CPSIA – AAP, Get a Calculator!

In my continuing exploration of the misuse of data by consumer groups to prove up the “need” for the CPSIA, it occurred to me that Dr. Dana Best of the American Academy of Pediatrics can’t multiply. She needs a new calculator.

Just an aside: Japanese government officials announced today that radiation OUTSIDE the disabled reactors at Fukushima have now reached LETHAL levels:

“Water in an underground trench outside the No. 2 reactor had levels exceeding 1 sievert an hour, a spokesman for plant operator Tokyo Electric Power Co. told reporters in the capital today. Thirty minutes of exposure to that dose would trigger nausea and four hours might lead to death within two months, according to the U.S. Environmental Protection Agency. Preventing the most-contaminated water from leaking into the ground or air is key to containing the spread of radiation beyond the plant. A partial meltdown of fuel rods in the No. 2 reactor probably caused a jump in the readings, Japan’s chief government spokesman said today. ‘There’s not much good news right now,’ said Gennady Pshakin, a former IAEA official based in Obninsk, the site of Russia’s first nuclear power plant.” [Emphasis added]

The Japanese situation is a real crisis. The AAP wants you to think lead is also a crisis. It’s not.

In my post yesterday, I reported on Dr. Dana Best’s testimony in front of the CPSC Commission on February 16th about the purported effects of even trace amounts of lead on the intelligence of our children. While Dr. Best speaks for the AAP on occasion, I know that she doesn’t always write her own testimony. Sometimes she reads words written by other people under her own name. In the Spring of 2008, I went looking for Dana Best, and in response to a voicemail I left at her office, Cindy Pelligrini of the AAP called me back. Dana Best never called me back. I was calling in reference to the then pending Illinois lead labeling law which was being propelled by Dr. Best’s seminal House testimony on lead (September 20, 2007). In that phone conversation, Ms. Pelligrini acknowledged to me that she had written the September 20th testimony, not Dr. Best, and as a consequence, was the “right person” to talk about its contents. Ms. Pelligrini’s qualifications to write House testimony on lead on behalf of a professional association of pediatricians? According to her in our conversation, she holds a degree in political science. She is not a doctor and she is not a scientist as far as I know.

So is it surprising then that Dr. Best got all tangled up in numbers in the recent CPSC testimony? As I noted yesterday, Dr. Best asserted the following: “When averaged across even a modest population of children, the public health harm caused by lead is significant. Considering that there are about 75 million children in our nation, impacting one-half of one percent of all children would mean an exposure of 3.75 million children. . . . For one million children, [the loss of lifetime income from one IQ point per child] would total over $8.3 billion.” [Emphasis added]

Okay, let’s break out our calculators and check Dr. Best’s math. 75 million x 0.005 = 375,000. Oops! Didn’t she say that “one-half of one percent of all children” is 3.75 million kids? Hmmm.

[Sidebar - she's almost right about the population of kids, but not quite. According to childstats.gov, there were 75.2 million children living in the U.S. in 2010. Of course, only 50.4 million were under 12 years of age, basically the age bracket covered by the CPSIA. This is not a calculator error, this is just more junk statistics from a so-called "expert". I hope the CPSC Commission employs a fact checker!]

I think that’s a big difference. 3.75 million children is 1-in-20 but 375,000 is 1-in-200 (based on a population of 75 million children, an inflated number). Using the more realistic population number of about 50 million, Dr. Best’s 3.75 million number is 1-in-13 children. Dr. Best’s number suggests that there is likely to be two or more lead poisoning victims in EVERY classroom of children in our country. Do you believe that?

Give me a break. The problem is that there are many people out there who might believe this nonsense. Some of them may be your elected representatives.

Dr. Best goes on to “illustrate” the scope of the “cost” of this poisoning, all based on her assumption of 1-in-13 children losing IQ points. She illustrates the “cost” to society of the loss of a single IQ point on a seemingly “modest” population of 1 million children. [Don't forget, she hasn't produced even ONE victim yet.] Since she is apparently severely math-challenged, let me help you here. One million children is (roughly) 2% of the age range covered by the CPSIA. In other words, it’s about 1-in-50 kids. Her “modest” assumption implies at least one brain-damaged child in every other classroom in America, all because of lead-in-substrate in children’s products. Her illustration is intended to show that the incredibly “high” cost of the purported lead epidemic justifies the extreme measures of the CPSIA to eliminate lead down to trace levels in children’s products.

Do you believe her? Why, exactly? If there are so many damaged children from lead-in-substrate in children’s products, why can’t the AAP come up with a few and show real case histories? Why won’t they talk about real data?

I am not impressed. The AAP holds itself out as an “expert” but puts out junk statistics to back up junk science recommendations. We are being scammed.

You MUST demand of your Congress that they won’t be fooled. The age of junk science needs to be brought to an end! Let your voices be heard!

Read more here:
CPSIA – AAP, Get a Calculator!

CPSIA – Good News and Bad News (Update No. 1)

Tokyo tap water is no longer suitable for babies 12 months or younger. The impact of the Fukushima nuclear disaster spreads. Black smoke is seen coming out of Unit 3 at the nuclear plant and workers are evacuated again. Won’t be allowed back for 24 hours. Not to worry you . . . but they have no idea why it’s smoking. Japanese Broccoli is now found to give you a healthy glow (an extra “benefit”) and the import of many Japanese foods from the region have been banned by the U.S. FDA and by Hong Kong, soon to be followed by South Korea. One Austrian scientist says this disaster will be similar to Chernobyl, and their crud is blowing over here.

Back on the home front, we are not worried about radioactivity from Japan. Harmless! Rather than focusing on the impact of nuclear material showering down on us from the heavens, into our food, our water, our produce, onto our skin and breathed into our lungs every moment of the day now, those valiant defenders of children, the CPSC, will be holding a highly-publicized hearing on pool drains – because a newspaper currently in bankruptcy hired an uncertified lab to perform tests on drain covers that have not apparently been involved in injuries. This is a TOP priority of our nurturing government. Who says we don’t need more government? Come on, baby, give me MORE!

Of course, I make light – after all, I am a blogger, I must do so. The real scourge for children, as anyone can tell you, is not airborne radioactive material, but lead – which is why our CPSC has worked so tirelessly for three years to identify dangerous items like ballpoint pens, rhinestones, brass bushings on toy car wheels, ATV engine blocks, bicycle frames and bicycle vinyl seats, branding them as unsuitable for sale (or exposure) to children under 13 years of age.

Of course, there’s plenty of legal mumbo-jumbo to consider, provisos and the like. Having carefully sorted out the hazard, our CPSC has determined that pens are only dangerous if they are intended for use by children. [Ballpoint pens have a tiny brass ball at the ink end, and brass contains 2-4% lead by weight. I bet you're scared now!] The ACTUAL USE of pens is not the health concern – what matters instead is what the manufacturer intended – you know, their state of mind at the time of sale. Hasn’t your mother ever told you that it’s what’s in your heart that REALLY matters? The CPSC took this on board. After much cogitating, they determined that it’s not a problem if 100% of children use ballpoint pens – no, it’s only a problem if kids use a ballpoint pen INTENDED for use by children. THAT’S unacceptably dangerous and big penalties and recalls can result if you step over the line. They must have figured out that the state of mind of the manufacturer changes the physical character of the pen – pens literally take on the power to harm when a manufacturer thinks about selling them to kids!

It’s a good thing we employ so many scientists at the CPSC. I hate to think about the crazy rules they’d come up with if they didn’t have such a solid grounding in real science. Of course, they also employ many lawyers . . . . Could it be the lawyers???

Of course, I jest. The CPSC is certainly right – how could such an august organization err? And experts have told them they’re right – that’s a double-check right there. At the February 16th hearing on the 100 ppm lead standard, Don Mays from Consumers Union, a REAL expert, kicked off his testimony by reminding the Commission that there is NO safe level for lead. [I did not provide you with a clip of those magical words, but you can dig them up yourself if you don't believe me.] Mr. Mays was joined on the consumer group panel by another RENOWNED expert, Dr. Dana Best of the American Academy of Pediatrics. Mr. Mays and Dr. Best had a revealing dialogue with Commissioner Anne Northup on the horrors of brass instruments. You will see that the CPSC has no choice, the risks to children are so severe. Here’s a transcript (you can see the video here):

AN: “Do you think that children that are in the 3rd and 4th grade should be prohibited from playing brass instruments considering the lead content of that brass?”

DM: “I think children should not be exposed to lead unnecessarily. And children in the 3rd and 4th grade, I have a daughter in the 4th grade and I certainly wouldn’t want her to be exposed to lead if that was coming from an instrument.”

AN: “So you would not let her play, like, the horn.”

DM: “I would be very concerned about that, that’s for sure. She does not play the horn, she plays the violin. Ha Ha Ha.”

DB: “The mouthpieces on most of those instruments are not brass.”

AN: “Yes, exactly. But they’re holding them. They sling them around and hold them. . . . They could practice at night and play it every day during class. That would mean an every day exposure. I just wondered if that would alarm you.”

DB: “Uh, it would alarm me that children were exposed unnecessarily to lead. And that’s again the responsibility of the CPSC to determine, to look at the studies on individual cases. I’m here to talk about the harms of lead to children and how they need to be protected.”

Frankly, I can’t remember if Ms. Northup started banging her head against a wall at that point or not . . . .

With this kind of counsel, you can rest assured that the CPSC has its priorities straight. Don Mays and Dana Best are on the case! Just PLEASE don’t mention bicycle licking . . . .

Read more here:
CPSIA – Good News and Bad News (Update No. 1)

CPSIA – Statute of Limitations Applicable to Schylling

To close the loop on the Schylling fine fiasco, I wanted to provide you with the language governing the statute of limitations applicable to this matter (and all other CPSC matters unless specifically overridden by statute).

For those of you who don’t know, a “Statute of Limitations” is a provision in the law which states a maximum time after the occurrence of an event in which legal proceedings can be initiated. In the case of CPSC penalties, in the absence of a “tolling” agreement in which the warring parties agree to extend the time limit, these provisions are intentional limitations on the CPSC’s power. There is longstanding public policy that underlies the concept of a statute of limitations going back to ancient English common law.

The applicable statute is 28 U.S.C. §2462 entitled “Time for Commencing Proceedings”. It reads as follows: “Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.” [Emphasis added]

The Schylling lead-in-paint violations were clearly beyond the statute of limitations. By the way, there is no exception to the provisions of a statute of limitations if the regulator is “really mad” or if the violator is a “bad guy”. It’s an ABSOLUTE rule and works effectively even against serious violations; for instance, prosecution of felonies can be closed off by statutes of limitations. The issue with respect to Schylling’s separate (but related) violation of “failure to report” is somewhat more controversial. When did the failure to report “occur”? The CPSC may be taking the position that the period relating to the failure to report begins when a report is finally made. In effect, then, the CPSC has interpreted the statute of limitations away for failures to report.

Arguably, this means that the CPSC reserves the right to penalize people for a failure to report going back to 1972, the year in which the agency was formed. Why not, they have the power . . . . . Everybody, keep an eye on your mailbox!

Don’t tell me that this surprises you nowadays.

Read more here:
CPSIA – Statute of Limitations Applicable to Schylling

CPSIA – McDonalds Recall Urged by CPSC – WHY?

The CPSC has put in writing that the Shrek glasses recalled by McDonald’s last week are “non-toxic”. Nonetheless, the CPSC (perhaps the commission itself, as noted in certain press reports) “urged” the company to make the recall.

So now it appears that the CPSC thinks it’s okay to ask a company to recall a product for reasons that it acknowledges pose no safety issue. Why?

Let’s not forget all the expense that this move imposes on the company coerced into making the recall. The law restrict the power of the agency to take this step, in part to preserve the incentive to make “at risk” investments in new products. There’s also that small detail called “due process”. My previous post noted that the CPSC does not have the authority to make recalls of products absent a “substantial product hazard”. This suggests that the CPSC was exceeding its authority in the McDonald’s case. By almost any measure, the CPSC’s actions were inexplicable. Why demand a recall of a safe product?

I cannot answer this question for the CPSC or its Chairman, Inez Tenenbaum. However, here’s a few salient facts to chew on:

1. The Member of Congress (Jackie Speier) that “tipped off” the CPSC about this matter is a Democrat.
2. Jackie Speier represents a California Congressional district (12th) that abuts Nancy Pelosi’s district (8th).
3. Shortly after first being elected to Congress in a 2008 by-election, Speier was appointed by Pelosi to serve as a member of the House Oversight and Government Reform Committee, then chaired by none other than Henry Waxman. Waxman resigned this chairmanship to take over as Chairman of the House Committee on Energy and Commerce.
4. Ms. Speier has publicly endorsed the “black box” requirement for cars that Mr. Waxman supports. She also wants to create a federal law restricting cadmium in jewelry. Her concept of Congressional activism is very closely aligned with Mr. Waxman, another California Democrat and patron of the Democratic majority on the Commission.
5. Today, Speier is a member of three committees. Besides Oversight, the other two committees are chaired by Edward Markey and Barney Frank, two close allies of Waxman and Pelosi.
6. Jackie Speier is running for reelection in one of the most phobic of states, California. The Democrats need every seat they can get in this Mid-Term election.
7. One of the three Democrat Commissioners appointed by Obama was a member of Henry Waxman’s staff for several years (Adler).

And can anyone imagine a Democrat-controlled CPSC telling a Democratic Member of Congress from the San Francisco area that her highly-publicized call for investigation of Shrek glasses because of cadmium was, in fact, unmerited, that the product was perfectly safe and the large corporation responsible for the glasses had protected consumers very well? In an election year with Nancy Pelosi in charge of the House and Henry Waxman directly overseeing the agency?

Nope, can’t think of a single reason why the leadership of the CPSC would urge McDonald’s to recall the safe glasses.

At least the CPSC won’t have to pay the costs of the recall. That’s McDonald’s problem.

Read more here:
CPSIA – McDonalds Recall Urged by CPSC – WHY?

CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

[Emphasis added. Actual Letter can be viewed here.]

May 12, 2010

To:

The Honorable Bobby Rush
Chairman, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Ed Whitfield
Ranking Member, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Henry Waxman
Chairman, Committee on Energy & Commerce

The Honorable Joe Barton
Ranking Member, Committee on Energy & Commerce

Re: The Consumer Product Safety Enhancement Act (CPSEA)

To the Leadership of the House Commerce Committee:

Thank you again for the opportunity to testify before your committee and for your continued attention to the needs of our small businesses. We would like to reiterate our position on the CPSEA and the relief we are seeking for our members.

We have previously endorsed the CPSEA because it is the only opportunity currently available to save small batch manufacturers from extinction after February 10, 2011, when the CPSC’s stay of enforcement of third party testing requirements expires. Under the CPSIA as it currently stands, many of our members are substantially limiting the products that they offer–some foregoing children’s products altogether–while others are laying off employees or limiting their business growth.

We have stated clearly that the CPSEA can and should be improved to reduce unnecessary regulatory burdens on small businesses without compromising safety. The CPSEA as currently written will likely save some of our member businesses. With improvements, however, you can save almost all of them. For the record, we would like to review the improvements we would like you to consider.

First and foremost, we would like the CPSEA to clearly state that small batch manufacturers are exempt from third party testing requirements. While report language to that affect would be helpful, a more explicit exemption within the language of the bill itself would provide more immediate and substantial relief. You can accomplish this by allowing:

* the use of XRF testing as an alternative testing method for lead in paint and lead in substrate

* alternative testing methods for products intended for use in classrooms or for children ages 7-12

* EN-71 testing as an alternative testing method

* CPSC rulemaking to allow for alternative testing methods based on risk analysis

* exemptions for small batch toymakers from ASTM F-963 testing

This language should be in the bill itself, not just in the report language. In the intervening days since our initial endorsement of the CPSEA, we have heard conflicting answers from several different CPSC commissioners as to the commission’s willingness or ability to provide affordable alternative testing methods for small batch manufacturers. If this bill is truly meant to benefit small batch manufacturers, it must be more clear and explicit in the exemptions it provides.

Second, we wish to reiterate our belief that alternative testing methods should be available to all companies. The Small Business Administration defines toy and clothing manufacturers with less than 500 employees as small businesses, which is far in excess of the CPSEA’s $1 million limit. If a revenue limit is used, it should be based only on income generated by the manufacture or importation of children’s products without including other unrelated business income. A manufacturer’s ability to pay for testing any given product is a function of the revenue it generates from that particular product, not the overall size of the company.

Third, we stated publicly during the April 29 hearing that the functional purpose exemption for products exceeding 300ppm/100ppm lead will not benefit our members because of the narrow scope of the exemption and the cost required to obtain it. The CPSC should instead be given authority to make exemptions to specific materials or product categories based on risk analysis. For example, the commission should have the power to exempt brass as a material and children’s saddles or microscopes as a product category. This is the only way in which small businesses would be able to take advantage of the functional purpose exemption.

Fourth, we believe that small batch manufacturers should be entirely exempted from mandatory labeling requirements.

Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. We believe that the CPSEA can and should be improved to better target risk and provide more comprehensive relief for our members, who were never the source of unsafe products in the first place.

We remain hopeful that the democratic process can prevail and that a meaningful and bipartisan reform of the CPSIA can be enacted. We urge members of the committee to mark up the CPSEA and allow open discussion within the product safety subcommittee. The CPSIA was a bipartisan bill—its reform should be, too.

You hold the livelihoods of hundreds of small businesses in your hands. Please, make this work.

On behalf of the 435 small business members of the Handmade Toy Alliance, we thank you again for your attention to this important issue.

Respectfully,

The Handmade Toy Alliance

savehandmadetoys@gmail.com
http://www.handmadetoyalliance.org/

Board members:

Cecilia Leibovitz, Craftsbury Kids, VT
Dan Marshall, Peapods Natural Toys, MN
Jill Chuckas, Crafty Baby, CT
Mary Newell, Terrapin Toys, OR
Jolie Fay, Skipping Hippos, OR
Marianne Mullen, Polkadotpatch, VT
Rob Wilson, Challenge & Fun, MA
Randy Hertzler, euroSource, PA
Kate Glynn, A Child’s Garden, MA

Read more here:
CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

[Emphasis added. Actual Letter can be viewed here.]

May 12, 2010

To:

The Honorable Bobby Rush
Chairman, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Ed Whitfield
Ranking Member, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Henry Waxman
Chairman, Committee on Energy & Commerce

The Honorable Joe Barton
Ranking Member, Committee on Energy & Commerce

Re: The Consumer Product Safety Enhancement Act (CPSEA)

To the Leadership of the House Commerce Committee:

Thank you again for the opportunity to testify before your committee and for your continued attention to the needs of our small businesses. We would like to reiterate our position on the CPSEA and the relief we are seeking for our members.

We have previously endorsed the CPSEA because it is the only opportunity currently available to save small batch manufacturers from extinction after February 10, 2011, when the CPSC’s stay of enforcement of third party testing requirements expires. Under the CPSIA as it currently stands, many of our members are substantially limiting the products that they offer–some foregoing children’s products altogether–while others are laying off employees or limiting their business growth.

We have stated clearly that the CPSEA can and should be improved to reduce unnecessary regulatory burdens on small businesses without compromising safety. The CPSEA as currently written will likely save some of our member businesses. With improvements, however, you can save almost all of them. For the record, we would like to review the improvements we would like you to consider.

First and foremost, we would like the CPSEA to clearly state that small batch manufacturers are exempt from third party testing requirements. While report language to that affect would be helpful, a more explicit exemption within the language of the bill itself would provide more immediate and substantial relief. You can accomplish this by allowing:

* the use of XRF testing as an alternative testing method for lead in paint and lead in substrate

* alternative testing methods for products intended for use in classrooms or for children ages 7-12

* EN-71 testing as an alternative testing method

* CPSC rulemaking to allow for alternative testing methods based on risk analysis

* exemptions for small batch toymakers from ASTM F-963 testing

This language should be in the bill itself, not just in the report language. In the intervening days since our initial endorsement of the CPSEA, we have heard conflicting answers from several different CPSC commissioners as to the commission’s willingness or ability to provide affordable alternative testing methods for small batch manufacturers. If this bill is truly meant to benefit small batch manufacturers, it must be more clear and explicit in the exemptions it provides.

Second, we wish to reiterate our belief that alternative testing methods should be available to all companies. The Small Business Administration defines toy and clothing manufacturers with less than 500 employees as small businesses, which is far in excess of the CPSEA’s $1 million limit. If a revenue limit is used, it should be based only on income generated by the manufacture or importation of children’s products without including other unrelated business income. A manufacturer’s ability to pay for testing any given product is a function of the revenue it generates from that particular product, not the overall size of the company.

Third, we stated publicly during the April 29 hearing that the functional purpose exemption for products exceeding 300ppm/100ppm lead will not benefit our members because of the narrow scope of the exemption and the cost required to obtain it. The CPSC should instead be given authority to make exemptions to specific materials or product categories based on risk analysis. For example, the commission should have the power to exempt brass as a material and children’s saddles or microscopes as a product category. This is the only way in which small businesses would be able to take advantage of the functional purpose exemption.

Fourth, we believe that small batch manufacturers should be entirely exempted from mandatory labeling requirements.

Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. We believe that the CPSEA can and should be improved to better target risk and provide more comprehensive relief for our members, who were never the source of unsafe products in the first place.

We remain hopeful that the democratic process can prevail and that a meaningful and bipartisan reform of the CPSIA can be enacted. We urge members of the committee to mark up the CPSEA and allow open discussion within the product safety subcommittee. The CPSIA was a bipartisan bill—its reform should be, too.

You hold the livelihoods of hundreds of small businesses in your hands. Please, make this work.

On behalf of the 435 small business members of the Handmade Toy Alliance, we thank you again for your attention to this important issue.

Respectfully,

The Handmade Toy Alliance

savehandmadetoys@gmail.com
http://www.handmadetoyalliance.org/

Board members:

Cecilia Leibovitz, Craftsbury Kids, VT
Dan Marshall, Peapods Natural Toys, MN
Jill Chuckas, Crafty Baby, CT
Mary Newell, Terrapin Toys, OR
Jolie Fay, Skipping Hippos, OR
Marianne Mullen, Polkadotpatch, VT
Rob Wilson, Challenge & Fun, MA
Randy Hertzler, euroSource, PA
Kate Glynn, A Child’s Garden, MA

Read more here:
CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

CPSIA – My Recommended Changes to the CPSIA

As the CPSC prepares its January 15th report to Congress on recommended changes to the CPSIA, I have also prepared my list. As though for Santa, I am checking it twice. Rumor has it that the Waxman amendment is percolating again, all without hearings, either of the Commission or heaven forbid, in Congress. That’s open government for you. In any event, expect movement in the wake of this report. How much movement is the big question.

My list of changes is long. I have a separate list of non-legislative changes that I also recommend, which I will pass along in a future post. Please note that my list is not meant to imply any limitation on the agency’s ability to respond to emerging threats or changing conditions. In that sense, each recommended change is intended to incorporate a power by the CPSC to alter it (expand or contract) according to a risk assessment process in the future. It is also true that some of these recommendations can be accomplished by agency rulemaking. As we have observed, that rulemaking is taking forever or is seemingly stuck . . . so I put them all on my list.

I have a couple of other important objectives underlying my recommendations. First, it is critical that the law provide economic incentives tailored to the actual drivers of market behavior. The current law gives little credence to the way business people make decisions or how they interact. The CPSIA takes the simpleminded approach of ultra-strict standards combined with draconian penalties. This is ironic, given that the 2007/8 recalls that incited this law were EACH violations of then current law. Thus, it was NEVER a question of standards – only of compliance with those standards. Compliance issues are complex behavioral issues. Simply ratcheting up penalties to the stratosphere won’t change behavior much because the consequences of recalls were already very great. Something else is needed.

Second, we MUST assure that the agency is relieved of excessive bureaucratic burdens and distractions, and is given back the ability to focus on real threats. This means that we cannot always work within the context of the present CPSIA scheme, because it requires a great deal of wasteful investment by the CPSC. In addition, we must give discretion back to the agency. Congress needs to get out of the way and let the CPSC do its job.

My recommended changes to the CPSIA:

1. Restore the CPSC’s authority to base its safety decisions, resource allocation and rules on risk assessment.

2. Definition of “Children’s Product” should be limited to children 6 years or younger. The argument that young children play with the toys or possessions of their older siblings is not supported by statistically significant injury statistics. If children are not being harmed by this interaction, we should not have to spend billions on safety initiatives that will have little impact.

3. Definition of “Toy” (for phthalates purposes) should be limited to children 3 years old or younger. Human factors analysis by CPSC staff indicate that it is not age-appropriate for children over three to mouth their possessions. Again, there are no statistically significant injury statistics that support a contention that children over three have any material risk from mouthing toys.

4. Definition of “Toy” should explicitly refer only to products in the form used in play. This would eliminate uninflated globes from the mouthing rules. In addition, sleepwear should only be included in childcare articles to the extent the plasticized part of the sleepwear is intended or is reasonably foreseeable to be mouthed.

5. Definition of “Children’s Product” should eliminate the factor set forth in Section 3(a)(2)(c) of the CPSA. This change is intended to make determining which items are “in” and which are “out” more objective. The Commission already has in place age grading guidelines that supplant the “common recognition” factor and provide objective guidance.

6. Definition of “Children’s Product” should be limited to a narrow class of product, ideally just toys. There is no justification based on injury statistics to regulate apparel, footwear, appliqués, hair accessories, books, pens, bikes, ATVs, educational products, rhinestones and so on. Much of the morass befalling the agency over the past two years stems from this overly-broad definition.

7. Definition of “Children’s Product” should not include anything primarily sold into the schools or which is used primarily under the supervision of adults.

8. The standards/bans for lead and phthalates should be prospective from February 10, 2009, allowing the sale of merchandise manufactured in compliance with law prior to the implementation of the law. This is ABSOLUTELY necessary to protect the thrift store industry.

9. Make ANY AND ALL changes in standards after February 10, 2009 EXPLICITLY PROSPECTIVE, including those already implemented.

10. Phthalate testing should explicitly exempt inaccessible components, metals, minerals, hard plastics, natural fibers and wood. The statutory test standard should explicitly permit testing the entire product as a whole. California law, which may conflict with these definitions, should be explicitly preempted.

11. Eliminate the 100 ppm lead standard for August 2011. There is no scientific evidence that the change from 300 ppm to 100 ppm as a limit on lead-in-substrate will have any material impact on blood lead levels. However, the economic impact of this meaningless change could be severe – the equivalent of a high tax serving no known purpose.

12. Lead-in-substrate testing should be a “reasonable testing program”, not mandated outside testing. Ideally a combination of in-house testing, spot checking, XRF (allowed for this use) and supply chain management. The focus of the rules should be on safety, NOT on compliance. Third party testing can be included as a safe harbor for a “reasonable testing program”.

13. Small lot manufacturers are exempt from all testing requirements (but not the standards). ANY product which sells less than 25,000 units per annum is exempt from testing requirements.

14. Eliminate required future reductions in the lead-in-paint standard levels if technologically-feasible. There is no scientific evidence that this further reduction will have any material impact on health, but will have an economic impact on the marketplace.

15. Clarify that all inks are excluded from the lead-in-paint ban.

16. Modify definition of “technologically feasible” to take into account economics. It is demonstrably unfair to small businesses to apply a rule that works like this: “If Rolex CAN do it, Timex MUST do it.” A technological feasibility standard without reference to economics is completely unreasonable to small companies or companies relying on narrow margins.

17. Restore ASTM F963 to voluntary standard status.

18. Eliminate the “periodic review” provisions that require ratcheting up of requirements (e.g., periodic review of F963 to achieve “highest levels of safety” that are “feasible”). Would like to further gut this provision, as I do not see that the CPSC adds any value in the process but has significant procedural burdens. This is pure government waste.

19. Eliminate exceptions to preemption (such as Sec. 106(h)). Add effective preemption of State laws on lead and lead-in-paint. Interstate commerce demands that there be one authority on safety, not 51 independent regulators. The disorder in the marketplace from the Proposition 65-style “consumer right to know” laws (like Illinois’ new Lead Poisoning Prevention Act) needs to be eliminated by explicitly preempting them in the changes to the CPSIA.

20. Add penalties (up to and including felonies) for false or misleading accusations of violations of law or safety violations.

21. Make the resale of used product that violates safety standard a misdemeanor with very limited fines (like a traffic ticker). Can only escalate if done with actual knowledge.

22. Eliminate the “knowing” standard with its imputed knowledge of a reasonable man exercising due care. This standard is a 20/20 hindsight standard and is thus subject to considerable abuse. An actual knowledge standard would ease fears among regulated companies.

23. Completely reformulate penalties to restrict them to egregious conduct, reckless endangerment or conduct resulting in serious injury. The CPSC should have the authority to assess penalties when it deems it necessary, such as for repeated violations, but the practice should be that penalties are meant to provide incentives to good behavior ONLY (not for retribution or redistribution of wealth). Minor violations should either be handled administratively without penalties or should be subject to capped penalties akin to “traffic tickets”.

24. State AG enforcement should be limited to matters involving actual knowledge leading to injury or to enforce a CPSC order.

25. Restore the ability to export non-compliant product as long as the product is compliant with the destination jurisdiction’s law.

26. Mandatory tracking labels should be explicitly restricted to cribs, bassinets, play pens, all long life “heirloom” products with a known history of injuring the most vulnerable children (babies). Tracking labels would be voluntary on all other children’s products and if in use, can be used to trim scale of recalls (as with other data maintained by businesses). CPSC should retain ability to expand the application of tracking labels as warranted. The power to impose tracking labels was a part of the prior law, it should be noted.

27. Elimination of whistleblower provision entirely. There is no demonstrated need for this provision which only creates an atmosphere of distrust and abuse in the workplace. To properly ensure corporate team play, the government should refrain from paying spies to infiltrate the workplace unless there is a demonstrated need based on actual data.

28. Elimination of lab certification process ENTIRELY. The CPSC adds NO value to this process, and in fact slows the process of labs coming on board with new testing capabilities. I am not aware of any instances of fraud by labs but if there were to be fraud, we already have anti-fraud standards on the books to protect consumers. Give the CPSC the power to create or modify certification standards or requirements if warranted in the future. Place reliance on industry organizations or independent professional organizations for certifications.

a. For in-house labs, use established firewall rules as “but for” condition for companies to avoid liability. Otherwise, companies should bear full responsibility for testing done in-house.

29. Public injury/incident database restricted to recalls only

a. If allow unfiltered postings, companies need adequate time to respond BEFORE posting. There needs to be enough time to allow for inspection of product and to conduct tests.

b. Must post name and contact info to put info up on the DB. NO anonymous postings

c. Liability for fraud, including fines and possible jail time. Need to prominently note this on the DB. There needs to be a consequence for bad actors spreading bad information intentionally.

d. The terms of the DB should not permit postings of CPSC private remedies, like “do-not-sell” orders.

e. The current timetable is unreasonable, needs to be spread out to allow for more consideration of unintended consequences.

f. The current rules specify removal of inaccurate data that is TOO SLOW. Data needs to be impounded while being investigated (Zhu Zhu Pets wouldn’t have survived this scheme).

I also recommend consideration of an exception from the lead-in-paint rules for violations which have less than XXX grams per unit. These essentially technical or de minimus violations might be exempt from recalls but not from “do-not-sell” orders. I am recommending some acknowledgement that certain L-I-P violations are not worth the expense to recall. A strict liability standard for L-I-P is not necessary to protect the public.

Read more here:
CPSIA – My Recommended Changes to the CPSIA

CPSIA – How Important is Testing After All?

Let’s zoom up to 40,000 feet and look down on the CPSIA mess. If Martians were watching this affair unfold before their uncomprehending eyes, what would they think?

In 2007/8, a large number of toy recalls and jewelry recalls dominated the newspaper headlines. A closer examination of these recalls shows that they were largely restricted to lead-in-paint and lead-in-jewelry, but few people bothered with the details – hysteria was a lot easier. Sold on a rationale that it is “impossible” to know if something’s safe without testing it, Congress wrote up legislation to require prophylactic testing of all children’s products, a mind-boggling array of products ranging from pens to t-shirts to science kits to ATVs to shoes.

Being entirely unable to anticipate any problems with this brilliant construct, Congress was shocked to find that the CPSC couldn’t implement these requirements without crushing small businesses (among others). A finger-pointing contest broke out, where Congress insisted that the CPSC had the power to implement the new law with “common sense” (read, make up law to make the whiners go away) and the CPSC pushed back that it lacked regulatory flexibility under the CPSIA and legally was forbidden to assess risk. Standoff!

Of late, a weary and perhaps more sensitive CPSC is now taking a more conciliatory stance, expressing an interest, in the words of Ms. Tenenbaum, “to get it right”. Aside from soliciting feedback from stakeholders, the agency is clearly trying to draft rules permitting small companies to reduce their compliance costs. The net effect: testing is ebbing away. Now with component testing, it is possible for companies to get out of testing altogether for many of their products. Other rules, like flexible rules on rules on sampling and testing frequency, among other rules being crafted, are further reducing the testing burden. [I strongly support this movement by the CPSC, let there be no doubt.]

But I am confused now. Rachel Weintraub of the Consumer Federation of America famously taught us that “Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested.” [Emphasis added.] Yet the CPSC seems to be pulling away from Ms. Weintraub and her wisdom on testing. Is testing critical or not? Is safety achievable in other ways (perhaps various elements in combination)? If testing isn’t so essential after all, what’s really going on here?

I have a theory to share on this question: The recent movement by the CPSC on testing is tacit acknowledgement of our argument that there is more to safety administration than testing. Furthermore, the ebbing of testing requirements is a further acknowledgement that we are not facing a massive public health crisis in children’s products – and never were. Yes, that means poison zippers, brass bushings, ATVs, pens and bikes really is a joke, as you thought. So why the big fuss, why isn’t everyone linking arms and singing Kumbaya, if there is acceptance that a lesser standard will be sufficient to ensure safety?

It’s simple – the issues go beyond this law, and that’s why the Dems in Congress will budge. In fact, we are pawns in a bigger game, namely the battle to establish the precautionary principle in the Toxic Substances Control Act (TSCA). This is Mr. Waxman’s dream legislation, his effort to rein in the chemical industry. The folks behind the TSCA reform legislation are deeply suspicious of chemicals in our lives and want to regulate them on a precautionary basis, not entirely unlike the way we approve drugs. It’s the “fear of everything” all over again but BIGGER.

How does this tie back to the CPSIA? We are the test case, kids. The CPSIA was the first skirmish in the TSCA war. The two substances regulated on a precautionary basis under the CPSIA, lead and phthalates, either make or break the case on TSCA. If the Dems give in to our demands and acknowledge that their precautionary scheme didn’t work, that it ate up the regulatory agency (now nicknamed the Children’s Product Safety Commission), then how can they win approval of TSCA?

This is why the Dems are so resistant to rational change of this ridiculous law. This is why they won’t listen to reason or consider facts. The facts are contrary to their larger goals, so they need to ignore them or deny them. In this context, it is better to send us down the river than deal with our issues. Although their tough testing scheme is being unraveled, they won’t admit that it means that the crisis never was; without a crisis to fix, the entire logic of the CPSIA and their precautionary trial balloon fizzles. The Dems must insist that the crisis is still severe and that there is only one solution, the precautionary principle. Otherwise, they don’t get TSCA.

[Side note: There was a "telltale" in the Waxman amendment to the CPSIA last week on TSCA. A big issue in TSCA reform legislation is the possible use of "junk science" to justify removing valuable chemicals from use in our country. With all the self-appointed consumer representatives clamoring for a chemical-free world, there is good reason to fear manipulative use of science under TSCA to disrupt the chemical industry. It's no different than the misuse of lead toxicity and antimony health effects by consumer groups to attack toys and other children's products under the CPSIA. Some people have been insisting on a "peer-review" standard for these scientific challenges to chemical use - which Mr. Waxman fear may hobble his precautionary principle law. This term is used in Section 101 (b) in the CPSIA to make it more difficult to get exemptions - but was stripped out of the law in Mr. Waxman's unilateral amendment. See my first blogpost on his amendment. His "generous act" in removing this ridiculous stumbling block wasn't a signal of increasing sympathy with our problems. No, in fact, it was simply aimed at resolving one of his problems with TSCA.]

I have no easy answers for how this ends. If you feel your anger welling up, you’re not alone. Actually, I think the regulators are sick of it, too. The CPSIA has truly consumed the CPSC and made the daily affairs of that agency some kind of purgatory for the staff there. I can’t imagine it’s much fun being a Commissioner either. Frankly, the biggest shame of all is that by Congress (the Dems, really) insisting on an unworkable scheme for reasons unrelated to children’s product safety, the agency has been rendered ineffective, bureaucratic and stuck in gridlock. The CPSC’s essential role has been mooted. That’s bad for everybody – in a perfect world, the agency is free to do its job and look for real safety problems to solve. Instead, it has to spend its time figuring out whether water slides are primarily intended for children and the like. What a tragic waste.

In the wake of last week’s demise of the Waxman amendment and the extension of the lead content Stay, we must retain our focus and continue to push hard for a change in the law. The facts are piling up and the excuses for inaction are fading. It’s time for action – for the good of consumers, for the good of industry and for the good of the CPSC.

Read more here:
CPSIA – How Important is Testing After All?

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