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CPSIA – Rachel Weintraub’s Distortions Justify Dem Refusal to Amend the CPSIA

Democrat tool Rachel Weintraub is never at a loss for words on the topic of CPSIA and true to form, she has today published more misstatements, distortions and innuendo to bolster Dem efforts to block amendment of the CPSIA.  In the space below, I rebut Ms. Weintraub’s “view of the world”.  It is worth noting that a much more erudite explanation of the pending CPSIA Amendment (ECADA) was published side-by-side with Weintraub’s smear campaign, namely ” Fix bill would make products safer, not less so ” by Eric Stone.  For those who don’t know Eric, his credentials include more than 33 years at the CPSC, including as Legal Director in the Office of Compliance and as Acting Director of the Recalls and Compliance Division.  He faced the real questions of safety at the agency and made the judgments subject to the scrutiny of the public, Congress and the legal system.  As Eric Stone notes, ” In crafting its new safety bill, Congress proved that moral outrage and good intentions do not necessarily result in good law .”   Amen. My responses to Ms. Weintraub are in blue and red . Don’t set safety clock backwards for kids products By Rachel Weintraub Florida Sun-Sentinel July 24, 2011 The House Energy and Commerce Committee will soon vote on HR 1939 , the “Enhancing CPSC Authority and Discretion Act of 2011,” or ECADA, a bill that guts the Consumer Product Safety Improvement Act, a vital law that keeps unsafe toys and other dangerous products off the shelves. RW – It is a typical ploy of the Lefties opposing amendment of the CPSIA to frame everything in terms of toys.  Toys are but one category affected by this awful law, but by using it as the CPSIA poster child, Weintraub puts you where she wants you – afraid of ECADA’s potential effects on innocents by “evil toymakers”.  Aside from the fact that “evil toymakers” are no more or less prevalent in our society than any other category of “evil” something-or-anothers, Weintraub’s characterization greatly distorts what CPSIA really is.  CPSIA applies to ANYTHING that is intended to be sold to children.  The list is well-known but, as a reminder, it includes t-shirts and shoes, carpets, pens, ATVs, bikes, books, science kits, DVDs and CDs, furniture, brass musical instruments, rhinestones and so on.   Focusing on toys is just to get you going. Congress passed CPSIA by an overwhelming, bipartisan vote in 2008, and President Bush signed the bill into law that year. After a year of careful deliberations, CPSIA’s passage followed a record number of recalls of children’s products that injured and killed children. The measure gave new life to the U.S. Consumer Product Safety Commission, a weakened federal oversight agency that had failed in its meager efforts to protect the public’s safety. The law represents a giant step forward in protecting America’s children. RW – Another defensive ploy of the CPSIA defenders is the “infallibility of Congress” argument, namely that everyone voted for it so why is anyone against it now.  This argument only makes sense if you don’t think about it too much.  For one thing, the CPSIA was passed in anger.  Have you ever said or done anything in anger that you later regretted?  That point aside, it is important to consider that this law was devised by a Dem-controlled Congress dominated by the strong-willed Left Winger Nancy Pelosi of San Francisco.  Pelosi takes no prisoners and tolerates no dissent among her Dem followers.  The law was dictated by Dems to the Republicans, as insiders acknowledge, and was passed just ahead of the Obama wave in the Presidential election cycle. The votes of Republicans for such an extreme law cannot properly be deemed “voluntary” in any conventional sense. Everyone knew this law was a great chess move by the Dems, forcing Republicans to go along, and even President Bush got into the act by agreeing to sign to protect his party.  Weintraub’s distorted rewrite of history is a good illustration of the rule that history is written by the victors.  Consider the source . . . . CPSIA currently requires that children’s products be tested for safety before they arrive on store shelves — something that many consumers already assumed was happening. RW – Another oft-repeated consumer group assertion, never proven.  It has always struck me that this argument is just transference. I have no doubt that folks like Weintraub always wanted this, and simply assume that everyone shares their “common sense” desires and fears.  It sets limits on lead in children’s products, sets infant product and toy safety standards, and bans certain phthalates, which are chemicals linked to a variety of health risks. The law also creates a much-needed public database where consumers can easily report and research product safety problems. We have already seen the successful results of CPSIA. Most recently, on June 28, 2011, new crib standards went into effect, which means that cribs sold in stores must meet the most protective safety standards in the world. This will give parents and caregivers the long-overdue peace of mind that when they purchase a new crib, it will be a truly safe place for their baby. Some small toy manufacturers have raised concerns about the costs of testing their products to the new safety standards. These concerns, and narrowly tailored ways to reduce the costs for very small children’s product manufacturers, are useful to discuss. RW – The nauseating cynicism of this remark cannot go unaddressed.  Ms. Weintraub argued for two years that the agency “needed time” to implement the law and to work out the kinks.  At that time, she and the other Dems argued that there was “nothing wrong” with the CPSIA that the CPSC couldn’t fix in its implementation and that consideration of legislative fixes was not merited until that process was complete.  Three years later we are still subject to this on-going implementation . . . that is, those of us who haven’t gone belly up.  Weintraub expressed little interest in “discussing” these issues way back then.  Later, Ms. Weintraub tried to justify Henry Waxman’s lame-o effort at a cursory amendment of the CPSIA that offers negligible relief.  Here is an excerpt from her House testimony dated April 28, 2010 (15 months ago) on this topic: ” Special provisions for small businesses includes allowing certain businesses to be exempt from third party testing when the Commission finds that reasonable testing methods assure compliance with relevant consumer product safety standards . We believe, however, that the term “small batch manufacturer” is defined too broadly . We commend the fact that the language does not allow small batch manufacturers to obtain exceptions for durable infant or toddler products or lead paint, cribs, pacifiers, small parts, children’s metal jewelry, baby bouncers, walkers and jumpers. Because of the fatal nature of the defects in many of these types of products, as demonstrated by recalls in the past, all manufacturers should be required to meet the same safety and testing requirements. We could not accept a broadening of either the definition of small batch manufacturer or a limitation of those products not covered by this provision .”  [Emphasis added]  The CPSC never did identify any such “reasonable testing methods” even though the “hunt” has gone on for three years now.  Even Ms. Weintraub must blush when she tells you that such issues deserve “discussion”. Unfortunately, instead of fixing concerns of the truly small manufacturers, HR 1939 goes too far and rolls back important consumer protections created by CPSIA in a number of ways. HR 1939 reduces safety testing for children’s products by undermining independent safety testing requirements for most children’s products. This would place us in the same dangerous situation we were in 2007 and 2008, when millions of beloved toys were recalled because of excessive lead paint, strong magnets that when swallowed in multiples could rip apart a child’s intestines and chemicals that turned into the date-rape drug when swallowed. RW – The issue in 2007 and 2008 was NOT that the law did not protect consumers.  In fact, if anything, the issue was that the agency did not (adequately) protect consumers. The bad behavior that prompted the CPSIA was clearly illegal, as the agency could act to enforce if it so chose.  After all, they issued hundreds of recalls under prior law.  Please pause and give that a little thought.  Weintraub’s argument is pure urban legend, but helpful urban legend for the tall tale she is trying to sell. It is also worth noting that Gib Mullan, the then head of Compliance at the CPSC admitted during the second session question-and-answer session at the CPSC Tracking Labels hearing on May 12, 2009 that the agency had never seen the strong magnet hazard evidenced by Magnetix previously and at first mistook it as a “small parts” issue.  No law can prevent the unknown and the not previously experienced from happening.  That is a safety fantasy.   In addition, the “date-rape drug” incident involved an unapproved change in materials by a factory which no testing regime would have caught (CPSIA or not). The safety issue was completely unprecedented and the product was immediately recalled without argument by a very safety conscious toymaker.  Only in Weintraub’s self-serving world is this incident useful . . . to terrorize.  Under most circumstances, it should be held up as a great public-private partnership and a sign that there are good people in the industry. Under this bill, virtually all toys would no longer have to be tested for safety before they come into our homes — these products would be safety-tested only if and when CPSC undertook a laborious and complicated series of steps, including a cost-benefit analysis that emphasizes testing costs over health and safety benefits. RW – Weintraub here spurns the President’s Executive Order which MANDATES cost-benefit analysis by the CPSC.  This arch position conforms to the surprising world view of Bob “Over My Dead Body” Adler and Inez Tenenbaum and certainly suits their Dem agenda.  It is, unfortunately, an affront to the President’s order.  It is also economic nonsense .  The OPPOSITE is correct, at least according to the Nobel Prize committee which awarded the 1991 Economics Prize to Ronald Coase for his work proving the need for regulatory cost-benefit analysis.  Mr. Coase proved that ignoring cost-benefit analysis exposes all of us to the risk of being impoverished by government regulation.  Thanks, Rachel, for the great idea! It is unclear if CPSC would ever have the resources, time or information to complete what this bill demands of them, and it is therefore unclear if toys would ever be subject to independent testing. Independent testing not only prevents unnecessary injuries to children, but it can also prevent costly recalls for the manufacturer — a benefit to consumers as well as manufacturers. RW – Here Rachel spins an even bigger tall tale, that preserving mandatory testing is in manufacturers’ best interests.  Apparently she is the only one who knows this.  The people who actually work for companies affected by this rule have been howling for three years-plus.  Here Rachel sets us all straight – the problem is we’re wrong and she’s right.  Oh, now I see it!  Her reasoning relies on the urban legend that in the absence of mandated testing, testing will cease.  That’s nonsense and is not supported by data.  We have been testing since I got to Learning Resources, more than 20 years ago.  So, if mandated testing is necessary to force testing, why were we testing way back then?  Simple – we wanted to know we were complying with the standards.  Standards drive testing, and enforcement can make testing prevalent, even universal.  Mandated testing just raises costs, unfortunately.   I have previously addressed this issue in a blogpost. HR 1939 increases the amount of lead that would be permitted in children’s products. CPSIA currently requires that all parts of children’s products comply with a single, unambiguous standard for lead content. The proposed legislation would replace that clarity with a variety of standards that will be different depending on when the product was manufactured, the age of the child for whom the product is designed, whether it contains small parts and other factors. As a result, parents and other consumers will no longer have the confidence that all parts of all children’s products are safe for their children. Lead is a known toxin where even small amounts can be harmful by decreasing a child’s IQ. There is no reason why there shouldn’t be a single, strong standard that simply keeps lead out of children’s products. RW – No reason, huh?  Space does not permit me to reduce this absurd statement to rubble.  I have been writing about the many common sense reasons to modify standards for three years now.  ECADA as a matter of fact does very little to change standards except to codify some sensible concessions already made by the CPSC in stays applying to metals.  If you are terrorized by the prospect of bicycle licking or the horrors of playing brass instruments in the school band , ECADA’s changes will no doubt keep you up at night. Your fears are nothing that our proposed National Xanax Fund can’t address.  The idea that different standards for different products aimed at different ages of children are somehow “defective” flies in the face not only of common sense but also the regulatory tradition at the CPSC.  Before whackjobs began to dominate the safety discussion, and before the agency had its brain removed by Congress, the regulators were able to see the sense of crafting different rules for two year olds, six year olds and twelve year olds. And nobody thought the same rules should apply to rhinestones, pens, ATVs and books.  If you are an experienced parent, you might know something about the need to modify rules for different ages of children. I have tried to regulate teenagers with the same rules as toddlers and received some “pushback”.  And when I try to keep toddlers safe by applying sensible rules designed for teenagers, that doesn’t seem to work either.  HR 1939 undermines the effectiveness of the new crib safety standard. The bill would carve out a large exception to the bipartisan standard for cribs in child-care facilities. Under the bill, some child-care facilities would not have to replace existing fixed-side cribs even if the cribs violate the most basic crib safety standards — slats too far apart, non-compliant corner posts and failing mattress supports. Parents should be assured that the cribs their babies sleep in meet the strongest crib standards — both at home and in child-care facilities. The new, robust crib standards just went into effect for new cribs consumers can buy in stores and will apply to hotels, motels and child-care facilities in 18 months. Carving out child-care center cribs from this important protection moves the safety bar backwards. RW – I have tried to avoid biting on the bait of the consumer group attacks on ECADA for the innocuous and sensible crib rule changes.  It is in Ms. Weintraub’s interest to make you feel that there is some sort of evil cabal dominating the Republican Party which somehow induces them to play roulette with your babies’ lives.  Anyhow, it’s all a fiction but a helpful fiction to Ms. Weintraub’s purpose, namely to subvert efforts to amend the CPSIA.  Here is the “deadly” language that Ms. Weintraub protests so intensely: “(B) SPECIAL RULE FOR FIXED-SIDE CRIBS SUBJECT TO CERTAIN STATE OR LOCAL LAW REQUIREMENTS- Paragraph (1) shall not apply to a fixed-side crib that has not been recalled and that is offered or provided for use in a licensed child care facility (other than a family child care home) that is subject to the following requirements under the law of a State or a political subdivision of a State:  (i) The facility may not allow a child to remain in a crib for any significant amount of time while the child is awake, (ii) The facility may not place in a crib a child over the age of 16 months, (iii) An adult must be present whenever a child is in a crib.” Ms. Weintraub fails to deliver evidence that this exceedingly modest change could harm children based on actual injury data.  She just wants you to push the panic button.  ECADA only permits certain legacy FIXED SIDE cribs to remain in service.  I thought fixed side cribs were the “answer”.  Not if their inclusion in ECADA might help get it passed, apparently. HR 1939 allows the use of dangerous phthalates , which are hormone-disrupting chemicals that have been added to child-care articles like teething rings. This proposed bill would undermine CPSIA’s landmark protections against phthalates by allowing large, undefined exemptions to both the prohibition and interim bans on phthalates in toys and child-care articles. RW – Rachel again ventures into Whopperville to scare you about phthalates.  Let’s start by deciding how “dangerous” phthalates are.  Ms. Weintraub reasons that if (the infallible) Congress banned them, the chemicals are ergo dangerous. The law, in fact, only bans three chemicals permanently and has directed the agency to investigate another three.  On two previous occasions the agency has done just that . . . and concluded that phthalates don’t present a risk to children.  Ms. Weintraub omits to let you know that this provision was added to CPSIA at the last moment, without hearings or investigation, by California Senator Diane Feinstein of San Francisco and mentor to Nancy Pelosi.  Aha.  The science on phthalates is hardly an open-and-shut case – just watch 60 Minutes for perspective.  Ultimately, the greatest disservice to truth performed by Ms. Weintraub here is to distort what measly relief is being offered.  ECADA only allows us to stop testing components that cannot be touched or licked by kids.  That’s it.  The actual words:  ” ACCESSIBLE COMPONENT PARTS- Effective on the date of enactment of this Act, subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3) shall apply to any accessible, plasticized component part of a children’s toy or child care article.” HR 1939 undermines the new CSPC product safety database . This new database allows public access to consumer complaints about product safety problems while giving the industry ample opportunity to view and comment upon such safety-related reports before they are posted. The database, available at http://www.saferproducts.gov, just went live in March. It will help consumers research products, help CPSC identify emerging hazard trends and help prevent unnecessary deaths and injuries. HR 1939 would place onerous hurdles on those seeking to report a safety problem, thereby discouraging the sharing of potentially lifesaving information with other consumers, companies and the government. RW – Oy vey.  There has been so much written on this subject that I can’t bear to write it again.  Ms. Weintraub intentionally ignores any point inconsistent with her political agenda.  I will leave it at that, but feel free to pour over my prior writings on the database (tagged on the side of the blog) for further details. Consumers demanded and received strong product safety reform from Congress in 2008. Undermining these important product safety improvements puts all of our children at risk. HR 1939 will not protect our children from product safety hazards. Rather, HR 1939 rolls the safety clock backwards and creates huge and unnecessary loopholes in our nation’s safety net. RW – One last point, to quote Eric Stone :  “ECADA gives CPSC broader subpoena and investigational authority. Not surprisingly, opponents do not mention such provisions since they do not fit the ‘Republican-industry conspiracy’ narrative.”  I love the “Republican-industry conspiracy narrative” part.  You can see how that might work well for Rachel. Rachel Weintraub is director of product safety and senior counsel at the Consumer Federation of America in Washington, D.C.

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CPSIA – Rachel Weintraub’s Distortions Justify Dem Refusal to Amend the CPSIA

CPSIA – The CPSC Finds a New Way to Scr*w You

The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous.  Is it, really? Commissioner Nancy Nord points out that this decision was a compromise of a Hobson’s Choice nature: “I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change.” What was that last bit? Ummm, well, the ASTM is actually updating the F963 standard right now.  It will be done by year end. and as a result of the CPSC’s wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 – and probably necessary to test to the new standard, too!  Doesn’t that sound great?!  Now you can deliver TWO test reports when one might have sufficed.  But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one.  Just think of it . . . . Ms. Nord explains:  “When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating.” I no longer have a sense of humor, so you can rest assured that I am NOT making this up. Why the heck was the Commission in such a big, hot hurry to get this done?  Again, Ms. Nord explains: “We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays.” Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn’t want to vote for any more stays?  So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery.   The Dems on the Commission almost always vote as a pack.  Can you connect the dots? Not surprisingly, Nancy Nord can connect dots: “However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button.” Another Commission decision, another shellacking of the poor fools left serving children’s markets.  After three years of this torture, I am just not surprised.  When will our country wake up and notice this travesty?

Link:
CPSIA – The CPSC Finds a New Way to Scr*w You

CPSIA – Age Limits under the CPSIA

As the House continues to dicker over how to amend the CPSIA (yes, they will give it a go soon, rumor has it), I thought the website Woot.com neatly illustrates the absurdity of the arbitrary and over-protective age grading rules inspired by Congress and the maniacal CPSIA. [Thanks to loyal reader Ben for this story!] In this case, the subject is the magnet rules spawned by the 2007 Magnetix deaths.

Perhaps you remember that last year the CPSC “in cooperation with” a company called Maxfield and Oberton LLC announced a recall of “Buckyballs”, a magnetic ball toy for age grading issues. What age grading issues, in particular? To quote the CPSC: “The high powered magnets sets were labeled “Ages 13+” and do not meet the mandatory toy standard F963-08 (effective August 17, 2009) which requires that such powerful magnets are not sold for children under 14. Magnets found by young children can be swallowed or aspirated. If more than one magnet is swallowed, the magnets can attract each other and cause intestinal perforations or blockages, which can be fatal.” [Emphasis added]

Woot.com sells this product and I love their spin on this safety “issue”:

“Buckin’ Magnets, How Do They Work? If you’re 14 or older, Buckyballs promise hours of addictive magnetic fun! If you’re 13 or under, they promise fatal intestinal blockages!”

They continue to explain:

When exactly does a child become an adult? Different societies have answered this question with different milestones . . . . Now the Consumer Product & Safety Commission has settled it once and for all: a child is an adult when they can be trusted not to accidentally swallow tiny but powerful magnets. This past spring, the CPSC told the Buckyballs people that they had to yank their compulsively play-withable little magnetic to- uh, ‘desk decorations’ to re-label them ‘Keep Away From All Children’. It seems the previous label of ‘Ages 13+’ did not comply with consumer guidelines that ‘such powerful magnets are not sold for children under 14′, because even 13-year-olds were liable to swallow them and suffer perforated or blocked intestines. Yep, that year from your 13th birthday to your 14th makes all the difference. ‘Consumers should take the Buckyballs® high powered magnets away from children under 14 immediately,’ quoth the CPSC. Kids swallow the darnedest things!” [Emphasis added]

Indeed.

Of course, this illustrates the U.S. safety mania at its worst and its most damaging. Is this product actually dangerous? If it is, why does the CPSC allow it to remain on the market? Does labeling actually “solve” the problem? If there really is a difference developmentally between a 13-year-old and a 14-year-old on mouthing toys, I think it is incumbent on the CPSC to tell the public what it is. In the CPSC publication, “Which Toys for Which Child“, the agency acknowledges what is generally accepted as true, namely that children over three don’t put objects in their mouth: “Most children in [the 3, 4, 5 age group] can begin using toys with smaller components. If child is still mouthing objects, select toys with without small parts.” Duh. But 13-year-olds? This is regulatory hypocrisy at its worst.

As long as the mania continues, and as long as Congress continues to try to meddle either legislatively or by applying political pressure to the agency, we will continue to see economic victims and economic losses. Jobs will be lost. And the safety zealots will never be able to prove that anyone is safer.

The only thing that will be beyond dispute is that there are fewer companies making fewer products for sale into a smaller market. In other words, the law and the CPSC will have engineered their very own mini-recession.

Nice!

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CPSIA – Age Limits under the CPSIA

CPSIA – Extinct Toys, Thanks Congress!

In the latest effort to make the deaf hear and perhaps even to raise the dead, a member of the HTA has reconfigured its website to highlight “Endangered Toys” and “Extinct Toys”, all courtesy of your Federal Government. Thanks, Congress!

There are seemingly buckets of Endangered Toys (currently in stock but can’t be reordered) and Extinct Toys (out of inventory and can’t be reordered) on this website. Ooooh, they’re so dangerous, like “Grandfather Lorenzo” from darkest Germany (endangered) or the “Post Express Van” also from the rogue state of Germany (extinct). Can’t allow children to play with toys from Germany, that’s for sure. . . .

Oddly, there’s no sign that anyone anywhere was ever injured by these toys. They’re just gone now because of the “unintended consequences” of the CPSIA. [Btw that expression, "unintended consequences", makes me want to throw up. Unintended, my ear. This is exactly what was intended, and Dem staffers have repeatedly admitted it.]

The zealots who brought this plague on you have practically grown callouses patting themselves on the back for making your businesses so darned safe. Niggling details like testing costs, loss of valued products, layoffs are all sloughed off as a “necessary” expense in making everyone safer. This flawed assertion is based on the self-evident conclusion that their law made us safer. Obvious, so obvious. I understand their point since I know they can’t comprehend numbers or data. That’s why they’re politicians, after all. WERE they able to tote up a number or two, they might not be so quick to assert that we actually are safer, given that a few tedious hours of analysis would reveal that there are only THREE known (asserted) lead injuries in the last 11 years in this country, and only ONE documented death. That’s it, barely a day’s worth of death and maiming from pools. Hard to reduce injuries from nothing to less than nothing.

It hardly matters, because they cast the die for us, and have no intention to listen to our little problems. This explains why they blandly put out a rule for comment last week which states that our business will have to pay $15 million a year in testing costs. Gotta be safe, ergo if we don’t test the way they say we should, our customers won’t be safe.

In fact, if we DO test as they want us to, I GUARANTEE everyone will be safer than ever. That’s because we will be out of business and they won’t be able to buy any of our products.

Try not to forget to say “thank you” on November 2 to all those people who have stood between the CPSIA and its repair. You should have plenty of time to figure out how to thank the people who are committed to putting you out of business. You sure won’t be selling toys.

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CPSIA – Extinct Toys, Thanks Congress!

CPSIA – Schylling Penalty Update

You may recall that I have written about the excessive penalty inflicted on Schylling for old and cold lead-in-paint infractions in the amount of $200,000. These infractions did NOT result in injuries. [As I have noted previously, I have no firsthand knowledge of this matter, nor do I have any direct relationship to the principals involved in this penalty.]

Well well now, some of the more astute observers of the CPSC may have noticed that poor ole’ Schylling did not actually end up paying the excessive $200,000 penalty. No, that agreement was apparently REJECTED in favor of a new agreement signed on May 18. The new agreement, which is virtually identical to the original agreement executed by the CPSC on January 19 (but for a non-substantive paragraph 30 and an order attached at the end) DOUBLES the penalty inflicted on Schylling to $400,000. The agreement was published for comment in the Federal Register on June 2.

Whoa.

So what happened?

It’s not entirely clear. The original agreement was announced by press release on February 4 and notes: “The penalty settlement, which has been provisionally accepted by the Commission, resolves staff allegations that the company violated the federal lead paint ban regarding toys with surface paints containing lead above the 600 parts per million (ppm) legal limit applicable at the time, and failed to immediately report to CPSC information about the non-compliant toys.”

The press release goes on to quote Ms. Tenenbaum sternly admonishing Schylling for violations that occurred between June 2001 and May 2003: “Manufacturers, importers, distributors and retailers have a legal obligation to ensure that no banned products are introduced into or distributed in the U.S. marketplace, and to inform CPSC as soon as they become aware of information that must be reported under our laws. We will continue to penalize companies that do not follow these basic requirements.”

The normal procedure is for the settlement agreement to be published for comment in the Federal Register, but that never happened. Although the February 4th press release states unambiguously that the settlement agreement had been provisionally accepted by the Commission, something derailed the agreement and back to drawing board it went. It’s possible that the Office of Public Affairs somehow jumped the gun with the press release, too. Nevertheless, the time between signing and press release suggests it had to be something else. But what? I cannot find the Public Calendar for this time period but there were probably at least two closed Commission meetings that could have considered this case.

Somebody was NOT happy with the size of the penalty for these old violations. Schylling apparently changed law firms to deal with the revived crisis (two different firms signed the agreements) and four months later, a new agreement doubling the penalty was signed by the parties.

There is no public record of who was unhappy or why. It could have been a Commission member. It could also have been one of the self-appointed protectors of the public good, our good friends the consumer advocates. Who knows? I will be submitting a FOIA request to see what I can find out. Watch this space carefully over the next several years to see if I ever get an answer.

Everyone feeling safe and happy? How about you manufacturers? Happy about justice being served?

Here’s another serious oddity: The statute of limitations for these violations had RUN by the time the agreement was signed. The CPSC should not have been able to assess penalties in this case. Hmmm. Let’s unpack this a bit further. There are really TWO kinds of violations here – (a) lead-in-paint violations, and (b) failure to timely report the violation. On the former, the statute of limitations is apparently quite clear – it had run out. The CPSC had no legal ability to hammer Schylling for lead-in-paint violations that were so old. Bummer for the agency.

Just as the FBI uses the device of failure to report income to put away gangsters like Al Capone, the CPSC has another trick up its sleeve. The other violation, failure to timely report, is in a grey area as far as the statute of limitation goes. Does the statute start to run when the company should have reported . . . or does it run from the date the company finally files a report? This has never been tested in court. The CPSC seems to have seized on this ambiguity to assert penalties against Schylling. To judge by the outcome, the company did not relish litigation with the Federal Government. The old rule that you should never litigate with someone with a printing press holds doubly true in conflicts with the Obama Administration. They clearly know how to print money.

So the CSPC doubled an excessive penalty on a hapless toy company without the means or the will to push back, and set a terrible precedent that could be used . . . against you. The due process rights of corporations are trampled again. Who is protesting? No one.

All this brings to mind the March 3rd Commission hearing on the new civil penalty rule. Commissioner Bob Adler took a very hard position on penalties:

“I do think that the regulated community deserves to know that we are making a ‘pivot’ with respect to enforcing the law [referring to the size of penalties] [28:20] . . . . I certainly agree that we have to have gradations of civil penalties depending on the gravity of the offense. I personally wouldn’t want to tie our hands by saying that the only time we can hit you with a big civil penalty is when there was a death or a serious injury. There may be an immense potential for death and serious injury which just through fortuity did not occur. So what I would like do is to retain the discretion on the Commission to say where you have done something REALLY BAD, and it could be a variety of factors, we are going to impose civil penalties. But there may be situations where what the company did was REALLY BAD but through fortuity, nobody was injured or nobody was killed. [32:00]” [Emphasis added]

Call it the “Adler Penalty Principle”. Schylling’s case did not involve any injuries, but perhaps under unforeseeable circumstances, a child or two could have been injured by the toys. They weren’t but that doesn’t seem to matter under the Adler Penalty Principle. The company also failed to report (see my original blogpost for details). another “crime” needing retribution. One cannot help wondering if Mr. Adler decided this was one of those “REALLY BAD” cases. It’s not clear how such an assessment is to be made. Adler explicitly rejected outcome as a measure of the severity of infractions. In any event, a massive penalty like this is clearly intended to terrorize the regulated community. The niceties of whether the company’s behavior merited this treatment seems to be a secondary consideration.

The penalty policy of this CPSC Commission is completely arbitrary, excessive and intended to be highly coercive. Practitioners in the CPSC Bar have regaled me with stories of the CPSC’s use of the penalty free-for-all to coerce all sorts of unreasonable settlements.

Every outcome can be justified in a world without rules or due process protections. Maybe that’s the pivot that Adler was referring to.

Read more here:
CPSIA – Schylling Penalty Update

CPSIA – Phebe Phillips Leaves Toy Biz Over CPSIA

Phebe Phillips, subject of our Casualty of the Week feature on December 4, recounted her story of CPSIA travails in a commencement address at the Texas Women’s University on May 14. In her address entitled “Everything is Perfect . . . I Changed!”, Ms. Phillips discussed how the CPSIA forced her into her new career as a nutritionist after years of success as a toymaker. She sums up her journey: “I stand before you as an example that change will be with you your entire life, that one is never too old or set in their ideas to change and on occasion a glass of lemonade, made from life’s lemons, can taste pretty good.”

Life’s lemons – that’s a little harsh, isn’t it, for something as wondrous as the CPSIA? I bet Mr. Waxman agrees with Ms. Phillips – if we would only relax, we would learn to really enjoy the CPSIA and its effect on our businesses and our lives. Look at all the benefits that Phebe Phillips experienced – it only drove her out of the business she started as a young graduate of Southern Methodist University in 1983 and out of the industry she loved so much. There is no sign that Ms. Phillips’ products ever harmed a single child. Nonetheless, we can rejoice at how safe everyone is now . . . .

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CPSIA – Phebe Phillips Leaves Toy Biz Over CPSIA

CPSIA – CPSIA Casualty of the Week December 7

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 December 7

GOODGUIDE BIDS GOODBYE TO THE GOOD REPUTATION OF ZHU ZHU PETS

Cepia LLC, a small business that manufactures Zhu Zhu Pets, the hottest-selling toy of this holiday season, learned the high cost of success in the toy business last week when its reputation was smeared by an over-zealous consumer group, GoodGuide. The California-based consumer group launched a public relations attack on the “Zhu Zhu Pet” on December 5, claiming its “Mr. Squiggles” toy contained tin and antimony above federal standards outlined in the Consumer Product Safety Improvement Act (CPSIA). Word spread quickly via the media and blogosphere that Zhu Zhu Pets were “dangerous”, sending Cepia into a business and public relations nightmare through no fault of its own.

Credit the Consumer Product Safety Commission (CPSC) for acting swiftly. By Monday evening (December 7), the agency had investigated and cleared Zhu Zhu Pets and Cepia. Also on Monday, GoodGuide backtracked on its findings, acknowledging that it had inappropriately used an XRF gun to test the surface but failed to use the proper federal wet test methods.

While this product safety frenzy is soon to be forgotten by most, its cost and consequences for Cepia, a small business with fewer than 50 employees, are large. Yet this entrepreneurial shop has no recourse against GoodGuide, which clumsily seized on the wrong test data to create an illusion of toy company irresponsibility designed to scare consumers. There are no penalties under the law for unsupportable or misleading accusations by consumer groups – although manufacturers themselves are always at risk of CPSC penalties which can range as high as $15 million and which can be increased for perceived bad behavior.

Self-appointed consumer advocate attacks on children’s products have proliferated this Christmas season. This self-destructive atmosphere was, in part, created by the CPSIA and its reckless disregard for the use of risk in assessing safety. Yet Congress to date refuses to acknowledge problems with the law, and in a sad twist, these consumer groups who pushed to make the law as far-reaching possible in their zest to ‘protect our children’ now fight to keep common-sense from being written back into it. It’s time to set an example for the perpetrators of consumer group false alarms: Chairman Tenenbaum needs to tell Congress to allow CPSC to conduct risk assessment in implementing the CPSIA.

For more information, visit http://www.AmendTheCPSIA.com.

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

Do not accept the status quo! Tell Congress and the CPSC to restore “common sense” to our nation’s product safety laws.

Call CPSC and Congress.

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CPSIA – CPSIA Casualty of the Week December 7

CPSIA – CPSC Clears Zhu Zhu Pets . . . But The Damage Can’t Be Repaired

Last week, in the heat of the post-Thanksgiving holiday buying crush, yet another unscrupulous or incompetent consumer group, so the so-called “GoodGuide” out of San Francisco chose to launch an attack on a high-profile toy, the “Zhu Zhu Pet”, specifically “Mr. Squiggles”. The Zhu Zhu Pet product line is this year’s Must-Have Toy, a perfect target for selling papers and promoting fear. Mr. Squiggles’ “crime” was purportedly the presence of microscopic amounts of tin and antimony above the absurdly cautious CPSIA standards for those elements. GoodGuide (for purposes of this blogpost, let’s call them “MisleadingGuide”) cited Mr. Squiggles for having “elevated levels” of the elements in its hair and on its cute little nose. The offending levels: tin (I can’t find the data anywhere) and antimony, 93 ppm on the hair and 103 ppm on the nose. The federal limits under the CPSIA is 60 ppm.

The MisleadingGuide report was issued on Saturday Dec. 5, and to the CPSC’s credit, it acted promptly today by announcing its intention to swiftly investigate, and later (on the same day), cleared the toys. In response to the storm over its accusations, MisleadingGuide acknowledged that it used a XRF gun to test the surface and did not use the federal wet test methods. Oopsie-daisy! MisleadingGuide apparently regrets its error. Interestingly, the retraction/correction of MisleadingGuide is nowhere to be found on its review of Mr. Squiggles. The MisleadingGuide rating is also unchanged as are the misleading results that MisleadingGuide says it “regrets” but hasn’t gotten around to correcting. Notably, in the small print of one of its disclaimers, MisleadingGuide notes that much of its data comes from consumer group luminaries regularly heralded in this space such as HealthyToys.org and the ever-present Center for Environmental Health. Now that’s some fine company!

This very sorry and sickening episode is the latest instance of consumer group terrorism playing up to an easily panicked and understandably rattled American public. Using the imprimatur granted by their self-appointed role as protectors of public welfare, consumer groups nowadays shoot first and ask questions later. An unskeptical media republishes their garbage without comment, other than to whip up the flames of fear. The cost and the consequence is the random devastation of businesses for “crimes” that are very often imaginary. In this case, the tiny company responsible for this monster hit has only 16 employees. Not exactly a Mattel with a large in-house legal department or the other resources of a mega-company accustomed to being kneecapped by Naderites. A real U.S. success story – brought low by consumer group incompetence and irresponsibility. As everyone knows, there is no recourse for these entrepreneurs as their franchise is damaged mid-Christmas selling season. Dreams dashed, and the consumer groups hardly even blink. Of course, MisleadingGuide does “regret” its error. A bit of cold comfort for the 16 employees at Cepia as they examine the lumps of coal in their Xmas stockings.

Part of the consumer group M.O. is to stoke fear by tossing around figures that no one understands. In this case, they chose some new, unfamiliar elements to create the illusion of irresponsibility by a toy company. Tin? Antimony? I thought the culprits these days were lead and phthalates? No, when those items fade, new threats are manufactured to spread fear and distrust. I should point out that MisleadingGuide is arguing about being 33 and 43 PARTS PER MILLION over the new federal limit.

Tin and antimony are not radioactive, these ultra-amounts are basically undetectable. There is no indication anywhere that exposure to an incremental amount of these elements at this level would be dangerous. However, the new standard is misleadingly portrayed by these unscrupulous or unsophisticated consumer groups as a human health exposure limit, reasoning that anything above the limit is a sign of DANGER. The press is all too willing to make their claims seem legitimate: “Tests in animals have attributed a series of ailments large-scale consumption of antimony, the Department of Health and Human Services’ (DHHS) Agency for Toxic Substances and Disease says. Yet the DHHS also says it does not ‘know what other health effects would occur to people who swallow antimony.’” Ah, the seeds of doubt! Notably, unless you gorge on Zhu Zhu Pets regularly, large-scale consumption of antimony is irrelevant in this case. This kind of reporting hands a “win” to the consumer groups. The losers outnumber the winners by a wide margin.

I think there are many damaged parties in this pathetic episode. Let me list them:

  • You. The American consumer loses EVERY TIME as confidence in our neighbors and in our stream of commerce is nicked again and again by nincompoops who spread salacious gossip and commercial slander without a full and thoughtful investigation.
  • Science. The abuse of science will eventually lead to a mistrust of science. Science misused for the purposes of raising contributions or gathering proceeds from fines or contingent legal fees discredits it as a source of understanding of our world. Our country will lose out to countries not as obsessed with small-minded paranoia.
  • Specialty Markets and Small Business Interests. What kind of crazies want to do business in this environment where consumer group terrorists rule the planet? Business people read these articles and feel an injury to themselves. We all know we could be next. It’s random and unpredictable, since junk science can be deployed anywhere and anytime by the evil tandem of an unquestioning press and unscrupulous consumer advocates.
  • Our National Competitiveness. By allowing consumer groups to pick innocent victims without recourse for the tortious devastation they cause, the incentive to innovate or even trade is sharply curtailed. Businesses seek exits, not growth – some jobs program, huh? The costs imposed on healthy businesses to stay ahead of the maniacs will further cripple competitiveness. As a nation, we will gradually sink into an abyss of irrelevance.

How long must we tolerate consumer group terrorists? I think it’s time for Congress to create a new cause of action against this kind of irresponsible behavior. Someone needs to be accountable for the spreading of misinformation, damaging innocent and honest American businesses trying to create jobs and provide needed products and services to American families and schools. The torts of the consumer group creeps need a remedy. Let’s turn the tables on these fronts for plaintiff’s attorneys and take back our country.

Read more here:
CPSIA – CPSC Clears Zhu Zhu Pets . . . But The Damage Can’t Be Repaired

CPSIA – Consumer Groups are Grasping at Straws

Last week, in their usual pre-Xmas slanderfest, the full range of consumer groups unleashed their annual list of bad and dangerous toy lists on a pandering media. The pickin’s were slim this year, but that didn’t stop them.

I have heard from friends outside the toy industry who expressed horror and disbelief at these widely-publicized attacks. Toy industry insiders are used to it, frankly. Actually, speaking candidly, some of these annual efforts are useful and appreciated. I think that bad products (generally reflecting poor judgment, nothing more venal than that) have been usefully exposed by these groups in the past. However, of late the consumer groups have been obsessed by “toxics” – pushing the notion that toys are poisonous, rather than simply irresponsibly-designed. I think the reason is simple – the media and reactive politicians respond to this accusation, so why give up a “good thing”? You have to wonder if their goal is to simply make toys safer. Their attacks are remain more vicious than in the past and much more pointed.

The consumer group continue to package the idea that consumers do not realize that “no government agency tests toys before they are put on the shelves.” This self-declared “fact” is an essential justification of their “precautionary principle” – that is, we need an activist government approving everything before you get your hands on it. President Obama’s assertion on Late Night with David Letterman that we need a lot more government these days is right in line with the precautionary principle. Others call this movement the Nanny State.

The precautionary principle holds that no risk is too small to address – in advance. Thus, the neurosis underlying the assertion that Americans think the government must be “testing” toys before they are sold is the same as Consumer Union’s David Pittle’s admission in the TSCP hearing (beginning at about 90 minutes in the video) that he is “nervous” when he buys a toy (not sure what or whom to trust), and ergo, his rules for how manufacturers run their businesses must be imposed. Mr. Pittle’s demands seem designed to relieve his anxieties, rather than improve safety. [He might contend that it is one and the same but I disagree.] Inciting terror through various means, the consumer groups place a real emphasis on how consumers FEEL and whether products and their manufacturers have earned consumer confidence (an emotional standard), not whether (objectively or actually), the products are actually safe.

Perhaps your mother told you once that it is hard to control how others feel – you can only control what you do and how you do it. Maybe she should be running Congress . . . .

In any event, the number of offending children’s products uncovered this year by the consumer groups is rather meagre. As previously noted, Center for Environmental Health (CEH) drummed up seven items after six weeks of testing on 250 items. The CEH rogue’s gallery featured NO soluble lead in toys, but did feature one pair of shoes with lead in the soles . . . a pair of sandals with lead in the insole . . . a trinket with a bad connector link . . . a poncho with lead in the vinyl material, etc. And now the PIRGs have joined in the fun. The annual Trouble in Toyland report was issued this week by national PIRG and the equally hyperbolic Illinois PIRG issued its own “Chemical Compliance: Testing for Toxics in Children’s Products” report. [I am only focusing on lead and phthalates in these reports.] The PIRG “bounty”: a zipper “pull” and a yellow cow with lead-in-paint, one piece of lead jewelry, and two toys with phthalates (one an “unidentified” phthalate that might not be illegal, and the other just slightly over the limit). Illinois PIRG found only a small handful of violative products: only six of 87 products tested positive for violative lead levels using XRF guns, winnowing down to three items when tested by an independent lab.

Illinois PIRG failed to find lead or phthalates in the items featured in this TV segment. Unfortunately, that makes bad TV, so the head of Illinois PIRG lowered the standard to create something new to worry about (watch from 1:00 for 30 seconds in the video): “Most of the toys PIRG bought at target came up clean. But three of the toys had small amounts of lead — MUCH LESS THAN the current safety standard but enough for the gun to detect. ‘Really, children shouldn’t be exposed to lead at all,’ said [Brian] Imus.” [Emphasis added]

An implication of the 2009 reports is that the onerous new CPSIA lead standards are simply not tough enough. For instance, PIRG says “Regulations should simply ban lead except at trace amounts (90-100 ppm), whether in paint, coatings or any toys, jewelry or other products for use by children under 12 years old.” Where did this come from? Some ideas:

  • They are laying the groundwork for the August 2011 determination by the CPSC about implementing a 100 ppm lead limit. To do so, the agency must conclude that it is “technologically feasible” as defined in the CPSIA.
  • The groups are desperate to make their work seem relevant and constructive.
  • They are confused or want to confuse consumers about HOW lead harms children, ignoring, covering up or blurring important distinctions between bio-available lead and inaccessible lead.

The latter point is so critical to understand. Lead can only harm a child if it gets into the bloodstream. Notably, lead is present throughout the environment (lead is found in at least 40 ppm concentrations in dirt, unless you are referring to the Obama’s vegetable garden which has lead in concentrations of 93 ppm). Lead is in our food, drink and air, so kids consume it all the time. Apparently, lead in certain amounts must not be a problem, or else we would all have suffered reduced IQs (no comment in my case). The lead that should concern us is soluble lead, as in lead-in-paint and in jewelry, because it can easily get into the bloodstream. In any event, PIRG knows that toys and children’s products aren’t the problem. In their report, they cite a 2005 article (“Lead Exposure in Children: Prevention, Detection and Management,” Pediatrics, 1036-1048 (October 2005)) which makes clear that the problem with childhood blood lead levels is in lead-in-paint used in housing. There is NO mention anywhere that I can find where academic studies blame national blood lead levels on toys, etc., and likewise, I find all credit for lowering blood lead levels is given to efforts to rid the world of lead-in-paint in housing. Period.

So why does PIRG and its brethren continue to flog the notion that lead in all manifestations is dangerous? And why are they now saying that ANY lead, even below the draconian levels in the current law, is dangerous to children’s health?

Questions worth pondering.

Finally, not content to blur the lines on lead, PIRG also recommends that the phthalates ban be extended: “CPSC should ban phthalates in toys and other products intended for children under five and work with the Federal Trade Commission to ensure that toys labeled ‘phthalate-free’ do not contain phthalates.” So apparently PIRG wants ALL phthalates eliminated from toys, no matter the absence of science behind their new manic fear. Even more importantly, they apparently concede that the blanket ban on six phthalates for toys intended for children 6-12 is excessive and damaging. At least that’s a positive contribution!

So another Xmas toy bashing seems to be behind us. The pseudo-science underlying the consumer groups’ attacks on children’s products was again exposed, as was the basic integrity and safety of the marketplace. Does that do us any good? That remains to be seen. Perhaps the leadership at the CPSC will tire of this relentless war (which is eroding their professional reputations) and do something to get Congress to fix a truly defective and damaging law. Let’s hope so.

Read more here:
CPSIA – Consumer Groups are Grasping at Straws

CPSIA – News Round-up

What a day for news on our favorite subject!

a. A sad, almost pathetic, illustration of the ill-effects of the CPSIA is found here: “Police Switch To Handing Out Books To Children” (WISC-TV, Channel3000.com). Be SURE to check out the embedded video, too. In this article, this Wisconsin television station shares the news that police cannot give out teddy bears anymore to children who witness traumatic events like a robbery or the arrest of a parent. For years, the police had been trying to soften those blows with comforting teddy bears. But no more! The CPSIA straightened them out: “The new Consumer Product Safety Improvement Act . . . has law enforcement officers rethinking handing out stuffed animals because of the chemicals they might contain. . . . Mueller said that he used to hand out Teddy bears or other stuffed toys to children. Now, Middleton police are using the books to make sure they’re in compliance with new federal regulations.”

The local police are scared of the consequences of breaking this law: “‘One of the reasons for that is we get older toys that come in and they’re perfectly fine to give out, but we don’t know if they were made under the new requirements,’ [Middleton police Sgt. Don Mueller ] said. . . . The new federal law is retroactive so the departments like Middleton are no longer using any stuffed animals as they can be held liable.”

How charming! The CPSIA is actually taking teddy bears away from traumatized children, nice. At least we know the kids will be so, so safe now.

Btw, as you all know, our company makes educational products, including readers, so I am hardly opposed to giving books to kids. I would observe, however, that there are a couple obvious issues here. First of all, it’s an odd message to a kid that just saw a parent being arrested to receive a book. Hey, kid, go read this book and try not to think about where we’re taking your folks. Not much solace in that, certainly compared to a teddy bear. A second objection is, here’s a shocker, not everyone speaks English. Giving a book in English to a traumatized child who does not speak English or has poor reading skills could even be seen as a kind of insult.

b. For a view from the scary people behind the law, check out: “Toxic Toy Law Criticized For ‘Lack Of Enforcement” (WBZ Boston). In this alarming article full of inaccuracies, fear of the unknown is given a great deal of unquestioning credibility. “‘They don’t really know if lead or phthalates are in their products, so we don’t know either,’ said [Environmental activist Laura Spark]. Her daughters have a playroom full of toys that she can only hope are free from lead and other toxic chemicals.” In other words, Ms. Sparks doubts everything about everyone, and feels free to spread this doubt among the populace. The grounds for this latest libel of the toy industry: HealthyStuff.org’s recent spot check of pet products, automobiles and women’s handbags.

HealthyStuff.org (formerly known as HealthyToys.org) has been the subject of criticism in the past for its shoddy field work. Among other things, the Wall Street Journal published an article entitled “Guerrilla Toy Testers Take Aim at Lead” on December 16, 2008 documenting their maligning of a toy company. Now the presence of “dangerous chemicals” in pet products is enough to convince a TV station that the entire children’s products industry can’t be trusted?

To compound the sense of fear, the article also completely misstates the Target fine, asserting that it was a “knowing” lead-in-paint violation, which is patently untrue. See my recent blogpost on Target.

c. For a glimpse of the future of litigation under the CPSIA, check out “Mattel Settles Suit Over Lead in China-Made Toys ” (WSJ). Mattel has already paid big settlements in California and Arizona, as well as a serious CPSC fine, and paid many millions more for the expense of its mega recall. It’s not enough, apparently: “Co-plaintiff lead counsel Whatley Drake & Kallas said in a statement the settlement provides ‘tens of millions of dollars in monetary relief as well as significant injunctive relief.’” That’ll teach ya!

While my heart does not bleed for Mattel (“The world’s largest toy maker previously recorded charges to reserve for the litigation. The company, based in El Segundo, Calif., said final settlement won’t be material to its operating results. . . . Mattel shares were up 2.9% to $19.41 in recent trading amid a broad market rally.”), this case is at the heart of one of the worst risks embedded in the CPSIA – the possible onslaught of litigation opened up by recalls under the new law.

This problem will continue to bite the children’s product industry HARD. My previous blogpost highlighted the snarling lawyers poised at the gate, eyeing us eagerly. Oh joy.

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CPSIA – News Round-up

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