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CPSIA – Another Update on How VERY Safe We Are

I want to bring you up-to-date on the nuclear situation in Japan, but first a quick reminder – none of this matters BECAUSE there is no lead in plutonium or the other radioactive elements being discharged in tremendous mass into the air, water and soil by the disabled Fukushima reactors.

CPSIA – Taking Advice from Idiots

In a recent article entitled “Advice on avoiding a toxic Christmas“, USA Today attempted to take Christmas paranoia to new heights. Naturally, the premise of the article is that companies are criminally irresponsible or venal and certainly can’t be trusted, and consumer advocates and any pediatrician that will talk to a reporter are better people, better informed and by definition trustworthy. In this article, USA Today’s Liz Szabo consults “experts” to reach the following conclusions:

a. “No one knows how much lead people absorb from holiday decorations, says pediatrician Bruce Lanphear, of Canada’s Simon Fraser University.” And if he said it, it must be true. [Of course, pediatrician Philip Landrigan, of Mount Sinai School of Medicine in New York, notes "In the whole scheme of things, is it a huge risk? No."]

What’s the problem with Xmas lights, you say? Lead in the PVC. According to Alicia Voorhiess, a mom with a blog, manufacturers “use it” in the PVC. Right – you got us! Don’t worry, though, after much digging, she found two companies that offer Xmas lights which comply with Restriction of Hazardous Substances (RoHS), a European standard which limits the presence of lead in lights.

Ummm, Alicia, RoHS is a standard to designed to prevent leaching of heavy metals to protect the environment and only applies to electronics. This MEANS that the lead is restricted in the bulbs and fittings, not the PVC. Whatever, it sounds safer, doesn’t it?

The author of the article quotes Dr. Alan Greene (my college classmate) saying that you should handle your Xmas lights with gloves. Why stop there? Moon suits, anyone?

b. Artificial Christmas trees are made of PVC, too, and we know what manufacturers are wont to do with PVC. The solution – use a real tree grown without pesticides.

I find this a most uncreative solution, myself. Here’s a few more:

  • Post a picture of a beautiful tree near the spot you might have placed your tree. Keep it away from the fire, however.
  • Consider just displaying your Xmas lights in their packaging. No touching!
  • Use an artificial tree, but place under a glass enclosure or something air tight like Saran Wrap. Stand at least five feet away at all times.

All of these remedies will protect you from lead. That said, please remember there is NO safe level for lead. And a holy, jolly Christmas to you, too!

Shame that USA Today didn’t focus in on the fact that there is lead in the air, in our water and in our food. OOPSIE! In fact, lead in water is conveniently piped into Washington, D.C. homes for kids to drink in their own bathrooms and kitchens. Nice! Somehow USA Today missed this. Shocking . . . .

c. Candles with metal wicks might also have lead in them, or then again, maybe they won’t. In a blow to poorly-researched newspaper articles, the CPSC apparently banned these wicks in 2003. Who knew the CPSC actually tried to its job before the CPSIA? Somebody should have told Congress.

According to this all-knowing newspaper, candles also contain paraffin, a wax made from petroleum. Not sure why I should care about that, but it sounds ominous. And some fragrances in candles have phthalates in them “which can affect the hormonal system”. Isn’t knowing nothing about science FUN???

The solution – The author of this article actually recommends that you use pure beeswax candles. Happy hunting! They also suggest you “poke cloves into oranges”. Ah, the old clove poking trick! That sounds like fun but IS IT SAFE? This article says oranges have lead in them. NO! And, for an extra kicker, it also says they have cadmium, too: “If the soils contain toxic metals like lead, mercury and cadmium then the consumers may be poisoned as happened in the “Ouchi-ouchi” disease in Japan . . . and similar episodes.” Wow, Ouchi-Ouchi! Scott Wolfson, do you hear a bell ringing? [Eating oranges didn't cause "Ouchi-Ouchi" but then again, researching these things is sooooo time-consuming.]

So there you go. Skip Christmas this year, too dangerous. I wonder if a Festivus pole is lead-free . . . .

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CPSIA – Taking Advice from Idiots

CPSIA – WSJ Profiles RW in Article on Business Backlash

OCTOBER 12, 2010

Business Backlash Grows


VERNON HILLS, Ill.—Rick Woldenberg runs an educational-products company from a suburban Chicago office stacked with brightly colored toys. He supported President Barack Obama in 2008. But he has turned on Democrats this year.

Sally Ryan for The Wall Street Journal

Rick Woldenberg, chairman of Learning Resources in Chicago, backed President Barack Obama in 2008 but is now raising money for Republicans.

Mr. Woldenberg is angry that Congress and the Obama administration won’t revise expansive new rules on lead testing in children’s products that he says will kill his business, Learning Resources Inc. So he is raising money for Republicans among Chicago business owners to help the GOP—so much money that he is rattling the incumbent in what has been one of the safest Democratic seats in Mr. Obama’s home state.

“If Democrats are going to put me out of business, I’m going to put them out of business first,” he said.

Disaffected business owners like Mr. Woldenberg have emerged as a potent force in the 2010 campaign. The U.S. Chamber of Commerce, which plans to spend $75 million in this election cycle, says it has exceeded its targets for raising money from small businesses every quarter this year, despite the poor economy. More small-business candidates are running for public office than at any time in a generation, say officials at the National Federation of Independent Business, the capital’s chief small-business lobby.

Business contributions are fueling campaign efforts by conservative and business groups, which are gearing up to spend as much as $300 million to help Republicans this fall.

Mr. Obama and Congressional Democrats have wooed small-business owners with a series of tax breaks and a $30 billion lending program that was the centerpiece of a Small Business Jobs Act Mr. Obama signed last week at a White House ceremony attended by a group of supportive entrepreneurs.

But many small-business owners still fault Mr. Obama and Congressional Democrats for what they see as a costly explosion of new rules and regulations.

“I think Obama ran as more of a moderate, and business people here are now realizing that this huge expansion of government is not sustainable,” said Leo Dombrowski, an attorney at Wildman, Harrold, Allen & Dixon LLP in Chicago, whose clients are fighting new environmental rules.

Mr. Woldenberg has helped raise more than $470,000 for Joel Pollak, a 32-year old Harvard Law School graduate who is challenging Rep. Jan Schakowsky in Chicago’s 9th district, a friend of Mr. Obama who is an author and ardent defender of the new children’s-product lead law. That’s 20 times more than any Republican has ever raised for a run against Ms. Schakowsky, who won 75% of the vote in the last election and is vying for a 7th term.

“This is a war,” he said. “Individuals can make a difference, and I want my kids to see it.”

Over the past few months, Mr. Pollak said, he and Mr. Woldenberg have been trying to tap into “donors residing outside the district with a strong business or personal motivation.” The Pollak campaign scored a fundraising appearance by Republican economic policy star Rep. Paul Ryan of Wisconsin. Mr. Pollak took the podium and pointed out Schakowsky campaign manager Alex Armour, who was in the crowd videotaping the event.

Ms. Schakowsky is polling at slightly more than 60%, according to her internal polls, a solid lead but narrower than in the past. The campaign has hired four field staffers for the first time, and is sending less money to Democrats in closer races.

“I’m not worried about it, but I’m taking it seriously,” she said. Ms. Schakowsky said Mr. Woldenberg’s success as a fundraiser, is proof that “very cynical … special interests are highly engaged in the campaign.”

As for the lead law, she said she was proud of it. “The goal is to save children from toys that are toxic.”

Mr. Woldenberg’s efforts include addressing 130 people in a Holiday Inn ballroom in suburban Skokie, Ill., during Mr. Pollak’s “Chicagoland Business Breakfast” in late September.

He held up a “box of rocks,” the company’s igneous rock collection kit, and read its new consumer warning.

“Caution: federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed,’” he read, to laughter.

“This is humiliating,” he said, ticking off the costs of the law. “I’m hoping Joel can help us.”

Two dozen attendees took the microphone, voicing concerns with health-care, tax, environmental and workplace rules. They included Jay Stieber, vice president of restaurant chain Lettuce Entertain You Enterprises Inc., and chairman of the Illinois Restaurant Association, who has his headquarters in the 9th district. He and his family have contributed the maximum $4,800 to Mr. Pollak.

“The hospitality industry is the biggest employer in Illinois, and my partners and I have been lifelong Democrats,” he said, but changed sides because “I can’t stand here and tell you what health-care is going to cost.”

Write to Elizabeth Williamson at

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CPSIA – WSJ Profiles RW in Article on Business Backlash

CPSIA – Comment Letter on "Children’s Product" Definition

I apologize, the letter’s long. . . .

June 20, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 502
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)
Re: Docket No. CPSC–2010-0029 Interpretation of “Children’s Product”

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on the Interpretation of “Children’s Product” (Docket No. CPSC–2010–0029) published in the Federal Register on April 20, 2010 (the “Rule”).

In her statement supporting the proposed interpretive rule defining a “Children’s Product” dated March 31, 2010, CPSC Chairman Inez Tenenbaum noted that the issuance of the Rule is not required by the Consumer Product Safety Improvement Act (CPSIA) but was being issued by the CPSC in response to the demonstrated need of stakeholders. I am such a stakeholder. Our company is in the educational materials and educational toy business and is regulated by the CPSIA. Ms. Tenenbaum notes that the regulated community wants predictability and certainty in the rules that govern the marketplace. She notes that the Commission “listens to, hears, and greatly values the input of the regulated community and all stakeholders”.

Ms. Tenenbaum’s statement informs my comments on the Rule. I believe the Rule does not achieve the objectives set out in her statement and must therefore be amended significantly.

Having read other comment letters on the definition of “Children’s Product”, I feel that the legal and technical details of the proposed interpretative rule will be adequately addressed by other stakeholders without my further input. I believe that this interpretative rule extends the reach of the CPSIA to many new products not covered or intended to be covered by the law, and furthermore, changes the “Children’s Product” test from one defined by “primarily” to something more mathematical (as in a 51/49 test). However, I will rely on the other letters to make the case on these points.

In this letter, I will focus on the impact of the Rule on the marketplace. In particular, I will focus on whether the Rule is consistent with the mission of the agency, is fundamentally sound as policy, meets Ms. Tenenbaum’s objective of clarity, certainty and predictability. I conclude that the Rule needs sharp revision.

The Definition of “Children’s Product” is Inconsistent with the Mission of the Agency: I think it is important to think about the Rule in the context of the goals of the agency as set forth in its enabling legislation, the Consumer Product Safety Act (CPSA). Notably, Section 2(b) of the CPSA states:

“(b) The purposes of this Act are – (1) to protect the public against unreasonable risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries.”

The definition of “Children’s Product” has been incorporated into this legislative scheme designed to “protect the public against unreasonable risks of injury associated with consumer products”. Of course, “Children’s Products” is now a defined term in the CPSA and interpretation of that term, broadly or narrowly, will affect the scope of the law. Under the terms of the CPSIA, the definition of “Children’s Product” draws products into the coverage of the CPSIA, most notably in the regulation of lead-in-substrate and triggers the imposition of many other significant obligations (such as tracking labels). Nothing in the CPSIA overrides the purposes of the CPSC as set forth in the CPSA. Thus, the definition of “Children’s Product” must be evaluated in light of the agency’s mission to protect against unreasonable risk of injury.

How risky are children’s products for their lead content? The data in the CPSC’s historical recall database best describes the risk, in my opinion. These recalls reflect the evolving view of the agency on the threat posed by lead in its various manifestations in children’s products, and reflects the dangers posed by lead via the reported injuries. I analyzed the recalls posted on the CPSC website over the past 11 years and this data indicates that, over a period of approximately 11 years (from March 5, 1999 to April 15, 2010), the CPSC issued a total of 899 recalls of children’s products for all hazards (including lead and lead-in-paint). In this period, 247 recalls were associated with lead and resulted in one death, the well-known death of a four-year-old in Minnesota who swallowed a jewelry charm. [The data can be found at] These 247 recalls were also associated with three reported but unverified injuries from lead. Thus – over 11 years – the reported injuries from lead are four – one death and three unverified injuries.

Contrast this with the injuries associated with swimming pools and spas, a well-known source of childhood injuries. According to the CPSC’s press release dated May 24, pool and spa-related drowning deaths have averaged 385 per year for children under 15 (including 299 per year for children under five years of age) and serious injuries requiring emergency room treatments have averaged 4,200 per year. Consider this data in light of lead: lead produced one death and three unverified injuries in 11 years while pools and spas produced more than one death and 11.5 serious injuries PER DAY in recent years. Pools and spas produce more deaths and far more injuries on the average day than lead produced in the last 11 years IN TOTAL according to the CPSC’s own statistics.

The CPSC’s 2010 response to the daily deaths and maimings of children in pools and spas was a short public relations blitz. The CPSIA has imposed annual expenses in the billions of dollars on the children’s product industry to reduce deaths and injuries from lead.

If massive numbers of pool deaths and injuries merit only a public awareness campaign by the CPSC, the definition of “Children’s Products” should be downsized appropriately to reflect the relative nature of the “threat” posed by lead. The agency’s recall data on lead injuries has never been challenged by any advocate. Evidence that lead-in-substrate meets the “unreasonable risk of injury” standard set forth in Section 2(b) of the CPSA has never been disclosed. It is well-known that the CDC and the EPA link evidence of lead poisoning to only two environmental causes – leaded house paint (the primary cause) and the residual effects of pollution from leaded gasoline (generally found in dirt near inner city housing) and from industrial pollution.

The health impact of lead-in-substrate in ATVs, bikes, pens, clothing, apparel, even toys, is entirely absent from the literature as is any empirical evidence that these items could even theoretically cause lead poisoning. The advocates against lead cite studies that lead can be dangerous in small amounts and highlight the assertion that lead harms “silently”. In other words, advocates claim that because harm can befall children from lead undetected, it follows, ergo, that this kind of harm might also caused by children’s products containing trace amounts of lead. This notion is best summed up by the slogan “there is no safe level for lead”. Yet lead poisoning has never been positively identified from ANY children’s product beyond the one death and three unverified lead-in-paint injuries reported in the CPSC’s recall data over the past 11 years.

This absence of data of detectable lead-in-substrate poisoning means that the definition of “Children’s Product” in the Rule must be narrow. The mission of the agency under the CPSA does not permit it to divert resources for anything less than an “unreasonable risk of injury”. The Rule specifies a definition that is too broad for the documented minimal risk of injury from lead-in-substrate.

The Definition of “Children’s Product” Knowingly Permits Children to Remain in Danger: The Rule permits children to remain in “danger” of lead poisoning through its technical interpretation of the CPSIA. If lead-in-substrate is a public health issue suitable for the agency’s attention, this is unacceptable. The CPSC must adopt a clear rule that logically draws the line between regulated and unregulated commerce.

Let me explain:

The Rule attempts to distinguish items of “general use” and items that are primarily intended for children. The Rule notes that items of general use are not included in the definition of “Children’s Product”. An item of general use may in fact be used by children but because it is intended for a general audience, it is outside regulation by the CPSIA. This is an interpretation of the CPSIA under the Rule. The contrast in the treatment of items of general use and Children’s Products under the Rule is quite dramatic: obligations for safety testing, tracking labels, reporting, whistleblower risk, liability risk are all lifted for general use items. Children’s Products suffer the full brunt of the extensive new safety rules, presumably because of an asserted higher “risk” of injury to children.

An irony of the Rule is its acceptance of not regulating “items of general use” even if they are known to be widely or even universally used by children. The illogical and worrisome disparity in treatment of these items is best illustrated by pens. According to the Rule, pens are typically items of general use and are therefore (as a general rule) NOT regulated by the CPSIA. This result is quite helpful to the agency, as the pen industry has purportedly informed the CPSC that ball points must be made with brass, and brass has minimal lead content as a basic ingredient. No one argues that brass ball points have ever exposed anyone to injury from lead poisoning, not do “human factor” experts contend that contact with ball points are likely to present a risk of lead poisoning. Thus, the inclusion of pens in the broad reach of the CPSIA has been called an “unintended consequence”. So the “right” answer for all concerned is that pens shouldn’t be included in the CPSIA. The CPSC has consistently held that pens are outside the definition of “Children’s Products”.

Notably, it is well-known that close to 100% of school-age children routinely use ball point pens. Children carry pens in their backpacks and use them every day in school. Pens are a particularly ironic choice for this rulemaking example because pens are known to be routinely mouthed (chewed) by all ages of consumers including adults. However, use of pens by kids is deemed “unregulated” under the CPSIA and the Rule because pens have been held to be items of general use. Strangely, pens are in fact subject to regulation under the CPSIA if “decorated or embellished by adding certain features that may appeal to children, such as childish themes or play value”. The Rule holds that if the embellishments are “likely” to attract a child’s interaction with a pen, then it would be considered a “Children’s Product”. So the operation of the Rule is that a pen is subject to regulation if it has an embellishment but not subject o regulation if it omits the embellishment. The CPSC does not indicate that the embellishment itself is a public health or safety concern nor argues that the presence of the embellishment will raise the likelihood of use of a pen by children. The CPSC concedes that children are widely using pens now.

This flaw in the Rule will subject the CPSC and its rules to ridicule. There is no justification for the agency’s safety regulations applying only to some pens, not based on evidence of risk but because of a hyper-technical interpretation of the definition of “Children’s Product” under the CPSIA. The Rule simply makes no sense as public health policy. If the presence of lead in ball points is an actual health risk (which it is not), then there is no excuse to omit any pens from supervisory regulation. If the presence of lead in ball points is NOT an actual risk to health, then there is no excuse to regulate ANY pens under this law. Writing an interpretative rule that can’t seem to make up its mind is, frankly, worse than no rule at all.

The Definition of “Children’s Product” Does Little to Add Clarity for Regulated Companies: The convoluted definition of “Children’s Product” set forth in the Rule fails to bring clarity to the broad reach and operation of the CPSIA. Regulated companies will never be able to consistently apply the Rule in the real world, and worse still, will never be able to find peace (agreement) with their retailers (dealers) on the application of the Rule. Chaos is certain to ensue. This problem is again best illustrated by pens. Pens are items of general use and thus deemed to be unregulated under the CPSIA. The Rule notes an important exception, however: “when a general use, such as a pen, is decorated or embellished by adding certain features that may appeal to children, such as childish themes or play value, the general ruse product may be converted or transformed into a children’s product due to these additional features of characteristics.” [Emphasis added]

The Rule goes on to note that there is an exception to the exception: “However, there also are ‘novelty’ pens that could appeal to children 12 years of age or younger as well as older children and adults; such novelty pens would not be considered to be primarily intended for children. For example, a simple ball point stick pen bearing an elementary school’s name, without any other decorations, would likely appeal to anyone (i.e., students, teachers, parents) connected with the school. A pen with a silly head on the top, not associated with any particular mass media (and not sold in toy stores) may have just as much appeal to adults as it would to children. Pens with puzzle features that allow the user to take them apart and reconfigure the design also are likely to appeal to children and adults alike, and thus, are not likely to be considered children’s products because they are not primarily intended for children.” [Emphasis added]

The fact that children were already “interacting” with pens in the absence of the “childish” embellishments seems to be irrelevant under the Rule, raising the issue of how to tell when a product’s use by children is deserving of safety testing or the application of tracking labels. These are “big dollar” questions for the regulated community. If an embellishment is “appealing” to children, then if children “interact” with the pen based on foreseeable use and misuse of the product, it is apparently considered a children’s product . . . unless the embellishment has “just as much appeal” to adults or children, in which case it is a product of general use. And if the pen is unadorned but used by every child due to a marketing scheme directly aimed at the kids market, no testing or labeling is required (see discussion of musical instruments below).

It seems so obvious . . . .

The clear holding of this “policy” is that stick pens used by every child every day in every classroom do NOT require testing. Were you to remove those ordinary pens from the classroom and apply a “childish” embellishment with inks or paint supplied by the CPSC (stipulated to be entirely lead-free) and then return them to the children, the pens would now need to be tested and labeled. This, of course, makes absolutely no sense, and gives the necessary impression that the CPSC is more concerned with technical compliance issues (test reports without meaning or significance) than with notions of safety. How are regulated companies supposed to follow such incomprehensible or nonsensical rules? There is no answer to this question. Retailers (dealers) take a different tack when confronted by nonsensical rules – they crawl into a shell and invent their own “safety rules” designed to create a cushion between their practices and whatever 20-20 hindsight analyses could be used by regulators. This creates a Wild West of safety rules and practices for manufacturers: chaotic, unpredictable, penal and extremely expensive.

The Rule seems to delight in this convoluted reasoning. Consider the Rule’s stance on the marketing of musical instruments to schools: “Products with a marketing strategy that targets schools, such as instrument rentals, would not convert such products into children’s products if such products are intended for general use, regardless of how the instruments are leased, rented or sold. These instruments are intended by the manufacturer for use primarily by adults, although there also may be incidental use by children through such programs.” Incidental use? In many schools, the “incidental use” induced by these targeted programs is nearly 100% of the kids. It is difficult to take the CPSC seriously about its “passion” for eliminating lead in all manifestations when it enacts a rule that openly permits unregulated use of brass musical instruments by school kids while banning brass in toy wheel assemblies or requiring testing for certain pens because of the brass content in their ball points. This policy is best described as “two-faced”.

Let’s not forget that this Rule is hardly restricted to pens. Paper clips are known to be in wide use throughout society and also by children in the regulated age ranges. As products of “general use”, paper clips are specifically cited in the Rule as exempt from testing and the other requirements of the CPSIA. That makes sense – despite the uncontested fact that paper clips are routinely chewed on by adults AND children. I assume that the lead content in paper clips would have an equal (or greater) ability to erase IQ points as lead in children’s products that also might be mouthed – but let’s not worry about that now. The Rule sensibly draws the line at paper clips for the foregoing reasons, and whatever “hazard” chewing or sucking on paper clips may present has been overlooked as a public health risk. Unfortunately for our education business, it’s not that simple: “Manufacturers may also include a general use item as one of several items packaged together, such as a paper clip included in a magnet set primarily intended for children ages 7 through 10 years old. The paper clip may be a general use item but when included as part of the magnet set, it would need to be tested to the applicable children’s product safety rules since the product is targeted primarily to children 12 years of age or younger.”

What is achieved by this rule? High expense, much confusion, many arguments with retailers and sharply-reduced respect for the CPSC’s rules.

Please note that the Rule leaves all elements of these subjective judgments open to doubt. Consider pens again – because the Rule encourages us to reason from the pen example. The CPSC took no definite position on anything applying to pens other than that an undecorated stick pen is outside the CPSIA. Anything with an “embellishment” presumably will be the subject of endless debate in the regulated community under the Rule. If you guess wrong on the application of the Rule, the law provides (and CPSC practice now reinforces) tremendous liability risk. Let’s not forget that we in regulated community know about the $2.05 million penalty assessed against Daiso for five recalls of less than 700 units in total. Liability risk under the CPSIA seems virtually unlimited nowadays. Subjective interpretative rules applied with 20-20 hindsight by regulators would likely expose manufacturer to the highest risk at the worst possible time, namely when there’s a real problem. How can manufacturers defend themselves? The wishy-washy design of the Rule provides nothing for a manufacturer to rely upon.

The Rule makes same similar confusing distinction on DVDs and CDs and seems to imply that many promotional products will be subject to doubt under this Rule. Almost anything useful that has a so-called “childish” embellishment might be regulated now, possibly without the manufacturer even knowing! The Rule states that manufacturers “should expect” that adults will give their embellished or “childish” products to children even if made specifically for adults (the example cited is a stuffed animal sold with a candle). The fact that some businesses target adults with such items (intent!), or the fact that the Rule contemplates that adults are often drawn to the same items as children, seems to be forgotten here. At a minimum, the Rule seems entirely subjective. This not being confusing enough, the Rule notes that if the items that children are drawn to happen to be considered “collectibles”, then perhaps they won’t be considered children’s products. Or maybe they will.

To put a bow on the confusion, the Rule concludes that classic games like checkers or Chinese checkers (among other common games) are NOT children’s products. I simply cannot imagine a toy company DARING to leave these classic games untested yet the CPSC has now officially ruled that certain classic games are exempt from the CPSIA. However, if the manufacturer is foolish enough to promote these games with images “or other features . . . that make [the games] more attractive to or suitable for children than a general use product would normally be”, well then they are magically transformed into children’s products.

I literally do not know how to apply a rule so full of convoluted logic and word games. Likewise, I cannot envision smoothly functioning markets governed by a rule like this.

Notably, the weight placed on advertising portrayals with children will only intensify arguments between manufacturers and their customers about what is and what is not a children’s product. For instance, we sell magnifiers and tape measures that are identical to those sold at Home Depot. By any definition (and as acknowledged in the Rule), these items are items of general use. We happen to photograph them with children for our catalog and website to illustrate the products’ utility in educational settings. How are we supposed to determine definitively that these items are not children’s products under the law, much less get our customers to agree with us? To date, no customer has agreed with this conclusion. NOT ONE.

The Rule posits a bizarrely unrealistic deliberative process in which each photograph is “weighed” against each other to determine its “true nature”, as though that were possible: “The prominence, conspicuousness, and/or other emphasis given to each portrayal of a product’s use or intended users on packaging or in advertising media can be weighted differently according to which images or messages are the strongest and most obvious to the consumer at the point of purchase.” This language makes me want to scream. To avoid business risks under this rule, businesses may have to produce catalogs and websites that look like this:

The Rule confounds by assigning responsibility to the manufacturer for its retailers’ independent choices on where they place items in their stores or in their various catalogs, web pages and ads. Of course, each retailer will make this choice differently, possibly store-by-store, catalog-by-catalog, ad-by-ad, web page-by-web page, region-by-region, country-by-country and so on. In reality, this standard is even vaguer than that, as the judgment is whether the images “could imply [the product’s] suitability for a certain age group”. [Emphasis added] In any event, we manufacturers have neither control over, nor knowledge of, these choices by third parties.

All this makes me wonder why the Rule doesn’t simply state that the CPSC will decide after the fact what is and is not a “Children’s Product” based on its subjective personal opinion at the time? That rule formulation would at least be honest and clear.

I believe the agency has given scant thought to the reality of living with this rule. How does the CPSC envision that a manufacturer and a retailer would resolve a dispute over whether a product is subject to regulation? Think about people who sell pens. What is the likelihood that there ever be agreement that a particular embellished pen is outside this law? I fear the effect of this vague, quirky and completely indeterminate rule will be that everyone associated with children’s products will throw up their hands and assume that everything is subject to the full brunt of the CPSIA. If that’s the intent, I wish the CPSC would just come out and say it.

What Should the CPSC Do? The answer to this question is clear in light of two factors: (a) in the Chairman’s statement, she indicated a strong interest in bringing certainty to this rule and further notes the importance of certainty to the marketplace, and (b) the extremely low incidence of injury and death reported from lead in the last 11 years. As noted in great detail above, there is nothing “certain” about the Rule as presently written. It includes far too many phrases like “may”, “could”, “in general”, “weighting”, “factors” and so on. The Rule as written is the antithesis of clarity and certainty.

The CPSC has as its mission “to protect the public against unreasonable risks of injury associated with consumer products”. With so few injuries and one death from lead over the course of 11 years, the perils of lead have not been demonstrated to rise to the level of an “unreasonable risk of injury”, particularly when viewed in light of the known impact of so many other dangers regulated by the CPSC (such as small parts or pool injuries).

For a rule to bring “certainty” to the market, there must be a way to make a definitive judgment, one that can be relied upon. Subjective judgments and weighing of factors may make sense for a court but has little value to regulated companies in an active marketplace. Who gets to decide which judgment is “right”? Under the present Rule, no one does.

The way to resolve this dilemma is to learn from the statistically significant history of low injuries from lead, and make a concession in favor of certainty. The right rule for the definition of “Children’s Product” is to state that the “reasonable judgment” of the manufacturer on what is and what is not a “Children’s Product” under the CPSIA will be RESPECTED by the CPSC. I believe the term “reasonable judgment” is understood in the marketplace, and is also a well-defined term in the common law. It has been clarified in countless cases, providing clear guidance to all concerned (regulators, regulated companies and consumers). The CPSC should further indicate that it will NOT review the judgments made by manufacturers in the absence of fraud, a recall situation or other serious violations of law or CSPC regulations. Retailers should be entitled to rely on the reasonable determinations of manufacturers by RULE.

My concept is that the reasonable business judgment of manufacturers will appropriately shape the range of products regulated under the CPSIA. In actual fact, the reasonable judgment of manufacturers on determinations of “Children’s Products” is tightly confined by the CPSIA, so little risk to the “will of Congress” can be anticipated. In addition, given the long track record of so few documented injuries from lead (going back for many years before the CPSIA’s enactment), there is little reason to believe this practical rule will expose children to more injuries. In any event, this will allow the agency to focus its energies on greater threats. The agency also has plenty of legislative authority to draft other rules to address lead concerns if the need arises.

A rule drafted in the vague, quirky, subjective, indefinite and convoluted manner of the Rule achieves little other than amplifying the frustration and confusion of the regulated community. Having filed numerous comments letters over the last two years, testified before Congress and the CPSC on several occasions, had personal meetings with CPSC staff, written blog posts, attended rallies, and so on, I can attest to the deep frustrations associated with implementation of the CPSIA. After all this time and effort, we manufacturers are still “in the soup”. With this Rule, the CPSC begins the final stage of the implementation of the law, and potentially, places the capstone on our ruin. This Rule, plus the so-called “15 Month Rule”, taken as a whole, has the potential to put many companies out of business. I do not know how we survive both of these rules in their present form. It’s time for the CPSC to take a reality check. If the Chairman is serious about bringing certainty to the market and to regulate without putting companies out of business, it’s time to make some concessions and let the good companies who produce children’s products run their businesses and accountably produce safe products using reasonable judgment. This strategy will work. Policies like the Rule will not.

Thank you for considering my views on this important topic.


Richard Woldenberg

Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

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CPSIA – Comment Letter on "Children’s Product" Definition

CPSIA – Happy Pool and Spa Safety Week!

Happy Pool and Spa Safety Week! The CPSC this week strode bravely forth to combat pool fatalities in the United States – finally. I have written about swimming pool deaths in the past (as early as May 26, 2009 in this blog and earlier in letters to Congress). They are shocking in number. The CPSC says that deaths in pools and spas AVERAGE 385 children per year from, 2005-1007. Of this average, 299 victims were (on average) YOUNGER THAN FIVE YEARS OLD.

The childhood pool injury count is even more breathtaking. For pools, submersion injuries requiring emergency room treatment averages 4,200 children per year (47% were for two- and three-year-olds), or 46,200 projected submersion injuries to go with the projected 4,235 childhood drowning deaths over 11 years.

Whoa. This is shameful.

In the same 11-year period, CPSC recall data notes ONE death from lead and THREE injuries from lead. You read that right:

  • Pools: 4,235 drowning deaths and 46,200 injuries
  • Lead: 1 death and 3 injuries

There are no phthalates injuries on record.

The CPSIA addressed pool safety. A highly-publicized section of the CPSIA is known as the Virginia Graeme Baker Pool And Spa Safety Act (the “Baker Act”). This law was implemented in response to the tragic pool drain entrapment death of the granddaughter of former Secretary of State James Baker. The CPSC cites 11 fatalities from pool drain entrapment from 1999-2008. Over 11 years, at this rate, 12 pool drain entrapment deaths would be projected. The Baker Act dictates that pools replace their drain covers to avoid this awful risk. Not an unreasonable approach to a completely avoidable source of injury, at a relatively low cost. Good idea.

It is, however, apparent that the Baker Act does not address the overall massive risk of childhood pool drownings. Of the projected 4,235 deaths in an 11-year period, the Baker Act addresses the cause of only 12 deaths. That leaves the projected deaths of 4,223 children completely unaddressed by our ever-vigilant Congress.

Remember, according to my analysis, compliance costs for the CPSIA are about $10,000 per dollar of avoided lead injury costs. Each death is valued at $6.1 million using EPA estimates. The projected unaddressed pool drownings have a “cost” of $6.1 million x 4,223 = $25.8 Billion over 11 years. At the same rate of compliance costs incurred by the lucky companies attempting to comply with the lead rules, the pool industry would have to spend $10,000 per dollar of injury cost over 11 years, or a mere $257.6 trillion. At this rate of spend, the industry would only have to spend $23.4 trillion per annum which happens to be nearly double the projected 2010 U.S. GDP of $14.8 trillion.

But who’s counting?

And how did our Congress respond to the threat of childhood pool drownings? Surely they really threw the book at this terrible problem – it is literally thousands of times worse than lead. Ummm, well, they mandated a public awareness campaign (see Section 1407 of the Baker Act). The CPSC blitz is the effort to comply with this master plan: a press release, a new website and a “a first-of-its-kind national public education effort”. Apparently, all you need is a few ads and press releases to solve pool deaths.

Strangely, the CPSC is straying from their newly-adopted precautionary principles in this blitz. They actually recommend a strategy of “staying close, being alert, and watching children at the pool”. Huh, you’ve got to be kidding! That sounds a lot like individual responsibility. The CPSC even refers to the need for a “personal system of safety”. Being a good parent and keeping an eye on your kids is so “Old School”. I assumed that the CPSC had moved beyond such shallow advice. They would certainly never do that for lead. Of course not.

I should note that I have long considered the effort to combat pool deaths to be long overdue, so don’t get me wrong. I think it’s great that the CPSC is actually doing something. Pool deaths claim WAY too many kids’ lives every year – we need to take a real threat like this very seriously. But please pardon my waves of nausea over the proportionality of the response. Pool deaths are expected to exceed 4,000 over 11 years (including more than 3,000 kids under five), and in response the CPSC puts up a new website and produces public service announcements with Olympic swimmers. Lead deaths are expected to be one or zero in the next 11 years – and we have to spend $5.6 billion every year in compliance costs.

This is terrible government in its purest form. It is indefensible and incomprehensible. I defy the Democrats to stand up and actually defend their policy positions or legislative solutions. They won’t debate the issue because it’s a total loser for them. The children’s product industry is collateral damage to the Dems’ reelection campaigns. Well, I won’t just grin and bear it. Falling on the sword for their ridiculous sound bites and reelection posturing is not how I plan to go out.

This is un-American. Happy Pool and Spa Safety Week.

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CPSIA – Happy Pool and Spa Safety Week!

CPSIA – Has Congress Ever Done This Before? Ha!

The CPSIA was crafted as a response to a then-shocking but rather inconsequential series of toy recalls in 2007/8 (very few injuries or deaths). After years of intentionally starving the CPSC of budgetary resources, Congress blamed the agency for the large scale toy recalls, leaped to the conclusion that children’s products (not just toys) weren’t “safe” anymore and proceeded to gut the law governing safety and the CPSC (the CPSA). The resulting law (the CPSIA) upended regulation of children’s product safety across an unprecedented array of industries. “Unintended consequences” popped up everywhere almost immediately. Many people claimed to be “surprised”. Given the low injury statistics across the category, the law seems like a vast overreaction.

It’s easy to overlook historical precedent during a crisis. Has Congress ever missed the boat like this before?

Okay, dumb question. But well put!

Consider the response to the Titanic tragedy in 1912. In that famous collision with an iceberg, 829 passengers and 694 crew died when the Titanic sank in the Atlantic. Perhaps you recall the movie . . . . Anyhow, it turns out that the Titanic did not carry enough lifeboats to save everyone. There were 2,228 people on board but the lifeboats only held 1,178. Don’t doubt my math but 705 survived.

Congress couldn’t stand still after the Titanic. Pinning the blame for the loss of life on the lifeboats, rather than the iceberg, Congress passed the La Follette Seamen’s Act of 1915 mandating boats and life rafts for all persons on board seafaring ships. The thinking goes that if every ship had a life boat seat for every passenger, no one would ever die in such a tragedy in the future. The public furor over the loss of the Titanic prevented consideration of the fact that most ships have no risk of colliding with icebergs because of their routes. Likewise, lifeboats are an ineffective remedy in many marine disasters because they would not be able to be launched. No matter, Congress “solved” the problem.

Notably, some members of the maritime industry resisted. In Congressional testimony, A. A. Schantz of the Detroit & Cleveland Navigation Co. noted that the rules intended for the high seas would backfire on the Great Lakes. Schantz pointed out that the light draft and ship design would make Great Lakes ships top-heavy and unseaworthy under the new law. He went so far as to predict that some Great Lakes ships would “turn turtle” if forced to operate with the heavy and useless lifeboats. His argument wasn’t just that the expense was pointless – he also noted that it was counter-productive and even dangerous.

Let’s pause for a second here. Congress rushes onto the field to “solve” a problem it doesn’t really understand. Why doesn’t Congress understand the problem despite hearings and so on? Well, among other things, Congress lacked industry-specific know-how and expertise. It is better at identifying “effect” than “cause”, and therein lies the problem. Consequently, Congress was looking for a particular answer, and tended to reject discordant data (like Mr. Schantz). When industry tried to advise Congress of the inadequacy of its solution, Congress knew better and brushed them off. After all, who has more integrity, Congress or the industry that “caused” the problem in the first place?

Can anyone guess where this is going?

On July 15, 1915, while at dock in the Chicago River, the S.S. Eastland capsized, killing 844 passengers and crew waiting to cruise on holiday to Michigan City, Indiana. The reason? The Eastland was already top-heavy and became unstable under the federally-mandated safety equipment. The ship, when it listed and sank, was described as rolling over “as though it were a whale going to take a nap”. Quite an image. Quite a tragedy. Thanks for all the help, Congress!

Not only is this story creepily similar to the CPSIA saga, it is also a reminder of the risks in the broad financial reforms currently being contemplated by this Congress. Senator Judd Gregg warned: “We shouldn’t put in place a regulatory regime that overly reacts and, as a result, significantly dampens our capacity to have the most vibrant capital and credit markets in the world.” He might as well be speaking of our friend, the CPSIA. As Jim Grant notes: “The intended consequences of government regulations are frequently less potent than the unintended ones.

As obvious as Mr. Grant’s point has become in the case of the CPSIA, the Democrats if anything have hardened their position and remain resolute that they are doing “everything they can” for us. Put another way, everything else that we want (and which has been denied us) in a CPSIA amendment is NOT forthcoming. No reason supplied except the intellectual pap that everyone wants kids to be safe – America demands it. Apparently, the Dems think they have a much better idea on how to keep kids safe than the industry.

So the Democrats are willing to risk another S.S. Eastland in the children’s product industry rather than admit they went (way) too far. The Republicans, to their undying credit, admit that the CPSIA needs severe restructuring and are working hard to bring about real change. Sadly, Waxman and his Dem co-horts are able to block the Republican effort at reform, and that’s why we are in a stalemate. Who will be the S.S. Eastland of the children’s product industry? It could be my company, could be your company, could be your school or even your child. The unintended consequences keep coming to light, and as the evidence mounts, the Democrats in Congress and their counterparts at the CPSC will held to account for the damage they have wrought. History will not forget.

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CPSIA – Has Congress Ever Done This Before? Ha!

CPSIA – Washington Times Clubs the CPSIA and Congress Over Brass Decision

Brass attacks
Consumer ‘safety’ law strikes bad notes

Seventy-six trombones left the big charade. A thousand and 10 store debts are close at hand. There are zippers, keys – so many amenities – all outlawed because Congress is blind. With apologies to Meredith Willson’s 1957 Broadway show “The Music Man,” such could be the latest fallout from the draconian Consumer Product Safety Improvement Act.

Congress passed the misnamed CPSIA in 2008 to protect consumers, especially children, from all manner of supposed dangers in ordinary products. The CPSIA’s most stringently targeted danger is lead, which clearly can be a health hazard. The problem is that the CPSIA leaves all reason behind, setting allowable lead limits so low, with so little room for common-sense exceptions, that it effectively bans huge numbers of harmless products used in everyday life.

A veritable smorgasbord of business groups and grass-roots activists have arisen to fight the CPSIA – among them an outfit called the Alliance for Children’s Product Safety. Its Web site, Amend the CPSIA, used the “76 Trombones” motif to complain about the Consumer Product Safety Commission’s latest ruling concerning the CPSIA, which effectively outlaws all brass used in children’s products. (One component of brass is lead.) By a 3-2 vote on Nov. 4, the commission decided that Congress had left no leeway for common-sense exceptions to the brass ban.

Result? To quote at some length from the alliance’s Web site, “In addition to brass zippers, grommets and other apparel and footwear components, victims of this decision include brass instruments, musical bells and certain strings used in a string instrument. By in effect outlawing brass in children’s products as defined by CPSIA, … the CPSC’s actions call into question the future of school bands. Will young musicians in their school band’s brass section now have to hum along with their peers, or switch to the recorder or a (plastic) kazoo?

“The fact is that brass is routinely used in countless products used and touched by children daily, including door knobs, locker handles, and much, much more. There is no danger of lead poisoning from brass. CPSC staff wrote that they consider brass bushings safe. … However, staff believed that CPSIA offers no flexibility to the CPSC to assess risk.”

Commissioners Nancy Nord (former chairman of the commission) and Anne Northup (former congressman from Kentucky) dissented from the hard-line anti-brass vote. Wrote Ms. Nord: “This does not advance consumer safety, diverts staff resources from real safety issues, and puts an unnecessary burden on manufacturers and sellers of children’s products.” Ms. Northup chimed in that “unless [Congress] act* soon, more small businesses will be forced to shut down.”

Ms. Northup is right to put the onus on Congress, which passed a truly counterproductive law. For well over a year now, Congress has been flooded with specific and reasonable complaints about multiple aspects of the CPSIA. These consequences include the destruction of children’s books published before 1985, the silencing of charitable auctions and the shuttering of thrift shops nationwide.

Yet the congressional leadership has turned a blind eye to all the evidence that its handiwork is awful. Neither congressional committee with jurisdiction over the law has held a single hearing featuring a single critic of the CPSIA.

With more than 10 percent of the American work force officially unemployed, Congress should be jumping through brass hoops to fix any laws, such as CPSIA, that hobble the economy. But when it comes to putting practicality over rigid ideology, it seems Congress’ top brass can’t be bothered.

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CPSIA – Washington Times Clubs the CPSIA and Congress Over Brass Decision

CPSIA – CPSIA Casualty of the Week for November 9

The Alliance for Children’s Product Safety’s “CPSIA Casualty of the Week” highlights how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace in order to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions of the law. These provisions do nothing to improve product safety, but are driving small businesses out of the market.

Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring “common sense” to our nation’s product safety laws.

CPSIA Casualty of the Week for November 9

♪ ♫ 76 Trombones Taken Away by the CPSC… ♪ ♫
CPSC Ruling: The Day the Music Died for Elementary School Brass Bands?

In an unfortunate but widely expected decision last week, the Consumer Product Safety Commission (CPSC) voted 3-2 to reject a petition to exempt brass from the new CPSIA-mandated lead standard.

While the petition was specifically submitted for brass bushings that hold a wheel onto the axle of a toy truck, the CPSC’s vote will have widespread repercussions. In addition to brass zippers, grommets and other apparel and footwear components, victims of this decision include brass instruments, musical bells and certain strings used in a string instrument.

By in effect outlawing brass in children’s products as defined by CPSIA (any product used primarily by a child 12 and under) the CPSC’s actions call into question the future of school bands. Will young musicians in their school band’s brass section now have to hum along with their peers, or switch to the recorder or a (plastic) kazoo?

The fact is that brass is routinely used in countless products used and touched by children daily, including door knobs, locker handles, and much, much more. There is no danger of lead poisoning from brass. CPSC staff wrote that they consider brass bushings safe and that the lead transmission from brass bushings is inconsequential and certainly not rising to the level of a hazardous substance. However, staff believed that that CPSIA offers no flexibility to the CPSC to assess risk.

Members of Congress who have refused to amend the CPSIA claimed that all would be well once new Commissioners were in place. These new Commissioners had another opportunity to vote for common sense. Unfortunately, two of the three new Commissioners believed CPSIA does not allow this – common sense has been thrown to the brass heap for now.

To see a webcast of the CPSC’s public hearing on the brass exemption petition, click here.

To read the Wall Street Journal’s stinging editorial about the brass decision, click here.

Do not accept the status quo! Tell Congress and the CPSC to restore “common sense” to our nation’s product safety laws. Click here for instructions on how to contact the CPSC and your representatives in Congress.
For more information, please contact Caitlin Andrews at (202) 828-7637 or e-mail

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CPSIA – CPSIA Casualty of the Week for November 9

CPSIA – Tenenbaum Doesn’t Know What Testing Costs

At a public meeting this week on September 30 between Chairman Inez Tenenbaum and representatives of the NSSEA (National School Supply and Equipment Assocation, ), Ms. Tenenbaum related her belief that a lead test costs “$35″. This is consistent with propaganda put out by consumer groups. I recently wrote about a representative of WashPIRG who contends that testing costs are as low as $75. Yet, I have documented testing costs FAR higher than this. Who is right? I would like to report that the rumored $35-$75 lead tests is RIGHT . . . and WRONG. As the linked test quotes and invoices indicate, our (recent) cost for a lead test (plastics) is $75, less our 35% discount ($49). The cost of a lead test (metal) is $90 less discount ($59). Since I know you are curious, flammability is $70 less discount ($46), physical and mechanical is $245 less discount ($159) and phthalates is $350 less discount ($228). You will notice that these prices are not firm, and vary from one invoice and quote to the next. That said, it’s close enough for government work, as they say . . . . If the individual test cost was all we needed to know, Ms. Tenenbaum might be completely right, at least directionally. But she’s not. Of course, unless you use only one material in your product, you will have to pay for more than one test. Normally, this adds up to quite a few tests for a single item. I have summarized the test details below for the attached test quotes and invoices. As you will see, the tests required per item range from 9 – 121 lead and phthalates tests. [This ignores the miscellaneous tests and charges. You will note, by the way, that one of the attached invoices include a $101 charge to confirm that our tracking label was compliant. Good work if you can get it, I guess . . . .] The notion that testing costs are $35 is pure fantasy, Ms. Tenenbaum. The world is more complicated than that. Amazing, it turns out that what I have been saying since November is right! Shame that no one at the CPSC or Congress was listening. See the data below: Telescope: 24 lead in substrate 23 lead in substrate (metal) 26 phthalates (7) Cost: $8,635 [I am reporting only the quoted or invoiced test costs. There will other, significant costs, associated with these test reports. In the case of the telescope, we have to give 23-24 samples ($2600) plus spend at least $500 on FedEx costs. I have also omitted the smaller tests, to keep this essay focused. You are welcome to examine the test data linked above.] Pretend & Play Bakery Set: 9 lead in coatings 22 lead in substrate 21 phthalates Cost: $5,350 Let’s Tackle Kindergarten: 5 lead in coatings 30 lead in substrate 5 phthalates Cost: $2,397 Talking Microscope: 6 lead in coatings 20 lead in substrate 41 phthalates Cost: $3,678 Playfoam Creativity Set: 56 lead in substrate and coatings 34 cadmium 31 phthalates Cost: $6,483 Busy Pets: 3 lead in coatings 21 lead in substrate 7 phthalates Cost: $2,114 Jumbo Animals: 24 lead in coatings 22 lead in substrate 12 phthalates Cost: $3,565 Healthy Food Set: 11 lead in coatings 35 lead in substrate 48 phthalates Cost: $5,973 Trail Mix & Match: 12 phthalates Cost: $1,714 Over & Under The Sea Mat: 9 phthalates Cost: $1,130

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CPSIA – Tenenbaum Doesn’t Know What Testing Costs