CPSIA – Further Developments in Brass Bushings Case

There have been a couple further developments in this case:

a. Both Anne Northup and Nancy Nord put out press releases today lambasting the Learning Curve decision. The (apparent) polarization of the debate has now gone very public. The shame of it is that the Republicans seem to be the ones advocating for common sense while the Democrats continue to support decisions that would puzzle the man on the street. There is no reason that common sense should divide the Commission. Of course, it would be wrong to accuse the Democratic appointees of lacking common sense. Still, it’s hard to argue with the position of the Republicans from the perspective of real world problems and risks. At least they are speaking out against Congressionally-sponsored folly compelling the agency to hold hearings about how many angels can dance on the head of a pin.

b. Commissioner Bob Adler called me today to retract his accusation discussed at the end of my last blogpost in a short section entitled “Interesting Side bar”. Mr. Adler was contacted by representatives of Learning Curve who were upset at the idea that they had been selling toy cars in violation of the ban. It turns out that this is not true. When Mr. Adler became of his mistake, he (decently) sought to correct the record immediately. For that, he is to be commended. I want to make clear – the testimony at the LCI hearing that I reported actually took place BUT the substance of Mr. Adler’s remarks was incorrect. Mr. Adler expressed his regret to me, and asked that I pass it along to you.

You have to admit that this is rather ironic. Mr. Adler accused Learning Curve of exhibiting “bad optics”. Bad optics, indeed. The source of his misinformation was a staffer to one of the Commissioners who bought a LCI car from Amazon.com and assumed that this meant that LCI was violating the ban. This staffer took it upon himself/herself to pass on this assumption as a FACT to Mr. Adler. Actually, the inventory for sale on Amazon had been bouncing around for some time, and did not come from LCI after the ban went into effect.

To me, this mistake (and that’s all it was) demonstrates several important points:

• The CPSC has a VERY HARD TIME understanding supply chains. There may be a tendency among some people working at the CPSC to see the economy as a very simple, linear beast. It’s not. This situation illustrates the danger is making assumptions about how the economy is organized or underestimating the complexity of how goods go to market. Let’s not forget the immortal words of Felix Unger in The Odd Couple TV Show: “When you assume you make an ass out of u – you – and me.”
• To a business person (like me), it feels so often that the CPSC holds businesses guilty until proven innocent. Mr. Adler made a mistake, and that’s to be expected of all of us mortals, BUT it feels too easy for the CPSC to judge us without digging too deeply into the merits. Maybe the business community isn’t a nest of vipers. Just a thought. . . .
• The Commission has a tremendous ability to do harm. This (minor) incident will certainly not enhance LCI in any way. The Commission treads with elephant feet – it needs to try to be a ballet dancer.
• The problem of “bad optics” is resident at the CPSC today. The issue of tone and appearance and how they affect market participants – that is VERY deserving of consideration at the CPSC TODAY.

I hope this incident is reviewed carefully at the CPSC for “lessons learned”. Mr. Adler’s culpability here is not, IMHO, the issue. The bigger concern is the hair trigger, the guilty-until-proven-innocent atmosphere, the power to do harm, the effect of words and actions and inactions on behavior in the market. The Commission needs to pause for a moment and use this incident to do some soul searching. If that exercise is productive, we will all be grateful that this mistake took place.

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CPSIA – Further Developments in Brass Bushings Case

CPSIA – Brass Bushings Petition Rejected – Now What?

Disclaimer: I am in a bit of a rush today, but wanted to get this out to you. I normally give you quotes and citations, but today am working on a deadline. If I get a small detail wrong, my apologies – please correct me. I will try not to put the wrong words in people’s mouths . . . .
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As expected today, the CPSC Commission rejected the petition of Learning Curve to exempt brass bushings in the wheel assemblies of its toy cars. I have written about this several times in recent weeks, most recently issuing my own “ruling”. This innocent request was a loser from the start, not because of any safety issue but because of a very rigid and technical law that caught up brass bushings in its terrible web.

Some quick comments and tidbits:

a. Anne Northup emerged as the beacon of rationality in this debate, constructively offering a lawyer’s argument that the word “any” means de minimus amounts of lead, not none. She pointed out that Congress okayed 300 ppm lead content in substrate suggesting that it considered some amount of lead to be tolerable. Adler called this analysis “brilliant” but disagreed with it, contending that the clear meaning of the word “any” is . . . “any”. [The word "any" is critical to derive meaning from Section 101(b), the lead exemption section of the CPSIA. He also pointed out that the precedent in prior Commission decisions is that "any" means "any". [Who knew they'd read all those old decisions anyhow?!] Mr. Adler dipped into the consumer group handbook and stressed the health dangers of lead and repeated the “no safe level of lead” mantra. [It is hard to defend lead, and I have no intention of doing so, but as a matter of science, I think this is flat out wrong. Aside from the fact that we all consume lead by breathing, eating and drinking every day and must therefore being slowly poisoned with the government's apparent permission, toxicologists will tell you that the dose makes the poison. Thus, there are in fact safe levels for lead, notwithstanding that lead is a known neurotoxin.]

I agree with Adler’s legal analysis and support reading the law using the plain English meaning of the words. I prefer the OUTCOME offered by Northup, but a rational set of laws depends on use of the plain meaning of the words. I am also supportive of respecting precedent if we want to maintain a sense of the Rule of Law. So . . . this means we are stuck with this awful law and its awful strictures until it is amended.

b. I wasn’t the only one who realized that Congress needs to get engaged for the Commission to emerge from this corner. The debate on this topic was vigorous and fascinating. I recommend that you check out the video at your convenience. Adler pointed out that the language of the law is stringent (“rarely seen anything this emphatic”), intentionally so. Nord expressed severe reservations over this removal of discretion, noting that the CPSC is “the expert agency”.

Nord and Northup wanted the vote on the LCI petition delayed or enforcement stayed until the CPSC could seek guidance from Congress or feedback from OMB. Adler would have none of it. He cited the super-majority that voted for the law and expressed the view that Congress didn’t need to hear from the CPSC on this subject because of its decisive action. There were echoes in Adler’s argument of assertions by House staffers that the CPSIA didn’t need amendment because of its “perfect legislative process”, implying an all-knowing, never incorrect or regretful Congress. He said Congress “shot real bullets” and went so far as to state that not only would Congress refuse to act if CPSC approached it, but that it might actually harden its stance ESPECIALLY if the CPSC reached out. In other words, according to Adler, going to the Hill to get relief or guidance might not make things better, it might antagonize them and make things worse. Believe it or not.

c. Northup noted that she was the only Commissioner who has served in Congress and confirmed . . . (are you sitting down?) that some members of Congress do not master every nuance of every bill. Some might not read the bills at all. OMG! Anyhow, she says that the exemption section was likely considered by members of Congress voting for the CPSIA to be a real, if stringent, exemption process, not the inert and impotent process that it has become. This argument did not seem to persuade Adler or Tenenbaum. Adler said he had seen no indication yet that Congress was interested in changes to the law. This got a hot reply from Nord who offered him her file of letters from members of Congress asking for change in the law (including a letter from Senator Klobuchar (MN) specifically on the point of the meaning of “any”).

The meeting veered off in a schizophrenic direction at the end when Northup and Nord asked for a public debate to be scheduled on the meaning of this precedent and its far reaching implications. Adler replied that he wanted to see their “letter” because he said he might be “very sympathetic”.

I found this last exchange extremely confusing. Adler gave me the impression of speaking out of both sides of his mouth. Tenenbaum remained basically silent, which was disappointing, given the importance of this decision and of her leadership role on the Commission. She can provide more leadership to this group than by simply presiding over the meeting. A lack of coordination among the Commissioners or perhaps off-line dialogue seems to be missing. In any event, I may be some kind of political idiot but the Commission’s strategy or even the thinking about how to resolve this terrible impasse is not apparent to me. For them to reject the LCI petition (voted down 3-2, with the deciding vote cast by a MIA Thomas Moore), refuse the opportunity to kick the can down the road by asking Congress for guidance and then to seem interested in reaching out in some way anyhow, left me utterly confused. Should we trust them to guide us home, or are they lost, too? What’s the path forward, and why won’t they ‘fess up to both their problems and their strategy? What happens next and who will protect us? These are troubling questions.

The business community will be understandably horrified and demoralized by this decision. The strict interpretation of the CPSIA has now been blessed by a full Commission. They have hardened on the plain meaning of the law. While the Rule of Law has been upheld, and that’s a good thing, it also means that the worst parts of the law will be respected, too. Thus, the economic destruction that we have been predicting based on the plain meaning of the law was given a boost today by the Commission. If you want to see the future, read the law. It’s all in there. Until proven otherwise, this Commission has yet to signal an interest in going across town to talk to Mr. Waxman and his lot.

Interesting Side bar: Learning Curve apparently brazenly and openly continued to sell these items during the pendency of this petition. That risky strategy involved knowingly selling a product that they believed was illegal (that’s why they asked for an exemption). That’s a no-no, although it had no safety consequences for anyone (as acknowledged by CPSC Staff and certain Commissioners in today’s debate). Notably, Mr. Adler asserted that the CPSC Staff would let their own kids play with these cars even if the kids’ blood lead levels were right at some sort of hypothetical lead “tipping point” – in other words, the cars are perfectly safe, no point denying it. Nevertheless, Mr. Adler upbraided LCI for this procedural faux pas. He cited them for bad “optics”.

Bad optics – after today’s decision, I think that’s something for the Commission to think about.

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CPSIA – Brass Bushings Petition Rejected – Now What?

CPSIA – Scary Brass!

In anticipation of the Learning Curve decision about “dangerous” brass bushings, I thought I would provide some information about the uses of brass in society and its current restrictions.

According to Wikipedia, brass has been widely used since prehistoric times. Of course, brass is used in many places: “Brass is a substitutional alloy. It is used for decoration for its bright gold-like appearance; for applications where low friction is required such as locks, gears, bearings, doorknobs, ammunition, and valves; for plumbing and electrical applications; and extensively in musical instruments such as horns and bells for its acoustic properties. It is also used in zippers. Because it is softer than most other metals in general use, brass is often used in situations where it is important that sparks not be struck, as in fittings and tools around explosive gases. Brass has a muted yellow color, somewhat similar to gold. It is relatively resistant to tarnishing, and is often used as decoration and for coins. In antiquity, polished brass was often used as a mirror.” Other sites tout brass for its utility for plumbing, its most ubiquitous use.

It’s obvious that children will encounter brass regularly in their daily lives, like when they handle doorknobs or handle keys. The even-handed CPSIA, as administered by the new “common sense” CPSC, seems nonetheless to place an unusual burden on those knuckleheads like me still left in the children’s market. WE are not allowed to use brass with more than 0.03% lead content by weight (300 ppm), falling inevitably to 0.01% lead by weight (100 ppm) in two years. Here are a couple more “fun facts” about brass: brass typically has 2% lead by weight AND 90% of brass alloys (including bronze) are recycled. In other words, it is hard to control the lead content of this environmentally-friendly metal. Hmmm.

We know that brass pipes are used for plumbing everywhere, even in Mr. Waxman’s house. Children will come in contact with brass when they wash their hands in warm water that travelled through brass pipes or drink from the drinking fountain at school. Oops, did I mention high levels of lead in drinking fountains? Like the 92% in LA Unified School District Schools that remain unrepaired to this day? Sad but true. The LAUSD situation is apparently not NEARLY the crisis presented by brass bushings or brass connectors in toys, clothing or shoes. The CPSIA in its infinite wisdom has determined that children’s businesses should close or their owners should go to jail if they use such things – but other uses of brass in daily life are fine, just fine.

But what about brass in those other uses – are they restricted at all? According to Wikipedia, keys must now contain less than 1.5% lead by weight in California to avoid Proposition 65 labeling. To clarify, keys with greater content than 1.5% are still legal to sell in CA but would need to be labeled under Prop. 65. The approved lead content in keys is 50x the legal limit on lead content in brass in children’s products. Yeah, that makes sense. And in California and in Vermont, brass plumbing fixtures and pipes used to convey water for human consumption must have not more than 0.25% lead by weight by January 1, 2010 – 9x the legal limit on lead in brass in children’s products. [The CA limit is a weighted average, so individual components can exceed this limit.] I do not believe this law requires retrofitting existing California’s pipes. The current limit on lead in California pipes is 8% by weight, a mere 267x the legal limit on lead content in brass used in children’s products.

I cannot find any other restrictions on brass in any products in our country. I probably missed something but no restriction will exceed the zeal of the CPSIA. It is unique as a regulation, both for its sense of sanctity and its overreaching, penal ineffectiveness. Trumpets don’t have legal lead limits, despite being made of brass and intended to be mouthed. Leaded fountains remain in schools across the country, and bad plumbing is everywhere. Nonetheless it is the children’s product industry alone that must endure upheaval from the loss of brass as a basic material. Need I mention that brass was at the heart of the pens crisis earlier this year?

When the CPSC makes its inevitable decision to shut down Learning Curve’s business over its use of brass bushings, they will intone that it’s not their fault, the darned law made ‘em do it. The leadership will then later issue some press releases about vigorously enforcing the law and making everyone safe. There will be no acknowledgement of their role as a tool in the wanton destruction of a valued industry. Not their fault. . . .

Wake me when the nightmare is over.

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CPSIA – Scary Brass!