Could it be that Rep. Henry Waxman (D-Calif.) — known for his extensive involvement in pharmaceutical issues over many years as a Congressional nabob, and for his long, close alliance with the plaintiff’s bar — is really unfamiliar with the story of Bendectin, one of the staple horror stories of litigation run amok in the drug field? [Carter Wood, ShopFloor] Background here, here, here, etc., etc. The whole clip, starring Rep. Brian Bilbray (R-CA), is worth watching: Bilbray wonders aloud whether there are any lawyers he can sue when unfounded lawsuits put needed medical technologies out of reach.
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Henry Waxman
I’ve got some thoughts up at Cato at Liberty on the demotion of a Capitol Hill strongman, mentioning his hectoring hearing style, his staff’s propensity to micromanage federal agencies, and, of course, CPSIA (& welcome Instapundit, Damon Root/Reason “Hit and Run”, Chris Fountain, Daniel Blatt/Gay Patriot, Prof. Bainbridge, Carter Wood/ShopFloor, Memeorandum readers).
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I called the lab, got the quote and did the math. CPSIA-mandated testing costs for my little product line was over $27,000 for just over $30,000 worth of product. I cannot express the horrible feeling I had when I realized that I had made a mistake that was going to cost my family all of our money. …
I blame every one of the Energy and Commerce legislative staffers.
– Jolie Fay, crafter, SkippingHippos.com, guest post, AmendTheCPSIA.com
PUBLIC DOMAIN IMAGE from Ethel Everett, illustrator, Nursery Rhymes (1900), courtesy ChildrensLibrary.org.
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Readers of this site will recall that as reports rolled in last year of the calamitous effects of the Consumer Product Safety Improvement Act of 2008, the Congressional leadership, and in particular key lawmaker Henry Waxman (D-Calif.) steadfastly refused to hold hearings or in general acknowledge that the law was causing systematic ill effects of any sort. As resale outlets across the nation swept harmless winter coats from their shelves or stopped dealing in kids’ goods entirely; 
as librarians warned that whole collections of pre-1985 books would need to be either put through prohibitively expensive testing or simply discarded; as makers, importers and sellers of perfectly harmless apparel, school supplies, furniture, musical instruments and other children’s items puzzled over ruinously high testing costs and bans on common materials like brass; as smaller, craft-oriented producers began folding, leaving the market to be served by the largest mass-production toymakers and retailers (many of which had supported the legislation); as the kids’ motor vehicle industry, including makers and sellers of dirtbikes and mini-ATVs, found itself transformed overnight into outlaws; even as all this unfolded, Henry Waxman and his counterparts on the Senate side kept the lid clamped down tight on any Capitol Hill airing of such woes. Eventually Waxman held a hearing with exactly one (1) witness, Obama-appointed CPSC chairperson Inez Tenenbaum, who sought to put the best face on the law. (After a false start, a House small business committee lacking actual legislative jurisdiction was also allowed to hold a more varied hearing.)
In recent months, without of course admitting any error whatsoever, representatives of Waxman’s office have been quietly floating amendments intended to correct some of CPSIA’s most blatantly impractical elements. The fixes would be likely to help in some specific areas where opposition has been vocal and influential, 
such as children’s books and mini-vehicles, while affording much less relief, or none at all, to many others trying to cope with the law. At the same time, Waxman’s staff has been demanding that “business” (conceived as if it were some monolithic group) gratefully sign off on the fix as acceptable and perhaps even accept new provisions that would increase CPSIA burdens. While many affected groups are understandably eager to reach a deal, others, such as persistent critic and businessman-blogger Rick Woldenberg, are reluctant to sign off on obviously partial and inadequate fixes as if were going to solve the wider problems with the law.
The fixer amendment has gone through several iterations; its current draft is here (PDF), named the Consumer Product Safety Enhancement Act of 2010, or CPSEA (more background from the committee, PDF, via ShopFloor). Now, at long last, Waxman has agreed to hold a hearing tomorrow (to be chaired by his colleague Rep. Bobby Rush, D-Ill.). The witness list includes persons from Goodwill Industries, the National Association of Manufacturers, Handmade Toy Alliance, and the Motorcycle Industry Council — all of which groups have apparently agreed to support the legislation — as well as Rick Woldenberg of Learning Resources Inc., who continues as a critic, and Steve Levy of the American Apparel and Footwear Association. Of course the difference now, and the reason some of these groups at long last will get their chance to testify, is that they have agreed to testify at least nominally on Waxman’s and Rush’s side — perhaps in some cases while biting their tongues.
We’ll be reporting more in days to come. In the mean time, this would make a good occasion for news organizations to renew their attention to the public policy disaster that CPSIA has wrought.
PUBLIC DOMAIN IMAGES from Honor C. Appleton, The Bad Mrs. Ginger (Frederick A. Stokes Co., 1902), courtesy ChildrensLibrary.org.
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Some views you probably won’t be hearing during today’s highly orchestrated Capitol Hill events [Ed Wallace, Business Week] Regarding that “declining quality at Toyota” meme ["The Truth About NHTSA Complaints," TTAC] Sudden runup in count of deaths “linked to” possible Toyota acceleration is from newly filed reports on old cases [Fumento/CEI] Commentary from Richard Epstein [Forbes.com via Damon Root, Reason "Hit and Run"] Former trial lawyer lobbyist David Strickland, now helping lead charge against Toyota as NHTSA administrator, was principal author of ghastly CPSIA law [Amend The CPSIA] Also: links to ongoing Point of Law coverage.
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The Motorcycle Industry Council feels momentum is now on its side in its effort to re-legalize youth motorcycles and all-terrain vehicles, which flunk CPSIA’s ban on lead-containing alloys. [MotorcycleUSA.com] More background here and here.
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- On Thursday Henry Waxman’s House Commerce Committee finally held its long-promised hearing on the Consumer Product Safety Improvement Act, the first such hearing by a committee with legislative jurisdiction since the calamitous law went into effect in February.
(The Small Business Committee, a panel with no legislative authority over the law, had gone first.) As noted last week, Thursday’s virtually dissent-free event hardly counted as much of a hearing, since Waxman turned down all pleas to allow testimony from actual affected businesses or other critics or victims of the law. Instead he called as his single witness recently appointed CPSC chair Inez Tenenbaum, who hewed closely to the line he (Waxman) wished to hear. A Washington Times editorial is appropriately scathing, and Rick Woldenberg has much more about the committee majority’s finger-in-ears response to the broad outcry over the law. Ranking Republican Joe Barton (R-Texas), who supported the law’s passage, did say that “we have all been inundated” with constituent messages about its ill consequences. The Handmade Toy Alliance has published the statement that Jill Chuckas of Crafty Baby would have made if invited to testify (more). - In an August 26 WSJ letter to the editor, Eric Havill of Branchport, N.Y. observes that Congress’s refusal to fix the law “is, if possible, even more irresponsible than the original legislation.”
- By a unanimous vote, the CPSC recently confirmed that Mattel, the giant toymaker whose many recalls helped touch off the lead-in-toys panic in the first place, has qualified for an exemption from third-party (outside lab) testing of its products under CPSIA, and can instead test in its own in-house labs. Of course, most of Mattel’s competitors are less fortunate and do not operate on a scale that will make such an exemption feasible. The exemption for “firewalled” in-house labs, deemed by one critic a “hall pass,” was something Mattel obtained through intense lobbying back when the law was under consideration. Like the other giant in the business, Hasbro, Mattel actively lobbied for CPSIA’s passage, and even as the law has brought undreamt-of woe to thousands of smaller producers of kids’ products, the two big companies seem to be doing rather well under it. More: Timothy Carney, Washington Examiner; Brad Warbiany, Liberty Papers; Christopher Taylor, Word Around the Net. Other reactions to the exemption: Holly Jahangiri, Rick Woldenberg, Ed Morrissey/Hot Air (“one of the companies that created the problem in the first place has gotten a waiver”), Katherine Mangu-Ward/Reason (“Mattel now has a cost advantage on mandatory testing, and a handy new government-sponsored barrier to entry for its competitors”), Handmade Toy Alliance.
- What’s going to replace forbidden phthalates in kids’ products now that CPSIA has banned them? Probably alternative plasticizing chemicals about which we know less, notes Andrew Langer in Roll Call.
- It’s old news, of course, that the CPSC asserts the power to go after eBay and Craigslist sellers, church bazaars, homeowners who hold yard sales and other sellers of used items that do not comply with CPSIA and other safety standards (although evidence is very sparse that most members of Congress actually realized the law would reach sales of those kinds.) Last month the CPSC saw fit to announce “Resale Roundup”, a new crackdown on secondhand sales. It also revised its book of guidance for resellers, in ways Rick Woldenberg finds less than enlightening. Discussion: Adler/Volokh, Ed Morrissey/Hot Air (“What did we ever do before the CPSIA protected the US through its throngs of federal nannies? How did we ever survive garage sales in the past 233 years?”), Washington Times (“from yard sales to jail cells”), Katherine Mangu-Ward/Reason, John Stossel, Deputy Headmistress/Common Room (“Remember when Congress assured us that the little guys had NOTHING to worry about with the CPSIA because they weren’t going to come after us? They. Lied.”) On the brighter side, McClatchy’s James Rosen quotes spokesperson Scott Wolfson as saying the commission isn’t planning to seek admittance to inspect private homes and garages to enforce the law. So be thankful for small favors.
PUBLIC DOMAIN IMAGES from Ethel Everett, illustrator, Nursery Rhymes (1900), and (illustrator not known) Farm Yard ABC (c. 1880), both courtesy ChildrensLibrary.org.
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A fine hearing/My friends, this is… Rep. Waxman’s plan for a dissent-free panel this Thursday (Sept. 10) is to call as the only witness CPSC chair Inez Tenenbaum, to talk up the merits of the law and her efforts as new steward of the agency. It’s not as if the law’s controversial or anything! The Handmade Toy Alliance wonders whether he’ll get away with it.
PUBLIC DOMAIN IMAGE from Benjamin Cobb, Yankee Mother Goose (Ella Brison, illustrator), courtesy ChildrensLibrary.org.
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A compulsory subpoena could follow if they don’t fork over information on “compensation of highly paid employees” and “expenses stemming from any event held outside company facilities in the past 2 1/2 years”, among other topics. As AP notes, industries that vocally support, rather than oppose, health care reform aren’t targets of the investigation. More: Politico.
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Robert Ambrogi at Legal Blog Watch criticizes the trial lawyers’ association for excluding the press from its annual convention, but the tactic seems to have worked pretty well in lowering the group’s lobbying profile and deflecting serious coverage of the parade of politicians, from Nancy Pelosi to Henry Waxman to DNC chair and Virginia governor Tim Kaine, who have made the pilgrimage as speakers to pay their respects. More: AAJ’s response.
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Elizabeth Mullaney Nicol has an excellent article in The New Atlantis on the Consumer Product Safety Improvement Act and its appalling consequences for old children’s books and the cultural inheritance they represent. (If you’re new to this topic, we’ve covered it extensively here and here.) Among the questions she addresses:
Isn’t there a wealth of worthwhile children’s literature published since 1985 for kids to read?
[Older books,] as a group, have certain desirable characteristics. Children’s books of yore tend to use more sophisticated, literary language than their more recent counterparts. The quality of their paper, bindings, and illustrations are often superior. Vintage children’s books assume and encourage the readers’ fascination with adventure, their eagerness to learn about the world, their respect for great men and women.
Won’t the really good older books survive in post-1985 reprint editions that can be sold without fear of liability? (Yes, one really does hear this argument.)
Some books from the 1950s and 60s are back in print, but with updated illustrations so the characters appear to be from our time; if that’s what it takes to lure readers who are wary of anyone who doesn’t look like them to pick up the books, it’s probably fine, but there is also value in presenting books with a style of illustration and characters with a style of dress from a different time, and that’s what we get with old copies. Some books, such as the Hardy Boys and Nancy Drew series, are thoroughly “updated” for today’s readers—simplified, abbreviated, substituting familiar words for those no longer commonly used—so if a child is going to read the originals he needs to read old copies….
Some old books, it is true, express ideas and attitudes of which we would disapprove, prejudices and errors that make modern readers wince. But learning about such sentiments firsthand is at the heart of what it means to learn our history. Moreover, while correcting some of these past problems, our present age has its own objectionable attitudes.
Won’t older children’s books still be available when intended for adult use, say as collectibles or for research?
But the availability of these books to children is the very purpose and value of preserving them. We want them in children’s hands, being read, not only preserved on the dusty back shelves of research libraries. Quantities are important — quantities of titles, and quantities of each title, so they are readily available for loan from public libraries and for purchase through used booksellers. Families have been able to build home libraries through priced-for-reading book sales and thrift stores. … We are suddenly facing the prospect that many of these books will be destroyed, making those that remain all the more rare and inaccessible.
Some used booksellers, trying valiantly to continue selling books for children, are re-labeling their children’s books as collectors’ editions. But this obscures the books from searches by those looking for ordinary children’s books, it clutters the market for real collectibles, it makes the bookseller look ignorant of his trade, and it is prohibited under CPSIA, which stipulates that a book “commonly recognized” as being meant for children’s use will be regulated as such.
The article’s strength, I should note by way of quibble, is not as legal advice: it somewhat overstates the stringency of the law, which does not ban the sale of all untested pre-1985 kids’ books as such, instead exposing booksellers to punishment when they guess wrong about whether a given volume would meet current standards (hence the CPSC’s guidance advising retailers to discard them all). And the call for “sequestering” library copies has thus far come from only one member of the three-member CPSC, not as yet the full commission. As a summation of what will be lost to children and the nation if Congress does not change this law, however, the article is one of the best yet. Read it here.
Relatedly, Ken at Popehat is still trying to grasp the news that according to our federal government:
Children’s books have limited useful life (approx 20 years)
And since Rep. Henry Waxman, closely identified with CPSIA and its defense, has a new book out, Carter Wood at ShopFloor wonders whether this topic is going to come up at any of his bookstore appearances.
P.S. Fenris Lorsrai at LiveJournal reprinted the Nicol article and in so doing prompted some interesting reader comments.
GRAPHICS courtesy VintageChildrensBooks.com.
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Waxman-Markey’s Easter eggs (earlier).
Apparently there are a lot of hidden surprises in this Waxman-Markey “cap and trade” energy/environment bill we’ll be hearing about in coming weeks [Washington Post via Virginia Postrel].
- At long last a House committee — the one on Small Business — has announced a hearing on CPSIA’s impact on small business, to take place Thursday. (I’m almost hesitant to report this as good news since the last time I did so it took only hours for the event to be called off). The Small Business panel does not have primary legislative authority in the area; that is vested in Rep. Henry Waxman’s Energy and Commerce Committee, whose CPSIA-overseeing subcommittee has chosen instead to hold hearings on that very urgent subject of public concern, college bowl championships. Rick Woldenberg recalls the fingers-in-ears techniques the House has used to shut out unwanted information up to now: first Waxman/Rush staffers prearranged “hearings” that heard nothing, after which they (successfully up to now) maneuvered to make sure critics of the law would not obtain any official Hill forum at which to air their grievances as public outrage built.
- The Consumer Product Safety Commission has released new guidance (PDF) for thrift shops and other product resellers on compliance with CPSIA and other laws overseen by the agency. According to Ian at Musings at a Catholic Bookstore , the manual lays out policies that differ only slightly from what was known before, often by spelling out what will be made an enforcement priority, since the commission has no power to alter the law’s actual requirements. Thus it seems phthalates in older kids’ playthings, the kind unlikely to be placed in the mouth, are not going to be a high priority in reseller enforcement — which still doesn’t make it legal to resell those items. For many outside readers the biggest surprise seems to have been that the agency views its authority as extending to yard sales. As Ian notes, this isn’t actually news; it’s just that the new manual is spelling it out in a more visible way than it did at some earlier times.
- “Toy Story 3: Emperor Uncle Sam Puts You Out of Business” [Rep. Joe Barton (R-Tex.), The Hill]
- In the ongoing series of crises that is CPSIA, the next major crisis is due on or around August 14, as of which date newly made children’s goods must comply with new tracking and labeling requirements (touched on briefly in this space last month). The intent is to make it easier to trace and contain safety problems, enable recalls and so forth. For makers of children’s apparel, Kathleen Fasanella explains the complicated and sometimes expensive implications in posts here, here, and here. And apparel makers have it relatively easy, in part because they are already used to affixing permanent labels to most products, unlike many makers of items such as wooden toys and pencils, straw dolls, ceramic wall plaques, rubber spiders or bouncy balls, glass bead craft items, and so forth. Toy importer Rob Wilson writes, “this one clause will be enough to finish off a good majority of the companies that the other provisions of the law do not kill first. I personally know of many companies that are planning to close by August 15th if this provision is not amended.” The National Association of Manufacturers has requested (PDF) an emergency stay on the tracking and labeling rules; the CPSC has put off consideration of the request. Rick Woldenberg comments here and here. And tomorrow (Tues., May 12) at 1 p.m., the CPSC is holding a meeting, to which any interested member of the public is invited, to discuss the tracking and labeling rules. (Update: CPSC hearing is online as a webcast (h/t Woldenberg). Kathleen Fasanella has more, including links to more than 500 pages of protest letters, PDF, received by the CPSC on the issue).
- Cutting across multiple lines: per the Bulletin in Bend, Oregon, a local resident whose son got sick from salmonella (and recovered) appeared with Rep. Henry Waxman at a press conference to promote more effective federal food safety regulations; at the same time, though, “Christoferson said she can sympathize with the harm that poorly written rules can do to businesses” because her own resale store in the city of Bend, Stone Soup, has been harmed by CPSIA.
- Whimsical Walney, who has written with passion about the CPSIA fight, has announced that she is closing the doors of her children’s business.
Public domain paper doll images courtesy Karen’s Whimsy.
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- Did you know that you can use the advanced search function at the SEC’s EDGAR database to track some of the losses in the business world from the Consumer Product Safety Improvement Act? (h/t Sunny Day Notes). Thus the Dollar General chain reveals in a 10-k filing that it took a charge of $8.6 million due to the sudden loss of value of merchandise early this year when a court reinstated CPSIA’s retroactive ban on phthalates in children’s playthings. Mark Riffey also suggests Google searches combining 10-K with CPSIA. (More on the countable costs).
- “A Quick Guide To What’s Wrong with the CPSIA” by leading reform activist Rick Woldenberg is more a jumping-off point for discussion than a finished bill of particulars — it doesn’t bring up the needless burdens of the law’s testing regime, for example. And it argues for more reasonable implementation without really taking issue on principle with the wisdom of the law. But it does have the advantage of being couched in the sort of Washington language a legislative staffer might be willing to take to colleagues.
- Speaking of quick guides, Carol Baicker-McKee has done up a two-page fact sheet on the need to fix CPSIA before it does more harm on the vintage-books front. Valerie Jacobsen polled both sellers and buyers in the homeschool market for used children’s literature and found that nearly all the buyers, and for the time being most of the sellers, were ignoring the CPSC guidelines that discourage most resale of pre-1985 volumes. Deputy Headmistress had a great post last month summing up reactions on the vintage-books front from David Niall Wilson, Amy Ridenour, Zodi @ Tim & Zodi, and less admirably, Consumer Reports/Consumers Union (which seems to be perfectly fine with the law’s effects). And did you know there’s a displayable sidebar widget of “CPSIA Endangered Books” based on the Flickr group with that theme?
- I am sorry to say I believe the story Jacobsen told at her site last month:
I just had an interesting conversation with Jared at the Senate Commerce Committee at 202-224-5115. Jared told me that the Commerce Committee had been unaware that pre-1985 children’s books (he knew about that restriction already) would still have commercial importance and ongoing value for children’s use. … Jared asked a lot of questions and twice expressed that it was new information “to the Committee” that these books still have any market importance.
The comments section to that post is a particularly good one for those interested in the fate of vintage children’s books or in the attitudes widely held on Capitol Hill; see also Deputy Headmistress.
- Not a good sign: the Obama/Biden campaign took a simplistic “ban ‘em all” view on CPSIA issues in its document “Barack Obama: A Champion for Children” (PDF) And (h/t Mark Riffey) it was two and a half years ago that Rep. Henry Waxman and then-Sen. Obama reached for headlines by blasting the U.S. Capitol gift shops over its sale of trinkets and souvenirs containing lead — no need for careful distinctions about which such items if any might present actual, material hazards and which do not. (Dec. 11, 2006 announcement).
- Rain boots, buttons, Dr. Seuss: What passed and what didn’t when the owner of a Chicago-area resale store did x-ray fluorescence (XRF) testing to detect lead levels in many vintage kids’ products [From My Room]
- Pete Warden’s neat Mailana venture (among other functions) will analyze a group of Twitter connections to detect patterns. It indicates that of the 1,300+ persons now following @walterolson on that service, the two most distinctly identifiable social clusters are toymakers and lawyers. I feel torn sometimes between the North Pole and a hot place.
Public domain image courtesy ChildrensLibrary.org: Walter Crane, illustrator, The Baby’s Aesop (1887)
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The Washington Times reported on Friday on what it says is a little-noticed provision in draft cap-and-trade legislation (PDF) authored by Reps. Henry Waxman (D-Calif.) and Edward Markey (D-Mass.): new authorization for “citizen suits” to challenge government inaction on climate change. The bill would confer such standing, according to the article, on anyone “who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part,” to such inaction. However — in an apparent concession made some time ago to Republican lawmakers — the article also says that total payouts by the government would be limited to the comparatively minor amount of $1.5 million per year. Attorneys’ fees payable to prevailing plaintiffs, however, will presumably be subject to no such limit. More: Carter Wood also discovers new litigation powers for state AGs tucked into the bill; Marlo Lewis, CEI “Open Market”; Deputy Headmistress.
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