data available for study. We are looking at TRILLIONS of interactions with children every year in the United States alone. Where are all the lead victims? We cannot say that we don’t know the scale of this problem. We have apparently been running an “experiment” on the U.S. public for decades in the period the zealots label as “lax regulations” or “lax enforcement”. If lead-in-substrate were so dangerous, wouldn’t you expect to see SOME evidence of it?

If we must imagine the scale of the danger, can we spend imaginary dollars to deal with it?

4. The compliance hawks want to frame this as a financial question – how much is your safety worth? I think that’s the wrong question – I think the question is “how long do you want to have a job?”

I have already reported that our compliance group is currently up to six people from a historical one or two, and of course, our products are no safer today than in the past. They were always safe and still are, but it costs us a lot more to operate. That’s not good for you or for me.

So how do we pay for all this new bureaucracy? We have not raised prices, that’s impossible these days. We are lucky to have customers and cannot spit in their faces with a price increase. Think of your business – it won’t fly.

We also need to hit profitability targets because we need to remain financable. We do not get money from “money fairies” – we have to deal with a bank, just like you. Our bank prefers to see that we make money. I know that doesn’t seem very civic-minded but I can’t fault them for their POV. In any event, I think it’s elementary that a business needs to make a profit to have the model sustain itself. Therefore, we cannot commit ourselves to ever-eroding profitability. When our costs rise, we cut elsewhere . . . just like you do.

Needless to say, we have skinnied up a lot since 2007. We have a much-reduced headcount and operate far more efficiently. This is how everyone behaved during the financial crisis and the jobs have not returned, in part because the economy remains sluggish. With our rising overhead relating to pointless regulations, what can we do? We must recover the money from activities that are focused on raising revenues. In effect, we are discontinuing activities that create growth to fund activities that are pure costs.

What’s the math behind this? Consider how we recover a dollar of bureaucratic cost from productive activities. If you are already operating efficiently and cannot wring out big productivity gains (as may be the case post-financial crisis cost reductions), then how do you pay for an additional dollar of overhead cost? When you eliminate a “productive” dollar of cost to pay for an unproductive dollar of cost (e.g., you trade a dollar of marketing promotion for a dollar of test costs), it’s not an even trade. No, because your dollar of productive cost creates gross margin whereas your overhead produces no profit whatsoever. Your productive dollar of cost produces gross profit which defrays your operating costs and produces marginal net profit on top of that. Wiping out the dollar of productive cost also wipes out the contribution to operating costs, so effectively, only the associated marginal net profit can defray the unproductive cost. Since profit percentages are generally low for most of us, the ratio of productive cost dollars needed to be sacrificed to cover unproductive costs is probably on the order of 2:1 or 3:1. Hire another QC person and fire the equivalent of two people elsewhere. In our case, we do it by attrition. We just shrink away.

As if this weren’t bad enough, it’s also a recipe for disaster or business death in a worst case. The continued erosion of productive spending to finance unproductive spending has a dramatic impact on growth. Revenue flattens out or stays in a downward trend. It’s no surprise – you are starving your company of investment dollars as you spend at constant levels. You have simply shifted your spending from productive uses favoring growth to unproductive uses that will not create growth. Presumably, those of you with children have discussed the merits of eating fruits and vegetables versus eating potato chips. It’s no different for a business and how it consumes dollars. We will never grow up to be big and strong if Mother Government restricts our financial diet this way.

Sean’s right. I don’t envy you . . . or me. This makes me very pessimistic about the future.

I hope you are mad as hell and won’t take it anymore. In 23 days, you will get to vote. DO IT!

Read more here:
CPSIA – What Are We Trying Achieve?

CPSIA – Something’s Cooking on "Children’s Product" Definition

763 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 47 days left until Election Day.

I have written in this space about the recent shocking release by the CPSC of the final rule on the interpretation of the term “Children’s Product” under the CPSIA. The agency’s official interpretation of this defined term will dictate the creeping scope of the awful CPSIA and likewise has the potential to trim its sails. Many people gave detailed comments on the agency’s troubling initial draft of the interpretative rule, including me. I bashed the rule for its many problematic flaws.

The release of the final rule was stunning because, as I have noted again and again, the agency basically ignored or dismissed ALL comments on its draft rule and more or less installed the draft law as “final”. I interpreted this move as signalling the end of the CPSC’s rulemaking phase under the CPSIA. I assert that this came about as a result of a directive “from the top” to stop dithering and finalize the rules NOW, damn the consequences.

Why stop writing rules now? The CPSIA rulemaking process has left the agency and its Dem leadership exhausted and impatient. The Dems do not want to spend any more time writing rules – it wants to start catching “crooks”. The remarkably small number of consumer injuries by products regulated under the CPSIA is no deterrent to these people – the Dems were given their jobs to catch bad guys, and catch (and perhaps manufacture) bad guys they will. As Ms. Tenenbaum has promised time and again, 2011 will be the year of enforcement. This promise implies a couple things: CPSIA rules need to be finalized quickly AND the testing stay must be lifted in February 2011. Oh yeah, the testing stay, almost forgot about that little guy . . . . Thus, time is running out on rulemaking and hence the agency’s need to ignore our comments – no matter that their rules are shamelessly fouled-up and defective.

Congress “wants” it this way, or at least Mr. Waxman and his staffers insist on it. The Dems on the Commission are there to play ball.

In case you doubt my “paranoid” theory, check out the CPSC website today. Anyone notice that something is missing? Where’s the CPSIA banner today? The law is now listed below in small type. The CPSIA is over, it’s so yesterday . . . .

And if you buy the foregoing, then the pending rulemakings on component testing and reasonable testing programs/testing frequency should have you fouling your pants. Those two “bad boys” have pushed me into politics. I am trying to stave off disaster – I believe the agency will turn those deadly draft rules into final rules simply to avoid extending the testing stay and further to avoid delivering a very unwelcome message to Mr. Waxman that his masterwork law is thoroughly defective. And if the Dems rush it, they can inflict all this damage before Republicans can save the day after retaking the House and Senate. Tea Partiers, please take note.

But wait . . . there’s something up at the CPSC. The rule on Children’s Product was originally scheduled for a rubber stamp vote on September 9th. Then it was rescheduled for September 15 and then pushed forward to September 22. What’s up with this?

Normally, the delay of a rubber stamp action means there is a big disagreement behind closed doors and Commissioners are duking it out in private shuttle diplomacy between staffers. [Sunshine Act rules prohibit a meeting of more than two Commissioners without holding a public meeting that you can witness - so disputes are resolved using intermediaries. Just like in the Middle East, working through third parties is a great way to work out disputes . . . .] In other words, somebody on the Commission may actually know how shameless it is to ignore legitimate and fair comments in a public rulemaking process, even if those darned comments are so inconvenient. And, ouch!, if they must remodel the rule, they might have to release it subject to another comment period. Another comment period could pose BIG problems for the testing stay, creating a real dilemma for our Dem friends. If they push out the stay AGAIN, that more or less seals it – they clearly need infinite years to implement the CPSIA, which confirms that it is a thoroughly defective law.

And there is also the looming possibility of a Commission quorum problem. What?! Well, Commissioner Thomas Moore’s term ends in late October and he can only serve until year end. Then things get very complicated. If he is not replaced promptly, OMG, it’s a deadlocked Commission again! Tenenbaum and Adler won’t be able to get their way anymore – AW SHUCKS! – they MIGHT actually have to listen to Nord and Northup at least until another Obama puppet is put in place. And if the Senate goes to the Republicans, it might be pretty hard to confirm the usual zealot. Hmmm.

See the reason for the urgency yet???

The whole situation makes me want to tear my hair out. I have a business to run – can you IMAGINE being held hostage by this kind of idiocy in your own government? Well, we ARE being held hostage by our own dysfunctional government.

Tea Partiers, and anyone with a reawakened sense of OUTRAGE, take note. Election day is November 2nd, in case you didn’t hear. . . .

Read more here:
CPSIA – Something’s Cooking on "Children’s Product" Definition

CPSIA – More Hypocritical Small Business "Help"

760 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 51 days left until Election Day.

Today we heard more blather from our Fearless Leader lecturing Congressional Republicans on an asserted lack of commitment to small business. He’s totally on the side of small business. or so he contends. Here’s his take of the status of the so-called “embargoed” small business bill that he wants to pass to solve all our economic problems:

“And you hear some of my friends on the Republican side complaining that, well, we’d get more business investment if we had more certainty. Well, here’s an example where we could give some certainty right away. Pass this bill. I will sign it into law the day after it’s passed or the day it is passed. And then right away I think a lot of small businesses around the country will feel more comfortable about hiring and making investments.”

The problem, according to Mr. Obama, is Republicans. Aha. And what about all the other things we know? I have documented in this space for two solid years the deafness of Congressional Democrats to our pleas. We have basically grovelled for scraps and been totally stuffed. Even the micro-businesses (as represented by the well-known HTA) have been spurned cruelly by the CPSC and by Congress. We are being asphyxiated and no Dem can be bothered to notice.

Of course, I think it’s RICH to be lectured by Obama over “certainty”. He says he has a quick fix to “certainty” – just pass his bill and magically everything’s okay again. Ummm, that may be just a tad over-simplified. In the children’s product industry right now, we have a ten-ton anvil dangling over our heads with the pending testing frequency and component testing rules at the CPSC, all with the potential (likelihood?) to squish small businesses. This Dem-run agency has begun to ignore public comments, as evidenced by its ridiculous dismissal of comments on the definition of “Children’s Product”. Taking comments is a pain in the neck, especially if the draft rules make no sense. You keep having to rewrite everything . . . . Is it any wonder why people are not investing in this market? Given that we must also deal with the pending cost deluge of the health care bill and unspecified tax hikes – for many people, the fetal position is the new work posture.

And what is happening right now, simultaneously with Mr. Obama’s lectures about how to make life better for small businesses? Well, Mr. O and his Dems are cynically opposing rescission of the penal 1099 provision in the Obamacare bill. Know about this small business killer yet? You will now have to file 1099 forms with the IRS for all merchandise your business buys (over $600 per year per supplier). The paper blizzard won’t just affect your suppliers, but also your customers (to whom you are a supplier). Try to estimate the number of forms flying back and forth every year courtesy of this new rule. How will you handle this new paper pushing exercise? We estimate that these forms will cost us $50-$100 to prepare and file (more than a P.O. because of demanding record keeping requirements and possible liability for errant filings) – for our thousands of suppliers and customers. Do the math – this will slaughter small business. Death by a thousand (paper) cuts.

The Republicans want to kill it. The Dems admit it was a mistake (they say they were “blindsided” – everything bad is “unintentional”, rather than poorly-conceived or simply incompetent). Nonetheless, the Dems don’t want to delete it. Why? Well, amending this provision “opens the door” to amending other parts of Obamacare. Whoa! Can’t do that . . . even if their stupid provision will kill your business. Too bad for you (and me), I guess. See this article from today’s Wall Street Journal.

I will hand it to the Dems – they have created their own cruel kind of certainty. I am absolutely certain they don’t care what I think or what happens to the jobs our company provides. That seems quite certain nowadays.

This can’t continue . . . . PLEASE help on Election Day.

Read more here:
CPSIA – More Hypocritical Small Business "Help"

CPSIA – Jobs, the CPSIA and me

I saw this video tonight and it really frustrated me.

Michelle Rena Jones, the unemployed person featured in the video is a victim of our economic downturn, and of Michigan’s long dependence on the auto industry. She seems intelligent and highly employable. . . yet she is the part of the long term unemployed. She’s not alone by a long shot.

We employ about 150 people in our educational toy business. We consider ourselves fortunate to be able to provide these jobs, given the terrible recession, awful State funding prospects, and most importantly, the overhang of the fatal CPSIA. When I thought about Ms. Jones, I asked myself why we aren’t hiring right now.

Frankly, our business reflects the punk economy you hear about on TV. Right now, we lack the confidence that we can safely add people, or even more importantly, that we will see the sales volume to support new people. This closes most doors to new jobs at our shop.

Then there’s our ole’ pal, the CPSIA. What impact does the CPSIA have on our hiring mentality? Hey, I’m the guy who figured out that this government intends to jam me with a requirement to spend $15 million per annum on testing – how do you think it makes me feel? I assume smaller companies, including the crafters comprising the HTA, realize that despite the various promises and wiped-away tears at the CPSC, the new rules offer scant relief to the small fry. The rules mean business death – and that ain’t a job program, kids. If we’re toast, so are other small businesses. Actually, if we’re toast, everyone’s toast.

Right now, I cannot abide investing in our business. Expansion is a joke since the federal government has totally abandoned us. Trust has been obliterated, shredded, stomped on. Congress is completely deaf and the CPSC doesn’t give a darn – which is why after two years of work and “dialogue”, they produced the drivel we were to comment on last week. [For a candid assessment of those rules, please see my comment to Anne Northup's blogpost of August 11.]

Do you think any rational business manager would hire anyone while fearing that costs far exceeding his annual profits are about to be imposed? Forget it – business people suffering under the crushing burden of the wave of Obama hyper-regulation are thinking of how to survive. Bucking the rules won’t work, either – don’t forget that the agency has the power to press felony charges against anyone who knowingly breaks this law. 2011 is Tenenbaum’s “year of enforcement”.

Can’t wait. . . .

Ms. Jones won’t be likely getting a job from a children’s product company anytime soon.

Apparently, some people still wonder why voters are angry and why the Dems are being blamed. If anyone seriously can’t figure that one out, they’re as deaf as the stone deaf members of Congress we will be voting out of office . . . soon.

Very soon.

Read more here:
CPSIA – Jobs, the CPSIA and me

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