CPSIA – Database Questions Tell the Tale

We know that the Dems aren’t listening to our concerns about the public database and we know they fully intend to move forward with their proposal this Wednesday. The outcome is so certain that the consumer groups can’t resist clucking about it to the press BEFORE it happens. It’s a set-up. Too bad for us . . . .

We also know that behind closed doors, the Dems are expressing little confidence that the database has any safety utility. Apparently, they have not acted to hire a SINGLE new employee to process or check the filings in the database project. “Post it and Forget it” is said to be their attitude. It is hard to see how this constitutes even the slightest effort to address the legitimate concerns of manufacturers in the database. Notwithstanding the assurances by consumer groups that we regulated companies have participated “fully” in the process of creating the rules of the database, this laissez-faire approach is hardly comforting.

Late last week, the agency released answers to Anne Northup’s follow-up questions on the database. These answers give further perspective on what’s at stake here.

A few nuggets:

a. To get some perspective on how many complaints might be posted, please consider the following annual postings:

National Electronic Injury Surveillance System (NEISS): 395,700
Injury or Potential Injury Incident Database (IPII) (misc filings to CPSC): 51,400
Death Certificates (data purchased from State governments): 3,600

Just a reminder, the CPSC hasn’t hired anyone to process entries into the database. And don’t forget, the CPSC plans a big marketing blitz on the database, encouraging consumer submissions. The foregoing data sources do not enjoy marketing support and still produce massive data submissions. Considering the liberal definition of who can file under the Dem proposal, the submission numbers could easily swell into the many tens of thousands per year.

The agency also concedes that the filings in the database may be much more detail-rich than the foregoing filings, only compounding the obvious issue. Garbage in, garbage out.

Too bad for us . . . .

b. The agency currently investigates less than 20% of “incidents” filed with the CPSC (2009 statistics). The pool of incidents totalled 16,000 in the most recent fiscal year, resulting in a 14% investigation rate.

NEISS is not investigated. IPII is investigated at a lower rate, with 51,541 reports in 2009 and 4,915 investigations.

The plans for the new database call for a 0% investigation rate (of accuracy). I am sure the CSPC will troll the database aggressively to investigate YOU but not to investigate the validity of the claims. Remember, manufacturers are always suspect, the submitters never are suspect.

Too bad for us . . . .

c. The CPSC has no idea how much time it will have to spend to investigate a claim of inaccuracy by a manufacturer. Of course, the odds of such an inaccuracy claim are reduced sharply by the limited data disclosure to manufacturers, making a rational claim of inaccuracy rather difficult. And as more consumers come to believe that filing with the database is a substitute for direct communication with manufacturers (or perhaps an even better form of communication, informing the manufacturer and the “cops” at the same time), the flow of information to manufacturers will degrade, making accurate and insightful assessments increasingly more difficult. No doubt trust between consumers and manufacturers will erode, too.

Too bad for us. . . .

d. Current database entry QC by the agency does not make “any judgment on the validity of concerns expressed by the submitter”. Screening seems to be entirely comprised of searches for inconsistencies. They look for coding errors, among other errors. Some randomized checking against the original documentation is also conducted. Only about 4% of the data is bounced (of which, 40% are rejected as duplicates). The rest are bounced principally for being out of scope (beyond the CPSC’s jurisdiction) or because no product type is identified.

In other words, the CPSC hardly ever catches any errors or fraud in database entries. Hmmm. Sounds very thorough to me.

The plans of the agency to review the data being included in the database does not include, as far as I can tell, ANY effort to verify accuracy – just to focus on the criteria for inclusion.

Too bad for us . . . .

e. NHTSA database provides contact information of the submitter to the manufacturer. The CPSIA database will NOT – because the CPSIA explicitly forbids it. That’s call the “will of Congress”.

It’s also called stupid legislative drafting and a boneheaded idea.

Too bad for us . . . .

And the net effect of all these little problems? Will the Dems pause to consider the impact on markets? On small businesses? On safety in general? Perform a more open-minded cost/benefit analysis? Trim the database concept back until its value is better understood?

As Public Citizen tell us, we can scream from the rooftops all we want, but the Dems are marching forward. Who can complain, since we have participated “fully” in this process?!

Read more here:
CPSIA – Database Questions Tell the Tale

CPSIA – It’s Raining Paper . . . .

I have previously made the point (again and again) that the paperwork involved in complying or even understanding the CPSIA has escalated to absurd and previously unimaginable levels. When I recently posted my latest video blog, I noted that MY count of the pages of rules implementing the CPSIA was over 1800. [The CPSC has not promulgated a list of these documents and some of them may not even be publicly available, so that's just my count - no one knows the true number.]

Since then, the paper shower has continued unabated. Here are a few new shovel fulls from your CPSC:

Definition of “Children’s Products”: 52 pages

Standard Operating Procedure for Determination of Phthalates: 8 pages

Proposed Rule: Conditions and Requirements for Testing Component Parts of Consumer Products: 69 pages

Draft Notice of Proposed Rule -Publicly Available Consumer Product Safety Information Database: 172 pages

Proposed Rule: Testing and Labeling Pertaining to Product Certification: 160 pages

Staff Briefing Package CPSIA Certification & Testing, April 1, 2010: 110 pages

Total pages: 571

In addition, public meetings of the Commission on Wednesday morning and all day on Thursday this week will feature major topics of great importance to those companies affected by the CPSIA. These will be Must Watch hearings. Hope you aren’t too busy running your business to stop what you are doing and tune in all day.

There cannot be any rational expectation by the CPSC that businesses interested in the development of CPSIA implementation rules could POSSIBLY keep up with this torrent of paper and hearings. The impracticality of participating in this process means that it is a railroad job, plain and simple. It is intentional, too – overwhelming the regulated community is one way to silence the critics.

Despite the absence of any credible evidence that such a massive expansion in safety rules is justified by injury statistics or any form of safety data from marketplace, the CPSC is in the process of gleefully converting the safety rules governing children’s products into something approaching the Internal Revenue Code in complexity. The compliance burden on businesses will be overwhelming – or simply impossible in a practical sense. As important as Ms. Tenenbaum’s instant death rules are, running our operating businesses will take priority for most people.

With this inundation of complexity, the point of capitulation is upon us. Add to this the known risk of mega penalties. Remember, this CPSC has warned businesses not to dare resist it. The consequences of resistance can be interpolated from the Daiso penalty – $2.05 million for recalls of 698 pieces in five recalls of 19 products over two years without a single reported injury. [Imagine what Mattel or RC2 would pay today under this enforcement scheme. I wonder if my calculator has enough digits for that number . . . .] Ms. Tenenbaum has demonstrated that she will have no reluctance to sic the U.S. Attorney on us for our transgressions without regard to actual market impact, striving to impose “a very high hurdle to jump over to ever get back in the import business again”.

This approach to regulation is an irresponsible act by our government and very damaging to the market. It’s naive and shortsighted, but in the “Father Knows Best” world wrought by Mr. Obama, it’s useless to attempt to reason with the regulators. The promised “dialogue” with the regulated community has been exposed as a sham. It’s hard not to conclude that businesses have now been deemed evil by nature. Otherwise, how do you explain the paper blizzard? Sadly, none of this holds any prospect of making kids safer.

I hate the feeling of shouting in a vacuum. I am not sure what will trigger a revolt against this insanity. Does another work assignment of 600 pages anger you . . . yet? The mountain is at about 2500 pages to read now, and there’s more to come. What outrages will have to take place before you resist?

This may be too urgent to wait for November. Think about how you will deal with penalties for complying with rules you have never read, cannot possibly read and may not even understand. This regulator has already acted to put a minor player out of business. Are you next?

It’s time to act with a sense of urgency. Your customers, your employees, your stakeholders are counting on you.

Read more here:
CPSIA – It’s Raining Paper . . . .

CPSIA – Waxman Language Dropped from Defense Bill

In a triumph for rationality (?), the Waxman CPSIA amendment has been DROPPED as an attachment to the Defense Appropriations Bill. It is dead and will not become law (the bill is posted on the House Rules Committee page and does not include this amendment). The people have spoken! Apparently, no one particularly liked the process dreamt up by the Waxmanites, and with full rebellion by various industry groups, certain CPSC Commissioners, other House Democrats, the Senate and of course, the slighted Republicans, the language was killed.

Notably, the very fact that Waxman himself proposed this amendment is a strong concession that something needs to be done legislatively to fix the law. This is also an acknowledgement from the top that the CPSIA can’t be fixed by the CPSC alone. Furthermore, it is clear that the language didn’t go nearly far enough to address the many well-known issues or put the CPSC in a position to take sensible steps to fix the mess. Finally, I sense a growing desire among legislators to work cooperatively and in a bipartisan way to fix the law. Perhaps more than a year of vicious fighting is wearing everyone down. Let’s not forget that the CPSIA was originally the product of bipartisanship. The withdrawal of the Waxman amendment is a strong vote AGAINST poisonous relations across the aisle, at least as it relates to safety.

Because of its evident flaws, the demise of the Waxman amendment is a very positive development, although I would (of course) prefer to see the law fixed. But fixing the law needs to be done the right way. It’s time to move beyond message control and the false notion that any amount of lead is dangerous somehow like uranium. We are all adults here, and know that something less than an outright ban of trace levels of lead would work just fine to protect consumers. There may be legitimate consumer concerns over toy safety and the safety of other children’s products, but the CPSIA (a law borne in anger) is misconceived as a solution.

Perhaps this crash-and-burn will bring about real change. The best outcome would be an overall change in atmosphere. There is NO REASON that all the stakeholders must continually fight like cats and dogs. When it comes to safety, this is a particularly ridiculous situation. The common interest of all adults is to protect children – NO ONE opposes safety. However, the issues in safety are procedural and economic in nature, which must be acknowledged, and the solution is more complex than may be apparent. It is my belief that a reconsideration of the CPSC’s relationship with the market may provide the best “pop” for safety. A reinvigorated CPSC committed to industry outreach and partnership would work wonders. Rebuilding a genuine sense of mutual trust, rather than a mutual sense of fear and loathing, will provide the best long term protection of consumer interests.

This is NOT a pipe dream! In the wake of the demise of the Waxman amendment , we need to move forward TOGETHER to recast the law to facilitate the strength of the U.S. marketplace while protecting the legitimate interests and rights of consumers. No one needs to lose in this process. And a lot of jobs can be saved – if we act promptly and with insight.

Read more here:
CPSIA – Waxman Language Dropped from Defense Bill

Democracy in Action – An Interactive Civics Lesson for your Students

“… that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

The April 1 Amend the CPSIA Rally is intended to be a true demonstration of real democracy. This is a unique opportunity for teachers and schools to give kids a bird’s eye view  of how citizens participate in legislative processes and influence the path of government. 

The event will be streamed online as it takes place on Wednesday April 1, 10:00 am EST. You will be able to watch it as a class right here at amendthecpsia.com and even participate in a live online chat through which questions may be asked. 

Afterward, you can ask your students to write about the event. If you decide to do this, we’d love to know how it went, and to read some of your student reactions. You can write to us at webcontent AT amendthecpsia DOT com.

For more ideas on how you can participate in the rally from your home state click here.