CPSIA – New York Times Notices the CPSIA

The New York Times this evening gave some coverage to last week’s hearings in an article entitled “Child-Product Makers Seek to Soften New Rules“. Reflecting the usual bias of the Times against business, the article intones: “Emboldened by a Republican majority in the House of Representatives, manufacturers of toys and other children’s products are making a last-ditch effort to quash new safety regulations that they say are unfair or too onerous . . . . The manufacturers are also trying to scale back new regulations, drafted by the commission, that would require third-party testing to determine the safety and lead content of children’s products. They have found a receptive audience among House Republicans.” [Emphasis added]

So let me ask you, does it appear that I am “emboldened” by the Republican majority in the House? Is that accurate? As I recall, I began working against this excessive and irresponsible legislation in September 2007 and began my “war” with intensity when I was invited to present at the CPSC Lead Panel on November 6, 2008. That was more than two years ago, long before the “emboldening” Republican majority. In fact, I worked hard in the last election to put the Republican majority into office.

Why?

Because no one on the other side of the aisle would listen. What the NYT noticed is that someone is listening . . . finally.

Am I trying to “quash” the legislation? I think that’s an unrealistic goal and have never asked for it. I have stated repeatedly that the legislation has few achievements to boast about and that it is defective as drafted (can’t be fixed). It is also killing jobs, companies, markets and products. It needs to go but, as noted, I think that’s unrealistic. I think fixing it is the best we can hope for.

And I promise that our efforts are not “last ditch”. We’re not going to be done until the CPSIA is fixed.

The article goes on to note that at least one Democrat thinks the CPSIA stinks: “Other lawmakers, including at least one Democrat, Representative John D. Dingell of Michigan, suggested that new regulations requiring third-party testing of all children’s products for safety and lead were too broad and needed to be revised.” John Dingell, who’s he? “At least one Democrat . . . .” Ummm, Mr. Dingell is not only the longest serving member of Congress in the history of the United States but he also happens to be the longstanding Chairman of the House Committee on Energy and Commerce who also sponsored the legislation to create the CPSC in 2972. I think he is something more than just another Democrat – he is a major historical figure and a person of great standing in this matter. When he came out against the CPSIA on Thursday, he broke with Waxman and stood up for the TRUTH.

The Times gives the consumer groups the last word: “Representatives of consumer groups, meanwhile, are fretting. They said they were worried that the tougher standards they fought for, and seemed to have finally won, were now in jeopardy. ‘You have folks who are seeing that there is a chance to undo consumer protections that they never liked in the first place,’ said Ami Gadhia, policy counsel for Consumers Union.”

That’s true – we never liked the law in the first place. It is a massive waste of money, is hurting markets, companies, jobs and kids, has mired the agency and industry in a three year mud fight and isn’t making anyone safer.

It’s time to end the posturing and the story telling. We need to fix this awful law before it kills more companies and more products. How many companies need to die before Congress and the New York Times gets the message?

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CPSIA – New York Times Notices the CPSIA

CPSIA – My Answer to Sean Oberle on Resale Shops and Tenenbaum

Some of you may have been following the recent debate in the Product Safety Letter (PSL) on the CPSC’s noxious Resale Roundup program. A wave of unfavorable media coverage has dogged the new CPSC initiative, noting the risk of high fines and the unwelcome intrusion of federal regulators into an innocent American ritual, the garage sale. A highly-publicized Fox News piece apparently triggered a response by CPSC Chairman Inez Tenenbaum in PSL on October 3 entitled “Garage Sales and CPSC — Sorting the Facts from the Myths“. In this piece, Ms. Tenenbaum promised not to fine garage sale operators, and chose to emphasize the CPSC’s noble goal of ending the resale of recalled products.

Next, Rob Wilson of Challenge and Fun, Inc., a Massachusetts-based toy company, published an Op-Ed in PSL on October 9 entitled “Consumer Confusion Comes From CPSC Guidance, Not the Media” in which he noted that the fear Ms. Tenenbaum sought to calm came not from media reports but instead from CPSC policy. In particular, he pointed out the impractical and confusing advice given in the CPSC’s own CPSC Handbook for Resale Stores and Product Resellers. Mr. Wilson closed with the following observation: “Chairman Tenenbaum vowed at her Senate confirmation hearing to bring a common sense approach to CPSIA implementation. We are still waiting for signs of common sense from the agency regarding CPSIA.” Ah, that “common sense” thing again!

Sean Oberle, owner, publisher and editor of PSL, replied to Mr. Wilson in his own publication on October 13 in an editorial entitled “Clarity and Accuracy — CPSC, the Media and Garage Sales” in which he defended Ms. Tenenbaum on the grounds that her limited statement did not constitute a comprehensive summary of her feelings or actions on the CPSIA. It’s a remarkable piece, I hope you will read it. [In his editorial, Mr. Oberle makes the following observation: "a quick search of the blogosphere and other new-media sites finds more pieces running the gamut from mild warnings to doomsday predictions" - hmmm.] Interestingly, Mr. Oberle stresses his “neutrality” and “defense of accuracy and clarity” THREE TIMES. Draw your own conclusions.

Well, I sent Mr. Oberle MY Op-Ed reply to the debate he not only published but contributed to. Suffice it to say, he turned me down. I am publishing the Op-Ed here for your review and consideration. I would be interested in your thoughts.

I think it is critical to reflect on this rebuff and to delve into its deeper meaning. [My ego can take it, btw.] The Product Safety Letter (along with BNA) was cited by John “Gib” Mullan (Assistant Executive Director, Office of Compliance and Field Operations, CPSC) as the definitive source for information on safety issues at last February’s ICPHSO meeting. An august publication, apparently. Yet, what does a stilted debate in PSL’s pages signify? Only Mr. Oberle can say for sure. My article asks Ms. Tenenbaum to be accountable for the actions of the CPSC in implementing the defective CPSIA. Mr. Oberle has already publicly stated his neutrality on agency issues several times. [Quoting from Hamlet, "The lady doth protest too much, methinks."] What’s going on here?

The American way of life is frankly dependent on our Constitutionally-guaranteed freedom of speech. The foundation of the visionary American system of a free media is its INDEPENDENCE. What if the media organs we depend on lose their independence? What if fear of retribution or a possible chilling in access to information challenges editorial decisions? In thinking about the end of the debate about the CPSC’s Resale Roundup in PSL, these questions resonate. I hope this is not the Obama Revolution we have all been hearing about.

My Op-Ed for your reading pleasure:

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CPSIA – My Answer to Sean Oberle on Resale Shops and Tenenbaum

CPSIA – Walter Olson Op-Ed in Today’s WSJ

OPINION SEPTEMBER 13, 2009 7:07 P.M. ET A Destructive Toy Story Made in Washington A dubious safety law is hammering small business, but Congress refuses to fix the mess it created in 2008. By WALTER OLSON Last Thursday, the House Energy and Commerce Committee finally held a hearing on the highly controversial Consumer Product Safety Improvement Act, the children’s-product-safety law that took effect on Feb. 10. Chairman Henry Waxman (D., Calif.) allowed a single witness: Inez Tenenbaum, the newly installed chair of the Consumer Product Safety Commission (CPSC), who, like himself, is a strong advocate of the law. Not one of the thousands of craftspeople, retailers and small manufacturers the law has sent reeling was permitted to testify. This law has saddled businesses with billions of dollars in losses on T-shirts, bath toys and other items that were lawful to sell one day and unlawful the next. It has induced thrift and secondhand stores to trash mountains of outgrown blue jeans, bicycles and board games for fear there might be trivial, harmless—but suddenly illegal—quantities of lead in their zippers and valves or phthalates in their plastic spinners. (Phthalates are substances that add flexibility to plastic.) Even classic children’s books are at risk: Because lead was not definitively removed from printing inks until 1985, the CPSC has advised that only kids’ books printed after that date should be considered safe to resell. Yielding to a business outcry, the agency postponed until next February the law’s highly onerous product-testing requirements, which many small manufacturers have said will impose costs exceeding their annual profit or even revenue. It also has postponed enforcement of the law’s effective ban on kids’ bikes and power vehicles, which unavoidably contain leaded brass or similar alloys in certain components. Nevertheless, the law’s latest shock hit businesses on Aug. 14. That’s when the law’s tracking-label mandate went into effect, requiring that makers of childrens’ goods “place permanent, distinguishing marks on the product and its packaging, to the extent practicable.” The idea is to facilitate recalls and make it easier to trace safety problems. The result will be to capsize yet more small businesses. According to the CPSC, the new marks must allow users to ascertain the identity of an item’s manufacturer, “location and date” of production, and “cohort information” such as batch or run numbers. An adhesive sticker on the product won’t qualify as “permanent” since consumers might peel it off, while other provisions of the law greatly discourage the use of paint or similar coatings on children’s products. Makers of wood, ceramic and glass items may therefore need to consider alternatives such as etching and branding. Much of the guesswork arises from Congress’s vague command that products carry distinguishing marks “to the extent practicable.” The CPSC got more than 500 pages worth of comments on the provision from affected parties, many from anguished small-business people. When the small-town owner of a producer of baby carriers in Michigan checked out the availability of suitable printed labels, she found they had to be ordered in minimum sets of 100 (at $30 per set) though her four-employee firm has never produced more than 30 carriers at a time, and often produces single-item “batches.” A South Carolina maker of school assignment sheets and other classroom supplies predicted that if enforced with rigor the law would require changing labels “hundreds of times a week” at its two facilities at “crippling” expense. On July 20, only three-and-a-half weeks before the rules were to take effect, the CPSC announced some lenient if vague interpretive guidelines. The agency said it didn’t think individual marking was required for very small objects and items in sets, such as wooden blocks, and agreed that harm to a product’s functionality or aesthetics might be a possible reason to reject marking as impracticable. So long as handcraft and small-production-run makers keep careful control of components, it seems, they might not even need to set up batch numbering systems. During a “period of education,” at least, the commission expects to avoid penalizing makers who have put in good-faith efforts to comply with its guidelines. That’s a step in the right direction. But the 50 state attorneys general can enforce the law independently, and they have never promised to be reasonable. The CPSC touched off another furor this summer when it confirmed that Mattel, the giant toy maker whose many recalls helped set off the lead-in-toys panic, had qualified for an exemption from onerous third-party (outside laboratory) testing of its products under the law, and would instead be allowed to test in its own in-house labs. (Mattel had successfully lobbied for such a provision.) Of course, most companies do not operate on a scale that will make such an exemption feasible. Why did Congress rush to pass this bill, and why is it so reluctant to amend a law whose burdens fall mostly on products that have never been linked to poisoning? One reason is the skill of antibusiness groups claiming to speak for consumers. Groups such as Public Citizen and the Public Interest Research Group seized on and promoted the Chinese toy panic for their own legislative ends and have taken credit for some of the law’s most extreme provisions. (The tracking-labels provision was added by then-Sen. Barack Obama.) Some of the same groups are active in the coalition now pushing for “traceability” principles in food and farm safety. New mandates being talked of include everything from machine-readable leg tags on backyard chickens to batch labeling of orchard fruit. Before ideas of that sort pass into law, one hopes the farm and food communities will study closely the experience of the Consumer Product Safety Improvement Act. Mr. Olson is a senior fellow at the Manhattan Institute. He’s covered the CPSIA controversy extensively at his blog Overlawyered.com.

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CPSIA – Walter Olson Op-Ed in Today’s WSJ

Crackdown on Toxic Toys (MI)

Another law is being proposed in Michigan that would require manufacturers to report exactly what chemicals they use in their products.

Click here to read the article.