Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSC’

CPSIA chronicles, October 19

More background reading on the Draconian consumer product safety law:

  • Fear of losing even more high-quality German toy suppliers [Kathy + Matt Take Milwaukee]
  • Mattel will pay $13 million to 20 plaintiff’s firms TheTown2to resolve class action over toy recalls; claimed value of settlement to class (vouchers, etc.) is something like $37 million [National Law Journal, Coughlin Stoia release; earlier] Note also Rick Woldenberg’s March analysis of one recall (recall of 436,000 units premised on two cans of bad paint).
  • New law “has added several new tasks [to the CPSC], many of which most charitably can be described as marginal in the overall pursuit of product safety that will divert staff and financial resources from more important safety issues.” [attorney Michael Brown, quoted at Handmade Toy Alliance Blog]
  • Alarmist reporting on Boston’s WBZ affords a glimpse of MaryHadLamb2“the scary people behind the law” [Woldenberg]
  • Effort to help move blogger Kevin Drum up the CPSIA learning curve [Coyote]
  • “The “Resale Round-up,” launched by the CPSC, finally limits the power of these merchants of death who recklessly barter second-hand toys to unsuspecting civilians at low prices…. The only question now is how did any of us survive this long?” [David Harsanyi, Denver Post]
  • Among its other effects, the statute “will boost opportunities for mass-tort suits” [Crain’s Chicago Business]
  • Law’s “continuing disaster for small business” illustrates MaryHadLamb3difference between crony capitalism and the real kind [James DeLong, The American, with kind words for a certain “indispensable” website that’s covered the law]

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

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CPSIA: “The Waiting Game Continues for Libraries”

Karen Raugust, Publisher’s Weekly, on some recent clarification (not exactly relief) for makers and sellers of new books under the Draconian law:

The Consumer Products Safety Commission recently issued a final lead rule that deemed many—but not all—of the components in ordinary children’s books safe. …

Most ink-on-paper and ink-on-board books will not have to undergo testing under various CPSC rulings. (Some so-called “ordinary” books, such as those with gold foil or spiral bindings, must be tested, and big retailers may require testing even when the CPSIA doesn’t.) All novelty and book-plus formats for children 12 and under must be tested by independent labs.

SpiderMean2However, the CPSC has yet to issue promised guidance to libraries on pre-1985 books:

Thom Barthelmess, president of the Association for Library Service to Children, a division of the American Library Association, says most librarians are waiting to see what happens. “We’re hoping for a happy resolution, so our collections aren’t decimated,” he says. If the CPSC’s ruling results in libraries needing to pull books from shelves, “there would be huge ramifications,” he continues. “If we lose a lot of titles printed before 1986, many of which are irreplaceable, it would have a huge impact on the nature of our collections.”

We’ve linked the coverage in Publisher’s Weekly several times over the course of the year but overlooked this report from March:

Most booksellers are now comfortable selling ordinary paper children’s books printed in 1986 and beyond. …

Half Price [Half Price Books, a large chain] removed all book-plus items from the shelves in every store and is warehousing them while it researches how to dispose of them in a safe and environmentally sound way, perhaps at a hazardous waste site.

And an official of the Independent Online Booksellers Association told PW in March that most members of the association were positioning their vintage children’s books as adult collectibles, which supposedly reduces legal risk, though as we noted in February, “the law provides that [retailers] are liable if they sell a product which will commonly be understood as destined for use by children, whether or not they label it as such.” Deputy Headmistress in February and Valerie Jacobsen in March also explained more about the practical drawbacks of the “relabel as collectibles” dodge, as has Elizabeth Mullaney Nicol more recently.

P.S. And welcome listeners at Hartford’s WTIC, where host Ray Dunaway had me as a guest on his show this morning to discuss the law. You’ll find much more here.

PUBLIC DOMAIN GRAPHIC: Edith Brown, illustrator, Jeannette Marks, The Cheerful Cricket and Others (1907), courtesy The Children’s Library.

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CPSIA on Thursday: A fine hearing, with one witness…

YMGcandlestick2A 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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CPSC confirms rhinestone CPSIA ban

On July 17 the Consumer Product Safety Commission refused to exempt or stay the coverage of crystals, rhinestones and glass beads under the Consumer Product Safety Improvement Act of 2008. Although lead has long been an ingredient in the manufacture of all true crystals, most rhinestones and many glass beads, there seems to be a dearth of actual real-life instances of children contracting lead poisoning from licking, chewing or swallowing these baubles, apparently because the lead in question, unlike lead in metallic form or in paint pigments, is bound to other substances and not “biologically available”. AliceAtMadTeaParty2“Even if you have it in stomach acids for weeks it does not come out,” said Michael Gale, director of the Fashion Jewelry Trade Association, in one recent story. Gale’s trade group had petitioned (PDF) for the regulatory relief. (Earlier background in our March 7 and Feb. 25 posts).

To a large extent the Commission’s hands were tied (PDF) by the absolutist, not to say fanatical, prescription of CPSIA itself, which directs that exemptions be turned down if they could lead to “any” — not “infinitesimal”, not “too small to worry about” — absorption of lead or public health risk. This point was recognized by both the commission’s career staff (PDF: “the staff would have recommended that the Commission not consider the product to be a hazardous substance to be regulated under the FHSA”) and by its three commissioners (Tenenbaum, Moore, Nord statements). CPSC Chairwoman Inez Tenenbaum, a Democrat, noted that the law “does not allow for the consideration of risk”. So it doesn’t matter that other jurisdictions, like Europe or California, may regulate this topic in a more realistic way, or that vast stocks of existing children’s clothing, from performance dance troupe outfits to 11-year-olds’ “blingwear”, will instantly be rendered worthless. It doesn’t even matter whether a kid’s health is at more risk (by way of traffic accidents) from being driven to the mall to buy a substitute garment than from going ahead and wearing the rhinestone-bedecked tiara or camisole in question (coverage: The Hill, ShopFloor, Manatt Phelps & Phillips, Rick Woldenberg, Way to Bow, Los Angeles Times).

As Commissioner Nancy Nord notes, the ban will inflict major economic losses, possibly extending to the disappearance of entire product lines, since consumers generally don’t like plastic substitutes for rhinestones as well as the real thing. AliceRabbitAnnounce2America’s costume jewelry industry is based in Rhode Island, and the Providence Journal has led with the most serious newspaper coverage (“Kids can’t wear rhinestones“) of last month’s decision, which as usual has been entirely ignored by the New York Times and various other large papers. More: Justin Katz at Rhode Island blog Anchor Rising (“So, the economy is struggling, right? Well, what better time to beginning banning products that are acknowledged to be safe and for which there’s an active market?”). For the effects of the ban on one well-known purveyor of kids’ clothes, Gymboree, see this March Washington Post report, as well as our March 23 account. Although the CPSC is making noises about concentrating its enforcement on products for kids 6 and under — a cutoff mentioned nowhere in the law — Rick Woldenberg thinks this is doomed to fail as a step toward reassuring businesses, however well-intentioned it may be, since the goods remain flatly illegal for kids 7-12.
AliceKnaveHearts2
Hugh Hewitt (via Wood) draws a wider moral from politicians’ refusal to take responsibility for the series of disasters the law has brought about:

The refusal of Congress to move to clean up the mess it made with CPSIA also announces what will happen after Congress passes its magic wand over health care and blows up who knows what: nothing. Tough luck. Deal with it. They will all have campaigns to run which won’t want to focus on the new law’s failures and shortfalls.

At Forbes, meanwhile, Jeff Stier of the American Council on Science and Health points out that soil from the White House organic garden has higher concentrations of lead than many products banned under the new law.

PUBLIC DOMAIN IMAGES by illustrator Gordon Robinson from 1916 Samuel Gabriel & Sons reprint of Alice’s Adventures in Wonderland, courtesy ChildrensLibrary.org.

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Mattel fined millions for lead in toys–under pre-CPSIA law

In 2007, Mattel discovered excessive levels of lead in some of its imported Fisher Price toys. It immediately recalled millions of toys and self-reported the violation. Nevertheless, it has been hit with class action lawsuits. And if you ever had any doubt that the CPSIA was an overreaction and unnecessary to protect consumer safety, Mattel last week paid $2.3 million in fines for the violation of pre-CPSIA law. [CNNMoney via ABAJournal]

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CPSIA chronicles, May 11

  • 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.

    • Hard to steer with no head

  • 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).

    • One that fits

  • 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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White House nominates two to CPSC

goldeneggs21 President Obama has nominated South Carolina lawyer and former schools commissioner Inez Moore Tenenbaum to chair the Consumer Product Safety Commission, and former CPSC staffer/academic Robert Adler as a member of the commission (White House press release). The appointments are likely to bring important implications for CPSIA reform, since they would double the number of active CPSC commissioners (joining Republican Nancy Nord and Democrat Thomas Moore) and since many Democrats on Capitol Hill have refused to work with Nord, the current acting chair. Unfortunately, the new appointments carry with them some definite elements of bad news for the cause of CPSIA reform, and it takes some fairly strenuous guesswork and supposition to see this bad news as balanced by any good news.

  • Start with the relatively good (or at least neutral) news. Inez Tenenbaum, the designated chair, is an important political ally of President Obama’s (background: Howard Fineman, Newsweek) best known for her work on a different subject, education (and in fact evidently tossed the CPSC as a consolation prize for not getting the job she wanted, the Cabinet post of Secretary of Education). An optimistic view would be that because Tenenbaum has not spent the past year digging into an entrenched defense of CPSIA and all its works, she might be free to rethink the issue, developing more nuanced or moderate positions that acknowledge the views of CPSC career staff on the law’s various defects. And because of her background as an education advocate, she might be particularly sympathetic to the pleas of libraries and schools harmed by the law. That’s the optimistic theory, anyway.
  • Let’s be frank: for virtually any Democratic administration, an overriding political consideration in staffing the CPSC is finding someone acceptable to the plaintiff’s personal injury bar, the one anchor-tenant Democratic constituency that cares intensely about the agency’s work. Tenenbaum appears to pass this test: in her 2004 Senate campaign, she drew substantial contributions from two of the South’s best-known injury law firms, Motley Rice ($17,250) and Beasley Allen ($19,000). Incidentally, Tenenbaum lost that 2004 race to none other than Republican Sen. Jim DeMint, who emerged in recent months as the sponsor of the most serious and far-reaching bill to reform CPSIA. Most likely it’s sheer coincidence, but let’s hope DeMint wasn’t relying on a sympathetic ear from CPSC for his legislation.
  • Obama also announced that he is calling for an expansion of the CPSC from three to five seats, and that he intends to nominate for one of the new seats veteran Washington consumer-safety hand (and now University of North Carolina professor) Robert Adler, who participated in the CPSC transition effort on behalf of the incoming Obama-Biden team. Few figures are more closely identified than Adler with the cluster of Washington institutions and personalities that brought us CPSIA: after serving in a staff capacity at CPSC for many years he joined the staff of none other than Rep. Henry Waxman, where his work included overseeing the agency. As the White House press release also notes, Adler “has been elected six times to the board of directors of Consumers Union, publisher of Consumer Reports magazine”; in its blind and clueless advocacy of a maximally onerous CPSIA, Consumers Union has taken a back seat only to Public Citizen and PIRG. Another online source describes Adler as a “longtime colleague” of Pamela Gilbert, a key figure both in the litigation lobby (Public Citizen, PIRG, trial lawyer lobbying) and in CPSC affairs.
  • Among early press coverage, Bloomberg News is out with a reasonably fact-filled account that at least acknowledges in a passing sentence the continuing outcry over CPSIA’s calamitous effects on producers and sellers. That contrasts with the short, lame account in the New York Times, and the longer, much-worse-than-lame account in the L.A. Times, from which you’d think the only controversial thing about the agency was that it was too lenient on the regulated. You do have to wonder whether L.A. Times reporter Mark Silva even reads the stories in his own paper.

More: Deputy Headmistress has been thinking along very similar lines. And Sen. DeMint has kind words for nominee Tenenbaum.
Public domain image courtesy ChildrensLibrary.org: Walter Crane, illustrator, The Baby’s Aesop (1887).

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CPSIA & dirtbikes: temporary stay, no permanent relief

It’s going to take an act of Congress to bring dirtbikes, kid-size ATVs and similar motorized vehicles back into the legal sunlight. In the mean time, though, the CPSC has consented to let them venture back out into a half-legal and temporary twilight. That’s the upshot of the commission’s new pair of decisions, in which it’s 1) granting a temporary stay of enforcement on the vehicles, just as in February it granted such a temporary stay with respect to some of CPSIA’s most impractical testing obligations for manufacturers, while 2) refusing to accord the recreational vehicles an actual exemption from the law. Because of the latter refusal, sale and service of the vehicles will continue to be in violation of the law’s terms, and dealers and families will have to hope that the 50 state attorneys general agree to follow the federal agency’s lead in forbearing from enforcing the law for the time being. [Motorcycle Industry Council; StopTheBanNow.com; documents at “What’s New” section of agency site]
Ride in the shadows
Why this unsatisfactory half-relief, in the face of a continuing uproar against the ban? Acting chair Nancy Nord has said she believes a permanent exemption to be inconsistent with CPSIA’s terms, which forbid such exemptions unless manufacturers can proffer a scientific demonstration that leaving a class of products on the market will not result in “any” lead absorption or other public health risk. Her co-commissioner Thomas Moore, while as usual distancing himself from Nord and from critics of the law, reached the same conclusion, agreeing that the ban was risking safety problems by causing kids to get on bikes too large for them. [Washington Post] According to Rick Woldenberg, the industry submitted evidence that the lead exposure a child would experience from riding an ATV for between two and seven weeks would approximate the amount of naturally occurring lead in one (1) Coffee Nip candy (a perfectly legal confection). But “so infinitesimal as not to worry about” is not the same thing as “not any”, and no such legal distinction was recognized by the drafters of CPSIA, for whom the maxim “the dose makes the poison” would appear as mysterious as if written in, well, some sixteenth-century German book.

More on the political maneuvering and protests over the industry’s pleas for relief: KneeSlider, CycleTrader, ShopFloor (and more there). On protests, see RacerX Online, CALA (on Malcolm Smith protest). Missouri legislator Tom Self made a 10-day tour to Illinois, Indiana and Kentucky on behalf of lifting the ban [Covenant Zone]. No word on whether an April 23 protest rally set for Denver will go forward as scheduled.
Crossed one motocrosser too many
Congress, of course, must act. Apropos of which, Covenant Zone has some further thoughts with which to close:

A sign of immaturity in children is when they fail to see the consequences of their actions; without a belief in the value of seeing the big picture, they would constantly snack on chocolate bars and coca-cola instead of fruits, vegetables and juice, they would stay up “past their bedtime” at the expense of a good night’s sleep and being refreshed for the next day, they would simply jump on a motorbike and ride instead of summoning the discipline to first learn about safety and maintenance, as well as the honesty required in understanding how to ride within one’s limits.

Sometimes I get the impression that the average kid who spends time in the great outdoors has more maturity, common sense and appreciation for the broad horizon of life’s Big Picture than does the average members of Congress, who don’t even read the bills they sign into law.

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