CPSIA – Besides THAT, Mrs. Lincoln, How was the Play?

776 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 34 days left until Election Day.

The Cato Institute published its study of the Foreign Manufacturers Legal Accountability Act yesterday entitled: “‘Consumer Safety’ Bill Could Boomerang Against U.S. Manufacturers”. I have written about this latest self-destructive attack by Congress on our economy many times in the past.

[I am beginning to think of this Congress as some form of national auto-immune disease. Is there a pill we can take to get rid of it? If only . . . . The "pill" is called voting on November 2nd.]

Here’s the conservative think tank’s take on this legislation in a nutshell:

“Americans damaged by faulty products, whether made abroad or domestically, should be able to seek compensation through the courts. But the approach advocated by supporters of the FMLAA would not solve the problem. It would create a false hope of collection for damages while bypassing existing procedures that have proven to work in most cases. The approach would potentially violate constitutional protections available to citizens and non-citizens alike as well as existing commercial agreements with other nations. It could potentially disrupt global manufacturing supply chains, putting American production and employment in jeopardy.”

Now that’s a good reason to vote sponsor Betty Sutton (D-OH) back into office, isn’t it?

But then there’s the inflamed EU, Canada, WTO, importers, blah blah blah. Who cares? Not this Congress. I am told now that the FMLAA will not be addressed before the Election, but watch out for the lame duck session.

Nice of Congress to keep us on our toes with threatening legislation pending all the time. Really nice. I wonder if there’s time to send out another solicitation for funds for the Republicans tonight . . . .

Read more here:
CPSIA – Besides THAT, Mrs. Lincoln, How was the Play?

CPSIA – Freedom of Information Act Request – Follow-up

As sent today:

Dear Sir,

It has now been almost two months since I submitted the below request for information under the Freedom of Information Act. Your office acknowledged receipt of this request on April 1 and stated the following:

“Due to certain procedural steps we are required to take under our statute, there may be delays in providing the records. Please be assured that every effort is being made to process each request as equitably as possible, and that the records or information that you have requested will be made available to you at the earliest possible date.”

My request relates to pending legislation currently under consideration in the U.S. House of Representatives. As such, the request is both relevant to the development of this legislation and rather time-sensitive. The public has a right to know about these documents. Disclosure of these documents is in the public’s interest – transparency in how we are governed is a paramount interest of U.S. citizens. The disclosure of these documents are very relevant to the development of the Consumer Product Safety Enhancement Act, the subject of a recent hearing by a subcommittee of the House Committee on Energy and Commerce. I testified at that hearing.

Notwithstanding the assertion in the April 1 letter above, the requested documents have not been disclosed yet. This is especially disappointing as the documents involved in this request are few, easily-located and in the possession of very few, easily-identified people at the CPSC. The effort to gather, review, redact (if necessary, which seems unlikely), duplicate and transmit these documents is almost certainly inconsequential. I find the delay inexplicable and inexcusable under your statute.

I urge you to rapidly comply with this request for disclosure. As I noted in my original request, your agency’s rules demand it – “disclosure is the rule and withholding is the exception.”

Thank you for your prompt consideration of this matter.

Richard Woldenberg
Chairman
Learning Resources, Inc.

——————————————————————————–
From: Rick Woldenberg
Sent: Tue 3/23/2010 3:44 PM
To: ‘cpsc-foia@cpsc.gov’
Subject: Fast Track FOIA Request Relating to Draft House Legislation Know as “Consumer Product Safety Enhancement Act of 2010”

I am making this document request pursuant to the Freedom of Information Act and 16 CFR §1015. I would like to receive copies of all documents (written or electronic, including notes and staff briefing packages) relating to (a) interactions between Chairman Inez Tenenbaum and/or Commissioner Robert Adler and/or their staff and the House Committee on Energy and Commerce (and/or staff associated with that committee or its members) relating to the Consumer Product Safety Enhancement Act (CPSEA), and (b) any CPSC legal analyses or legal opinions relating to the CPSEA. Since the CPSEA is presently being circulated in draft form on Capitol Hill and since the committee’s staff is seeking feedback from various stakeholders at this time, time is of the essence for this information request. Please accord this request “fast track” status.

In making this request, I note the following statement in 16 CFR §1015(b): “The Commission’s policy with respect to requests for records is that disclosure is the rule and withholding is the exception. All records not exempt from disclosure will be made available. Moreover, records which may be exempted from disclosure will be made available as a matter of discretion when disclosure is not prohibited by law or is not against the public interest.”

My contact information is found below. Thank you for your cooperation.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.

Read more here:
CPSIA – Freedom of Information Act Request – Follow-up

CPSIA – Sample Letter to the House re Waxman Amendment

This is the letter I am sending:

“Vote NO on the pending Consumer Product Safety Enhancement Act of 2010 (CPSEA)! This legislation fails to address the critical issues confronting small businesses and children’s product manufacturers under the CPSIA. Without genuine reform, implementation of the CPSIA will choke off commerce in this marketplace, especially for beleagured small businesses.

True relief will only come if the CPSIA is amended to restore to the CPSC Commission true authority for risk assessment. In addition, a reduced age limit under the law and more focused (less extensive) testing is necessary to restore balance to the market. A full hearing featuring testimony from affected regulated companies will set the record straight on the pain points of this two-year-old landmark legislation.

With out-of-control CPSC rulemaking now totalling almost 2500 pages and growing seemingly every day, the CPSIA implementation has now surpassed every company’s ability to process and master. The law has become incomprehensible as new rules piled upon old rules are causing gridlock and widespread economic loss. Without decisive Congressional action to restore common sense to this unrelenting crisis, small businesses and big businesses alike will have to exit the children’s market permanently.

This loss of supply will greatly harm consumers (including schools and teachers) and will cost thousands of jobs.

Save the children’s product market – vote NO on the CPSEA and demand true reform to fix the CPSIA once and for all.”

Read more here:
CPSIA – Sample Letter to the House re Waxman Amendment

CPSIA – New Waxman Amendment Draft Issued Tonight, Mark-up Set for Wednesday Morning

The third draft of the Waxman Amendment 2.0 was released this evening. I have attached a clean copy of the legislation, as well as a redline for your convenience. The powers-that-be also released a draft of their “report language“. The report language is interpretative language and is not included in the law mainly to keep future law clerks busy doing research. It should also give us something new to argue about.

This is the Committee Briefing Memo accompanying the draft legislation.

Consistent with past practice, this draft was issued with the usual coercion. A mark-up has been scheduled for Wednesday AM 10:00 a.m. in Room 2123 Rayburn House Office Building BUT the Dems will decide tomorrow if they will proceed with that process. All talk of a hearing to vet this legislation has been quashed by the Dems who are scrupulous in managing the record. [I will never get to testify, that's for sure.] There will be a meeting on Tuesday at 4 PM to discuss this draft, at which point the Dems will either pull the plug or move forward. Presumably, this depends on the enthusiastic response to this draft. The Dems say they want a bipartisan bill and further want to send it to the Senate with the news that the bill is “supported by industry”. In other words, Mr. Waxman is not interested in negotiating with the Senate, just wants their rubber stamp. He’s not big on “jawboning” if that means he has to listen to others and make concessions . . . .

You are right to consider this another patented Waxman “take it or leave it” offer.

In response to complaints that this bill ignores the many legitimate concerns of the small business community, Waxman staff has advised that they “can’t help everyone”. That means you, guys.

Changes in this Draft:

a. Functional Purpose “Exception” – Minimal changes, mainly reverting back to the “public health or safety” test formulation. References to “all foreseeable users” is gone now. The “town hall” provision allowing “interested parties” to intervene in every proceeding has been eliminated. The “Previously Denied Petitions” provision is unchanged and still makes no sense.

The report language clarifies the meaning of “practicable”, noting that excessive or unreasonable costs should be considered not “practicable”. Specifically, they note: “The Committee does not consider a mere increase in the cost of manufacture or production, in itself, to be excessive. The Committee does expect that the Commission will consider compliance to be impracticable where compliance would place the viability and continuation of a class of products or materials in jeopardy, such as youth All Terrain Vehicles or youth bicycles made with recycled steel.” [Emphasis added]

In case you were wondering about the purpose of the functional purpose exception, it is a gift to the noted industries. It’s not for you. Remember, this relief is only available to those who are capable of mounting an exception application. Not a small undertaking.

Remember that the applicant for a functional purpose exception must apply for relief for a “specific product or material”. You must also PROVE that your costs are not “practicable”. Can you see some wiggle room there? A true believer Commission might have very little incentive to interpret these terms permissively. [You can count on that one with the Dems in charge.] This will be a costly and technical process. Think of this in the context of your business – is this realistic? With our 1500 products, it’s just inconceivable. Too bad for us. Let’s also not forget the stringency of the three-prong test.

The report language specifies that a “measurable adverse effect” on public health or safety refers to changes in blood lead levels. The language is pretty specific and will require a toxicologist’s report to justify any exemption. Here are the magic words: “Given that there is no current blood level at which the scientific community considers lead exposure to be ‘safe,’ the Committee understands that a very small adverse effect may theoretically occur at any level of exposure. The Committee intends, however, for the Commission to deny requests for exception under this section as having a ‘measurable adverse effect’ on health or safety only in the case of those adverse effects that the Commission determines to be empirically, as opposed to theoretically, measurable. At present, the Committee understands that there is scientific consensus to interpret the phrase ‘measurable adverse effect’ from lead exposure to mean a measurable increase in blood lead levels.“

This is a form of legislative filter to make sure that the exception is only for the chosen industries or companies. Again, this isn’t meant for small fry, just big business. That’s equity these days, I guess.

Anyone remember how hotly the Dems defended the inclusion of ATVs and bikes in this law back in ’08 and ’09? It was intentional, they insisted, necessary to protect the public against deadly lead. There’s no safe level of lead, blah blah blah. Guess they got over that one . . . after they received 170,000 emails from ATV’rs.

b. Thrift Store Relief: Virtually no change, other than minor clarifications.

Not unlike the workings of other parts of the CPSIA, this new provision will be good for large scale thrift organizations like Goodwill or Salvation Army who are presumably able to centrally evaluate complex laws and implement system-wide responses to changes in law. i wonder how the smaller independent Mom-and-Pops will react to this provision. In any event, the provision tacitly bans resale of children’s jewelry, painted toys and vinyl children’s products. Stores will have to keep straight which items are in and which are out. With many resale stores staffed with minimum wage workers, I question how effectively most owners can prevent violations without just avoiding the category (at least in part).

Resale of childcare articles, including cribs, seems unaffected. The real gotcha is the risk the stores will bear from recalls. For that reason, I think many stores will stay away from reselling this category of goods. Clothing may make a reappearance in resale shops, finally.

It is uncredible that the Democrats let this industry flap in the wind for almost two years before acting to save them from CPSIA oblivion. Think of the economic devastation these insensitive legislators wrought on small businesses all America, not to mention the patrons of this important industry – through two cold winters. This is just inexcusable, a true demonstration of stubbornness or being completely out of touch. Those who suffered at the hands of the Dem inaction have no recourse, either. Shame, shame.

c. Relief for Small Batch Manufacturers: The sham of this “relief” is perpetuated in this new draft. The definitions of “covered products” and “Small Batch Manufacturer” were left structurally intact but the thresholds were tweaked upward meaninglessly to 7500 units or $50,000 sold per item per (calendar) year, with an overall cap of company sales of $1 million. “Covered Products” oddly continues to refer only to manufactured items but Small Batch Manufacturers are defined by sales of manufactured OR imported goods. Go figure.

As I pointed out earlier today, Mattell and Hasbro have quarterly revenues of $880 million and $672 million, respectively. The so-called relief here is for companies with annual revenue of under $1 million. If these little companies pop over that revenue hurdle, they will be held to the same standard as Mattel and Hasbro. Don’t worry, the CPSC plans to coach the little guys! Now if only they could provide non-recourse financing . . . .

Even if you are salivating over this pathetic crumb of “relief”, I encourage you to reread what goodies Mr. Waxman is giving you. Here’s the meat of it: “Any such alternative requirements shall provide for reasonable testing methods to assure compliance with the relevant consumer product safety standards.” The reasonable TESTING METHODS must ASSURE COMPLIANCE. You tell me what this English sentence means. I think it means the small fry will be testing. I know the rest of us will, too. Testing and testing and testing and testing. It’s time to buy stock in Intertek, I think. Later on, the bill instructs the Commission to work “cooperatively” with the little guys to “impose the least burdensome testing requirements . . . consistent with goals of statute.” And those goals are, what exactly? Comprehensive, prophylactic testing.

Oh, the bounty of this relief!

d. Phthlates and Inaccessible Components: No material changes.

e. Subpoena Power: No changes whatsoever. Somebody’s going to be sorry someday that this procedural speed bump was removed. Unfettered power of government was always un-American . . . until we met these Democrats.

Conclusion:

I wish I could recommend this bill. It has some good stuff in it. Unfortunately, it is utterly ineffective to arrest the damage being inflicted by the CPSIA. It is a gift to large industries but leaves the hammerlock on American small businesses catering children’s markets. It sustains the fantastic notion that those of us in this business have somehow been poisoning kids for years or decades. That’s a slanderous notion, something deeply offensive to me, but for the Dems to admit otherwise would mean a mea culpa. And there’s no chance of that.

If the Dems manage to tempt enough corporate entities to sell out for this low price, it will be the biggest gift ever given by the corporate community to Mr. Waxman. He should host a champagne party for himself if he buys off the resistance. There will be no remaining organized opposition to the bulk of his CPSIA handiwork, and the focus will shift to surviving a manic CPSC bent on enforcing voluminous but ineffective safety rules and ladling out massive penalties for infractions without injuries. And once the action moves permanently to Bethesda, we’ll see finally how much Cassandra got right.

I’m not looking forward to finding out. Vote NO on Waxman.

Read more here:
CPSIA – New Waxman Amendment Draft Issued Tonight, Mark-up Set for Wednesday Morning

CPSIA – "Anchoring" in the Waxman Amendment

The concept of “anchoring” is well-known to experienced negotiators. Make an outlandish initial proposal, and afterwards, all further negotiation is relative to that initial offer. The context of the negotiation is reset by its starting point notwithstanding the nature of the problem being negotiated. This clever technique is a great way to engineer a favorable outcome in a negotiation by “compromise”, all while leaving your negotiating partner totally in the dark that they have been snookered.

Mr. Waxman wasn’t born yesterday and is playing the disorganized corporate community like a maestro. The Waxman Amendment 2.0 is a classic case of anchoring. As his staff slowly compromises away most (but not all) of the legislation’s obnoxious provisions, the corporate community seems to be forgetting what is really at stake and how low a price it would be accepting to go away.

Rumors are that this amendment could go to a vote as soon as this week. Forget the idea of a hearing – that was just another head fake by Waxman staffers trying to lull us all to sleep. We hold our fate in our hands as this amendment may essentially kill off resistance to the CPSIA.

The Waxman Amendment offers slight and attenuated relief on some relatively insignificant provisions of the underlying bill, namely elimination of the cost of testing internal components for phthalates and prospective application of the proposed August 2011 100 ppm lead-in-substrate limit (which must first clear OTHER hurdles before it becomes law). The total cost of the internal component phthalates testing is trivial in the context of testing costs imposed by the law. The impact of prospective application of the 100 ppm limit, with its long lead time, seems to be virtually nil in reality. What did Warren Buffett say about picking up nickels in front of a steamroller???

By selling out for the measly offerings of the Waxman Amendment, we would be setting quite a low price for the misery and years of pain that the CPSIA is certain inflict. Is that all it takes to buy us off?

Don’t bite at Mr. Waxman’s bait. Stand strong, demand real hearings, and if he won’t act, wait him out. What price for your kingdom? The Waxman Amendment isn’t that price, whatever it is.

Read more here:
CPSIA – "Anchoring" in the Waxman Amendment

CPSIA – AAFA Op-Ed in Roll Call on Anniversary of CPSIA

Paper Is the Right Choice for Clothes and Shoes: Marking One Year of the CPSIA Aug.

See the original post:
CPSIA – AAFA Op-Ed in Roll Call on Anniversary of CPSIA

You Learn Something New Everyday

When I first heard about the Consumer Product Safety Improvement Act (CSPIA), I wasn’t too concerned because I knew that our products were already well in compliance of the established levels – even far below them.

I knew this because, from the beginning, we have been committed to meeting global organic standards and sourcing materials that are safe for the environment, for workers, and for babies. So why would a company whose very mission it is to use safe, organic materials have to test for lead?

Upon doing my due diligence, however, I learned that we are affected by the CPSIA. I was astonished and I started doing everything I could to let my Senators and Representatives know how I felt about this law and how it impacts my company.

I sent letters, faxes, and emails only to receive canned responses about how proud they were of this new law or, sadly, no replies at all.  Not once did anyone of them acknowledge my concerns.

I’ll admit that it has been many years since my government civics class, but last time I checked we do vote these people in office and they are not only supposed listen to us, but also represent our interests.

And when I go to the CPSC website and (at last count) see that there are over 60 documents in reference to this one law I wonder if any of these Members of Congress are even paying attention?

Their methodology of sweeping any product intended for children 12 and under into a law, then setting completely unrealistic deadlines and guidelines is deeply flawed. Add to this that the CPSC now has to pick apart this law piece-by-piece in order to determine how to oversee compliance and it doesn’t seem like the ideal way to handle product “safety,” does it? If they actually wanted businesses to comply with the law and products to be “safe” they would have taken a much different approach.

So the question I started to ask was how on earth did this piece of broad-based legislation pass without really much mention?  And with a little bit of research I found some startling information. For reference, you can find information about the origins of the bill here and here. Since Government Tracker claims to not be affiliated with any government agencies and hopefully no public interest groups I feel somewhat confident sharing the link where I learned the information below.

While doing my research, I found an interesting statement regarding HR 4040: Dec 19, 2007:

This bill passed in the House of Representatives by roll call vote. The vote was held under a suspension of the rules to cut debate short and pass the bill, needing a two-thirds majority. This usually occurs for non-controversial legislation. The totals were 407 Ayes, 0 Nays, 25 Present/Not Voting.

Non-controversial legislation? Well, this is news to me!  Maybe at the time this was considered “non-controversial” because no one knew about it, but this law is anything but non-controversial.  Just last week, Nancy Nord (the Acting Chair at the CPSC) was blasted by my Senator from Illinois.  I’m not kidding – the actual title of the post is “Durbin Blasts CPSC Chair for Recent Comments on Criticizing New Consumer Safety Laws”.

There are letters going back and forth between Senators and Representatives and the CPSC and there is name calling and finger pointing yet no progress.

People always say, “you learn something new every day,” and it seems that no matter where I turn in this process, I am learning something new whether I like it or not.

Progress must be made and this law must be changed which is why I feel it is so important to be in Washington at the rally.

Looking forward to meeting many of you in DC!

Jennifer

Chapter One Organics

OHV Lead Ban Reversal Legislation

Here is the introduction to an article from MotorcycleUSA.com about the news bills that would help the industry continue to sell their bikes:

The Motorcycle Industry Council (MIC), along with the Specialty Vehicle Institute of America (SVIA), have announced their support for two new bills – S. 608 and H.R. 1587 – that would overturn the ban that resulted from the Consumer Product Safety Improvement Act (CPSIA) of 2008, aka the Lead Ban, which brought the sales of off-highway motorcycles and ATVs designed for kids 12 and under to an abrupt halt on February 10, 2009.

Read the article in its entirety here.

ALA: U.S. Rep Fortenberry’s Legislation Will Protect Books from Regulation

Today from the ALA’s Washington Office District Dispatch:

Nebraska congressman introduces bill to amend consumer safety act

FOR IMMEDIATE RELEASE
CONTACT: Jenni Terry

WASHINGTON, D.C. – The American Library Association (ALA) supports legislation introduced by U.S. Rep. Jeff Fortenberry (R-Neb.) yesterday to amend the Consumer Product Safety Improvement Act (CPSIA) to exempt ordinary books from the lead limit within the act.  This is a welcome step toward ensuring libraries will not be adversely affected by the law.

To read the entire article, click here.

Printing Industries Urges the CPSC to Exempt Children’s Book and Printed Materials

In this Special Edition of Imprint, the Printing Industries Urges the CPSC to Exempt Children’s Books and Printed Materials:

“Printers have been caught up in government red tape that was never intended to regulate printed material. New regulations meant to keep children’s toys safe from dangerous chemicals will also apply to books and other printed material, resulting in the delay of shipments and enormous testing costs for printers. Although the statutory deadline to comply with the new testing requirements is February 10, 2009, most retailers and other print customers are already requiring certificates verifying test results, prior to the issuance of testing guidance from the Consumer Product Safety Commission (CPSC). Printing Industries is working with industry allies the Association of American Publishers, Book Manufacturers Institute, Magazine Publishers Association and others to exempt ordinary books and printed material from the new law.”

More: imPrint: A Weekly Legislative Update from the Printing Industries of America