CPSIA – Taking Advice from Idiots

In a recent article entitled “Advice on avoiding a toxic Christmas“, USA Today attempted to take Christmas paranoia to new heights. Naturally, the premise of the article is that companies are criminally irresponsible or venal and certainly can’t be trusted, and consumer advocates and any pediatrician that will talk to a reporter are better people, better informed and by definition trustworthy. In this article, USA Today’s Liz Szabo consults “experts” to reach the following conclusions:

a. “No one knows how much lead people absorb from holiday decorations, says pediatrician Bruce Lanphear, of Canada’s Simon Fraser University.” And if he said it, it must be true. [Of course, pediatrician Philip Landrigan, of Mount Sinai School of Medicine in New York, notes "In the whole scheme of things, is it a huge risk? No."]

What’s the problem with Xmas lights, you say? Lead in the PVC. According to Alicia Voorhiess, a mom with a blog, manufacturers “use it” in the PVC. Right – you got us! Don’t worry, though, after much digging, she found two companies that offer Xmas lights which comply with Restriction of Hazardous Substances (RoHS), a European standard which limits the presence of lead in lights.

Ummm, Alicia, RoHS is a standard to designed to prevent leaching of heavy metals to protect the environment and only applies to electronics. This MEANS that the lead is restricted in the bulbs and fittings, not the PVC. Whatever, it sounds safer, doesn’t it?

The author of the article quotes Dr. Alan Greene (my college classmate) saying that you should handle your Xmas lights with gloves. Why stop there? Moon suits, anyone?

b. Artificial Christmas trees are made of PVC, too, and we know what manufacturers are wont to do with PVC. The solution – use a real tree grown without pesticides.

I find this a most uncreative solution, myself. Here’s a few more:

• Post a picture of a beautiful tree near the spot you might have placed your tree. Keep it away from the fire, however.
• Consider just displaying your Xmas lights in their packaging. No touching!
• Use an artificial tree, but place under a glass enclosure or something air tight like Saran Wrap. Stand at least five feet away at all times.

All of these remedies will protect you from lead. That said, please remember there is NO safe level for lead. And a holy, jolly Christmas to you, too!

Shame that USA Today didn’t focus in on the fact that there is lead in the air, in our water and in our food. OOPSIE! In fact, lead in water is conveniently piped into Washington, D.C. homes for kids to drink in their own bathrooms and kitchens. Nice! Somehow USA Today missed this. Shocking . . . .

c. Candles with metal wicks might also have lead in them, or then again, maybe they won’t. In a blow to poorly-researched newspaper articles, the CPSC apparently banned these wicks in 2003. Who knew the CPSC actually tried to its job before the CPSIA? Somebody should have told Congress.

According to this all-knowing newspaper, candles also contain paraffin, a wax made from petroleum. Not sure why I should care about that, but it sounds ominous. And some fragrances in candles have phthalates in them “which can affect the hormonal system”. Isn’t knowing nothing about science FUN???

The solution – The author of this article actually recommends that you use pure beeswax candles. Happy hunting! They also suggest you “poke cloves into oranges”. Ah, the old clove poking trick! That sounds like fun but IS IT SAFE? This article says oranges have lead in them. NO! And, for an extra kicker, it also says they have cadmium, too: “If the soils contain toxic metals like lead, mercury and cadmium then the consumers may be poisoned as happened in the “Ouchi-ouchi” disease in Japan . . . and similar episodes.” Wow, Ouchi-Ouchi! Scott Wolfson, do you hear a bell ringing? [Eating oranges didn't cause "Ouchi-Ouchi" but then again, researching these things is sooooo time-consuming.]

So there you go. Skip Christmas this year, too dangerous. I wonder if a Festivus pole is lead-free . . . .

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CPSIA – Taking Advice from Idiots

CPSIA – Appropriate Recall Points Out The Real Problem

795 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 15 days left until Election Day.

The CPSC today announced a recall of a product called “Bathtub Subs”. The battery-operated bathtub submarine toy is “yellow, has a smiling face, turquoise windows, an orange propeller and an orange periscope that turns the toy on and off. The intake valve has a water pump that sucks in water to propel the submarine.” The cringe-worthy problem: “The intake valve on the bottom of the submarine toy can suck up loose skin, posing laceration hazard to children. . . . CPSC and the company are aware of 19 incidents of lacerations to boys’ genital area. One of the incidents required medical attention.”

This product has a real safety issue, and it has nothing to do with lead. We can understand the problem because the issues can be described accurately and the injuries can be measured. This is how we can measure the right response. The product was aimed at very young children (toddlers) in bath-time play. It seems foreseeable that the toy might rest against “sensitive” areas. The product was not apparently designed with this risk in mind. Please contrast your ability to assess the issue here with, say, rocks, fossils, pens, ATVs, bicycles, musical instruments, children’s underwear, shoes, books and other products that have famously run afoul of the CPSIA’s restrictions on lead without demonstrating any apparent safety issues.

As a toy maker, I hate when this kind of problem happens. It makes all of us look bad, even we had nothing to do with the issue. We all get blamed for problems caused by other companies. This is how CPSIA’s are born.

There were 19 incidents in the last year with this product. Makes you wonder what it takes to get someone to do something about the issue. Do you think this was a “mystery”? Here’s what you find on the Amazon.com review page today (before it gets taken down):

“Dangerous toy, May 25, 2010
By Tyler Warren

I bought this toy for my 12 month old son. He was playing with it in the bath one evening and put it down in his lap. It sucked up some skin on his penis and cut it. I called and put in a complaint to Munchkin and I am very disappointed that this toy is still on the market a month later. This toy is dangerous and should not be given to children.

Comment Initial post: June 15, 2010 8:37 PM PDT

Julie Everett says:

The same thing happened to my 19 month old son tonight. I reported it to the CPSP [sic]. You should do the same since the company didn’t take you seriously. My son has injuries to his penis and testicles. Here is the link if you like. https://www.cpsc.gov/cgibin/incident.aspx

Very Dangerous, June 15, 2010
By Julie Everett (Florida)

My son loves this toy. Tonight he was playing with it in the tub and also set it in his lap and it sucked some of the skin from his penis and his testicles and cut both of them. I will be filing a complaint with the company as well. Do not buy this for your child!

I agree it is a dangerous toy…, August 8, 2010
By Pamela Beightol (Falconer, NY United States)

I had the same thing happen to my 15 month old when he was playing with the toy. His skin from his penis got cut after about 3 minutes play with the toy. I would not let my 5 year old play with it either.

I would have given it no stars if possible, August 26, 2010
By Kendall Tupker

The same thing happened to my 13 month old son. We had just given him this toy to play with in the bathtub and within a few minutes he was screaming in pain. While he was holding it in the water near his lap it caught his foreskin and cut him. Needless to say the sub ended up in the garbage and I made a complaint to the company. Never, ever buy this toy.”

This was publicly available on Amazon for months before either the company or the agency did anything about it. By all appearances, neither did Amazon.

Let’s face it, this item is not exactly a dire threat to our way of life. That being said, this kind of insensitivity to consumer needs and expectations is how unjust laws like the CPSIA get written, passed and revered. It is also raw, red meat for a headline-mad CPSC anxious to justify its existence and its budget. Do I hear massive penalties?! Manufacturers have to think ahead and consider whether they want stories like this told about them. This is a compliance issue, a duty of care issue. It is NOT an issue that requires legislation. Unfortunately, nothing is routine at our regulator these days. Who knows what the implications will be flowing from this recall.

One last thought: among the many reasons that I truly HATE the CPSIA, it is the rising spectrum of a liability feeding frenzy over children’s product safety. This can ruin what we are doing, and in any event, I don’t relish planning my business around protecting myself from ravaging trial attorneys. Paranoid? Well, I received notice of this recall at 5:40 PM CST and in the next 15 minutes found these two sites devoted to this very recall:

Lawsuit Settlement Funding and Lawyers-and-Settlements.com. The latter website invites: “If your child has suffered an injury related to the use of this product, please click the link below and your complaint will be sent to a lawyer who may evaluate your claim at no cost or obligation.” Remember, this was up within 15 minutes of the announcement of the recall.

Think of the chaos that will follow the much-anticipated public database. We can only pray that a Republican Congress will de-fund the database before it gets off the ground. Or else we’ll all be in the ground . . . .

Vote on November 2nd. It’s your duty!

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CPSIA – Appropriate Recall Points Out The Real Problem

CPSIA – Recall of Safe Products Continues to Reverberate

The national convulsions (call it “brain softening”) induced by the CPSC’s action in forcing McDonald’s to recall admittedly SAFE Shrek drinking glasses continued to spin out of control today. Following their usual election year script of harshly dealing with invented crises to impress the easily-duped public, Henry Waxman and Bart Stupak, two Democratic leaders on the House Energy and Commerce Committee, sent letters today to McDonald’s and the manufacturer of the glasses, ARC International, demanding information to blow this non-issue up into a mega-crisis.

Before I summarize how Waxman and Stupak worked to spread regulatory disease far and wide, I think we all owe a big THANK YOU to the CPSC for so vigilantly protecting us from these safe products. There is no doubt that we were all victims of a false sense of security, not knowing that atoms of cadmium might be lurking on the outside of drinking glasses. Of course, cadmium atoms also lurk in our food, in our water, in our air, in our dirt AND on countless glasses in our homes sold over preceding decades without incident – but, heck, that’s a little too science-y, don’t you think? Only by exposing that these glasses are SAFE while at the VERY SAME TIME pushing for a highly-publicized recall and resulting media panic, did the CPSC reveal that we were actually safe without even knowing it – and yet they STILL acted to protect us! What a great bunch of guys and gals we have at the CPSC, we are so lucky. No really, thank YOU Consumer Product Safety Commission!

Mssrs. Waxman and Stupak sent off two letters demanding lots of “incriminating” information, such as:

• A list of all manufacturers and distributors that supply McDonald’s with children’s products. McDonald’s interest in keeping its suppliers’ identities confidential as a trade secret is no never mind. After all, the glasses they recalled are SAFE, so you can’t take ANY chances. And let’s not forget the FACT that the other McDonald’s items are NOT suspected of ANY violation of ANY law. This is Mr. Waxman’s wizardry to keep us all so safe. . . .
• A list of all the “steps” McDonald’s takes to ensure that children’s products do not contain hazardous materials. The FACT that the CPSC has declared these glasses SAFE does not apparently matter in this inquiry, raising the question of what Waxman and Stupak mean by “hazardous materials”. Presumably then, the presence of an atom of cadmium might meet their “standard” for hazardous materials. In utopia, there is no cadmium. Waxman and Stupak represent the 1st and 8th Congressional Districts of Utopia, respectively.
• The identity of the supplier of the enamel on the SAFE glasses. This identity had previously been withheld by ARC, showing character by attempting to keep the crisis away from an innocent supplier. As ARC said in a recent newspaper report, “[it] could have been any glass company. . . . We all do the same thing using materials from the same suppliers.”

I find it ironic that the Ranking Member of the Subcommittee on Oversight and Investigations is none other than Michael Burgess. Burgess is a doctor (M.D.). Maybe he has a sense of what constitutes an actual hazard to human health. If he does, I hope he shares it with his colleagues on the other side of the aisle. . . .

Hey, let’s not get too paranoid here. No one is going to pay attention to this mass hysteria or change how they regard the federal safety laws. This mega-screwing of two reputable companies over admittedly SAFE products is not relevant to the rest of us. Why? They’ll never be interested in us because we all make . . . SAFE PRODUCTS.

Oh, crap.

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CPSIA – Recall of Safe Products Continues to Reverberate

CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

“Bad Optics”.

I was thinking of that phase today as I was pondering the astounding mental gymnastics employed by Chairman Inez Tenenbaum and Commissioner Bob Adler to justify keeping private the Commissioners’ debate over the agency’s recommendations to change the CPSIA until the report is delivered to Congress. Tenenbaum and Adler both asserted yesterday that the private deliberations currently going on were more than sufficient to create the necessary “vigorous debate” all of us Americans hope would occur on a five-person Commission.

You are probably scratching your head. What’s the big deal about the Commissioners sitting in one room and discussing an important issue? Well, there’s a legal problem here: the Government in the Sunshine Act prohibits meetings of more than two Commissioners without announcing the meeting publicly and making it available to the public. [You owe C-SPAN to this law.] Arguably, three Commissioners can’t take a taxi together or gather around the water cooler to resolve issues relating to the Cubs Spring Training line-up without an Internet camera firing away.

Here’s some background on the Sunshine Act:

“The Government in the Sunshine Act was passed by the Congress of the United States in 1976. It required for the first time that all multithreaded federal agencies (meaning those which have units that work independent of each other) hold their meetings regularly in public session. The bill explicitly defined meetings as essentially any gathering, formal or informal, of agency members, stretching so far as to include conference calls.

Many federal agencies, most notably the independent regulatory agencies, are headed by collegial bodies. A clear example of this setup can be found in the five commissioners of the Federal Trade Commission. These agencies make most of their decisions through discussions and voting by the board or commissions members. This law was created so that these meetings would be in the public domain for all of us to review, so that if we wish, we can investigate the procedures and decisions of any multithreaded federal agency.

This bill was conceived and passed in the wake of the Watergate scandal, when American mistrust of government was running very high. The government responded by creating various committees to open the meetings of the government, but without a legal backbone to stand on, these groups were wholly ineffective. After some pressure from the public, the act was passed in order to provide a legal backbone for the opening of meeting records to the public.”

So the Commissioners are not allowed to meet as a group unless you (the general public) are invited. As the above link attests, this means Commissioners may be constrained in what they choose to say – because you are peering in. Mr. Adler noted this issue yesterday and also expressed his frustration that as soon as he says something in a public meeting, “it’s all over the blogosphere”. You know, like in this column. Aside from the fact that the Sunshine Act is MEANT to facilitate precisely that, it also fosters accountability. I believe these same concepts underlie the Freedom of Speech, something we are all dependent on.

Ms. Nord pointed out that the purpose of a five-person Commission is to meet and work as a group. I would note (the obvious) that the debate proposed by Ms. Northup would occur AFTER all the private deliberations, and thus might occur at a very productive time. Whatever, Mr. Adler said he was satisfied with the current process, notwithstanding Ms. Northup’s point that if meetings involved more than two Commissioners or were exposed to the light of day, errors might get corrected.

Errors – that’s an interesting point, isn’t it? Correcting erroneous information, probably a good thing, right? Bad information could lead to bad decisions. . . .

This leads us back to “bad optics”. As you may recall, the Commission held a hearing on November 4th to decide the fate of Learning Curve and its famous brass bushings. Despite conceding that the brass bushings were perfectly safe, Mr. Adler voted against the exemption petition. Along the way (at about 25:00 in the video of the hearing), Mr. Adler launched into an unprompted and rather condescending bashing of Learning Curve, accusing them of “bad optics”. Why did he do this? As I explained in a blogpost on November 5, Mr. Adler had received erroneous information about the company’s sales practices from a member of another Commissioner’s staff. Taking this information as fact, he gratuitously offered the company some coaching on managing appearances in Washington: “If I had to give any advice to [Learning Curve] on ‘optics’, I don’t think it’s such a good idea to come in and say ‘We admit we’re breaking the law, we’d like an exclusion but oh, by the way, we’re going to continue selling this product during the pendency of the proceeding.’ I would urge them at least as a matter of courtesy to withhold sale and distribution during the pendency of this proceeding.” [Emphasis added] Of course, Learning Curve never said any of this.

You can imagine how Learning Curve must have felt about this – they were later to get whacked with a massive penalty for lead-in-paint, and those negotiations must have been going on at that very moment. When I wrote about this on November 4, Learning Curve’s lawyer read my blog and contacted Mr. Adler, who then urgently called me (as I sat down to dinner while on vacation) to ask that I publish his retraction right away. You will find the retraction in the November 5 blogpost above and on the CPSC website.

Presumably this kind of experience leaves scars but now two months later, Mr. Adler appears to have forgotten it all. In early November, he was left exposed and embarrassed by erroneous information passed along in a private meeting. He was not protected by checks-and-balances because the Commissioners are unable to meet in groups and as a result, laid an egg in a very important hearing. To judge by the urgency of his appeal in November (and his remarks in yesterday’s meeting), Mr. Adler does not like to be wrong nor be exposed as wrong. YET he now defends the very system that caused his own demise.

“Bad optics”, indeed. Mr. Adler, what is the message here?

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CPSIA – "Bad Optics" or Did Bob Adler Actually Learn His Lesson?

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.

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CPSIA – How Important is Testing After All?