CPSIA: CPSC announces 1-year enforcement stay

by Walter Olson on January 30, 2009

[Headline updated to reflect full commission approval.]

In a major development this afternoon, the staff of the Consumer Product Safety Commission has proposed (PDF), and the commission itself has agreed by a 2-0 vote to, a one-year stay of enforcement of CPSIA’s testing and certification requirements (but not its introduction of new lead and phthalate standards; products will still need to conform to those standards).

This is, in general, very good news, but two problems need to be pointed out. One is that the action may be vulnerable to legal challenge as violating the CPSC’s legal obligations to regulate, and in particular to enforce CPSIA’s terms faithfully. As if to confirm that danger, prominent “consumer” groups — that is, the same groups that pushed CPSIA through to enactment and have vocally defended the law ever since — issued a letter this afternoon digging into their position that there’s nothing wrong with the law and that Congress should not revisit it. (Consumers Union, Public Citizen — the latter, it will be recalled, being the group whose David Arkush wrote last month “I haven’t heard a single legitimate concern yet” about the law.)

All these pro-CPSIA groups have lawyers; some are governed of, by, and for lawyers. If and when they sue the CPSC, a court could agree with them and disallow the one-year enforcement stay of certification requirements.

Beyond that, the CPSC is not the law’s only enforcer. Today’s letter from the commission states the following:

The Commission trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.

In other words, the commission has at most the power to stay its own enforcement, and cannot stay the 50 state attorneys general from going after makers of children’s goods, small or large, who fail to obtain testing certifications between now and next February. But it expresses a wan hope that they will be reasonable and not do so. You know how reasonable those state attorneys general always are.

In another development today, Sen. Jim DeMint (R-S.C.) has announced that he will introduce a bill that would broadly reform CPSIA’s terms.

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1 Esther 01.30.09 at 8:03 pm

The state attorney general things is an interesting problem. It crosses the line between state and federal law. State AG’s are not obligated to enforce unless they feel it is in the best interest of the state, correct? With many states having major budget issues, I would imagine that only a handful of states would take up CPSIA stuff for the time being. Though it could become a major problem in the future.

2 M 01.30.09 at 8:04 pm

More fun ahead…

3 dee 01.30.09 at 8:11 pm

Thanks for pointing out the fine print & translating it into plain English. I was wondering about the pitfalls. Those of us who cannot afford testing and certification are still out of business until the 30 comment period ends. So it’s still the ‘out of business’ mode until at earliest late March 2009 and the stay may or may not actually become reality. More spin cycle, loss of time/money for those who can least afford it and who have no recourse to unemployment compensation. My micro enterprise WAS the making of lemonade in a lemon job market. Thanks a lot all those who supported this egregious law. Bet all involved are still collecting their fat paychecks without interruption.

4 David 01.30.09 at 9:20 pm

Thank goodness they stayed this lousy rule. We have a small business producing and selling art prints for children’s rooms. According to the manufacters, neither the ink nor the paper we use contain lead. Nevertheless the interpretation of the law is so general that we would be forced to test every one of the hundreds of different prints we offer even though they are all made using the same ink and paper sources! This would cost us thousands, and thousands, and thousands of dollars. Having four children of my own, I too want to protect my kids, but requiring testing on ALL kid related items is absurd. In its current form, the ruling is a small business KILLER.

5 Andrew_M_Garland 01.30.09 at 9:27 pm

I want to do my part for promoting safety by breaking the news about the ongoing dangers of preparing and eating food:

Food Related Illness and Death in the US

[edited] We analyzed information from surveillance systems and other sources. We estimate that food born disease causes about 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths in the United States each year (1999).

Known pathogens account for 14 million illnesses, 60,000 hospitalizations, and 1,800 deaths. Salmonella, Listeria, and Toxoplasma are responsible for 1,500 deaths each year, more than 75% of those caused by known pathogens.

Unknown agents account for the remaining 62 million illnesses, 265,000 hospitalizations, and 3,200 deaths. Overall, food borne diseases appear to cause more illnesses but fewer deaths than previously estimated.

As head of the US Food Protection Agency (UFPA) (satire), I have issued the following regulations to be implemented within one month. Space limits us to listing only a small selection here:

All persons and especially children (APEC) should limit their intake of fresh food. If they must eat fresh food, frozen samples must be retained for later analysis in case of illness. A written food diary (FD) is required under penalties of SS 23, Para 12(b).

Fresh food shall be boiled for 20 minutes before consuming, including all fruits, vegetables, legumes, meats, and “other”. This includes lettuce, tomatoes, and bread.

Continued at “Stop the Death from Quilts and Food

6 Eric H 01.30.09 at 9:40 pm

Walter, I sure appreciate the link to Grimreader over on your Points of Law blog, but the real powerhouse behind all of the activism on this issue has been Kathleen Fasanella. Her main blog, http://www.fashion-incubator.com, is the most heavily trafficked business-to-business website in the apparel industry (over 8000 hits per day *before* CPSIA). She opened part of her forum to visitors (the rest of it is for members only) and there we started the activism that got the word out. In the beginning, mine were the only comments on websites with CPSIA-related content; now, I’m lucky to be 20th. Today, she was the third-most retweeted Twitterer. She started the first petition campaign (over 20,000 signatures), an economic impact survey, rounded up comments for a response to the component testing RFC in the forum. I believe that today’s news is the direct result of *her* “spread the word” campaign.

I don’t know if it is an oversight on your part, but I can’t find a single link from your editorials or your websites to Fashion-Incubator, the headquarters of the anti-CPSIA revolution. Can you please correct this?

Eric (the Grimreader)

7 Walter Olson 01.30.09 at 11:18 pm

Actually, I did link to Kathleen Fasanella’s Fashion Incubator twice in my January 19 post, as well as linking on January 14 to her more specifically activist site, National Bankruptcy Day. In any event, I’m happy to agree that she deserves tremendous credit for her leadership on this issue.

8 Eric H 01.31.09 at 12:14 am

Ah, so you have. Thanks, and thanks for getting this into Forbes, etc.

9 SSFC 01.31.09 at 10:08 am

Walter has also avidly retweeted links to Ms. Fasanella’s entries on this law. In any event, Ms. Fasanella certainly deserves the credit that give her Eric. She’s done as much as anyone to raise awareness of the CPSC problem, and her work is a testament that one person with a website can beat the media cycle.

10 John Burgess 01.31.09 at 10:21 am

Andrew_M_Garland: Your satire is an embedded fact of life already. My Irish grandmother didn’t consider anything fit to eat unless and until it was boiled a uniform gray in color. Didn’t matter what: green beans, liver, steak, oatmeal… Alas, my mother inherited that approach, which led to my and my siblings learning to cook defensively.

11 Jennie McKenzie 01.31.09 at 2:19 pm

This looks very good. Senator Jim Demint of South Carolina is introducing new legislation early next week: http://doiop.com/CPSIA_Demint .

There are six parts, all very sensible. I love what he says about component testing: “Lead isn’t going to come out of thin air. If the lead’s not in the components, it won’t be in the product.”

The conclusion: “It is my sincere hope that these reforms will ensure that children’s products remain safe and that our small businesses remain afloat. In this time of economic uncertainty it is inexcusable that we are placing small businesses — the proven engine of job creation — in such peril.”

How refreshing to find a politician with common sense! Let’s all give Senator Demint our support.

12 Bob Lipton 02.01.09 at 10:30 pm

As opposed to regulation, the Proven Engine of Job Destruction. Gotta love the people thinking of those children whose parents don’t have jobs.


13 Emily 03.16.09 at 7:01 pm

Can someone explain to me why the DeMint amendment only appears to apply to the lead limits/certifications/testing and not those related to phthalates? I may be missing something but I don’t understand why his amendment doesn’t address the phthalate standards…

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