CPSIA chronicles, February 19

by Walter Olson on February 19, 2009

StrongerWhenLinked

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Advice Goddess Blog
02.19.09 at 5:20 pm
Coming out in force against CPSIA « 5 Kids and a Dog
02.19.09 at 7:09 pm
CPSIA: “What’s so sad is that books aren’t dangerous”
03.05.09 at 8:04 pm
CPSIA chronicles, February 27
04.23.09 at 12:10 am

{ 10 comments }

1 Amy Alkon 02.19.09 at 5:23 pm

Kudos, Walter. It’s so incredible to me that, as we’re passing massive welfare packages for banks and automakers, and as ordinary people across America are losing their jobs, the pandering idiot sleazebags who claim to represent us pass bills that put people like a friend of mine out of business. She’s a stay-at-home mom and wife of a man who just lost his job. She’s also a toy designer who created adorable kids board games out of organic cotton and vegetable dyes, none of which can be sold now, without $4,000 in testing.

2 Mark Thompson 02.19.09 at 6:16 pm

Walter:
One thing I learned in researching my Culture11 piece back in December was that the evidence strongly suggested that the big industries, having reviewed the laws and having realized that they would be able to adjust to them, made a public effort to appear supportive of the law in the wake of the PR disaster that was the Chinese import scandal. It’s undeniable that their lobbying budgets increased by a massive amount during the time the legislation was under consideration. I also uncovered some Congressional testimony in which they pretty clearly expressed support of the legislation.

BUT, try as I might, I wasn’t able to uncover any evidence that they actively sought to drive smaller businesses out of the market. The circumstantial evidence pointed more to a defensive campaign in which they were trying to walk a fine line between being supportive of the law for PR purposes and making sure that it wasn’t so burdensome on them as to drive them out of business. I don’t think it’s unfair to say that they had no incentive to make sure that the law would also be tolerable for smaller competitors or for businesses in other industries.

The trouble is that this lobbying campaign, assuming I’m right about what went on behind closed doors, had the unintentional side effect of giving Congress a reason to shut out businesses who were overly affected by the legislation. One source told me that Congress’ response to the handful of businesses and industry groups who did try to push for major changes was to basically tell them that “if the big guys are ok with this, then the law must be tolerable, and we’re not even going to listen to you.” Making this problem worse, of course, was the fact that so few affected businesses were even aware this legislation was out there, so obviously there weren’t many voices around to object even if Congress were willing to listen.

3 Walter Olson 02.19.09 at 6:42 pm

Mark — Thanks for these very pertinent comments. The little I’ve heard about the question — and I’m embarrassed to say that like so many others, I was not paying the attention I should have last year as this bill sailed to passage — is consistent with what you say.

4 Tristan Benz 02.19.09 at 9:38 pm

I’ve posted the following blog attack on both our legislators and our media: Cheering CPSIA Chronicles installment No. “I’ve heard enough” – kudos for your post yesterday.

No matter how many ways there are to skin a cat, THIS CAT needs SKINNING!! I believe, if everyday citizens knew exactly what’s been taken from them “on behalf of their children,” they would be as steamed as this mom / business owner is.

I will not budge from square ONE – this is a matter to be taken up by WE the people, on behalf of OUR CHIDREN.

Thanks for the roundup – it’s time to circle the wagons!

5 Scott 02.19.09 at 11:34 pm

What still amazes me is that the story about ballpoint pens being in violation of the CPSIA isn’t getting more notice. The CPSC admits that ballpoint pens intended for children are covered. As it happens, the US trade association for the makers of pens, pencils and erasers has sent a letter to the CPSC that ballpoint pens are not-compliant and no existing alloy satisfies the lead limits. It may take 2 years to develop an alloy, if one exists. I can only conclude that there must be very very very many stores not in compliance and `poisoning’ our children with lead. Are these stores not facing strict liability and risking felony criminal liability including 5 years in prison and $250,000 fines? The stay by the CPSC doesn’t help the pen-makers or sellers, because they’re in knowing violation of the lead limits. All they can hope for is that none of the 50 state attorney generals decides to prosecute what would appear to be a slam-dunk case. There is a chance that the CPSC may eventually decide to make an exemption for pens, however the CPSC admits that its staff is `not yet aware of any substance as to which the required showing [of no absorption of any lead into the human body] can be made.’.

6 Happymom4 02.20.09 at 2:11 am

More great coverage. Thanks.

My kids are happily enjoying their lead-soaked pre 1985 books. They actually treasure them now more than ever before, as they realize how easily they could be removed from them–and how unlikely it is that they’ll be able to get more.

Isn’t it sad when kids have to be SCARED that their books are going to be taken away by the government?

BTW, my 16 year old has tested out in the “Near Brilliant” category on his IQ. Doesn’t seem like all these lead-loaded books have messed up his brain. ?!

7 William Nuesslein 02.20.09 at 10:10 am

The conspiracy theory about the large toy guys driving out compitition makes no sence for two reasons:
1) The competitors are too small.
2) The belief that lead is an absolute hazard is believed by all. Any toy maker that challenges the belief would be boiled in oil.

Christian theology held that Christ was both God and Man. One fellow said thad that Christ was God and Man at the same time. (Like Bohr’s theory in Quantom Mechanics in that lighat is both a wave and a particle at the same time.) That fellow suffered the miserable death of burning at the stake. After what Sidney Wolfe did with the breast-implant debacle, how in God’s holy name can he be in my government.

I regret the misery imposed on small businesses by the law, but it is the rejection of rationality that we should be alarmed about. It has been just a few years since the American People were worked up about the false threat of Saddam Hussein. Nearly everybody believed that Iraq had mobile labs, terrible chemical and biological weapons, and a robust nuclear program. Perhaps one-hundred thousand people died as a consequence of American zealotry. But the American people will not take responsibility for their crazy beliefs.

8 Paul 02.20.09 at 10:37 am

1) I can’t find any reference to books in the statute or the regulations — has the CSPC just made up the pre-1985-books thing without actually promulgating a regulation?

2) For the consideration of an enterprising attorney with a client interested in challenging the law: Wynehamer v. New York, 2 Parker Crim. Rep. 490 (1856) (still good law!).

9 Emily 02.20.09 at 2:16 pm

I almost hate to suggest it, but is it possible that the ACLU could get involved because of the threat to old books? I’m not a fan, but they’re loud and good attention-getters. I’ve forgotten what I did know about First Amendment law but was wondering about this.

10 Lori White 02.20.09 at 3:58 pm

Another side benefit to larger manufacturers was the fact that CPSIA solved a growing problem for them by providing federal preemption of the dozens of state laws springing up regarding phthalates in toys. Lead, for the big guys, is a total non-issue. By early 2008 national toy manufacturers had already prepared themselves for California’s phthalate standard, but states like Washignton and Connecticut began to pass their own legislation (and, if I recall correctly, 5 more states had legislation pending) in response to what they saw (perhaps correctly) as CPSC’s inaction, and toy companies faced a nightmare patchwork of state regualtions. Since the proposed federal regulation was something they fully expected and were able to live with, it was certainly better, from their perspective, to get the federal legislation passed quickly before any more states came on line with their own regs. If they *had* designed it, it couldn’t have worked out any better. The states were shut out of crafting their own toy regulations, and meanwhile lots of other groups – who never anticipated that “toy regulations” would be written to include such a vast set of non-toy items and who make up a MUCH more sympathetic face (who would be fighting this law if it were just about big toy companies?) – are doing all the dirty work lobbying to soften the law.

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