CPSIA, continued

by Walter Olson on January 19, 2009

On Friday there was a noteworthy development on CPSIA: Reps. Henry Waxman (D-Calif.) and Bobby Rush (D-Ill.) and Sens. Mark Pryor (D-Ark.) and John D. Rockefeller IV (D-W.Va.) sent a letter to Nancy Nord, chairman of the Consumer Product Safety Commission, endorsing some softenings in the law’s regulatory interpretation, which seems to represent a modest shift (if not an admitted one) from their earlier position. At the same time, Waxman, Rush et al held the line against any demand to revise the law itself, despite the outcry being heard from small producers, retailers and secondhand sellers across the country (more: my recent Forbes piece, some reactions).

threebears

On the same day they sponsored a closed-door briefing for Hill staffers which was billed as correcting supposed misreporting and confusion about the law and its onerousness. Such briefings are common when members’ offices are being hit by a torrent of constituent inquiries and want to know how to respond.

An editor at a large publication has asked me to write something about these new developments, so I’ll be working on that piece over the next day or two. In the mean time, let me recommend as a good place to start two excellent blog posts by Rick Woldenberg of Learning Resources Inc. (first, second).

The first post responds to the apparent new strategy of Waxman and Co. of proposing to exempt a couple of categories of generally safe products (ordinary children’s books, fabric-only garments with no plastic or metal fasteners) in the apparent hope that 1) Congress will look like it’s reasonable and “trying to do something”; 2) a few of the more visible (and politically salient) critics of CPSIA will be placated, at least for the moment. (One might add a third objective, whether consciously formulated or not: running the clock until Feb. 10 in the expectation that many of those protesting will at that point be out of the game — no longer in the kids’ product business — and so in less of a position to cause them political mischief.)

I agree with Woldenberg that the (piecemeal and grudging) proposals for exemptions do not begin to address the systematic problems with CPSIA. They leave at the law’s mercy innumerable products that are as close to zero poisoning risk as children’s books and all-fabric garments, or even closer. Indeed, it is hard to see on what rationale those two categories would be exempted and others not, aside from considerations of politics and public relations.

Woldenberg’s second post passes along a report from an unnamed source alleging that the Congressmen are unwilling even to hold hearings on CPSIA between now and its pending Feb. 10 deadline, as various other members of Congress have been asking them to do. If true, this constitutes an astounding display of contempt for the voices now being raised in concern from coast to coast on this issue.

In the mean time, here’s some further reading on the issue:

  • Good read on likely adaptations to law: hobby forums go private, outlaw-artisans, fewer choices, wink-wink “12 and up” labeling [ZRecommends]
  • Former chief economist of CPSC Paul Rubin criticizes law [Forbes comments, scroll to #38]
  • May I scream now? “Specialty Store for Babies With Hip Dysplasia Threatened by CPSIA” [Upscale Baby]
  • The most common misinformation to circulate about CPSIA is that thrift stores and secondhand sales have been exempted [Ed Morrissey, Hot Air]. The ABA Journal initially printed that, then to its credit ran a correction [in update] Earlier, some reports had erroneously asserted that resellers, like manufacturers, were legally obliged to test items; that also isn’t so. The truth is that while thrift stores are not directly obligated to test, they are liable if they inadvertently sell an old item any part of which (even a snap, button or bolt) exceeds the stringent new standards. Since a broad-based testing regime will normally be incompatible with the economics of a thrift store, that will leave them with the unpleasant alternative of 1) ceasing to sell kids’ goods; 2) predictably being in noncompliance on a lot of old items (without knowing which ones) and hoping no one actually enforces the law against them.

    Unfortunately, the famous urban-legends site Snopes.com is making itself at best unhelpful on the issue: in a “pending” entry it correctly refutes the resellers-must-test error, but then proceeds to spreads its own “only bad guys need worry” urban legend to minimize concern about the stores’ legal exposure. One response: “Snopes is Wrong on the CPSIA“. Although Snopes does much good work on many subjects, the contestability of their views on more political matters will come as no surprise to readers of Ted or, for that matter, of Patterico [more]

  • One reader thought I was incorrect to describe Rep. Ron Paul as casting the only vote against CPSIA, because a roll call showed that the Texas Republican was absent and the vote was unanimous. As usual with this sort of discrepancy, what’s going on is that the bill during its procedural history went through more than one vote. If you’d like to look the stages up in detail, they’re here.
  • Some journalistic coverage worth checking out: L.A. Times [harsh effects on medium-sized kids' clothing makers], CNNMoney.com, Wichita Eagle, WJXT Jacksonville [books], Danbury (Ct.) News-Times [books], and Troy (N.Y.) Record. And legal-journalism professor Mark Obbie asks: why have consumer and legal reporters been so slow to pick up on the story? (My working theory: many of them, at least in the prestige media, tend to take their cues on “consumer safety” issues from the same sorts of groups who gave us CPSIA).

{ 2 trackbacks }

CPSIA employee whistleblower provisions
01.22.09 at 9:32 am
CPSIA: Part II at Forbes.com
01.22.09 at 7:00 pm

{ 14 comments }

1 Mark Riffey 01.19.09 at 6:59 pm

What stuns me about all this is that with all the noise being made about all these handmade vendors going out of business, almost no one is talking about the “other shoe drops” part of the impact of this law.

And what is that?

It’s how the impact of the closure of these businesses will impact the other businesses in communities all over the U.S. when those small businesses no longer need accountants, attorneys, office supplies, snowplowing or office cleaning, much less employees.

And how the closure of those businesses puts a ton of people out of work at a time when NO ONE wants to be looking for a job.

And how all those newly unemployed people will suddenly have far less to spend on everything from hot dogs to Valvoline to legal services.

That is what is going to turn the CPSIA from a tragedy into a full-blown nightmare across all sectors of small business.

Even my granddaughter understood it.

2 Eric H 01.19.09 at 7:05 pm

Very nice update.

From what I can tell, the “clarification” (or “amendment” as it has been incorrectly called) about resellers basically puts them in the same position as they were in before, i.e. they are retailers. Like all retailers, they cannot sell items that don’t meet the standards, same as before. The only difference is that they have no chance of contacting the manufacturer and getting a GCC for used items. Maybe in a few years, when the labeling requirement that goes into effect in August has had its effect, but not now, no way. So resellers are in a worse position than other retailers, but facing the decision you outlined above.

And, Snopes is wrong. I wrote and suggested they change the article, but they hold fast. This makes Wikipedia a slightly better arbiter of truth since, if you don’t agree with it, you can at least edit it yourself.

3 Karen Clark 01.19.09 at 7:27 pm

Great article with meaningful and relevant links. I think it is great that you included a picture of the Three Bears. In that story, a stranger, unfamiliar with the lifestyle of those in the home, walked in when the bears weren’t looking. She tried out and scrutinized several items in the home, destroying some of them in the process as she went along. She had no business being there at all, and when she was discovered, she panicked and ran for her life. Unfortunately, the damage was already done.

4 SSFC 01.19.09 at 7:49 pm

Good comment Eric H. Bear in mind that administrative “interpretations” of ambiguous laws can be changed more easily in practice than amendments or repeals; and that the interpretations come from administrators whose main interest is in increasing the power and budget of their agencies.

Best repeal the whole circus, while that’s still feasible. In five years, that will be impossible.

5 Todd Rogers 01.19.09 at 8:04 pm

So, let me get this straight. (For clarification purposes,) the city council goes to see the chief of police. They hold a meeting and invite the town gazette. In front of the cameras and Ms. Gertrude (town journalist) they instruct or inform the chief that the law might result in a few oddities because they were little drunk at the time and with all the love fests going on for the newly elected mayor, they kind of slept in and didn’t exactly read the whole bill. So, they ask him to go easy on folks and use his best judgment. Instead of doing their jobs, they took the word of a guy (who bought them all new cars) that this was a good bill, and said guy had it on good authority that everyone was on board. Now, because the fan is brown and smells like dung, they suddenly realize, holy crap, we !&*!ed up and instead of fixing this thing, we should just have another love-in with the interns and figure out a way to sell this turd so we all get re-elected. Am I getting all of this down? Wow, it sure is a good thing we have elections ever few years.

6 trinlayk 01.19.09 at 8:31 pm

If this law does NOT apply to us in these ways, why hasn’t ANYONE from CPSC come right out and said “this doesn’t mean the local boutique, the Salvation Army Store, the yard sale, or the granny making baby blankets at the kitchen table?”

IF it DOESN’T apply down at our level, why can’t they explain WHY it doesn’t.

Don’t blame us for passing “misinformation” if we are reading the law, and seeing that it very much includes us…

Don’t blame us for passing “misinformation” or dissing us as “Mommy blogs”, when we HAVE been asking questions and getting either NO answers or CONFLICTING answers.

Sorry congress, and CPSA you could have avoided the panic EASILY by giving us a straight answer from the get go. Or even saying “Hey, lets put this on hold awhile while we all figure out what the actual outcome of this is going to be.”

HOW about having funded CPSA adequately years ago, so that in 2007 they would have been equipped to enforce the EXISTING laws and enforce appropriate fines/charges as well as recalls.

How about following Europe’s example for upgrading the standards?
How about expecting China & India to obey and enforce their OWN laws and standards?

US crafters shouldn’t be sold craft materials with lead in them according to current law. So an artist, or micro business buying their supplies at the craft store or department store should already be ASSURED that the products they are using to make new and wonderful things are ALSO safe.

If something I’m making and selling in Wisconsin has lead, it can’t be something I’ve knowingly added to my product. I had to have been illegally sold a supply with inappropriate levels of lead.

This law is just insane, and every time I’ve read it, it’s seemed MORE insane. It’s full of contradictions, and confusing phrasing.

7 Tristan Benz 01.20.09 at 1:31 am

First – Karen – how bright you are! I love to see folks picking up on the ‘little things’ like that – brilliant.

Second – it’s clear to all with a mere grain of common sense that this is a train wreck. While one side of my brain is fixated on arming myself with knowledge, the other side is trying to figure out how to arm enough people with the appreciation of how significant this is (on so many levels) and just how important their voice is to heading off an absolute disaster created by folks we citizens have given the right to legislate “on our behalf” in the first place.

As here we see the three bears, my mind’s eye sees my children’s video version of Horton Hears a Who – unless and until the smallest of voices join in the chorus of outrage, to rail against the insanity of this irresponsible law-making, I can’t help but wonder, how will Whoville ever be heard? For every mompreneur like myself who is getting involved, there must be thousands that haven’t spoken or taken an action…

Thanks for you work on this – you really are my hero here Mr. Olson – I look forward to reading more updates and sending more folks over to read your work and get inspired to get involved.

Tristan Benz

8 David Townsend 01.20.09 at 7:17 am

Follows the rule which we observe on our side of The Pond. Any law that is passed with all-party support is automatically going to be bad law.

9 Kris Ivie 01.20.09 at 12:58 pm

What bothers me is that congress constantly complains about the judiciary trying to “legistlate” by “interpretting” the law differently than it’s written. Their answer to a law that allows no interpretation allowing for the exemption of certain products is for an “executive” agency to interpret it differently. The CPSC can claim to “allow” these exemptions, but the law also gives the authority to enforce the law to the 50 state attorney generals’ offices. There is no guaranty that they will be willing to “interpret” the law to exempt second hand stores since no wording in the law allows for this interpretation or bestows any special regulatory power to the CPSC to make those changes. Congress is trying to save face and scapegoat the CPSC. The only legal and constitutional way to change this law is if congress passes an amendment either granting the CPSC the right to make exclusions or clarifying what is and is not considered “safe” or exempted from the testing. I also don’t like that by giving second hand stores an exemption it becomes the responsibility of the consumer (and therefore legal liability) to prove or disprove that a product is safe. I don’t think anyone is going to spend thousands of dollars to test the $1 toy they bought at the second hand store to make sure it doesn’t have any lead in it. What happens when a child does get sick and it does get traced back to a toy bought at a second hand store? Doesn’t that mean that the law “failed” to protect the consumer and that the CPSC was negligent in their responsibility to enforce the law “as written”.

10 Susanna 01.20.09 at 5:33 pm

Thank you so much for this wonderful article.
First- In addition to Ron Paul voting against this, in the Senate Jon Kyle, Thomas Coburn and Jim DeMint also voted against it.
I’m not sure if you are aware of this:
Nancy Nord opposed the CPSIA. As I read those older news reports, it is clear that she and the Bush administration were lambasted by the media at the time who accused them of wanting children to die from lead poisoning. Also, Nord issued a statement in November last year saying that the law would only apply to toys made AFTER the Feb. deadline, BUT Congress chastised her and said that the intent of the law was specifically to address all toys made both before and after the Feb. deadline. Please see this: http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=d0d33ee4-99d6-0810-e314-efbf79ace102&IsPrint=true
I think that would explain why the CPSC’s latest letter to consignment and thrift stores seems like double speak.
From my point of view, the CPSC is damned if they do, damned if they don’t. (don’t forget to check out all the you tube videos of the hearings on this law with Nancy Nord to see what I mean)
Congress is trying to pass the buck and make Nord look like the bad guy, when the truth is she proposed a more reasonable law in the first place.
It seems clear to me that the current Congress really has no agenda other than making themselves look good. So, while we bang on their doors and force them to listen, lets just ignore their attempts to crucify Nancy Nord. If that’s what they have to do to get this law changed, well then I think that says something about their character, but at least the law will get changed. In the meantime, I will send positive thought’s Nancy Nord’s way and write her a nice note.
And in the next election- I’ll be voting third party. :)

11 Md 01.22.09 at 2:51 am

I want to thank you for drawing attention to this and writing the article at Forbes. It has been one of the best sources of information we have been able to pass along to people who don’t know about this.

I don’t myself create products which are intended for children but could easily fall under the overly broad law of what “appeals to children under 12″. We’ve asked and been given no guidance on what the law actually applies to, so those of us not making children’s items are wondering if someone will report us for selling something cute or whimsical intended for adults. Children’s books authors and illustrators and publishers are worried and having to hold on projects and proposals.

12 Amy Hoffman 01.22.09 at 7:00 pm

This is a copy of what I wrote to The New York Times:

The childrenswear clothing, accessory and footwear industry is in a state of turmoil and on February 10,2009 it will crash! The industry as we know it, will be gone. The new CPSIA law that is to go into effect on that day will create havoc. Mostly the small to mid size companies will disappear- and the New York Times has never once written about it. That’s what makes it very scary!! No one realizes the impact that this law will have if it goes into effect as it is written , will do to this already suffering economy- and the New York Times has never written about it. The certification required is a very costly and time consuming process. When third party testing will be required in August- the delays and additional cost to manufacturing will be unmanageable. I am an independent sales representative in the kids clothing business in New York. I have been in the business for over 20 years. My manufacturers and I were at a trade show at the Javits Center in January- we heard about this new law by word of mouth!!!! It is a law that doesn’t make any sense and we need your HELP!!!! Small to mid size manufacturers and other kids reps across the country have been communicating, signing petitions, etc- doing everything we can. We need the help of the New York Times-NOW!!! Time is of the essence. If this law stays as it is written not only will thousands and thousands of people be out of business- but the ripple effect it will have on this economy will be unbelievable. Add that to our economic turmoil that we are already experiencing and who knows what will happen. The stores in California are already aware of this new law- but on the east coast and basically the rest of the country- not many stores are aware of it. I am so surprised that this issue has not been written about by your paper.

Amy Hoffman

13 Walter Olson 01.22.09 at 7:41 pm

Excellent point about the Times; it’s very hard to get high-ranking media to treat a story as real if the Gray Lady refuses to acknowledge it. And it’s just bizarre that it hasn’t done so, given its efforts to play an important role in coverage of the design and apparel businesses, as well as law and governance. I’ve noted the point in a more recent post.

14 Deputyheadmistress 01.22.09 at 9:59 pm

The Times has written about it. They were all in favor of it:
http://www.nytimes.com/2007/10/31/business/31consume.html?fta=y

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