CPSIA – Sean Oberle Notes the Risk in the Database

Sean Oberle of the Product Safety Letter noted in an Op-Ed entitled “Andre Maginot and the CPSIA Database” that while the database has the ability to do good, it also presents the risk of causing serious harm. He’s right, of course. He goes on to note that proponents may be held to account if disaster results. We can only hope. . . .

I think this is helpful and appreciate that Sean made this point. I want to highlight one short section in his essay:

“The metaphor also helps to belie the dismissive reassurances of a few (by no means all) proponents. The issue is not that industry is failing to acknowledge the protections Congress and CPSC put in place. Rather, industry is concerned whether the protections are proper and sufficient. The irony is not lost on me that with the CPSIA database, we’re dealing with a product that has a lot of potential to do harm. The problem is that when you produce a potentially dangerous product – be it a database or a toy – there is only so much that you can do to reassure people before putting it ‘out there.’ At some point, people simply are going to have to trust you.”

There are two important issues here. First, Sean mentions “trust” – and seems to imply that we should give the agency a chance to prove itself. Well, they have already had a chance to prove themselves, and used the opportunity to prove that they don’t deserve to be trusted. The risk that we should bear while we wait to see if the CPSC can be “trusted” could literally be fatal to our businesses. Where does it say that markets are to be administered this way? How can this be defended as “sensible” or a worthy risk to take?

The second issue which Sean brushes up against but doesn’t discuss is how the database erodes corporate due process rights so significantly. We have essentially had our rights stripped, arguably illegally and illicitly. The government is now in the business of publishing slander and we have no way to stop it. Trust is impossible when due process rights have been removed. Appeal is pointless (as our company’s recent experience illustrates), but some semblance of process creates the illusion of individual rights. It’s a joke, of course. Maybe we need to call the Small Business Ombudsman. Yeah, that’s the ticket!

At some point, the zealots will push too far. The damage they wrought won’t be fixable – the dead companies won’t rise again. The cost will be borne by our society, but the perpetrators will just move on to another government job . . . .

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CPSIA – Sean Oberle Notes the Risk in the Database

CPSIA – ICPHSO Update on the Database

Cheryl Falvey announced at the beginning of this overtime Q&A session that she wants to have a civilized discussion of the problems of the database, because they want to solve problems. That said, she said she’d cut it short if it turns into a gripe session about the database “because I know you hate the database”.

Nice, at least the General Counsel of the CPSC has an open mind! This reminds me of her aggressive and utterly unsympathetic suggestion at the November 2008 CPSC Lead Panel that we should all have a big “yard sale” of products that exceed the lead standard. Gave me a warm feeling then, gives me a warm feeling now.

I will try to craft some questions that she will find acceptable.

CF: Need to have your licensees register as part of the database. Licensors can also be listed as a “viewer” under the DB. They may not want that, because there could be liability issues.

[RW: Hmmm, I thought this database was all about empowering consumers. Liability? Empowering consumers to do WHAT?]

CF: More details given to licensors [aimed at Disney, who must have raised this question offline] plus some legal advice on how they should structure their licensing agreements “right now”.

CF: It’s a “complaint” database, not a “causation” database. [RW: This makes NO sense based on the stories they all tell about why they want the database implemented, especially the fantastic story told by Inez Tenenbaum in her keynote speech. She says she feels good when someone removes a product from use while the CPSC is working on a recall. This is CLEARLY all about making a JUDGMENT on the products - in other words, CAUSATION. It's a tall tale to contend that the general public will understand that this is a complaint database. Consume groups promote the database as a warehouse of the truth, not just a "blog". Cheryl Falvey is spinning yarns to justify her work on the database.]

CF: You are raising policy questions and this meeting is not about policy. We were dealt this hand and were told by the Commission to get the database up and running. If you disagree with the policy, you need to take it to the Hill. I am going to take other questions now.

[RW: So we cannot complain about the consequences of CPSC action on the database because they're just doing their job. We must hold them harmless and "get used to it". This is an old argument used by Falvey in past speeches - don't be in denial, it's coming, get used to it, take it on board. My question for you - do you like being treated this way? I don't.]

Q: We have been the victim of fraud where people submit pictures of “injury” pulled from the Internet. We also don’t get enough data from you, may not have consumer’s contact information and don’t have the time or resources to properly research or resolve these accusations before the ten days are up. At that point, the damage is irreversible. What can we do to protect ourselves?

A: We have not had bad experiences in the “soft launch”. We don’t want you to be hurt, you should “raise” these issues. [Didn't she say this morning that they received so many photos that they had to get new servers? No problelms . . . .]

[RW: Fingers-in-ears. This does not correspond to the rules, Cheryl, and you didn't answer the question. The question notes that there won't be enough time or information to verify or sort out the claim before it's published. Why are you deaf to this? You know that your publication of this data CANNOT be remedied. Oh yeah, you are just doing your job.]

Q: Why can’t you just test this system with people who have already registered and learn about the issues from this experience?

A: Your idea is a “great idea” and we will see if we can run with it.

[RW: Don't hold your breath.]

CF: We really want to talk about the brand and license issue!

Q: What will happen to me if an injury report blaming me for an exploding battery is actually counterfeit?

A: The interest is in protecting the public, that’s the policy issue. The disclaimer seems to mean a lot to Cheryl, cures all these ills. She poses the question of whether bulking up the disclaimer.

[RW: The answer to all of these question boils down to the fact that manufacturers have no due process rights because their rights are deemed inferior to consumers. This is a policy decision, too, and is NOT part of the law. It's the philosophy of the CPSC these days, and is political in nature. Using Falvey to announce the policy makes it look more like a legal judgment, however. Falvey has not explained HOW due process rights guaranteed by the Constitution have been removed for U.S. corporations under the CPSIA.]

CF: Can’t put off the March 11th implementation of the database.

[RW: Recall my remark about an open mind. This isn't a gripe session, this is a venting session hosted by Cheryl Falvey. She has no interest in making any changes - consumer groups get their way. Mike Pompeo's amendment better become law. The CPSC will do NOTING to address known defects in the database. As Falvey says, these are "policy" issues, outside her job spec.]

Q: Can manufacturers reply or comment privately?

A: Nope, if you comment, the comments need to be published. Only the confidential parts of the comment won’t be posted. [RW: This is so unbelievably one-sided. It's victory for the left wing. They put their people in charge and let them run amok.]

Q: We share brands with other companies (think of celebrity brands). How will you handle notification tied to such brands on multiple products?

A: The tracking labels would really solve all of these problems! We need to be able to send the notice to somebody. We understand the gap and are working to make the system better. We have a lot of brand information already.

Q: We traditionally get written notices that identify us as a manufacturer of a halogen table lamp. We make 20 halogen table lamps. What will happen under the database?

A: You’ll get the notice and if you can’t give us information on the product, one of us will have to call the customer. In any event, the data will go up on the database.

[RW: This is a classic problem illustrating how manufacturers will be unable to verify information or contest information before it's posted. As Falvey demonstrates, CPSC policy is that this is the manufacturer's problem. This is a travesty. Ironically, the issue was subtle enough that the questioner (a large company) could not see that he is prevented from identifying the product - even to verify that he made it - but will be labeled the source of a product "incident". And Falvey says that a claim this lame will still make the cut to be published. Is that true? I wonder about that. If it doesn't make the cut, then Falvey can't match the rules to a scenario accurately. One way or another, it's a screwing. Thanks, CPSC!]

Q: If Li & Fung registers and gives my name as importer of record, who gets the notice?

A: We will go off the consumer complaint. Whoever is named will get the complaint. If they are registered, they will get it by email. If they are not, they get it snail mail. It’s still going up in ten days.

What a nauseating way to finish out such a lovely day.

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CPSIA – ICPHSO Update on the Database

CPSIA – 500th Post on CPSIA . . . Now What?

756 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 55 days left until Election Day.

I have been blocked for a little while on the occasion of my 500th post in this blog. I have been prattling on the subject of the CPSIA for almost two years now. To be perfectly honest, this is a sad occasion for me. I have invested a great deal of time and money attempting to do my citizen’s duty to help our government govern better. Now, after 500 posts, an appearance before a House subcommittee, several appearances on the CPSC panels, numerous comment letters, personal meetings and phone calls, a historic rally, and literally countless media appearances, it appears that we have reached a dead end. It appears that Democrats are unable to understand or accept anything I have ever said on virtually any subject.

As I have been noting, and as I will continue to note, the Democrats have been resolute and united in ignoring our pleas, our evidence and our data, all documenting the CPSIA’s fatal flaws. Even with a stagnant economy, there is scant recognition among Dems that this law is a cause of any ills. It’s not like they haven’t been warned of the economic impact of the CPSIA. They have been warned repeatedly but determinedly stood still, insensitive to our needs and to the harm our OWN GOVERNMENT is inflicting on us.

I must say the entire experience leaves me slack-jawed. For example, I was recently reviewing my experiences with Illinois State legislators about the noxious and stupid Illinois lead labeling law. I met with our State Rep in May 2008 and complained about both the then pending Illinois law as well as the then pending CPSIA. Our Rep for Vernon Hills chose to write Jan Schakowsky of all people to help us gain relief. [I didn't realize at the time what a sick joke it was.] Anyhow, I also met with the State Rep for my hometown, and reached out to our State Senator. I explained how many jobs could be imperiled. I explained the cost and the disruption. I explained how ineffective these laws would be to protect anyone from anything. Some of my Illinois State representatives and their staff gave me the impression they thought I might be some kind of serial killer, but offered to consider my views. So this week I checked and lo-and-behold, they were ALL THREE OF THEM co-sponsors of the bill! Nice.

And some people call this representative government. Does it surprise you that they were all Democrats?

On the occasion of my 500th post, I want to tell you how I feel and what I think happens next. First, I am morose over the likely impact of this law on our business and our industry. If others may be numb to this death by a thousand cuts, I am not. I am outraged that this damage is being inflicted by my own government on our business and on our employees. This is clearly wrong – but it’s happening. I also feel that the CPSC has become a rogue agency which makes up the law and no longer cares what any of its corporate constituents think. I feel the agency is worn out and sick of making rules – CPSC leadership wants to enforce the law, not write it. The Children’s Product definition recently implemented is a case in point – they basically rejected or ignored all comments. The concept of dialogue at the agency has morphed into some sort of public facility for manufacturer venting. But forget about influencing. That door is closed, slammed shut in our faces.

Perhaps most significantly, in the wake of the Children’s Product final interpretative rule, I now expect the worst and am only waiting for the inevitable. I predict the awful and irresponsible rules on Component Testing and Testing Frequency/Reasonable Testing Program to soon “go final” with modest or no changes. Think about what this means – I have stated that the rules by their specific terms will force our company to spend $15 million per year on testing and require destruction of as many as 81,000 units for testing purposes. We don’t have the resources for this. That’s a doomsday scenario for us.

I have previously noted that one effective way to solve the recall “problem” is to eliminate all products. After all, killing the patient ALSO cures his cancer. [I guess that's the silver lining.] Still think this is all hypothetical? I suggest you reread the rule on testing frequency and imagine that the agency will be enforcing this rule against YOU. Imagine that they audit you. I know they don’t do that now, but nothing will stop them from asserting a right to do so in the future. Hmmm. Get your checkbook out . . . or sell your company.

This is not such a farfetched scenario. Remember, the testing stay is due to expire on February 10, 2011. It’s September 8, 2010 now. That’s only five months away. There is no hint that the agency intends to extend the testing stay again. This means they MUST go to final on those rules soon, and to do so procedurally, the rules really need to remain unchanged. The Commission’s inaction on the stay means the jig is up. They will hardly bother to read your comments. They don’t care – they’ve moved on.

And the by-product of this demoralizing state of affairs is business paralysis. What kind of government idiot thinks we will be spending big money on investing in our business with this Sword of Damocles hanging over our heads? That’s absurd, a fantasy borne of ignorance of the real world. Consider the old saying: “The value of the sword is not that it fall, but rather, that it hangs.” Hmmm. Perhaps a nice investment tax incentive will get me out of my funk. GREAT idea, Dems. What insight – handouts solve all problems. . . .

I have committed myself to exacting revenge at the ballot box on Election Day for the Dems’ offenses over the past two years. If you feel as I do, I URGE you to take up your rights as citizens and put DIFFERENT PEOPLE in Congress. If we are successful in reconstituting Congress, we can then begin the urgent process of working to unwind the damage inflicted by the CPSIA and by current leadership at the CPSC.

There is no time to lose. GET INVOLVED WITH LOCAL RACES – NOW. Help them raise money, help them spread the word, ask difficult questions, hold the Dems accountable. They have refused to help YOU for two years. MAKE THEM PAY!

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CPSIA – 500th Post on CPSIA . . . Now What?

CPSIA – Zhu Zhu Pets Win the Battle But Lose the War

In the modern game of forming public opinion by fanning fear, victory by over-zealous consumer groups and political zealots is all but assured. With an incurious media all too ready to fall in behind unfounded accusations, destruction wreaked by these defenders of our rights is hard to prevent.

I submit as evidence an article in today’s News Journal (DelawareOnline.com) entitled “Choose toys not only for fun value, but safety value” which continues the irresponsible and debunked attack on Zhu Zhu Pets. The article began:

“Zhu Zhu Pets may be the hottest holiday gifts for kids right now, but an investigation into whether the toy is dangerous was enough to deter Lilian Latan from buying one. Latan, who lives in Middletown, has two daughters, ages 6 and 4. She reads safety labels before buying toys and games and pays attention to investigations and recalls. ‘Especially with the 4-year-old, I still have to be very careful’ about her putting things in her mouth, Latan said. ‘I read everything about a toy, and if it’s small and if it’s something that looks like candy, I won’t buy it.’”

The article carries on:

“Still, there have been some high-profile recalls and investigations. The commission recently opened an investigation into the popular Zhu Zhu Pets after the consumer watchdog group GoodGuide reported that the toy hamsters contain higher-than-allowed levels of antimony. If ingested, the heavy metal can sicken children. Cepia, the maker of Zhu Zhu Pets, has disputed the findings.”

In fact, as you know, the CPSC cleared these toys last week. Oops!

This is a current news article. Apparently, the News Journal didn’t know that the CPSC cleared this toy, nor did Lilian Latan, the consumer. They both knew of the ironicly-named “GoodGuide” and its defective test report, however. That’s the problem.

This kind of damage is almost certainly irremediable. Zhu Zhu Pets lost Lilian Latan through no fault of their own. Even the highly-publicized efforts of the CPSC to stop the unfair damage to the year’s hottest toy couldn’t stop this permanent loss of goodwill and good reputation.

It’s time to tell the consumer advocates to stop the game-playing. The toy mania, ongoing for almost three years now, helped identify the abusive practices that we, the consuming public, must resist and oppose. While you are at it, demand more of your news outlets. Newspapers and other news outlets need to ask more questions and make sure they get the story right.

You don’t need to live in a tabloid world – make your opinions heard!

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CPSIA – Zhu Zhu Pets Win the Battle But Lose the War

Exercising our Rights as US Citizens

I might be one of the most unlikely actors behind the growing momentum to amend the CPSIA.

I was born in France many years ago and grew up in and around Paris until my adulthood. I moved to the United States in the late eighties and a job opportunity after graduate school started the path from which I have not deviated since. In 2002, after 10 years of permanent residency and the attacks on 9/11, I decided to apply for citizenship. It was clear to me that I could have easily been one of the victims that day (I had been in one of the Towers a couple of weeks before for a business meeting), so these attacks were not only on America but, for me at least, they became much more personal: an attempt to destroy me and my family (my wife and I have two boys). In July 2002, I became a proud US citizen surrounded by my family and about 150 other applicants representing over 120 nationalities! I can still visualize the room in one of the federal building downtown Chicago and the words of the judge as we completed the oath of all allegiance: “As of today, you now have the same rights and duties as any other US citizens, thanks to the constitution of the United States”.

When I joined Learning Resources and Rick Woldenberg in 2005, my focus was on a very different goal. I wanted to find a place where I could use my business experience and leadership skills to help a group of highly committed individuals while trying to make a positive contribution in the world (in our case providing high quality and innovative products to create engaging learning experiences in the classroom for young kids and their teachers). I also wanted a very different working environment than what I had experienced up to that point. It was a big risk and a challenging experience at times, but after three years working with Rick and the entire team at Learning Resources, I can honestly say that I could not have made a better decision.

I have also been increasingly active in various local communities. Among other things, I actually got involved early on in the Obama presidential campaign. So, it was a real disappointment for me to see some members of the Democratic Party unwilling to dialogue or listen to our point of view on the CPSIA simply because it does not fit with their agenda. The last few months have been extraordinary challenging for all of us with the combined effect of this poorly written and unnecessarily overreaching law and the dramatic slow down in our economy. So far we are surviving these combined ‘tsunamis’ but the pressure and stress are extreme. Yet, despite all that tension, I feel more energized and alive today than I have ever been.

Next Wednesday as we express our grave concerns about the unintended consequences of the CPSIA and share our suggestions on how we can provide safe products without destroying a huge part of our economy, we might at times feel that the mountain is too steep or the challenge too great. However, I have learned over the years and from personal experience that our country is truly unique. While imperfect at times, we all try to live by Lincoln’s words: “the government of the people, by the people, for the people”. The fact is that, next Wednesday, we are going to be able to demonstrate to the entire country what a true democratic debate really is. This is possible because of the enduring persistence of a few and the openness of many to guarantee our freedom of speech. Notably, this will happen despite repeated pressures from a few politicians who think in terms of “us and them” or “if you are not with me than you are against me”. And like in the “not so distant” past, these type of politicians will fail because they do not understand, wrapped up in their self-righteous arrogance, that they stand against the very principle upon which our country has been founded and has thrived for over 200 years: they are here to serve the people and not some special interest group, which ever it might be. And in order to serve the people they would be well advised to listen and dialogue with them.

I remain optimistic and confident that, in the end, better judgment will prevail. But it is essential that a meaningful and sincere dialogue be allowed. I always knew that our country was very special and proud to be a part of it. But today, I feel incredibly grateful to have a chance to truly exercise my right of free expression as an American citizen, to be a model to my children and to fulfill my pledge of alliance to the constitution, honor the words of encouragement from ‘my’ Chicago judge and strengthen my bond to each one of you.

Sincerely,
Etienne Veber