CPSIA – Wolfson Fans Fear on Shrek Glasses (Was it a Slow Week at the CPSC?)

It seems that the feeding frenzy over the McDonald’s Shrek glasses just won’t die. No matter that there are zero reported injuries from cadmium in consumer products – EVER – or that the medical community is basically unaware of any material risk to children from cadmium in consumer products. Yet another news report on McDonald’s perpetuated the myth that the presence of cadmium on the outside of the glasses is a danger.

Let’s start with a basic FACT – CPSC spokesman Scott Wolfson put in WRITING that the Shrek glasses were NOT TOXIC. I have previously analyzed this remark and concluded that “not toxic” is the equivalent of “SAFE” (based on the plain English language meaning of the words). Wolfson has conceded in writing that the glasses are safe.

Now the Philadelphia Inquirer quotes Scott Wolfson raising doubts about McDonald’s Shrek glasses:

“‘CPSC is doing additional follow-up work in the aftermath of the recall,’ Wolfson said. ‘The case is not closed.’”

The CPSC is apparently investigating glasses that Wolfson himself called safe. Don’t worry, Wolfson is just trying to keep everybody calm.

Apparently not content with this mess, Wolfson goes on to suggest that some parents (the really neurotic ones) may want to take special precautions with the safe glasses:

“Wolfson, the CPSC spokesman, said risk-conscious parents might want to consider using a souvenir glass simply as a souvenir. ‘If a parent wanted to be as cautious as possible, they should consider not allowing their child to use it as a drinking glass — to keep it as a collectable or just allow it for adult use only,’ Wolfson said.”

The message here, of course, is that the glasses are NOT safe. But they are. So who are you to believe, Wolfson Number One or Wolfson Number Two? Or not believe any of the Wolfsons because they are playing some sort of game with us that none of us can understand?

The Shrek glasses manufacturer certainly seems puzzled. But he seems to be reliant on knowledge of the manufacturing process and perhaps even knows something about science, seemingly a liability these days when dealing with a know-nothing government:

“‘There is nothing wrong with the manufacturing process,’ Jose-Maria Aulotte, Arc’s senior vice president, said last week . . . . Aulotte said the cadmium-based pigments are made in Germany — not France, as a McDonald’s spokeswoman previously stated — and are legal ‘in all countries we do business in.’ He said the pigments are used in red and yellow enamels, and in combinations such as oranges and greens. Once decorated, the glasses are fired at 1,100 degrees Fahrenheit, in a process called vitrification that Aulotte said locks the enamels to the glassware. ‘We’re confident all Arc International products are safe for use by children and adults, and are unaware of harmful exposure related to these pigments,’ he said via email . . . . Aulotte said he was puzzled why the CPSC tests suggested that routine handling could lead to cadmium exposure. ‘It depends on what you do with it. But if you just carry the glass, it should not come off,’ Aulotte said.”

Were the CPSC a logical place with regulators who are concerned about public safety, not public neuroses or headlines, this matter would be long dead. Why couldn’t Wolfson tell the Philadelphia Inquirer that the matter is closed, that he has already informed it that the glasses were safe and that the recall was voluntary at the request of McDonald’s to reassure the public about its cautious approach to safety? Well, of course, that’s not entirely true, as it has been widely reported that the CPSC urged this recall of safe product. What SHOULD the CPSC say? Maybe that they screwed up?

I should live so long.

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CPSIA – Wolfson Fans Fear on Shrek Glasses (Was it a Slow Week at the CPSC?)

CPSIA – McDonald’s Shrek Glasses Weren’t an "Imminent Hazard"

Some people apparently think I contend that product recalls can only take place if the CSPC insists. I have certainly argued that the CPSC has no authority to demand or even ask for a recall unless certain specific conditions are met. Hate to be the bearer of bad news, guys, but there are limits to the agency’s legal authority. Companies themselves can recall products for any reason. There need not be a safety reason – you can recall something from the market because the color’s wrong, the material is somehow less than expected, wrong size, wrong instructions, wrong packaging, whatever. A company’s ability to recall its own products is not limited by law.

In the case of the McDonald’s Shrek glasses, yes, McDonald’s declared a voluntary recall. That’s not unusual – the vast majority of recalls are voluntary. Only a tiny handful of recalls every year are “mandatory”. In any event, the critical issue here is NOT that McDonald’s made this choice. As we have discussed, the publicity from this event forced McDonald’s hand – they had to protect their brand at all costs. The issue here is that the CPSC apparently “urged” the company to “do the right thing”. [These words come from the OnSafety blog, the official blog of the CPSC, believed to be written by Scott Wolfson, Director of Public Affairs.] It was apparently the “right thing” to do although the agency conceded that the glasses were “not toxic”, in other words SAFE.

While companies are allowed to choose to recall safe products at their pleasure, the CPSC does not have the unlimited legal authority to reach out to American companies and tell them to take this kind of voluntary action.

The power to recall emanates from certain provisions of the CPSA and FHSA. Notably, Section 12(a) of the CPSA, the agency can’t go to court unless there is an “imminent hazard”. What might that be? “As used in this section, and hereinafter in this Act, the term ‘imminently hazardous consumer product’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.” Given that the glasses have been acknowledged to be “non-toxic”, this standard is impossible to meet.

The relevant term in the FHSA is “banned hazardous substance”. In Section 2(q)(1)(A), it is defined as “any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted”. [If a ban is done pursuant to subsection (B) of this clause as a "household item" because it is chemical in nature, it must be done by rule, subject to comment and so on. There was no rulemaking process involved in this case.]

“Hazardous material” is defined in Section 2(f)(1)(D) in relevant part as “Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 3(e) of this Act, presents an electrical, mechanical, or thermal hazard.” And Section 3(e) refers only to electrical, mechanical or thermal hazards, clearly inapplicable here.

Bottom line, the McDonald’s glasses are outside the reach of the CPSC . . . if the wording of its principal empowering laws matter anymore.

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CPSIA – McDonald’s Shrek Glasses Weren’t an "Imminent Hazard"

CPSIA – Keeping Government Out of Children’s Products May Require Toxins

The Cadmium circus rolled on today with Senator Amy Klobuchar rushing to save America by calling for hearings on cadmium. Ms. Klobuchar must have been in quite a hurry to save America:

“Jumping on a report about toxic levels of cadmium in children’s jewelry from China, Sen. Amy Klobuchar is pushing for a hearing on the issue. Klobuchar, D-Minn., sent a letter Tuesday to Senate Commerce Committee Chairman Jay Rockefeller, D-W. Va., that says, in part, ‘this metal has no place in children’s toys.’” [Emphasis added]

Jewelry . . . toys . . . it’s all the same, isn’t it? Heck, when you’re saving children’s LIVES, these piddling details are merely the hobgoblins of little minds (Ralph Waldo Emerson must have been from Minnesota). If her heart is in the right place, who cares if she has any idea what she’s talking about?

Not one to let down her adoring public, Ms. Klobuchar shared some of her expertise on the CPSIA and toxins: “Citing [the CPSIA], Klobuchar wrote that although there are ‘currently no cadmium restrictions on toys and jewelry, cadmium is a poison and if ingested, can hinder brain development and lead to other health problems in children.’”

This is, strictly speaking, not true. Well, how can you expect Klobuchar to actually check a factual statement like this? She is one busy Senator, there’s no time for dilly-dallying. It’s not like she’s a lawyer (oops, she is!) or actually participated in writing the CPSIA (oops, she did!) and voted for it (oops again, she did). She probably even read the law at one time (oops . . .).

One of the brilliant changes put through by Ms. Klobuchar and her Congressional brethren in the CPSIA was the codification of ASTM F963 (Section 106 of the CPSIA), the formerly-voluntary standard of the toy industry. This document (it’s really long, don’t blame her for not leafing through it) imposes a requirement of not more than 75 mg/kg of cadmium in toys. The CPSIA even required the CPSC to examine the effectiveness of the ASTM standard within a year . . . and they did it without changing any requirements relating to heavy metals. But that was before the latest headlines.

Of course, Ms. Klobuchar was simply joining the fun along with Senator Schumer who introduced anti-cadmium legislation to save us, and Chairman Tenenbaum who encouraged people to rip jewelry off the necks and wrists of their kids: “We have proof that lead in children’s jewelry is dangerous and was pervasive in the marketplace. To prevent young children from possibly being exposed to lead, cadmium or any other hazardous heavy metal, take the jewelry away.” [Emphasis added] Joe McCarthy would have loved this free-for-all.

Even the AP is now scratching their collective heads. The same AP reporter issued a new article today puzzling over the panicked regulators: “When pressed, Tenenbaum’s spokesman Scott Wolfson explained parents should grab the trinkets and toss them. Just be sure to ‘safely dispose’ of the merchandise under applicable state and federal environmental law.” [When I read quotes like this, I think if there wasn't a Scott Wolfson at the CPSC, we'd have to make one up.]

The AP article carries on: “So what are America’s Moms and Dads to do? While neither Tenenbaum nor Wolfson would outright say not to buy cheap children’s jewelry, that inference was clear, too. A tough conversation around the kitchen table: don’t buy any new stuff, don’t give out any new stuff, don’t play with the old stuff. In fact, get rid of the old stuff, but in a manner that doesn’t risk putting toxins from the jewelry into the environment. And make sure you don’t go out and resell the jewelry through online auctions or to a thrift store, said Wolfson.” [Emphasis added] Wolfson has a way with words, doesn’t he? Reporters must love him . . . .

The AP sums it up: “So instead of focusing in on specific items, as a recall would do, the CPSC officials are taking on an entire industry. . . . [The testing for AP] only looked at 103 pieces of low-priced children’s jewelry — finding 12 items with cadmium content above 10 percent of the total weight. . . . Clearly, the CPSC is worried beyond those limited test results. Even during the height of product recalls from China several years ago — when millions of items of jewelry or painted toys with high lead levels were taken off store shelves — the CPSC did not issue such a public warning. Under the administration of President Barack Obama, and with Tenenbaum replacing commissioner Nancy Nord atop the agency, the CPSC is projecting a much more aggressive image.” [Emphasis added]

Cooool under fire! I think the CPSC isn’t going far enough. It is clear that we in industry do not measure up to our leaders’ high standards and expectations. Imagine having to wonder what will be in the paper every morning, the pressure, the angst. [If it's in print, it must be true - just ask the Zhu Zhu Pets folks.] So, to avoid all that stress, I recommend that the CPSC take the bold step to make everything illegal. We should be required to turn over all of our possessions to the government for safe disposal according to applicable environmental protection laws and then move, naked, back into the caves where things will be much safer. This should make things simple and besides, the enforcement and legal staff create NOTHING BUT WORK for the Commission. My heart bleeds.

But wait, that won’t make us safe just yet. Cadmium is in our food, in our water, in our air, in cigarettes, in batteries and fertilizers, in our workplaces – horrors! I just had an epiphany – Cadmium is so ever-present in our environment that it must be the cause for human mortality. There, I put that sentence in writing and published it – so it must be true. The CPSC therefore should ban food, water and breathing. It’s the only thing they can do to save the human race.

And I used to think we had too much government. You ain’t seen nothin’ yet, baby. . . .

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CPSIA – Keeping Government Out of Children’s Products May Require Toxins

CPSIA – AP Story Features April Rally Committee Members

New lead limits big concern for small businesses By JENNIFER C. KERR The Associated Press 9:31 p.m

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CPSIA – AP Story Features April Rally Committee Members