CPSIA – Reaction to my Testing Guidance Comments

On November 11, I published my thoughts on the recently-announced Testing Guidance. These guidelines will be the subject of the upcoming two-day workshop at the CPSC on Dec. 10/11.

In my blogpost, I noted that children’s products with paint require independent testing while painted non-children’s products used in the home and around children only require a GCC, no testing. That makes NO sense to me, as explained in my blogpost.

I received a series of emails from a regular reader of this space, someone with a great deal of expertise in the CPSC and its practices. Let’s just say, this person knows quite a bit more than me. Here’s what my reader said in reply to this essay:

“I think the implication that children’s products needed some special class of testing by someone other than the manufacturer was highly questionable to begin with. (Put another way, why should we distrust children’s product manufacturers? Or in the alternative, is the risk from such products really so much higher that special safeguards were necessary? In truth, most of the serious injuries and deaths that led to recalls were because of defects and not because of non-compliance with rules that you could test for.)

. . . .

Unfortunately, there seems to be a national trend–including other agencies and state and local governments–of legislating requirements based on junk science disseminated by interest groups. This leads not only to incredible costs, or loss of product for consumers, but diverts the attention and resources of the agencies from their core mission of reducing deaths, injury, and illness. That is the ultimate irony here: that in promoting safety some of these presumably well intentioned people are in fact likely decreasing the public safety.”

Score one for people that actually know what they’re talking about! Couldn’t say it better myself (although I have been trying for about a year).

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CPSIA – Reaction to my Testing Guidance Comments

CPSIA – CPSIA Casualty of the Week for November 16

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.

CPSIA Casualty of the Week for November 16:

“Pockets of Learning” Emptied by CPSIA
Special Needs Products Being Driven from Market By Testing Costs

Pockets of Learning is a Rhode Island-based company that for 20 years has designed, manufactured and sold unique heirloom-quality cloth toys and gifts, many of which offer skill-building experiences to children such as tying, matching, buttoning and counting. The company helps fill niche markets, including special needs, religious and independent retailers. Pockets of Learning has an impeccable safety record, and has never offered a product to the marketplace that had not been tested according to CPSC requirements.

On November 10, 2009, Pockets of Learning informed its customers that thanks to CPSIA, it will no longer sell its “How Do I Feel Today?” wall hanging, a bear-themed product sold for young children with special and emotional needs. The company told its customers that it “can no longer afford to manufacture and offer these products, due to the over 500% increase in safety testing cost…The annual volume of the product does not allow for the investment required to properly safety test under the new CPSIA guidelines.”

The loss of this item was made known to us by a leading distributor of therapy tools and other products for educational professionals and psychologists who had his order cancelled.

Pockets of Learning President Jack Grant told us in an e-mail that this product loss is only the “tip of the iceberg.” Due to the financial impact of CPSIA testing, Pockets of Learning is planning to reduce its product line from about 65 products to approximately 22 because of “the reality that CPSIA testing would typically add 30% or more to the cost of each item” made in small production runs.

Large multinational manufacturers who make high volume items can absorb higher testing costs imposed by CPSIA. But the thousands of small businesses across the country that fulfill specific, niche markets are the untold casualties of this law. Worse yet, kids in need are losing access to essential teaching materials. “How Do I Feel Today?”, indeed!

For more information, please contact Caitlin Andrews at (202) 828-7637 or e-mail caitlin.andrews@bgllp.com

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CPSIA – CPSIA Casualty of the Week for November 16

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 – Testing Guidance Comments

The CPSC put out long awaited guidance on testing and certification. The hearings on this guidance took place on November 9. I wanted to give some preliminary comments:

General Comments:

The Guidance is generally helpful and clearly well-intended. This is a helpful change in tone that will be welcomed by the business community. I encourage the CPSC to keep working on the tone of its communications to rebuild trust with the business community.

As a general matter, I find that this guidance speaks with two voices, one focused on reasonableness and good judgment with the goal of safety, and the other focused on rule-following and a byzantine structure for compliance judgments that is divorced from concepts of safety. For instance, the guidance stresses the importance of third party testing of lead-in-paint on children’s products. The guidance includes an extensive section with very specific suggestions on how to accommodate lab testing for various paint scenarios (Sec. D), suggesting that the CPSC thinks that lab testing is absolutely required to assure compliance with this standard. Later, the guidance notes that “Painted non-children’s products likely to be used in the home and around children, and wet paint in the can also must comply but can be accompanied by a general certificate of conformity.” So, the CPSC apparently thinks it is essential to test SOME products for lead-in-paint that children will regularly encounter in the home, and as for the rest, they are prepared to trust the manufacturer. It also suggests a much lower sense of urgency on lead levels in those other products. From a safety perspective, one of these approaches must be right but they both cannot be right at the same time. How does the CPSC expect their rules to be respected (or understood) if they blow hot and cold on such an important subject?

There are other conundrums, such as conflicting uses of the term “reasonable certainty” and “reasonable assurance” when describing compliance. These terms have very different meanings and connotations. [The better term is "reasonable assurances" because "reasonable certainty" is an illogical term akin to "nearly precise".] In addition, at times in the guidance, the CPSC describes in great detail the factors that a reasonable manufacturer should weigh in making judgments, and then in other seemingly similar circumstances, articulates bright line compliance requirements. Bright line rules are almost certain to cause chafing, as there are so many different industries affected, and many companies have innovated in safety and supply chain processes designed to assure good quality. Specific bright line rules will offend innovators and will tend to force them to share or squander their proprietary efficiency gains. For instance, phthalate testing plans and frequency is something that should be left to the best judgment of manufacturers. Why? Because phthalates are additives not found in nature, and if the manufacturer’s supply chain has been trained to eliminate it as an additive, testing and retesting won’t find it. The incentive to run your business well is eliminated when you cannot capture the benefits of efficiency.

It would be my strong preference that the CPSC rethink this guidance from the perspective solely of a safe environment for children. As a starting point, the CPSC Staff must candidly decide if they think children are in danger now and describe precisely how they are in danger. The concept of “no safe levels of lead” has been debunked by CPSC Staff and even the Commission itself. To my recollection, no lead exemption request under Section 101(b) has been rejected for safety reasons, only for lack of flexibility in the statute. In addition, in last week’s brass bushings hearing, Commissioner Adler repeated the consumer group’s slogan “no safe level for lead” and then went on to state that the Learning Curve toy cars (subject of the exemption request) were perfectly safe to use even with a child at some hypothetical tipping point in blood lead levels. Thus, both CPSC staff and Commissioners concede that there are safe (tolerable) levels of lead. We need to move past sound bites and refocus on the real safety problems faced by children. Some of these problems probably involve lead (bio-available lead). I believe the agency can identify those risks that deserve attention, and would concede that the rest do not (at this time). This is crucial for a system of rules that will be respected by the stakeholders in the safety debate. Silly implementing rules lead to silly results, unfortunately; famously, the CPSC has “okayed” several metals for inclusion in children’s products that are KNOWN to be quite dangerous – all because they are also known to be lead-free. A set of rules focused on real safety considerations will be much better received and will be far more effective, too.

It is also worth noting that the complexity of this guidance will likely defeat its purpose. When it takes 31 pages to explain how to sensibly test your products, with two dozen FAQs to clarify the ornate rules, it is clear that something’s wrong. If the CPSC wants rules that will be understood by the “masses”, the rules must be simpler and more focused and manageable. It is important that to note that the regulated community will not put the time into mastering the nuances of these rules like the few interested parties have done for the last year. Rules that work are shorter and simpler. My preference would be rules along the line of the factors listed in B.4 coupled with a requirement that manufacturers exercise good faith, make best efforts to comply and use reasonable or best judgment in making decisions. This both describes how a best-of-class enterprise thinks through safety issues and creates a basis for the CPSC to take action against “bad guys”. The rules can sacrifice some complexity and even some coverage in favor of ease of understanding in order to assure practical effectiveness.

Specific comments:

a. The Five Steps approach to designing a “reasonable testing program” creates a mega-bureaucracy, but to what end? Is this being created because the CPSC thinks it is necessary to solve a known safety problem or crisis, or just to accommodate a badly-written law? I think it’s the latter, and thus I believe it is appropriate to consider the new mega-bureaucracy to be a misdirected tax we will pay (to testing companies and others) annually. I think that’s bad government policy, as I think taxes (if necessary) should be paid to the government, not to private parties. Notably, the five steps do not include any advice on supply chain management. The issues in supply chain management (addressed in part in a different list in B.4.) are the source of most non-design legal compliance issues. A testing-focused set of guidelines is unlikely to change safety statistics, in my view.

b. I am blown away by the list of items subject now to GCCs outside children’s products. This completely escaped my attention previously. I think this will shock a lot of people. Again, this is a most unwelcome creation of new bureaucracy that is unlikely to serve any safety purpose. It is not designed to solve a real problem and thus cannot be justified.

c. The guidance makes the following distinction: “regulations concerning reporting, recordkeeping, inspections,: guaranties, certification, or tracking labels are not ‘similar’” but “any requirement of a rule, standard or ban under another act enforced by the Commission other than the CPSA that requires a warning or instruction, or specifies the form thereof, is similar”. How are manufacturers supposed to figure this out? What’s an “instruction”? Why is a “tracking label” not “similar” but a “warning” is “similar”?

d. In the section entitled “Will the Commission Require General Conformity Certification that a Product is Not Subject to a Ban?”, the guidance articulates a rule that everything within a class of products subject to a ban must be tested to back up a GCC. This will significantly increase costs but may not contribute to safety. The better rule is again to leave it to the reasonable judgment of manufacturers, as this will retain a focus on compliance, rather than testing for compliance. Overtesting, for instance for phthalates, will hurt small businesses disproportionately. If a business can organize its affairs to comply, they should be rewarded, not subjected to the same costs of companies less capable of managing their compliance obligations.

Overtesting and other bureaucracy that is not focused on safety will tend to punish U.S. small businesses in the international marketplace. Many companies, like ours, make a significant market outside the U.S. where our competitors do not have to follow U.S. rules to compete in those foreign markets. Overtesting for the U.S. market, or barriers like retesting for changing suppliers, will tend to create a long term cost advantages for foreign companies in foreign markets, reducing the ability of U.S. small business to enter foreign markets or remain competitive there. [Some members of the toy industry are advocating for international harmonization around U.S., rather than attempting to get U.S. standards and practices to become more rational. This "race to the bottom" can do tremendous damage - we need to rise above and set up a system that works but costs a lot less.]

e. The guidance should differentiate treatment of ink under the L-I-P rules and should state plainly the basic rule that if the can says “ink”, it’s ink and is not subject to the L-I-P test requirements.

f. The rules on retesting for a change in manufacturer need to be loosened. The guidance strongly favors mass market companies for their economies of scale and creates a barrier preventing or inhibiting small volume manufacturers from lowering their manufacturing costs. It goes without saying that lowered costs cannot sacrifice legal compliance or the duty of care toward consumers. It rarely does, in fact. The requirement for retesting will significantly hurt small businesses, however. It is important to note that changes in manufacturers is the most common reason for a change in components. For companies with stable product lines, swapping of components may not be very common. In our business, it is rare to change a component and not change the factory. Thus, we will gain little advantage from the rules focused on switching out components.

g. In Section B.2, the guidance strongly encourages annual testing. This will hurt small businesses. Our company’s focus is on producing safe and legally compliant products. We tend to focus on those issues that might affect safety or legal compliance. In our case, few things change in our manufacturing processes that would affect either safety or compliance over time. Thus, annual testing is a waste of money and rarely provides useful information in the administration of our business. If you test and test and test and get the same results each time, what is likely achieved by the next test? Again, the guidance should be focused on substantive safety compliance, not substantive testing compliance. The ONLY solution that will work for all companies in all circumstances is a rule dependent on good faith and best judgment. The principles outlined in B.4. form a good starting point on principles of supply chain management for this purpose.

h. The concept that someone can track the myriad different testing cycles by the components in a product, for most businesses, is a fantasy. In addition, the guidance notes that it may make sense to simply retest the whole product on a regular schedule “a means of simplifying cost, administrative burdens, or other factors.” In other words, the CPSC concedes that the market will not likely accept this relief. The scheme is unworkable as a practical matter. The CPSC should not put out rules it knows won’ t work.

i. Small volume is not best described as 10,000 units. Remember, there are 300 million people living in this country and more than 100,000 elementary schools. TRU won’t sell a product that sells only 10,000 pieces per year in its stores – and that’s just one outlet. The better definition would be 100,000 pieces or at a minimum, 50,000 pieces.

j. The guidance confuses the purpose of testing for compliance with the purpose of MAQL testing/inspections. Testing for MAQL (Minimum Acceptable Quality Levels) requires a MILSPEC sample size. This is appropriate because you are usually looking for defects in manufacturing, not legal compliance issues. In my experience, most if not all defects that have legal compliance implications are managed adequately with a single sample. Think of lead-in-paint, for instance. Multiple samples pulled from the same lot will NEVER produce different test results unless there are two or more sources of paint being used. That’s so rare and unexpected that it cannot justify regular testing of multiple samples. As with most of this guidance, the variance from the standard approach should only be justified by a real need, nothing less.

k. I must admit that while I find the rules on component testing helpful, I cannot help but think that they are making the CPSIA testing regime into a sham. A thick bundle of component tests performed at different times, in different labs, for a patchwork quilt of standards, will defeat the CPSC’s, Customs’ and our customers’ best efforts to understand them. If the purpose of the testing is not to communicate information, then what are we trying to achieve? The absurdly complex result from the component testing rules may bring relief to small businesses but at a high cost – by turning the entire testing scheme into a “check the box” exercise for manufacturers, dealers and regulators. If that’s what this is all about, why is anyone contending that children are not safe and need all these tests to be “safe”? This scheme is simply a by-product of writing rules to implement a mis-focused law, resulting in misguided rules that don’t make a lot of sense for their original purpose, rendering the entire system an embarrassing mess. Rather than burn in a terrible legacy of high costs, incomprehensible rules and test reports that cannot be interpreted, why not rethink the system from scratch and come up with rules responding to real, known problems, and leaving everything else to the best judgment and good faith of manufacturers? After all, without any additional regulation by the CPSC, every manufacturer is already subject to a common law duty of care. Why not simply describe minimally some basics of a duty of care and let the market sort out the rest, reserving the right to regulate in greater detail as real dangers are identified?

l. The sample size rules on lead-in-paint will not work for products purchased through trading companies. This is a somewhat complex subject that requires more details than I can provide in this space right now (it’s late!). Again, there needs to be some recognition that the general purpose of the legislation is to get people to test for lead-in-paint. If so, why not leave the rules on this to the best judgment of manufacturers when facing the de minimus paint issue? These instances are not likely to be true human health issues anyhow. The CPSC should also consider a de minimus rule on lead-in-paint to avoid the massive and wasteful losses from recalls like the Sarge cars in 2007 (over 400,000 units recalled because of two bad cans of paint used for detailing the cars). If you can’t obtain enough paint from one sample to perform the test, perhaps the amount of lead at issue is simply not worth worry about!

m. The guidance (logic) on one-of-a-kind products (which allows the manufacturer to exercise judgment as to whether versions are “the same product”) should apply to all manufacturers and all products. That is, manufacturers should be free to exercise this judgment on all products to simplify their testing without making any compliance sacrifices. This is something they can likely do with great insight. Consider, for instance, a manufacturer of 3-D topographical maps: do they need to test each different map or can they consider each variant the same “product”? The rules should permit this reasonable judgment by ALL manufacturers.. This will save many companies a lot of money. They are waiting for the CPSC to say it’s okay, and then they can start grouping test reports to save money. This will be a big win for small businesses, if accepted by the CPSC.

n. The CPSC should put out a FAQ about the formation of groups for testing purposes. In other words, they should bless companies or trade associations testing on behalf of groups of users of components or materials.

To sum up, the rules are helpful but would be much better if refocused on real safety issues, if shorter and less complex, and if they were more reliant on the good faith and best judgment of manufacturers based on common sense principles of duty of care.

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CPSIA – Testing Guidance Comments

CPSIA – WSJ’s 6th Editorial BASHING the CPSIA

REVIEW & OUTLOOK

NOVEMBER 7, 2009

Congress’s Brass Knuckles
Another casualty of the lead toy ‘safety’ law.

The wheels on the bus won’t go ’round and ’round in many playrooms this year if the Consumer Product Safety Commission has its way. On Wednesday, the Commission voted against a petition to exempt small pieces of brass used in the wheels on toy cars, tractors and buses from draconian lead standards. The fiasco is one more sign that Congress must address the chaos created by its 2008 law regulating lead in toys.

Lead is a typical component of brass but poses minuscule risk to children through toys. As the CPSC’s own staff remarked, “the estimated exposure to lead from children’s contact with the die-cast toys would have little impact on the blood lead level.” But no matter, the language of the law says the Commission can’t consider risk in granting exclusions. Any potential absorption of lead at all is grounds for a ban, despite its presence in other common brass fixtures kids get their hands on regularly, like doorknobs and keys.

Democrats in Congress have insisted that problems with the law they wrote are the fault of the CPSC charged with implementing it. How’s that going? Following the Commission’s 3-2 vote against the brass exemption, CPSC Commissioner Anne Northrop noted that the decision not to grant a brass exemption shows that “the Commission does not believe there is any [flexibility] written into the law.” Without action from Congress to address the chaos it created, Ms. Northrop said, “More small businesses will be forced to shut down.”

CPSC Chairman Inez Tenenbaum has insisted that changing the law would be “premature.” Yet it has already been more than a year of bedlam for manufacturers and retailers negotiating these rules. In February, the CPSC’s one year stay of enforcement on testing will expire, opening the field to more crackdowns on small businesses.

Many of the worst problems were apparent when the bill was written but lawmakers ignored the warnings in order to satisfy Naderite interest groups. Democrats have refused to fix this mess, at great cost to businesses, and further underscoring government’s reputation for unfairness and incompetence.

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CPSIA – WSJ’s 6th Editorial BASHING the CPSIA

CPSIA – CPSIA Casualty of the Week for November 2

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 2:

The Final Adventure of Whimsical Walney:
CPSIA Claims another Home Crafter

Dana Lardner started Whimsical Walney in 2004 to showcase handmade products with the theme “let children play.” She sold items such as kids’ fabric books, foreign language-focused clothing, and outdoor blankets on her website. Dana always focused on product designs that promoted a child’s imagination. In April 2009, almost a year to the day that she reintroduced Whimsical Walney with new branding and a new website, Dana shut down her business because of CPSIA.

“I decided to close my business because I had planned to introduce a new line of products. I was going to sell off existing inventory and then discontinue several of my old products to focus my business and build my brand. Because all my products would be defined as “children’s products” under the CPSIA, I would be required to test everything for lead and some for phthalates. It would have been cost prohibitive not only to test products that I don’t intend to continue selling, but also to test yet-to-be-released products whose acceptance in the market is unknown. I know that there was a stay of the testing requirement, but the writing was on the wall for businesses like mine. From the tracking label requirements to the prohibitive penalties, I just could not take the risk of staying in the children’s product market.”

Dana has shifted her business to focus on products specifically designed for adult consumers such as handmade housewares and accessories. Unfortunately for kids, Whimsical Walney is yet another product line and small business that has left the children’s product market – not because any of the products were unsafe, contained dangerous levels of lead, or could anyway harm a child, but because of the inability to concurrently market and build her business while also managing the undue overhead of the irrational provisions of CPSIA.

Dana started a CPSIA blog at her website: www.WhimsicalWalney.com.

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.

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CPSIA – CPSIA Casualty of the Week for November 2

CPSIA – Further Developments in Brass Bushings Case

There have been a couple further developments in this case:

a. Both Anne Northup and Nancy Nord put out press releases today lambasting the Learning Curve decision. The (apparent) polarization of the debate has now gone very public. The shame of it is that the Republicans seem to be the ones advocating for common sense while the Democrats continue to support decisions that would puzzle the man on the street. There is no reason that common sense should divide the Commission. Of course, it would be wrong to accuse the Democratic appointees of lacking common sense. Still, it’s hard to argue with the position of the Republicans from the perspective of real world problems and risks. At least they are speaking out against Congressionally-sponsored folly compelling the agency to hold hearings about how many angels can dance on the head of a pin.

b. Commissioner Bob Adler called me today to retract his accusation discussed at the end of my last blogpost in a short section entitled “Interesting Side bar”. Mr. Adler was contacted by representatives of Learning Curve who were upset at the idea that they had been selling toy cars in violation of the ban. It turns out that this is not true. When Mr. Adler became of his mistake, he (decently) sought to correct the record immediately. For that, he is to be commended. I want to make clear – the testimony at the LCI hearing that I reported actually took place BUT the substance of Mr. Adler’s remarks was incorrect. Mr. Adler expressed his regret to me, and asked that I pass it along to you.

You have to admit that this is rather ironic. Mr. Adler accused Learning Curve of exhibiting “bad optics”. Bad optics, indeed. The source of his misinformation was a staffer to one of the Commissioners who bought a LCI car from Amazon.com and assumed that this meant that LCI was violating the ban. This staffer took it upon himself/herself to pass on this assumption as a FACT to Mr. Adler. Actually, the inventory for sale on Amazon had been bouncing around for some time, and did not come from LCI after the ban went into effect.

To me, this mistake (and that’s all it was) demonstrates several important points:

• The CPSC has a VERY HARD TIME understanding supply chains. There may be a tendency among some people working at the CPSC to see the economy as a very simple, linear beast. It’s not. This situation illustrates the danger is making assumptions about how the economy is organized or underestimating the complexity of how goods go to market. Let’s not forget the immortal words of Felix Unger in The Odd Couple TV Show: “When you assume you make an ass out of u – you – and me.”
• To a business person (like me), it feels so often that the CPSC holds businesses guilty until proven innocent. Mr. Adler made a mistake, and that’s to be expected of all of us mortals, BUT it feels too easy for the CPSC to judge us without digging too deeply into the merits. Maybe the business community isn’t a nest of vipers. Just a thought. . . .
• The Commission has a tremendous ability to do harm. This (minor) incident will certainly not enhance LCI in any way. The Commission treads with elephant feet – it needs to try to be a ballet dancer.
• The problem of “bad optics” is resident at the CPSC today. The issue of tone and appearance and how they affect market participants – that is VERY deserving of consideration at the CPSC TODAY.

I hope this incident is reviewed carefully at the CPSC for “lessons learned”. Mr. Adler’s culpability here is not, IMHO, the issue. The bigger concern is the hair trigger, the guilty-until-proven-innocent atmosphere, the power to do harm, the effect of words and actions and inactions on behavior in the market. The Commission needs to pause for a moment and use this incident to do some soul searching. If that exercise is productive, we will all be grateful that this mistake took place.

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CPSIA – Further Developments in Brass Bushings Case

CPSIA – Scary Brass!

In anticipation of the Learning Curve decision about “dangerous” brass bushings, I thought I would provide some information about the uses of brass in society and its current restrictions.

According to Wikipedia, brass has been widely used since prehistoric times. Of course, brass is used in many places: “Brass is a substitutional alloy. It is used for decoration for its bright gold-like appearance; for applications where low friction is required such as locks, gears, bearings, doorknobs, ammunition, and valves; for plumbing and electrical applications; and extensively in musical instruments such as horns and bells for its acoustic properties. It is also used in zippers. Because it is softer than most other metals in general use, brass is often used in situations where it is important that sparks not be struck, as in fittings and tools around explosive gases. Brass has a muted yellow color, somewhat similar to gold. It is relatively resistant to tarnishing, and is often used as decoration and for coins. In antiquity, polished brass was often used as a mirror.” Other sites tout brass for its utility for plumbing, its most ubiquitous use.

It’s obvious that children will encounter brass regularly in their daily lives, like when they handle doorknobs or handle keys. The even-handed CPSIA, as administered by the new “common sense” CPSC, seems nonetheless to place an unusual burden on those knuckleheads like me still left in the children’s market. WE are not allowed to use brass with more than 0.03% lead content by weight (300 ppm), falling inevitably to 0.01% lead by weight (100 ppm) in two years. Here are a couple more “fun facts” about brass: brass typically has 2% lead by weight AND 90% of brass alloys (including bronze) are recycled. In other words, it is hard to control the lead content of this environmentally-friendly metal. Hmmm.

We know that brass pipes are used for plumbing everywhere, even in Mr. Waxman’s house. Children will come in contact with brass when they wash their hands in warm water that travelled through brass pipes or drink from the drinking fountain at school. Oops, did I mention high levels of lead in drinking fountains? Like the 92% in LA Unified School District Schools that remain unrepaired to this day? Sad but true. The LAUSD situation is apparently not NEARLY the crisis presented by brass bushings or brass connectors in toys, clothing or shoes. The CPSIA in its infinite wisdom has determined that children’s businesses should close or their owners should go to jail if they use such things – but other uses of brass in daily life are fine, just fine.

But what about brass in those other uses – are they restricted at all? According to Wikipedia, keys must now contain less than 1.5% lead by weight in California to avoid Proposition 65 labeling. To clarify, keys with greater content than 1.5% are still legal to sell in CA but would need to be labeled under Prop. 65. The approved lead content in keys is 50x the legal limit on lead content in brass in children’s products. Yeah, that makes sense. And in California and in Vermont, brass plumbing fixtures and pipes used to convey water for human consumption must have not more than 0.25% lead by weight by January 1, 2010 – 9x the legal limit on lead in brass in children’s products. [The CA limit is a weighted average, so individual components can exceed this limit.] I do not believe this law requires retrofitting existing California’s pipes. The current limit on lead in California pipes is 8% by weight, a mere 267x the legal limit on lead content in brass used in children’s products.

I cannot find any other restrictions on brass in any products in our country. I probably missed something but no restriction will exceed the zeal of the CPSIA. It is unique as a regulation, both for its sense of sanctity and its overreaching, penal ineffectiveness. Trumpets don’t have legal lead limits, despite being made of brass and intended to be mouthed. Leaded fountains remain in schools across the country, and bad plumbing is everywhere. Nonetheless it is the children’s product industry alone that must endure upheaval from the loss of brass as a basic material. Need I mention that brass was at the heart of the pens crisis earlier this year?

When the CPSC makes its inevitable decision to shut down Learning Curve’s business over its use of brass bushings, they will intone that it’s not their fault, the darned law made ‘em do it. The leadership will then later issue some press releases about vigorously enforcing the law and making everyone safe. There will be no acknowledgement of their role as a tool in the wanton destruction of a valued industry. Not their fault. . . .

Wake me when the nightmare is over.

Read more here:
CPSIA – Scary Brass!

CPSIA – Send Me Your Notes about Disappearing Products

We need some data about your sense of regret and loss over the disappearance of favorite products. We are interested in everyone’s feelings, so feel free to share if you are a consumer, a teacher, a school administrator, a parent, a store owner, a distributor, whatever. We want to know about CPSIA-related product disappearances. Are you finding it harder to find that educational product you know and love or need, that t-shirt your daughter wants, that piece of jewelry you wanted to buy for a birthday, that special hair bow you need to make your baby sparkle? Have you lost suppliers, supply items, product lines you depend on? What are the casualties brought on by the CPSIA?

Please send me your notes. You can leave them as comments to this post, or email them to me at rwoldenberg@learningresources.com or fax them to me at 847-281-1730. Please provide your name and address, as well as a return email address.

We need to make ourselves heard. Please ask friends, family and associates to answer this call. Thank you!

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CPSIA – Send Me Your Notes about Disappearing Products

CPSIA – More New Standards to Help Put The Fork Into Small Business

Perhaps you are aware that the Retail Industry Leaders Association (RILA) and British Retail Consortium (BRC) are working on new “Global Standards for Consumer Goods“. RILA presented this new construct to the CPSC on October 5 and were warmly greeted for their efforts. According to the Product Safety Letter: “Tenenbaum termed the effort ‘encouraging’ and urged the group to include details in upcoming comments on CPSIA-related reasonable testing programs. She said it is good that the release of the RILA program and the pending comment period (slated to open in November) are likely to coincide. ‘The timing could not be better,’ she told the visitors. She also noted the power of retailers to push standards: ‘The way that you all could fan out in China would really facilitate the process exponentially.’ Adler said, ‘What I heard is terrific. You’re all ferocious competitors and will remain so. But you’re not going to compete on safety.’ Also pointing to the power of retailers to impose standards, he called regulators and retailer allies.

A quick glance at these standards makes clear that they are a death sentence to small businesses. The practical impact of the rules will be to bifurcate the market for importers and factories – suppliers to mass market and suppliers to the rest. You won’t be able to be in the mass market camp without complying with these standards. There won’t be any halfway point – it will be like a pregnancy test, you comply or you don’t (pregnant or not pregnant). Of course, this also means that you must incur a HUGE cost to sell even one product into the mass market. This barrier to entry will make the mass market off-limits to small fry. Goodbye American Dream?

I find it interesting that the CPSC jumped at the chance to support these standards. Where did the standards come from? The mass market, of course. RILA is a mass market enterprise, designed to represent the interests of a few large (LARGE) retailers. Ditto for the BRC. Notably, when the CPSIA was in gestation in 2007/8, the folks behind the law reached out to the likes of Wal-Mart to ask about the feasibility of their brilliant safety innovations. By several reports (to me directly), Wal-Mart and their ilk expressed little concern about their ability to comply. Case closed. Ahem, what about the rest of us? Congress overlooked that little detail, figuring that what Wal-Mart can do, the rest of us can do, too.

Have we learned NOTHING in the last 18 months? Please don’t make me answer that one.

A quick glance at the standards reveals that they are really only suitable for mega-businesses, particularly those that have committed to ISO 9001 and the like. This group does NOT include EVERYONE. The sections on Risk Management and Management (check out 3.8 Traceability – yeah, FULL traceability is required) are particularly out of reach for small businesses. Some of the new standards have already been addressed by initiatives in recent years to address “Code of Conduct” issues, like ICTI-CARE, and will probably be okay (within limits). But the RILA/BRC standards go much, much further. The cost implications of these standards for small business are breathtaking.

If a “damn the consequences, don’t bother me with the details” rush to implement these new standards takes hold, there will be little reason left to try to be a small business in America. After all, standards like the RILA/BRC global standards are a classic glass ceiling to growth. I hope somebody takes note of the impact of these awful standards on small business, the largest creator of jobs in America. Small business needs an advocate, and these days, it’s hard to identify anyone in Congress that gives a darn. If no one will rise to the occasion, I guess we can always open up a sandwich shop. That’s about the only option that will be left for small business. Making products, besides sandwiches, has become a very unrewarding pastime.

Read more here:
CPSIA – More New Standards to Help Put The Fork Into Small Business

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