CPSIA – Essay Contest or . . . Detention Punishment?

I know what you are thinking: how can I channel all this excess energy I have? What could really soak up a lot of time, and provide intellectual stimulation at the very same time? It can be so frustrating to have oodles of time and nothing to do . . . .

Luckily for you, the Society for Standards Professionals (SES) have a contest for you to enter. It’s their 2011 World Standards Day Paper Competition. The topic for your award-winning essay must meet this description: “‘Advancing Safety and Sustainability Standards Worldwide,’ recognizes that issues of safety and sustainability are important causes for stakeholders around the world, from alternative energies and environmental protection to the safety of products, services, homes, and workplaces. As governments, organizations, and individuals alike strive to address these transnational challenges, globally relevant standards provide the technological and scientific foundations that drive health, safety, and environmental innovation.”

Okay, I know that’s not English, but heck, they are Standards engineers. What did you expect?

The project might have died there . . . but fortunately, my trade association, the Toy Industry Association, provided outstanding translation services so we could all get in on the fun:

“As recently reported to TIA members, the U.S. Celebration of World Standards Day 2011 taking place on October 13, 2011 in Washington, D.C. includes a unique opportunity for toy industry stakeholders to describe (in writing) the crucial role that global toy safety standards serve in protecting children today and for future generations … and take home some fantastic cash prizes!” [Emphasis added[

Now, that’s a Rockin’ n Rollin’ idea for you. The crucial role of Global Toy Safety Standards – I love it! Of course, the contest also sounds like some sort of detention punishment. “Now write ‘Safety is nice’ on the chalkboard 100 times in neat handwriting!” Well, Mr. Grumbler, life is how you choose to look at it, so stop moaning and get to work. You’ll never win the big prize by feeling sorry for yourself.

Here are a few suggested winning essay titles. I would welcome any other ideas you have because I want one of my readers to WIN that cash prize!

a. “Cadmium-for-Lead: How Global Standards Set Me Straight!”

b. “What?! No One Told Me Small Parts Were Bad! ANSI to the Rescue.”

c. “If It’s Illegal Here, It Must Be Illegal Everywhere. Waste Haulers Laud New Global Toy Safety Standards.”

d. “Let Me Chew on That. . . . Global Toy Standards Finally Regulate Common Sense!”

e. “Never Heard of Selenium? ANSI Has . . . Thank G-d.”

f. “Shards of Glass No More. Global Toy Standards Stand Tall!”

g. “There Are New Global Toy Standards? Somebody Should Tell Our Firewalled Test Lab.”

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CPSIA – Essay Contest or . . . Detention Punishment?

CPSIA – Cadmium Crisis Explained

Scratching your head about the mounting crisis over cadmium? Let’s see, the CPSC declares the Shrek glasses “not toxic” but still pushes for a recall of these safe products “in an abundance of caution”. Apparently, the CPSC either believes that perfectly safe products should be recalled in an abundance of caution or that they themselves can’t figure out what’s “dangerous” anymore. Not a single article or a single person to my knowledge has identified a single injury caused by cadmium in a consumer product – EVER.

[Oops, SORRY, there is a consumer product closely associated with cadmium intake: " Tobacco smoking is the most important single source of cadmium exposure in the general population. . . . The absorption of cadmium from the lungs is much more effective than that from the gut, and as much as 50% of the cadmium inhaled via cigarette smoke may be absorbed. On average, smokers have 4-5 times higher blood cadmium concentrations and 2-3 times higher kidney cadmium concentrations than non-smokers. . . . No significant effect on blood cadmium concentrations could be detected in children exposed to environmental tobacco smoke." Time to stop smoking, guys - that's big news, apparently.]

Of course, we shouldn’t ignore the fact that the people who are terrorizing America over cadmium are the very same people who are pushing for deep and invasive regulation of all chemicals throughout our society. It’s the anti-chemicals crowd behind the cadmium panic. Mr. Waxman’s big goal is the reform of the Toxic Substances Control Act (TSCA). Arguably, the CPSIA is the opening shot in his TSCA battle, which explains his utter intransigence in the face of well-documented catastrophes caused by the CPSIA. Cadmium is perfect for that purpose, especially since no one seems to understand the nature of the threat. Just mention cadmium and “bone softening” and the media and politicians melt.

Anyhow, I was wondering how cadmium became so scary. I realize that cadmium is dangerous under certain limited circumstances – but so are many other things that Americans like to use, such as fire, water . . . and guns. It is obviously time for some research. To help you out, I have provided many useful links below. The history of cadmium is VERY revealing. Here’s what I found out:

The discovery of cadmium came long after Rachel Weintraub and Henry Waxman attended school. Back in the olde days when they were educated, the Periodic Table had a different look:

In those days, when chemistry teachers taught the periodic table, position 48 was known as Puppy Dogs. Chemistry instructors typically explained that this element was responsible for sunshine, candy, love and (of course) puppy dogs. Everything that was good and sweet in our idyllic lives were attributable to Puppy Dogs. Element 48, also known as “Smiley Face”, was always the element children liked best. Most lessons were taught staring dreamily out the window at the playground, watching small children frolic and play. Puppy Dogs was good stuff.

The role of Puppy Dogs in our lives and the American Way was a foundation belief in the scientific community for many years.

Later, science took a dark turn. In 2007, scientists in Congress discovered to their horror that lead (Pb) was not only present on the periodic table just two squares away from Puppy Dogs but that lead was a contaminant in certain consumer products. At this time, science had not advanced far enough for Congressional scientists to know that lead has been on the Earth since creation and is found in everything including our food, water and air. Once Congressional scientists were able to detect trace levels of lead in consumer products, a specialist in the Top Secret Congressional Skunk Works connected the dots – “What about kids? If they play with Puppy Dogs, it’s just two squares away from LEAD!” This is what prompted passage of the CPSIA.

Am I being too science-y? Sorry.

As you know, science marches on and in a very recent 2010 development, scientists at the Consumer Federation of America, led by Rachel Weintraub, and at the CPSC discovered that Puppy Dogs was actually NOT the 48th element. After urgent research into how sunlight was created if not by Puppy Dogs, cadmium was discovered accidentally when someone pulled on their earlobe while deep in thought.

Here’s what Wikipedia says about this Nobel Prize winning discovery:

“Cadmium is a chemical element with the symbol Cd and atomic number 48. Cadmium represents a low point in American science education. In a little known provision of the “Treaty of the Meter” signed by the United States in 1878 signalling the promising beginning of the metric movement in our country, the 48th position of the periodic table was deemed to be a Smiley Face and called “Puppy Dogs”. American science, never questioning this regulation, eventually traced the origins of sunshine and love back to this phantom element. In early 2010, scientists at the U.S. House of Representatives noticed that lead (Pb) was located near Puppy Dogs on the periodic table, and in a rapid series of science-y experiments, determined that Puppy Dogs was actually a soft, bluish-white metal chemically similar to the two other metals in group 12, zinc and mercury. Frighteningly, experiments have determined that cadmium, if dumped into a river in massive quantities as mining run-off over a period of decades, will cause bone softening in nearby populations (“Ouch-Ouch Sickness” is also known as one of the Four Big Pollution Diseases of Japan).”

So that brings you up-to-date on cadmium, bone softening and toxicity. I hope this helps you understand why your Congress and the CPSC are trying to save you from dangerous cadmium. Apparently, you need a lot of “saving”. In my case, I am just going to stop drinking from rivers downstream from WWII mining operations in Japan. That should probably be enough protection for me.

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CPSIA – Cadmium Crisis Explained

CPSIA – Numbers Don’t Lie (Update No. 1)

I have received a lot of feedback on my data on injuries from lead since I published it on Thursday. Some of the comments deserve further exploration.

a. Did anyone have this data previously? I think the answer is NO. I have heard from inside the CPSC that this kind of data analysis is not being done. The data is nowhere to be found, except here. Recent testimony by consumer advocates and Congressional zealots is strangely bereft of details, just long on invective. Don’t we deserve better?

The hysteria over lead-in-paint recalls, combined with other recalls that were unrelated created such a lynch mob atmosphere in Congress that the only data that registered was data that supported the mob’s POV. The actual data is therefore something of a surprise.

Let’s look at the four reported lead injuries for a moment. The one death from lead, the famous incident in Minnesota where Jarnell Brown swallowed a lead charm off a Reebok bracelet, is well-known.

Injury no. 1: L.M. Becker recall (vending machine jewelry, Sept. 10, 2003): “The firm received one report of a child who swallowed the necklace’s pendant, which reportedly resulted in high blood lead levels.”

Injury no. 2: Four company recall (vending machine jewelry, July 8, 2004): “CPSC has received one report of lead poisoning when a child swallowed a piece of toy jewelry containing lead that was previously recalled. No reports of injury or illness have been received for the recalled products announced today.” THIS REFERS TO THE L.M. BECKER “INJURY” ABOVE.

Injury no. 3: Munrie Furniture, Inc. (cribs and matching furniture, December 23, 2008): “Munrie has received one report of a child ingesting the paint. The child was diagnosed with lead poisoning.”

Injury no. 4: Allreds Design (bracelets and clips, February 17, 2010): “Allreds Design received one report of a 10-month-old child who was treated by a physician for elevated lead levels.”

Do these three injuries (one injury is double-counted) have anything in common? I assert that causation is not proven in these cases. Yes, lead poisoning is alleged, however there is no evidence that the cause has been determined definitively. READ what the CPSC said – the connection to the defective children’s product is loose or even conjectural (“reportedly resulted in high blood lead levels”). Remember car seats that gave kids lead poisoning? Toxic car seats were a hoax. The injury data is flimsy at best. And this is all the evidence there is of injury from lead in children’s products in the last 11 years of recalls.

The Democrats and consumer groups would rather eat broken glass that admit that the lead poisoning scare is a hoax. They want to run our businesses – so there’s no conceding that all this economic damage cannot be traced to anything other than ONE TRAGIC ACCIDENT IN AN ELEVEN YEAR PERIOD. Uno, that’s it, in our country of 300 million where thousands of kids die every year for various reasons.

Well, at least we know our companies will die in a valiant cause, to reduce the ten-year death rate from lead in children’s products from one to zero . . . .

b. Was the CPSC really broken? This is Mr. Waxman’s assertion, as expressed in his opening remarks at the April 29 hearing. So it must be true, right?

I hope to provide more data on this topic soon. In the meantime, I will simply pass along the comments of a friend who is in the CPSC community, namely that Congress underfunded the CPSC for 20 years, leading to severely constrained budgets and hiring. Consider these quotes from a 2007 Businessweek article about the CPSC:

“Yet while the CPSC has never been more vital, through much of its 33-year history the agency has been chronically understaffed and underfunded. Overseeing 400 recalls a year, most at companies’ requests, the CPSC’s compliance team has less time to initiate its own investigations, which tend to reveal the most serious risks. . . . Growing workload and shrinking resources have left many disheartened. From a peak of nearly 1,000 in 1980, CPSC’s head count has fallen to 400. . . . What can be done to help the agency? In a word, money. It’s been 17 years since Congress thoroughly reviewed the CPSC’s resources and needs, says Nord.”

So, let’s see, Congress has been tightfisted with budgets for this little agency for many years, starving it of needed resources and headcount, effectively shrinking it over a 17-year period to a withered state, and then after an outbreak of large-scale toy recalls (by and large injury-free), Congress blames the agency for inattention to its mission and severely rewrites the law to punish the marketplace and the agency itself.

After all, why blame the entity responsible for the problem in the first place, Congress? Much easier to blame the agency!

c. Wow, those were a LOT of recalls? Is that the tip of the iceberg? As far as I can tell, the answer is that most of the iceberg is a mirage. Experienced CPSC hands note that the recall notices are prepared by the press office at the CPSC and are meant to attract attention and headlines. Big numbers, if defensible, are best suited to demonstrate that the cop is on the beat. A few tricks of the trade is to add in as many sources of “recalled” items as possible. I believe that as many as 60% (that’s no typo) of all recalled units NEVER WERE SOLD. I would simply observe that if they were never sold, they never had the potential to cause injury.

Second, the population of recalled items is always inflated out of an abundance of caution whenever there is ANY doubt as to the identity of dangerous products. In other words, if a company sold one bad lot but also sold nine good lots, all indistinguishable, the recall would be announced for all ten lots, even though there is NO dispute that nine of the lots are absolutely fine.

Without this insight, recall statistics might be alarming, at least in a sense. Actually, the recalls are something of a mirage, an illusion of legions of bad products that really don’t exist or were never sold. How can we verify this? Among other things, injury statistics back up this assertion. If we had 300 million units of dangerous products in circulation, the injury statistics of 2381 injuries in 11 years seems pretty low to me. Assuming an average time in the marketplace of three years per recalled item, this implies an annual injury rate of 0.026% (from all causes, not simply lead). If the products are in the market for only one year on average, the annual injury rate is still only 0.077%. In other words, in a worst case scenario, you can safely use RECALLED children’s products 99.92% of the time. And you would presumably be even safer with NON-RECALLED products.

Oooo, scary.

Think of it this way: There are about 3 billion toys sold in the U.S. annually, according to Alan Hassenfeld, former CEO of Hasbro. Over 11 years, that 33 billion toys. [Considering that "Children's Products" includes far more than just toys, the pool of 11 years of sales is probably north of 500 billion units.] Were you to assume that all 899 recalls in my data were toys, the pool of 308 million units recalled would represent 0.93% of all toys sold in that period. So, if 0.93% is safe 99.92% of the time, and the rest presumably safe at a higher rate (let’s say 99.999%), then the blended safety of all toys is 99.99%. The result is probably higher than that.

Numbers, numbers, do they matter?

We are spending not less than $5.6 billion per annum to “fix” this 99.99%+ safe problem. In an effort to create a much “safer” environment for kids, the helpful folks at the CPSC have produced literally thousands of pages of documents, rules and instructions to govern our businesses down to the tiniest detail. Unfortunately . . . the assertion that anyone will be safer CANNOT be proven as a matter of mathematics.

A neurotic bill administered by people who no longer can assess what is and is not safe is a danger to our society. The data proves it. Who should be held accountable? Congress? The Dems? Inez Tenenbaum? Some or all of the above.

Read more here:
CPSIA – Numbers Don’t Lie (Update No. 1)

CPSIA – In Defense of Lead

Perhaps you have been expecting it. After all the “heat” in this blog over the past year, finally, my defense of lead. Hope you’re happy now. . . .

Last Friday, Commissioner Bob Adler posted his long-awaited position paper on lead and related CPSIA issues. Weighing in at 21 pages and 89 footnotes, Mr. Adler’s paper includes a thorough recitation of facts as well as his recommendations about the law. Among other things, he recommends making the lead exemption process more flexible and allowing clothing to be sold through charity resale shops. He also left the door open to changes that would ease the economic burden of the CPSIA on small businesses and low-income consumers. I agree with all of these changes – but I also think many other and more extensive changes are needed, too. I do not agree with the basis of Mr. Adler’s reasoning, however, and that makes all the difference.

Mr. Adler devotes about half of his statement to a detailed analysis of lead safety, reciting many facts not in dispute. Unfortunately, he then leaps to familiar conclusions that we have seen in recent Commission meetings and which are also found in many of his written statements. He does signal some extremely limited flexibility on lead, more or less hewing to the line put forth by Central Casting.

Ironically, Mr. Adler’s statement sometimes leaves you wondering where he stands, since he seems so sympathetic to both sides. It is frustrating to not have a clear picture of how he really sees the world. I fail to find persuasive his argument that the lead rules are good for us when they lead to ridiculous results like the banning of brash bushings on toy cars. Mr. Adler himself noted in the Learning Curve hearing that the brass bushings pose NO risk to children at a hypothetical tipping point with blood lead levels (in other words, the toys were incontrovertibly safe) – and then voted to ban them because the law compelled it. This should trigger a sense of outrage in the Commissioner . . . but it doesn’t.

To me, as an ex-lawyer, the illogical results documented in the Learning Curve case are intolerable. It is proof of a defective law and a defective system. Banning acknowledged safe products is a SIGN of problems, not something to rejoice in. As you know, it costs money to toss away perfectly good product. It also costs a lot of money to employ CPSC staff and Commissioners to decide silly cases like the brass bushing case. Something’s quite wrong if we are celebrating a system so obviously broken.

i believe there are fundamental flaws in Mr. Adler’s views on lead which prompt him to make recommendations basically defending a broken, illogical and self-destructive legislative system. Let me start by stating what I considered to be incontrovertible facts:

• Lead is bad
• Lead can be dangerous to children
• Harming children is bad, and unacceptable if reasonably foreseeable.
• Lead poisoning in children is largely if not entirely the fault of lead house paint and leaded gasoline

Mr. Adler makes the latter point in his footnote 83: “Clothing is not a significant source of lead poisoning. Far and away the greatest source of lead poisoning is lead paint in older housing, lead-saturated soil from gasoline emanated over the years from automobile exhausts, and lead-saturated dust (both from paint and gasoline).” [Other citations omitted] It is important to remember that Mr. Adler KNOWS that blood lead level problems stem from house paint and the long term consequences of years of leaded gasoline use (particularly in the inner city).

Mr. Adler tries to prove that lead is bad – but that fact beyond dispute. He goes further and builds the case that there is no “safe” level of lead, providing citations. Thus established, he then seems to justify the legislation’s strict terms based on the logic that if science hasn’t identified a safe level for lead, every instance of lead is therefore dangerous: “We may have currently reached the outer limits of our ability to measure negative effects of exposure to small amounts of lead, but that does not mean that no adverse effects are occurring. It basically means that we do not know.” Scary stuff. . . but what does he really think?

It’s hard to tell. Notwithstanding his assertion that no level of lead is safe, Adler seems oddly reassured by the permitted levels set by Congress: “[Given] that lead remains ubiquitous and often unavoidable, policymakers who are fully aware of lead’s risks, have sought to determine some level of lead that would be acceptable – at least until new information becomes available.” And these all-knowing policymakers (Congress) set a retroactive scheme of rapidly declining permitted lead levels. In other words, what was considered “safe” (meaning legal) on February 9, 2009, was “unsafe” on February 10, 2009, and what was considered “safe” on February 10, 2009 became “unsafe” on August 14, 2009, and what was “safe” on August 14, 2009 promises to become “unsafe” on August 14, 2011. Mr. Adler analyzes retroactivity under the CPSIA in his statement and then endorses it. Huh?

I fail to grasp the logic of either Congress or Mr. Adler here. Is lead in substrate dangerous or is it not? Is there a safe level for lead or is there not? Is lead safe on one day, and not safe on the next day? If so, can someone explain the science of that safe/unsafe trigger to me? I believe Mr. Adler’s accommodative attitude toward the lead standards and retroactivity is best explained by politics than by any notions of safety or risk.

It is even harder to take Adler’s stern tones on lead seriously when you consider the volume of lead elsewhere in a child’s life. Will regulation of lead in substrate in children’s products have any material impact on blood lead levels? Can anyone prove that it will, or that the cost of getting rid of all the lead is worth the cost? Remember that we could redeploy the same money for more impactful projects, like eliminating high lead levels in drinking water in schools or remediating soil contaminated with lead. We have already covered the fact that Mr. Adler knows that blood lead levels are fundamentally tied to exposure to leaded house paint and contaminated soil. It is also well-known that cars are coated in lead paint, legally under our laws. Lead is also in our food chain, is found in nature – and enters our bodies every day. [For data on this topic, see "Eat My Dust".] By obsessing on children’s products in the face of these facts, Congress ensured that its new legislation would fail to deliver measurable results.

In essence, the slogan “no safe level for lead” connotes a risk-free condition. “Risk-free” is an unrealistic standard and FAR too expensive as public policy. Mr. Adler uses this formulation in his lengthy analysis of used clothing sales: “In sum, I cannot state with certainty that a “safety” threshold of, say, 1 µg/dL blood level change would never occur from zipper sucking. . . . The fact that I cannot say there is no risk is why I characterize the choice [between allowing and banning resale of used clothing] as between bad and worse.” [Emphasis added] Mr. Adler is not following a legal principle here, he is asserting one. This is the precautionary principle, the famous Nanny State being implemented before your very eyes.

It is difficult to diffuse an argument based on the elimination of all possible risk. If we wish to organize our society around the elimination of risk, rather than the management of risk, we are doomed. All of us, not just the children’s product industry. The sad truth is that no one in the Federal government can prove that the policies of the last 35 years on lead caused injury. Mr. Adler implicitly asserts that our inability to prove that it DIDN’T is enough justification to throw the old system out. This is a belief system, not science.

The fear of risk is fanned by the threat of undetectable dangers. Mr. Adler notes: “To say the effects [of lead on healthy children] are not directly observable is not to say that that they are minor.” He amplifies this point by implying a link to children’s products to lead injuries without any proof of a relationship: “[MRI] technology has permitted us to identify permanent damage in adults stemming from childhood lead exposures.” Exposure to what, precisely? ABC blocks or the soil next to an inner-city apartment building in the leaded gasoline era? Mr. Adler’s assertion that we just don’t know what the harm is dodges the real question – how do you know there is any harm resulting from THESE USES OF LEAD? No answer is supplied because no one can answer that question.

The Adler statement paints a pretty compelling picture and the 89 footnotes were presumably intended to add academic gravitas to his arguments. However, not all academics agree with Adler. Here are videos of the presentations of two Ph.D.s who specialize in risk assessment in children’s products and lead issues taking an opposite view: Richard Reiss of Exponent and Barbara Beck of Gradient. They both note that the dose makes the poison and that only through true risk assessment will a sensible safety system be possible.

A couple brief notes:

- Mr. Adler talks a lot about retroactivity in the CPSIA. At the end of the day, he comes down . . . get ready for it . . . in favor of retaining retroactivity, but also for the recommendation of the Commission to make the pending 100 ppm lead standard prospective. I am not commenting on his arguments other than to say that I think relaxation of this provision would bring considerable economic relief without any possibility of physical harm to anyone. That’s enough reasoning for me.

- In calling for change to the lead exemption process, Adler is apparently willing to support only “a modest expansion in the amount of discretion granted to the Commission”. I find this rather curious and unexplained – he only wants a little discretion. Why? Does he worry that the Commission can’t handle the responsibility for full discretion? Again, why? I wonder if greater powers suggested this very limited recommendation out of a lack of “trust”, namely trust of future Commissions not hand-picked by this Dem-dominated Congress. No matter the explanation, it is curious indeed to see a Commissioner ask Congress to extend his Commission limited discretion.

- Adler devotes considerable space to sale of children’s clothing at resale shops. He ultimately recommends that charity resale shops be allowed to sell children’s clothing (possibly subject to posted Proposition 65-like warnings, see footnote 88). Adler’s logic in this section is puzzling to me. Is Adler trying to defend children or defend the CPSIA? He concedes that clothing has no history of causing injury from lead but is apparently troubled that it cannot be proven that a child couldn’t be harmed by clothing. Incredibly, he resolves the dilemma by distinguishing between resales made by charity shops and by for-profit shops, leaving the latter out of his proposed exemption. So is he approving the sale of unsafe products by charity resale shops to poor people so they can stay warm? Or is he saying that the clothes are probably safe, but can’t be sold by for-profit stores for . . . what reason? If the clothing is safe to sell, sell it . . . and if it isn’t, don’t. WHO sells it shouldn’t matter. But apparently it does.

An aside: Mr. Adler uses some strong language to discuss those of us who have pushed back on this law: “As I have waded into the debate, I have encountered many thoughtful, sincere, and anguished concerns about the CPSIA. I have also heard numerous overheated arguments, scanned many bloviating blogs, and read great numbers of error-laden emails (and letters) commenting on the law.” For those of you who don’t know this SAT word, “bloviating” is defined as “[to] discourse at length in a pompous or boastful manner” on dictionary.com. I wish our government officials would stick to the issues and avoid attacking the exercise of Free Speech by U.S. citizens. This is particularly the case here, since after a long fight, many of those bloviaters have been proven right. I don’t expect thanks, but I think this is out of line.

I could go on, but I won’t. Mr. Adler’s voice in the debate is an important one and I appreciate his efforts to set the record straight. I don’t agree with him and appreciate the opportunity to reply.

You be the judge!

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CPSIA – In Defense of Lead