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

Rick Woldenberg, Chairman, Learning Resources, Inc. — Fri, 22 Jul 2011 09:27:25 +0000

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 – ECADA Manager’s Amendment

Rick Woldenberg, Chairman, Learning Resources, Inc. — Wed, 25 May 2011 03:26:28 +0000

Here is the Manager’s amendment to the CPSIA Amendment (ECADA). [Essentially changes offered by Mary Bono Mack.] The changes apparently include changes in lead in jewelry (age limits), removal of testing requirement for inaccessible components for phthalates, removing toys from outdoor recreational products and adding “class of products” to functional purpose exclusion process.

CPSIA – AAP Publicity Campaign Tries to Block CPSIA Amendment With Half-Truths and Worse

mbougie — Wed, 11 May 2011 23:00:00 +0000

The notorious American Academy of Pediatrics, a political organization masquerading as a scientific organization, is mounting a furious effort to stop Congress from amending its baby, the misconceived and defective CPSIA.

CPSIA – Dem CPSC Commissioner Bias Against Manufacturers MUST Be Stopped!

Dana — Wed, 13 Apr 2011 16:03:00 +0000

Before the April 7th House hearing on the CPSIA, the three Democratic CPSC Commissioners joined together to assert that in the absence of their “leadership” at the agency and their vaunted CPSIA law, manufacturers would be “dosing” children with lead in ever greater amounts. To be precise , they said they oppose “any change in the law that would lead to an increase in the doses of lead to which our children are exposed on a daily basis . . . .” According to them, changing the law means that “doses” of lead WILL increase (but leaving everything “as is”, including their position at the helm, means that children will remain “safe”). In other words, they were warning Congress that “we” are planning to or will inevitably increase lead “doses” upon a change in the law. Our company is a manufacturer of children’s products, in particular educational materials and educational products. This scurrilous libel applies to me. I don’t like it one bit, either. Despite having previously raised this point in this space, I am still not quite sure people fully comprehend how offensive this action by Tenenbaum, Adler and Moore actually is. Of course, we all know the word “dosing” is offensive on its face. Everyone also knows that accusing me and my manufacturing peers of an absence of values and integrity, not to mention an actual present intent to harm children, is remarkably slanderous, unfair, untrue and completely unknowable. It’s practically a blood libel . But what I don’t think is clear is how grievously the three Democrats have violated a basic tenet of American social justice. in their panicky effort to appease consumer group zealots, the Dems have demonstrated a bias, a dyed-in-the-wool prejudice against an amorphous mass of people tied together only by false accusation. It would be their undoing if they had used the same logic to attack just about anyone else. Consider the following: How would you feel IF Inez Tenenbaum said she was opposed to changes in CPSIA lead rules because she didn’t want black people or gays to start “dosing” children with more lead? or . . . IF Bob Adler objected to changes in CPSIA lead rules because he said he wanted to prevent Jews from “dosing” children with more lead as they are wont to do? or . . . IF Thomas Moore pointed to Muslims as the principal danger in relaxing CPSIA lead rules? The shock waves would reach tsunami heights. None of these people would still be working for the federal government, either. Public outrage would ride them out on a rail. Of course, they didn’t say any of these things (to my knowledge). Instead, the three Dem CPSC Commissioners stood shoulder-to-shoulder and simply said they can’t abide the changes because manufacturers will “dose” children with lead. Can’t trust manufacturers . . . . This apparently is quite believable. The media bites down hard on the silly story, that’s for sure. Consider Jeff Gelles of the Philadelphia Inquirer : “With bigger matters at stake, it was easy to overlook another drama unfolding last week: a little-noticed assault on the Consumer Product Safety Commission’s efforts to improve children’s safety and the transparency of its complaint-handling process. But it sadly fits right into the theme of a Republican Party eager to please its core constituencies – in this case, business groups that often bristle at any regulation, even ones designed to protect children from unsafe products.” If it’s “obvious”, it must be true, right? Yes, if you are biased . . . or a bigot . . . or gullible. So apparently, it’s “believable” when politicians abuse their power by accusing me of an intent to harm children (despite the fact that we have a virtually unblemished record of safety and I have devoted my business life to making children’s lives better) – all because I am a member of a group called “manufacturers”. Had they leveled the same accusation at me or at a group including me based on race, creed, color, gender, religion, sexual preference or some such, they would be banished from our government. This is a dirty bias exposed, plain and simple. The Dems’ accusation is also the height of cowardice, relying on political power to bludgeon a group of randomly-selected citizens for political gain. They know they have overwhelming power and are unlikely to be accountable for this malicious lie. This isn’t the first time Inez Tenenbaum has resorted to this kind of unscrupulous media and Congressional pandering. You may recall my outrage over her statement to ABC News on the first day of the Xmas selling season last year (September 30th) when she used the occasion of Mattel’s 11 million unit recall to warn America against “manufacturers” who don’t design in safety up front. In my blogpost entitled ” Recall the CPSC “, I questioned why Ms. Tenenbaum was warning American consumers about our company – after all, we are a manufacturer. What had we done to deserve this treatment from Ms. Tenenbaum? Had WE suffered a massive recall? Had WE injured children? Did she have ANY evidence that WE were doing a bad job of “[building] safety into the product from the very beginning”? Nope, she didn’t – she made that accusation without any cause to do so. Mattel erred (if they actually did), NOT US. This is called bias. Read her remarks but substitute in the words “Jews”, “black people”, “gays” or “Muslims” for “manufacturers” to see the effect clearly. She was WAAAAAY off-base, but who held her to account? No one. It’s okay to have a bias against manufacturers. What can we do about this? I think it’s incumbent on Congress to do something about it. Let’s be frank – Congress appointed these people and they are accountable for the government that we “enjoy”. Is Congress ready to let bigotry and bias form the basis of our laws and our regulatory system? Is Congress ready to abandon its responsibility for oversight and to manage these rogues? How about a sense of basic fairness – there are huge numbers of manufacturers serving the American market. They are our neighbors, our friends, our relatives. Are we satisfied having a government run by people who HATE and DISTRUST manufacturers, think that “justice” involves taking away their due process and deciding cases before evidence is heard? I sure hope somebody’s listening. This is a MAJOR PROBLEM. It’s time to end the reign of terror at the CPSC!

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CPSIA – Dem CPSC Commissioner Bias Against Manufacturers MUST Be Stopped!

CPSIA – Comment to My Blogpost

Dana — Mon, 11 Apr 2011 09:15:00 +0000

I received this comment on my recent blog on lead: “I am a victim of lead poisoning. In one of Dana Bests written testimonies to Congress she suggests that the lead limit should be 40 parts per million, half of the 80 parts per million level at which a child loses 1/2 an IQ point. Given that she made no mention of blood levels or absorbability she seems to imply that 80 ppm in substrate = loss of 1/2 point of IQ. Give these facts I can calculate my lost IQ. I was born with an IQ of approximately 6,350. You see, as a child I played with solid lead toy soldiers. I started fishing at a young age and handled lead fishing weights frequently. I helped my dad make large fishing weights for bottom fishing with melted lead. Worst of all I clamped lead split shot onto fishing line with my teeth. It’s tragic really, the loss of over 6,000 IQ points. I could have solved world hunger. I could have unified relativity and quantum mechanics. Instead I’m just a normal IT guy. Dana Best, with the help of her special calculator, is about to usher in a new age of soaring IQs. Soon we will all live forever and never get sick. But this may never happen if we don’t hold a righteous fear of lead in our heart. Vote Democrat – BE AFRAID.”

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CPSIA – Comment to My Blogpost

CPSIA – Oh No, They Didn’t Go Away

Etienne — Sun, 10 Apr 2011 15:58:00 +0000

As you may have heard, the federal government stuck around this week. No shutdown, which means that the CPSC is still busy, busy, busy protecting us. We should all appreciate it. At least that’s what they tell us. So why do I have such a bad attitude? How would you feel if the people running this federal agency told Congress in writing that you were intent on poisoning children. They didn’t accuse me by name, or you, but instead accused us all together. Perhaps they think we are all intent on doing it. They said, clear as day, that we were ready and waiting to “dose” children with lead. The purposefully-chosen word “dose” suggests an act of volition, something intentional and sinister. The word connotes an unwitting victim. Bottom line, they are saying that we are perversely stalking innocent children unaware of their “fate”. Really, really nice. Especially by a Chairman of the CPSC and her cohorts holding a majority vote controlling the agency. Those of us in business, we tend to take our reputation seriously. It is deeply offensive to be insulted by strangers, people unable to know us or our intentions. I don’t think the word “slander” is too far a stretch. How can the three Democrats (Inez Tenenbaum, Bob Adler and Thomas Moore) be so arrogant to stand before Congress and assert that they (and their law) stand between the American consumer and infamy? I simply can’t say. It really is disgusting. Not only is this is a devastating insult, but it is frankly a crushing blow to the FUTURE restoration of trust in this agency. NEVER previously has there been such a broadcasting of intentions, a profound and dirty bias against manufacturers and in favor of media pandering. Whether they are taking instructions from someone off-stage or not, their letter to Congress confirms that they cannot be trusted to be fair or open-minded. The three Democrats are certainly not a government for all of us because manufacturers and retailers are now frozen out of the community. The Dems have pushed them out. This is not an American government anyone would want. What will Congress do? Rumorville has it that I am not the only one whose jaw hit the ground and whose blood began to boil when they read the Dems’ letter. Some people around town actually care about the fairness of government. Some people believe in fairness and are sensitive to any odor of ignorant prejudice, minds made up before evidence is presented. Some people believe government must be accountable. Some people believe there is no excuse for this kind of behavior. The Dems put themselves in the soup. G-d willing, they will be held to account. Stay tuned.

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CPSIA – Oh No, They Didn’t Go Away

CPSIA – If The CPSC Goes Out, Do You Think They’ll Come Back???

Gil — Fri, 08 Apr 2011 17:05:00 +0000

With the Federal government about to shut down, one wonders – could we possibly live without the CPSC for a few days? I, for one, would very much like to find out. But what about the CHILDREN, you say. It’s a horrifying thought. After all, with annual expenditures of north of $100 million per hyear and in recent times an obsession with children, the CPSC has managed to uncover one death allegedly tied to lead (swallowing a jewelry bangle) and three injuries tied to lead-in-paint over an 11-year period from 1999 – 2010. That’s what you get for regulatory expense of more than $1 billion – four alleged injuries. Value for the dollar . . . . In the last couple years, though, the federal government in its infinite wisdom has chosen to pass all regulatory cost increases on to YOU. Yes, in a new innovation making rising taxes obsolete, Congress raised YOUR costs by billions each year when it inflicted the CPSIA on America. I have previously presented an analysis based on Congressional testimony that estimates those costs at more than $5.6 billion each year. And I think that’s low. I know you’re probably not a statistician, but what are the odds that lowering the ten-year results from four alleged injuries to zero alleged injuries would be considered statistically significant? I believe the answer is zero or very very low. $5.6 billion a year doesn’t buy much, does it? The scale of the threat was explored in a revealing moment yesterday when the infamous Rachel Weintraub of the Consumer Federation of America was asked by four different members of Congress for names or lists of victims of lead-in-substrate. She couldn’t name any. Dana Best had no chance to answer such questions, because she bolted before questioning. I rather doubt the members were much in the mood to accept an answer of “jillions” anyway. I haven’t had a chance to review the tape yet, but I understand Ms. Weintraub assured Congress in response to these queries that lead is a “silent” harm-doer. Rachel says there;s no way to tell . . . so I guess the implication is that we should assume millions of kids have been harmed. Possibly bazillions. Who knows?! Has anyone considered the possibility that the injured children that only Ms. Weintraub and Dr. Best can see are IMAGINARY? Consider this argument: Rachel and Dana and their ilk have had three years to find a victim, any victim, at any time since Hector had pups. They have failed in this endeavor. Maybe Rachel and Dana didn’t try, maybe they don’t care. After all, they probably thinks they’re right and who are we to challenge either of them. No response required. . . .. But IF Rachel’s right, why don’t the numbers yield up MANY victims? It really shouldn;t be hard to find injured kids – which makes the failure to do so all the more galling. There are lots of children in the regulated age group – more than 50 million. That population is constantly changing because kids “age out”. So if you look over a decade, say, you might be talking about 75+ million. What do these kids do? What all kids do. They play, they breathe, they eat, they ride ATVs, they lick bicycles, they suck on the ink end of pens, they consume fistfuls of rhinestones, the usual. Some of them oddly do extreme things. You are looking at a BIG population. Over a decade, that’s HUNDREDS OF TRILLIONS of product interactions, some of them excessive. And yet there are no known victims. Hmmm. Perhaps this is a pretty low probability event. And not worth $5.6 billion a year in excess costs. So when the CPSC goes out, will anyone notice? That;s a good question. It may be an experiment worth running. And if the world doesn’t come to an end without them, perhaps Congress might find something new to cut when life gets back to normal. There’s no safe level of fear mongering, guys. Your Friend, The “Lead Doser”

CPSIA – More Good News and Bad News

Rick Woldenberg, Chairman, Learning Resources, Inc. — Sat, 02 Apr 2011 03:09:00 +0000

We trust our government, right?

CPSIA – Correction to Klobuchar/Tester ATV Exemption Amendment

Rick Woldenberg, Chairman, Learning Resources, Inc. — Thu, 31 Mar 2011 22:08:00 +0000

Darn it – I thought we could only trust websites ending in “dot gov”.

CPSIA – Another Update on How VERY Safe We Are

Rick Woldenberg, Chairman, Learning Resources, Inc. — Wed, 30 Mar 2011 15:30:00 +0000

I want to bring you up-to-date on the nuclear situation in Japan, but first a quick reminder – none of this matters BECAUSE there is no lead in plutonium or the other radioactive elements being discharged in tremendous mass into the air, water and soil by the disabled Fukushima reactors.