CPSIA – Listening but Disagreeing – or Not Listening At All?

We know that the CPSC plunged ahead with the database on Friday despite the outcry of many industry stakeholders. Among the protesters was the National Association of Manufacturers, not exactly a lightweight organization. Industry protests fell on deaf ears. It goes without saying that the resistance of the two Republican Commissioners (who drafted their own database rule) aligned with industry objections. None of this apparently mattered.

As if to make the point that the CPSIA database will be misunderstood, misused and dangerous, the New York Times announced the arrival of the database in an article entitled “Consumer Agency to Post a Database of Unsafe Products“. Nice work, New York Times! The information in the database is unverified and in many cases will NOT be true. There is simply no way to conclude that the products referenced in the database are “unsafe”. Good luck convincing anyone of that now.

It is embittering and frustrating to be so flagrantly disregarded. There seems to be so much at stake, and the fix was seemingly so simple. No one asked to kill the database, just protect innocent businesses from damaging inaccurate postings on a website enjoying the prestige of a federal safety agency. Even the Pompeo Amendment was promoted as “hitting the pause button”. It is hard to fathom why dialogue was so impossible to start. Actually, after a few years of this war, it is not hard to fathom at all.

I know we were rejected – it is hard not to conclude we were ignored completely from the beginning.

My involvement in this issue began when I was asked to testify before the Commission on the issues relating to a searchable database of product incidents. Actually, I had been on record of objecting to the database even before the CPSIA became law (you can see excerpts of letters I sent in my response to Slate). I was called by Matt Howsare, then counsel to Inez Tenenbaum (now her Chief of Staff) who asked me to fly to Washington to testify. He told me that they “needed” me. Wanting to be helpful and to pitch in when asked by the agency (I was charmingly naive at that time), I agreed. I posted video of my testimony in this space, and as you will see, I was cut off by Ms. Tenenbaum. Get it? I was asked by her staff to present because they needed industry testimony, and when I gave my remarks, they cut me off – one suspects they had heard enough . . . .

This experience left me disgusted in a way that, frankly, hasn’t worn off.

Later, the agency called for a two-day workshop on the database. Owing to the discourtesy of my treatment at the hearing and because of their apparent utter disinterest in my views, I declined the opportunity to continue banging my head against the wall by attending their database confab. Later, as we know, the Democrats released a 248-page rule that greatly expanded the database rule from Congressional intent. Written as though edited by Consumer Federation of America, the rule produced howls of protest, but as has been the case thusfar in this CPSIA saga, it mattered not. The three Dems voted as they would have in the absence of any protests and the defective rule was adopted.

I continue to believe that the criticisms of the rule were (and remain) legitimate. That is, they were rational and reasonable, and lent themselves to reasonable and understandable resolution. The Dems did not make any effort to address these reasonable concerns, rejecting them out of hand.

This pattern of ignoring stakeholders while calling for comments and participation has been a hallmark of the Tenenbaum era. I am trying not to take it personally but wonder how we can be so consistently “wrong”. The Dems barely pause to discuss industry objections other than to simply reiterate that their policy objectives are more pressing. Are we so obviously wrong that our objections don’t merit an answer?

I have trouble reaching that conclusion. I have made the same points consistently over and over, yet I cannot put my finger on a single response to my objections other than outright rejection. There is a question of good faith here. The rejection of my company’s PROOF of a material error in the one filing made against one of our products in the soft launch of the database seems to call into question whether the agency can ever be trusted under this group of administrators. The response by SENIOR STAFF at the agency that the consumer in question had stated a “risk of harm” when his/her accusation was PLAINLY WRONG means that even the English language is being corrupted in service of the database. How can trust exist in an environment like this?

Ask around among industry stakeholders. Trust is GONE. No one trusts the CPSC these days.

Looking back on the database saga, it makes me all the more certain that I am doing the right thing pushing back against these people. They are not operating in good faith and have no apparent concern for the well-being of our company, our employees or the countless companies, schools, families and children who depend on us. This cancer on our markets must be stopped. We have another election coming up and I will be working hard to put more Democrats OUT OF WORK. They have no one to blame but themselves. They won’t listen . . . .

So we need to get rid of them.

Read more here:
CPSIA – Listening but Disagreeing – or Not Listening At All?

CPSIA – The Scoop on the CPSC Database

In response to my last blogpost, a little bird contacted me with some thoughts about the public database that consumer advocates and their leftist political allies are cramming down our throats. Apparently, there’s a big gulf between what the Commissioners are saying publicly and what they are saying privately. Take it for what it’s worth.

While you might not agree with the POV purportedly adopted by the Dems below, it certainly portrays them as rational. I think that’s right – they know what they’re doing and are doing it by choice, rather than by coercion. The fact that their actions will be harmful to the regulated community is not lost on them, but we’re just not their priority. THAT’S the real problem here.

Here’s a few tweets for you:

a. While the Dems “support” the database, they are privately acknowledging that it is a colossal waste of time and staff resources. They do NOT believe the database will be full of useful information to anyone. Why should you believe this? According to a reliable little bird on my window sill, the CPSC has not hired even ONE person to process all the information that will be posted in the database. The reason – the leaders don’t care if the data is correct or not. The phrase “post it and forget it” is their agenda.

Did you catch that? POST IT AND FORGET IT.

I believe I recall Rachel Weintraub touting the credibility and accuracy of this data. Hmmm. My so-and-so detector is going off . . . .

b. The driving plan of the Dems is to spend as little as possible on the database. They consider it a diversion of their scarce staff resources. They believe the database will do nothing – or almost nothing – to improve safety so why put money into it?

But they will vote for it – that’s the price of their political patrons – and I guess the impact of this useless database on your business and your willingness to engage in business activities is none of their concern. So they’ll implement it and fill it with garbage. Who cares . . . .

c. The speeches touting the database are intended to please the consumer groups and the political patrons of the Dems running the shop.

d. There is a recognition that allowing the database to swallow up resources at the agency will interfere with the real work of the agency. The Dems actually want to keep people safe so they are going to spend the bare minimum on the database.

The agency doing the bare minimum on the database should be the most frightening thing you have ever read about the database. And it’s true.

You’re not meant to know any of this. This freedom of speech thing is a real pain in the neck for our overlords.

It’s time to get REALLY scared about the database.

Read more here:
CPSIA – The Scoop on the CPSC Database

CPSIA – Last Ditch and Pointless Comments on Public Database

The CPSC Commission will be voting on a final rule governing the new public database for product safety complaints on Wednesday. The final rule tips the scales at 248 pages.

I know I am a public utility. . . but it’s confession time – I didn’t read it. I know what’s in there and the Powers-That-Be don’t care what I think anyhow.

Commissioners Nord and Northup have published their own alternate rule. It must be worse than the CPSC’s proposed final rule because it’s much shorter, only 27 pages long. I read the Nord/Northup rule – they asked for comments and I believe they will actually listen. It won’t matter because the Commission now votes on party lines, so our comments are irrelevant. The Dems already know what they intend to do. Adler, Tenenbaum and the out-of-office Moore vote as a pack and do as they collectively please. Perhaps this time they won’t even bother to make a pretense of listening to Nord or Northup. I picture the meeting going quickly as the Dems all put on their iPods and ear buds while Nord and Northup have their say. Might as well bop to iTunes, Commissioner communication is at a standstill anyhow.

Relax and enjoy it, kids! You’ll love it. What could possibly go wrong???

Before I tell you all the reasons why I detest the public database, I want to give you my comments on the Nord/Northup draft:

1. I greatly appreciate the effort and the gesture. They didn’t have to do this, and made a game effort to help out. Their rule has as much of a future as the 2010 Cubs but nonetheless, I admire their commitment to their job responsibilities and to the market the CPSC regulates. Nord and Northup recognize the many risks implicit in the database idea and attempt to fix as much as they can within the context of the deeply-flawed CPSIA, the law of the land. Thank you for trying.
2. The proposal commendably attempts to limit who can post in the database by narrowly interpreting the CPSIA. This is an appropriate regulatory agency response to an excessive law, something a well-run federal agency would do to keep the trains moving on time. Naturally, the agency has not opted for that courageous route over the past two years.
3. Much of the proposed rule involves what can be disclosed, how to protest inaccurate information and the disclosure of confidential information. It is highly technical – your eyes will glaze over. It’s all necessary to make the best of a bad situation.

The basic concept of the database is that the government must set up coercive rules to make “bad” companies do the right thing. Apparently, the geniuses behind the database assumed that we cartoonish corporate bad guys would never exercise good judgment without the pressure of the public database. Many steps backward resulted. For instance, the Nord/Northup proposal says that manufacturers will not be provided the name or contact information of the submitter of the complaint or the injured party. We also won’t receive photographs of the injury. And this is for what purpose? Apparently by withholding this information, the CPSC enhances the ability of manufacturers to do their job. I believe this is a reversal of current practice.

There are many consumer “advocates” out there who are telling misleading stories about the database. A good example is “Wallet Pop” who provided an update on the database on November 12th. Here’s how he portrays the situation:

a. “Trying to keep your family safe from dangerous products is extraordinarily challenging.”

RW – Is that really true? What is the evidence that we are all “in danger”? This is not an exaggeration – this is a LIE.

b. “As much energy as the U.S. Consumer Product Safety Commission spends trying to alert consumers to hazardous products, an alarming amount of the information it possesses is kept secret.”

RW – Enforcement investigations and enforcements themselves are very closely associated with litigation. Confidentiality is absolutely ESSENTIAL for any semblance of due process, a Constitutionally-guaranteed right, even for corporations. The Rule of Law protects us all, even if we must tolerate some sacrifices, such as the sanctity of confidential investigations.

That DARNED Constitution, so inconvenient.

c. “Releasing all this information is a frightening and annoying prospect to many companies, who fear tarnished reputations.”

RW – There’s a lot more to fear in the database than just tarnished reputations. Let’s not overlook that the Internet exists. We manufacturers live in a world where the consumer is KING – our reputations are on the line every day already. There are already many websites ready and willing to let you bash away at us, as long as you let them sell ads. So it MUST be something more than “tarnished reputations” that is causing all that fear. Could it be . . . heightened litigation and liability risk???

d. “Nancy Nord and Anne Northup want further restrictions on such things as whose reports can be included in the database (no lawyers acting on a victim’s behalf, thank you) . . . . Traditionally, Nord and Northup are on the losing side of 3-2 votes, but they’re not going down quietly.”

RW – Safety is now PARTISAN at the CPSC. In other words, in their spin machine, Democrats CARE deeply about kids and Republicans are heartless money-grubbers. These days the caring Dems run the show and money-grubbers are always outvoted.

I know you like a good story at bedtime! Bad Republicans, good Democrats. Sweet dreams.

e. “Companies will still make huge profits after this database is made public. Is it wrong for a handful of large and powerful corporations to perhaps take complaints a bit more seriously when they come in instead of choosing to dismiss them until hundreds are hurt or innocent children lose their lives?” [Emphasis added]

RW – The CLASSIC mischaracterization of our market that it’s all about big companies. This guy has Mattel and Graco on the mind. The irony is that the mass market companies could care less. The ones who will be CRUSHED are the small businesses. Let’s not forget that Mattel gets to test its own products – and when it LATER had a recall of 11 million units of its merchandise, no one asked any questions about testing. The rules are hardly even a blip to those guys. The cost to Mattel from that massive recall: ONE PENNY PER SHARE. The database is just anothe sidelight to those guys. The story is rather different for small businesses, however.

Not that the CPSC cares . . . .

So why do I hate the database?

1. There is a big difference between restaurant reviews and “United Breaks Guitars”, and product liability. The database is all about litigation and liability risk. Reputational reviews are about goodwill, but the database has to do with systemic risk for our businesses. It is a pro-plaintiff distortion in an already out-of-control tort system. Fundamentally, reputation is about consumer as king. Liability is about bloodsucking lawyers as king. This database is not designed to inform consumers well – the information is not certified. So why have a garbage in-garbage out database. It’s intended to foster more vexatious litigation. Read the WalletPop article again – it’s clear that the database is intended to be coercive. How do you suppose it will be coercive?

2. The government has no business lending a hand to tort lawyers. The tort system which provides the “little guy” with a way to seek redress functions just fine. The New York Times just published a study on hedge fund investing in tort lawsuits. Must be quite the cash cow if those guys are getting into it. The database gives them a new target – you. Why is it appropriate for the CPSC to oversee the disbursement of this information?

Do you think this will raise our standard of living? Create jobs? Increase capital available for investment?

It is worth noting that the database will create an expansion of the role of government in our markets. This is classic government bureaucratic creep where the government attempts to compete with the open market. Yes, there is that Internet thing. All those new tedious jobs, those eyes-glaze-over procedures must be administered by freshly-minted bureaucrats. The database must be built and maintained on government servers. Decisions will need to be made, filings and “transmittals” processed, deadlines watched, complaints followed up. This is PURE overhead. [And there is also the even larger devotion of resources that will need to be deployed by manufacturers.] Read the rules and ask yourself – will the world be better with all the new rules? With this expansion of our government? Isn’t this what you read about in the papers every day?

I am so, so sick of it. When will it end?

3. There is no economic justification for the excessive risk that the government is forcing on the market. The children’s market has not been killing or maiming kids in large numbers. Let’s not forget that we are a country of 300 million and it is not a utopia – some injuries will happen. [My apologies, I don't mean to burst your bubble.] Far more kids are killed or maimed in swimming pools than in any other children’s product activity. Apparently those kinds of deaths and injuries are not as troubling as other kinds of childhood deaths and injuries – there is no database on swimming pools.

4. The database is definitely subject to manipulation by competitors and other agents of corporate extortion and destruction (like bloodsucking lawyers). That is, under the proposal that Tenenbaum and Co. will pass when they take off their ear buds on Wednesday. For myself, I am particularly apprehensive about the stress that the database will place on our company. We will get notice in five days and have ten days to reply. Since the agency is going to launch a publicity campaign to convince the public to report every nit in the database, I expect MANY such postings. Now every broken toy will be a potential liability for our company, and trivial incidents will become our top priority. Forget about growing out business – it’s catering to the exigencies of the database that will matter. Still, I cannot imagine making the database the centerpiece of my business life. I also don’t know how we are supposed to answer a lawyer who asks how we monitor this database if we ignore it. Damned if you do and damned if don’t.

Not that the CPSC cares.

I can hear the advocates now – “This is what we want companies to do. They need to be ‘responsible’ and pay attention to their products and their customers.” Well, that presumes that we weren’t doing that already. In any event, we choose what we do every day. If you make us miserable enough, we’ll get out of this market fast. And that’s what the CPSC seems committed to do.

I think the database will quickly supplant the old way of finding out that there was a problem with our products – namely that our customers would call or write us. So they will place this information anonymously in a database and we will not be able to interview them or see their product. This puts us more in the dark and makes our job much harder. Or impossible. Brave new world . . . .

The whole subject depresses me. Be prepared for more fireworks and then the expected outcome on Wednesday. Our opinions will not sway the Majority (remember, Adler told us that anecdotes aren’t evidence, so they are free to ignore us and our amusing anecdotes).

And after this ugly business is concluded, you know what’s next . . . the 15 Month Rule. Then we’re goners, once and for all. Eric Cantor, where are you???

Read more here:
CPSIA – Last Ditch and Pointless Comments on Public Database