CPSIA chronicles, April 9

Posting may be slower here over the next few days because of the holiday (and comments-moderation may be erratic at best, for which apologies in advance). If you’d like to catch up with CPSIA reading, though, there’s plenty of it:

  • Excellent reporting in the Milwaukee Journal-Sentinel last weekend, based on interviews with local people affected by the law, including a maker of kids’ clothing, a doll maker (more), and so forth. Virtually all of them contribute a striking fact, a memorable quote, or both: “Mark Kohlenberg, owner of the Umi children’s shoe company in Grafton, estimates that the required testing will cost his company $200,000 a year. … ‘This law was written one night in Washington when everyone was drunk,’ said a frustrated Peter Reynolds of the Little Toy Co. in Germantown. ‘It’s impossible to read and impossible to enforce.'”
  • Before moving on from the state of Wisconsin, let Valerie Jacobsen’s comment be recorded: “Canvassed Janesville, Wisconsin thrift stores March 31. In an entire city of population 60,000 there was one piece of used clothing for a baby of six months or less”. (Further: ShopFloor).
  • A report in the Northfield, Minn. paper on the vintage-kids’-books situation contains a line almost too depressing to pass along: “Congressman John Kline responded and said efforts are underway to change the law, but with the focus on larger budget issues he admitted it could be years [emphasis added] before this gets another look.” More: Deputy Headmistress.
  • “The Myth of Good Intentions” [James Wilson, DownsizeDC]
  • “$1,500 to test one clutch ball that retails for $16.50”: a letter to President Obama [Jill Chuckas of Handmade Toy Alliance at Change.org]
  • Rick Woldenberg, running his family’s educational-toy company, remembers himself as the most apolitical person you would want to meet. How’d he turn into a nonstop organizer of the reform effort? [Story of My Life]
  • “When I first heard about CPSIA I actually cried. I didn’t see how they could pass something so stupid.” [11-year-old Lizi, at AmendTheCPSIA.com]
  • To grasp the immense scale of Congress’s blunder with this law, “follow a blog like Overlawyered“. Thanks! [Hugh Hewitt, The Examiner; and more, including radio questioning of Sens. Lamar Alexander (R-Tenn.), Ben Nelson (D-Neb.), and John Ensign (R-Nev.)]

Formidable when united
Public domain image from Walter Crane, Baby’s Own Aesop (1887), courtesy Children’s Library.

“Considering the explosion of new media, regulation is inevitable”

Phillips Givens’ IP Law 101 has more on the Federal Trade Commission’s proposed extension of liability to situations where bloggers or others in social media fail to disclose the receipt of freebie services (such as entertainment or software) or write insincerely favorable posts about the experience. Earlier here. More: Jeff Winkler, Reason “Hit and Run”.

P.S.: Doesn’t sound as if bloggers have much to worry about, though, if the topics on which they provide favorable coverage are of a more political sort.

April 9 roundup

  • Teacher’s aide in Queens, N.Y., sues 11 year old, saying he was dashing for ice cream and ran into her (this happened when he was eight) [WPIX; Rosanna Tomack, Joseph Cicak]
  • Extraterritoriality, or exit fees? Stiff taxes these days on Americans who renounce their citizenship [Coyote Blog]
  • Pennsylvania Gov. Ed Rendell hires Bailey, Perrin & Bailey, big campaign-donor law firm for anti-drugmaker suit [WSJ, Point of Law, ShopFloor, Adler @ Volokh]
  • Injured in wrestling fall, will get $15 million from school district [Seattle Times]
  • Feds seized Petri dishes at Buffalo professor’s home and word spread of major bioterror bust. Oops [Andrew Grossman, Heritage]
  • Toward “public control over the media”: Creepy ideological origins of Nichols/McChesney scheme to subsidize newspapers [Adam Thierer, City Journal]
  • Thanks to expensive modern medicine Virginia Postrel has been doing well in her fight against breast cancer, story might not have been so happy in some countries [The Atlantic, second essay responding to letters]
  • Jury awards $22.5 million against vaccine maker to man who says he caught polio from daughter’s shot [Staten Island Advance]

“Sued for seeking a ZIPcode?”

Overlawyered readers may remember the problem of FACTA lawsuits when a poorly drafted federal law led to attorneys seeking $1000 for every occasion when a credit-card slip showed an expiration date.

Stroock & Stroock’s Daniel A. Rozansky and Scott M. Pearson have an op-ed in today’s San Francisco Chronicle discussing problems with a similar California law. California prohibits businesses from requesting or requiring “personal identification information” while accepting a credit-card payment; this includes address and phone number, but doesn’t specify what else. Entrepreneurial trial lawyers are asking courts to hold that it includes harmless information like ZIP codes: since the statute provides for $1000/violation damages in the absence of a showing of harm without a cap, extortionate lawsuits are easy to create–and a further drag on the already-suffering California economy.

H.R. 875, Food Safety Modernization Act of 2009

The panics over salmonella, E. Coli and unsafe foodstuffs from China have heightened the prospects that Congress will enact a measure known as H.R. 875, the “Food Safety Modernization Act of 2009”. radishseedShould the measure in its current form become law, “food establishments”, which to quote Patrick at Popehat “means anyone selling or storing food of any type for transmission to third parties via the act of commerce”*, will have to register with a new federal regulatory agency, submit to federal inspections, and, perhaps most significant, keep “copious records of sales and shipment by lot and label”. Penalties for infractions will be very, very steep.

What could possibly go wrong?

The answer, it seems, is “plenty”. Patrick, and the other writers linked just above, warn that the law may drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production. Many informal makers of ethnically or culturally distinctive food items will go off-books or simply fall by the wayside, overwhelmed by the reporting and batch-tracking paperwork. Many foreign producers who ship in less-than-mass quantities will give up on the U.S. market rather than try to comply with challenging standards that differ drastically from those imposed by European markets or their own countries of origin, which in turn will mean that many interesting and safe specialty foods will simply no longer be available for purchase, at least legally.

The catch-phrase one keeps hearing is “CPSIA for food”.

So now an aggressive campaign of reassurance is underway: FSMA, it’s said, really should be seen as posing no particular threat to farmer’s markets or small producers — at least those that are not sloppy or cavalier about their customers’ safety. lettuceseedAt Treehugger, one finds language which with a word changed here or there is virtually identical to the reassuring language one recalls hearing from CPSIA backers:

I can’t imagine this resulting in anything more than a little paperwork and a brief headache for small farmers—they have no reason to worry about a seven figure fine. That amount is intended to account for corporate ne’er food-do-wells, and is therefore a pretty damn good incentive to keep factories and meat packing plants clean.

So even though home orchard proprietors and others operating at far less than a factory scale of production will in fact be exposed to stiff fines should they fall astray of the record-keeping obligations, this particular writer, Brian Merchant, “can’t imagine” stiff fines actually being imposed. You have to wonder whether Mr. Merchant was one of those who as recently as January couldn’t imagine CPSIA posing more than a “brief headache” for thrift stores or handmade toy crafters.

Among those prominent in this campaign of reassurance is the ubiquitous and media-friendly plaintiff’s lawyer Bill Marler, who’s carved out a thriving practice filing (and publicizing) food poisoning suits. Marler’s blog serves as a bit of a clearinghouse for articles vigorously disputing the idea that small producers have any reason, any good reason at least, to be afraid of H.R. 875.

The chief sponsor of FSMA’s Senate version is none other than Illinois Sen. Dick Durbin, and among the groups prominently backing the bill is none other than Consumers’ Union. We are now being asked to trust a legislative process in which Durbin and CU will count as insiders to ensure that the law’s provisions are shaped so as not to pose an undue or prohibitive burden on small producers far from the Washington scene. If there was ever a time when I would have trusted Sen. Durbin and Consumers’ Union with such a task, it was before the CPSIA debacle. Not only did the Durbins and CUs of the Washington scene help bring us that debacle, but — much less forgivably — they have continued blindly or mendaciously to deny that there is anything that needs fixing about that law at all, even as its damage has mounted month upon month. They do not deserve our trust on this matter.

Some other views: Slow Food, Ari LeVaux/AlterNet (noting that an alternative bill, HR 759, the “Food And Drug Administration Globalization Act,” may be more likely to pass and poses many of the same issues), Farm-to-Consumer Legal Defense Fund (oriented toward raw milk defense), Nicole Brodeur/Seattle Times (pooh-poohing concern over H.R. 875, but acknowledging the legitimacy of similar concerns that the animal-tracking program NAIS will render small animal-keeping operations uneconomic). Another source: Twitter hashtag #HR875.

More: & welcome Andrew Sullivan, Eve Tushnet, Hans Bader, Rob Wilson/Challenge and Fun, John Phipps/Incoming readers. And more from the “campaign of reassurance” camp: Hartford Courant (citing views of bill sponsor Rosa DeLauro, D-Ct.); Ryan Grim at Huffington Post (similar); Factcheck.org (criticizing untruths and hyperbole about the bill found in a widely circulated chain email, and seeming to guide readers to the Snopes-like conclusion that concern about the bill can therefore be dismissed). John Cole/Balloon Juice initially agrees in finding grounds for concern, then is convinced by commenters (who warn him against wicked, untrustworthy sites like this one) that it’s all “hysterical” and “nonsense”. More reactions: Patrick @ Popehat, Rod Dreher, Nick Gillespie @ Reason “Hit and Run”, Hans Bader and more, Vines and Cattle.

*Some reasssuring accounts of the law describe it as applying only to food in “interstate commerce”, which sounds as if it might not reach local and mom-and-pop operators at all; but the law’s definition of “interstate commerce,” as readers may remember, can include extremely localized doings, as in Wickard v. Filburn (farmer’s growing of wheat for his own consumption deemed “interstate commerce”). Section 406 of the bill reads as follows: “PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.”

Ezra Levant on Overlawyered

The high-profile Canadian free speech advocate (and target himself of the atrocious attentions of Canada’s speech tribunals) has this to say:

Overlawyered.com is a great U.S. website about the American affliction of too many lawsuits. Canada has a simple rule that America lacks, that has made us far less litigious: in Canadian civil courts, the loser has to pay a portion of the winner’s legal fees. That means nuisance suits are far less common.

Which is why human rights commissions are so bad — they remove that damper on frivolous suits, inviting the worst bullies and harassers to abuse the system….

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