Let’s review the situation – the CPSIA requires that the lead limit be lowered to 100 ppm if it is “technologically feasible” (Section 101(a)). This determination can be made product-by-product or even by product class. In other words, some of us might get a free pass because the CPSC decides it isn’t “technologically feasible” for them, but the rest of us might get screwed. Figure that the big guys with the money to put in comments prepared by highly-paid consultants have an advantage here. Big surprise . . . .

The definition of “technological feasibility” is found in Section 101(d) in the CPSIA.

“(d) TECHNOLOGICAL FEASIBILITY DEFINED.—For purposes of this section, a limit shall be deemed technologically feasible with regard to a product or product category if— (1) a product that complies with the limit is commercially available in the product category; (2) technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term; (3) industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or (4) alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.” [Emphasis added]

To help explain what “technological feasibility” means, I have coined this expression – “If Rolex can do it, you HAVE to do it.” Yes, that means that this term has been defined to focus solely on technological capability with an explicit and intentional omission of any economic considerations (how expensive it might be for you to lower your products to this level). A single example of a product produced within these extreme limits is apparently an insurmountable obstacle to an exemption under this provision. No matter that it is extremely expensive. The all-platinum ATV comes to mind.

The meaninglessness of this reduction from a health or safety standpoint is likewise legally irrelevant.

A quick scan of the Request for Comment shows that the CPSC intends to follow its earlier path of exempting materials that are ALWAYS under the 100 ppm limit. I have “criticized” the conclusions of the previous CPSC effort. Expect nothing less than the insights from the CPSC’s last try which authorizes the use of super-expensive materials and by-products of nuclear waste in children’s products. Anyone for an osmium-laced baby blanket?

You will also note that there is ZERO reference to economics in the Request for Comment. In other words, money factors are totally irrelevant. This might matter to you if you project that this requirement could lead to sudden and deadly losses in your business or otherwise hasten your departure from the children’s product market. Not that the Dems (who are driving this thing) or the CPSC give a darn about your little problems.

YOU NEED TO SEND IN COMMENTS ON THE 100 PPM LIMIT. Ideally, you will gather data and make a reasoned argument. PROTECT YOURSELF – this is an important request for comment. Comments are due on SEPTEMBER 27, 2010.

And one last note: despite your government’s current attitude, this remains YOUR country. Please consider how you feel about a law like this and its impact on your stakeholders (owners, employees, customers, suppliers, consumers, community). You don’t need to accept the fate Mr. Waxman and his merry band have in mind for you. There’s an Election Day coming. Don’t waste it.

Read more here:
CPSIA – CPSC Calls for Comments on 100 PPM Lead Limit

After I got done laughing at the contemptible stupidity of the national trend of obsessive rule following (I’m not done laughing, actually), this certainly brought to mind the awful CPSIA and its potential to inflict this kind of mindless regulatory “enforcement” . . . AGAINST YOU AND ME.

That subject is no joke, I am afraid. As I have been repeating endlessly, the current testing frequency rule that the CPSC recently published without a blush will force our company to spend $15 million a year on testing, including the destruction of 81,000 units of our products (54 units per test times 1500 products). That’s not over my lifetime but in the course of ONE YEAR. And our fearless CPSC leader seemingly can’t WAIT to enforce these rules against bad people like me. Chairman Tenenbaum has tirelessly promised to refocus her agency on enforcement in the coming year. She wants to shut somebody down to prove how tough she is.

If you think this lemonade example is something that would “never” happen at the hands of our responsible federal government, well, you and I disagree. Let’s consider the legal basis for lead-in-paint recalls. Heaven knows the CPSC has imposed many of those during Ms. Tenenbaum’s tenure. As you may remember from prior posts, the derivation of recall authority comes from the FHSA which restricts the authority to “imminent hazards”. Section 12(a) of the FHSA provides this definition: “As used in this section, and hereinafter in this Act, the term ‘imminently hazardous consumer product’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.”

Strangely, today’s CPSC policy on lead-in-paint is one of strict liability. This means that EITHER the agency has reached the legal conclusion that any amount of lead-in-paint constitutes an imminent and unreasonable risk of death, serious illness or severe personal injury, which is tacitly impossible, or the agency has decided to just IGNORE THE LAW. No one’s asking these questions publicly, but that’s the nub of it. This interpretation allows them to demand a recall for a dot of paint in the center of the pupil of the eye of a doll, something they have certainly done, and assert that they have protected you from something dangerous.

Nice but it’s not within their legal authority to make up fairy tales to sell to the press.

So the CPSC is already dinging other companies in the children’s product industry for inconsequential “offenses” that are arugably OUTSIDE its authority. The exercise of judgment, at least on lead-in-paint, is now against agency policy.

Who will be the next lemonade stand shut down? Don’t assume it will just employ seven-year-olds. The proprietor might look a lot like you . . . .

Read more here:
CPSIA – Did Anyone Think to Test the Lemonade for Lead???

I have also provided CPSC data on injuries and deaths from other hazards, such as cadmium (zero), pool drains (very low, but greater than lead), phthalates (zero) and pool and spa (extremely high, more in an average day than in a decade for lead, phthalates and cadmium put together). In fact, I documented the distribution of injuries and deaths among all recalled children’s products over an 11-year period. At one death and three unverified injuries, lead comes in last among all recall categories with more than eight recalls over 11 years (lead and lead-in-paint accounted for 248 of 899 total recalls in the surveyed period of time). Literally every significant hazard facing children in consumer products is worse and much more dangerous than lead according to the CPSC’s own data.

I have also shown that the data on recalls publicized by the CPSC tends to magnify the scale of lead recalls, making the recalls seem more threatening and the implied hazard more urgent than they really are. Among other things, the quantity of recalled products typically (if not always) includes inventory in the possession of the manufacturer. This inventory NEVER MADE IT TO THE MARKET. In addition, recall data also includes product still on the shelf at retailers. This inventory, which was sold by the manufacturer to the retailer, was never sold to consumers. Inventory in the possession of the manufacturer, its factories or its retailers has no conceivable potential to harm a child. The amount of product in the hands of consumers could be tiny. Please consider these facts when evaluating the claims of consumer groups on the “poor” effectiveness of recalls. The math gets all tangled up, doesn’t it?

Call me crazy, but this seems like some rather shocking data. The deaths and injuries from lead and phthalates are so small that they are trumped in a single day by pool and spa deaths and injuries. [The reported deaths and serious injuries from pools and spas since Memorial Day, at least 210, are AT LEAST FIFTY TIMES THE NUMBER OF DEATHS FROM LEAD IN THE LAST ELEVEN YEARS. In other words, it will take more than 500 years for lead to produce as many deaths and serious injuries as the last 53 days from pools and spas (if the lead death and injury rate doesn't taper off).]

And yet the CPSC seems to have no interest in this data, their OWN data. Why? Well, the best I can say is that they believe every life is precious and thus, economics cannot be considered when designing a response to the hazard. I did not invent this view of the consumer group-dominated Commission – I asked this very question of a person in a position to know, and got this answer. So there you go.

Does this hold water, that economics are irrelevant and should never be considered? First, on the relevance of economics, I think that’s a silly proposition. Of course economics matters. Please don’t feign shock or disgust. Let’s do an exercise: How much shall we spend to save a life? A child died from swallowing a lead charm on a single bracelet several years ago. This is the lone reported death from lead or lead-in-paint from a consumer product in at least 11 years and has been cited as a justification for the CPSIA maelstrom. In this space, I have adopted a proxy estimate of $5.6 billion in annual CPSIA compliance costs for the children’s product industry (based on a submission of the HTA to support their Congressional testimony).

So, is $5.6 billion the “right” amount to spend annually to prevent the next loss of life? Sure, you say, spend the $5.6 billion each year, every life is precious. Okay, does the cumulative spend of $61.9 billion over 11 years (to match the period in which the one death occurred) sound a bit extreme? Can you think of anything else that might be a better use of $61.9 billion? [Like a new national highway system? A new electrical grid? A few more cruise missiles? A few months of national health care?] I would note that $62 billion is double the provisional losses of BP from the Gulf oil spill. That’s a lot of coconuts, if you ask me.

Should we spend $61.9 billion on every cause of death? What about causes of death that are “worse”, meaning that loss of life is greater? Should we spend proportionately? If our resources are limited (I used to think that was relevant but lately, who knows?), how should we allocate our limited dollars? Is it okay to prioritize? Does lead make the cut if we try to allocate rationally?

It is worth noting that the value of a life or an injury is a heavily-litigated subject. It is a staple of tort litigation to estimate damages by assessing the economic value of a life or an injury. The U.S. government also engages in the same analysis. Certain agencies are forbidden by law to issue regulations that do not show an economic profit, that is, the cost of the regulation must be outweighed by its economic benefits. [Money spent or saved by the public versus the government is not relevant to this analysis - a dollar's a dollar no matter who spends it.]

The benefits of the regulation are calculated by assessing the economic value of lives and injuries. To regulate otherwise is economically irrational – which is where the CPSC seems to be. More to the point, economic irrationality is against the weight of U.S. jurisprudence, not to mention laws limiting the ability of the government to issue regulations. Hate to sound trendy, but it is Big Government completely out of control to contend that lives are “priceless” and to assert that the cost to avoid injury or death should not be limited by economic considerations. Please note that the EPA assesses the economic “value” of a life at $6.1 million. For even more perspective, the EPA says that one IQ point lost to lead is worth $8,346. CPSIA compliance costs are not less than $5.6 billion EACH YEAR. Do the math.

Okay, this is bordering on insulting your intelligence. Yet, astoundingly, the CPSC doesn’t get it. What about the behavior of the CPSC itself – do they ever consider economics? Again, at the risk of insulting your intelligence, of course they do. For one thing, they themselves have limited resources. They can’t do everything they want, and have to make choices. They have a BUDGET. They can’t hire everyone they want, can’t inspect everything, can’t process every claim immediately and so on. They also make practical judgments on some things. I reported recently the tarring the Commission received for making a practical judgment about how to implement the pool drain law. In that case, they chose to agree with the recommendations of industry, which is heresy in some circles . Certain members of Congress live in those circles . . . . No doubt the savaging of the Commission over that minor practical judgment will have the intended effect of eliminating whatever shreds of common sense or backbone extant at the CPSC and the Commission. Perhaps this is the end of their consideration of economics . . . .

Where does this leave us? Come on, guys, right where we were for the last two years! We continue to rail against this awful law, and the CPSC gets progressively more and more stone deaf. I feel increasingly like I am mumbling to myself, especially when they won’t respond to their own data or other data-driven rational arguments. Given that the Dems have made their name by being totally deaf to the legitimate concerns of industry, what choices are left to us? I am turning more of my energies to the 2010 Midterm elections. I hope you will also do what you can to change the dynamic in Washington. You’ve seen what these people have done in the last 18 months. Ready for more?

I’m not. And I am doing something about it.

Read more here:
CPSIA – Why Hasn’t Data Changed Opinions at the CPSC?

By contrast, lead accounted for one death and three unverified injuries over eleven years. So in one day, pools injure more kids than lead did in eleven years.

And how does the CPSC respond to these two threats? Well, for lead, they force industry to spend more than $5.6 billion per year in compliance costs (this doesn’t even count aggravation costs).

And pools? The agency runs some PSA commercials. Here’s a new one:

Love that sense of balance and proportionality. Of course, whacking innocent companies over lead gets good headlines and makes the regulators look valiant. No one wants the agency to crack down on pools. Perhaps it’s only cynics like me that think this lame approach reveals a lack of commitment to safety by both the agency and Congress. Perhaps our regulators think Public Service Announcements are PERFECT to reduce the scourge of pool deaths and injuries, but only asphyxiation of the children’s product industry will address the lead “threat”.

Particularly amusing, then, is the response of municipalities to the Pool Safety Initiative. Who remembers Chairman Inez Tenenbaum’s hearty self-congratulation on February 17, 2010 for conducting inspections of 1200 pools? Her words: “We’ve carried out my principle of firm but fair enforcement of product safety laws by inspecting 1200 public pools and spas for compliance with the Virginia Graeme Baker Pool and Spa Safety Act – the results gave us good reason to believe that the law is working”. She made a similar assertion in Congressional testimony in September 2009: “In addition, CPSC investigators have inspected over 1200 pools and spas in 38 states as part of a recently launched enforcement initiative. The good news is that CPSC’s public outreach and education efforts seem to be having a positive impact in this area. Recent inspections show that most public pools and spas have installed or have plans to install the new, compliant drains covers and safety equipment in the near future. Let me state again, contrary to some reports, there are many more public pools and spas that have been made safer because of this important law.”

Problem solved? According to the Fresno Bee, it’s hardly a closed book: “About half of the 1,300 public pools and hot tubs in Fresno County do not comply with new state safety standards designed to prevent swimmers from being caught by suction on drains, county officials say.” [This is the Virginia Graeme Baker law.] What explains the hold-up? The repairs are costly and then there’s the sense of urgency: “Mary Jo Quintero, water safety program coordinator for Children’s Hospital Central California, said she is not aware of any entrapment injuries occurring in the Merced-to-Bakersfield region during her 30-year tenure at the hospital.”

Perhaps you have heard of the financial problems in California and in municipalities in general. Think of the impact of this law when money is in short supply: “The city of Fresno retrofitted its four large pools more than a year ago, costing about $60,000, said city spokeswoman Heather Heinks. ‘We are totally compliant. It’s been county-inspected,’ she said.” So a few public pools have been fixed . . . and as for the rest of the public pools – no one is in much of a hurry. “Although many pools are not yet up to code, officials say they have no plans to immediately shut them down.”

So the local government is blowing this off. What about private owners? Are they just as bold, or are they afraid to defy government agencies armed with heavy penalties? “However, some apartment owners are closing pools on their own because they can’t afford the upgrades, said Bob Waterston, a former Fresno County supervisor who owns a pool company that specializes in the retrofits.”

The CPSC is running Public Service Announcements telling you to watch your kid in the pool (duh) in response to a childhood activity that is wildly popular and scandalously dangerous. The agency is also bragging about its enforcement of this high-profile law, asserting results that seem to be untrue. Hmmm. And as for the lead “problem” that produced one death and three unverified injuries in more than a decade, the CPSC has been actively developing rules that will lead to business death by compliance.

I just love our government!

Read more here:
CPSIA – CPSC Jumps Into Action to Solve Pool Deaths

Excessive lead in kids’ products – that sounds AWFUL, doesn’t it? In the tradition of most modern commentators, I thought I’d write this blogpost without reading the recall notice. After all, I know what it says without reading it, right? Well, at THIS blog, we have standards, you know. My editor INSISTED that I read it.

So I read it, and here are the details. You better sit down . . . the horror of it all . . . there are five items involved: one cloth purse, two pairs of earrings and two necklaces. The total number of units, across all five items, is 190 pieces, or less than 40 per item. And how did dastardly Daiso endanger kids THIS time? “The surface paint on the zippers of the coin purses and the clasps on the jewelry contain high levels of lead.” Whoa! The retail price of these items is about $1.50 each, so the total value of this recall is $285. There were no injuries reported. The CPSC put out a press release so all of America could know how safe they were.

SCIENCE TIME: The presence of lead in the zipper paint and in the clasp does not itself cause any harm. Lead is a neurotoxin, true, but lead must enter your bloodstream to do harm. And if it does manage to get in there (through inhalation of dust or through ingestion of bio-available lead), blood lead levels must rise to a certain point before any harm can possibly occur. Since we all consume lead every day in our food, water and air, the human body clearly can process some lead without harm – it does not simply accumulate. The amount (mass) of lead in these items is probably close to nil. I assert that if you chose to have a meal comprised of only the zippers and clasps from the 190 recalled units (ALL of them), you could not raise your blood lead levels high enough to do damage. AND the impact of lead in blood varies by the age of child. As the child ages, the impact from lead dramatically diminished. This is why Congress chose not to protect my blog readers – they are all adults and out of harm’s way. Lead is principally a problem for the “under 3’s”. The Daiso items are not for children under three, so the odds of harm are excruciating low. And it is utterly inconceivable that one person would eat all of the zipper paint and clasps in this minuscule recall. So, is this a public health crisis? You decide!

Back to Blog Time: Now, let’s think of Daiso and its sorry tale. They have previously been the subject of five recalls of 19 items, totally 698 units, over two years. For this series of “transgressions”, they were whacked with an injunction by the U.S. Attorney against further importing of toys (Tenenbaum: “Now the fine was large, but that wasn’t the big news . . . . We worked closely with the Justice Department on this case, and Daiso has a very high hurdle to jump over to EVER get back in the import business again”). Daiso also was hit with a “get the message” penalty of $2.05 million. This is about $1,000 per unit in penalties for items with a retail value of between $1 and $4 each. That’s gotta get your attention.

So now that Daiso has stepped across the line again, what will the CPSC do? This kind of transgression can’t go unpunished, right? Don’t we live in a society based on retribution today? [We learned it from the Taliban.] Having hit Daiso with a $2.05 million penalty last time, the agency has to set this penalty higher since Daiso obviously is so incorrigible. If the last penalty was $1,000 per unit, maybe the agency should hit them with a penalty of $100,000 per unit to get them to take our laws seriously. Darnit, they CAN’T – that exceeds the maximum penalty of $15 million. Now what?

There’s always jail time. Somebody needs to pay, of course. How can the agency ignore an offense of this scale? 190 units is unforgivable. That’s almost $300 in value! That’s like one iPhone (with a two-year phone contract). We can’t let the people be endangered like that!

They were really good at torture in the Middle Ages – maybe something gory would get Daiso’s attention this time. Capture a manager and have him/her drawn-and-quartered in the public square? The agency could webcast it! There are so many options. The agency needs to do whatever is necessary to keep American kids safe, so I certainly hope they will use their entire arsenal. Waterboarding?

Personally, I am grateful to Congress for not giving the CPSC nukes.

Read more here:
CPSIA – What Will CPSC Hit Daiso With This Time – Nukes?

June 20, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 502
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)
Re: Docket No. CPSC–2010-0029 Interpretation of “Children’s Product”

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on the Interpretation of “Children’s Product” (Docket No. CPSC–2010–0029) published in the Federal Register on April 20, 2010 (the “Rule”).

In her statement supporting the proposed interpretive rule defining a “Children’s Product” dated March 31, 2010, CPSC Chairman Inez Tenenbaum noted that the issuance of the Rule is not required by the Consumer Product Safety Improvement Act (CPSIA) but was being issued by the CPSC in response to the demonstrated need of stakeholders. I am such a stakeholder. Our company is in the educational materials and educational toy business and is regulated by the CPSIA. Ms. Tenenbaum notes that the regulated community wants predictability and certainty in the rules that govern the marketplace. She notes that the Commission “listens to, hears, and greatly values the input of the regulated community and all stakeholders”.

Ms. Tenenbaum’s statement informs my comments on the Rule. I believe the Rule does not achieve the objectives set out in her statement and must therefore be amended significantly.

Having read other comment letters on the definition of “Children’s Product”, I feel that the legal and technical details of the proposed interpretative rule will be adequately addressed by other stakeholders without my further input. I believe that this interpretative rule extends the reach of the CPSIA to many new products not covered or intended to be covered by the law, and furthermore, changes the “Children’s Product” test from one defined by “primarily” to something more mathematical (as in a 51/49 test). However, I will rely on the other letters to make the case on these points.

In this letter, I will focus on the impact of the Rule on the marketplace. In particular, I will focus on whether the Rule is consistent with the mission of the agency, is fundamentally sound as policy, meets Ms. Tenenbaum’s objective of clarity, certainty and predictability. I conclude that the Rule needs sharp revision.

The Definition of “Children’s Product” is Inconsistent with the Mission of the Agency: I think it is important to think about the Rule in the context of the goals of the agency as set forth in its enabling legislation, the Consumer Product Safety Act (CPSA). Notably, Section 2(b) of the CPSA states:

“(b) The purposes of this Act are – (1) to protect the public against unreasonable risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries.”

The definition of “Children’s Product” has been incorporated into this legislative scheme designed to “protect the public against unreasonable risks of injury associated with consumer products”. Of course, “Children’s Products” is now a defined term in the CPSA and interpretation of that term, broadly or narrowly, will affect the scope of the law. Under the terms of the CPSIA, the definition of “Children’s Product” draws products into the coverage of the CPSIA, most notably in the regulation of lead-in-substrate and triggers the imposition of many other significant obligations (such as tracking labels). Nothing in the CPSIA overrides the purposes of the CPSC as set forth in the CPSA. Thus, the definition of “Children’s Product” must be evaluated in light of the agency’s mission to protect against unreasonable risk of injury.

How risky are children’s products for their lead content? The data in the CPSC’s historical recall database best describes the risk, in my opinion. These recalls reflect the evolving view of the agency on the threat posed by lead in its various manifestations in children’s products, and reflects the dangers posed by lead via the reported injuries. I analyzed the recalls posted on the CPSC website over the past 11 years and this data indicates that, over a period of approximately 11 years (from March 5, 1999 to April 15, 2010), the CPSC issued a total of 899 recalls of children’s products for all hazards (including lead and lead-in-paint). In this period, 247 recalls were associated with lead and resulted in one death, the well-known death of a four-year-old in Minnesota who swallowed a jewelry charm. [The data can be found at http://bit.ly/aOK4iS] These 247 recalls were also associated with three reported but unverified injuries from lead. Thus – over 11 years – the reported injuries from lead are four – one death and three unverified injuries.

Contrast this with the injuries associated with swimming pools and spas, a well-known source of childhood injuries. According to the CPSC’s press release dated May 24, pool and spa-related drowning deaths have averaged 385 per year for children under 15 (including 299 per year for children under five years of age) and serious injuries requiring emergency room treatments have averaged 4,200 per year. Consider this data in light of lead: lead produced one death and three unverified injuries in 11 years while pools and spas produced more than one death and 11.5 serious injuries PER DAY in recent years. Pools and spas produce more deaths and far more injuries on the average day than lead produced in the last 11 years IN TOTAL according to the CPSC’s own statistics.

The CPSC’s 2010 response to the daily deaths and maimings of children in pools and spas was a short public relations blitz. The CPSIA has imposed annual expenses in the billions of dollars on the children’s product industry to reduce deaths and injuries from lead.

If massive numbers of pool deaths and injuries merit only a public awareness campaign by the CPSC, the definition of “Children’s Products” should be downsized appropriately to reflect the relative nature of the “threat” posed by lead. The agency’s recall data on lead injuries has never been challenged by any advocate. Evidence that lead-in-substrate meets the “unreasonable risk of injury” standard set forth in Section 2(b) of the CPSA has never been disclosed. It is well-known that the CDC and the EPA link evidence of lead poisoning to only two environmental causes – leaded house paint (the primary cause) and the residual effects of pollution from leaded gasoline (generally found in dirt near inner city housing) and from industrial pollution.

The health impact of lead-in-substrate in ATVs, bikes, pens, clothing, apparel, even toys, is entirely absent from the literature as is any empirical evidence that these items could even theoretically cause lead poisoning. The advocates against lead cite studies that lead can be dangerous in small amounts and highlight the assertion that lead harms “silently”. In other words, advocates claim that because harm can befall children from lead undetected, it follows, ergo, that this kind of harm might also caused by children’s products containing trace amounts of lead. This notion is best summed up by the slogan “there is no safe level for lead”. Yet lead poisoning has never been positively identified from ANY children’s product beyond the one death and three unverified lead-in-paint injuries reported in the CPSC’s recall data over the past 11 years.

This absence of data of detectable lead-in-substrate poisoning means that the definition of “Children’s Product” in the Rule must be narrow. The mission of the agency under the CPSA does not permit it to divert resources for anything less than an “unreasonable risk of injury”. The Rule specifies a definition that is too broad for the documented minimal risk of injury from lead-in-substrate.

The Definition of “Children’s Product” Knowingly Permits Children to Remain in Danger: The Rule permits children to remain in “danger” of lead poisoning through its technical interpretation of the CPSIA. If lead-in-substrate is a public health issue suitable for the agency’s attention, this is unacceptable. The CPSC must adopt a clear rule that logically draws the line between regulated and unregulated commerce.

Let me explain:

The Rule attempts to distinguish items of “general use” and items that are primarily intended for children. The Rule notes that items of general use are not included in the definition of “Children’s Product”. An item of general use may in fact be used by children but because it is intended for a general audience, it is outside regulation by the CPSIA. This is an interpretation of the CPSIA under the Rule. The contrast in the treatment of items of general use and Children’s Products under the Rule is quite dramatic: obligations for safety testing, tracking labels, reporting, whistleblower risk, liability risk are all lifted for general use items. Children’s Products suffer the full brunt of the extensive new safety rules, presumably because of an asserted higher “risk” of injury to children.

An irony of the Rule is its acceptance of not regulating “items of general use” even if they are known to be widely or even universally used by children. The illogical and worrisome disparity in treatment of these items is best illustrated by pens. According to the Rule, pens are typically items of general use and are therefore (as a general rule) NOT regulated by the CPSIA. This result is quite helpful to the agency, as the pen industry has purportedly informed the CPSC that ball points must be made with brass, and brass has minimal lead content as a basic ingredient. No one argues that brass ball points have ever exposed anyone to injury from lead poisoning, not do “human factor” experts contend that contact with ball points are likely to present a risk of lead poisoning. Thus, the inclusion of pens in the broad reach of the CPSIA has been called an “unintended consequence”. So the “right” answer for all concerned is that pens shouldn’t be included in the CPSIA. The CPSC has consistently held that pens are outside the definition of “Children’s Products”.

Notably, it is well-known that close to 100% of school-age children routinely use ball point pens. Children carry pens in their backpacks and use them every day in school. Pens are a particularly ironic choice for this rulemaking example because pens are known to be routinely mouthed (chewed) by all ages of consumers including adults. However, use of pens by kids is deemed “unregulated” under the CPSIA and the Rule because pens have been held to be items of general use. Strangely, pens are in fact subject to regulation under the CPSIA if “decorated or embellished by adding certain features that may appeal to children, such as childish themes or play value”. The Rule holds that if the embellishments are “likely” to attract a child’s interaction with a pen, then it would be considered a “Children’s Product”. So the operation of the Rule is that a pen is subject to regulation if it has an embellishment but not subject o regulation if it omits the embellishment. The CPSC does not indicate that the embellishment itself is a public health or safety concern nor argues that the presence of the embellishment will raise the likelihood of use of a pen by children. The CPSC concedes that children are widely using pens now.

This flaw in the Rule will subject the CPSC and its rules to ridicule. There is no justification for the agency’s safety regulations applying only to some pens, not based on evidence of risk but because of a hyper-technical interpretation of the definition of “Children’s Product” under the CPSIA. The Rule simply makes no sense as public health policy. If the presence of lead in ball points is an actual health risk (which it is not), then there is no excuse to omit any pens from supervisory regulation. If the presence of lead in ball points is NOT an actual risk to health, then there is no excuse to regulate ANY pens under this law. Writing an interpretative rule that can’t seem to make up its mind is, frankly, worse than no rule at all.

The Definition of “Children’s Product” Does Little to Add Clarity for Regulated Companies: The convoluted definition of “Children’s Product” set forth in the Rule fails to bring clarity to the broad reach and operation of the CPSIA. Regulated companies will never be able to consistently apply the Rule in the real world, and worse still, will never be able to find peace (agreement) with their retailers (dealers) on the application of the Rule. Chaos is certain to ensue. This problem is again best illustrated by pens. Pens are items of general use and thus deemed to be unregulated under the CPSIA. The Rule notes an important exception, however: “when a general use, such as a pen, is decorated or embellished by adding certain features that may appeal to children, such as childish themes or play value, the general ruse product may be converted or transformed into a children’s product due to these additional features of characteristics.” [Emphasis added]

The Rule goes on to note that there is an exception to the exception: “However, there also are ‘novelty’ pens that could appeal to children 12 years of age or younger as well as older children and adults; such novelty pens would not be considered to be primarily intended for children. For example, a simple ball point stick pen bearing an elementary school’s name, without any other decorations, would likely appeal to anyone (i.e., students, teachers, parents) connected with the school. A pen with a silly head on the top, not associated with any particular mass media (and not sold in toy stores) may have just as much appeal to adults as it would to children. Pens with puzzle features that allow the user to take them apart and reconfigure the design also are likely to appeal to children and adults alike, and thus, are not likely to be considered children’s products because they are not primarily intended for children.” [Emphasis added]

The fact that children were already “interacting” with pens in the absence of the “childish” embellishments seems to be irrelevant under the Rule, raising the issue of how to tell when a product’s use by children is deserving of safety testing or the application of tracking labels. These are “big dollar” questions for the regulated community. If an embellishment is “appealing” to children, then if children “interact” with the pen based on foreseeable use and misuse of the product, it is apparently considered a children’s product . . . unless the embellishment has “just as much appeal” to adults or children, in which case it is a product of general use. And if the pen is unadorned but used by every child due to a marketing scheme directly aimed at the kids market, no testing or labeling is required (see discussion of musical instruments below).

It seems so obvious . . . .

The clear holding of this “policy” is that stick pens used by every child every day in every classroom do NOT require testing. Were you to remove those ordinary pens from the classroom and apply a “childish” embellishment with inks or paint supplied by the CPSC (stipulated to be entirely lead-free) and then return them to the children, the pens would now need to be tested and labeled. This, of course, makes absolutely no sense, and gives the necessary impression that the CPSC is more concerned with technical compliance issues (test reports without meaning or significance) than with notions of safety. How are regulated companies supposed to follow such incomprehensible or nonsensical rules? There is no answer to this question. Retailers (dealers) take a different tack when confronted by nonsensical rules – they crawl into a shell and invent their own “safety rules” designed to create a cushion between their practices and whatever 20-20 hindsight analyses could be used by regulators. This creates a Wild West of safety rules and practices for manufacturers: chaotic, unpredictable, penal and extremely expensive.

The Rule seems to delight in this convoluted reasoning. Consider the Rule’s stance on the marketing of musical instruments to schools: “Products with a marketing strategy that targets schools, such as instrument rentals, would not convert such products into children’s products if such products are intended for general use, regardless of how the instruments are leased, rented or sold. These instruments are intended by the manufacturer for use primarily by adults, although there also may be incidental use by children through such programs.” Incidental use? In many schools, the “incidental use” induced by these targeted programs is nearly 100% of the kids. It is difficult to take the CPSC seriously about its “passion” for eliminating lead in all manifestations when it enacts a rule that openly permits unregulated use of brass musical instruments by school kids while banning brass in toy wheel assemblies or requiring testing for certain pens because of the brass content in their ball points. This policy is best described as “two-faced”.

Let’s not forget that this Rule is hardly restricted to pens. Paper clips are known to be in wide use throughout society and also by children in the regulated age ranges. As products of “general use”, paper clips are specifically cited in the Rule as exempt from testing and the other requirements of the CPSIA. That makes sense – despite the uncontested fact that paper clips are routinely chewed on by adults AND children. I assume that the lead content in paper clips would have an equal (or greater) ability to erase IQ points as lead in children’s products that also might be mouthed – but let’s not worry about that now. The Rule sensibly draws the line at paper clips for the foregoing reasons, and whatever “hazard” chewing or sucking on paper clips may present has been overlooked as a public health risk. Unfortunately for our education business, it’s not that simple: “Manufacturers may also include a general use item as one of several items packaged together, such as a paper clip included in a magnet set primarily intended for children ages 7 through 10 years old. The paper clip may be a general use item but when included as part of the magnet set, it would need to be tested to the applicable children’s product safety rules since the product is targeted primarily to children 12 years of age or younger.”

What is achieved by this rule? High expense, much confusion, many arguments with retailers and sharply-reduced respect for the CPSC’s rules.

Please note that the Rule leaves all elements of these subjective judgments open to doubt. Consider pens again – because the Rule encourages us to reason from the pen example. The CPSC took no definite position on anything applying to pens other than that an undecorated stick pen is outside the CPSIA. Anything with an “embellishment” presumably will be the subject of endless debate in the regulated community under the Rule. If you guess wrong on the application of the Rule, the law provides (and CPSC practice now reinforces) tremendous liability risk. Let’s not forget that we in regulated community know about the $2.05 million penalty assessed against Daiso for five recalls of less than 700 units in total. Liability risk under the CPSIA seems virtually unlimited nowadays. Subjective interpretative rules applied with 20-20 hindsight by regulators would likely expose manufacturer to the highest risk at the worst possible time, namely when there’s a real problem. How can manufacturers defend themselves? The wishy-washy design of the Rule provides nothing for a manufacturer to rely upon.

The Rule makes same similar confusing distinction on DVDs and CDs and seems to imply that many promotional products will be subject to doubt under this Rule. Almost anything useful that has a so-called “childish” embellishment might be regulated now, possibly without the manufacturer even knowing! The Rule states that manufacturers “should expect” that adults will give their embellished or “childish” products to children even if made specifically for adults (the example cited is a stuffed animal sold with a candle). The fact that some businesses target adults with such items (intent!), or the fact that the Rule contemplates that adults are often drawn to the same items as children, seems to be forgotten here. At a minimum, the Rule seems entirely subjective. This not being confusing enough, the Rule notes that if the items that children are drawn to happen to be considered “collectibles”, then perhaps they won’t be considered children’s products. Or maybe they will.

To put a bow on the confusion, the Rule concludes that classic games like checkers or Chinese checkers (among other common games) are NOT children’s products. I simply cannot imagine a toy company DARING to leave these classic games untested yet the CPSC has now officially ruled that certain classic games are exempt from the CPSIA. However, if the manufacturer is foolish enough to promote these games with images “or other features . . . that make [the games] more attractive to or suitable for children than a general use product would normally be”, well then they are magically transformed into children’s products.

I literally do not know how to apply a rule so full of convoluted logic and word games. Likewise, I cannot envision smoothly functioning markets governed by a rule like this.

Notably, the weight placed on advertising portrayals with children will only intensify arguments between manufacturers and their customers about what is and what is not a children’s product. For instance, we sell magnifiers and tape measures that are identical to those sold at Home Depot. By any definition (and as acknowledged in the Rule), these items are items of general use. We happen to photograph them with children for our catalog and website to illustrate the products’ utility in educational settings. How are we supposed to determine definitively that these items are not children’s products under the law, much less get our customers to agree with us? To date, no customer has agreed with this conclusion. NOT ONE.

The Rule posits a bizarrely unrealistic deliberative process in which each photograph is “weighed” against each other to determine its “true nature”, as though that were possible: “The prominence, conspicuousness, and/or other emphasis given to each portrayal of a product’s use or intended users on packaging or in advertising media can be weighted differently according to which images or messages are the strongest and most obvious to the consumer at the point of purchase.” This language makes me want to scream. To avoid business risks under this rule, businesses may have to produce catalogs and websites that look like this: http://bit.ly/d4vtZo.

The Rule confounds by assigning responsibility to the manufacturer for its retailers’ independent choices on where they place items in their stores or in their various catalogs, web pages and ads. Of course, each retailer will make this choice differently, possibly store-by-store, catalog-by-catalog, ad-by-ad, web page-by-web page, region-by-region, country-by-country and so on. In reality, this standard is even vaguer than that, as the judgment is whether the images “could imply [the product’s] suitability for a certain age group”. [Emphasis added] In any event, we manufacturers have neither control over, nor knowledge of, these choices by third parties.

All this makes me wonder why the Rule doesn’t simply state that the CPSC will decide after the fact what is and is not a “Children’s Product” based on its subjective personal opinion at the time? That rule formulation would at least be honest and clear.

I believe the agency has given scant thought to the reality of living with this rule. How does the CPSC envision that a manufacturer and a retailer would resolve a dispute over whether a product is subject to regulation? Think about people who sell pens. What is the likelihood that there ever be agreement that a particular embellished pen is outside this law? I fear the effect of this vague, quirky and completely indeterminate rule will be that everyone associated with children’s products will throw up their hands and assume that everything is subject to the full brunt of the CPSIA. If that’s the intent, I wish the CPSC would just come out and say it.

What Should the CPSC Do? The answer to this question is clear in light of two factors: (a) in the Chairman’s statement, she indicated a strong interest in bringing certainty to this rule and further notes the importance of certainty to the marketplace, and (b) the extremely low incidence of injury and death reported from lead in the last 11 years. As noted in great detail above, there is nothing “certain” about the Rule as presently written. It includes far too many phrases like “may”, “could”, “in general”, “weighting”, “factors” and so on. The Rule as written is the antithesis of clarity and certainty.

The CPSC has as its mission “to protect the public against unreasonable risks of injury associated with consumer products”. With so few injuries and one death from lead over the course of 11 years, the perils of lead have not been demonstrated to rise to the level of an “unreasonable risk of injury”, particularly when viewed in light of the known impact of so many other dangers regulated by the CPSC (such as small parts or pool injuries).

For a rule to bring “certainty” to the market, there must be a way to make a definitive judgment, one that can be relied upon. Subjective judgments and weighing of factors may make sense for a court but has little value to regulated companies in an active marketplace. Who gets to decide which judgment is “right”? Under the present Rule, no one does.

The way to resolve this dilemma is to learn from the statistically significant history of low injuries from lead, and make a concession in favor of certainty. The right rule for the definition of “Children’s Product” is to state that the “reasonable judgment” of the manufacturer on what is and what is not a “Children’s Product” under the CPSIA will be RESPECTED by the CPSC. I believe the term “reasonable judgment” is understood in the marketplace, and is also a well-defined term in the common law. It has been clarified in countless cases, providing clear guidance to all concerned (regulators, regulated companies and consumers). The CPSC should further indicate that it will NOT review the judgments made by manufacturers in the absence of fraud, a recall situation or other serious violations of law or CSPC regulations. Retailers should be entitled to rely on the reasonable determinations of manufacturers by RULE.

My concept is that the reasonable business judgment of manufacturers will appropriately shape the range of products regulated under the CPSIA. In actual fact, the reasonable judgment of manufacturers on determinations of “Children’s Products” is tightly confined by the CPSIA, so little risk to the “will of Congress” can be anticipated. In addition, given the long track record of so few documented injuries from lead (going back for many years before the CPSIA’s enactment), there is little reason to believe this practical rule will expose children to more injuries. In any event, this will allow the agency to focus its energies on greater threats. The agency also has plenty of legislative authority to draft other rules to address lead concerns if the need arises.

A rule drafted in the vague, quirky, subjective, indefinite and convoluted manner of the Rule achieves little other than amplifying the frustration and confusion of the regulated community. Having filed numerous comments letters over the last two years, testified before Congress and the CPSC on several occasions, had personal meetings with CPSC staff, written blog posts, attended rallies, and so on, I can attest to the deep frustrations associated with implementation of the CPSIA. After all this time and effort, we manufacturers are still “in the soup”. With this Rule, the CPSC begins the final stage of the implementation of the law, and potentially, places the capstone on our ruin. This Rule, plus the so-called “15 Month Rule”, taken as a whole, has the potential to put many companies out of business. I do not know how we survive both of these rules in their present form. It’s time for the CPSC to take a reality check. If the Chairman is serious about bringing certainty to the market and to regulate without putting companies out of business, it’s time to make some concessions and let the good companies who produce children’s products run their businesses and accountably produce safe products using reasonable judgment. This strategy will work. Policies like the Rule will not.

Thank you for considering my views on this important topic.

Sincerely,

Richard Woldenberg

Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Read more here:
CPSIA – Comment Letter on "Children’s Product" Definition

Let’s be clear here, Wolfson is talking about making everyone “safer” by eliminating lead-in-substrate in buttons. He is NOT talking about lead-in-paint. Lead-in-paint has been illegal for decades, and a small number of recalls have occurred for lead-in-paint violations relating to buttons. [No injuries were ever reported, of course, but don't get me started.] Buttons have been recalled for coming loose and violating the small parts rules. This is a REAL hazard to small children. Kids can actually choke on a button and be injured. Wolfson is NOT talking about this issue. He is focusing on other “positive effects” from the law.

Wolfson also took pains to note that the buttons were being removed from adult clothing, too. Did you realize how much danger you were in before the CPSC was able to induce these “positive effects”? I really appreciate Wolfson bringing this to my attention. Thank heavens for our federal protectors!

How many recalls have occurred in the United States for lead-in-substrate in buttons – EVER? According to the CPSC website, ZERO. According to a Google search this morning, I believe this kind of recall has NEVER occurred ANYWHERE IN THE WORLD. And the removal of lead-in-substrate is a positive effect of the law? Is Wolfson responsible to explain this puzzling remark?

So after two years of continuous arguing and the devotion of many tens of thousands of man-hours of work to implement the noxious CPSIA by the federal government and industry alike , the CPSC holds up as its great achievement – buttons. Whew, it’s safe to walk the streets of America again!

Thank you CPSC for seeking the right balance between compliance and NOT putting companies out of business. Yeah, I get it.

Unfortunately, by highlighting something as asinine as buttons as a possible lead hazard, the CPSC fuels a long-simmering public hysteria over latent chemical hazards. No one was previously aware that buttons could kill you from their bound=in lead content, but apparently our federal government is quite concerned about button lead content. Isn’t that what Wolfson said? After all, why would he mention it to USA Today if it wasn’t a problem at all? This kind of remark helps persuade the public that dangers lurk where they can’t see them. Lead must be terrible, right, if the CPSC is so hysterical about it? The conclusion is inescapable.

And let’s not forget the McDonald’s Shrek glasses. Cadmium must also be a terrible problem or else why would our trusted federal government urge recall of the drinking glasses out of “an abundance of caution”? Which are we to believe – the CPSC’s actions in demanding the recall for undisclosed trace levels of cadmium in the enamel on the OUTSIDE of the glasses, or Wolfson’s own written reassurance that the glasses aren’t toxic? And of course, there is the Congressional “inquiry” by Waxman and Stupak as further evidence of the “justifiable” health concern. As the relentless stream of breathless and panicked media stories confirm, the public believes that the recall was justified and therefore that cadmium is a real concern, a silent “killer”. The fact that there has never been a single reported cadmium injury from a consumer product in this country’s history is never discussed.

This kind of reinforcement leads to paranoia about many safe products – and makes doing business in the children’s market in this country exceptionally difficult and unpleasant now. No one trusts us anymore and the only thing we did wrong was elect the wrong people to Congress.

The message that we business people can’t be trusted is clogging the airwaves almost daily. The weekly corporate bashings by Congress and the White House paints a clear picture to the American public. You need only consider the treatment of BP, Toyota, Wellpoint, Massey-Ferguson, GM, Chrysler, evil bankers . . . the list is long. We’re all bad, right? That’s the theme these days.

CPSC leadership also reinforces the notion that corporations must be closely supervised by the federal government. Corporations will cut corners and take chances with your children’s health but for the crusading efforts of this pioneering and courageous safety agency. Remember Tenenbaum’s theme: the CPSC is not a “teething tiger” anymore. With this approach at the CPSC, small wonder then that these are among the USA Today comments:

“Yeah…Tests can be costly, but on the other hand death seems to be pretty costly also. But I guess the determining factor will always be money. Save 10 cents, 10 dollars, 100 dollars at the cost of someone else.“

“Well if they cannot test the products they make to insure that our children are safe. Then its time to start making other items. The simple fact is that the Chinese and our bought and paid for congressmen/congress women have allowed this to happen. My opinion ban all products from China since it is evident that they do not care for the health of our citizens.“

“WE can never ever trust the Chinese. They are the worst people! Why do we do any business with them is beyond me.“

“This is just more gov regulation that the GOP says get’s in the way of the Free Market. Let the Free Market get the lead out on it’s own. Too bad there’s no profits in ‘getting the lead out’. It’s cheaper to use lead as a filler, and hire lobbyists to pay-off congress. We’ve got it all dialed-in in America!“

Thanks for all the help, CPSC. You sure are helping our market. Your efforts will only succeed in driving the good people out of this market, along with their good products, their innovations, their productivity gains and their jobs. And who will be around to help educate your kids and grandkids? Let’s not think about that one. No, no, ignore me for a few more years. This can go on indefinitely. We’ll just take it. We love it. Go ahead.

It’s time for Nero to share the stage with the Democrats. Go on, fiddle while Rome burns.

Read more here:
CPSIA – CPSC Sets Its Sights On the Real Menace to Society . . . Buttons

In response to questions by Ranking Member Whitfield, Steve Levy discussed lead in zippers at about the 47 minute mark in the testimony video. He noted that zippers are made of five to seven components, one of which has been found to have trace lead amounts in excess of current limits. The component in question is not accessible (it’s sewn into the crotch of the pant) but since the CPSC can reach the component with a probe, it is considered violative. Fabric is not considered a “barrier” to access under CPSC rules. Bummer, that’s thousands of pairs of pants into the garbage.

Self-appointed “Safety Czarina” Rachel Weintraub was quick to object to the horrors of Mr. Levy’s jeans: “The problem is, unfortunately, that children mouth zippers all the time. You know I have three young children. My oldest child who is almost six, he mouths zippers as well. . . . The problem is that children interact with clothing in dynamic ways.” This Rachel-speak is the version of “common sense” that imbues the CPSIA. Perhaps you recognized the valuable insights.

Whoa! Children are so “dynamic” with their clothes, this little zipper could be zapping IQ points every day. Wow. I am quite a worrier as you know, so I have been fretting about zippers almost non-stop for a month. After all, we clothed our children in pants with zippers since they were born (many years ago). I can’t detect any missing IQ points in my kids, but of course, I am not nearly as smart as Rachel Weintraub or the other safety zealots perhaps as a result of my wearing jeans to this very day. Still, I could not ignore Rachel’s serious warning but needed to better understand the danger.

So we asked a four-year-old volunteer to suck on his jeans zipper. Here’s what happened. Don’t worry, no IQ points were killed or harmed in the making of this video.

WARNING: The following video contains dramatic footage of a four-year-old attempting to suck on his jeans zipper. Such graphic footage may not be appropriate for everyone. Please think carefully about watching the video if you are a member of a consumer group.

Read more here:
CPSIA – Fear of Zippers

Well, that didn’t work, so on December 17, 2009, the Commission again pushed out the testing and certification effectiveness date to February 10, 2011. This early action was done in recognition of industry’s need for to plan for changes in requirements. Nonetheless, Dems on the Commission bemoaned the need to extend the stay:

Robert Adler: “While I had originally hoped the Commission and the marketplace would both be prepared for the lifting of this stay of enforcement, after thorough consultation with CPSC staff and stakeholders in both industry and the public health community, I believe an extension of another six months is necessary to permit market adjustments, especially with respect to the testing and certification by the suppliers of components. I respectfully disagree, however, with my colleagues who have chosen to extend the stay beyond August 10, 2010. While there will be some disruption in the marketplace no matter which date is chosen, no hard evidence has been brought to my attention that would require an even longer extension of this stay than two years from the passage of this landmark legislation. I recognize that others feel differently.”

Perhaps Mr. Adler has uncovered some “hard evidence” by now. Scroll forward six months and things aren’t going the CPSC’s way. While the Commission may have thought it reserved enough time for everyone to “adjust” to the testing requirements, in fact things are getting worse. Rules are piling higher and higher, and are still being issued and changed. Many people don’t feel the rules are survivable. Dan Marshall of the HTA testified at the April 29th hearing that his organization sees the CPSEA (the Waxman Amendment) as their only chance to survive the lifting of the testing stay. [My opinion - the Waxman Amendment won't help the HTA at all.]

More recently, the HTA sent a letter to the House Energy and Commerce Committee stating: “Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. . . . You hold the livelihoods of hundreds of small businesses in your hands.“

Ouch.

Not surprisingly, there is mounting background pressure on the CPSC to push out the testing stay for another year. Nevertheless, I surmise that Dems on the Commission would rather eat dirt (40 ppm lead) than take this step. They invested a lot of political capital in the last stay extension, and despite the promulgation of (literally) reams of regulations, still haven’t put in place a workable regulatory scheme yet. Retailers are telling the CPSC privately that without prompt relief from the CPSC or Congress, they are going to have to start turning the screws on their suppliers as though the stay won’t be lifted. Hmmm.

The pressure is building, building. It doesn’t help that Waxman and his supporters won’t budge an inch on their proposed CPSIA amendment. By moving in a pack led by Waxman, the Dems are collectively taking full ownership of the awful consequences of the law.

And what if the Commission capitulates and extends the stay? That’s good for the industry and the HTA, certainly, but it’s political suicide for the Dems. They face a real Hobson’s Choice. If the stay is extended, it will be taken as an admission that the CPSIA simply cannot be implemented. That would really stick it to Mr. Waxman, patron of the Dems on the Commission. After all, if the law isn’t “ready” for full implementation for FOUR YEARS, it’s logical to conclude the CPSIA won’t ever work, that it was fundamentally flawed from the beginning. [Where have I heard that before???] If the Commission declines to extend the stay, manufacturers and retailers will light the world afire over the pain and losses being foisted needlessly on them. HTA members and other small businesses will start to close down. Ugly. The choice is lose-lose.

The stakes are even higher for the Dems, if you take into account Mr. Waxman’s REAL baby, TSCA reform. The Dems have a big target in mind, the “reform” of chemical regulation in this country. Put simply, they want to roll out CPSIA-style regulation to all things chemical, including plastics and all mixtures of chemicals. This scares a lot of people, given the permi-chaos dogging CPSIA precautionary regulation of only two substances (lead and phthalates). Arguably, the CPSIA was just a trial balloon for TSCA reform. Ramp up the CPSIA by 30,000 times and you have TSCA reform. If the Dems give an inch on the CPSIA, they fear their hopes for TSCA reform will go down the drain. The children’s product industry is caught in the middle of a historic fight over how we Americans regulate ourselves.

If you are frustrated by the stalemate over the Waxman Amendment, I think you need to keep an eye on the testing stay. Every day that passes, the pressure mounts on the Waxmanis and the Commission. What’s the right thing to do? They sweat and they sweat . . . while we roast.

Read more here:
CPSIA – The CPSC Sweats Out A Stay

The New York Times reported on Sunday that data from the EPA sets the economic “value” of a human life at $6.1 million. Whether that number is high or low, it’s a good placeholder for an economic analysis of the CPSIA. [The EPA originally set this figure for an economic analysis of one of its rules.] According to federal rules governing regulations issued by the EPA, the benefits of a regulation must outweigh its costs. Therefore, as the NYT reports, if you save one life (worth $6.1 million) with a new regulation that imposes a compliance cost of $8 million, the regulation is illegal and must be withdrawn.

I wonder if this analysis would give us any insights into the CPSIA. . . .

Another relevant data point from the NYT article is that one IQ point lost to lead poisoning is worth $8,346 over a lifetime. That’s a real figure – think of the cost and disruption imposed on the children’s product industry to avoid the POSSIBILITY of the loss of an IQ point. Consider that the CPSC has reported three injuries from lead-in-paint in 11 years – that’s 3 x $8,346 = $25,038 in “damages” in lost IQ points or a little over $2,200 per year.

Even this miniscule cost is conjectural as I am simply not aware of a single, PROVEN case of lead poisoning from a children’s product. The victims assert a link between their (often undocumented) lead poisoning and the offending children’s product – but the causal link is rarely if ever challenged or conclusively verified. Even the consequences of the (asserted) lead poisoning is itself conjectural – although I am not defending lead poisoning. It is not certain, however, that lead poisoning always leads to long term problems or diminished capacity. [This issue gives fresh perspective on the recent policy of the CPSC to recall ALL lead-in-paint violations, a strict liability standard. This almost certainly violates the "substantial product hazard" standard that governs the ability of the CPSC to issue recalls as a matter of law. CPSC leadership should be held accountable for this change in policy in violation of the "substantial product hazard" statutory standard.]

On the basis of this very doubtful data, my entire industry has been trashed.

Let’s do the math on the CPSIA: In 11 years, one death ($6.1 million) and three IQ points ($25,000) = total cost $6.1 million. On other side of the ledger, the HTA estimates that the ANNUAL cost to test products for compliance with the CPSIA is $5.63 billion. The all-in cost is probably higher by a factor of 2-3x, but the HTA number is fine for illustration purposes. At this rate, ignoring the likely impact of inflation, the 11-year projected cost to comply with the CPSIA would be not less than $61.9 BILLION.

Spend $61.9 billion, save $6.1 million. In other words, thanks to the wondrous CPSIA, Americans spend $1,000 on “safety” to save a buck in injury costs. This is the legislative scheme that your Congressional Dem leaders have been fighting tooth-and-nail to preserve intact for the last two years.

The Dems want you to spend $1,000 to save a dollar. They won’t give an inch and have stubbornly refused to listen to reason for two years. The illegality and remarkable fiscal irresponsibility of this regulatory scheme doesn’t impress them. They tell us there’s no safe level for lead . . . but the real danger appears to be that there is no safe level of Democrats in our government.

November, November. Mr. Waxman, go ahead and fiddle while Rome burns. We’ll see you and your colleagues in the voting booth.

Read more here:
CPSIA – Numbers Don’t Lie (2nd Update – An Upside Down World)