CPSIA – My Testimony at the CPSC Hearing on 100 ppm Lead Standard 2-16-11

Here are clips from my testimony at the CPSC Hearing on 100 ppm Lead Standard on February 16, 2011. As noted in previous blogposts, there’s much more to see and hear in this panel discussion. The clips focus on me and my testimony. I admire the testimony of the other panelists and especially the quality of the dialogue after the testimony under questioning by the Commission. If you want to see it unedited, check out the full video at the CPSC website.

I have already published the links from the morning session. Viewing those clips before watching these clips may help you understand the flow of the argument better.

My full testimony:

[Notably, Ms. Tenenbaum cut me a break and let me go over my 10 minute allotment. I appreciate that courtesy.]

Commissioner Bob Adler questions me on the future of small business under the CPSIA and the need for the Commission to “follow the law” and implement the new standard despite the known consequences. This may be the most interesting interchange on the troubling issues under the CPSIA that I have participated in over the past four years. Check it out!

Commissioner Anne Northup asks about the ability of small business to obtain exemptions from the lead standard:

Commissioner Nancy Nord questions me about recycled materials, the cost implications of the new standards and injuries:

My call for a Five Year Stay on the new lead standard to allow for development of real injury statistics:

Read more here:
CPSIA – My Testimony at the CPSC Hearing on 100 ppm Lead Standard 2-16-11

CPSIA – ICPHSO Update on Compliance and Field Operations

Marc Schoem moderated a discussion involving four other heads of department (he is an acting department head, too):

• Dean Woodard, Dir., Defect Investigation Div.
• Mary Toro, Dir., Regulatory Enforcement Div.
• Dennis Blasiua, Eastern District Div., Field Investigations Div.
• Kathleen Lisius, Compliance Investigator, Import Surveillance Div (standing in for the director today).

DW: This division has four teams. Fast Track Recall program does not let you off the hook for reporting violations. It does avoid a “Preliminary Determination”. This is a very “successful” and very “positive” program. Less bureaucracy and less “red tape”. “Saves lives” and “limits your exposure” to whatever issues there may have been.

[RW: It is ALSO one of the most remarkably coercive programs administered by the CPSC. You are very often, if not always, given a short period of time to decide whether to participate. By "short", this could mean HOURS to decide. Hope you are always at the ready!]

MT: Four teams based on hazard. Four team leaders and 16 compliance officers. Different backgrounds on the team, lots of tech know-how and skills. This team does a lot of advising and gives a lot of guidance to industry. Have more than double the previous total of regulations that they have to enforce. Field staff goes out to do inspections. Develop field investigation programs for the year. Now MUST report under Section 15 for a violation of a mandatory standard. [Them's a lot of reports!] All such items also have a certification requirement.

DB – Does hundreds of inspections annually. Surveys, too. Visits to consumer homes and “no one leaves in handcuffs”. [He said this in a joking manner.] Has roughly 100 investigations but gets tens of thousands of complaints annually. [RW: Now all that crap will go into the database. Can we see any issues here?] Emphasizes the politeness of his investigators. [RW: I appreciate this approach. I take him at his word.]

DB: Says we need to monitor the Internet for consumer complaints online. The CPSC is monitoring it so you better. Hmmm. DB says this may warrant investigation or spawn an investigation. More and more will send out investigators or ask for proof of destruction of recalled merchandise. Apparently, the re-export of recalled merchandise is up to Tim Geithner. [Fortunately, he's not too busy . . . .]

KL: Import Surveillance Div: Last year, not surprisingly, set a record of samples taken at port. 91% of the samples were violations, but only two products were recalled. Stopping at the port prevented the recalls. [This is interesting data. Are they clairvoyant or does everything coming into this country violate this godforsaken law in SOME way?] In apparel imports, the “first thing they look for” is drawstrings. Don’t go there. . . .

Q&A: What if you disagree with the conclusions of your compliance officer? What are your due process rights?

MS: You are encouraged to call “up the chain”. We are concerned to be responsive and want to know if you feel something is amiss.

60% of recalls come in under the Fast Track Recall program. In other words, this decision is made to pick up the “benefits” of the FTR program but also muddy the water about the state of the law on “substantial product hazards”.

[RW: This is a total cop-out on the part of the agency and contributes significantly to the confusion on the workings of the law. In addition, the defects in the FTR program make everything worse. Marc Schoem admitted during Q&A that you often have only a DAY to decide whether or not to participate, which is inherently coercive. For most companies, unprepared for a federal agency descending on them with an "offer that you can't refuse" with an eight hour time limit, the pressure can be overwhelming. It is not unusual to get this "fine" offer before all relevant facts are known, and even when basically NO relevant facts are known. One wonders if the Shrek glasses recall was one such event. See no evil, hear no evil, speak no evil?]

Why call everything a “recall”? MS: We like the word “recall” and think it’s most effective to “get the word out”. [See Nancy Nord's blogpost from earlier today. The word also has tremendous under the CPSIA - perhaps Mr. Schoem's favorite word needs to be revisited since things have changed. It is also a tough word when there is litigation going on.]

Read more here:
CPSIA – ICPHSO Update on Compliance and Field Operations

CPSIA – Fear of Zippers

I have been tossing and turning about zippers ever since the April 29 House hearing. Perhaps you recall Steve Levy’s demonstration of why thousands of pairs of pants and jeans were thrown away under the CPSIA to make you so much safer. As you know, you can’t place a price tag on safety. Burn, baby, burn.

In response to questions by Ranking Member Whitfield, Steve Levy discussed lead in zippers at about the 47 minute mark in the testimony video. He noted that zippers are made of five to seven components, one of which has been found to have trace lead amounts in excess of current limits. The component in question is not accessible (it’s sewn into the crotch of the pant) but since the CPSC can reach the component with a probe, it is considered violative. Fabric is not considered a “barrier” to access under CPSC rules. Bummer, that’s thousands of pairs of pants into the garbage.

Self-appointed “Safety Czarina” Rachel Weintraub was quick to object to the horrors of Mr. Levy’s jeans: “The problem is, unfortunately, that children mouth zippers all the time. You know I have three young children. My oldest child who is almost six, he mouths zippers as well. . . . The problem is that children interact with clothing in dynamic ways.” This Rachel-speak is the version of “common sense” that imbues the CPSIA. Perhaps you recognized the valuable insights.

Whoa! Children are so “dynamic” with their clothes, this little zipper could be zapping IQ points every day. Wow. I am quite a worrier as you know, so I have been fretting about zippers almost non-stop for a month. After all, we clothed our children in pants with zippers since they were born (many years ago). I can’t detect any missing IQ points in my kids, but of course, I am not nearly as smart as Rachel Weintraub or the other safety zealots perhaps as a result of my wearing jeans to this very day. Still, I could not ignore Rachel’s serious warning but needed to better understand the danger.

So we asked a four-year-old volunteer to suck on his jeans zipper. Here’s what happened. Don’t worry, no IQ points were killed or harmed in the making of this video.

WARNING: The following video contains dramatic footage of a four-year-old attempting to suck on his jeans zipper. Such graphic footage may not be appropriate for everyone. Please think carefully about watching the video if you are a member of a consumer group.

Read more here:
CPSIA – Fear of Zippers

CPSIA – Sample Letter to the House re Waxman Amendment

This is the letter I am sending:

“Vote NO on the pending Consumer Product Safety Enhancement Act of 2010 (CPSEA)! This legislation fails to address the critical issues confronting small businesses and children’s product manufacturers under the CPSIA. Without genuine reform, implementation of the CPSIA will choke off commerce in this marketplace, especially for beleagured small businesses.

True relief will only come if the CPSIA is amended to restore to the CPSC Commission true authority for risk assessment. In addition, a reduced age limit under the law and more focused (less extensive) testing is necessary to restore balance to the market. A full hearing featuring testimony from affected regulated companies will set the record straight on the pain points of this two-year-old landmark legislation.

With out-of-control CPSC rulemaking now totalling almost 2500 pages and growing seemingly every day, the CPSIA implementation has now surpassed every company’s ability to process and master. The law has become incomprehensible as new rules piled upon old rules are causing gridlock and widespread economic loss. Without decisive Congressional action to restore common sense to this unrelenting crisis, small businesses and big businesses alike will have to exit the children’s market permanently.

This loss of supply will greatly harm consumers (including schools and teachers) and will cost thousands of jobs.

Save the children’s product market – vote NO on the CPSEA and demand true reform to fix the CPSIA once and for all.”

Read more here:
CPSIA – Sample Letter to the House re Waxman Amendment

CPSIA – How Important is Testing After All?

Let’s zoom up to 40,000 feet and look down on the CPSIA mess. If Martians were watching this affair unfold before their uncomprehending eyes, what would they think?

In 2007/8, a large number of toy recalls and jewelry recalls dominated the newspaper headlines. A closer examination of these recalls shows that they were largely restricted to lead-in-paint and lead-in-jewelry, but few people bothered with the details – hysteria was a lot easier. Sold on a rationale that it is “impossible” to know if something’s safe without testing it, Congress wrote up legislation to require prophylactic testing of all children’s products, a mind-boggling array of products ranging from pens to t-shirts to science kits to ATVs to shoes.

Being entirely unable to anticipate any problems with this brilliant construct, Congress was shocked to find that the CPSC couldn’t implement these requirements without crushing small businesses (among others). A finger-pointing contest broke out, where Congress insisted that the CPSC had the power to implement the new law with “common sense” (read, make up law to make the whiners go away) and the CPSC pushed back that it lacked regulatory flexibility under the CPSIA and legally was forbidden to assess risk. Standoff!

Of late, a weary and perhaps more sensitive CPSC is now taking a more conciliatory stance, expressing an interest, in the words of Ms. Tenenbaum, “to get it right”. Aside from soliciting feedback from stakeholders, the agency is clearly trying to draft rules permitting small companies to reduce their compliance costs. The net effect: testing is ebbing away. Now with component testing, it is possible for companies to get out of testing altogether for many of their products. Other rules, like flexible rules on rules on sampling and testing frequency, among other rules being crafted, are further reducing the testing burden. [I strongly support this movement by the CPSC, let there be no doubt.]

But I am confused now. Rachel Weintraub of the Consumer Federation of America famously taught us that “Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested.” [Emphasis added.] Yet the CPSC seems to be pulling away from Ms. Weintraub and her wisdom on testing. Is testing critical or not? Is safety achievable in other ways (perhaps various elements in combination)? If testing isn’t so essential after all, what’s really going on here?

I have a theory to share on this question: The recent movement by the CPSC on testing is tacit acknowledgement of our argument that there is more to safety administration than testing. Furthermore, the ebbing of testing requirements is a further acknowledgement that we are not facing a massive public health crisis in children’s products – and never were. Yes, that means poison zippers, brass bushings, ATVs, pens and bikes really is a joke, as you thought. So why the big fuss, why isn’t everyone linking arms and singing Kumbaya, if there is acceptance that a lesser standard will be sufficient to ensure safety?

It’s simple – the issues go beyond this law, and that’s why the Dems in Congress will budge. In fact, we are pawns in a bigger game, namely the battle to establish the precautionary principle in the Toxic Substances Control Act (TSCA). This is Mr. Waxman’s dream legislation, his effort to rein in the chemical industry. The folks behind the TSCA reform legislation are deeply suspicious of chemicals in our lives and want to regulate them on a precautionary basis, not entirely unlike the way we approve drugs. It’s the “fear of everything” all over again but BIGGER.

How does this tie back to the CPSIA? We are the test case, kids. The CPSIA was the first skirmish in the TSCA war. The two substances regulated on a precautionary basis under the CPSIA, lead and phthalates, either make or break the case on TSCA. If the Dems give in to our demands and acknowledge that their precautionary scheme didn’t work, that it ate up the regulatory agency (now nicknamed the Children’s Product Safety Commission), then how can they win approval of TSCA?

This is why the Dems are so resistant to rational change of this ridiculous law. This is why they won’t listen to reason or consider facts. The facts are contrary to their larger goals, so they need to ignore them or deny them. In this context, it is better to send us down the river than deal with our issues. Although their tough testing scheme is being unraveled, they won’t admit that it means that the crisis never was; without a crisis to fix, the entire logic of the CPSIA and their precautionary trial balloon fizzles. The Dems must insist that the crisis is still severe and that there is only one solution, the precautionary principle. Otherwise, they don’t get TSCA.

[Side note: There was a "telltale" in the Waxman amendment to the CPSIA last week on TSCA. A big issue in TSCA reform legislation is the possible use of "junk science" to justify removing valuable chemicals from use in our country. With all the self-appointed consumer representatives clamoring for a chemical-free world, there is good reason to fear manipulative use of science under TSCA to disrupt the chemical industry. It's no different than the misuse of lead toxicity and antimony health effects by consumer groups to attack toys and other children's products under the CPSIA. Some people have been insisting on a "peer-review" standard for these scientific challenges to chemical use - which Mr. Waxman fear may hobble his precautionary principle law. This term is used in Section 101 (b) in the CPSIA to make it more difficult to get exemptions - but was stripped out of the law in Mr. Waxman's unilateral amendment. See my first blogpost on his amendment. His "generous act" in removing this ridiculous stumbling block wasn't a signal of increasing sympathy with our problems. No, in fact, it was simply aimed at resolving one of his problems with TSCA.]

I have no easy answers for how this ends. If you feel your anger welling up, you’re not alone. Actually, I think the regulators are sick of it, too. The CPSIA has truly consumed the CPSC and made the daily affairs of that agency some kind of purgatory for the staff there. I can’t imagine it’s much fun being a Commissioner either. Frankly, the biggest shame of all is that by Congress (the Dems, really) insisting on an unworkable scheme for reasons unrelated to children’s product safety, the agency has been rendered ineffective, bureaucratic and stuck in gridlock. The CPSC’s essential role has been mooted. That’s bad for everybody – in a perfect world, the agency is free to do its job and look for real safety problems to solve. Instead, it has to spend its time figuring out whether water slides are primarily intended for children and the like. What a tragic waste.

In the wake of last week’s demise of the Waxman amendment and the extension of the lead content Stay, we must retain our focus and continue to push hard for a change in the law. The facts are piling up and the excuses for inaction are fading. It’s time for action – for the good of consumers, for the good of industry and for the good of the CPSC.

Read more here:
CPSIA – How Important is Testing After All?

CPSIA – Interesting Admissions by Mattel

In a November 9 Product Safety Letter article, Mattel spokesmen were quoted bemoaning the burdens and confusion of the CPSIA.

In Mattel’s public meeting with Commissioner Bob Adler, Mattel sounded bedraggled and overwhelmed by the new law:

“Peter Biersteker, a lawyer for Mattel with the law firm Jones Day in Washington D.C., said his client is finding the CPSIA difficult to decipher. The law, he said, is unclear on what products the company needs to test, how often it needs to test them, and how many samples need to be tested. ‘It’s a lot of work. I don’t know how smaller companies do it,’ Biersteker told Commissioner Robert Adler. Despite Mattel’s large team of in-house lawyers, he said, the company needed to hire outside lawyers to help understand the CPSIA. He said Mattel holds weekly conference calls on the issue, discussing how to comply with the act while remaining ‘cost competitive.’”

Ed. Note: Hmmm, where have I heard this before??? Oh yeah, in this space, about 100 times since the blog went live in January. Key points:

• The new law is unclear
• The implementing rules are unclear
• CPSC guidance has not resolved these mysteries (and IMHO made them worse)
• A team of lawyers is needed to interpret the mess – a team of business people is insufficient
• Small businesses have no chance under the CPSIA
• Internal resources are overwhelmed by the CPSIA’s legal demands – even for companies with a large internal law department
• The seriousness of the legal risks under the CPSIA means that any prudent company MUST hire expensive outside experts to provide compliance advice (and for many small businesses, this is just not a realistic option economically)
• Remaining “cost competitive” is a seemingly unsolvable puzzle under this law.

And if Mattel says so, it MUST be true.

Adler was sympathetic (I can see the tears welling up . . . ):

“Adler responded with, ‘Believe me. I’ve been struggling to learn it myself.’ He said it’s hard for CPSC to issue guidelines that are applicable to both large and small firms.”

So the Commissioners themselves don’t understand the law and the agency’s rules. Join the club. And Adler admits that the law doesn’t permit the agency to address small business concerns adequately.

Perhaps the CPSC leadership should talk to Congress??? Hey, that’s an interesting thought . . . .

More good news – Mother Mattel is trying get the rest of the world to adopt the U.S. insanity:

“[Jim Walter, Mattel's senior vice president of product integrity & chief regulatory officer] said Mattel is working to internationally harmonize future product safety standards, finding that harmonizing standards after they have been issued is too difficult.”

I have also heard directly from the TIA and others that lobbying efforts are underway to make the CPSIA a world standard. In other words, by drumming up support for this craziness, the big toy companies can ensure that no one will escape the costs that they must incur to remain active in the world’s largest toy market, the U.S. To heck with small business interests! How generous of Mattel to get behind the law developed in response to its own bad behavior. I am so grateful for their guidance and oversight – they did such a great job in 2007/8, no doubt they will do even better now!

About the only consolation I can offer is that I don’t think the failings of the CPSIA are lost on the outside world. The recent ICPHSO conference in Toronto made clear that no one in Canada is clamoring to use the CPSIA as a model for their new safety law. Contentions to the contrary by officials in this country must be taken with a grain of salt. It is abundantly clear that the CPSIA is yet another self-destructive U.S. initiative by the worst Congress in U.S. history – and no foreign government is any hurry to work that magic on their own economy just because Henry Waxman and his merry band has Hari-Kari in mind for us. Interestingly, other countries seem to know that jobs matter.

Mattel’s admissions frame the challenge for the rest of us. We need to make sure that the CPSC is well-aware of the completely unrealistic scenarios they are forcing on businesses (large and small) and to hold them accountable to push Congress to address these issues SOON. 2010 is an election year and it will be increasingly obvious to one and all that we will have our chance to replace those members of Congress who will not cooperate with our reasonable requests. Let’s hope that they can see the future . . . and choose to act before it’s too late.

Read more here:
CPSIA – Interesting Admissions by Mattel

CPSIA – Love Them GCCs

Hope you love paperwork! Here is the list of products that NOW require GCCs to be legally sold in the U.S. under the CPSIA and related acts, bans, demonizations and paranoia documents (Appendix A):

• All Terrain Vehicles
• Architectural Glazing Materials
• Bicycles
• Bicycle Helmets
• Bunk Beds
• Carpets and rugs
• CB Omnidirectional Base Station Antennas
• Cellulose Insulation
• Contact Adhesives
• Cigarette and Multipurpose Lighters
• Dive Sticks
• Fireworks Devices
• Garage Door Openers
• Lawnmowers
• Lead in paint (We knew about that one! But didja know: “Some applications are exempted including mirror back coatings, tpetal furniture, blinds, chandeliers, fixtures, appliances, manufactured windows, artist paints. Agricultural and industrial uses are also not covered. Touch up paints for the exempted applications that contain lead must be labeled.”)
• Matchbooks
• Mattresses
• Refrigerators
• Refuse Bins (I was wondering when the CPSC would start regulating garbage cans!)
• Swimming Pool Slides
• Vinyl Plastic Film
• Wearing Apparel (except hats, gloves, andfootwear)

These items may have exceptions – you will have to scrutinize every word of the 31-pager issued by the CPSC to know the full extent of your requirements.

I have always said, there ain’t no problem that can’t be made better with more paperwork! Pretty soon the CPSC may require that we exchange GCCs before shaking hands (noting the application of Purell at all appropriate times). Nothing Orwellian or self-destructive about this mania, is there???

Okay everybody, call your suppliers and get all that paper flowing!

Read more here:
CPSIA – Love Them GCCs

CPSIA – My Ruling on Brass Bushings

The Learning Curve request for exemption for brass bushings on their toy cars is still pending at the CPSC. It is supposedly up for a vote this week. As I have noted in two prior blogposts, this decision will set an important precedent for a number of other products. If, as expected, the Commission votes down the LCI request, brass will be essentially banned in all children’s products, except for the pretzel logic of the pen decision (previously derided in this space). [The logic in the pen decision has never reappeared in another CPSC decision, and therefore should not be used as precedent for ANY other situation under the CPSIA until it actually reappears as part of CPSC common law. The pen decision was simply a gift to the writing implement industry, such as a convoluted and fantastic legal decision can be a gift.]

Among the anticipated victims of the LCI decision (to recap):

• Toys
• Connectors of all kinds
• Brass zippers, grommets and other apparel and footwear components and accessories
• Brass instruments (rentals to schools, certainly), musical bells and certain strings used in string instruments
• Children’s jewelry

It is worth noting, amateur scientists in Congress, that brass has germicidal properties which is one reason why brass is used in doorknobs (icky germs!). Might actually be useful in some children’s products for this reason . . . .

The presence of brass in daily life is an immutable fact. If the CPSC bans brass in children’s products because of the idiotic CPSIA, NOTHING will eliminate the following uses of brass in the daily life of children:

• House keys (good for sucking)
• Doorknobs and locks (touching and licking?)
• Plumbing fixtures and drinking fountains (touching and sucking)
• Pipes to convey potable water (assuming those pipes aren’t made of pure lead)
• Components in cell phones (definitely good for licking)
• Clocks, antiques, artwork (touching)
• Railings (licking)
• Jewelry (sucking)
• Guns and ammunition (no comment)
• Tools (you can poke out an eye with a tool!)
• Etc. etc. etc.

This does not even address the widespread presence of lead in, among other things, our food system, our potable water and our air. There are federal safety standards for allowable lead content in each category. Children are known to consume food, water and air throughout their daily lives without interruption. The obliviousness of the CPSIA in setting such stiff standards for bio-unavailable lead-in-substrate in children’s products in the context of these other lead instances is shameful – and the source of the current issues with brass.

The CPSC Staff has determined that the CPSIA does not allow an exemption for brass bushings. In the understatement of the year, the staff concluded “that the estimated exposure to lead from children’s contact with the [LCI] die-cast toys would have little impact on the blood lead level.” Staff states clearly that they consider brass bushings safe and that the lead transmission from brass bushings is inconsequential and certainly not rising to the level of a hazardous substance. Unfortunately, the Commission has thus far shown no interest in taking bold stands and rejecting the legitimate legal (but nonsensical) conclusions of the CPSC Staff under the CPSIA. Common sense be damned.

In a perfect world (what a joke), the Commission’s decision in this case would hold that although LCI brass bushings are caught up in the limits of the CPSIA, they present NO substantial hazard to children, and therefore using their seldom-used discretion, the Commission grants an exemption for brass bushings in children’s products conditionally. The decision would explicitly state that this decision should be taken as precedent for brass in all children’s products (to cut down on repetitive exemption requests). The decision would be dependent on TWO CONDITIONS, namely that: (a) the particular use of brass in children’s products is not known or held by CPSC Staff to present a substantial hazard to children under the FHSA, and (b) the exemption will be lifted when Congress acts to ban brass from everyday life and takes concrete steps to retrofit America for a brass-free future, replacing all brass doorknobs, artwork, cell phones, keys and locks, plumbing fixtures and water pipes (including, what the heck, lead pipes, too) and so on. For so long as brass remains part of children’s daily life in their home and school environments, the CPSC will not act to restrict brass in children’s products.

The Commission, using common sense not previously known in the CPSIA era, would note that banning brass bushings would be utterly ineffective to change the net exposure of children to lead in their lives but would wreak terrible losses upon the marketplace. Senseless economic destruction is un-American and lacks a social conscience since the losses will be spread ratably throughout society among suppliers, sellers and consumers of all things brass. Finally, the Commission would note that unless and until its decisions to restrict children’s products materially impact safety, the Commission will not keep safe products or components off the market for technical violations of the CPSIA. Brass bushings, in my fantasy, would be granted an exemption to the awful CPSIA.

This idle fantasy can come true if the Commission summons up the courage to act sensibly and to stop being complicit in the shoddy legislative work of Congress. As an independent agency of the U.S. government, NOT a subsidiary of the legislative branch or an organ of the House Energy and Commerce Committee, the CPSC has the authority to make up its own mind and to set rational policy. It’s time that the Commission draw a line for one and all to see. Especially Mr. Waxman.

Read more here:
CPSIA – My Ruling on Brass Bushings