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CPSIA – Three Dem CPSC Commissioners Accuse Industry (You) of Dosing Kids with Lead

April 7, 2011 by Timothy  
Filed under BLOG, Featured Articles

In a revolting display of cowardly fear mongering, the three Democratic CPSC Commissioners yesterday wrote the House Committee on Energy and Commerce and its Subcommittee on Commerce, Manufacturing and Trade to protest the proposed CPSIA amendment.  In this letter, in defense of the lead-in-substrate provisions, the Dems sow fear by suggesting what you might do: “The CPSIA set one of the most protective lead limits for children’s products in the world. The public health community continues to hold its overwhelming consensus: There is no safe level of lead.   We oppose any change in the law that would lead to an increase in the DOSES OF LEAD to which our children are exposed on a daily basis, particularly when the marketplace has for the most part already adjusted to lower lead levels and is well on its way to getting the lead out of children’s products .” [Emphasis added] Hmmmm.  Apparently we evil toymakers, sinister educational product makers, monstrous t-shirt and jeans producers, venal shoemakers, diabolic rhinestone merchants, demonic ATV purveyors, fiendish motocross enthusiasts, vile vending machine operators, corrupt jewelers, slimy resale shop owners, worthless book publishers, perverse pen companies, satanic carpet weavers – we all are just waiting for the CPSC to look the other way so we can “dose” children with lead.   This kind of asinine accusation normally would be something to deride and lampoon in this space, but in this case frankly, it’s not at all funny.  Here you have three CPSC Commissioners with a majority vote (including Chairman Inez Tenenbaum) going national with serious, maligning insults of our values and our integrity.  They can hardly restrain themselves – they go further to assert that we have only “for the most part adjusted” to the new rules – you know, by firing people, cutting products, withdrawing from markets. This is your “leadership” on the Commission.  I want to vomit. CPSC Commissioners are appointed by the Senate.  I wonder if a better word is “planted”. The letters make clear where children have lead exposure risk.  Lead in D.C. tap water, no, that’s fine – what can anybody do about THAT?  House paint, environmental sources – nah!  No, the real problem is industry and its “dosing” through children’s products.  The last line of defense is the CPSIA.  The three Dem Commissioners put it succinctly – change the law and poison children. Better to over-regulate than under-regulate because it’s a zero-sum game, right?  As usual, the Dems don’t mention that THEY CAN’T PRODUCE EVEN ONE INJURY VICTIM FROM LEAD-IN-SUBSTRATE IN CHILDREN’S PRODUCTS.  There are more than 50 million children in this country in the regulated age group and no one can find a single injury victim – EVER. Nonetheless they apparently think it’s perfectly fine to wag their fingers at us and accuse us of unspeakable acts.   Who’d say anything, anyhow?  Won’t get fooled again. . . . I guess we have a hint here how these people might vote on the technological feasibility of 100 ppm.  Giving them an extra year to lower the boom won’t do anything to protect my employees or my customers – they are TELLING US that the die is cast.  That’s because you and I apparently want to “dose” children with lead the first chance we get!  They reinforce the hyperbolic tone by standing pat on the age limits under the CPSIA – we NEED the 12 year old limit.  Why? Because Mommy says so.  Junk science to the rescue! We can’t have kids eating their ATVs, can we? Does anyone wonder why trust in this agency is destroyed beyond repair?  Who in the business community would ever expect to get a fair shake from these consumer group front men?  Government for all us?  Hardly. Defending themselves on a weak point, the Dems contend they are sympathetic to small business. Myself, I can’t measure commitment by limp and syrupy words of consolation – I look at what they do, not what they say.  These people have done precisely ZIPPO for small business after three years of begging, pleading, screaming.  I am tired of hearing about how much they CARE about small business. [Guess who drafted the letter?] As a friend of mine used to say, it’s bullpucky. Here’s a shocker:  I actually agree with one thing these people say – that parents deserve safe products regardless of who makes them. Of course that makes sense (no one cares whether a tortfeasor is a big company or a small company) which is why I want sensible standards that apply equally to everyone. In this case, the government should stop telling us how to run our businesses.  Make a reasonable set of standards based on a real and defined “substantial product hazard” standard and go from there.  This is parent-friendly and quite workable for small business. Of course, my suggestion would make these Democrats much less important and certainly less heroic.  Their letter makes clear who “saved” America – the CPSIA, the Dems in Congress and the Dems on the Commission.  They’re the ones who really CARE.   Won’t get fooled again . . . . Fittingly, the letter wraps up with words dripping with insincerity:  ”Nevertheless, while it is true that no one, including us, wishes to over-regulate, similarly we cannot support under-protecting the American consumer, particularly our nation’s children.” In other words, the Democrat Commissioners are daring Congress to loosen the nose around out necks and are prepared to blame them if anything goes wrong. This also provides cover for zealot Senators who will make sure you have a great opportunity to go bankrupt or remain under the thumb of their out-of-control agency.  I don’t think it’s much of a stretch to say it looks like a conspiracy – Democrats against you. It would be wrong to call this letter disillusioning.  That happened a long time ago.  It also conveys little new information. Anyone truly shocked by this letter by these authors has been asleep at the wheel for the last three years.  This merely confirms or updates what we already knew.  I don’t have a solution to people like this running the show.  I can’t do anything about it.  One of them, Thomas Moore, is now about six months past the end of his term.  Maybe Congress forgot about him.   Pay attention today.  The stakes are high and getting higher.  The CPSC is working against you.  We will need keep fighting to survive.

The rest is here:
CPSIA – Three Dem CPSC Commissioners Accuse Industry (You) of Dosing Kids with Lead

CPSIA – Analysis of Pending House CPSIA Amendment (Sections 3-11)

Continuing with my analysis of the pending draft of the CPSIA Amendment:

Section 3

CPSIA – Analysis of Pending House CPSIA Amendment (Sections 3-11)

Continuing with my analysis of the pending draft of the CPSIA Amendment:

Section 3

CPSIA – Analysis of Pending House CPSIA Amendment (Sections 1 and 2)

[This is a long essay - I apologize.

CPSIA – John Stuart Mill and Crib Safety

“I have observed that not the man who hopes when others despair, but the man who despairs when others hope, is admired by a large class of persons as a sage.”

John Stuart Mill
1828

The CPSC recently congratulated itself for banning drop-side cribs. Scott Wolfson clucked on Twitter: “RT @Scott_wolfson: The lifesaving crib rules approved by #CPSC today are a key part of the #CPSIA. #CPSC wants all babies to have a #safesleep.” Other people, like Rep. Jan Schakowsky, also rushed forward to take credit for this change in regulation.

To judge from these press releases, a real crisis in public safety has been addressed. Is that true?

Wasn’t it Winston Churchill who once said that history is written by the victors???

I have not touched the crib issue previously because, frankly, it’s too hot to handle. Who would want to defend a product associated with baby deaths? There but for the grace of G-d goes I. On the other hand, the projected compliance expense of $550 million is breathtaking, particularly given the fact that the agency’s ruling is both retroactive and mandates replacement of cribs in certain childcare facilities. Even Commissioner Robert Adler calls this expansion of the CPSC’s role as “uncharted territory“. This sets a new precedent for government (CPSC) intrusion that I find troubling, even under these circumstances.

The always astute Lenore Skenazy questions the CPSC’s justification of three fatalities a year linked to drop-side cribs. She labels herself “subversive” for looking at the numbers. [You know you were thinking it, admit it!] Based on the injury figures released by the CPSC, she notes that the deaths attributed to drop-side cribs are less than those attributed to spider bites (five per year). She puts the drop-side crib-related deaths in the context of 4 million births per year and asks where the limit is in our effort to save ourselves.

Skenazy rattles off many other death statistics (such as 1,300 per year from stair falls) for further perspective on the scale of the drop-side crib “crisis”. She does not discuss pool deaths, which number between 1-2 per day and generate 11-12 childhood emergency room treatments for serious injuries daily. But the obsession of this CPSC is drop-side cribs, so we should not worry about those other things . . . .

Lenore makes a good point. What IS the limit? And how much should we pay? Is this really a public health crisis, and if it is, aren’t all those other causes of childhood deaths similarly a crisis? Who gets to decide which crisis is our top priority?

As J.S. Mill points out, despair sells well so we are naturally inclined to accept on face value the shrill self-congratulations of the politicians who are so busy making us so safe. I have been battling the same self-justifications and self-praise by politicians and consumer “advocates” over lead for three years. Does the absence of injury statistics matter to anyone?

Interestingly, the CPSC provides some context on its crib decision. If you read through the document announcing the change, you will find out a few interesting tidbits:

  • Despite Ms. Schakowsky’s claim to have created this regulatory storm, the industry has been working on standards for many years. ASTM F 1169–10, the full-size crib standard, was originally published in 1999 and has been revised several times since 1999, including 2010. The same can be said of the voluntary standards for non-full-size cribs. The statement in the CPSC press release noting that “[t]he federal crib standards had not been updated in nearly 30 years” is pretty misleading – the voluntary standards relied upon by the agency and the industry have been regularly revised. [Until this administration took over, the CPSC relied on voluntary standards as a matter of public policy.] Even more remarkably, please note that the current CPSC action adopts these voluntary standards as the new mandatory standards with minimal amendments, calling the adopted standards “substantially the same” as the voluntary standards. Hmmm.
  • The CPSC initially issued mandatory standards for cribs in 1973 and amended them in 1982. There has been on-and-off activity at the agency in the ensuing years. Crib safety was not a new subject to the Commission when Ms. Schakowsky announced the latest crisis. Ms. Schakowsky didn’t solve the crisis either when she purportedly wrote this provision of the CPSIA. Is it actually certain that there ever was a crisis in drop-side cribs . . . or was Ms. Schakowsky simply looking to bulk up her hagiography?
  • Annual sales of cribs are estimated at 2.4 million per year, including non-full-size cribs (approximately 300K per year). Thus, over 11 years (2000-2010), that’s 32 deaths and an estimated 26.4 million cribs sold and 40 million babies born. Crisis? There are approximately 591 models of full-size cribs and 81 non-full-size cribs on the U.S. market, according to the CPSC. In recent years, the CPSC has recalled 11 million “dangerous” cribs defect” since 2007 (about 40% of the estimated total sales in the last 11 years).
  • A pilot CPSC project of data gathering on crib injuries from November 1, 2007 to April 11, 2010 generated a total of 3,584 “incidents”, including 147 deaths associated with full-size cribs. Some of these incidents go back as far as 1986, btw. Of the 147 fatalities, 107 were not related to any structural defect in any way. Of the 35 fatalities related to “structural problems”, 18 were related to drop-side cribs. [The CPSC document contains a detailed analysis of the injuries, as well.] So of entire pool of fatalities from cribs in this period, 18 of 147 were related to drop-side cribs in some way – 12% of the total fatalities. The CPSC press release somehow omitted this additional fact.

This data cannot be correlated to the December 17 CPSC press release in which they note 32 deaths since 2000 (11 years). There is no data provided on the AGE, CONDITION or QUALITY of the cribs involved in the deaths, no information on the MAINTENANCE or STRUCTURAL INTEGRITY of those cribs or whether the hardware failure was apparent or not. In its May 7th press release, the CPSC notes however that the 32 deaths include “some [fatalities which] occurred in cribs where the drop side detached without caregivers noticing the detachment, while some other deaths occurred after a consumer tried to repair the detached drop side, but the repair ultimately failed.” [Check out the photos to see what a consumer "repair" might look like.] No quantification whatsoever. Arguably, this CPSC statement suggests that any solution to the problem involves, in whole or in part, user education.

The CPSC did not supply data to distinguish between product failures/defects and parental or caregiver error or misuse. It’s all laid at the feet of the crib design. The CPSC’s “analysis” is pretty simple – you don’t need drop-sides for your baby to sleep comfortably in a crib, and if we eliminate drop-sides from the market, presumably a certain number of unnecessary infant deaths can be avoided. It’s a presumption, however.

It’s hard to argue with their logic but it’s also hard to know what has been accomplished. We do know that the ban of drop-side cribs costs a lot of money, however. Isn’t that relevant, even a little bit? If user education is essential to ANY “solution”, how do we know we have spent our $550 million well or achieved anything whatsoever? The precise mechanism leading to the fatalities cannot be determined from the paltry data released to the public. Table pounding by advocates is, regrettably, not data. As Mr. J.S. Mill notes, the advocates’ histrionics are likely to be taken as “sage” in this case. What if we knew that ten years out, the replacement cribs caused the same number of deaths or perhaps even MORE deaths? The rate of fatalities in these cribs in already remarkably low. How can we be sure that the new cribs will be better? Should we just take Nancy Cowles’ word for it?

I find it interesting that the crib industry has been rather quiet on this change in rules. There are literally dozens of suppliers of cribs in this country, and more than 11 million units have been recalled. Why such quiet from these companies? I suspect the reason is that most consumer do not blame the brands for these recalls, and few people are motivated to return their cribs. [That includes me. Consumer advocates label recalls "unsuccessful" when we the people don't do what they want us to do.] So the cost of the recalls is probably modest BUT the government is mandating that $550 million be spent by childcare providers on NEW cribs. Why would crib manufacturers object to this cost-effective stimulus plan?! Surely many people taking the old drop-side crib out of the attic will say “Whoa, that was recalled. I better buy a new one . . . .” Many, many people.

Thank you, CPSC, for making us so darned safe! The crib industry probably loves you (secretly). Not so sure about hotels and childcare providers. Ultimately I know who pays for all this, however, and it isn’t the consumer advocates or the regulators. It’s the guy who stares back at you from your bathroom mirror.

The CPSC for its part did something easy and self-serving: they saved us from yet another lurking danger that none of us could see, all at our expense. I wonder if the CPSC would be as enthusiastic in their actions if they had to pay for it out of their own budget (or pocket). The money they spend is OURS, and they never even need to steady their hand to write the check. I don’t know about you, but I think it’s much easier to spend someone else’s money, especially when there are a lot of zeroes involved. The CPSC is making us do it for our own good. Does anyone see a problem here?

The new rule sets dangerous new standards for CPSC (government) intrusion into our businesses and into our lives. The CPSC’s action means that the Commission thinks it’s now okay to take retroactive action with impunity. This is a BIG change in regulatory policy. Bob Adler notes: “The Commission has never before entered into a rulemaking, whether or not required by Congress, that not only has retroactive applicability, but also requires the replacement of every product in a given product class – particularly in an occupational setting like child care facilities.” OMG – and this is okay . . . why??? Because he says it’s a crisis and it’s important to do.

This is government power without restraint, and it’s a serious issue. This is much more serious that drop-side crib deaths. I do not know how to run a business in a market regulated by people who make up the rules to suit their mood. I thought there were protections against this.

Let’s hope Mr. Adler and his associates made a good judgment for all of us. They are spending our money and we have no choice but to do as we’re told. That’s “government of the people, by the people, for the people” nowadays, I guess.

I wonder what Abe Lincoln would think of this government . . . .

Read more here:
CPSIA – John Stuart Mill and Crib Safety

CPSIA – On the Database, the Dems Side with the Liars

The vote on the noxious public database rule scheduled for the day before Thanksgiving (November 24) is a foregone conclusion. Says Rachel Weintraub of Consumer Federation of America: “There’s majority support for the proposed rule, which we applaud.” [BNA, "Poised for Database Vote, CPSC Reschedules Meeting at Dissenting Commissioner's Behest "] Says Christine Hines of Public Citizen: “There is nothing they [Nord and Northup] can do about it except yell from the rooftops.” [ibid.]

Let’s not forget, safety is not a partisan issue. Yeah, right.

But it’s true – the Dems control this vote and are going ahead with their rule, damn the consequences. And there will be MANY terrible consequences. I testified about the database last year and laid out many problems (see my testimony here). Industry has in fact pointed out many issues with the database, such as (a) the consequences of inaccurate information, (b) the consequences of manipulative or misleading information posted by trial lawyers or competitors, (c) the irreversibility of damage from adverse publicity, (d) the database as a government-sponsored and administered feeding ground for plaintiffs lawyers, (e) the negative impact of encouraging consumers to disclose problems to a database which withholds information from manufacturers, rather than direct communication, (f) federal government intrusion to replace or supplant private market solutions, (g) the debasement of Constitutionally-guaranteed due process rights and other protections afforded to litigants and possible victims of abuse of government power, and (h) the likelihood that the database will severely punish small businesses while having only marginal impact on the intended targets, mass market companies.

This seems a bit treacherous for something is said to be so “good” for everyone. Is there a problem here with selective hearing?

How do the Dems justify their position? Well, first of all, they don’t need to. Learning at the feet of Nancy Pelosi and Henry Waxman, the Dem Commissioners know that their voting power is all the justification they need. They have the votes, therefore they have a “mandate” from the voters, right? Why else would a Commissioner state publicly that anecdotes aren’t evidence? Troubling details from little people don’t matter anymore – not if the details might get in the way of the “agenda”.

The Dems and their allies also hide behind the NHTSA vehicle defects database. I find this so interesting because the ever-attentive CPSC heard testimony that debunked this example (same hearing that I testified in a year ago). The NHTSA example can be distinguished in many significant ways: (a) auto accidents are a leading cause of death in this country (consumer products are not), (b) every use of automobiles is known to be hazardous (not true for consumer products), (c) the auto industry is one of the largest components of our entire economy – we all use cars and many of us owe our livelihoods to automobiles one way or the other (the average sale of consumer products is far less than a car), and (d) the industry is highly consolidated among a relatively small number of massive companies that are quite well-prepared for litigation and regulatory issues (consumer products is not a consolidated market). General Motors went public today, completing its recovery from bankruptcy and its $60 billion bailout. I think GM and other automakers can handle the burden and risk of a database of deaths and serious injuries from use of their products. Learning Resources, on the other hand, ain’t no GM or Toyota. The NHTSA database sets an inappropriate example for consumer products for all of the foregoing reasons.

Providing further cover is the Rogue’s Gallery of leftist consumer advocates who spin yarns to support the decisions of the Dem Commissioners. Many of their assertions are bald-faced lies.

Example No. 1: “‘Right now, people can’t easily find out about products that they may buy or that they use every day with their family,’ said Rachel Weintraub, director of product safety for the Consumer Federation of America. ‘This database will provide consumers with credible, accurate information.’”

This is two lies by Rachel Weintraub. First lie – consumers “can’t easily find out about products”. Really? I recently wrote about consumer comments on Amazon for a product that was recalled – is that so hard to find? What about ConsumerSearch.com? ePinions.com? Consumer Reports Forums? All the large volume online retailers allow consumer to post reviews. I think it’s certainly true that consumer exchange of information online is both plentiful and easy to find. I also think it’s also a matter of opinion whether the federal government should a role to play here in this exercise of free speech – particularly if in the process, the government tramples on Constitutionally-guaranteed rights of due process of other members of our community.

Second lie (more glaring): “This database will provide consumers with credible, accurate information.” This is a doozie. From Section 1102.42 of the proposed rule: “The Commission does not guarantee the accuracy, completeness, or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC. The Consumer Product Safety Information Database will contain a notice to this effect that will be prominently and conspicuously displayed on the Database and on any documents that are printed from the Database.” [Emphasis added] On the other hand, perhaps Rachel is on to something – by publishing unverified and untrustworthy data on a government-run database, it will certainly LOOK credible and accurate! Practically the same thing these days . . . .

I would observe that while this disclaimer is going to be widely posted on the database, the name of the site is SaferProducts.org. What does this name imply to you? I take away that (1) I should be scared of dangerous products, (2) this website is where I can find out the “truth”, and (3) thank heavens for my government for making me safer (let’s increase the CPSC budget!). Ahem – I thought the CPSC does not guarantee the accuracy, completeness or adequacy of the information in the database so why is the website called “SaferProducts”? Should I feel “safer”? Was I supposed to feel endangered before? That’s the idea, kids.

But if Rachel says the postings are credible and accurate, there’s nothing to worry about, right? Provides some nice cover for our leaders . . . .

Example No. 2: Says Ami Gadhia of Consumers Union: “Commission staffers have worked very hard to ensure that the database is fair to everyone.”

Someone please define “worked very hard” and “ensure” for me. Please watch my testimony again and tell me what protections CPSC staffers designed for ME.

I interpret Ms. Gadhia’s lie as connoting that “fair” to her views is tantamount to “fair to everyone”. My interests don’t matter. Besides, Rachel is sure everything will be credible and accurate. That sounds fair . . . even if it’s completely untrue.

Example No. 3: Says Rachel Weintraub: “Every effort has been made to ensure that the information is accurate. . . . Otherwise, the database won’t be useful to anyone.”

Every effort, huh? Manufacturers don’t get to talk to the person who files the report or to the victim or see photos or samples submitted. Only our government can be trusted with that information for reasons not clear to me. The carefully “vetted” reports must be sent out within five days to manufacturers. We live in a country with 300 million people. Are you telling me that the agency is going to carefully “vet” the reports we inundate them with in just five days? Perhaps they need hire a few hundred more highly-trained associates to push this paper.

You are more than welcome to read the proposed final rule to learn about the agency’s proposed procedure to “ensure that the information is accurate”. Read Section 1102.10 (page 227 in this 248-page document). But I think I can save you some time. The filer has to confirm that he’s not lying (“A submitter of a report of harm must affirmatively verify that he or she has reviewed the report of harm, and that the information contained therein is true and accurate to the best of the submitter’s knowledge, information, and belief”). That’s certainly foolproof. Among the various required redactions and other agency “oversight” of this data, you will NOT find anything like an investigation. They are simply scrubbing and re-publishing someone else’s allegations. Under their procedures, they cannot possibly know if what they are publishing is true or false.

No wonder they disclaim accuracy, completeness or accuracy.

Example No. 4: Christine Hines of Public Citizen (from BNA): “She added that several hearings, workshops, and comment opportunities have provided the public and industry every opportunity to address concerns. ‘Industry has participated fully in the entire process.’”

We, the regulated community, have had “every opportunity” to “address” our concerns. This apparently constitutes participating “fully in the entire process”. This is much more than spin, this is another flat-out lie. You cannot assert that we have participated fully if we have been utterly ignored. The hearings were not for VENTING. As previously noted, Matt Howsare asked me to spend our company’s money to fly to Washington to testify on this database – and then blew off every point I made. Small business concerns were almost explicitly disregarded. We cannot be said to have had “every opportunity” to address our concerns if the impact on small business could be sloughed off. Was Nancy Nord afforded “every opportunity” when she was gaveled silent in the hearing on the database?

This one isn’t a lie: [from BNA:] “[Weintraub] said the CFA, like Public Citizen, supports the current version. ‘We think [the database rule] strikes the right balance between Congress’s intent and making the database usable while protecting manufacturers’ interests,’ Weintraub told BNA. The substitute rule would ‘limit the utility of the database for other consumers and public health professionals in terms of unnecessarily limiting who can report,’ as well as including other limiting provisions, she said.”

Why isn’t that a lie, too? Because she states that it is her opinion. She’s wrong – but at least she’s not lying this time.

The poison in the CPSIA is actually the handiwork of a small and energetic group of individuals, many of whom are featured here. They hide behind consumer-friendly sounding corganization names but are actually just troglodyte anti-business advocates. They are no less cartoonish than the way they portray us, but with the Dems running the CPSC, the “good intentions” of this group and the persuasive power of their phobias have the upper hand.

As all the consumer advocates say, the outcome here is hardly in doubt. But feel good about it – you have had “every opportunity” to address your concerns and have “participated fully” in the entire process.

Empty words and lies. That’s what this mess has become.

Read more here:
CPSIA – On the Database, the Dems Side with the Liars

CPSIA – Mania Update No. 2 – Walmart’s 100 ppm Lead Standard

Courtesy of your Congress and the mania promoted by our essential CPSC, Walmart has kindly begun to test to a 100 ppm lead standard. The testing has already begun, to keep everyone so so SOOOOO safe, and applies to anything offered for sale on or after August 14, 2011. They have settled on this standard now even though your CPSC has not determined that it is “technologically feasible”. Another big win for Waxman and his henchmen. . . .

Isn’t that nice? Walmart is plunging into the void left by a Congress that abandoned YOU and YOUR BUSINESS. By making this a requirement of theirs, Walmart joins the effort to implement Mr. Waxman’s vision of a Utopian America, lead-free whether we like it or not – damn the consequences!

Who is at fault here? First and foremost, stubborn Congressional Democrats who KNOW this is a problem but refuse to act. The fact is that the 100 ppm standard means NOTHING to safety and cannot be justified on any rational economic or public health basis. Of course, I discount raging paranoia or paralyzing anxiety as a justification for the standard. I know, I know, I am small-minded.

Unfortunately, for businesses in the REAL WORLD, the uncertainty of stupid laws that may or may not spring to life leaves us little choice but to assume they will be implemented. Hence Walmart had to implement this provision. They can’t wait for Congress to stop sucking its thumb and take action.

Of course, we can also blame the so-called “leadership” of the CPSC for this step. The Dems running that shop are also unable or unwilling to act to prevent any of this damage. There is little to indicate that the CPSC Dems WANT to prevent this economic damage which I speculate is out of loyalty to their political patrons. Whatever the reason, they have done NOTHING to help industry. Take them off your Xmas card list.

We are not the only ones suffering at the hand of the worst Congress in history. Consider the one sentence in the Obamacare bill that requires vending machines to list calorie counts on a sign. According to a FDA Federal Register release on Friday, this will require 14 million man-hours of work per annum. Time well spent. Welcome to our world, guys. . . . One sentence in Obamacare did this, out of 2,000+ pages. Happy reading – imagine what the rest of the law says!

I will be on Fox Business on Wednesday at 7 PM EST discussing the election. I am looking forward to help from a Republican-dominated Congress but must say that the firemen better come quick. This Walmart step is just one more to be immediately undone. Can Congress save us? Will the marketplace ever revert to sanity, given that the CPSC is now crazy?

It’s put up or shut time for the Republicans. They need to act FAST and EFFECTIVELY. We are dying out here.

Read more here:
CPSIA – Mania Update No. 2 – Walmart’s 100 ppm Lead Standard

CPSIA – Am I a Tea Partier?

I have heard the comment that I am too harsh on the Democrats and risk marginalizing myself as some sort of Right Wing Nutjob, a Tea Party extremist.

Is this a fair criticism?

My POV is that this criticism fails to take into account my experiences in this business tragedy and does not consider that my views and my anger did not come from the sky – they were built, block by block, by Congressional Democrats and by the leadership at the CPSC.

I won’t defend my being perpetually angry at the agency or Congress for their defiant stance of indifference. [Some Dems cloak their indifference in words of sympathy, never matched by actions consistent with their purported tears. I follow actions, not words, and prefer to ignore insincere blubberings unless something concrete is offered. It never is.] I have been working on this project for three years now, and actively working to get the CPSIA fixed for almost two years. That’s a punishing death march, guys, particularly since almost everything I have written or pushed for has been disregarded or completely ignored. It seems improbable that I have been wrong about everything without exception for two long years – even a blind squirrel finds the occasional acorn. Hence the anger and the mounting frustration.

Of course, there are other sources of anger and frustration. The process of implementing this flawed law by the CPSC has destroyed so much good in the process. What we have left is much less protective of public health or well-being. The constant media pandering and the relentless positioning of businesses and business people as evil societal elements that must be controlled is, frankly, embittering. Under the pressure of this relentless drumbeat, it is hard to not feel unprotected and in great danger. We have no defenders and are on notice that we are prime suspects.

No defense, but please someone, tell me, what am I supposed to do now? Grin and bear it? Give in and pretend everything’s okay? If you think either option is realistic, you really don’t understand my situation or my motivation. These aren’t realistic options. I am fighting off doomsday – grin-and-bear-it doesn’t work when the Grim Reaper is coming your way. And there are no days off.

So if I can’t go along to get along and if the CPSC and Congress have proven beyond a shadow of a doubt that they have made up their mind and have no interest in me or my problems, what options are left to me? The process of advocacy that I have been practicing and that I have been financing hasn’t produced enough results – we are still in the soup. If I can’t give up and if what I am doing just doesn’t work – logic suggests I need to do something else.

So what I have been doing is telling the truth – it’s the Dems who have done all this and it’s the Dems who refuse to fix it. It’s the Dems who won’t listen and it’s the Dems that refuse to acknowledge their errors. If everyone in Congress voted to save their job by supporting passage of the CPSIA in August 2008 rather than face reelection attack ads, that was then and this is now. The Dem leadership has chosen to ignore the OBVIOUS and continue to deny that anything can or should be done in this matter. There’s nothing wrong or politically-incorrect about speaking the truth – and that’s the truth. We are where we are because of the Dems. They own it.

If the politicians who are busily engaged in snuffing out our business enterprises won’t listen and cannot be influenced, then what’s left to me? I must enter the political arena to specifically target them for removal. And that’s what I am doing. It’s only fair – they act like they want my business dead. So we need to put different people in their place. And we need to do it right away.

If this makes me a Tea Partier or a Right Wing nutjob, so be it. My head is not bowed. My customers, my suppliers and my working associates and partners know where I stand. I am fighting for our business life and will not rest until the people responsible for this mess are brought to justice.

Read more here:
CPSIA – Am I a Tea Partier?

CPSIA – The CPSC Sweats Out A Stay

The CPSC is on the hot seat over its testing and certification stay . . . again. As you may recall, the CPSC first postponed mandatory testing just ahead of its scheduled implementation in February 2009. On January 30, 2009, the Commission acted to push out the effectiveness of the CPSIA testing and certification requirement by one year, to February 10, 2010. Then-Acting Chairman Nancy Nord noted that the stay “provides breathing space to get in place some of the rules needed for implementation”.

Well, that didn’t work, so on December 17, 2009, the Commission again pushed out the testing and certification effectiveness date to February 10, 2011. This early action was done in recognition of industry’s need for to plan for changes in requirements. Nonetheless, Dems on the Commission bemoaned the need to extend the stay:

Robert Adler: “While I had originally hoped the Commission and the marketplace would both be prepared for the lifting of this stay of enforcement, after thorough consultation with CPSC staff and stakeholders in both industry and the public health community, I believe an extension of another six months is necessary to permit market adjustments, especially with respect to the testing and certification by the suppliers of components. I respectfully disagree, however, with my colleagues who have chosen to extend the stay beyond August 10, 2010. While there will be some disruption in the marketplace no matter which date is chosen, no hard evidence has been brought to my attention that would require an even longer extension of this stay than two years from the passage of this landmark legislation. I recognize that others feel differently.”

Perhaps Mr. Adler has uncovered some “hard evidence” by now. Scroll forward six months and things aren’t going the CPSC’s way. While the Commission may have thought it reserved enough time for everyone to “adjust” to the testing requirements, in fact things are getting worse. Rules are piling higher and higher, and are still being issued and changed. Many people don’t feel the rules are survivable. Dan Marshall of the HTA testified at the April 29th hearing that his organization sees the CPSEA (the Waxman Amendment) as their only chance to survive the lifting of the testing stay. [My opinion - the Waxman Amendment won't help the HTA at all.]

More recently, the HTA sent a letter to the House Energy and Commerce Committee stating: “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. . . . You hold the livelihoods of hundreds of small businesses in your hands.

Ouch.

Not surprisingly, there is mounting background pressure on the CPSC to push out the testing stay for another year. Nevertheless, I surmise that Dems on the Commission would rather eat dirt (40 ppm lead) than take this step. They invested a lot of political capital in the last stay extension, and despite the promulgation of (literally) reams of regulations, still haven’t put in place a workable regulatory scheme yet. Retailers are telling the CPSC privately that without prompt relief from the CPSC or Congress, they are going to have to start turning the screws on their suppliers as though the stay won’t be lifted. Hmmm.

The pressure is building, building. It doesn’t help that Waxman and his supporters won’t budge an inch on their proposed CPSIA amendment. By moving in a pack led by Waxman, the Dems are collectively taking full ownership of the awful consequences of the law.

And what if the Commission capitulates and extends the stay? That’s good for the industry and the HTA, certainly, but it’s political suicide for the Dems. They face a real Hobson’s Choice. If the stay is extended, it will be taken as an admission that the CPSIA simply cannot be implemented. That would really stick it to Mr. Waxman, patron of the Dems on the Commission. After all, if the law isn’t “ready” for full implementation for FOUR YEARS, it’s logical to conclude the CPSIA won’t ever work, that it was fundamentally flawed from the beginning. [Where have I heard that before???] If the Commission declines to extend the stay, manufacturers and retailers will light the world afire over the pain and losses being foisted needlessly on them. HTA members and other small businesses will start to close down. Ugly. The choice is lose-lose.

The stakes are even higher for the Dems, if you take into account Mr. Waxman’s REAL baby, TSCA reform. The Dems have a big target in mind, the “reform” of chemical regulation in this country. Put simply, they want to roll out CPSIA-style regulation to all things chemical, including plastics and all mixtures of chemicals. This scares a lot of people, given the permi-chaos dogging CPSIA precautionary regulation of only two substances (lead and phthalates). Arguably, the CPSIA was just a trial balloon for TSCA reform. Ramp up the CPSIA by 30,000 times and you have TSCA reform. If the Dems give an inch on the CPSIA, they fear their hopes for TSCA reform will go down the drain. The children’s product industry is caught in the middle of a historic fight over how we Americans regulate ourselves.

If you are frustrated by the stalemate over the Waxman Amendment, I think you need to keep an eye on the testing stay. Every day that passes, the pressure mounts on the Waxmanis and the Commission. What’s the right thing to do? They sweat and they sweat . . . while we roast.

Read more here:
CPSIA – The CPSC Sweats Out A Stay

CPSIA – A Quick and Incomplete Analysis of New Draft Waxman Amendment 2.0

With only a few hours to look over the new draft of the Waxman Amendment 2.0 before tomorrow’s meeting, I guess the idea is that we are supposed to drop what we are doing to complete an analysis fire drill. Power trip for the Waxman staffers? Possibly. Still, what choice do we have? I thought I would outline my preliminary comments to contribute to the debate.

It goes without saying that this is entirely my own work without the benefit of discussing it with others similarly situated and without the opportunity to compare notes. It is therefore likely that I have missed something important or made other mistakes. Sorry . . . . This post is also painfully long. Again, given that Mr. Waxman hardly cares about your problems or mine, I have little choice but to post this as one essay. Again, sorry . . . .

a. Modifications to Section 101(b)(2) Exemption Process:

  • The idiotic post-exemption warnings provision has been deleted.
  • The three-pronged exemption test remains in place, as does the ambiguous and troubling term “practicable”. “Practicable” is a sneaky Waxman approach to providing an escape hatch for big industries with narrow product definitions like ATVs and books. You’re not supposed to know this. Our laws aren’t for the little people anymore.
  • The third prong of the exemption test has been clarified from no effect on “public health or safety” to no effect on “the user’s health or safety, taking into account normal and foreseeable use and abuse by all foreseeable users.” This change seems like new belts and suspenders to make it easy to deny an exemption. The Dem zealots want to be sure no one gets an exemption but ATVs and books, wink-wink-nudge-nudge.
  • Poor applicants for exemptions are still obliged to wait hungrily by the door of the CPSC for the leavings of rich supplicants. Yes, small business owners who want exemptions like the big guys but can’t afford to pay the big bucks can reuse the big guys’ consultant’s reports provided the evidence is considered non-proprietary. [Whatever that might be.] Nice . . . if someone else has already paid for it and submitted it in an exemption process, and if you have access to it (and have found it), you can use it. Noblesse oblige, I guess. Thank You, Kind Sir. I speak for all the little people . . . . Oddly, this concept reappears in a confusing provision called “Previously Denied Petitions” that only refers to previously denied petitions in its title (I don’t get it).
  • In another “how closely are you watching me?” change, the grounds for decision provision now permits the Commission to consider “only” evidence presented by “interested parties”, rather than the evidence presented by the party seeking such exceptions. So if you ever get as far as an exemption hearing, this provision turns it into a town meeting. How would you like it if anyone could enter and participate in your litigation without your consent . . . like your competitors or your business enemies? I have a good idea – why not just write into the law that Rachel Weintraub will be considered a party in interest to every action at the CPSC?
  • The Narrowest Scope provision has been modified to clarify that you must not only address each component but also each material. The paranoia you sense in this legislation is just the precautionary principle at work. The staffer-gnomes who have been crafting this legislation are not thinking about how our markets work or should work – they are simply obsessing over how we business people might find loopholes. Of course, it is in the nature of business people to try to avoid laws, we are all so evil. Oh yeah, I forgot . . . .
  • The Limitation of Exception provision now is framed in terms of “all foreseeable users” which I can only assume is meant to make the burden of proof higher for supplicants. After all, if you can foresee a so-and-so using the product (I won’t supply the colorful example), then the Commission must limit the exception. No possibility of risk can be tolerated by the precautionary principle folks.

As the provision for exclusions has not changed much, here is my analysis of the original language for your reference.

b. Treatment of Resale Shops by the Waxman Amendment:

  • The provision defining a “used children’s product” seems to now mean (a) an actual used children’s product, and (b) new goods donated for a charitable purpose. This would seem to protect resale shops from liability for sale of items violating the lead provisions (but not the phthalates ban, notably) unless the seller or the person who supplied it to the seller knew it was in violation of the lead provisions. If that seems somewhat circular, it is. In this case, the law as drafted encourages resale shops to remain as ignorant as possible. This is Waxman’s “Don’t Ask, Don’t Tell” policy. Nice.
  • There has been no clarification about the application of this provision to consignment shops. Do they “obtain” goods for resale if they never take title? Something fun to speculate about!
  • In a little-noticed provision, the definition of “seller” includes lenders or donators of used children’s products. Thus, for lending libraries, they will be in the clear if they lend used goods, but will be on the hook if they lend new product. Does it become “used” after one loan, and if so, what does this mean? The legal department in your local children’s library will figure this out. Sure. As to people who donate, the provision is circular again. As best I can figure out, you are not subject to the lead rules (only) if you are donating something used for charitable purposes, but if you give away something new, you are on the hook. At least, that’s how I read it. So the bottom line is – don’t give anything new to a charity, just give them junk. This is what Mr. Waxman wants. And that means this is what Congress wants.

While these changes may be an improvement, they are sadly improvements without much impact. This provision remains convoluted and hard to understand. The definition has numerous exceptions and also avoids giving the same shelter to resale shops for all the other picayune provisions of the law, like the phthalates ban. Frankly, without a clean exemption for this industry, resale stores are all going to avoid this class of goods. The complexity alone will kill this exemption except for the most sophisticated participants in an industry not known for its legal skills or resources. These stores won’t hire lawyers to check their work. They can’t afford it.

This is my original criticism of this provision, which is still applicable.

c. Prospective Application of 100 ppm Lead Limits – this provision was not changed in the new draft.

d. Low Volume Manufacturer “Exceptions”:

  • Thank heavens, they changed the term of art for these small fry to Small Batch Manufacturers. This was done at the insistence of the HTA. What a victory! Someone please explain this to me.
  • The “In General” provision is basically unchanged, other than the fancy new name for the supposed beneficiaries of this largess. Notably, the last sentence was clarified to make sure no one could contend that Waxman inadvertently gave the Commission the power to grant “alternative testing methodologies” for ANYONE but the small batch guys. There’s so much trust and love flowing here . . . .
  • The truly non-existent “relief” of this provision remains EXACTLY the same. Here it is, bask in its wonderfulness: “The Commission . . . may, by regulation, provide alternative testing requirements for covered products manufactured by small batch manufacturers in lieu of those required under subsection (a) or (b). Any such alternative requirements shall provide for reasonable testing methodologies to assure certification based on compliance with the relevant consumer product safety standards. [Emphasis added] Standing ovation? These lucky micro-businesses must meet alternative TESTING methodologies that ASSURE compliance with the standards. In other words, they gotta test. They even added a “savings clause” to forbid any relief here (such as it is) if any foreseeable user might be foreseeably at risk. Some relief.

Notably, the reach of this section has now been limited to “covered products”. This new term, which incorporates a three-prong test (this is the second three-pronger of this amendment so far, but not the last). [See below.] Please NOTE that this new term means that the ONLY relief the CPSC can grant is to these small fry products. A product that exceeds the limits of a “covered product” will NOT enjoy any theoretical testing relief, even if made by a business qualifying for relief overall. Should you care? Well, in my view, if you have to endure the burden of full compliance with one product, you have to build the full infrastructure and bear the related liabilities. Thus, these micro-businesses supposedly being saved here are actually at substantial risk of suffocation if even ONE product sells well. Too bad for them.

The absurd and utterly inappropriate definition of a “low volume manufacturer” has been completely jumbled and incorporates the new concept of “covered products”, too. Let me try to sort out this for you.

- As noted above, only “covered product” enjoy any potential relief under this section. The “covered products” test is a three-prong test: (i) manufactured not more than 5,000 “units” of the product in the prior fiscal year, (ii) had not more than $30,000 in sales of the product in the prior fiscal year, AND (iii) had no more than $500,000 in total sales in the prior fiscal year. [Do you feel vines growing over your brain yet?] Dollars are indexed for inflation. Notably, the definition ONLY applies to the manufacture of these items, NOT importation. Too bad, importers. GOTCHA!

The implication of this definition is that if you grow to over $500,000 in total sales, all exemptions applicable to any of your low volume items goes up in smoke instantly. That last dollar is gonna HURT. You also cannot get relief for any individual product if your sales of THAT item are greater than 5,000 “units” per year or $30,000 in sales. Here’s another compliance tip: don’t grow your business! Too hard? Don’t worry, the other policies of this government should help you meet this goal . . . .

- The definition of a “small batch manufacturer” defines who should be treated with special charity by the CPSC under this marvelous section of the amendment. It’s not going be a long list. Who wants to see another three-prong test?! Okay, break out your calculator so you can figure out if they are referring to you: (a) AT LEAST TWO-THIRDS of “the manufacturer’s products” (I love that term) meets this two-part test: (i) the manufacturer manufactured or imported not more than 5,000 units of the product in the prior CALENDAR year, AND (ii) the manufacturer had not more than $30,000 in sales of the product in the prior CALENDAR year, AND (b) the manufacturer had not more than $500,000 in sales in the prior CALENDAR year.

This is getting fun! Okay, first we need to decide – is it a two-prong test with one prong having two sub-prongs, or is it a three-prong test? This is a rather metaphysical question . . . but I say it’s our third three-prong test of this short amendment. [Imagine how many three-prong tests are in the health care bill.] I welcome your insights on this question.

There are some interesting quirks in the Small Batch Manufacturer definition. First, this provision applies to imported products, but the “covered products” definition does not. Gotcha! What does this mean? Who knows. The head spins . . . . Even better, the definition of “Small Batch Manufacturer” is based on calendar year calculations and the definition of “covered products” is based on fiscal year calculations. Love it. I learn so much from Mr. Congress. Apparently, Congress wants it to work this way because there must be some sort of dangerous loophole for people who have fiscal years which are not the calendar year. Mr. Waxman is onto your game, you desperadoes! There’s no escape!

At least the Waxmanis kept it simple. Good job, guys, it’s artful!

Btw, they added a little provision to make sure that the Commission investigates the structure of your business’ “affiliations”. Clearly, the Commission needs to make SURE they correctly tote up your revenues for this ornate determination. [Little known fact: the CPSC uses clacker balls for this work.] The reach of the Obamist/Waxman government into your private affairs, in ways completely and utterly unrelated to public interest or safety, apparently knows no bounds. Get your files ready, little businesses – the CPSC wants to take a peek. Perhaps check out your tax returns and . . . oops, it appears you took a few deductions that you weren’t entitled to. We can just let our sister agency know, you don’t have to do ANYTHING, we’re just here to help.

Small business people, you should be flipping mad over this pathetic attempt to “help” you. My original criticism of this provision is still largely applicable.

e. Phthalates Ban Exception for Internal Components: This is largely intact from the prior draft although they did add a provision modifying the Commission’s right to adopt the definition of an internal component from the lead accessibility standard. The Commission must now, “as appropriate”, consider whether the component can be placed in the mouth. We are talking about internal components here.

I wish I had a laugh track for my blog . . . .

f. Removal of CPSA Section 6(b) Due Process Rights of Manufacturers: has been eliminated from the draft.

g. Voluntary Recall Standards to be Matched to Mandatory Recalls: has been eliminated from this draft.

h. Imminent Hazard Panic Attacks by the Commission: has been eliminated from this draft.

i. Subpoena Power for Underlings at the CPSC: This provision was trimmed back partially to apply only to physical and documentary evidence. This modest restructuring of this new right does not in any way address the issues I have pointed out in the past (here and here). This new subpoena power is not essential to the operation of the CPSC, regardless of their assertions, and represents a significant degradation of procedural protections that encourage business people to invest. When all trust is destroyed among the regulated community and its safety regulator, who will want to invest? Hello, Congress?

CONCLUSIONS:

The Waxman Amendment has been improved mainly by deletions of several truly awful and duplicitous provisions. Many defective provisions in the original draft survived the revisions. What’s left provides little substantive relief to the unwashed masses, but promises some sub rosa relief to the book industry and ATV’rs without giving the appearance of favoritism. There is little to cheer here for resale shops, small businesses (even micro-businesses, hello HTA, are you there?), education companies, apparel companies, you-name-it.

And many important issues are left completely unaddressed. I have previously provided my most discrete list of CRITICAL missing elements that must be part of any meaningful amendment of the CPSIA:

  • Risk Assessment by the CPSC and/or the Commission.
  • Changes in age limits for the lead standards and phthalates ban.
  • Narrowing of the scope of “Children’s Product” to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
  • True reform to protect small businesses.
  • Tracking labels relief.

My full list of needed changes is found here.

More fun to follow tomorrow, I am sure.

Read more here:
CPSIA – A Quick and Incomplete Analysis of New Draft Waxman Amendment 2.0

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