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Public Citizen

An old story, alas

by Walter Olson on July 17, 2013

Groups that hold themselves out as representing the interests of consumers don’t tend to represent actual consumers’ interest in free trade [Sallie James]

  • “The Emperor’s Clothes: Should jury bias against corporations receive legal recognition?” [Michael Krauss on Alabama legal malpractice case]
  • Which did more to compromise gas can usability, regulation or liability? [Coyote, Jeffrey Tucker a year ago at LFB, earlier here, etc.]
  • Wow: Litigation Lobby stalwart Joan Claybrook signs her name to letter claiming there’s “no evidence” of “significant fraud” in asbestos litigation [WSJ letter] “Peter Angelos’s Asbestos Book” [WSJ] “House panel passes asbestos trusts transparency bill” [Law360, Chamber-backed Legal NewsLine]
  • “Indiana’s ‘Government Compliance’ Presumption Against Defect and Negligence” [John Sullivan, D&DL]
  • CPSC Commissioner Nancy Nord on the commission’s certificates of compliance;
  • A way to head off the product-suit technique for bypassing workers’-comp limits? “Pennsylvania Supreme Court Allows Waivers for Future Negligence by Third Parties” [Krauss, Point of Law]
  • California cities’ lead-paint-as-nuisance suit may be headed for trial [Max Taves, Recorder]

George Will gets to the essence of this grotesque assault on civil liberties, fed by demagoguery over the Supreme Court’s Citizens United decision:

McGovern [Rep. Jim McGovern, D-Mass.] stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights.

Incredibly, versions of this radical rights-stripping measure has been endorsed through resolutions by the state legislatures of Vermont, Hawaii, and New Mexico, with backing from groups like Public Citizen. [Ilya Shapiro and Kathleen Hunker, Cato; Hans Bader, CEI; earlier] More: Professor Bainbridge (“utterly moronic”)] Among sponsors of this extraordinary measure: Reps. Earl Blumenauer (Ore.), David Cicilline (R.I.), Steve Cohen (Tenn.), John Conyers, Jr. (Mich.), Jim Cooper (Tenn.), Peter DeFazio (Ore.), Eliot Engel (N.Y.), Sam Farr (Calif.), Bob Filner (Calif.), Gene Green (Tex.), Raul Grijalva (Ariz.), Janice Hahn (Calif.), Martin Heinrich (N.M.), Maurice Hinchey (N.Y.), Jesse Jackson, Jr. (Ill.), Walter B. Jones, Jr. (N.C.), Barbara Lee (Calif.), Jim McDermott (Wash.), Christopher Murphy (Ct.), Richard Neal (Mass.), Eleanor Holmes Norton (D.C.), John Olver (Mass.), Chellie Pingree (Maine), Louise McIntosh Slaughter (N.Y.), Adam Smith (Wash.), John Tierney (Mass.), and Peter Welch (Vt.). Murphy is running for an open U.S. Senate seat in Connecticut.

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The Center for Class Action Fairness filed an amicus brief yesterday on behalf of consumers in the Supreme Court case of AT&T Mobility v. Concepcion; Public Citizen brought a suit successfully striking an arbitration provision in a cell-phone contract as “unconscionable” because it did not provide for bringing class actions—even though consumers as a whole would be better off with the generous arbitration provision than with opportunity for the class action. Of course, then trial lawyers lose out. More at Point of Law; and Public Citizen’s page on the case has other briefs and links to (generally pro-trial-lawyer) blog commentary.

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The March 2 Wall Street Journal (link dead after 7 days) covers all-for-charity-none-for-the-class “cy pres” settlements of Facebook and AOL—the latter of which was the subject of a Center for Class Action Fairness objection:

Late last year, in a class action claiming that tech giant AOL LLC improperly inserted footers in its users’ emails, Los Angeles federal judge Christina Snyder awarded $25,000 in settlement funds to a Los Angeles legal-aid organization that has the judge’s husband on its board. …

The Virginia-based [sic] Center for Class Action Fairness objected, claiming the settlement raised a conflict of interest. Ted Frank, president of the group, said that to avoid potential conflicts, it would be better to require unclaimed settlement funds to be deposited into state coffers. “The problem is that parties can now give money to a judge’s preferred charity in the hopes that it will prompt the judge to rubber stamp a settlement,” he said.

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CPSIA chronicles, September 20

by Walter Olson on September 20, 2009

  • Rep. Michael Burgess (R-Tex.) doesn’t think Rep. Waxman’s pretend hearing Sept. 10 was enough, and writes a letter to Reps. Waxman and Rush (PDF courtesy Motorcycle Industry Council) explaining why a real hearing is needed (including as an addendum my WSJ piece from last Monday).
  • OldWomanLivedShoe2

  • Speaking of CPSIA author Rep. Bobby Rush (D-Ill.), he’s praised the new rhinestone ban [Woldenberg]
  • At the Wall Street Journal, a letter to the editor regarding my op-ed of last week generally agrees with its thrust but claims that I “[err] when assigning blame to consumer groups” among others for the enactment. I find this charge baffling, since groups like Public Citizen, PIRG and the Consumer Federation of America 1) were routinely cited in the press during the bill’s run-up to enactment as key advocates of its more extreme provisions, 2) have loudly claimed credit for enacting those provisions and the overall bill ever since, 3) have been routinely cited this year in the press as key opponents of any effort to revisit the law in Congress. Why strive to excuse them from a responsibility that they gladly shoulder? Carter Wood at ShopFloor also notes that labor unions unwisely cheered on their purported consumer-group allies, a stance one hopes they are rethinking in light of the statute’s actual effects on American employers and jobs.
  • BoardGameGeek had a discussion of the law again this summer, mostly focusing on the tracking label rules and the burden they pose to makers of new games, but also noting the thrift/reseller effects (earlier). Meanwhile, Handmade Toy Alliance activist Dan Marshall notes on Twitter, “Just spoke with guy who invented a board game about dinosaurs. He’s paying $2400 to get it tested 4 #CPSIA and is mad as hell about Mattel.”
  • So let’s all panic now: NPR reports minute amounts of lead alloy in a Disney-branded zipper.
  • Before CPSIA came along, Illinois lawmakers enacted their own lead law which, stunt-like, sets an even lower permissible lead level often flunked by common substances such as ordinary garden dirt, according to Rick Woldenberg (earlier on dirt, and related on rocks). More: Wacky Hermit.
  • OldWomanLivedShoe3

PUBLIC DOMAIN IMAGES from Ethel Everett, illustrator, Nursery Rhymes (1900), courtesy ChildrensLibrary.org.

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  • Understatement alert: per the official Congressional Research Service on Capitol Hill, “For the moment…one thing seems certain: implementation of the CPSIA is not going well.” [report in PDF format courtesy ShopFloor]
  • In Wisconsin, the Madison Children’s Museum has for the past 21 years based its annual fundraiser (July 18, this year) on a big discount sale of American Girl dolls and accessories. Worse luck for them.
  • “Anti-recycling”, maybe? Is there a word for what happens when you yank perfectly safe, useful products off shelves by the ton and send them instead to landfills?
  • Blast from the past dept.: if you think Public Citizen has made a mess of the risk and science issues in its advocacy on behalf of CPSIA, you should check out the world-class mess it made when it enlisted in the trial lawyer campaign against silicone breast implants, to name but such one campaign of many.
  • Powersports dealers wary of whether new stay of enforcement really protects them [DealerNews, Sioux City (Iowa) Journal]
  • The first senior, influential Senate Democrat to acknowledge that CPSIA needs fixing? Montana’s Max Baucus is willing at least to sign on to a legalize-minibikes bill.
  • In the comments section on NPR’s phthalates story earlier this month, one of the most-recommended comments was that by Steven Tesney of Houston, who wrote, “As a result of CPSIA and the surrounding political grandstanding, my small home-based company will be going out of business. I design clothing for ‘Alternative’ families with infants, toddlers & kids. My products are organic and use natural dyes but because of new testing requirements that are completely cost prohibitive, I will be forced – along with hundreds of thousands of crafters, artisans and other small business owners – to close my doors. The only companies that will be able to afford the testing will be large corporations (many from China). Mass produced goods win while homemade, handcrafted goods lose. Say goodbye to the charming hand carved wooden toys & crocheted baby caps that you take to baby showers. Say hello to a plethora of licensed products staring back at your children.”
  • “CPSIA and the black market” [Wacky Hermit]

crowandpitcher2
Public domain image courtesy ChildrensLibrary.org: Walter Crane, illustrator, The Baby’s Aesop (1887)

[Third in a series on the possible effects of proposed federal food safety legislation on small/local foodmakers and farmers. Earlier coverage is here and here; and see related post on animal-tracking proposals]

  • Could the outcry be having an effect? Until now, Rep. Rosa DeLauro (D-Ct.) has repeatedly insisted that backyard and kitchen-table producers have nothing to fear from her bill, H.R. 875, the proposed Food Safety Modernization Act, because they do not engage in “interstate commerce”. jaybirdyamsMany observers pointed out that under U.S. Supreme Court precedent, an exceedingly broad range of agricultural and food activity (right down to the growing of grain with which to feed oneself or one’s animals) has counted as within the bounds of “interstate commerce” reachable by federal regulation.* Now, at the end of a Huffington Post piece sympathetically relaying DeLauro’s views, there comes an “Update” nodding toward the courts’ practical application of the “interstate commerce” concept and reporting that DeLauro’s staff is promising “clarifications” of the bill’s reach, perhaps even “technical corrections”, to be ready “in the next few weeks”.
  • When those corrections and clarifications appear, one crucial question will be whether they include any de minimis provisions exempting small, local, or informal producers and sellers (of course, these entities might continue to face stringent state or local regulation). As it stands now FSMA, like CPSIA before it, is notable for its lack of de minimis exclusions, as well as its failure to prescribe “scale-appropriate” principles (“tiering”, streamlined reporting, etc.) by which entities that deal in less than industrial volumes might be given the benefit of simpler and less onerous rules.
  • Given the stated views of the advocacy groups behind FSMA, I very much doubt that a revised version will in fact exempt producers of food intended for consumption within one state only. Even if it does, however, the law will still cover many persons like Harold Gundersen, who sells food from his Southwest Michigan farm at two suburban-Chicago farmer’s markets and in doing so manages to have legal contact with three states in all:

    “We’re highly regulated by state government and federal government,” he said. … [Gundersen] pays $65 twice a year to an inspector from DuPage County, who comes up to Michigan to inspect the apple butter and cider that he sells.

    Gundersen is indignant at that last requirement because he doesn’t even process the apple butter and apple cider — he takes his apples down to an Amish man in Indiana who seals them in cans and jugs. Because that facility is already visited by Indiana inspectors, Gundersen sees no reason for a DuPage inspector to take a second look.

    “There is nothing for her to look at,” Gundersen said. “She looks at my jars and says, ‘OK, I’ll sign this stuff.’”

    Through much of the country — in most of the big cities of the Northeast and Midwest, for example — food grown within a radius of (say) 100 miles will often have crossed state lines.

  • FactCheck’s lullaby of reassurance on the subject contains the following passage aimed at readers who might be perceiving FSMA as a far-reaching power grab by the federal government, or something like that:
    The bill has 41 cosponsors** and has been endorsed by major food and consumer safety organizations, including the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, Food & Water Watch, and The Pew Charitable Trusts. Food & Water Watch is a nonprofit organization that advocates for clean water and safe food and is headed by a woman who used to work for Public Citizen, the consumer group founded by Ralph Nader.

    twinslettuceWell! If a bill has 41 cosponsors, it must have been well vetted, right? (CPSIA had 106). And its backers include not only Consumers Union and Consumer Federation of America — both instrumental in bringing us the CPSIA debacle — but also a group headed by an alum of Nader-founded Public Citizen. It’s not as if Public Citizen was the acknowledged leader of the Washington coalition that pushed for CPSIA and has defended it ever since, right? Oh wait.

    Center for Science in the Public Interest? That’s the outfit that’s called for federal regulation of the use of salt in foods, and its busybody litigiousness has long furnished copious material for this site. Pew Charitable Trusts (is it now OK for charitable foundations to support legislation?) has long had its hand in a hundred activist causes. And so forth. This is not reassurance; to coin a phrase, it’s de-assurance.

  • Deputy Headmistress: “I would believe these consequences were ‘unintended’ if I didn’t see the same consequences from government action over and over again.”
  • No, I don’t agree with the chain-email theories that insist that Monsanto, the giant agribusiness firm, is masterminding the push for this law. (Or the counter-push against it, depending on who you talk to. Maybe both!). Since the company’s name is always coming up, however, here’s a link to what the company’s own spokesman had to say on the lefty site Crooks and Liars, which was not quite what I expected (though I’m not sure what I did expect).
  • Brian Doherty writes about the furor at Reason (with comments here) and John Schwenkler also weighs in at his blog. And in the comments section of our initial post, check out what “Pelly” has to say about yogurt in Nova Scotia.

*Of course, it’s possible that a statute might not grant the federal regulator as much authority as courts would be willing to uphold as constitutional. HR 875 incorporates by reference the FDA’s current definition of “interstate commerce”. I’m not an expert in this area, but various documents suggest that the FDA already asserts much authority over items and processes whose production or use does not cross state lines.

**Among the 41 co-sponsors are such figures as Rep. Jan Schakowsky (D-Ill.), who as a co-sponsor and defender of CPSIA has been ferociously unsympathetic to distress cries from small businesses arising from that law.

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Last Wednesday’s CPSIA rally at the Capitol drew an overflow crowd of hundreds, with thousands more reportedly watching from around the world via webcast. Many speakers had powerful stories to tell, and cameras from CNN and ABC were on hand to record them; AP mentioned the event in covering the dirtbike-ban story. There is, as you might imagine, no way to upstage a six-year-old motocross champion who declares from the podium, “I promise I won’t eat my dirt bike”.

A few things I learned by attending:

  • Ordinary bikes (not the motorized kind) are clearly out of compliance with the law because of the leaded brass in certain components, and have been given no exemption. I’m still wondering why the CPSC directed the motorbike dealers to tarp over their inventory but did not do the same with the ordinary-bike dealers. Earlier here; much more (PDF) in this CPSC submission by Mayer Brown for the Bicycle Product Suppliers Association.
  • Until I saw their handout leaflet, it hadn’t sunk in that the non-profit and charitable giants in resale, including Goodwill, Salvation Army, Easter Seals, Volunteers of America, and St. Vincent de Paul, have banded together in a Donated Goods Coalition. Good for them, and I hope someone listens.
  • Held up for inspection

  • Even blogging the subject as much as I have, I’ve somehow said almost nothing about CPSIA’s requirements for batch numbering, labeling and tracking of kids’ products, due to hit later this year. It seems these requirements all by themselves will suffice to wipe out small producers in droves even if the crazy testing requirements can somehow be made sane.  A few write-ups touching on the subject: Handmade Toy Alliance (Word document), Kathleen Fasanella/Fashion Incubator, Publisher’s Weekly.
  • The rally happened because of the efforts of grass-roots business people around the country, above all Rick Woldenberg of Learning Resources. (The story of the Oregon delegation could stand for that of many others.) Motorbike people were much in evidence. Also present: people from trade associations from regular businesses not been much heard from in the CPSIA furor of recent months, including makers of shoes and footwear, cribs, and even household cleansers, all of whom turned out to have stories to tell. Who knew there was a whole association specializing in the little items you get when you put in the quarter in the vending machine and turn the crank?
  • Kids’-book author (and valued commenter) Carol Baicker-McKee was there and gave a superb talk, making effective use of a copy of Orwell’s 1984. Otherwise, however, among groups deeply affected by the legislation, the book and library trades were conspicuous by their absence. I wasn’t the only one who noticed this; so did Publisher’s Weekly.
  • I finally got to meet face to face many persons who have been favorably mentioned in these columns over the past three months. I was not surprised to find a whole lot of nice, dedicated people, the sort of people you’d want to be making products for your children to use. You, Reader, would have enjoyed meeting them too.
  • Many members of Congress spoke. All were Republican, and a few were pretty good. For better or worse (maybe some of each) there was a minimum of partisanship, with scant mention of the reports that the Democratic House leadership had ordered members not to attend. Several lawmakers minimized the institutional role in the debacle of Congress (which passed the law last year almost unanimously), instead seeking to throw the blame onto the CPSC’s management, which put them surprisingly close to the position of Henry Waxman himself. One GOP member said it was important to be nice to the Democrats and not alienate them, since they held all the power. Not observing the nicetiesThis may have been good advice, but I was still a little surprised.
  • Amid a great deal of talk about unintended consequences, very little was said about there being actual adversaries out there, who know quite well what the law is doing and support it anyway. If more than a word or two was breathed about the roles of Public Citizen, PIRG, or the various members of Congress who are actively hostile on the issue (and not just “needing to be educated”), I missed it. Which meant (it seemed to me) that some of the good people who’d taken the trouble to come to Washington were going to be surprised and perhaps unprepared when they discovered figures out there like, oh, just to pick randomly, Illinois Sen. Dick Durbin, whose positions are not so much unreflected-on as deeply hostile (and with mysteriously unsourced numbers too).

Speaking of which, Consumers Union, publisher of Consumers Reports, confirmed once again that it falls into the “hostile” and not merely “unreflective/ uninformed” category with this deplorable hatchet job, which provoked a slew of angry, substantive comments; see also blog posts including those of Carol Baicker-McKee and Sheeshamunga.

More rally coverage: Domestic Diva, Polka Dot Patch.
Public domain image: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.

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kidsdancearoundtree

Given that nearly every member of Congress voted for CPSIA last year, it’s not surprising that that body of lawmakers was slow to respond to reports of the law’s catastrophic consequences. It’s beginning to happen now, though. Republicans have been in the lead, the latest sign being a strong letter from ranking House Commerce minority members Reps. George Radanovich (R-Calif.) and Joe Barton (R-Calif.) asking for a hearing. The motorcycle/powersports issue has also kindled widespread interest from Hill members (example: Rep. Michael Simpson, R-Idaho).

On March 4 there was a welcome break in the ice on the Democratic side as well. Rep. John Dingell (D-Mich.) sent a letter to the commissioners of the CPSC that, although cautiously worded, acknowledges many of the reports of calamitous consequences from around the country, something that his colleagues Rep. Henry Waxman (D-Calif.), Rep. Bobby Rush (D-Ill.) and Rep. Jan Schakowsky (D-Ill.) have been unwilling to do (when not dismissing those reports as based on misinformed or uninformed rumor). Of course, there is famously no love lost between Dingell and Waxman, who ousted him as Commerce chair. But Dingell’s stand could give cover for other Democrats to join in heeding the public outcry as legitimate. That letter in turn has prompted many CPSIA critics to write Dingell letters in hopes of arming him with more facts and arguments on the law’s ill effects: see in particular Rick Woldenberg and Wacky Hermit.

Waxman, for his part, has announced his intent to hold no hearing on the law until the Obama Administration installs a new chair at the Consumer Product Safety Commission. That serves the multiple functions of 1) stalling (while more small enterprises are driven out of business and thus are neutralized as political threats); 2) reinforcing the impression that the ball is in someone else’s court on addressing the law’s harms; 3) assisting in orchestrating whatever hearing is eventually held, since he expects an ally of his own to be installed as CPSC chair (the ultimate nightmare for CPSIA critics in that job would be someone like Pamela Gilbert, the class action lawyer, former plaintiff’s-lawyer lobbyist, and longtime Litigation Lobby figure who ran the Obama transition effort for the agency).

The membership of the House Energy and Commerce Committee, by the way, is listed here (hit “membership”; scroll to “Subcommittee on Commerce, Trade, and Consumer Protection” to find the members most directly involved). The membership of the Senate Commerce Committee is listed here and that of the Subcommittee on Consumer Protection, Product Safety and Insurance here.

Some miscellaneous weekend reading about the law: John Markley, Bureaucrash; Michael Maletic (Weil Gotshal & Manges), Republican National Lawyers Association; Ed Driscoll, Pajamas Media.
Public domain graphic: Grandma’s Graphics, Ruth Mary Hallock.

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  • There’s new blogging on the fate of pre-1985 children’s books from book restorer and conservator Javamom, Jane Badger (iBookNet, U.K.), Dillon Hillas, Wellspring Creations, and Small-Leaved Shamrock. Sorry no books todayDeputy Headmistress continues to blog the book angle intensively, as does Valerie Jacobsen (read this post in particular). Note also the comment from Nancy Welliver on her February 11 post: “We are a used curriculum and book seller. We have removed 3,500 books from our website. … until recently publishers did not put printing dates in books, only copyright dates. So a book that is copyrighted 1976 may have been printed in 1988 and therefore legal to sell, So how do we know which are printed before and which after 1985? So we have removed all books for children with copyright date 1985 and before.” There’s also a page at cpsia-central (the Ning group) on books and libraries.
  • The law is also having a major impact on sellers of new children’s books, given that the only newer books presumed safe for legal purposes without testing are completely plain books with no embellishments or non-paper features. Don’t miss the letter at Wellspring Creations from “Jackie”, who identifies herself as the manager of the children’s book section at a Half Price Books store, part of a large chain that sells publisher’s remainders and overstocks as well as used books:

    I have experienced the severity of this issue first-hand. … Initially, it didn’t seem like this would have much of an impact on the kids section, but as I went through my section pulling everything that was potentially harmful, I soon realized that this was going to decimate my section. My display tables were over halfway empty, and there were half-empty or completely empty shelves all throughout the section. … The kids cooking shelf went from being packed full to only having half a dozen books left, all because most of the cookbooks were spiral-bound with metal. …

    The day that I had to get rid of all those books was one of the roughest days I’ve ever had at work. The kids section is my pride and joy, my baby, and I had to not only watch it get torn apart- I had to do it myself. It was heartbreaking.

    The happy ending, if you want to call it that, is that eventually many or most of the new books are likely to return to the shelves after the chain puts them through testing — though it’s more likely to take such a step for a mass-selling branded item piled high on display tables than for a specialty cookbook expected to sell only in the dozens of copies. Go read the whole thing.

  • Community Homestead is a center for developmentally disabled adults in rural Wisconsin that has sold residents’ handcraft toys. Its CPSIA story is here.
  • Dust-ups in comments sections are not my thing, but some people enjoy them, and they keep breaking out on the occasions when someone still attempts an aggressive defense of this bad law. Thus when the Chicago Daily Herald printed a letter from Alexandra Lozanoff of the Illinois Public Interest Research Group (PIRG) yesterday rhapsodizing about the law, numerous commenters jumped in to express rather sharp disagreement. A state legislator in Orangeburg, South Carolina put her name to a piece in the local paper attacking Sen. Jim DeMint for sponsoring CPSIA reform, provoking dozens of comments, most taking issue. The Natural Resources Defense Council, which is invested in defending CPSIA in part because of the law’s phthalates ban, ran an ill-informed piece pretentiously titled “The Artisan Toymaker’s CPSIA Exemption Guide” and was promptly spanked by knowledgeable commenters, a fate that also befell the left-leaning crew at Moms Rising. The lengthy comments section on John Holbo’s thoughtful followup post at Crooked Timber presented the spectacle of one agitated and flailing defender of the law pretty much surrounded by people trying to talk sense into him. Someone adopting the monicker “Civil Justice” wandered into the Etsy forums to push Lawsuit Lobby views and was not met with pleasure by the assembled crafters, an episode which may be related to the one already told about how the misnamed Center for Justice and Democracy, a group with views antipodal to our own, suggested that we all were insensitive to children’s health and then refused to let any letters from critics through moderation, claiming to feel threatened by the letters’ tone (examples of the sorts of letter CJD found too intimidating in tone to run: Mark Riffey, Olivia @ BabyCandyStore). Some other previously linked comments discussions: The Pump Handle (profoundly misguided contributor corrected by Deputy Headmistress, Kathleen Fasanella, etc.), Consumer Reports, Greco Woodcrafting (Public Citizen’s David Arkush vs. the world), and, of course, Justinian Lane.
  • G-O-O-D-B-Y-E B-O-O-K-S

  • Even a casual acquaintance with CPSIA blogging is enough to show that homeschooling parents have taken an extraordinary role in leading the resistance to the law. Bloggers like CalifMom have predicted that the law will have numerous harmful impacts on homeschoolers, and homeschool curriculum suppliers such as Hands and Hearts History Discovery Kits and Hope Chest Legacy have already closed down because of the impracticability of compliance. So it’s unfortunate that the Home School Legal Defense Association (HSLDA) seems to have so little clue what’s going on.

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With large inventories of kid-sized motorbikes, mini-ATVs, and similar products rendered worthless and unsalable under tarps or in back storage rooms, the Motorcycle Industry Council now estimates that the economic damage from the Consumer Product Safety Improvement Act in its sector of the economy alone could reach $1 billion in 2009 if Congress does not act to restore the products’ legality. Joe Delmont at DealerNews has more information on how that figure was arrived at. Two weeks ago we cited an estimate that the frozen inventory alone exceeds $100 million in value; the larger figure adds in the cost of payroll and insurance at dealerships while they wait for the ban to be lifted, lost service and accessory sales, and so forth. It apparently does not count harms to tourism and recreation sectors in parts of the country that draw a family vacation trade based on use of the vehicles (see, e.g., ShareTrails.org, Americans for Responsible Recreational Access). Since the vehicles are intended for outdoor use, the weeks leading up to and including spring — in other words, now — are ordinarily their prime selling season. Some recent coverage previously unlinked: Chico, Calif., Enterprise-Record, WDAY Fargo, N.D., Orlando, Fla. Local6, WCTV Tallahassee, Fla., Gloversville, N.Y. Leader-Herald, Kingsport, Tenn. Times-News. Forums: cpsia-central, VitalMX, Motorcycle Addicts, and many more.

bombardierbrp

The minibikes fall into a category of products for which the drafters of CPSIA made it particularly hard to obtain exemptions, namely products that concededly do contain a more than infinitesimal quantity of lead in a normal and accessible component. Yesterday, the CPSC published (PDF) its proposed rule on the subject. In it, the commission staff explain the stringent legal requirements governing such waivers, and why they often do not allow the commission to grant “common sense” waivers even where risks of harm are very low and costs of regulation are very high (pp. 7 et seq of the document, which fall on pp. 9 et seq of the PDF). In other words, the minibike dealers are out of luck unless they can convince (or persuade Congress to take the issue away from) the implacable Henry Waxman, who in turn tends to take his cue on these matters from Public Citizen and that group’s allies.

The powersports dealers aren’t the only ones stranded. At The Smart Mama, lawyer/lead testing consultant Jennifer Taggart ponders what might amount to “the end of bling” in kids’ wear. Genuine crystals by definition include lead, as do many rhinestones, although cheaper plastic imitations will more often be free of it. Trade groups have petitioned for an exemption, but given the law’s stringency (calling for the submission of peer-reviewed data, for example) it is far from clear that the commission can grant their requests. It will be easy in some quarters to dismiss the whole matter with a wave: who cares about mere embellishments, anyway?
irishdancedress
It’s not so easy to be dismissive if you’re, say, a teacher of Irish step dancing, with a stock of performance dresses in youth sizes (quite possibly with crystals, rhinestones or sequins, since nothing picks up stage lights the way they do). That stock of costumes, which might even be your most costly asset, by law at least may now occupy the same frozen contraband category as those tarped-over new youth minibikes at the sports dealer’s. As message-boarder “GailV” put it, “The dresses are worn for about 15 minutes at a time, the possibly lead-containing parts never touch the child, but it’s still illegal.” For more on the dismay CPSIA has struck into the Irish dance apparel community, see Irish Dance Moms, Fashion Incubator Forums, and Voy Forums comments here, here, and here (“Heidi”: “Most of us would like to be successful and running legitimate (law abiding) businesses. I want to grow my business, not hide in the shadows looking for ways to circumvent the law. Besides, the jealous world of Irish dance is full of potential whistle blowers.”)

More: In comments, Jennifer Taggart reports more distress in the bling sector.

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February 19 roundup

by Walter Olson on February 19, 2009

  • Surprising origins of federal corruption probe that tripped up Luzerne County, Pa. judges who were getting kickbacks on juvenile detention referrals: insurers had noted local pattern of high car-crash arbitration sums and sniffed collusion between judges and plaintiff’s counsel [Wilkes-Barre Times Leader, Legal Intelligencer] Court administrator pleads to theft [Times Leader] Judge Ciavarella had secret probation parole program [PAHomepage]
  • We get accolades: “Overlawyered.com has a new look. Great new format, same good stuff,” writes ex-securities lawyer Christopher Fountain, whose real estate blog I’m always recommending to people even if they live nowhere near his turf of Greenwich, Ct. [For What It's Worth]
  • “Fla. Jury Awards $8M to Family of Dead Smoker in Philip Morris Case” [ABA Journal; for more on the complicated background of the Engle case, which renders Florida a unique environment for tobacco litigation, start here]
  • Scott Greenfield vs. Ann Bartow vs. Marc Randazza on the AutoAdmit online-bathroom-scrawl litigation, all in turn playing off a David Margolick piece in Portfolio;
  • Eric Turkewitz continues his investigations of online solicitation by lawyers following the Buffalo crash of Continental Flight #3407 [NY Personal Injury Law Blog, Mon. and Tues. posts; earlier]
  • One vital element of trial management: keep track of how many jurors there are [Anne Reed, Deliberations]
  • Public Citizen vs. public health: Sidney Wolfe may succeed in getting the FDA to ban Darvon, and the bone marrow transplant nurse isn’t happy about that [Dr. Wes, KevinMD, more on Wolfe here]
  • “Baseball Star’s [uninfected] Ex Seeks $15M for Fear of AIDS” [OnPoint News, WaPo, New York Mets star Roberto Alomar]

blowingbubblesatus
Clueless. Disgraceful. Grossly ill-informed. And cruelly hard-hearted toward families and businesses across the country that are facing economic ruin.

Yes, after months of silence, the editorialists of the New York Times have finally weighed in with their view of how CPSIA is going. How bad did you expect their editorial to be? It’s that bad, and worse.

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In a six-paragraph editorial about toy safety, exactly one paragraph is spent informing readers that anything about the law might have aroused any public criticism. And here is that paragraph:

Unfortunately, the commission has yet to implement important aspects of the new law. The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.

Got that? “Confusion” about the law, and “delay” in implementing it, are the real problems. Fears that small business will be hurt are “needless” and are being “fomented” by presumably sinister opponents.

Or, put differently: anyone who imagines this law might be impractical for libraries, resale shops, handmade toy businesses, or other small businesses is just imagining things — fooled, perhaps, by misinformation spread by the law’s opponents.

Libraries are just imagining things if they listen to people like Emily Sheketoff, associate executive director of the American Library Association, who spoke to the press last month about the choices facing libraries if some sort of exemption could not be found. (“Either they take all the children’s books off the shelves,” she said, “or they ban children from the library.”) Or people like Chip Gibson, president and publisher of Random House Children’s Books, who spoke to Publisher’s Weekly about the prospective effects of the law: “This is a potential calamity like nothing I’ve ever seen. The implications are quite literally unimaginable. …It has to be stopped.” It’s true that the CPSC’s last-minute stay of enforcement did save the new-children’s-book trade from calamity — but remember, to the Times, “delay” has been one of the problems in implementing the law, not something that has (so far) spared us its worst effects.

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Thrift stores are just imagining things if they listen to people like Adele Meyer, executive director of the National Association of Resale and Thrift Shops, who said, “The reality is that all this stuff will be dumped in the landfill.” They should ignore all the reports, no matter how numerous and from how many sources, of local Goodwill operations and other thrift stores’ closing children’s departments or sweeping more than half their contents off the shelves, and of kids’ resellers and consignment shops taking massive financial hits or closing down entirely. All of these episodes are either imaginary or, if conceded as real, an instance of overreaction to the needless fears those moustache-twirling opponents have “fomented”. (Some more thrift-store coverage not previously linked: North Carolina, Nebraska, Minnesota with Goodwill pic, upstate New York (“We can’t be sure of the risk unless we take everything off the shelf”), South Dakota, Colorado). They should also stop predicting that the pursuit of their charitable missions will suffer a major blow from the loss of children’s resale revenue, because that sort of thing just undermines morale.

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Handmade toy businesses are just imagining things if they listen to anyone like the Handmade Toy Alliance. It’s not as if anyone like them is on its list of members.

The Times editorialists warn against “needless fears” that the law “could injure” smaller enterprises. Got that? Not only will they not be driven out of business, they won’t even be “injured”. So small enterprises from coast to coast are just imagining things if they plead desperately for places like the Times to notice that they have already closed down, or will have to do so in the foreseeable future, or have lost thousands of dollars in unsalable inventories. Motorbike dealerships around the country are just imagining things if they think they’re staring at massive losses from the inability to sell their products, even though news-side talent at the New York Times has in fact covered their story well — coverage which the editorial studiously ignores.

For as long as anyone can remember, the New York Times has unthinkingly taken its line on supposed consumer-safety issues from organized groups like Public Citizen and Consumers Union. In this case, the result of such reliance has been to render the nation’s leading newspaper a laughingstock.
Public domain image: Grandma’s Graphics, Ruth Mary Hallock.

(& welcome Virginia Postrel, Christopher Fountain, Patrick @ Popehat, Carter Wood/ShopFloor, Mike Cernovich, Katherine Mangu-Ward/Reason “Hit and Run”, Jonathan Adler @ Volokh Conspiracy, Memeorandum, Above the Law, Tim Sandefur, Mark Thompson/Donklephant, Alison Morris/Publisher’s Weekly Shelftalker blog, Jacob Grier, Amy Alkon/Advice Goddess, Joe Weisenthal/ClusterStock, Valerie Jacobsen/Bookroom Blog readers. And: Deputy Headmistress at Common Room, Faith in Truth, Amy Ridenour/National Center and NewsBusters, Charles Kuffler/Off the Kuff.)

And more: Forbes.com liked this piece and has now reprinted it in slightly altered form. And I’m particularly grateful to Robert Ambrogi/Legal Blog Watch for his generous coverage.

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raggedyannincustody

  • Virginia Postrel, who understands both the world of design and the world of ideas, has one of the best pieces yet on the law at her Dynamist blog. “Not since the early 1970s, has ‘regulation’–the general idea, not a specific proposal–seemed so alluring.” And this particular regulation? “It’s completely nuts”. Deploring the general blackout on the story across large sectors of the media, she also has kind words for the “exemplary” coverage found in certain other places. (Thanks!) Read the whole thing.
  • “We stopped selling over 1,000 items today because of CPSIA. No other online Catholic stores appear to be aware of the law.” [proprietor of Aquinas and More; earlier]
  • Dilemma for overseas makers of children’s items: find tactful way to announce ban on sales to U.S. customers [Etsy thread]
  • Trust us, they said: per columnist Glenn Cook with the Las Vegas Review-Journal, Majority Leader Harry Reid’s staff assured constituent Molly Orr “that some sort of broader fix is forthcoming”. Oh, well, then we can all relax. In the mean time, Congress refused to consider the reform proposal by Sen. Jim DeMint (R-S.C.) during the stimulus debate, and Public Citizen gloats.
  • State attorneys general and CPSIA: they’ve got wide powers.
  • To understand how we could wind up with a law as bad as this, it helps to keep an eye on the pronouncements of CPSC Commissioner Thomas Moore — you know, the one whose resignation Congressional leaders are not demanding. Rick Woldenberg nicely skewers some of the vacuities in Moore’s public statements, including an expression of irritation that compliance with the law by February 10 was proving unfeasible given that “certain Hill staffers were assured by various segments of the children’s product industry, that there would NOT BE A PROBLEM with meeting the 600ppm standard”. (For sure, that should have settled it! It’s not as if anyone deals in children’s products who didn’t have a lobbyist present.) And in the comments section on our vintage-books post, Valerie Jacobsen points to a Moore letter of Feb. 3 (PDF) in which he proposes that some undetermined proportion of children’s books printed before 1985 “should be sequestered” until more is learned about their possible health effects. Wow.
  • Where do reporters Jayne O’Donnell and Liz Szabo of USA Today get the idea that foes of CPSIA “have given up fighting the need for” the law and instead are now just begging exemptions? I agree with Deputy Headmistress, the newspaper seems just to be “pulling this claim out of thin air“.
  • Okay, so phthalates are going to be taken out of the mix for playthings and child care goods, just to be on the safe side. What’s going to replace them, and are those replacements going to be more or less safe than phthalates were? For more on the tendency to substitute one risk for another, Google “MTBE” or “Tris” “sleepwear” or “cyclamates” “saccharin” “comparative risk”;
  • Per Carrie Lundell, the new CPSC guidelines will permit crafters of kids’ clothing to pursue their dream freely so long as the garments have no closures or embellishments of any kind. Caftans all around! More comic relief, if you call it that: Jon Stewart “Daily Show” forum, “Fenrislorsrai” and commenters (“If your 12 year old is eating lightbulbs out of a microscope, you have more serious issues.”); Smothering Parents of America Association video, DollarMovies at YouTube;
  • Blog treatment includes more from John Holbo at Crooked Timber, several posts at Popehat, Wacky Hermit on Thoreau and unjust laws, Charles Kuffner/Off the Kuff, Scholars and Rogues, Executive Pagan, Scott Greenfield;
  • A reminder: if you’re just catching up with the story, our full archive of CPSIA coverage is here. If you’d rather listen — and don’t mind something a couple of weeks old, which therefore doesn’t take into account some newer developments like the last-minute stay on enforcement of testing — With Love Designs recommends a “great podcast about the CPSIA – explains it in terms I understand.” (Aw.)

Image courtesy ShopFloor.

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Fifty glimpses of the law and its impact, plus one at the end for D.C:

Hawaii: Kailua doll shop closes despite CPSC enforcement stay (w/video); Honolulu Honey Baby shakes leis and hula skirts in dismay;
Alaska: “Why you should care about CPSIA, and what you can do about it”.
Washington: Don’t miss this helmet anecdote from Whitman County;
Oregon: Milagros Boutique of Portland: “One of our local vendors has decided to throw in the towel rather than wait and see if the CPSIA is amended.”
California: Thanks to stay, Whimsical Walney will close down only temporarily, not permanently;
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Utah: “We will have to lock our doors and file for bankruptcy,” said Shauna Sloan, founder of Utah-based children’s resale chain Kid to Kid. Glory Quilts: “My longest blog post ever — and the most angry“;

Colorado: Emily Werner: “Today, I have diaper making to do. But I also am ready to stuff envelopes“;
Idaho: Squares of Flair, from Eagle, is on the Endangered Whimsy list. And if you’re thinking of making something bulky for children, like a furniture line, have you considered that none of the nation’s lead testing labs are anywhere near Idaho?
Nevada: Let’s hope Sen. Harry Reid is listening to constituent Molly Orr;

Wyoming: For Kooky Dolls it’s a distinctly non-kooky issue;
Montana: Mark Riffey’s Business is Personal (Rescue Marketing) has helped focus blog attention;
Arizona: “No way” Other Mothers resale stores “can be completely compliant”;
New Mexico: Fashion Incubator and National Bankruptcy Day;

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Oklahoma: Farewell jingle dresses, powwow dance clothes, buckskin leggings, concho belts and other Native American celebratory kids’ gear;
Texas: Distress sale at My Pink Zebra Boutique in Katy;
Kansas: Owner of Baxter Springs company that makes organic nursing pillows doesn’t think threat of being “hauled off to prison” is very constructive;
Nebraska: Omaha-connected Baby Leather Moks is on Endangered Whimsy list;
North Dakota: Sunrise Hill Decor, making blocks for play or display, is member of the Handmade Toy Alliance;
South Dakota: Question after our own heart: what would Laura Ingalls Wilder have thought of this law?

Iowa: I may know there are no phthalates or lead in that whimsical chenille baby bib, and you may know it, but have you documented it to the satisfaction of the wary retailer’s lawyers?
Minnesota: Things seem to be going great, with your product line featured on the Martha Stewart show. And then this happens (auto-plays video);
Missouri: Fleece scarves, going too cheap;
Illinois: List-keeping in Naperville. Oprah, please help!
Wisconsin: Owner of Jacobsen Books in Clinton is also worried about small-run adaptive devices used by special needs children;
Indiana: Rebecca Holloway gives ‘em a deserved slamming; doll outfits and hair bows;

Ohio: Nicer-than-mass-produced diaper covers; Toledo Physical Education Supply takes a hit;
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Michigan: Brandi Pahl wonders: What are they thinking?; NARTS efforts couldn’t save Ionia resale store;
Arkansas: Closing of A Kidd’s Dream consignment shop in Conway doesn’t seem to have done much to change Sen. Mark Pryor’s mind;
Louisiana: The stay: “Hope but no solution“, kids’ Mardi Gras masks;
Mississippi: Sen. Roger Wicker is co-sponsoring DeMint reform bill;
Alabama: About that stay: “Read the fine print“; at least the pink whale got adopted;
Florida: “Many stores have fallen for the false report from the media that consignment stores are exempt.”
Georgia: Thank you, 11 Alive News, for listening to consignment sellers;

Tennessee: eBay seamstresses and Spanish baby gift sellers watching with concern;
South Carolina: Rock and mineral kits: do not eat contents unless you are at least 12 years of age;
North Carolina: Quilt Baby appeals to reason;
Kentucky: Menace of soft texture block set probably overrated;

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Maine: Any reform will come too late for Farmington’s Blessed Baby Boutique, shut down last weekend;
New Hampshire: As Commerce Secretary, d’you think Sen. Gregg could help?
Massachusetts: Rob Wilson of Ashland, importer of earth-friendly toys, has done much to spread the word, and impact on libraries noted in Newburyport;
Vermont: “Somewhere in the neighborhood of 95 percent of the merchants on our site would have to shut down,” says Michael Secore of Craftsbury Kids, with co-owner Cecilia Leibovitz a major spreader of word about the law, ditto Barre’s Polkadot Patch;
Rhode Island: Sens. Sheldon Whitehouse and Jack Reed “don’t seem terribly concerned“.
Connecticut: Stamford maker faces $400 testing bill for each $360 run of bibs and napkins, while paperback exchange owner in Bethel terms application of law “insane“;

New York: Issue has captured attention of book publishers, if not of certain newspaper publishers;
New Jersey: You made play food for kids out of felt? No wonder Rep. Waxman is so worried they’ll eat it!
Delaware: Wilmington store Yo-Yo Joe’s is a member of the Handmade Toy Alliance;
Pennsylvania: Going out on a limb, Somerset librarian contends most kids are old enough to know not to put the books in their mouths;
Maryland: The Baltimore Etsy Street Team is on the wing;
West Virginia: Project Linus, which does great charity work in the donation of quilts and blankets, puts on a brave face but its friends are worried;

Virginia: Back away from that ribbon hair bow slowly, now, and we’ll just wait for the hazmat team to arrive;

*District of Columbia: Almost forgot Washington, D.C.! Well, in Washington, D.C., it’s easy to get them to pay attention to problems like these. For example, less than a month ago, the offices of Reps. Henry Waxman and Bobby Rush were instructing colleagues that if they get calls from constituents “who believe they may be adversely impacted by the new law,” it was because the constituents had fallen victim to “confusion” and “inaccurate reporting”. The most important advocacy group behind the law, the implacable Public Citizen, has launched a new campaign to defend it from critics; it was PC’s David Arkush who in December notoriously assailed (scroll to #1) “hysteria” about the law on the part of crafters and small businesses, broadly hinting that they were serving as dupes and stooges of Big Toy interests — perish the thought that they might have figured the issue out on their own! Trial-lawyer-defense groups like the misnamed Center for Justice and Democracy (along with their friends) chimed in with the thought that critics of the law needed to “grow up” (no, don’t bother commenting). CPSC Commissioner Thomas Moore, hewing to a similar line, blames the ongoing ruckus on “orchestrated campaigns to undermine the Act” that “are sowing the seeds of confusion that are upsetting so many small businesses.” Lobbyists and trade associations for mass-production importers and merchandisers are eager to prove their cooperation with the powers that be: “We were early proponents of mandatory laws to require toy testing,” said a Toy Industry Association spokesman the other day.

Washington, D.C. always does so well at listening to the rest of the country.

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January 29 roundup

by Walter Olson on January 29, 2009

  • Free class-action swag if you bought department store cosmetics between 1994 and 2003; not that they’re giving away the very best stuff or anything [Tompkins/Poynter, California Civil Justice, WSJ Law Blog, settlement site] We’ve been covering the story for quite some time;
  • Law school “can be a financial disaster” for unwary students [Law and More] Law schools not immune from economic downturn [Above the Law]
  • Bruce Bawer on Dutch prosecution of Islam-criticizer Geert Wilders [City Journal]
  • More on possible passenger suits after the miracle Hudson-landing USAir Flight #1549 [USA Today, earlier] Update: NY Post, NY Mag.
  • Bad news for patients and other living things: Sidney Wolfe of Public Citizen somehow got named to a key FDA panel during the late Bush administration [Point of Law, Postrel, Bernstein/Volokh, Hooper & Henderson/Forbes]
  • “Friends weren’t really trying to reach me!” class action against Reunion.com encounters another setback [Spam Notes]
  • Stand and deliver it back: “Minnesota: $2.6 Million in Red Light Camera Tickets Refunded” [The Newspaper]
  • Gary, Indiana’s is the last standing of what were once thirty “gun sales = nuisance” suits filed by cities; now Indiana high court says it can go to trial [Point of Law]

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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).

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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.)
[click to continue…]

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