CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress’ inaction on the CPSIA.  Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee). Thank you! “Hi.  At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far. But we still need your help. Urgently! A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules. This amendment ( H.R. 1939 ) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business. This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action. Help us bring commonsense back to our product safety rules. Time for action is now. Your voice matters. Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress. Click here to make your voice heard and help get action on this important issue. Thanks. Steve Lamar Executive Vice President American Apparel and Footwear Association Please see below some important resources: – Copy of NAM ad that appeared in the Hill Newspaper urging action – Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment – Editorial from The Wall Street Journal – Read ECADA ”

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CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

What happened on July 20th at the CPSC Commission hearing?  I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online.  Apparently Inez Tenenbaum made some blanket statements rejecting the President’s Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA.  Of course, how would I know what she said?  The video at the Sunshine State of the CPSC is not available to me.  Two days later . . . .  Hmmm.  Do you think they are waiting for me to forget about it??? While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things.  First, BNA in an article entitled “CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity” dated July 20 quoted Ms. T as follows:  “And in a July 20 public meeting on the agency’s priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. ‘ To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed. ‘  She said CPSC has committed to conducting a retrospective review of its regulations, per Obama’s Executive Order, and ‘we will begin our retrospective review and we will solicit comment.’”  [Emphasis added] Fiction, eh?  Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard : “Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors .”  [Emphasis added] Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a “regulation” but is instead a “statutory mandate”.  There is no such thing as a “mandate” in this context from a legal point of view.  See the definition of ” mandate “.  Essentially, what the regulators are referring to as a “mandate” is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.  [It's okay, let it out.  I just doubled over in laughter myself.] What DID Congress tell the CPSC to do about 100 ppm in the CPSIA?  The law instructs the CPSC as follows: Section 101(a)(2)(C):  “100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products .” Section 101(a)(2)(D):  “ALTERNATE REDUCTION OF LIMIT.— If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act.” Section 101(e):  “PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section .” [Emphasis added]  Section 101(e) refers to the process that just concluded as a “rulemaking proceeding”.  I don’t know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me.  This is not a direction to reach a particular conclusion – if it is a “mandate” at all, it is a “mandate” to go through a classic regulatory process.  Read the instructions yourself, it’s right there. President Obama’s Executive Order reads as follows (in relevant part): ” By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows :  Executive Order 13563 of January 18, 2011, ‘Improving Regulation and Regulatory Review,’ directed to executive agencies, was meant to produce a regulatory system that protects ‘public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.’ Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law , independent regulatory agencies should comply with these provisions as well .”  [Emphasis added] Ms. T interpreted the words “to the extent permitted by law” as “to remain true to their statutory mandates”.  Ms. T, a lawyer , is blatantly wrong, laughably so.  Unfortunately, it’s not funny. Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA.  Of course, you know I think that’s a bunch of bunk.  The President’s Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her.  I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.  Does the CPSIA mention “cost-benefit” anywhere?  I am glad you asked . . . .  The CPSIA uses the term “cost-benefit” only once (outside of the Table of Contents): “SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970.  Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.’” If Congress was so concerned that cost-benefit should never apply to these provisions, why didn’t they say it?  They weren’t silent on cost-benefit – Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970.  But as it relates to lead and phthalates, Congress was silent on cost-benefit.  Why might they have been silent?  Perhaps the authors of the law believed it was an illegal provision as applied to these rules.  Perhaps the Dems behind the law felt the CPSIA wouldn’t pass if such an obnoxious term were included in this critical part of the law.  Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn’t write themselves.  As this week’s WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore.  They can run rampant over our laws, our companies, our markets, our jobs, our lives.  They are the law, they are the judges, they are the jury.  They know what’s best for us, and no public hearings are going to change their minds.  Oops, make that no Presidential Executive Order will change their minds . . . .

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CPSIA – What Exactly Happened at the July 20th CPSC Commission Meeting?

CPSIA – NAM Ad In The Hill Supporting Passage of ECADA

From The Hill Newspaper, dated July 21, 2011: The time left to Congress to act on amending the CPSIA before the 100 ppm lead standard boom crushes more businesses and jobs is only 24 days .  [ Html version of the ad ]  This includes the time to get through the Senate, then conference, then to the President for signature.  Not a lot of time . . . and par for the course for this government, I suppose.  Will they act in time?  I certainly hope so but with Henry Waxman doing his evil best to prevent any progress on this issue, I don’t have high expectations.  Let’s hope some Democrats still have a conscience.

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CPSIA – NAM Ad In The Hill Supporting Passage of ECADA

CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

Last week, the Democrats took action to protect you and your kids from the perils of lead.  As we have been relentlessly reminded by non-scientists, there is “no safe level of lead” – just ask Bob Adler and Inez Tenenbaum.  Now, in the wake of the conclusion that reducing lead content from 300 ppm (lead-in-substrate) to 100 ppm will produce “minimal” health benefits (read, none), the CPSC Commission voted three Democrats to two Republicans to reduce the lead limit to 100 ppm.  Reducing lead standards from 300 ppm to 100 ppm can be expressed a different way mathematically.  This is a reduction from 99.97% lead-free to 99.99% lead-free.  [ Credit to Anne Northup for the mathematics!] This will cost billions and the economic devastation was ALSO documented by the CPSC Staff in their analysis on the 100 ppm standard .  Nevertheless, the non-scientists who rule the roost at the CPSC saw nothing but health upsides in this technologically feasible but economically absurd feat.  And, as we know, injuries to children have an infinite value when you are unable to assess risk.  The numbers work out – yes, the cost may be in the billions and the reduction in incentives will cost yet more, but the savings are infinite!  Even one avoided injury is an infinite savings.  Queue the tears . . . .  What-a-deal! Ironically, last week the EPA bowed to political pressure and in an exercise of common sense, eased up on precautions against lead-in-paint in housing stock.  Hello?  Did you catch that one?  Twelve Senators signed a letter in April to protest this proposed rule as excessive and damaging to small business, and bingo, something good finally happened.  Olympia Snowe was so delighted that she put out a press release to celebrate it.  Please note that the EPA acknowledges that lead-in-paint in housing stock is the principal source of lead poisoning in the United States.  [It sure ain't toys.]  They have previously acknowledged in writing ( lucid writing, actually ) that their rules on lead need to be measured and that the economic impact of their rules must also be carefully assessed. The EPA does not attach an infinite value to injuries, even to children .  They aren’t idiots.  Draw your own conclusions. Hello, Senators, anyone home? The foundation of the “no safe level of lead” slogan has been laid by the American Academy of Pediatrics, a political organization masquerading as a professional organization.  This organization was aggressively and justifiably attacked by Anne Northup during the 100 ppm Commission meeting.  It is rare to see anyone attack these people, perhaps besides me (not a fan . . .), but do they ever deserve it.  Here is what Dr. Dana Best of the AAP told a House Subcommittee on April 7, 2011: ” Exposure to lead is amply documented to cause the loss of intellectual capacity. On average, children whose blood lead levels (BLLs) rise from 10 to 20 micrograms per deciliter (mcg/dL) lose two to three IQ points. More recent studies have shown an even greater impact on IQ of BLLs under 10 mcg/dL. Key studies reported a loss of 4 to 7 IQ points in children whose lead levels rose from 1 mcg/dL to 10 mcg/dL. These studies suggest that “low” levels of exposure – meaning BLLs less than 10 mcg/dL – cause proportionately greater harm than higher levels. . . . The medical and scientific literature are in substantial agreement that an increase of 1 mcg/dL in blood lead level is capable of causing the loss of approximately one IQ point in children whose blood lead level is under 10 mcg/dL.”  [Enphasis added] Dr. Best, well-known for her fear of children licking bicycles , has previously posited “millions” of victims of lead-in-substrate .  Despite taking such a dramatic stand, Dr. Best cannot seem to name even ONE victim or lead-in-substrate or provide a single case history demonstrating that such a victim has ever been located . . . anywhere.  Not even one.  Doesn’t matter, apparently.  When you’re right, you’re right. But is Dr. Best actually RIGHT?  Fascinatingly, when Dr. Best plugs the notion that driving lead concentrations below 10 mcg/dl will have some defined (definite) health benefits, she flies in the face of the official AAP Policy Statement on Lead Exposure in Children (recently restated on May 1, 2009).  The Policy Statement does NOT support her assertions – and she is on the committee that wrote/approved the statement.  You might say she got it wrong, or you might just say she’s a liar.  Is it really possible to be that incompetent?  Here’s what the Policy Statement says : ” Canfield et al recently extended the relationship between blood lead concentration and IQ to blood lead concentrations less than 10 g/dL. They observed a decrease in IQ of more than 7 points over the first 10 g/dL of l ifetime average blood lead concentration. . . . To confirm the adverse effects of lead on IQ at these concentrations, however, more children whose blood lead concentration has never been more than 10 mcg/dL should be studied. A reanalysis of the primary data from several of the prospective studies is underway to help resolve this issue. At the moment, however, these data have not yet been incorporated into policy, and the CDC16 and AAP24 both currently use 10 mcg/dL (Table 2) as the blood lead concentration of concern. “  [Emphasis added] The Canfield study is the study Dr. Best cites in her Congressional testimony above.  Canfield predates the restated Policy Statement (obviously, or else it wouldn’t be cited), and thus forms part of the basis of the recommendation for further study.  The AAP recommends further study to confirm its suspicions - and those studies aren’t done.  Dr. Best certainly didn’t cite them.  The AAP Policy Statement goes on to recommend: “RECOMMENDATIONS FOR GOVERNMENT:  Fund studies to confirm or refute the finding that blood lead concentrations of less than 10 mcg/dL are associated with lower IQ. The next important step in lead research is conducting of studies in which confounding by socioeconomic factors is not so strong. Funding of studies in this area needs to be given high priority, as was done in the early 1980s when the question of effects of blood lead concentrations less than 20 mcg/dL was raised.”  [Emphasis added] So the AAP acknowledges in its policy statement that the case is not exactly open-and-shut.  Dr. Best, a member of the AAP’s Committee on Environmental Health , continues to bash away on the hustings with her hyperbolic and conclusory message.  Perhaps she feels that no one will likely check her work or contest her blather, so why not? Senators?  Congressmen?  Does anyone care about the effects on business when it comes to the out-of-control CPSC?  There are now 25 days until the 100 ppm standard goes into effect retroactively .  Starting packing up, guys.  Will Congress act?  I have no idea – this is not, and never has been, a question of doing the right thing for you or me or for anyone, really.  The Dems have an agenda, a political agenda, and your problems are beneath their consideration.  I can’t say who will be the winners, but the losers are well-known by now. 

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CPSIA – You’re Only SAFE if It’s 99.99% Lead-Free . . . But Don’t Tell the EPA

CPSIA – Sound Bite Justice

Today the CPSC Commission voted 3-2 to impose the 100 ppm lead standard retroactively as of August 14, 2011 , having concluded that there are no materials or products that the CPSC staff could identify for which this level of lead is not “technologically feasible”.  This vote has been long predicted and anticipated.  The entire meeting was conducted in a thoroughly partisan manner, with sharp dividing lines between Dems and Republicans.  What-a-shock.  I experienced a range of emotions watching this two-hour hearing.  None of them were surprise.  I experienced some boredom, as the debate was so predictable and so repetitive of past meetings.  Many self-serving remarks by the Dem zealots.  I experienced a mild sense of hopelessness, as it is clear that the Dems are unreachable. I experienced rising exasperation over their refusal to listen or consider data – unless it agrees with pre-existing agendas and alliances.  It is hard to not feel you are appearing before the Hanging Judge.  I won’t attempt to analyze what was really going on today, you already know it.  The posturing was sickening among the Dems.  That said, you deserve some flavor of the event.  Here are a few tidbits for your amusement or annoyance: She’s just the nicest! Inez Tenenbaum explained that the 100 ppm standard would have gone into effect if the CPSC had not chosen to decide the question of “technological feasibility”.  As she sees it, ” this [decision] is a courtesy to people .” What, Boeing isn’t covered by the CPSIA?! After vigorously stating her case on the cost-benefit analysis of this rule and condemning the possible adoption of this rule as a violation of the recent Executive Order applicable to the CPSC, Ms. Nord restates the obvious. Unfortunately, the power of her logic was lost on at least three of her colleagues by my estimate:  ” Just because a material is out there for a jet plane, doesn’t mean that it’s appropriate for a toy plane .”  No! Is that a promise, Bob? Defending caveman logic to his followers, Bob Adler rebuffed the Executive Order argument and the order of the person who appointed him to his post:  ” This is not a new Executive Order . . . . [They] said could you at least do a plan for economic analysis and I do think that we are planning on doing that and we have done that in the past. It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis. If you look at the data . . . nine [CPSC] standards in 30 years using those procedures. I am not against cost-benefit analysis; I am definitely against the kind of cost-benefit analysis that’s contained in our statute. Section 101 does not EXPLICITLY bar a cost-benefit analysis but it effectively does so .”  [Emphasis added] I find this rather interesting as he challenged me on February 16 with the question of whether I recommended that he violate the law.  It was a tense moment – he was trying to corner me into telling him to spurn his Congressional mandate.  Nevertheless, it is appears that Bob can pick and choose which laws bind him and which do not.  That shouldn’t surprise anyone who went to law school.  Law school profs always know the right answer, even if it makes no sense to anyone but themselves.  They care sooooo much, they really feel our pain . . . . Ms. Tenenbaum set the records straight on the purity of her good intentions:  ” I so believe that we have been diligent in looking at the marketplace and surveying materials. We have admitted it would be an extra cost to some companies and been out front. But, again, ‘technological feasibility’ the definition is not ‘economic feasibility’. Not that I don’t sympathize with small business owners and that is why we have worked on other rules [like the component part rule]. We are trying to be as flexible as possible and work with small businesses and the industry to accomplish what Congress mandated for us to do .” I know it’s just a detail but in the last three years, what exactly has this “effort” achieved?  Oh yeah, I forgot about Neal Cohen – we can cry on his shoulder!  In fact, Ms. T. closed the event with the offer that Cohen has his box of Kleenex ready for you whenever you need him. Somebody’s getting the shaft, let the record reflect. Nancy Nord noticed something the Dems must have missed:  ” You know, one of the things that is of concern to me is that the penultimate recommendation from the staff here is that ‘complying materials APPEAR to be commercially available for most products.’ Listen to the hedge words there in the staff recommendation. They ‘appear to be’? Well, let’s find out for sure and let’s do it on a product category basis. ‘Most products’? Well, what about the ones that can’t meet it? That’s our responsibility as [regulators], colleagues .” Hmmm.  Professor Adler grades the final exam. Bob Adler was in top form today.  The “over my dead body” remark was just an appetizer.  He went on to inform us that comment letters which arrive late are not operative, especially if they did not properly read his mind on what he wanted to see: ” I do want to also comment on some of the last minute submissions we got from our friends in industry, and I always appreciate those comments and I do consider a lot of these folks to be good friends both of this agency and of mine. But it’s really hard to take it seriously when it comes in at the penultimate or ultimate moment when you’ve had a lot of time to get that kind of information to us . . . . [Recites all the opportunities to comment prior to this hearing.] All of that, if you want to make a point, would have been very helpful especially we’d had the kind of hard quantitative data that SGS and the Hong Kong-American Chamber of Commerce gave us. And I’m going to just make a brief comment = you’re free to do it, it’s not helpful to tell us we’ve read the law incorrectly. I think we’ve read it correctly. I don’t think it’s helpful just to tell us that it’s going to be difficult and more expensive to get compliant materials. I think we know that, I think the staff told us that. What we needed was more hard data demonstrating the points that you’re making because what we really got were a lot of conclusory assertions when what we really needed was some hard quantitative data. And all the hard quantitative data I’ve seen really points in the opposite direction. So I really appreciate all the last minute comments. Too little, too late as far as I am concerned .”  [Emphasis added] This lecture was repeated three times by Mr. Adler unprompted, for reasons best understood by him.  Interestingly, Mr. Adler seems to have forgotten that I presented hard quantitative data on this same topic in my timely-filed 100 ppm comment letter and in my Febuary 16 testimony.  Of course, it did not agree with the SGS or HKACC submissions.  I guess since he found their data useful, mine must have been wrong.  According to his remarks today, I didn’t even submit it, which is rather surprising since it was discussed extensively in the Staff report :  “Learning Resources reported 98.3 percent compliance with the 100 ppm standard for its products, but found this compliance level to be unacceptable because of the difficulty in identifying where the noncomplying components would turn up.” Bob Adler flips his flop. You would think with three repetitions of his condescending lecture on late submissions, that Professor Adler must mean it.  Can’t get a good grade in his class with that behavior, right?  Well, maybe not for the teacher’s pet:  ” One very quick point, well two. One is that the [AAP] study you shared with us, and again thank you so much Commissioner Northup, is a 2005 study. We got a letter last night from the American Academy of Pediatrics reiterating their support for moving down to these levels. . . . ” Bob Adler wings it. . . . In the face of a vigorous attack by a well-prepared Anne Northup on the shoddy scientific data presented by the AAP supporting the “no safe level of lead” assertion, Mr. Adler lapses into hyperbole and fantastic assertions incapable of validation: “It isn’t just the [AAP]. A lot of what they’ve done has been drawn from research done around the world on the effects of lead. I’ll bet there must be ten thousand, I know there are thousands and thousands of studies on lead, all of which point to the very severe toxic effects associated with [these products] .” Mother knows best! In a truly shocking display of personal preference substituting for appropriate policy and regulation, Ms. Tenenbaum decided that we don’t need recycled materials in children’s products because who would want them anyway?  ” The scientific community has shown us over and over again that lead is cumulative and so I think there are safety benefits in reducing the exposure to lead and the accumulation of lead in the body. Also, I don’t know that parents are interested in having products that their children use, particularly infants and young children, that are mouthable being made of recycled materials, recycled materials that may contain a higher level of lead. Recycled plastic – do you want your child to have a recycled pacifier? Well, that is why Congress has set these strict limits.” [Full disclosure, we recently won a toy industry award for environmentally-friendly toys made of recycled plastic.  No one has objected to them to my knowledge, and believe me, they are wonderfully and thoroughly tested for compliance.] And the support for Ms. T’s bald assertion is . . . what?  Did she find something in the legislative record?  Is there some verbiage in the law?  I have not heard this previously from anyone at the CPSC but notably I have repeatedly noted that the CPSIA will be the death of recycled materials in children’s products .  Still, Ms. T’s logic is irresistible – she is there to figure these things out for us and certainly knows best.  After all, she loves children, probably much more than any of us. She cares.  What else do you need to know?  With her power to impose policy, her preferences will become our marketplace.  Brave New World, courtesy of the Nanny Staters. Tenenbaum says you can ALWAYS file for an exemption! Ms. T. reminded the audience at least four times that if they wanted to, they could ALWAYS file for an exemption if they can prove their product or material can’t be made to the new standard subject to the non-economic technological feasibility test.  The door is always open . . . . This promise seems to be in denial of reality.  Let’s start with the fact that the CPSC staff studied this question for more than a year and concluded, as summarized in a 59-page tome, that EVERYTHING is technologically feasible.  That seems to put us all against the wall when it comes to exemption petitions.  And then there’s the fact that for three years, nobody has been able to get an exemption for anything, regardless of how obvious the case, unthreatening the use or how well-funded the supplicant. Notes Ms. Northup:  ” I just think we should warn the public that it is unlikely that any petition would be accepted and that that is, first of all, for anybody to file it would be far more costly than to just pay for the materials and increase the cost of their products in all likelihood, not to mention the delay they would have in us in actually addressing their petition .” And Nancy Nord speculates that petitions for relief are highly unlikely in any event:  ” I will just tell you, in my conversations with folks out there, there is a feeling that ‘why bother?’ There is a comment weariness, there is a sense that it isn’t worth the candle, and so I guess if you’re not a company that’s either been put out of business or not making the product, you don’t have the money to hire the lawyer to file the petition. So I think that’s just an empty option for most people .” Who do you believe?  Hey, as Ms. T says, the door’s always open even if it’s the door to oblivion. The outcome of the decision to implement the 100 ppm standard was foretold but let’s not forget something important – this is a retroactive rule as implemented today .  Unless Congress acts, we are all in the soup.  Even worse than before.  Call your Congressman and don’t stop until they take action.  Mr. Obama must sign something by August 14 or all hell breaks out . . . again.

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CPSIA – Sound Bite Justice

CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

The Alliance for Children’s Product Safety, a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA), issued the following statement regarding the CPSC’s passage of the 100 ppm for lead content rule today by a vote of 3-2. “Today, just three days after President Obama issued an Executive Order instructing the CPSC and other independent agencies to examine all rules for ineffective and unnecessary burdens and instructed the agency that decisions should be made only after consideration of the costs and benefits of new regulations, the CPSC enacted yet another costly rule that will do nothing to improve product safety but will cause further job losses in the children’s product market. The CPSC has already acknowledged that businesses will not be able to meet the 100 ppm lead standard without cost and disruption, and that consistent compliance with the new standard will be nearly impossible due to material and inter-lab variability and regulatory uncertainty. Most importantly, overwhelming costs imposed by the new standard will disproportionately affect smaller companies. On the other side of the ledger, the CPSC admits the health benefits of the new standard will be ‘minimal’. President Obama’s Executive Order states ‘Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. . . . To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).’ The President’s order notes the duty of the CPSC to regulate for public health and safety ‘while promoting economic growth, innovation, competitiveness, and job creation.’ The new rule fails Mr. Obama’s test. It is disappointing that the majority of CPSC Commissioners ignored the explicit terms of the President’s order governing regulatory excess. The 100 ppm standard is a prime example of the economic self-destruction caused by the CPSIA: the imposition of costly and burdensome regulations that don’t improve product safety. It is now up to Congress to fix the numerous ‘unintended consequences’ of the CPSIA before more small businesses are forced to go out of businesses and more jobs are lost.” The Alliance for Children’s Product Safety, Chaired by Rick Woldenberg, is a coalition of small business owners, manufacturers, crafters and entrepreneurs who are impacted by the Consumer Product Safety Improvement Act (CPSIA). For additional information, please visit www.AmendTheCPSIA.com or contact Caitlin Andrews at 202-828-7637.

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CPSIA – Alliance for Children’s Product Safety Reacts to 100 ppm Decision

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 – 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?)

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