CPSIA – Hey Republicans, You Aren’t Allowed to Think!

During the July 7th House Energy and Commerce Committee’s Oversight Subcommittee hearing on regulatory reform among independent agencies (a hearing which presumably prompted Obama’s Executive Order two business days later), Ranking Member Diana DeGette (D-CO) trotted out one of the most common arguments against change: “I want to talk . . . about the recent proposals on the other side of the aisle that would undermine the Consumer Product Safety Commission and some of the other good work that they’ve done.  Three years ago, this Committee and this Congress worked hard in a significantly bipartisan manner to put meaningful reforms for consumers into the [CPSIA].  This has yielded unbelievable benefits. . . . So I think it’s important to know this, that these reforms were worked out by this Committee in one of the last great efforts that was completely bipartisan.  We should embrace that.” This is a familiar argument by Dems.  The law passed almost unanimously, guys, so it’s wrong to try to change the law now.  What logical point is DeGette making here?  How is this argument supposed to persuade us? At first, I thought the Dems were simply arguing the infallibility of Congress.  Congress never errs, so how can we doubt something every Congressman voted for?  Congress is all-knowing and cannot pass a bill without doing the right thing.  [And as Obamacare indicates, Congress apparently doesn't even need to read the bills to get them right.] To argue that this law is a product of infallible judgment is quite a leap.  Even the unanimity of the law hardly explains the mental state of Congress at the time.  Congress was ANGRY.  Have you ever said or done anything in anger you later regretted?  ‘Nuf said. No, an infallible Congress cannot be what Ms. DeGette is pushing.  Actually, I think it’s far simpler.  She is saying that the Dems were right and are still right and have no need or interest in changing their position.  She points out that the two parties agreed on the law’s text in 2008 and passed it almost unanimously.  Now the Republicans want to make serious changes.  She says the Republicans should return to their bipartisan brothers, the Dems, and support the work they did three years ago.  She essentially calls into question the motivation of the Republicans in opposing the Dems now, suggesting that this is a by-product of a broken Washington, where partisan posturing is all we can expect from these people. At the heart of her reasoning is the fact that the Dems are holding their course behind the law, and the Republicans have moved, and now she wants the Republicans to be more “bipartisan” by returning dutifully to agreement with the unwavering Dems.  Or is it the intransigent Dems?  A matter of perspective, I suppose.  Come back to the fold with the Dems!  DeGette’s argument relieves the Dems of any obligation to reconsider ANYTHING.  How convenient.  How Waxman-like. Here’s something the Dems won’t tell you – the law was jammed down the throats of the Republicans in both Houses of Congress.  Congress was controlled by Nancy Pelosi at the time (she of San Francisco, of course).  The CPSIA was purpose-built for getting Democrats elected and was not negotiated with the Republicans in any sense you would recognize.  On the national stage, the Obama wave was cresting at that time, too, so what do you think the political calculation was in the Bush White House and in the Minority ranks in either House on the CPSIA?  The Republicans knew that any opposition to any aspect of this law, regardless of how awful, would mean attack TV commercials on support for children’s safety at a time of great electoral vulnerability. Bush agreed to sign the bill to protect his party, not to protect kids.  At least it neutralized a possibly existential political threat.  Each Republican Congressman or Senator had to make a similar political calculation.  Only four people (Ron Paul and three Senators) were politically courageous enough to stand up against this excessive bill.  It is certain that far more than four members of Congress found fault with the CPSIA at the time.  The 2008 “great bipartisan effort” that DeGette romanticizes is an urban legend, a fiction, a fairy tale, a story.  She wants to cow the Republicans into losing their political nerve at this critical juncture when some kind of momentum behind our position may actually be growing.  She wants them to think ballot box. And for those of you who pepper me with defense of Dems or reminders of past Republican “sins”, all I can say is this:  the Republicans have nothing to gain politically from their three-year effort to right this wrong.  They are taking electoral risks to help us, and have been unwavering in their support of our mission. I can only believe that this is because they actually are trying to do the right thing.  This has never been about policy or safety. The Republicans know that this issue has been played for political gain by the Dems with no remorse over the devastation they have wrought to your businesses, your markets or job creation.  For them, it’s just too juicy an opportunity to get reelected.  And if that’s so, it must be the reverse for the Republicans. The Republicans are taking this risk on your behalf, for your benefit. I hope there’s a nice occasion to say “thank you”.  In the meantime, the likes of Diana DeGette must be vanquished.

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CPSIA – Hey Republicans, You Aren’t Allowed to Think!

CPSIA – Fait Accompli

Tomorrow the stage is set for the ultimate triumph of the Waxmanis:  the predicted approval of the 100 ppm lead standard by 3-2 party line vote.  The three Democrats will express regret, saying that Congress forced them to do it, and calling on Congress to let them make this standard prospective only.  They will no doubt also assert that this is good for all of us, given that “there is no safe level of lead”, that old chestnut unsupported by any injury data. No doubt the 100 ppm lead limit will fix all of these imaginary problems.  The Republicans will note the pointlessness of it all, and remind us of the cost of the provision.  Jobs will be lost.  The Republicans will be right, but the Dems have a political agenda to implement, and you will be sacrificed.  Mr. Obama’s Executive Order will not give the Dems pause. After three years, I am numb to this behavior.  The Dem Commissioners are and have always been beyond reach, unimpressed by reason or data.  That comes from a strong conviction of the correctness of their position with no need to reconsider.  As Bob Adler’s testimony at the Oversight hearing on July 7th indicates, the Dems are ever ready to defend the CPSIA faith.  [Check out the testimony given in questioning by the estimable Jan Schakowsky.]  Data, schmata. For those of you who have expended energy, or committed resources, to providing information to the CPSC after three years on this provision (comment letters, testimony, etc.), please note that it was all a set-up.  The decision facing the Commission is whether the 100 ppm lead level is “technologically feasible”. The legislative definition of this term of art does NOT take into consideration cost, perhaps because every life is precious and of infinite value.  It does not matter what it costs to comply, only whether it is somehow possible.  CPSC Staff confirms that everything can be made without lead using this definition however absurd.  So the Dems have no reason to vote against the new standard.   No reason . . . .   Consider the views of the American Apparel and Footwear Association in a letter dated July 11, 2011 on this topic: “We strongly urge the Commission to declare that it is not technologically feasible to meet the 100ppm standard for the simple reasons that:  (a) it is impossible to meet a standard retroactively; (b) compliance cannot be assured because of continued issues with material variability, especially with metals; (c) compliance is complicated by the regulatory uncertainty generated by the technological unfeasibility issue as well as the ongoing delay in the so-called “15-month rule”; (d) the new standard will impose significant costs on manufacturers, costs which disproportionately affect smaller companies; and (e) inter-lab variability, especially at the lower limits, make consistent compliance impossible.” Details, details – the Dems DON’T CARE.  Tomorrow the Commission will enact an egregiously out-of-whack rule from a cost-benefit standpoint a mere two days after Obama ordered the CSPC by name to review all rules for being overly burdensome.  Yawn.  After three years of this, what else would you expect?

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CPSIA – Fait Accompli

CPSIA – The Cost of Government Regulation Examined

I recommend that you check out Wayne Crews’ article in Forbes dated July 6 entitled ” The Cost of Government Regulation “. This article predates the recent House Oversight hearing or the Obama Executive Order on Independent Agencies and Regulatory Reform. Mr. Crews cites regulatory costs in excess of $1 trillion for this excess ($1.4 trillion for the self-destructive overreaction to Enron, Sarbanes-Oxley alone). Costs of this magnitude makes cost-benefit analysis something of joke. He notes: “Agencies think within their squares and have conflicts of interest in assessing their own benefits. Regulators can ignore the opportunity costs and moral hazard they create. Even now they are in the process of distorting entire industry structures via limiting access to energy, antitrust regulatory abuse and “net neutrality” rules in telecommunications and government “stimulus” with regulatory strings attached.” Enough already!!!

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CPSIA – The Cost of Government Regulation Examined

CPSIA – Letter to CPSC re Executive Order on Regulatory Review

President Obama issued an  Executive Order yesterday instructing the CPSC to institute “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”   Notably, the order specifies “allowing interested members of the public to have a meaningful opportunity to participate in rulemaking”. In the White House blog announcing the Executive Order, Inez Tenenbaum is quoted as follows:   “Earlier this year, I directed agency staff to reinvigorate CPSC’s voluntary review process, which is intended to look at ways to maximize openness and public participation, and effectively review substantive regulations that may require revision, repeal, or strengthening . . . . I believe this approach is consistent with President Obama’s call for a sensible and streamlined regulatory system that is protective of public health and safety, and I look forward to working with the President and Congress, as appropriate, as our review process moves forward.” As you know, I have participated in CPSC public forums numerous times in the last three years, in addition to testifying before a House subcommittee twice on the CPSIA.  I have testified at the CPSC at least five times by my count, several times at the invitation/request of the agency.  I have done so at my expense.  In each case, I believe my testimony was disregarded.  My positions on the CPSIA have been publicly documented, principally in my blog which I know you read.  My positions have been consistent and backed up by data open to anyone’s review.   Now that the CPSC is subject to an Executive Order demanding real public input, I call on the agency to break with its past of disregarding inconvenient opinions or those that may subvert a political agenda, and allow the public to participate MEANINGFULLY in this critical process.  Those of us who have attempted to stop the CPSIA train wreck have been thoroughly marginalized by a process that uses us to create an impression of public dialogue without actually taking any meaningful feedback or adjusting any preexisting plans.  The President did not order the agency to provide a public forum for VENTING.  He has ordered the CPSC to afford the public a “meaningful opportunity to participate in rulemaking”.   To me, the Executive Order means that when we present reasoned arguments with actual data, the agency has NO OPTION other than to listen and take into account our views.  There is nothing in the Executive Order that indicates that consumer groups speak for the public or should be accorded extra weight in your deliberations, nor that manufacturers are somehow excluded from the group considered to be “the public”. It is time to recognize the legitimacy of the views of those of us who create much-needed jobs.    With that in mind, I call your attention to a blogpost I wrote on cost/benefit analysis of CPSC decisions and policies under the CPSIA.  Please see my post ” Do Accidents Happen? ” dated June 29th.  In this post, I explain that, as a matter of accepted economic theory and legal theory, the policies and decisions of the CPSC in the wake of the CPSIA have crossed the line into inefficiency and bad public policy.  This is PRECISELY the issue that the President has charged  the agency with investigating and resolving.  Speaking as a business owner in the field of children’s products, I can assure you that time is of the essence.  Every day counts at this point  as the cumulative impact of three years of CPSIA duress has taken a terrible economic toll with virtually no identifiable public health benefit. Writing a law with noble intentions does not ensure that it will be good law or one that benefits society.  In the case of the CPSIA, the issue has never been “What price safety?”  A failure to effectively enforce the law prior to the CPSIA never constituted a need for new safety rules anymore that a failure to enforce traffic laws means that we need lower speed limits.  New approaches to enforcement, perhaps, but new standards, no.  The question today is “What price survival”? Businesses and markets have been punished mercilessly in service of the CPSIA but to what end? President Obama’s order comes after years of public outrage over regulatory excesses and significantly, was issued shortly after a House Oversight hearing featuring two CPSC Commissioners examining the question of economy inefficiency in rulemaking.  I fully believe that the agency can never fix this mess without taking a strong stance on real CPSIA reform. The CPSIA took away the agency’s right to assess risk, not its ABILITY to assess risk.  This is a truly counterintuitive approach to safety, as safety is all about risk management.  There is no logic to this approach which sadly renders the expert opinions of the CPSCs legions of Ph.D.s meaningless at critical junctures for my market.  I am frustrated, to put it mildly, that ALL CPSC Commissioners do not regularly protest this subversion of process and responsibility.  This problem is at the core of the issue with the CPSIA and should be offensive to Democrats and Republicans alike.  The failure of any Commissioner to demand the right to exercise his/her honest judgment is akin to acknowledging that they do not trust themselves to act prudently and in the interest of the public.  Do the Commissioners really believe that taking away their authority is necessary to ensure sound decision-making?  That reasoning never worked with my teenagers.   Resolving the issues that the President has ordered the CPSC to examine will certainly require the exercise of judgment.  It is inescapable that the Commission must be prepared to deliver this unpleasant news to Congress for better or worse.   I look forward to a meaningful public process investigating these issues, and pledge my support and engagement in this process. I want to be helpful but ask in return that the agency turn over a new leaf and let rational arguments supported with data influence outcomes in CPSIA rulemakings and policies. Please do not hesitate to contact me with your comments and questions.  Thank you for considering my views on this important subject. Respectfully, Richard Woldenberg Chairman Learning Resources, Inc. Vernon Hills, Illinois

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CPSIA – Letter to CPSC re Executive Order on Regulatory Review

CPSIA – The Axis of Misinformation

CPSC Spokesman Scott Wolfson wants you to read an article: Scott_Wolfson: If #opengov #gov20 are important to u, pls read this LATimes column: http://t.co/MrrgGwO #SaferProducts.gov #cpsc  [From Scott Wolfson's Twitter feed] Wolfson refers you to a hatchet job by David Lazarus of the LA Times  on the CPSIA Product Database. I have taken issue with the blather emitted from Lazarus’ PC in the past.  In his latest example of irresponsible journalism, endorsed by the CPSC, Lazarus displays his studied ignorance of the issues relating to the database. His lack of research certainly didn’t prevent him from making declarative statements. Wolfson wanted to be sure you didn’t miss it. Lazarus ponders what the issues could possibly be with the controversial database:  ” You’ve got to wonder why businesses are fighting so hard to keep this resource away from consumers. Is it because their fears are justified that we’ll misuse this tool (all evidence to the contrary notwithstanding)? Or is it because the last thing they want is a consuming public armed with the latest and most thorough information on the safety of their goods? And if it’s the latter, you might now ask, what are they trying to hide? ” I cannot think of any objections to the database other than self-interest, can you?  It’s all a conspiracy, as anyone on the Left can tell you.  Businesses have so much to hide!  And did you know that evil billionaires are against the database?  Lazarus sorts it all out:  “Koch Industries — run by billionaires Charles and David Koch, who are active in conservative causes — also reported spending more than $200,000 lobbying against creation of the database.”  Lazarus asserts that it is significant that Members of Congress aligned against the database also received campaign contributions from businesses.  [Can you find a single member of Congress who has NOT taken contributions from businesses or business people?  Just curious.]  Lazarus notes that both Reps. Emerson and Pompeo received contributions from business people who are ALSO against the database.  It’s all making sense now . . . . Perhaps it was an oversight, but Lazarus fails to mention that the folks on the Left who so vigorously defend the database as implemented have been richly financed by TRIAL LAWYERS.  Rep. Henry Waxman raised more than $165,000 in 2010 from lawyers (11% of his total raise).  In fact, his top PAC contributor was the American Association for Justice , a group of plaintiff’s attorneys actively opposing tort reform.  He also received individual contributions from AAJ lobbyists .  Rep. Jan Schakowsky raised a mere $224,000 from lawyers in 2010 (about 15% of her raise).  Ditto for AAJ support.  Poke around on OpenSecrets.org to check out your other favorites in Congress.  It goes without saying that the support Waxman, Schakowsky and their ilk lavish on the database has NOTHING to do with campaign contributions by trial lawyers.   It all comes from the heart, cloaked in white.  Any idea who pays the bill for all the litigation initiated by the AAJ and its members?  Hint:  it’s not Waxmn or Schakowsky. No Lazarus article would be complete without the quotes of Rachel Weintraub of the Consumer Federation of America.  The strangely influential Weintraub is the Left’s favorite mouthpiece on the CPSIA.  Here she tries a new angle to preserve the database, the “sunk cost” argument:  “The thing that’s so insidious is that the database is already up and running,  This would basically waste all the money and resources that have gone into creating the database.”  Insidious! That thrifty Rachel, she literally weeps over government waste.  Of course, the database is not controversial simply because it exists; the principal reason the issue lingers on is that Lefties like Weintraub and Bob Adler insisted on unfair administrative procedures that create unreasonable risks for manufacturers unrelated to actual product hazards, like brand slander, misidentified products, lack of accountability by complaint filers, manipulation of civil disputes and unbalanced data creating misleading commercial impressions. These problems are well-documented but have apparently escaped Lazarus’ beady-eyed (in)attention. The Axis of Misinformation is at work here.  You have the ignorant journalist (perhaps intentionally so or at a minimum, biased against manufacturers and disinterested in their POV), the shrill consumer “advocate” and the self-serving agency spokesman whose job is to manipulate how we feel about the CPSC (irrespective of reality or the “truth”).  CPSC as PR agency is offensive to me.  That’s not its function and besides, I think it’s dangerous to me as a consumer.  As a practitioner noted this week in private correspondence:  ” CPSC stacks the deck by creating alarming recall notices that do not really put hazards in perspective for readers, nor does the agency give consumers enough information to determine whether the amounts that they wind up indirectly paying for the costs of recalls are justified, especially when those costs are spread out to affect products that have not been recalled and present no risk. Hazards and risks are generally overstated, and you will never see any mention of costs to the public even though, as we all know, there is, after all, no free lunch .” It is worth noting that I hear complaints from the CPSC through various channels when they object to the portrayals in this space.  It’s so unfair that we have freedom of speech in this country.  No doubt that makes the job of regulating all of us idiots so much more difficult.  Still, if I get to exercise my freedom of speech, so does Wolfson.  Go ahead and read Lazarus.  It is informative in a way.  It will take you less than 30 seconds to recognize the shoddy journalism and the slanted, biased presentation of a one-sided story.  Consider the source of this lead – Scott Wolfson and the CPSC.  As I said, it’s informative.

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CPSIA – The Axis of Misinformation

CPSIA – American Job Creators (Remember When We Did That?)

The House Majority Leader wants to know how the CPSC and the CPSIA are affecting your business.  They have a website set up for you to download everything you know about the misconceived CPSIA and resulting three year nightmare.  The first agency listed on the web page is the CPSC. Have some fun with this!  Feel free to post your insights here, too.

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CPSIA – American Job Creators (Remember When We Did That?)

CPSIA – Futile Provision or Gimme for Big Biz?

In response to my blogpost on the “Functional Purpose” exception so desperately desired by the Dems (Waxman and his Waxmanis, plus the Dem CSPC Commissioners) as the “solution” to the inflexibility of the CPSIA restrictions on lead, I am informed that some people think the door is still cracked open for exclusions. I must disagree. Here is the language on the functional purpose exception from the last published version of ECADA :  “(1) FUNCTIONAL PURPOSE EXCEPTION.—(A) IN GENERAL.—The Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the prohibition in subsection (a) for a specific product, class of product, material, or component part if the Commission, after notice and comment in accordance with subparagraph (B), determines that—(i) the product, class of product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, class of product , material, or component part , as the case may be, in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible; (ii) the product, class of product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse of such product, class of product, material, or component part by a child; and (iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into account normal and reasonably foreseeable use and abuse.”  I have added color to the key words in this section.  In blue , I have highlighted that the exemption will ONLY apply to those products or materials which “require” the inclusion of lead.  In yellow , I have highlighted the two parts of the exception, namely cases where the inclusion of lead is not practicable or not technologically feasible.  Who will benefit from this provision, and how will they benefit? First, to take advantage of this provision, you must demonstrate that your product “requires the inclusion of lead”.  When might lead be required?  According to the CPSC Staff in their recently released report on the ”technological feasibility” of 100 ppm lead , no products or components under 600 ppm concentration requires lead:  “Staff has found no intentional uses of lead in materials at concentrations at or near any of the three statutory lead limits (i.e., 100 ppm, 300 ppm, or 600 ppm). Therefore, staff does not believe that children’s product manufacturers intentionally design or make products or components with the maximum allowable lead content because lead concentration near the maximum limit would have no benefit or purpose to the product or the manufacturer.”  No benefit whatsoever of trace lead content.  Who would have guessed that?! Thus, this provision only applies to items, components or materials well over 600 ppm lead.  For those of you on the sidelines hoping that this will save your trace levels of lead in components, like metals in bicycle components, sorry!  It’s not for you. I believe this provision is only intended for a very limited list of components – namely, brass, metal alloys or possibly rhinestones.  In reality, it’s just for metal alloys which actually require lead as a component, like engine components (or brass).  There will be almost no argument possible where there is a market substitute that the CPSC thinks is adequate. They get to run your business now, don’t forget. Rhinestones are so done. For those items, components or materials that make it through the “requires the inclusion of lead” filter, the provision then further limits coverage where avoiding the inclusion of lead is not “practicable” or technologically feasible.  The above-referenced report states the opinion of CPSC Staff that NOTHING requires the inclusion of lead as defined by the CPSIA:  “Based upon this analysis, the staff could not recommend that the Commission make a determination that it is not technologically feasible for a product or product category to meet the 100 ppm lead content limit for children’s products under section 101(d) of the CPSIA. No such determination has been made by the Commission. Therefore, all children’s products sold, offered for sale, manufactured for sale, distributed in commerce, or imported for sale in the United States must meet the 100 ppm lead content limit beginning August 14, 2011 as statutorily mandated by the CPSIA unless otherwise excluded . . . .” Some people believe the legal definition of “practicable” in certain legal rulings (case law) takes into account economics  and is intended to be a more pragmatic standard allowing applicants to plead that the law will ruin their businesses.  This theory depends on a richer, more nuanced meaning of the term than provided in online legal dictionaries (” when something can be done or performed ” or ” anytime something can be done or performed “). A more detailed explanation, closer to the wishes of those pinning their hopes on this provision, comes from JustAnswer.com :  ” Normally one would say, in a legal arena, that if it does not cause an undue hardship to one party or the other, then it is ‘practicable’. An example would be if during a child support hearing, one party wants the other party to pay for a brand new corvette for their 16 years old child to drive, that would be considered impracticable whereas if they asked for the other parent to provide safe transportation and it is agreed to get a used Ford Escort, that would be practicable. If during a hearing on a property easement the land owner wants $200,000 for a 40 foot easement, the easement holder to pour a new driveway for them both to use, and he can only use it on Fridays, that would be impracticable. Does that make sense? It is basically saying that if there is a reasonable way to provide whatever is being asked, or rather ‘whenever practicable’, that should be done .” Anyone hoping to win an exception under this provision must be prepared to explain that there is no reasonable way to accomplish their goal, that it is in that sense not “practicable”.  This definition does not permit exceptions simply because in their absence costs might rise.  The cost must be “unreasonable” but can be much greater than zero.  What might be deemed an “unreasonable” cost by this CPSC Commission? Well, I think some factors are quite relevant in evaluating whether such exceptions will EVER be granted.  First, the three Dem Commission has taken the position publicly that there is no safe level of lead .  This is wrong, as we know, because since every human takes lead into his/her body every minute of the day and night through lead in air, water, food and dirt (at a minimum), we cannot conclude that life degrades in the presence of lead alone.  The source, concentration and exposure to lead determines the nature of the risk (as they say, the dose makes the poison).  Unfortunately, these Dem non-scientists are beyond convincing.  Try telling them that money is more important than their unthinking appraisal of the “risks” confronting children with lead.  I can’t see it. As if that weren’t enough, the CPSC Staff has publicly stated that everything can be made lead-free based on the bizarre definition of “technological feasibility” under the CPSIA. That term of art does not have the expected meaning of its English words since economics were written out of the definition.  This Commission knows that everything can be made without lead, and given their caveman fear of lead, any applicant will have to explain why other available options are no good.  The concept of technological feasibility and not practicable are not really as divorced as they seem. CPSC Staff shed some light on practicability in their 100 ppm report: a.  ” . . . low-lead materials that can be used in the production of children’s products generally appear to be commercially available in the market place” b.  “In general, for cost increases affecting a broad base of industries, there will be a mixture of effects: both increases in the retail prices of children’s products and reductions in overall production levels.” c.  “Alternatively, some manufacturers may need to redesign or re-engineer their products. Valve stems for bicycles, for example, may need to be fitted with more secure caps, which will effectively render them inaccessible and potentially more difficult to use. In addition, products may be simplified to reduce the number of components for testing.” Overall, the implication of the economic analysis is that the bulk of economic damage (rising costs) has already occurred.  In addition, the CPSC seems to think there is more than one way to skin a cat – and that would be quite relevant in any proceeding under the Functional Purpose Exception provision  Which items would likely be eligible for consideration for relief?  It would likely only be items that are being sold subject to a stay (ATVs and bicycles) because everything else that’s on the market is already compliant.  And how many items are being openly sold today are NOT in compliance with the current lead standards?  Damn near zero.  As Mike Larson notes in the Star-Tribune (March 27, 2011):  “Unfortunately, this hasn’t helped because the many manufacturers and dealers have chosen not to sell the smallest youth model ATVs because of the risks of selling under the stay, and there’s now a limited availability of these products for consumers.  In fact, half of the major ATV manufacturers are no longer selling youth model off-highway vehicles.” My conclusion:  No one can apply for this exception and if they do, they are highly likely to be turned down. Just like the last three years.  It’s a big win for Waxman – he appears to be “listening” but instead is perpetrating a fraud on all the dupes in the children’s product industry.  He cares not about your petty problems (that he created).  It’s truly heartwarming . . . . One last thought:  Who really gets the short end of the stick here?  It’s you as usual, the little guy.  The CPSC Staff acknowledges that the 100 ppm standard is anti-small business:  “Despite the existence of complying materials and components in the marketplace, some manufacturers, especially very small ones, may not be able to readily purchase these materials and components due to the lack of available distribution channels. For example, the Handmade Toy Alliance stated that its members would be unable to consistently obtain materials complying with such a low lead limit because its members do not purchase raw materials, but instead purchase component parts from retail stores.” But, heck, who will take the time to actually read their 59-page report?  Believe me, Waxman ain’t losing sleep over the possibility that you will read it, much less actual members of Congress. And then there’s the practicality of the exception process – it’s like major litigation against the government. Think of the cost – you would need to hire experts, lawyers, consultants and would have to prepare dossiers on each and every material, component and product you want exempted.  You will bear the burden of proof, you will be judged ONLY on the “proof” you submit, and best of all, you will be judged by a panel controlled by Tenenbaum, Adler and Moore.  Who on Earth will waste their money and their time on this?  Perhaps Mattel, WalMart and a few Asian manufacturers of bicycles (China makes 58% of world bicycle production).  It’s not for you – you can’t afford it.  This is a meager gimme for big business, like “firewalled test labs”, something to ease the troubles of the mega companies affected by the CPSIA. As for the rest of us, let’s not forget the wisdom of Senator Dick Durbin’s office : “I think you are right that the CPSIA imposes costs on businesses, and because of economies of scale it’s the smaller businesses that will feel these costs more acutely. This is part of a larger calculation that it’s worth the costs to shift from the old system of post-market correction (once a dangerous product is out in the market and leads to sick kids, recalls, lawsuits, etc.) to a new system of pre-market testing and certification (instead of just assuming products are safe and paying the price for false assumptions).” [Correspondence dated April 16, 2009] I think the real false assumption is that the Democrats care about anything other than getting reelected.

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CPSIA – Futile Provision or Gimme for Big Biz?

CPSIA – Battles Lines Drawn

As ECADA moves toward a mark-up, possibly next week, the action over the CPSIA is happening elsewhere on the Hill.  In yesterday’s The Hill newspaper, it was announced that the pending Appropriations Bill knocks out all funding for the noxious CPSIA database.  It is symptomatic of the partisan gridlock in Washington that a policy debate has to be dealt with by withholding funds.  The parties are simply unable to agree on anything.  To agree is to give up political advantage.  In gridlock, it is always possible to blame the other party and to paint them with whatever black brush is handy.  This is particularly attractive to a minority party like the Dems in the House – they want their majority back.  Thus, while the “defenses” for the absurdly over-reaching rules governing the database are almost laughable, the Dems posture as though any change threatens the American way of life. That said, it’s a good thing that the Appropriations Bill is doing the work that the House Energy and Commerce Committee hasn’t done or perhaps cannot do.  Brokering agreement with someone as unyielding and unreasonable as Henry Waxman is no small feat.  Rationality and reason, not to mention good policy, have no apparent effect on this ideologue.  He won’t concede that Rep. Mike Pompeo, and the other database haters, have legitimate concerns.  NO ONE is asking that the database die, just that it be a fair game for everyone.  It’s only because the Dems won’t give a millimeter that you get the Appropriations Bill.  If Energy and Commerce can’t change the database, or the CPSIA, I commend the Appropriations Committee for taking action to protect American businesses from government-sanctioned slander.  Somebody had to do it. There’s no telling where all this goes.  The Republican majority in the House may be able to shine a light on the issues of the CPSIA, but since the Dems control the Senate and White House, it seems as though the Dems are capable of blocking progress.  Three years of work have no persuaded one Dem of anything, by all appearances.  [Hence my disillusionment, frustration and outrage.]  There is little sign that the Dems will give an inch – and you know what that likely means.  You and I are (remain) screwed.  Stasis means the 100 ppm standard gets implemented in two months, possibly retroactively.  It means that you must continue to test internal components for phthalates and test and retest everything else endlessly without relief of any kind.  It means that the 12-year-old age limit for everything stays in place, rhinestones and brass remain illegal (but osmium, iridium and ruthenium are still a-okay!), books and bikes and ATVs remain under the thumb of the CPSC, and many, many businesses will further weaken.  NO child will be safer, and NO injury will be avoided.  The advocates can’t provide evidence that ANYONE was EVER injured so there is no rational reason to believe this massive disruption will save a life or even a paper cut. The battle lines are drawn.   Perhaps now you know why I was so disappointed when only one wiener resigned from Energy and Commerce today. I can think of a few more that ought to go . . . . VOTE FOR ECADA AND END THE CPSIA CHARADE!

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CPSIA – Battles Lines Drawn

CPSIA – I Think I Found Someone Who Lost a Few IQ Points . . . .

Morons on parade . . . . Never failing to disappoint, the Tribune (via its South Florida Sun-Sentinel) today published the latest left wing tripe about the CPSIA Amendment (ECADA).  In an article entitled ” Pandering politicians threaten to make hay of product safety “, Nicole Brochu unquestioningly falls in line with Henry Waxman and Rachel Weintraub on ECADA and trashes safety legislation she clearly does not understand. I am pretty sure Ms. Brochu is not a regular reader of this blog.  She has successfully remained ignorant of many indisputable facts about safety in children’s products, not to mention the detailed nature of the problems caused by CPSIA.  That certainly makes it easier to react emotionally to the “threat” posed by ANY effort to change the ill-conceived CPSIA.  And that she does . . . . Ms. Brochu starts by confirming her bias against business and ruling out any consideration of opposing viewpoints (possibly involving FACTS):   ” I don’t know about you, but when it comes to keeping the nation’s supply of kids’ toys and other consumer products safe, I’m going with the advice of doctors, scientists and watchdogs. I’m not sure we can rely on toymakers and motorcycle distributors to have the public’s collective back on this one . . . . [The] only thing [ECADA] proposes to enhance is special interests’ bottom lines — not the CPSC’s authority, or its protections of the consumers in its care.” Ah, special interests again!  She must have been talking to the estimable Jan Schakowsky.  As everyone knows, I am a “very cynical . . . special interest”.  You should see my lapel pin! Ms. Brochu regurgitates the platitudes and slogans of the shrill groups opposing any change to the law: ECADA and CPSIA are toy bills. CPSIA was passed by an overwhelming majority of both Houses of Congress and was signed by “pro-business Republican President George W. Bush”. As a result of the CPSIA, there has been a “noticeable improvement in the public’s wounded confidence” (presumably in children’s products and the federal government). “[A] bunch of pandering politicians [are trying] to muck it all up for us.  Since Republicans took over majority control of the U.S. House last year (and even before), they have set their sights on diminishing the safety act’s laudatory provisions in the name of lifting the burden off small-business owners.”  [ Ed. Note :  This is a variant of the argument that only Democrats and consumer groups care about kids, certainly not businesses or Republicans.] ECADA is “a hyperventilating overreach that would put the country’s health and safety at risk.  And that’s just what an impressive contingent of folks — including the American Academy of Pediatrics, American Medical Association, Consumers Union, Consumer Federation of America, Kids In Danger, Public Citizen, Union of Concerned Scientists, the U.S. Public Interest Research Group and the CPSC’s chairman and two of its commissioners — say this measure would do.”  ECADA “[waters] down the safety act’s firm hold on lead content in children’s products . . . .” The book industry and motorcycle  industry are “special interests” seeking a pass for their products. No matter the merits of their claims, the law’s protections cannot be weakened in any way.  [ Ed. Note :  This is the "zero sum" argument again - if manufacturers are made better off by ECADA, it follows "logically" that children MUST BE worse off.] In each case, I have already replied to these misstatements and mischaracterizations in this space.  Since I seem to repeat myself endlessly, I am going to spare you one more trip around the same block today.  You can find the answers in my recent postings on ECADA. The author finishes up with one of the biggest misconceptions promoted by the opponents of ECADA: ” The bill would do away with the requirement that manufacturers test their products before bringing them to market, putting the onus instead on the tax-funded CPSC to conduct extensive, costly analyses to determine if testing is necessary. Taxpaying consumers shouldn’t shoulder the burden, or the cost, of making sure the products they buy are safe. In any reasonable scenario, that responsibility should fall on the businesses — big or small — making money selling their wares to the American public.” This remark reflects a gross misunderstanding of how businesses operate and how the proposed change in law affects businesses regulated under the CPSIA.  ECADA does not eliminate the need to test children’s products for compliance with the strictures of the CPSIA.  The lead standards are still on the books, the rabid regulators are still breathing down our necks and THERE IS NO WAY TO KNOW IF YOU COMPLY WITHOUT PERFORMING PRODUCT TESTS.  What ECADA accomplishes, Ms. Brochu, is to stop the government from telling us how to run our businesses.  We know better how to comply with these rules than they do, and can save vast sums of money wasted on government-mandated testing overkill.  We will STILL HAVE TO TEST. There is no way around it.  And if we screw up, we pay.  This is not really a change, btw.  We have always been subject to American tort law and have always been on the hook for our failures. I wonder if the knuckleheads who believe that ECADA eviscerates the CPSIA understand that the government has no way to force businesses to test.  Mandated testing does not mean that every children’s product will be tested, any more than posted speed limits mean that you will never get a speeding ticket.  To survey compliance, the CPSC will always have to test products – and cops will always need radar guns.  Scurrilous businesses that don’t want to spend the money to comply will lie – and good businesses will spend themselves into bankruptcy paying for endlessly repetitive tests.  The mandated testing regime has little to do with these behaviors because this is the realm of compliance .  Rules do not eliminate bad behavior as common experience instructs.   The drafters of ECADA get this point, and have incorporated the modest concession that the standards are more important to safety than attempting to manage thousands of businesses.  Ms. Brochu would know this if she read my blog. I want to draw your attention AGAIN to the important point that Ms. Brochu’s safety neurotics have yet to answer my query – WHERE ARE THE VICTIMS OF LEAD-IN-SUBSTRATE?  If we are saving children from a dreaded threat NOW, presumably children were suffering grave consequences in the past.  Yet when asked to name these victims and provide case histories and other identifying and validating data, the advocates cannot name even ONE victim – from any country, at any time, using any children’s product by any manufacturer under any living conditions.  Zero known victims – but we must bear billions in costs to comply with a neurotics’ legislative and regulatory wet dream.  Notably, in May 2010 I published my own analysis of 11 years of CPSC recalls from 1999-2010 and found only three alleged injuries (all from lead-in-paint) and one death (from swallowing a lead bangle from a bracelet).  That’s it – and there are no known victims of lead-in-substrate in the CPSC’s publicly-available recall records in that time period to the best of my knowledge.  Or at any other time in the history of the world .  The absence of lead-in-substrate injuries is stark in comparison to prosaic risks we bear EVERY DAY.  Stair falls have killed almost as many people in Japan as fires despite the fact that many structures in Japan are made of wood (1976).  In Canada, injuries and fatalities on stairs are at least ten times greater than those from natural disasters (1985).  In the UK, it has been estimated that more than 100,000 stair injuries occur annually (1999).  Yet the federal government wants us to spend literally BILLIONS OF DOLLARS annually to protect against a health threat not associated with a SINGLE documented injury.  We are being governed by idiots. Maybe someday we can expect the media to think before it speaks.  Maybe someday the standards for journalism will include knowing what you’re talking about, investigating and challenging preconceived notions and a healthy skepticism for pat answers.  Until then, we have the Tribune and Ms. Brochu. VOTE FOR ECADA AND END THE CPSIA CHARADE!

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CPSIA – I Think I Found Someone Who Lost a Few IQ Points . . . .

CPSIA – Consumers Union is Hazardous to Your Health

Lies, innuendos, misstatements, twists – which is it this time? Today Ami Gadhia, one of the Consumers Union CPSIA hacks (a.k.a. “Policy Counsel”) weighed in with her usual bunk about the lurking “dangers” in children’s products.  In particular, today’s tripe is a protest against modifying the CPSIA.  Her writings and utterances are invariably infuriating for their lack of perspective, tall tales and general fear mongering.  In her article ” Turning Back the Clock on Child Safety Protections “, Ms. Gadhia continues her fine tradition of twisting and obfuscating the facts.  Considering her background in the subject matter and her law degree, one must assume ill-intent.  This can’t be accidental. Let me debunk her junk one-by-one: a.  “Turning Back the Clock on Child Safety Protections”:  The Op-Ed’s title is absurd in light of the actual bill’s wording.  The CPSIA Amendment (ECADA) is a mild and surgical bill intended to offer minimal but effective relief from over-regulation while preserving the structure of the CPSIA.  Killing the CPSIA is politically impossible, it appears, so this is the best that can be offered at this time.  Ms. Gadhia must be asserting that ANY change in the CPSIA is a setback.  This argument is always left unproven – but no one ever holds her accountable so why not tell the tall tale?  The consumer groups rely on the appeal of the “zero sum” argument which also goes unchallenged.  It goes like this:  ANY change in the CPSIA which might benefit a business is THEREFORE a setback for children’s safety.  If the Cubs lose 15-5, they are somehow better off if they instead lose 13-5.  Right. . . . b.  Ms. Gadhia, like her fellow manipulators in the consumer “advocacy” field, relies on an emotional appeal to kick off her crock – the story of a child who swallowed magnets, leading to gory injury.  A few notes on this line of reasoning: The CPSIA is NOT a toy law.  Despite Ms. Gadhia’s relentlessly repetitive references to toy safety, the law applies equally to ALL children’s products, from shoes and t-shirts to pens to rhinestones to ATVs and bikes to books to educational products to carpet to what-have-you.  By focusing on toy gore, Ms. Gadhia lulls her reader into overlooking the awesome overreach of this bill.  We don’t want kids injured by magnets . . . ergo , we should ban all hazards in all things.  Huh? The magnet hazard she refers to had never been seen by the agency previously.  It was a classic latent hazard, unregulated specifically because it was unrecognized.  You can see Gib Mullan, the current General Counsel of the House Energy and Commerce Committee and former General Counsel and Director of Compliance at the CPSC say ON VIDEOTAPE (at the CPSC Tracking Labels hearing ) that the agency first thought the problem was a small parts issue, not a strong magnets issue.  No law can effectively regulate UNKNOWN hazards.  Claiming that the CPSIA “solves” this safety issue is pure baloney. The magnet hazard was addressed promptly and effectively by the agency without the need for changes implemented by the CPSIA. The agency had this power under its 1972 enabling legislation and following laws. Sometimes bad things happen to good people. c.  Ms. Gadhia intones ominously about banned phthalates and their links to “a variety of health risks”.  As has been well-documented here, that provision was placed in the law at the last minute by Diane Feinstein, true to her San Francisco roots.  This is the same place that worked for years to ban circumcision.  Yes, they are really scientific in that community.  For a discussion of phthalates, please watch the 60 Minutes segment in which I appeared. d.  Ms. Gadhia trots out yet another misleading but longstanding justification for not changing the CPSIA – namely that it passed by an overwhelming majority of Congress.  I fail to grasp the intellectual power of this “infallibility of Congress” argument, and further note that dozens of members of Congress have been trying to change the law ever since.  There has been more than a dozen bills floated to amend this “perfect” law since August 2008.  In addition, the timing of passage of this law (three months ahead of the 2008 Presidential poll electing Mr. Obama) made it very dangerous politically to vote against this terrible law if you wanted to keep your job in Congress.  Even Mr. Bush had to sign it for political reasons.  The political and media frenzy in 2008 made rationality impossible, and minds were made up.  Have you ever made a bad call when you were furious?  ‘Nuf said . . . by everyone except the dangerous Ms. Gadhia. e.  The Consumers Union storyteller informs us that ECADA “would poke some serious holes in the product safety net”.  What a dream if Ms. Gadhia were actually right that this amendment would actually dent the CPSIA that I hate.  It doesn’t, regrettably.  To “prove” her points, she lists four lies : “The bill undermines safety testing for children’s products”.   The bill eliminates MANDATORY testing as required by the CPSIA.  It does not ban testing, nor does it discourage or remove the incentive to test.  Excessive testing is one of the original problems cited in the bill, and has cost our company well in excess of $1 million since the passage of the bill – all without making even one product in our product range safer, even a little bit.  This term is the brainchild of the consumer groups (Rachel Weintraub?), reasoning that if the government didn’t require mandatory testing, no testing would be done.  This misconception overlooks the enforcement of the new standards.  It is IMPOSSIBLE to assess whether you comply with the standard without testing.  Enforcement of the standard, as is anticipated, means that everyone WILL test.  What is being eliminated is the role of Mother Government “helping” us by telling us how to run our businesses.  If the standard is enforced, people will HAVE TO test.  If they don’t enforce the standard, they won’t enforce mandatory testing either. What’s the big deal here?  Just the opportunity for Ms. Gadhia to mindlessly bang her drum. “The bill undermines lead protections”.    Ms. Gadhia informs us that consumer confidence would “erode” if the current one-size-fits-all standard is replaced with “a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts, and other factors.”  OMG – standards that are reasonably tailored to the individual hazard and individual product!  NO – please tell me we still live in a world where books, t-shirts, diamonds and rubies, ATVs, bicycles, appliances, pens, carpets, DVDs and toys are ALL subject to exactly the same rules. What is the world coming to???  I presume Ms. Gadhia thinks we are idiots, or else this is all she has, which ain’t much.  Anyone surprised? “The bill undermines the effectiveness of the new crib safety standard”.   I have previously addressed this issue – the three Dem Commissioners made this same baseless accusation a few days ago.  See my reply in this space. “The bill undermines the new public database for people to report and read about product safety problems”.   Ms. Gadhia warns “the provisions in this legislation would place onerous burdens on the person making the complaint, thereby discouraging parties with valuable safety information from reporting.”  Whoa – you mean we won’t get to see stuff like this , this  and this again??? Ms. Gadhia needs to get one last jab in:  “The Leisy family’s experience shouldn’t happen to another child.”  Okay, I don’t want to see any child injured ever again for any reason . . . but does Ms. Gadhia even make a coherent argument here?  Does one thing have ANYTHING to do with another? It’s time to turn back the clock on irrationality and lowest common denominator government.  Who should set the tone for us – the Anthony Weiners of the world (did you hear that his wife is pregnant?) or people that are interested in children’s safety AND the viability of American businesses that provide jobs to your neighbors and valued products to your kids?  I think it’s time that our representatives in Congress, especially those in Congress calling themselves Democrats, to stand up for WHAT’S RIGHT rather than what’s easy or what’s safe (for their job security).  We pay them to lead, not to cower.  PASS ECADA AND END THE CPSIA CHARADE!

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CPSIA – Consumers Union is Hazardous to Your Health

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