In some ways the most distinctive costs of the Consumer Product Safety Improvement Act are the human-scale kind that are hard to measure — the handicrafters’ livelihoods blasted, the families unable to find sturdy winter clothes at the Goodwill, the kids who can’t get their dirtbikes serviced, the threats to vintage children’s books and to small-run items for special-needs kids. 
But there are also a number of measurable, tangible economic costs that might capture lawmakers’ attention, and which affect larger, more sophisticated actors as well as the small producers, dealers and families that have found it so difficult to make their voice heard in Washington.
- A survey by the Toy Industries of America says the law has already cost toy businesses more than $2 billion [Playthings, Toy News]. As readers will recall, the minibike/powersports industry projects that the ban on its youth products will cost $1 billion by year’s end. That’s $3 billion right there, representing only two of the many industries hit by the act; it doesn’t include (for example) apparel, resale (two apparel-making groups report $700 million in stranded inventory, costs to Goodwill and Salvation Army may exceed $270 million), books, school and party supplies, sporting goods, furniture, and so forth.
- The stock price of well-known kids’-apparel retailer Gymboree slid by 40 percent overnight early this month “on news that it took massive inventory write-offs in the most recent quarter and suffered sharp margin declines and sales losses, all as a result of the CPSIA”. At a conference call with investors, Gymboree chairman/CEO Matt McCauley noted that phthalates are found “in many screenprints”, which makes their ban an important issue for apparel. Remember the court’s last-minute ruling that the phthalates ban would have to be retroactive to existing inventory, even though the CPSC had given guidance to manufacturers that only post-Feb. 10 production would be affected? Attorney Aaron Colangelo of the Natural Resources Defense Council, who had litigated that case successfully, was quite dismissive about the difficulties of compliance at the time. Well, according to McCauley, that one decision rendered 1.7 million units of inventory at his chain unsalable. “As many of you know, we operate on a nine to 12-month product cycle,” he told the investors. But of course few on Capitol Hill seem to have thought it amiss for new rules to be imposed within a period of a few months, or, as with the court reversal, a few days.
- Auction Bytes: “On March 14, 2009, Amazon.com will remove approximately 2,500 products from the Toys and Baby categories in order to comply with the Consumer Product Safety Improvement Act of 2008 (CPSIA). The company said it had not received certification of CPSIA compliance from the manufacturers of those products. Amazon will cancel all seller offers against the ASINs, and their detail pages will be removed from the site.” (company’s statement). For readers who are new to the subject, that does not imply that any of the 2,500 items pose any serious risk, nor does it imply that any particular item would fail to pass the new thresholds with flying colors.
In many instances it indicates only that the makers have not gotten their ducks in a row to obtain GCCs, possibly because they’re unfamiliar with the process, or can’t afford the tests, or plan to get out of the business soon.
- Note that as in the Amazon case, the much-publicized stay of CPSC enforcement for a year applying to most newly manufactured goods doesn’t in practice protect small makers from seeing their product lines squeezed out of major channels of commerce if they fail to launch a compliance program (no matter how unlikely it is that their knitted booties or wooden puzzles contain lead). To cover themselves from legal attack, deep-pocket retailers demand GCCs (general certificates of compliance). Last month, apparel-maker mentor Kathleen Fasanella wrote: “Most (okay, all) of the retailers I’ve spoken to, are still requiring GCCs [despite the stay]. Furthermore, they are enforcing the August standard of 300ppm.”
- Plum Privy has been compiling estimated costs of the law from news reports, with the tally already exceeding $4 billion. Persons in affected lines of work may want to check in at that site to offer additional information or refinements.
- Understatement of the year? Writing in Apparel mag, lawyers with Mintz Levin call the law “extremely burdensome and bewildering“.
Tagged as:
CPSIA,
CPSIA and apparel/needle trades,
CPSIA and toys,
retroactive
Defying a national trend, Utah has moved to amend the interpretation of its state-level version of the Americans with Disabilities Act so as to curtail pet owners’ rights to demand that their “emotional support service animals” be allowed onto the premises of reluctant business owners. [Salt Lake Tribune via Patrick at Popehat]
Tagged as:
service animals,
Utah
The losers of a union election sued the winners in federal district court in Chicago, but it wasn’t a very impressive lawsuit. One plaintiff claimed that the threat of being fired caused an asthma attack, but since she in fact got a raise, and she had been having asthma attacks for 25 years, and there wasn’t any threat, her claim of intentional infliction of emotional distress didn’t get very far. The district court issued $80,000 in sanctions under Rule 11, just a fraction of the $200,000 that the defendants claimed to have paid in legal expenses, but James Gordon Banks objected to even this amount on the grounds that he was poor (though this was in some doubt, because of the assets in his wife’s name) and because he was only recently out of law school. Unfortunately for him, he drew Judge Easterbrook on the appeal, and we know that the judge does not suffer fools lightly:
If Banks really is a bad lawyer (as he depicts himself), and is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm. No court would say, in a medical-malpractice action, that a doctor whose low standards and poor skills caused a severe injury should be excused because he does not have very many patients. No more is a bad lawyer excused because he has few clients.
The $80,000 sanction was affirmed, and many took note of the humorous opinion: ABA Journal; UK Times OnLine; Wisconsin Law Journal; Courthouse News.
Tagged as:
Frank Easterbrook,
loser pays,
sanctions
- Probate court in Connecticut: bad enough when they hold you improperly in conservatorship, but worse when they bill you for the favor [Hartford Courant]
- Does “Patent Troll” in World of Warcraft count as a character type or a monster type? [Broken Toys]
- 102-year-old Italian woman wins decade-long legal dispute, but is told appeal could take 10 years more [Telegraph]
- “This Cartoon Could Be Illegal, If Two Iowa Legislators Have Their Way” [Eugene Volokh]
- David Giacalone, nonpareil commentator on attorneys’ fee ethics (and haiku), has decided to end his blog f/k/a. He signs off with a four-part series on lawyer billing and fairness to consumers/clients: parts one, two, three, four, plus a final “Understanding and Reducing Attorney Fees“. He’s keeping the site as archives, though, and let’s hope that as such it goes on shedding its light for as long as there are lawyers and vulnerable clients. More: Scott Greenfield.
- Even they can’t manage to comply? Politically active union SEIU faces unfair labor practice charges from its own employees [WaPo]
- Judge in Austin awards $3 million from couple’s estate to their divorce lawyers [Austin American-Statesman]
- “Keywords With Highest Cost Per Click”, lawyers and financial services dominate [SpyFu]
Tagged as:
attorneys' fees,
chasing clients,
Connecticut,
divorce,
do as we say,
ethics,
free speech,
Iowa,
Italy,
on other blogs,
patent trolls,
Texas,
wills and trusts
I’m scheduled to be a guest on Ray Dunaway’s Morning Show (WTIC 1080 AM, Hartford) circa 7:20 a.m. to discuss CPSIA. For a quick introduction to the law, follow our links for the problems with thrift stores, motorbikes, libraries and books, kids’ garments, and general problems with the law.
P.S. WTIC, the news/talk Connecticut station, has been great on crediting Overlawyered over the years, and host Ray Dunaway said on the air that he gets a lot of story ideas for the show from this site. Thanks!
Tagged as:
accolades,
Connecticut,
CPSIA,
on TV and radio
A recent report from the Printing Industries of America (reprinted in this March 17 Keiger.com posting, via Deputy Headmistress) contains this distinctly ominous passage:
To date, Congressional majority leaders have stated they are not open to holding hearings nor opening the CPSIA for reconsideration, instead urging industry to pursue the exemption channels provided for in the CPSIA passed last year.
Now go! The great and powerful Oz has spoken!*
*For those disinclined to take orders, there’s always the planned April 1 protest. I’m thinking about making it down to D.C. to see how it goes.
Tagged as:
CPSIA,
CPSIA and Congress
Around New England, thousands of owners of gas stations and auto repair shops are being billed tens of thousands of dollars apiece for a $65 million Superfund cleanup. Their offense? They were the ones “who made the effort to properly dispose of waste oil and antifreeze by sending it to the sprawling Beede Waste Oil Co. in Plaistow, N.H. Now they are being punished for their conscientious ways.” [Boston Globe]
Tagged as:
New Hampshire,
Superfund
- No back-alley bikini lines: New Jersey consumer affairs director rejects proposed ban on Brazilian waxing [Asbury Park Press, JammieWearingFool, Jaira Lima and protest site, Popehat, News12 video] Florida, however, won’t let you get a fish-nibble pedicure [WWSB]
- Kids doing well in homeschool but divorcing dad disapproves, judge says they must be sent to public [WRAL, Volokh]
- Al Franken comes out for loser-pays in litigation (well, in this case at least) [MSNBC "First Read"]
- U.K.: “A man who tried to kill himself has won £90,000 in damages from the hospital which saved his life but hurt his arm in the process” [Telegraph]
- Life in places without the First Amendment: “Australia’s Vast, Scattershot Censorship Blacklist Revealed” [Slashdot, Volokh, Popehat]; British Telecom passes all internet traffic through “‘Cleanfeed” filters to identify (inter alia) racist content [Glasgow Herald]
- More on that suit by expelled student against Miss Porter’s School; “Oprichniki” said to be not identical to Keepers of Tradition [NYTimes; our December coverage]
- “Why We Need Cop Cameras” [Steve Chapman, Chicago Tribune] Shopkeepers terrorized in Philadelphia: “The thugs had badges.” [Ken at Popehat]
- Counting former lobbyists in Obama Administration? Don’t forget Kathleen Sebelius [Jeff Emanuel, RedState]
- Wisconsin: “$50,000 claim filed over girl’s time-out in school” [Milwaukee Journal Sentinel]
Tagged as:
Al Franken,
Australia,
First Amendment,
Kathleen Sebelius,
lobbyists,
loser pays,
Milwaukee,
nanny state,
New Jersey,
online speech,
Philadelphia,
police,
school discipline,
United Kingdom
- A triumph for good sense, good policy, and the Constitution: Supreme Court declines to disturb 2005 Protection of Lawful Commerce in Arms Act, thus ending NYC’s wrongful and unfair lawsuit against gun makers [AP/Law.com] Interestingly, the Obama administration joined its predecessor in urging that the law’s constitutionality not be questioned [Alphecca] One of my fond memories is of giving the lead presentation to the House Judiciary Committee at a hearing on the bill during its drive for passage.
- “Tinkering With DWI Evidence Costs NY Judge and Law Prof Their Jobs” [ABA Journal; Buffalo, N.Y.]
- Coalition of media organizations urges First Circuit to reverse judge’s “truth-no-defense” defamation ruling, but the Circuit denies en banc rehearing [Bayard/Citizen Media Law and sequel; earlier]
- Car-crash arbitration-fixing angle heating up in probe of Luzerne County, Pennsylvania judicial scandals [ABA Journal]
- ACORN helping with the Census? Based on their voter work, we can be sure they’ll give it that 110% effort [Jammie Wearing Fool]
- To protect the public, why do you ask? Cook County, Ill. sheriff engages in “constant surveillance of Craigslist’s erotic services” [Patrick at Popehat]
- Imposed-contract provisions mean that Employee Free Choice Act is “not as bad as thought. It’s worse!” [Kaus]
- West Virginia lawmaker proud of introducing ban-Barbie bill: “If I’ve helped just 10 kids out with this, to me it was worth it” [AP/Charleston Gazette-Mail, earlier]
Tagged as:
ACORN,
card check,
Craigslist,
Employee Free Choice Act,
guns,
Luzerne County judicial scandal,
Protection of Lawful Commerce in Arms Act,
scandals
Steve Chapman, as usual, keeps a cool head about things. And I’ve got some links at Point of Law on the remarkable House-passed proposal to slap a punitive tax on the compensation of many thousands of financial institution employees who are not even notionally to blame for the current crisis, as well as on the threats of violence to AIG employees, which are being met with complacency if not encouragement in some surprisingly respectable circles. Update: Point of Law post now considerably expanded, and with followups here and here.
Tagged as:
banks,
Crisis of 2008
Carter Wood at ShopFloor has a very useful compilation of what are probably all the current bills introduced in Congress related to the Consumer Product Safety Improvement Act. (More, of course, may follow as the crisis continues.) Of the 10 bills, one is an omnibus appropriation bill, while the other nine (six in the House, three in the Senate) all appear from their descriptions to be aimed at reforming the substance of the law, its timetables and deadlines, or both.
Significantly, there was introduced this week the first bill with a Democratic (i.e. majority) sponsor, a bill by Montana Democratic Senator Jon Tester to overturn the dirtbike ban.
The three bills in the Senate are S. 608, the Tester bill on motorcycles and related vehicles; S. 374, the much-discussed bill by Sen. Jim DeMint (R-S.C.) that would have injected common sense into several areas of the law, and which Congress (under pressure from Public Citizen and others) refused to incorporate into the stimulus package; and S. 389, a bill introduced by Sen. Robert Bennett (R-Utah) “to establish a conditional stay of the ban on lead in children’s products, and for other purposes.”
The six bills in the House are H.R. 1510 and H.R. 1587, introduced by Denny Rehberg (R-Mont.), both relating to cycles/vehicles; H.R. 968, by John Shadegg (R-Ariz.) and H.R. 1465, by Brad Ellsworth (D-Ind.), both of which are described as providing “regulatory relief to small and family-owned businesses”; H.R. 1046, by Adam Putnam (R-Fla.), to “ensure the effective implementation of children’s product safety standards under the Consumer Product Safety Improvement Act of 2008″, and H.R. 1027, by Bill Posey (R-Fla.), to “exempt second-hand sellers of certain products from the lead content and certification requirements”.
CORRECTION: I erroneously listed Indiana Congressman Brad Ellsworth above as a Republican, but he is a Democrat; fixed now.
Tagged as:
CPSIA,
CPSIA and Congress,
CPSIA and minibikes,
CPSIA and resale
- Elena Kagan’s changing views of Senate confirmation process: “Lobster in Pot Re-Evaluates Pro-Boiling Stance” [Spruiell, NR "Corner"]
- “Federal Courts React to Tide of Pro Se Litigants” [NLJ]
- We get permalinks in nice places including a prominent Dutch business paper [NRC Handelsblad]
- Someone who needs research done should snap up Kathleen Seidel, model practitioner of citizen journalism on autism-vaccine fray [Neurodiversity] When she got a call from a charity telemarketer recently, she began checking them out online. Results? Devastating. [Neurodiversity, Popehat]
- How far does Britain’s new animal welfare law go? Does it really cover little Nicholas’s pet cricket? [Never Yet Melted]
- Constitutionalizing judicial ethics: Caperton v. Massey case before Supreme Court is a bit more complicated than you’d think from the NYT editorial [Point of Law]
- If you’re not in favor of government cracking down on what is said in online forums, are you “trivializing women’s harms”? [Danielle Citron/ConcurOp, Scott Greenfield] On the other hand, it doesn’t take a commitment to feminism to note that there are online bullies and they’re a nasty, overwhelmingly male lot [Popehat, language]
- Attorney walks away from a whole bunch of cases after accusation he bribed a Royal Caribbean Cruise Line employee, and his troubles may not be over yet [Florida Daily Business Review]
Tagged as:
animal rights,
Kathleen Seidel subpoena,
Netherlands,
online speech,
pro se
A season of activism has begun:
- Today’s the day (4 PM Pacific time) that motorbiking legend Malcolm Smith intends to publicly break the law by selling youth motorcycles and ATV at his store in Riverside, Calif. in defiance of the Consumer Product Safety Improvement Act of 2008. Smith starred with Steve McQueen in the 1970s documentary On Any Sunday, which did much to popularize motorcycle sports. More details at KidsLove2Ride.com:
As a sign of support, a group of small business people and high-profile motorcycle industry celebrities, including racers Jeff Ward and Jeremy McGrath, Glen Helen Raceway owner Bud Feldkamp, and motorsport design guru Troy Lee have all agreed to be on hand to purchase banned units for use by their own children and grandchildren.
No word on whether Public Citizen, or perhaps some on the staff of California CPSIA sponsors/defenders Rep. Henry Waxman, Sen. Barbara Boxer or Sen. Dianne Feinstein, will show up to perform a citizen’s arrest. More from Rob Wilson (”A year ago I would have been shy about supporting ‘illegal’ activities”), Pashnit Motorcycle Forums (”A stupid law that must be defied”), Motorcycle.com, Motorcycle USA, Cycle News, Racer X, Eastern Dirt (Smith has had so many offers of support that he changed the time of the protest to the afternoon so that more could attend).
Advance press notice has already been strong: Daniel McDermon, New York Times “Wheels” blog; USA Today (CPSC has gotten as many as 5,000 emails, letters and calls in one day protesting the ban); Riverside Press-Enterprise. Earlier here.
Update: Early protest coverage at DirtRider and at Smith’s KidsLove2Ride.
- Meanwhile, affected crafters, small business people and dealers are making plans to attend the Washington, D.C. fly-in rally, public hearing and CPSIA outreach events in Washington, D.C. April 1. A new website is up on the event titled AmendtheCPSIA.com (not “Repeal”?) and Rick Woldenburg has many updated details at his site. More: David Foster, Chicago Boyz.
Tagged as:
CPSIA,
CPSIA and minibikes
