CPSIA – Another Update on How VERY Safe We Are

I want to bring you up-to-date on the nuclear situation in Japan, but first a quick reminder – none of this matters BECAUSE there is no lead in plutonium or the other radioactive elements being discharged in tremendous mass into the air, water and soil by the disabled Fukushima reactors.

CPSIA – Can You Trust Me on the CPSIA Database?

I have received a fair bit of feedback on my recent posts relating to the CPSIA Database. You may recall that I highlighted the CPSC policy decision to knowingly post untrue and misleading complaints about consumer products on the grounds that they state the opinion of consumers of a “risk of harm”. Apparently, the ignorance of those opinions or outright, blatant error matters not to our CPSC market administrators. Our submission of a valid CPSIA test report and photographic evidence was not persuasive of our common sense position in the instant case.

[The rejection of a CPSIA test report in refutation of an invalid "product incident" complaint is fascinating, given the vigorous and oft-repeated consumer group assertion that consumers DEMAND test reports to feel "secure" that children's products are safe. Supposedly, consumers assume "somebody" is testing everything, or at least that's the poppycock the consumer groups flog. This is a bedrock "assumption" underlying the CPSIA. Isn't it interesting then that the CSPC apparently places so little stock in these critically important test reports???]

Par for the course, my comments in this space never get an official response. The substance of my complaints go unanswered – but in this case, the rumor mill is churning. That’s my answer, I guess. I am told that little birds (from the CPSC) are chirping that I am taking the CPSC’s response “out of context”.

This is a great tactic because the argument makes it unnecessary to respond to my points. It also changes the debate, from the substance of my database objections to the subject of my character. Lending credence to the vague and unproven accusations is the official stature of the CPSC and its staff. CPSC job titles convey credibility, and my lowly status as a “blogger” and a “Small Business” makes everything I write subject to doubt. Who knows more about safety and the law? Who is more trustworthy? Who speaks with greater authority? My character is an easy target, much easier to attack than my points about the database.

And how am I to defend myself? I don’t have the option to hide in the shadows and say they are twisting facts. You get to read what I say . . . .

I have long adhered to principles of truthfulness and full disclosure in this space. I defy you to find a better documented space devoted to analysis of the CPSIA and its wide-ranging impact. I use real data and link to actual source materials. In this case, I quoted from a letter from a senior CPSC official. I have not revealed who wrote it – for two reasons. First, this person speaks for the agency, and as such, it is the agency that is responsible. I think the institution should be accountable, even if individuals are its mouthpiece(s). Second, this is not personal and as a consequence, the identity of the email’s author is a secondary consideration. The law is the problem. The authorship of the email is off point.

Well, why don’t you decide for yourself? Can you trust me?

Email no. 1 (March 4, from our company):

“The LER 7273 that the initial complaint was issued for is a discontinued product and is no longer available for sale in our catalogs. I have attached a test report for this item showing its compliance to both ASTM F-963 and EN-71. I have also provided you pictures which clearly shows the hearts are much larger than the choke tube requirements.

Can you please confirm that the providing of this detail, which clearly shows that the product was tested to be in compliance and the additional photos clearly showing the product complies with the stated issue, would not appear in the database after March 11th?

This type of complaint is exactly what we find to be very troubling with the database to our industry. This is an example where someone saw a photo of a product and without even touching it or seeing it in person filed a claim that they feel it ‘might’ be a hazard. There is no indication of potential harm or actual harm caused, just a feeling that it might be dangerous. We were able to quickly provide testing documents and photographic evidence that the product is compliant to all applicable standards and product requirements with no potential choking hazard with the hearts provided with the product. The concern is that this unjustified complaint will be placed on the database with a reply from us that proves it is not an issue, but the damage has been done and the perception to the end consumer is that this product is not safe.

Thanks again for your help in understanding the application of the database and it’s intended applicability going forward.”

Email no. 2 (March 8, from our company):

“Our ten day response window is coming up fast on the complaint that we had issued against us. Have you had a chance to discuss the information I sent to you on Friday? Thanks.”

Email no. 3 (March 9, from CPSC):

“As we discussed last Friday , since we are in soft launch, the report will not be posted in the public database. When I called you last Friday, I told you the staff consensus was that but for soft launch the report of harm would be posted in the database, and you would have to decide whether to post a comment or a claim for material inaccuracy. When we discussed the issue further and I asked you to send me the information you sent last Friday, I did not understand that you were still attempting to resolve the issue in the ten day time frame.

I should make it clear from the outset that I am not the person within the agency with the delegated authority to handle material inaccuracy claims. This email reflects my opinions and not those of the Commission and has not been reviewed by the Commissioners. When you first approached me about this at ICPHSO, I told you that my gut reaction was that despite the concerns you raised, the Commission staff handling these issues would take the consumer’s report at face value as a claim raising a concern of a risk of harm. I explained then that your Firm could provide a comment with your objections to the report or object to the report as materially inaccurate. Given your concerns about the report, I raised the issue with the database team handling the issues and confirmed to you in our call last Friday that the response was the same. I also indicated that the claim of material inaccuracy would likely be denied. I explained that the personnel handling these matters were not making decisions as to whether the product was harmful but rather they would take a quick look at whether the report of harm articulates a risk of harm. I write to follow up further on this issue.

On its face, the report indicates a concern about a choking hazard which suggests that the consumer believes there is a risk of harm. On Friday, you sent photos and test results that you believe are sufficient to make out a claim of material inaccuracy, i.e., that the product cannot be said to present a risk of harm because it passed the small parts test. The sweet toy heart is larger than the small parts cylinder, and you have provided test reports indicating that the product passed the small parts test. However, in assessing whether a report of harm articulates a risk of harm, the staff is not adjudicating whether the product actually presents such a risk of harm. We have other processes for making that determination which require an assessment of the risk by Commission staff, including a subject matter expert – in this case, a physiologist on the issues relating to the likelihood of a choking hazard to children. Indeed, the Commission has recalled products as a substantial product hazard where the toy was slightly larger than the small parts cylinder but, because of the shape, when swallowed, the toy presented a choking risk to children. The ultimate adjudication of whether a product presents a hazard is covered by different regulations entirely and would require an administrative hearing before an administrative law judge. As I explained on Friday, the database process is set up to allow the manufacturer to state its reasons why the report does not present a risk of harm and have that appear next to the consumer’s report. The staff handling claims of material inaccuracy will not be determining the ultimate question of whether the product does, in fact, present a risk of harm. That would only occur after a full assessment of the risk of harm by the subject matters experts and ample opportunity for the firm to address the issues with our compliance staff. The disclaimer is intended to notify users that the information has not been evaluated and specifically states: The Commission does not guarantee the accuracy, completeness or adequacy of the contents of the Consumer Product Safety Information Database, particularly with respect to the accuracy, completeness, or adequacy of information submitted by persons outside of the CPSC.

When I raised this information with the team that has been delegated the authority for making these decisions, staff concluded that the report would be posted in the database but for soft launch, and it would be up to the Firm to decide whether it wants its test reports and photos posted as comments in response to the report. The conclusion was that this is the type of report that has been included in our databases in the past and would be included in the public database along with the manufacturer’s comments and the mandatory disclaimer as to the accuracy of the information in the public database.“

For the ease of your review, I have highlighted in blue the words which I quoted in my March 9th blogpost.

Can you trust me? I have nothing to say, please judge from the facts. For those that prefer to lurk in the shadows and bash my character without being in any way accountable, please remember that the truth will out. Eventually, it may not be my character that will be the big issue of the day.

Read more here:
CPSIA – Can You Trust Me on the CPSIA Database?

CPSIA – Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

I have prepared some clips from the CPSC hearing on 100 ppm Lead Standard on February 16, 2011. I have not prepared comprehensive clips on every presentation. For instance, I omitted the testimony of the testing companies from the second panel (here’s a hint – guess what they are ready and willing to do?). If you want to see video that I have not delivered to you on a silver platter, check out the CPSC video of the Morning Session (consumer groups and testing companies) and Afternoon Session (industry representatives, including my testimony).

There is a lot of interesting testimony not in my clips, in particular in the afternoon. Although I think I am giving you a lot of relevant information in the clips I prepared, you are always welcome to check my work. I was quite impressed by the other presenters in the afternoon session, and the vigorous and interesting discussion that followed, but anticipated that you would not likely spend 4-5 hours watching the entire thing. If that floats your boat, please enjoy the links above.

In this post, I am embedding several clips from the morning session where the consumer groups stated their “case”. I hesitate to characterize the testimony as “tall tales” but watch for yourself and see what you think. I have come to believe that the consumer groups will say ANYTHING to prop up their beloved CPSIA. [Consider the laughable "consumer poll" prepared by the Consumers Union promoted by Henry Waxman on the eve of the House Hearings on February 17, 2011. CU shamed themselves with this pathetic effort to "win" the debate with garbage polling data.] This may include the remarkable hyperbole in the clips below. We can speculate among ourselves whether Don Mays really shakes with fear at the thought of his daughter playing a brass instrument (he says he would be “very concerned”).

Likewise, does Dr. Dana Best believe the nonsense statistics she flung around last week, like the one about ingesting an object with 300 ppm lead costing a child four IQ points? Please, dear G-d, that statistic is absurd on its face. The assertion that children are losing four IQ points from swallowing objects with trace levels of lead is irresponsible and misleading at a minimum, and something much worse if done with understanding or intent. The spectacle of Ms. Best’s testimony included calculations of the “cost” of 1 million injured children DESPITE the inability of any consumer group to produce the case history of a single child injured from lead-in-substrate in children’s product EVER. [I replied to Dana Best in my testimony.]

We must hold Dana Best responsible for the words that came from her mouth. Interestingly, Dr. Best was the only nominal author of the seminal testimony on lead in the CPSIA debacle. According to her colleague Cindy Pelligrini, Dr. Best didn’t write her 2007 Congressional testimony (Pelligrini told me in a phone interview in 2008 that she wrote it for Dr. Best to deliver). Did Dr. Best write last week’s testimony or was it another Cindy Pelligrini job? One can’t help but wonder, given the shocking assertions based on misleading and garbled data. The AAP should be ashamed.

Dr. Dana Best (AAP) on losing IQ points and “millions” of victims:

Dr. Dana Best worries about children licking their bicycles . . .

My 17 year old daughter came along on this adventure and at breakfast the next morning, asked me why a child would like their sibling’s bike rather than their parent’s? After all, the adult bike is not regulated. I thought that was a good point, and added that if we posit that the child was going to lick something inappropriately, why would they lick a bike – why not the family car, which is coated with lead paint? Of course, I got it wrong. I was later corrected by someone who, after listening to this story, reminded me that the two year old wouldn’t lick either bike or even the car – they would play in the pool of oil under the car. You can take it from there . . . .

Don Mays (Consumers Union) and Dana Best (AAP) on the frightening prospect of children playing in brass bands:

Read more here:
CPSIA – Consumer Group Testimony at CPSC 100 ppm Lead Standard Hearing 2-16-11

CPSIA – ICPHSO Update on the Database

Cheryl Falvey announced at the beginning of this overtime Q&A session that she wants to have a civilized discussion of the problems of the database, because they want to solve problems. That said, she said she’d cut it short if it turns into a gripe session about the database “because I know you hate the database”.

Nice, at least the General Counsel of the CPSC has an open mind! This reminds me of her aggressive and utterly unsympathetic suggestion at the November 2008 CPSC Lead Panel that we should all have a big “yard sale” of products that exceed the lead standard. Gave me a warm feeling then, gives me a warm feeling now.

I will try to craft some questions that she will find acceptable.

CF: Need to have your licensees register as part of the database. Licensors can also be listed as a “viewer” under the DB. They may not want that, because there could be liability issues.

[RW: Hmmm, I thought this database was all about empowering consumers. Liability? Empowering consumers to do WHAT?]

CF: More details given to licensors [aimed at Disney, who must have raised this question offline] plus some legal advice on how they should structure their licensing agreements “right now”.

CF: It’s a “complaint” database, not a “causation” database. [RW: This makes NO sense based on the stories they all tell about why they want the database implemented, especially the fantastic story told by Inez Tenenbaum in her keynote speech. She says she feels good when someone removes a product from use while the CPSC is working on a recall. This is CLEARLY all about making a JUDGMENT on the products - in other words, CAUSATION. It's a tall tale to contend that the general public will understand that this is a complaint database. Consume groups promote the database as a warehouse of the truth, not just a "blog". Cheryl Falvey is spinning yarns to justify her work on the database.]

CF: You are raising policy questions and this meeting is not about policy. We were dealt this hand and were told by the Commission to get the database up and running. If you disagree with the policy, you need to take it to the Hill. I am going to take other questions now.

[RW: So we cannot complain about the consequences of CPSC action on the database because they're just doing their job. We must hold them harmless and "get used to it". This is an old argument used by Falvey in past speeches - don't be in denial, it's coming, get used to it, take it on board. My question for you - do you like being treated this way? I don't.]

Q: We have been the victim of fraud where people submit pictures of “injury” pulled from the Internet. We also don’t get enough data from you, may not have consumer’s contact information and don’t have the time or resources to properly research or resolve these accusations before the ten days are up. At that point, the damage is irreversible. What can we do to protect ourselves?

A: We have not had bad experiences in the “soft launch”. We don’t want you to be hurt, you should “raise” these issues. [Didn't she say this morning that they received so many photos that they had to get new servers? No problelms . . . .]

[RW: Fingers-in-ears. This does not correspond to the rules, Cheryl, and you didn't answer the question. The question notes that there won't be enough time or information to verify or sort out the claim before it's published. Why are you deaf to this? You know that your publication of this data CANNOT be remedied. Oh yeah, you are just doing your job.]

Q: Why can’t you just test this system with people who have already registered and learn about the issues from this experience?

A: Your idea is a “great idea” and we will see if we can run with it.

[RW: Don't hold your breath.]

CF: We really want to talk about the brand and license issue!

Q: What will happen to me if an injury report blaming me for an exploding battery is actually counterfeit?

A: The interest is in protecting the public, that’s the policy issue. The disclaimer seems to mean a lot to Cheryl, cures all these ills. She poses the question of whether bulking up the disclaimer.

[RW: The answer to all of these question boils down to the fact that manufacturers have no due process rights because their rights are deemed inferior to consumers. This is a policy decision, too, and is NOT part of the law. It's the philosophy of the CPSC these days, and is political in nature. Using Falvey to announce the policy makes it look more like a legal judgment, however. Falvey has not explained HOW due process rights guaranteed by the Constitution have been removed for U.S. corporations under the CPSIA.]

CF: Can’t put off the March 11th implementation of the database.

[RW: Recall my remark about an open mind. This isn't a gripe session, this is a venting session hosted by Cheryl Falvey. She has no interest in making any changes - consumer groups get their way. Mike Pompeo's amendment better become law. The CPSC will do NOTING to address known defects in the database. As Falvey says, these are "policy" issues, outside her job spec.]

Q: Can manufacturers reply or comment privately?

A: Nope, if you comment, the comments need to be published. Only the confidential parts of the comment won’t be posted. [RW: This is so unbelievably one-sided. It's victory for the left wing. They put their people in charge and let them run amok.]

Q: We share brands with other companies (think of celebrity brands). How will you handle notification tied to such brands on multiple products?

A: The tracking labels would really solve all of these problems! We need to be able to send the notice to somebody. We understand the gap and are working to make the system better. We have a lot of brand information already.

Q: We traditionally get written notices that identify us as a manufacturer of a halogen table lamp. We make 20 halogen table lamps. What will happen under the database?

A: You’ll get the notice and if you can’t give us information on the product, one of us will have to call the customer. In any event, the data will go up on the database.

[RW: This is a classic problem illustrating how manufacturers will be unable to verify information or contest information before it's posted. As Falvey demonstrates, CPSC policy is that this is the manufacturer's problem. This is a travesty. Ironically, the issue was subtle enough that the questioner (a large company) could not see that he is prevented from identifying the product - even to verify that he made it - but will be labeled the source of a product "incident". And Falvey says that a claim this lame will still make the cut to be published. Is that true? I wonder about that. If it doesn't make the cut, then Falvey can't match the rules to a scenario accurately. One way or another, it's a screwing. Thanks, CPSC!]

Q: If Li & Fung registers and gives my name as importer of record, who gets the notice?

A: We will go off the consumer complaint. Whoever is named will get the complaint. If they are registered, they will get it by email. If they are not, they get it snail mail. It’s still going up in ten days.

What a nauseating way to finish out such a lovely day.

Read more here:
CPSIA – ICPHSO Update on the Database

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