CPSIA – CPSIA Amendment Process

I have been asked to explain how this week’s hearing relates to a “process” leading to a CPSIA amendment someday. Good question. I am certainly in no position to do anything more than give you my opinion. At the moment, the House Republicans have floated a draft (and still incomplete) amendment of the CPSIA. This is the third such major amendment try, but the first by the Republicans. The prior two amendments proposed by Henry Waxman died in the last Congress. You may recall many bills that have been proposed by various people to address various elements of the law. None of those bills have moved – they’re basically DOA but perhaps some current bill, like Ms. Klobuchar’s bill in the Senate, would eventually gain some traction. Next steps include completion of the CPSIA amendment and a vote on it in the House. The amendment must gain a majority vote in the entire House after it passes out of the Committee on Energy and Commerce. As usual, the Committee will seek a bipartisan approach if at all possible. The path forward is not clear in the House at this point. Assuming that the bill passes out of the House, then the bill proceeds to the Senate. Will they vote on it, propose their own version, or let it die? Your guess is as good as mine. There are definitely Senators left singing the old Waxman tune, we NEED this bill to PROTECT THE CHILDREN. Will they EVER relent? Will they ALL relent (that’s important in the Senate)? Stay tuned to find out. If the Senate approves its own version of the bill, a conference committee will form to negotiate a common bill for both Houses to approve. That’s probably where the action will take place, far from your intruding eyes. Presumably, Mr. Obama will be consulted and his agreement secured. Mr. Obama wrote part of the CPSIA. Ugh . . . . The last step is for Mr. Obama to sign the bill. We are not exactly dancing in the end zone yet, although we’ve made progress. There will be more action to come.

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CPSIA – CPSIA Amendment Process

CPSIA – Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a “risk of harm”. Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered – but in this case, the rumor mill is churning. That’s my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC’s response “out of context”.

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a “blogger” and a “Small Business” makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don’t have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it – for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email’s author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don’t you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

“The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it ‘might’ be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward.”

Email no. 2 (March 8, from our company):

“Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks.”

Email no. 3 (March 9, from CPSC):

“As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.“

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.

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CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – Jockeying for Position over the Database

The Washington Post published the latest whitewash on the CPSC public database yesterday entitled “Publicly accessible product safety database hits House roadblock“. In this article, the Post allowed consumer group favorite Rachel Weintraub to publish her own spin of matters: “‘There’s a lot of support for the database, but we don’t know how the dynamic is ultimately going to play out,’ said Rachel Weintraub, director of product safety and senior counsel for Consumer Federation of America. ‘This is really a last-ditch effort by manufacturers to hold on to this great situation they have right now, where information is not getting out to the public.’” [Emphasis added]

Of course, Rachel was simply borrowing a phrase from last week’s New York Times (“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”). [Emphasis added] When you have a great phrase, why not use it over and over?!

What’s the truth? Does it even matter anymore? Jennifer Kerr of the Associated Press questions the purported (asserted) value of the database, noting:

“Anyone can submit a “report of harm” to the SaferProducts.gov database. They aren’t required to have first-hand knowledge of the alleged injury or potential defect that could lead to injury. . . . The U.S. government has a similar auto safety database, also available to consumers online, that describes people’s safety complaints in extraordinary detail. It is the government’s principal early warning system intended to alert federal investigators to signs of looming safety problems. Yet despite efforts by the National Highway Traffic Safety Administration to review consumer complaints before they’re memorialized in the government’s database, an AP review of 750,000 records last year found that the data included complaints about slick pavement during snow, inconsiderate mechanics, paint chips, sloshing gasoline during fill-ups, potholes, dim headlights, bright headlights, inaccurate dashboard clocks and windshield wipers that streak.” [Emphasis added]

This is just what we in the small business community need – a government-sponsored, funded and promoted accumulation of unqualified miscellaneous gripes about our products. Do you think the media will ever take an interest in this stuff? Nah . . . .

And lest we forget, a familiar criticism of the database is that accusations can take a long time to resolve . . . but once posted to the Internet, can never be truly expunged from the permanent record. The year-long DryMax diapers controversy, not to mention the trashing of Toyota braking systems, demonstrate the severe risk U.S. manufacturers and importers face under the database. Imagine the long term damage to those brands if the accusations (subsequently proven false) never died . . . . Notably, Wayne Morris of the Association of Home Appliance Manufacturers called the new database nothing better than a “blog” because of these design defects.

The Washington Post failed to mention this nuance. Rachel must have forgotten to point it out.

I think it’s also worth considering the gap in how the CPSC describes the purpose and function of the database. Thanks be to Congress, is it clear WHY we have this database? Cheryl Falvey, General Counsel of the CPSC, says it’s a “complaints” database, NOT a “causation” database. She is pinning her interpretation on the disclaimers all over the website that the information on the site has not been proven and may be wrong. In other words, the postings can’t be relied upon. They are only “complaints” under this view. Ms. Falvey used this reasoning to dismiss complaints about process raised by pesky last-ditch manufacturers at last week’s ICPHSO.

Of course, if the postings are really just “complaints”, why did the CPSC name the site “SaferProducts.gov”? Doesn’t sound like a complaint website, does it? A long time ago, I complained about the website name to the person who claims to have coined it. I did not win that one, obviously. The URL includes the media-friendly term “safer” and makes an inescapble connection to Ms. Tenenbaum’s famous remark on website trustworthiness: “Well, to all of you here today, I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.”

I may not be the only one who thinks this, despite the website’s disclaimers.

This impression is reinforced by Chairman Tenenbaum’s own description of the ideal workings of the database in her keynote speech at last week’s ICPHSO: “I also envision the site empowering consumers to make independent decisions that further their own safety and the safety of their family. If a mom uses the search function on the site, sees a series of reports of harm about a product she bought for her child, and decides to take the product away from her child, while behind the scenes we are working to finalize a recall—that is a good thing in my opinion.“

That sounds like a “causation” database, doesn’t it? The implication is that the mom can rely on the information (it must be true) and besides, doesn’t an injury “incident” mean that a recall is coming soon? My immediate concern is that Ms. Tenenbaum is right – unqualified and unverified complaints on SaferProducts.gov WILL induce consumers to take our products away from children – whether or not a recall is forthcoming. We also know that Ms. Falvey is right – no one knows if the complaints are true – but who will reimburse our losses when the government convinces our customers that the safest course of action is to stop using our product pending a decision that may never be forthcoming . . . because nothing’s wrong.

The Chairman is encouraging consumers to rely on this information – to draw conclusions on the likelihood of future injury. This is even more alarming, given that Ms. Tenenbaum said in Congressional testimony last week that the agency will likely post unverified or inaccurate information to the database. She knows that this information will be faulty. As she said in testimony, “that’s what the rub is”.

That’s the rub, indeed.

I am tired of the rub, indeed.

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CPSIA – Jockeying for Position over the Database

CPSIA – My Comment Letter on 100 ppmLead Standard

774 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 36 days left until Election Day.

My comment letter submitted today on the proposed 100 ppm lead standard due to be inflicted on August 14, 2011:

September 27, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 502
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)

Re: Docket No. CPSC–2010-0080 Children’s Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on Children’s Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content (Docket No. CPSC–2010–0080) published in the Federal Register on July 27, 2010 (the “Proposed Rule”).

You have requested feedback and additional information on several topics relating to the prospect of a new lower 100 ppm lead-in-substrate standard. I will attempt to respond to your specific queries at the end of this letter. I find that the questions you have articulated are basically irrelevant to our company’s situation. Your questions seem to presume that the standard will be implemented. If you take the step of implementing the new standard, you will be inflicting needless and extension damage to our company with absolutely no corresponding benefit to consumers or the general public. This is terrible and irresponsible public policy. The new standard is not based on science but rather phobia and fear of the unknown. Our business will suffer for no purpose. The jobs lost will at your hand.

I want to comment on process. The agency appears to be in a race to complete its CPSIA rulemakings before year end, damn the consequences. According to www.regulations.gov, the CPSC received 73 comment letters on the Proposed Interpretative Rule for “Children’s Product” (CPSC-2010-0029 due June 21, 2010). Nevertheless, as has been widely reported, the agency ignored or glossed over the vast majority of those comments (including all of mine) and pronounced the draft rule to be “final” with virtually no changes. This flagrant disregard of public comments turned the CPSC’s rulemaking process into a sham if not an outright breach of law. I believe the agency intends to pass through rulemaking this year to avoid the embarrassment of further extending the CPSIA testing stay due to expire on February 10, 2011. The incentive to give short shrift to our comments grows daily.

I have lost faith in the sincerity of the agency’s interest in public comments after two years of being completely ignored. To judge by the agency’s disregard of my numerous comment letters, I must add little to your deliberations – in which case I do not understand why you ask me to waste hours on letters like this. After all, if you have no interest in my views, why not let me spend my time on other more productive activities? Unfortunately, I have also learned that any silence by stakeholders will be interpreted as “approval” by the powers-that-be. Thus, we are left with no option but to write these letters. With those thoughts in mind, I hereby submit my comments on the 100 ppm lead standard, fully anticipating that I will be ignored yet again.

I am aware that the agency contends that it is “compelled” to implement this new standard without regard to economics. The extremely rigid legislative language governing the implementation of the 100 ppm standard is thus portrayed as insurmountable. Is the agency truly powerless to resist? I might take that position more seriously if the agency was equally committed to following the law in other aspects of its daily affairs. However, the CPSC exhibits no such self-restraint. CPSC recalls initiated in flagrant disregard for the “substantial product hazard” standard in Section 15 of the CPSA demonstrates that the agency can invent legal flexibility wherever it wants. For instance, the CPSC pressed for a recall of McDonald’s Shrek glasses (signifying that the glasses were a “substantial product hazard”) despite this June 4th acknowledgement by the agency’s Director of Public Affairs in a tweet: “Scott_Wolfson: Note to reporters: the recalled McDonald’s glasses are not toxic.” Safe glasses do not constitute a “substantial product hazard” by any definition – yet the agency proceeded anyhow.

So when does the law actually matter, precisely? If safe drinking glasses may be labeled a “substantial product hazard”, then I guess anything goes. I find it worrisome to be regulated by a federal agency which does not abide by a disciplined interpretation of law but instead caters to prevailing political whims. If the law means nothing, then the agency should not presume to assert its inability to resist this provision. I think that’s just too convenient to be believable.

My comments on the proposed 100 ppm standard are informed by my view that the agency can do as it pleases. I have not restricted myself by the fiction that economics don’t matter.

The problems with the 100 ppm Lead Standard:

a. The new standard will have NO impact on human health. There is simply no evidence of injuries from lead at levels between 100 ppm and 300 ppm in substrate. It is notable that no other federal agency (NIH, CDC, EPA, FDA, etc.) has identified lead-in-substrate as a human health hazard. Without evidence of injuries at these barely measurable lead levels, the new standard cannot be justified economically or otherwise. It is worth noting that if the “cost” of lead-in-substrate levels of 100-300 ppm cannot be measured, the “benefit” of the new standard will be equally elusive. Given the known costs of this initiative, the new standard fails any conceivable cost-benefit analysis.

I published a study of CPSC recall data from 1999-2010 in my blog (www.learningresourcesinc.blogspot.com) in May 2010, revealing that only one death has been documented in association with lead in children’s products in the last 11 years, and only three (unverified) lead injuries in the same period. This is substantially fewer childhood fatalities and serious injuries than swimming pools and spas cause in an average day according to CPSC statistics. Given the trillions of daily interactions between children and Children’s Products in the course of a year, these meager 11-year lead injury totals are the statistical equivalent of no injuries. Thus, it will be impossible to prove statistically that any reduction in injuries flows from the change in standard. Troubling? Fear of lead-in-substrate is nothing more than a Congressionally-endorsed fear of cooties.

b. The new standard will substantially raise our product costs. The new standard means we will need to implement much tighter manufacturing tolerances for materials and for our processes. The many extra man-hours needed to implement and maintain these tighter tolerances will be expensive. It is difficult to estimate the cost, but we project a 10-20% increase in cost for finished goods subject to the new standard. Subcontractors who manufacture our goods will charge us for the risk of waste, plus the additional overhead required by the new standard. That is, they will charge us more if they are still willing to remain a vendor of Children’s Products subject to this standard. We are a small business, so many of our factories may feel our short runs are simply not worth the risk. That’s how I would look at it if I were them. Loss of vendors (manufacturing capacity) is yet another cost we would bear under the new standard.

It is worth noting that based on the results of our last two years of testing (thousands of testing line items), we estimate that less than 2% of our testing line items fall between 100 ppm and 300 ppm in lead as of today. The cost of trolling for those few affected components will be excessive and the waste associated with replacing “defective” materials will be a tax on our entire production and fulfillment processes. Not exactly a stimulus program. . . .

c. Our ability to control lead levels is unknown because test result variances are so wide. We have found that testing multiple samples from the same lot can show variances of up to 67% in lead content. It doesn’t take much variance to produce wild percentage swings at such trace lead levels. As an illustration, I have attached hereto a test report on a SINGLE PIECE OF PLASTIC STRING used to fasten a mesh bag. The string was tested in ten places, resulting in lead levels of 239 -275 ppm. In another case, we found three test results of the same yellow plastic substrate varied from 23 -139 ppm. None of this matters from a safety standpoint but from a regulatory standpoint, it’s a crisis in the making.

These small variances potentially endanger our business. How are we supposed to run our business selling inexpensive children’s products burdened by such an inflexible physical standard? The CPSC needs to recognize that substrates in the real world are not pure, consistent and invariable. The tight tolerances in this new standard will likely have us retesting several items a month at considerable expense and strain. [And G-d knows what standard the CPSC will inflict on us to govern retesting.] Each retest would presumably interfere with our ability to deliver on time and would stress our system and our people. Out-of-pocket costs would be high, perhaps over $100,000 per annum for our product portfolio of 1500 items; labor and other frictional costs would no doubt add to this total substantially.

d. It will be impossible to predict which components will fail. As test results tend to vary significantly for components from the same lot, it is difficult to control or predict problems. We have found violative results for many different materials used in our business – there is no pattern. Defects found in certain components might render the entire finished good worthless, potentially greatly increasing our losses. For example, an inexpensive backpack might be found to have a zipper that violates the new standard upon completion of the production run. This could happen even after extensive pre-manufacturing testing because physical goods tend to vary in composition. Perhaps only a tiny percentage of the zippers violate the new standard by a few ppm, but given the cost to repair and rehab the item and the practical inability to identify violative zippers, the entire lot of backpacks might have to be scrapped. There would be an increased incentive to substitute components across entire product lines, not because of any health or safety concern but simply to avoid regulatory compliance risk. Differences in utility would be a secondary consideration to avoidance of CPSC recalls or scrapping finished goods inventory. This situation would not be stable because consumers would not likely accept lower standards for our products just to mollify the CPSC – other seismic market changes could be anticipated.

e. The legal risks implicit in the new standard are simply intolerable. Let me ask you a question: how would you attempt to manage a major risk to your business caused by less than 2% of your activity? What if you had no idea WHICH 2% it was? What could you do? I think you might reevaluate your business model. Most people don’t roll the dice on their family wealth or their regular income. By imposing a standard for lead-in-substrate that is barely above measurable levels, the agency would be imposing EXACTLY this risk on us.

We believe we would be exposed to a daily risk of assault by consumer groups and other do-gooders bent on our destruction. This combat would be divorced from considerations of safety – it would be all about regulatory compliance. Our business purpose is not to pay fees to CPSC Bar attorneys, write up Section 15 reports or perform recalls. We do not have the profit margins to finance this kind of wasteful activity and do not have the spare capacity to deal with the regulatory “crisis of the day”. The legal risks of such conflict can quickly get out of control – and insurance is simply not a viable option economically. If we must bear these heightened risks, we will have to revisit our business model.

I hope the agency will not dare the children’s product industry to go belly up just to prove this point.

f. Companies, acting in good faith, are generally INCAPABLE of adopting the new standard as a practical matter. Everything can be made of low lead materials. Zippers can be made of platinum, alphabet blocks can be made of wood, cotton fibers or rhodium. Use of recycled materials can be discontinued (the anti-green movement). Durable and inexpensive materials used for years without incident can be discarded in favor of “purer” materials. All of these things are possible. But they are not practical and they are not economic. If we are to indulge the fantasy of the money-oblivious CPSIA, then whatever we can imagine is possible and money doesn’t matter. This is regrettably unrealistic – businesses exist in the real world and money DOES matter. Thus, companies operating in good faith can’t adopt the new standard if their business model is scrambled.

g. Dealers in our goods can be expected to adopt their own standards to create a regulatory “cushion”. Distributors and retailers have been building their own safe harbors to provide CPSIA protection over the last two years. We have many customers with unique and wildly variant compliance requirements despite the crafting of thousands of pages of rules from the CPSC under the CPSIA. Our dealers can always beat the CPSC in a game of “Can you top this?” If the agency implements a 100 ppm standard, we fully expect a new outbreak of “regulatory compliance exuberance” among retailers. What will happen to us under those circumstances? With a CPSC-fed mania, we will incur yet more costs and bear yet more risks. Our markets will shrink.

h. We believe these rules will so demoralize and de-motivate our staff that we will face high turnover rates among our employees who know all of your rules. Our regulatory compliance team is not on “work release” from jail. Their jobs are not intended as a form of societal punishment. If, however, compliance with the CPSC’s bureaucratic rules becomes too tedious or risky, or the stress of managing a string of crises and a blizzard of conflicting rules becomes overwhelming, our trusted associates will seek less stressful employment elsewhere. They don’t HAVE TO do this for a living. What is the CPSC planning to do to help small businesses who find themselves back at square one after a costly investment of thousands of dollars in specialized training? Is the new CPSC Small Business Ombudsman going to wave a magic wand to make our problems go away? I think we all know the answer – too bad for us.

Here are the answers to your questions:

1. Materials that are consistently under 100 ppm in lead content. You have previously provided a list of such materials for the 300 ppm standard. This list included some useful concessions, such as wood and cotton fibers, but also included useless and irritating examples like gold and platinum, gemstones and various byproducts of nuclear decay. In our experience, the common substrate materials used in educational products have varying (trace) levels of lead. As noted above, we have seen significant variances in lead content in a single string, and in substrates taken from the same lot. I have no confidence that any material we use can be proven to ALWAYS contain than 100 ppm lead.

2. Strategies or Devices to comply with the new 100 ppm standard. The only strategy we could employ is pre-manufacturing testing on materials with substantially increased testing frequency. As noted above, natural variances among many materials prevent us from creating any reliable safe harbor and cost increases from such testing activity (and the cost of scrapping otherwise acceptable raw materials) will greatly shrink our product line. As a consequence, we would likely have to sharply reduce our product line or go out of business – all thanks to the CPSC and our Congress!

3. Consequences of use of compliant materials meeting the needs of the product. We have not spent any resources evaluating the market demand for educational products made of platinum. We do not intend to switch over to osmium or ruthenium for their purported lead-free properties (we find toxicity to be a greater concern). We have not spent our time figuring out if gold is a suitable material for pattern blocks or our Reading Rods. There is no answer to this ridiculous question. As I mentioned above, more than 98% of our test line items complies with the new standard. The materials and components that fail do not fit a pattern. Tests are inconsistent, too.

4. For products that meet the 300 ppm standard but not the 100 ppm standard, provide data on compliance. As noted, we find that we are already 98%+ compliant with the new standard. The components that fail do so unpredictably and inconsistently. Even the same material out of the same lot produces varying test results, as do multiple tests of the same piece of string. We cannot run a business based on junk science intolerance of the world that G-d created. The crazy new 100 ppm lead standard is incompatible with variances found in the physical world.

I want to reiterate that the 100 ppm standard is entirely arbitrary and will save no lives and will preserve no IQ points.

5. Can such items be made compliant through use of other materials? Sure, of course they could. They would be unsalable because the products were rendered too expensive either by the engineering cost or the new materials cost. Is creating products that no one will buy an acceptable solution to this dilemma? Whether by economics (too costly to buy) or re-jiggering of business models (discontinued products), children will be purportedly “safer” because they will lose access to needed products. What a wonderful result! Does the CPSC advocate that American schools teach physical science with photos of magnets, paper clips and rocks? Perhaps we should revert to rote-and-repetition math education rather than modern techniques of hands-on learning. No doubt the CPSC would singlehandedly solve our national education crisis. Bring on pointless material substitutions and let the fun begin.

6. Best practices to be used to always comply with the new standard. I recommend dropping most products and only making items that are CERTAIN to be compliant. This in practical terms may be impossible, and as noted above, is completely uneconomic. Another good practice to discard everything that isn’t virgin material. I know that’s not “green” but we have to be really, really safe, right? Another super idea is to substantially increase our testing, but of course, we cannot afford the current level of testing as it is. That seems somehow unrealistic. Other strict controls on manufacturing seem equally out of reach. There are so many variables to manage to achieve the new standards – we must control the factory environment as though it were a hospital ICU. That’s just not possible at current cost levels. Our factories would have to be “restructured”. I bet the Small Business Ombudsman can coach us on this!!!

Please note: we don’t have to reorganize our factories because we don’t have to stay in the children’s product market. If the CPSC expects us to reorganize our entire way of doing business to accommodate a phobic standard not based on any observable public health problem, we may opt out. Is this really the purpose of the CPSC – to micromanage markets, to restructure the economy, to substitute for market forces? I think not. Please check the CPSA to see why your agency exists. I hope a Republican-controlled Congress will do exactly the same thing in a few weeks’ time.

7. The lowest technologically feasible lead level below 300 ppm in our products. We can achieve anything for a cost. There are no “lowest” levels. Why not specify entirely lead-free? We can make everything out of gold and osmium! Lay in a few gemstones and diamonds, and you will have a sparkling new toy that cannot poison anyone with lead. It may have other problems (choking hazards? Sharp points?) but at least no one will die from lead poisoning. Not that anyone did previously . . . .

8. The date by which our products can meet the 100 ppm standard. In my opinion, the date is NEVER, because we have no practical ability to control quality to the level you require. Even at our current 98%+ compliance with the new standard, it would be extraordinarily disruptive to attempt to be 100% compliant. After a few episodes of being shut down by the CPSC or sued by some lunatic consumer group over nothing, we would exit the market. If you intend to deprive us of the meaning and pleasure of our work to make children’s lives better, we’ll leave the well-being and education of our nation’s children to you. That would be a very sad day for us.

Thank you for considering my views on this important subject. This letter took me all day; I hope you won’t completely ignore it as you have all my other letters.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Read more here:
CPSIA – My Comment Letter on 100 ppmLead Standard

CPSIA – What is a "Substantial Product Hazard"?

Read more here:
CPSIA – What is a "Substantial Product Hazard"?

CPSIA – Hearing on Testing Stay and Interim Enforcement Policy

There was an important hearing yesterday at the CPSC on the testing stay as well as on the announcement of another interim enforcement policy on component and lead-in-paint testing (their third). I was able to watch about 1:40:00 of the hearing before I lost the signal. I think I got the gist of it, and wanted to give some highlights here.

First and foremost, the tone was relaxed, friendly and open. I want to compliment the Commission and CPSC Staff for making an effort to change the “feel” of their communications. I have not lost sight of the fact that substance matters . . . but so does choice of words, actions and tone. In this space, I have criticized Gib Mullan for this in the past. I would now like to publicly acknowledge Gib for taking pains to communicate his new enforcement policy in a reasonable and business-like tone. There were no threats; quite to the contrary, Gib portrayed the interim policy as flexible, reasonable and measured. I appreciate that.

The Commission and the CPSC Staff are also asking better and more sensitive questions, like whether there is enough lab capacity to do all the tests when required (for instance, there is apparently ONE lab approved to test bikes), how much lead time industry needs to adjust to the component testing rules, whether people are testing components now, and so on. Jay Howell even advised the Commission to weigh the impact on regulated industries when considering how or to what extent to lift the stay. This line of reasoning is another sign that we are being heard, and the issues confronting regulated businesses are on the radar . . . finally.

The content of the hearing was essentially technical. This lengthy discussion was all about compliance with the new requirements. The rules implementing the blessed CPSIA are ornately complex. Mullan in fact informed the Commission that his new interim enforcement policy is replete with footnotes – in other words, the micro-print is now getting smaller. NONE of the discussion involved SAFETY or any discussion of risk.

Let’s consider what that might mean. The CPSC seems obsessed with paperwork now. The two hours I watched were all about how companies might comply, whether they could comply, what forms they had to fill out, who had to perform tests and when, and so on. Of course, that is a critical subject to discuss . . . but it struck me as odd when these details droned on and on without a single mention of the purpose of the discussion – making kids safer.

It is hard to see how this byzantine structure will achieve better safety. To me, the new scheme is all about bureaucracy divorced entirely from purpose. This is the CPSC that the Commission apparently thinks Congress legislated – a bureaucratic agency, one no longer empowered to allocate its resources to prioritized safety threats, instead relegated to paper pushing. Congress has redesigned the agency to be administrative in nature as it relates to children’s products. By defining “safety” precisely in the CPSIA for the CPSC to administer, it forbade the agency from exercising judgment. Likewise, we in the business community are no longer trusted to exercise judgment or operate without governmental supervision. The Nanny State knows best, better than the business community or even the CPSC, and insists now that the CPSC stop thinking and just administrate.

With this new focus, the conversation about safety has taken a bizarre turn, in my opinion. The discussion is principally about how companies can comply. That is the standard against which the new CPSC policies seem to be evaluated. Is there enough testing capacity? Can companies afford it? Can a “home crafter” find paint that was tested by the manufacturer? [By the way, this is a so-called voluntary test - Congress in its INFINITE wisdom decided that makers of children's toys must test paint, not people who actually produce the paint, thus the CPSC has to hope and pray that paint companies will test their paint. Nice!] Which components need to be tested on a little dress? Only the buttons, yippee! No mention of safety or the purpose of this exercise. The high point occurred when both Chairman Tenenbaum and Gib Mullan volunteered that most paint is already certified to be lead-free. This was stated without irony, despite the 20 minutes tortured lecture on how to test paints to ensure compliance. Safety, what’s safety?

So are things now as simple and easy as portrayed? Robert Adler asked if any groups besides the Handmade Toy Alliance had contacted the CPSC with concerns about the lifting of the stay. Jay Howell said no. [My ego survived this minor bruising!] Putting aside the massive failure of business people and trade associations to effectively lobby on this issue, this seems to portray business people as accepting of the lifting of the stay, or at least highly unmotivated on the subject. Ergo, it’s fine to let it go.

What might a lifting of the stay mean? We’ll all have to test. Test what? Ah, that’s the rub. It’s so complicated that I can’t begin to attempt to explain it here. It took them Powerpoint slides upon slides to lay it out, and it is full of asterisks and exceptions. A taste: there still is no phthalates standard or any approved phthalate testing labs or any approved ASTM F963 testing labs. [Makes me wonder what I have been paying for all these years in our tests against F963. . . .] So testing will only be required against some rules, not all, and as new rules come into effect, you will have to figure out what additional tests are required over time. Good luck getting it right.

Sadly, the agency avoids the issue of complexity by focusing on whether it’s POSSIBLE to comply. They put up a photo of a little dress, announce with satisfaction that only the buttons need to be tested, and then assert that button companies will test those buttons to preserve their market. Okay, let’s concede that point – it’s probably true. Does that solve the problem? Not if the rules are so complicated that no one understands them. Even if you understand them, will the people you deal with understand them the same way (your customers, your consumers, consumer groups, the CPSC, Customs, 50 State AGs, the Chicago Tribune, and so on)? THIS ISSUE I have raised again and again (so when the Commission asks about complexity, I want a plug!] Very few people understand these rules so is it realistic to assume they will follow them (even if they are able to comply)?

A typical problem for people who are immersed in something complex and highly-specialized si forgetting that everyone else is not as immersed in the details as they are. It’s a big wide world out there, but the CPSC may only be dealing with people who have invested the time and energy in understanding the complex rules as they have. This may make it look like EVERYONE gets it but in fact, they don’t. The 800 lb. gorilla here is the silence of the majority. What do they know and understand? Not much. This is where the expression Keep It Simple, Stupid (The K.I.S.S. Principle) comes from. The new rules are anything but understandable AND the CPSC tries to solve each identified problem by adding more and more complexity (more rules and exceptions).

So what have we here now? We have a much more congenial and seemingly well-intentioned CPSC that finally grasps the nature of the mess with the regulated community and is trying hard to change course and create a workable solution . . . but all within the context of a law that makes no sense. So to do that, they are building an entirely unworkable sets of rules, unworkable because no one could possibly understand them. Each rule violation is the possible subject of a lawsuit by an eager plaintiff’s attorney, a newspaper investigation spurred on by a consumer group or the subject of a fine or possible jail time, or all of the above. Fear of these externalities will scare people out of the market, simply because they know they can’t control their business environment. This is real. I personally fight these fears every day – and I am someone obsessed with these rules and know them well. But not perfectly. Of course, we could do something else with our time, our resources and our people – but we don’t want to. We are very devoted to the education business and are trying to defend our right to engage in that endeavor without undue risk.

The sad fact is that the CPSC cannot create a workable solution, even with a smile on their faces and good intentions in their hearts, without addressing the deficiencies of the law. A nonsensical law cannot be fixed with implementing rules. At some point, the CPSC is going to figure this out when they see that compliance is very low, and they are overflowing with violations. The rabid and compromised consumer groups have demonstrated their utter lack of character in hunting down technical violations, like sandal insoles, and then mobilizing self-interested local politicians to enforce without even talking to the CPSC. We can certainly expect them to continue to hound innocent makers out of this market.

The details of this hearing are also interesting. The CPSC will be releasing a definition of a “children’s product”, “toy” and “childcare item”. This is a possible hint that some items or product categories may be excised from the law, perhaps including certain educational items used in schools, some kinds of apparel, ATVs and so on. The CPSC Staff has crafted some interesting solutions to testing of lead-in-paint and components, that will help lower costs significantly. They also are aware of the heavy load carried by small volume manufacturers with fixed testing costs and are trying to find an economic solution. They even acknowledge that larger companies also make low volume products, meaning that solutions need to take EVERYONE’S situation into account. All of this is good, it’s progress . . . but it’s not enough. The Commission needs to attack this law and push Congress to get it fixed. If this Commission does not want to leave behind a neutered and impotent CPSC, crippled by a hornet’s nest of ineffective rules, it needs to take on this ultimate battle.

I certainly hope they won’t duck this very important pitch.

Read more here:
CPSIA – Hearing on Testing Stay and Interim Enforcement Policy

CPSIA – Consider the Source (Part II)

From an article in today’s BNA entitled “Need for CPSIA Changes Debated”, “In an interview with BNA, Nancy Cowles, executive director of Kids in Danger, praised the commission’s July decision on fashion jewelry accessories. Cowles told BNA that lead is a severe toxin with no safe level. She added that while more common sense could be applied to determining which products are hazardous, consumers overall do not want products containing lead. “People will come up with other ways to put [jewelry] on children’s clothing that isn’t toxic. Whether the lead [in rhinestones] leaches out fully, it’s hard to know, but we don’t want lead in our children’s products. We will come up with other ways to decorate our clothes,” Cowles said.” There are other quotes from consumer groups in this article that set my blood ablaze, but I thought this one deserves special “heralding”. I should note that I have written about rhinestones extensively, and debunked the opinion expressed by the estimable Ms. Cowles thoroughly. [See my "Jewelry" tags.] You may wonder, why do I care so much about rhinestones. Our business does not use rhinestones, so what’s the big deal for me? Rhinestones is a poster child for the stupidity of the law. The impact of the CPSIA on rhinestones is the impact that is bedeviling the entire children’s product industry, from toys to books to shoes to bedding to what-have-you. If rhinestones go down, safe as they are, we all go down. If we can save rhinestones on a rational and fair basis, perhaps the rest of us will get fairer treatment. That said, I have a couple comments on Ms. Cowles’ remarks. First of all, she is fear mongering, not advocating for you and your children. She says rhinestones are “toxic” – I say “prove it”. The people behind the CPSIA are left with few options to save their precious law but to deceive the general public about health risks. The case on rhinestones is out there to be examined by Ms. Cowles. Why not attack rhinestones with data and analysis? Because no data or analysis exists to weaken the case FOR rhinestones. The “there’s no safe level of lead” mantra is faulty. We already consume plenty of lead in our air, our food and our water daily. The rationale that trace presence of lead in children’s products is somehow the health “tipping point” has never been proven and frankly cannot be asserted on a reasoned, scientific basis. The lead we consume in our normal daily activities dwarfs the lead you might ingest from casual contact with children’s products. If there really is “no safe level for lead”, then our wise Congress should attack the big sources of lead first, and leave the rest of us for later. Second, Ms. Cowles is sending a lot of people down the river with her casual condemnation of rhinestones. I would note that many industries use rhinestones in their products. The people who run those companies, are employed by those companies, are supported by income from those companies, trade with those companies or value those products in their lives, will ALL lose if the likes of Ms. Cowles get to run our society. Does that make ANY sense to ANYONE (besides Ms. Cowles)? I keep thinking of the prescription she offers for living a safe and wondrous life. She says we will (and should) find something else to decorate our products with. Perhaps Ms. Cowles decorates herself with the jewels from Pretty, Pretty Princess . That’s what she is suggesting, that we get used to plastic jewelry. Perhaps Ms. Cowles can live with getting gifts for her kids from a vending machine, but that’s not how I want to live. As I have noted before, inexpensive stones are a way for people to bedeck kids with jewelry inexpensively. Rhinestones are important to a lot of people, some of whom may not have the economic wherewithal to switch to diamonds and rubies. In addition, it’s an inexpensive way to let little kids have a bit of bling. If you are trying to make your little kids look special for social, cultural or religious reasons, I think Palladium earrings may be somewhat impractical for most people. Little kids to tend to outgrow their clothing and shoes quickly. Parents can’t really afford to buy and rebuy clothing and jewelry using precious stones as their kids grow, and may never warm up to Pretty, Pretty Princess jewelry. If this is the way it has to be, I think we should think more insightfully about who is writing the rules for our society. Increasingly, the recommendations of consumer advocates are ringing more and more hollow. How crazy has the world become? Consider this quote from the November 2008 “Trouble in Toyland” report issued by the Vermont PIRG: “Some children’s toys, jewelry and cosmetics may contain toxic chemicals, especially lead and toxic phthalates. . . . PHTHALATES AND OTHER CHEMICALS Avoid toys made of PVC plastic; which often contains phthalate softeners. Choose unpainted wooden or cloth toys instead.” Yes, PIRG wants us to use cloth toys and plain unpainted wooden toys to be “safe”. But how “safe” are these toys? The CPSC, after due consideration, has informed us in their new phthalates testing standard : “Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are . . . Natural wood [and] Textiles made from natural fibers, such as cotton or wool . . . .” Uh-oh! PIRG is telling you to buy products that MIGHT contain phthalates! Ouch. [To be fair, I have no idea how phthalates would get in there, but heck, the CPSC says they MIGHT. They must know something I don't.] So PIRG has it wrong – we can’t even play with cloth toys or wood. What’s left? Rocks. Oh, no – rocks need to be tested for lead, phthalates and sharp points! Well, perhaps after the Residential Rock Roundup is wrapped up, we will all be safe to move into caves to play with our rocks. Ms. Cowles, get your own cave – you can’t play with my rocks.

View post:
CPSIA – Consider the Source (Part II)

CPSIA – Your Vote Really Matters

I need your help figuring something out. I was thinking about lucky Mattel and its seven certified internal testing labs. Since safety test reports are not the same thing as safety itself, I believe it is likely that some items tested in the Mattel proprietary labs will someday be recalled.

Originally posted here:
CPSIA – Your Vote Really Matters

CPSIA – Small Business: We’re On Our Own, Baby!

Rumorville has it that the Waxman-dominated House Committee on Energy and Commerce will hold long-awaited hearings on the CPSIA on September 10.

See the original post here:
CPSIA – Small Business: We’re On Our Own, Baby!