CPSIA – Come On, Sean, Get Real!

Sean Oberle took issue with my analysis of the Summer Infant recall of baby monitors tonight in an essay in the Product Safety Letter. In my recent blogposts, I noted that sale of the Summer Infant baby monitors can’t be resold without their kit of the label, the new instructions and the clips. True fact. As a practical matter, this is essentially a ban of resale of this item because in the REAL WORLD, resale shops do not have the time to lavish on researching this kind of nonsense.

Does ANYONE think a resale shop is going to verify that a baby monitor has the right sticker on it? What planet are you from? They WILL, however, note that this item has been recalled. In the mist of time, the reason WHY it was recalled will be long forgotten. Again, who has the time to figure all this out? Maybe Sean Oberle and Scott Wolfson, but the rest of us won’t do it.

That the items can somehow be resold legally is simply a technicality. Ask any resale shop.

As for my “confusion” between the “reason” for the recall and the “remedy”, I believe I was not confused at all. For one thing, the supposed “remedy” is no remedy at all. A warning label about the cord is superfluous by any definition and absurdly ineffective to prevent further harm. The “reason” for the recall has nothing to do with a hazard related to this item. It may relate to a proactive step recommended by the company’s lawyers, given the likelihood that they have been sued over the two unfortunate accidents. I stand by my position that this hazard falls into the category of parental supervision, not a product “defect”. I may not be alone in this view, to judge by the hundreds of comments on this MSNBC article.

More fantastic is Mr. Oberle’s characterization of the recall and how “voluntary” it was. I have no person knowledge of this situation, so perhaps he is right. Then again . . . rumors of CPSC coercion on this kind of thing are rampant. Threats of penalties, preemptive press releases and possible litigation have been rumored in many cases. Ms. Tenenbaum is not above sabor rattling in speeches, either. Think of last year’s ICPHSO keynote speech, for example. We have received at least one threat from the CPSC which I have thusfar restrained myself from discussing in this space. It’s very real. “Voluntary” is in the eyes of the beholder.

I must also say that I don’t see the benefit that the CPSC brings to this party IF the recall was “voluntary”. If this was REALLY the company’s idea, why does the CPSC have to sign off on it? Why is the CPSC in a better position to figure out how to best resolve this informational issue? After all, Summer Infant had 1.7 million reasons to get this right (plus an unknown number of lawsuits). I don’t buy the idea promoted by Mr. Wolfson in the Chicago Tribune’s hyperbolic article on pool drains: “CPSC spokesman Scott Wolfson declined to comment on AquaStar’s actions. In general, though, he said: ‘A company is not allowed to take unilateral action that is intended to fix a safety problem with their product without reporting and coordinating that action with the CPSC.’” Scott, where does it say that, precisely?

Even more to the point, why is this a “recall” anyhow? The CPSC could have avoided the entire issue by labeling this event an “alert”. There would be no implications for resale shops had they chosen that path. Was it REALLY the company’s idea to RECALL these items? Were they offered an “alert” but refused? Oh, sure.

At some point, I hope the CPSC will take more responsibility for its actions, rather than justify whatever they choose to do. Mr. Wolfson may have an answer for everything but that doesn’t make the agency’s actions right, fair or appropriate. The many comments on the MSNBC article indicate that no one is being fooled. Recall upon recall upon recall is alienating the public, NOT making them feel safer.

Come on, Sean, get real. The CPSC can raise its game, and as a member of the Fourth Estate, you can push them in that direction. I am not the enemy here.

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CPSIA – Come On, Sean, Get Real!

CPSIA – Mania Update

Hey, did you ever wonder what it might take to satisfy a mass market retailer on safety in the post-CPSIA world? Here are the requirements of Costco – all 141 pages of fun. It’s a huge file – you may have wait a little while for it to fully download.

These documents took us six man-hours to read – to assess whether or not we understood the rules and whether we knew what to do to comply. The breathtaking out-of-pocket testing costs are scattered throughout the document – see pages 40, 41, 51, 58 and 131-134.

Needless to say, compliance with these rules is an exceptionally expensive undertaking. This kind of duplicative testing (you have to use their testing vendor and cannot supply other independent tests you have already performed and paid for) has never revealed anything that I would call a “safety” issue, but has revealed numerous meaningless niggling issues that cost a ton to resolve. No one is made safer by all this expense but we are sure made poorer. All that matters these days is whether we comply with all 141 pages, every line and every word.

Sometimes, I think the debate over the CPSIA mania is too abstract. It’s too theoretical and sides chosen by whether you “care” about safety or not. Few people bother themselves with the details. Even fewer people are willing to be accountable for what the law has unleashed.

Requirements like this 141-page document were rare before Congress took over safety administration. Now that the mania has been stoked, it is going to be hard to put the genie back in the bottle. People feel secure in a blizzard of new safety requirements. “Obviously” more requirements means more safety . . . .

Ahem, no. First of all, the more requirements, the more likely that focus shifts from safety to compliance. SAFETY AND COMPLIANCE ARE NOT THE SAME THING. Guys, here’s more bad news – tests are not always right and rarely provide meaningful information. Our supply chain is where we build in safety and by running our business properly, tests are rarely useful (we get a LOT of repetitive passing test reports). The blind faith placed in stacks of new rules and “independent” testing as a means to create “safety” is unrealistic. I remember talking to a Whirlpool engineer who assured me that EVERY recent recall of Whirlpool products had been tested under federal and state standards and passed with flying colors. Hmmm. The CPSIA safety system is devolving into a faith-based system.

Even worse and much more profound is the commerce that this kind of mania extinguishes. How many companies can manage these requirements? How many companies will pass on making a deal to avoid the risk and hassle of these purposeless requirements?

Regulators like to stick their heads in the sand. These after-market requirements are “not their responsibility”. Let the market decide, blah blah blah. Unfortunately, they can’t get off the hook so easily – they started the mania and feed it regularly with their big fines and ridiculous recalls. Sorry, we don’t live in a vacuum – yes, the actions of the regulators have an impact on the market.

To get a sense of it, read the 141 pages of Costco requirements. Welcome to my world!

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CPSIA – Mania Update

CPSIA – WARNING: Spine Alert!

761 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 50 days left until Election Day.

Imagine pushing back on a regulatory agency. Imagine protesting demands for a knee-jerk recall of an item without a demonstrated (as opposed to asserted) substantial product hazard. Imagine someone standing up to the CPSC. Imagine . . . .

Okay, it didn’t happen here. But Elfe Juvenile Products did zing the CPSC in its letter resisting a mimic recall of strollers by Health Canada. It even took them to task for a crib recall – wow! Without coming out and using pejorative terms, only implying them, Elfe accused Health Canada of “blindly” following the CPSC and conceding the authority of the U.S. agency. That can’t be a compliment . . . .

“’My review of the applicable Canadian legislation does not reveal any mandate given to Health Canada to blindly accept decisions made by an administrative agency in a foreign jurisdiction. To do so, would, of course, be an unacceptable submission to the sovereignty of another country,’ Ivan Bern, Elfe’s general counsel, wrote to Health Canada on Jan. 19.”

Ouch. The next day our highly reactive agency announced a recall of 1.5 million strollers for laceration hazards and fingertip amputations.

Have you ever scratched your head and asked why the stroller and crib folks aren’t pushing back? Well, confronting a federal agency that has already sic’ced the U.S. Attorney on some of its hapless victims (notably, Daiso) and rabid State Attorneys General like Illinois’ Lisa Madigan is to tempt a deluge of litigation all over the country, merited or not. And they are certainly not above manipulating the press for the kind of hysterical headlnes certain to kill your business. Look at baby slings. Bankruptcy is your likely fate if you try to defend yourself. Never litigate with someone who has a printing press, as they say.

Well, one of them finally spoke up. The day after the U.S. stroller recall, Health Canada posted a recall for the Elfe-distributed stroller for the same hazard. “‘In our opinion, there is no ‘trend’ to be discerned, unless it is that of 1,499,993 consumers acting responsibly, and possible seven instances where the goal of perfection in human behaviour was demonstrated to be unattainable,’ Elfe’s general counsel told Health Canada.” Not that it mattered what they thought – Health Canada proceeded with a recall immediately anyhow.

To add to the strangeness of this interaction, Elfe was also a distributor of Simplicity cribs at the time. Those cribs started crib mania at the CPSC and also created a craze over “responsible parties” after Simplicity was driven into bankruptcy. The CPSC busily talked down Simplicity cribs, labeling them “dangerous”. No statistical analysis of the use of these cribs was released to my knowledge, just an injury count over many years. [I raised three children with dropside cribs without incident. I was also raised in a dropside crib to my knowledge. Although some people think I was dropped on my head as a child, that's not the crib's fault.]

Consider what happened next in Canada: “Following these statements, Elfe, the former distributor of Simplicity products in Canada, provided different advice to Canadian parents, telling them to make sure the crib was assembled properly. And ‘if the drop-side is installed upside down or not securely attached,’ Elfe recommended parents reinstall the drop-side the proper way with new hardware, to be provided free of charge by the company. A few days later, Health Canada posted Elfe’s voluntary recall on its website, saying the department had assessed Elfe’s metal retrofit kit and determined that it did not adequately correct the hazard posed by the drop-side crib. The newly released private correspondence reveals Elfe didn’t think this course of action was needed, accusing Health Canada again ‘deferring to the CPSC’s unilateral actions’ in the face of negative press.” [Emphasis added]

Frankly, this is the closest the press has come to reporting the truth about the CPSC and the mania spawned by the CPSIA. The CPSC is feeding public perceptions of danger where the agency formerly took the view that consumers bore some responsibility to use their equipment properly and to maintain it in good condition. Nowadays, these issues are twisted into asserted “substantial product hazards” and are accompanied by a government-sponsored negative publicity campaign (think of all the Good Morning America appearances you have seen Tenenbaum make). The agency almost blatantly dares companies to push back – with Lisa Madigan, Jerry Brown and other State Attorney General thugs waiting to pounce. The toxic commercial environment in the U.S. is not enough to satiate them – they must cross borders to spread ill will and poisonous markets to other countries.

There is no way to argue with this kind of tyranny. Their assertions are considered “findings”. The political nature of such “findings” is rarely outed. Even when the company itself initiates a recall, the agency implicitly claims it as its own (like a skin on the wall) and announces it as one of its consumer “triumphs”. These recalls exist on the CPSC website as precedent undistinguished from other recalls – influencing the decision-making of other companies and eroding the confidence of consumers. With the CPSC imprimatur, recalls are taken as signs of further corporate bad behavior.

Hats off to Elfe for at least trying to push back. I wish they had more company. The only way to end this kind of regulatory tyranny is to expose it and to resist corporate slander at the hands of a rogue agency.

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CPSIA – WARNING: Spine Alert!

CPSIA – More "Kudos" for CPSC’s Resale Roundup Program

The Atlanta Journal-Constitution published a nice article on the noxious Resale Roundup entitled ” Garage Sales Could Land You In Jail “. Apparently, I am not the only one who sees something dark in this PR blitz-driven program designed to root out recalled items from resellers in stores and online. As pointed out by one of my commenters, the real issue for regulators in the resale of recalled items is not the onesies and twosies at resale stores or Craigslist.com – it is the inventory liquidators who might be pedalling large volumes of these items. Of course, if there are items of special concern, like a particular recalled crib, then the CPSC should invest in educating (not terrifying) the resale outlets to keep them off the market. The presumption that members of the business community cannot be trusted to work with a well-intentioned agency with realistic goals is a sad reflection of the current anti-business atmosphere that the Pelosi-Waxman-Obamites are fomenting. However, the Resale Roundup is exactly the kind of grandstanding likely to become a favorite trick of the “new” CPSC. After all, promoting their “vigorous” enforcement of the CPSIA to a rabid media and equally rabid Democratic majority leadership seems to be a major objective of the agency nowadays. The supposed “crisis of confidence” of the American public is the stuff of their press releases, not reality. It’s ironic, then, that the CPSC seems to be annoyed by my observation that rocks and fossils need to be tested for lead and sharp points under the new law. You’d think they would be proud of this as it is required as part of a vigorous enforcement of their nifty new law. Yes, if I sell rocks to schools or as part of an educational toy, these natural materials are subject to the same excessive safety rules as injection-molded toys or painted wooden trains. So we must pay a lot of money to test rocks for “safety”, and in fact, have actually had to redesign products when a test report came back with an idiotic “fail” for sharp points. [These test reports are doubly infuriating because natural materials vary piece to piece. Testing a sample is no indication of the compliance of rest of the units - you would have to test each one to know for sure that they all comply. But the law wants us to get the little piece of paper, so we buy the little piece of paper.] Find me some mica or fool’s gold without sharp points, please. Nah, let’s just learn as much as possible from smooth stones good for skipping. With all this in mind, I suggest that the CPSC take the opportunity to start a new program called Residential Rock Roundup. Why draw the safety “line” at rocks that are sold to schools or as educational toys? Frankly, most rocks are found not in boxes on store shelves but on the ground. I know that’s shocking, but it’s true! Surely those plentiful rocks present a much greater risk of childhood lead poisoning or sharp points than our boxed sets. As Rachel Weintraub of CFA has instructed us, it is “absurd” to suppose that we can be sure about anything without testing. And, of course, you can’t be too safe, either. I think the CPSC should send its newly-expanded cadre of field inspectors out into the neighborhoods to gather up and test every rock they can find. Some rocks may also fit into a choke tube and if suitable for children under three, would need to be impounded to keep kids safe from choking hazards. Only an expert like a CPSC field inspector would know which rocks present this kind of deadly risk. No doubt this kind of outreach will impress everyone and demonstrate the CPSC’s commitment to keep kids safe, so so safe. Now that I have learned that rocks and fossils may cause lead poisoning (the victims are presumably the same kids chowing down on rhinestones, tasty!) or might cause lacerations from their sharp points, I do not know how the CPSC can tolerate rocks littering the United States that have not been tested. Perhaps the CPSC should also “sequester” some national parks deemed too “rocky” and therefore a danger to children. I also hope the agency will call for all Americans to voluntarily send their rocks in for testing – just to be safe. If you can think of some other programs that the CPSC should start – to keep us all safe – feel free to leave a comment!

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CPSIA – More "Kudos" for CPSC’s Resale Roundup Program