CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

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CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

In an announcement today calling for comments, the CPSC announced the December 10/11 seminar on the “15 Month Rule” and called for comments by January 11, 2010. Notably, the CPSC announced the following details:

“The workshop will be held from 9:30 a.m. to 4 p.m. on Thursday, December 10, 2009, and Friday, December 11,2009 at the CPSC’s headquarters building at 4330 East West Highway, Bethesda, Maryland 20814, in the 4th Floor Hearing Room.

The workshop will open with a review of CPSC staffs current work on sections 14(a) and 14(d)(2) of the CPSA, including a discussion of the factors involved in sampling and an overview of the economic issues, followed by break-out sessions on the following subjects:

• The Consumer Product Labeling Program;
• Reasonable Testing Programs;
• Sampling Plans;
• Safeguarding Against Undue Influence on Product Testing;
• Additional Third-Party Testing Requirements for Children’s Products; and
• Verification of Children’s Product Testing Results.

The panels at the break-out sessions will consist of Commission staff and invited members from the public. If you would like to make a presentation at the workshop or be considered as a panel member for a specific break-out session, please send, via electronic mail (e-mail), a note indicating your desire to participate and/or indicating which of the break-out sessions you wish to join. We ask that you limit the number of break-out sessions to no more than three. We will select panelists and persons who will make presentations at the workshop, based on considerations such as: the individual’s familiarity or expertise with the topic to be discussed; the practical utility of the information to be presented (such as a discussion of specific standards, methods, or other regulatory approaches), and the individual’s viewpoint or ability to represent certain interests (such as large manufacturers, small manufacturers, consumer organizations, etc.). The e-mail should be sent to Robert Howell at rhowell@cpsc.gov no later than November 20, 2009.”

As noted, comments are due on January 11. As this is expected to be one of the most hotly-debated subjects under the CPSIA, the promulgation of the “15 Month Rule” will take some time thereafter and may be subject to comments again before the rule becomes “final”. The “15 Month Rule” is far off at this point. This suggests some action, hopefully soon, to extend the testing and certification stay. Fingers crossed . . . .

The CPSC document is remarkable for its candor about problems with this troubling rule. Considerable detail is provided in their 25 page announcement. Their acknowledgement is, in and of itself, a shift. [The delay was announced over the weekend by Nancy Nord in her new blog.] The fact that the CPSC evidences deep concern over the challenges in this rule implies that it recognizes the severity of the business community’s issues under this law. [The CPSC and its professional staff are likewise victims of the CPSIA, but at times a forgotten victim.] Their admission in advance of the November 14 deadline can only be interpreted as a courtesy to the business community, a much-appreciated one, too. This has been in the works for some time, apparently – I am personally grateful that they didn’t wait to the very last minute to let us know of the delay.

I think it is becoming clearer that the CPSC is listening. Now the next challenge is to translate listening into action. No one, NO ONE, wants to endanger children. In fact, no one EVER wanted to endanger children. The challenge before us (Congress, the CPSC and the business community together) is to craft rules and mechanisms that reasonably protect children while not snuffing out markets, products or companies. I hope that the CPSC and its leadership also see clearly that important parts of the problem are beyond their power to remedy – and that they must go to Congress to get help. To me, this is a “lesson learned”. And . . . the sooner, the better.

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CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

CPSIA – Must Read in the Denver Post

Let me say, here and now, that if I am chosen for next year’s committee, THIS GUY gets my vote for Nobel Peace Prize in 2010!

Opinion

Harsanyi: They’re tragically delicious

By David Harsanyi

Posted: 10/14/2009 01:00:00 AM MDT

How can Americans be expected to wrestle with the myriad of dangers that confront them each day? Insalubrious cereal? Unregulated garage sales? Pools of death? Sometimes it’s too much to process.

You know what we are desperately crying out for? An army of crusading federal regulatory agents with unfettered power. Who else has the fortitude and foresight to keep us all safe?

Mercifully, as The Washington Post recently reported, many of President Barack Obama’s appointees “have been quietly exercising their power over the trappings of daily life . . . awakening a vast regulatory apparatus with authority over nearly every U.S. workplace, 15,000 consumer products and most items found in pantries and medicine cabinets.”

If there’s anything Americans are hankering for in their everyday lives, it’s a vast regulatory apparatus. Hey, it’s dangerous out there.

That’s why the new chairman of the Consumer Product Safety Commission recently unleashed 100 agency inspectors to investigate whether or not swimming pools in America were equipped with a drain cover to prevent children from entrapment.

Nearly 0.9 children fall prey to this sadistic killer each year. With the compassionate guidance of federal officials, we will almost surely see this number plunge to 0.8 children per year.

It should be noted that each tragic year that passes by, an estimated 300 children under the age of 4 drown in swimming pools. Why our government sits idly by as this watery assassin targets
the most vulnerable among us is a mystery.

Don’t get me started on food. Washington will not rest until every one of our children is forcing down some gravel-based Mueslix after morning calisthenics in the name of a glorious preventive care revolution. I get it. They’re fat.

This is why I am grateful that one courageous soul has finally stood up to the menacing influence of Big Cereal. Yes, Food and Drug Administration commissioner Margaret A. Hamburg has had enough of deceitful infiltration of Cheerios, demanding that General Mills cease and desist a marketing campaign that peddles the fallacious claim that the oat-based cereal can lower cholesterol.

Why stop with oats? Trix are not only for kids, you know. Lucky Charms are nowhere close to being “magically” delicious.

What Lucky Charms does do is perpetuate the stereotype that the Irish are a bunch of oft-inebriated jerks — which everyone knows is only true about 70 percent of the time.

Isn’t there a statute we can pass in Congress to end the hate?

Then again, it’s not only those scheming Irish that are hawking their wares — unregulated — on concrete suburban driveways and inner city thrift stores across this country.

The “Resale Round-up,” launched by the CPSC, finally limits the power of these merchants of death who recklessly barter second-hand toys to unsuspecting civilians at low prices. Consider that Tonka truck — the one that you somehow outlasted — contraband. If not, you could be fined thousands of dollars.

The only question now is how did any of us survive this long?

Michael Livermore, executive director of the Institute for the Study of Regulation at New York University Law School, points out that “In the Bush administration, the problem was that the political folks were hostile to the mission.”

It is no surprise that Bush administration — a close second to Big Cereal in wickedness — was hostile to regulating the rhinestones on your kids’ denim jackets. Apparently the depths of its depravity knew no bounds.

The mission? Simple. Keeping you safe. Because everyone knows that parents aren’t equipped to keep their children safe until a bureaucrat explains exactly how it’s done.

And those parents who are neglecting their children’s safety, well, they always care more once government gets involved. Right?

E-mail David Harsanyi at dharsanyi@denverpost.com.

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CPSIA – Must Read in the Denver Post

CPSIA – More New Standards to Help Put The Fork Into Small Business

Perhaps you are aware that the Retail Industry Leaders Association (RILA) and British Retail Consortium (BRC) are working on new “Global Standards for Consumer Goods“. RILA presented this new construct to the CPSC on October 5 and were warmly greeted for their efforts. According to the Product Safety Letter: “Tenenbaum termed the effort ‘encouraging’ and urged the group to include details in upcoming comments on CPSIA-related reasonable testing programs. She said it is good that the release of the RILA program and the pending comment period (slated to open in November) are likely to coincide. ‘The timing could not be better,’ she told the visitors. She also noted the power of retailers to push standards: ‘The way that you all could fan out in China would really facilitate the process exponentially.’ Adler said, ‘What I heard is terrific. You’re all ferocious competitors and will remain so. But you’re not going to compete on safety.’ Also pointing to the power of retailers to impose standards, he called regulators and retailer allies.

A quick glance at these standards makes clear that they are a death sentence to small businesses. The practical impact of the rules will be to bifurcate the market for importers and factories – suppliers to mass market and suppliers to the rest. You won’t be able to be in the mass market camp without complying with these standards. There won’t be any halfway point – it will be like a pregnancy test, you comply or you don’t (pregnant or not pregnant). Of course, this also means that you must incur a HUGE cost to sell even one product into the mass market. This barrier to entry will make the mass market off-limits to small fry. Goodbye American Dream?

I find it interesting that the CPSC jumped at the chance to support these standards. Where did the standards come from? The mass market, of course. RILA is a mass market enterprise, designed to represent the interests of a few large (LARGE) retailers. Ditto for the BRC. Notably, when the CPSIA was in gestation in 2007/8, the folks behind the law reached out to the likes of Wal-Mart to ask about the feasibility of their brilliant safety innovations. By several reports (to me directly), Wal-Mart and their ilk expressed little concern about their ability to comply. Case closed. Ahem, what about the rest of us? Congress overlooked that little detail, figuring that what Wal-Mart can do, the rest of us can do, too.

Have we learned NOTHING in the last 18 months? Please don’t make me answer that one.

A quick glance at the standards reveals that they are really only suitable for mega-businesses, particularly those that have committed to ISO 9001 and the like. This group does NOT include EVERYONE. The sections on Risk Management and Management (check out 3.8 Traceability – yeah, FULL traceability is required) are particularly out of reach for small businesses. Some of the new standards have already been addressed by initiatives in recent years to address “Code of Conduct” issues, like ICTI-CARE, and will probably be okay (within limits). But the RILA/BRC standards go much, much further. The cost implications of these standards for small business are breathtaking.

If a “damn the consequences, don’t bother me with the details” rush to implement these new standards takes hold, there will be little reason left to try to be a small business in America. After all, standards like the RILA/BRC global standards are a classic glass ceiling to growth. I hope somebody takes note of the impact of these awful standards on small business, the largest creator of jobs in America. Small business needs an advocate, and these days, it’s hard to identify anyone in Congress that gives a darn. If no one will rise to the occasion, I guess we can always open up a sandwich shop. That’s about the only option that will be left for small business. Making products, besides sandwiches, has become a very unrewarding pastime.

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CPSIA – More New Standards to Help Put The Fork Into Small Business

CPSIA – Ashton Kutcher to the Rescue!

The CPSC rolled out its latest weapon in the war on safety two days ago – CELEBRITIES! Yes, rather than focus its energies on consideration of the issues present by its regulated community or devote its limited resources and energy to identifying real threats to safety, the CPSC is instead reaching out to Ashton Kutcher to lend a hand with its Internet strategy. After all, who would know better than Ashton, he of the Blah Girls fame ( http://www.blahgirls.com/ ). Ashton, known as ” aplusk ” on Twitter (3.7 million followers – you, too?), is a renowned expert on safety and the perfect ally for the CPSC. Anything to avoid dealing with its role in driving small businesses serving the children’s market into the tank. . . . Apparently, Scott Wolfson has been given the chore of mining the Hollywood connection. In a tweet two days ago , Scott rang up his bud’ Ashton perhaps in the hope that Ash’ would retweet his words of wisdom: Scott_wolfson: @aplusk ashton – federal gov. just launched @OnSafetyto help keep children and families safe in their home. Thx. Ashton is certainly the right place to turn for an ally in safety. Check out the description of his new characters/series Blah Girls: “Meet…”The Blah Girls!” BlahBlahBlah is an interactive, animated Web series that focuses on popular culture, told through the perspective of the Blah Girls – Tiffany, Krystle and Britney. They will keep you up to date on the latest in celebrity gossip, fashion, relationships and life as it happens. http://www.blahgirls.com/ ” Just oozes safety and concern for the health of children, doesn’t it? Ashton, SAVE ME! Maybe Ashton asked Scott to keep him posted. I don’t know. From my perspective, the outreach to the Hollywood types is yet another sign of confused, conflicted priorities in today’s CPSC. It seems to me that the agency is being tooled to please the power elite of the moment while placing the mission of safety in a back seat (except when the power elite wants some heads on a stick to impress the populace). They talk about “transparency” and “openness” but don’t answer questions or respond to clear and documented criticisms. They reach out to celebrities and publicize the garage sale police (with a little too much enthusiasm) but are unwilling to resist the decimation of critical regulated markets with sterling safety records like educational products, apparel (putting aside drawstrings, a different issue altogether), bikes and ATVs, non-lead jewelry and jewels. The emerging picture is certainly not inspiring to someone (like me) who has known this agency for almost two decades and knows the good work it is capable of. It makes so much sense. . . . Thanks Scott for turning Ashton on to your new website! I am sure that will make everyone so safe – and so hip!

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CPSIA – Ashton Kutcher to the Rescue!

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