Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA and Congress’

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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CPSIA: August 14 arrives

Not just our hobby horseOn Friday several key provisions of the Consumer Product Safety Improvement Act of 2008 took effect [CPSC release]. The permissible amount of lead in products dropped from 600 parts per million to 300 ppm, ensuring that more zippers, rocks, brass bicycle parts and other harmless items will fail; the new tracking-label mandate went into effect for newly manufactured kids’ goods; and penalties went way up, from a maximum of $8,000 per violation to $100,000 per violation and $15 million overall.

The Associated Press has good coverage. It talks to, among others, Michael Warring, president of American Educational Products, a producer of teaching aids such as globes, maps and animal models based in Fort Collins, Colo. who says he has had no safety recalls or lead problems in his fifteen years of business, but says new testing mandates will cost $2,000 per product item, not counting the costs of tracking labels. The AP story even runs on the New York Times website, thus eroding that paper’s impressive record of shielding its readers from information on the law’s consequences. The WSJ news side quotes new CPSC chairman Inez Tenenbaum as saying the law will be enforced “vigorously”, following similar language in an interview last month (“Tenenbaum said the industry has had adequate time to prepare for the new requirements;” more).

The Washington Times’ editorial gives generous credit to this website for sounding the alarm:

For a year, the Manhattan Institute’s Walter Olson has been compiling horror stories about the Consumer Product Safety and Improvement Act at his Overlawyered blog. Those stories — about what Mr. Olson describes as an “absolutist, not to say fanatical” law — seem to be endless. Yet an out-of-touch Congress continues to ignore the horrible fruits of its handiwork.

The Wall Street Journal editorializes:

Eight bills have since been introduced in the House to remedy the problems [with CPSIA], only to stall in the ideological quicksand of Mr. Waxman’s Energy and Commerce Committee. He has so far failed even to hold hearings.

Greco Woodcrafting has a small toymaker’s perspective.

Deputy Headmistress is irritated by certain blog commenters whose reaction on learning of this law is, “Nobody will enforce it, there has to be a way around it, if you don’t find a way around it you’re too dumb to be in business, it doesn’t mean what it says, they’ll have to take care of it, obviously this wasn’t what the law was for so don’t worry about it, this is just scare-mongering, try this loophole, that other loophole should work…” She also wonders in what sense the law’s consequences should count as truly “unintended”.

Some more background coverage, previously unlinked: Andrew Langer (Institute for Liberty), Roll Call; H. Sterling Burnett and Michael Hand, “Getting the Lead Out Kills Small Businesses, Doesn’t Save Children”, National Center for Policy Analysis #665; Jennifer Upton, Louisville Courier-Journal and Kentucky Kids Consignment Sales. And Hugh Hewitt’s audio interview (auto-play) with Rick Woldenberg comes highly recommended; some print excerpts here [NAM “ShopFloor”].

Public domain image: Grandma’s Graphics, Ruth Mary Hallock.

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CPSIA chronicles, June 18

kingstork21

  • As noted earlier, the next all-out debacle on the CPSIA front is expected to result from the law’s tracking and labeling regulations, due to take effect August 14, and for which the CPSC has not yet issued guidance, although product makers ordinarily need to resolve crucial issues of manufacturing (as with etching of lot numbers) and packaging at least many months if not longer in advance of sale. Sharon McLoone at CNNMoney had quite a good report a week ago on this latest crisis, which as of this writing has not been followed up much of anywhere else in the press. This continues the pattern in which 1) most key elements of the ongoing CPSIA disaster get good coverage in at least one (sometimes more) major media outlets; 2) the bigger-picture disaster of the law never quite succeeds in breaking out into general coverage as a national story, in large part because 3) the agenda-setting New York Times never consents (even six months into the story!) to give the matter any coverage at all. For more hints on the approaching tracking-label train wreck, see this op-ed by a South Carolina maker of school supplies (“Companies such as ours are now forced to guess about their new legal requirements. … My company may have to change labels hundreds of times a week in our two factories. The investment necessary to handle this new rule alone is crippling.”), or the comments of appliquéd bib maker Laurel Schreiber of Lucy’s Pocket (if the testing doesn’t get her, the tracking labels will), or of New Jersey wooden toy maker John Greco (advised that tracking info would add $3.50 to $5.00 to cost of making $10 handmade toy). And here’s a view from the home furnishings business.
  • No, the menace to pre-1985 children’s books has not gone away, not in the least. Librarians and publishers remain on the edge of their seats awaiting exemptions, clarifications or both. There was some good coverage last month in the Sioux Falls Business Journal (store owner Jenny Cook “had to throw out only 30 books at her store to comply” because most were newer; “Siouxland Libraries has pulled a list of books that were published before 1985”) and at Syracuse.com (“When you think through the implications, it means closing our libraries to children”). And in a sign of possible things to come, ABC-affiliated stations in Seattle and Washington, D.C. have now run sensationalist “toxic books!” attacks on local libraries [Common Room, ShopFloor] More: Winifred Maker, Anderson Valley Post (April).
  • The CPSC’s stay of enforcement didn’t really solve the problem of the ban on dirtbikes and mini-ATVs, and responsible users and dealers end up getting the short end of the stick [Jason Giacchino/ATVSource, Vince Castellanos/ESPN FMX, Motorcycle Industry Council, Charleston (S.C.) Post and Courier]
  • Downtown Los Angeles is home to an estimated 500 toy companies — most of them far smaller than crosstown giant Mattel — and they’re in much distress from the law. [Alexa Hyland, L.A. Business Journal] The L.A. Times, which once gave serious scrutiny to the law’s effects on the apparel and resale sectors, seems (scroll) to be dropping the ball.
  • Those who remain in the kids’-product business after coping with all the other parts of the law will also want to educate themselves about “recall escrows” [Rick Woldenberg]
  • Inez Tenenbaum, named by Obama as new CPSC chair, had her confirmation hearing on Tuesday [ShopFloor and more, Rick Woldenberg]. Nancy Nord earlier stepped down from her role as acting chair.
  • What, what, what could they have been thinking? The American Library Association has actually given its 2009 Public Service Award to California Senator Barbara Boxer, a key architect of some of CPSIA’s provisions; the retroactive phthalates ban she championed has been especially effective in forcing “books-plus” off library shelves, and she has turned a coldly unsympathetic ear to cries of distress over the law (via @melanes). To repeat: what could the ALA have been thinking?

    • micebellcat2

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

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CPSIA: “Blowback” on Capitol Hill

Neil Munro covers it at National Journal (PDF, courtesy AmendTheCPSIA), and mentions toward the end a certain blog that “has rallied opponents of the law”. A few highlights: walkingstick2

  • “‘Like every member of Congress, I’ve heard from people in my district … [who say] they will literally be put out of business because of something that China did,’ said Rep. Jason Altmire, D-Pa., chairman of the House Small Business Committee’s Investigations and Oversight Panel. ‘We cast the net wider than we should have.'”
  • Later, however: “Altmire’s position reflects tensions in the Democratic caucus.” You bet it does: “Most Democratic legislators, staff aides, and allied advocates have resisted calls for a change in the law”, and one, regrettably anonymous, claims that opponents “are deliberately misreading the law to make it unworkable” so as to get it reopened. Among “allied advocates”, there’s Elizabeth Hitchcock, the public health advocate for the federation of state Public Interest Research Groups, who is quite dismissive of the cries of small makers going under: “Complaints about job losses in the small-business sector are usually a mask for the interests of large firms, Hitchcock said.” More on the PIRG groups here, here, here, here, here, and here (& more in comments and from Deputy Headmistress).
  • “Lobbyists on both sides of the issue” say the CPSIA outcry could affect the fate of an upcoming Waxman-backed bill called the Kid-Safe Chemicals Act, “which would apply the environmentalists’ ‘precautionary principle’ by requiring extensive safety testing of chemicals found in plastics, food, textiles, and manufactured goods before they could be sold.”

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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 15

Plenty of news in recent days:bicycleposter2

  • Ordinary bicycles have now joined youth motorbikes and ATVs in the twilight status of not-quite-legal temporary toleration. That’s the impact of a unanimous (2-0) vote (PDF) by the Consumer Product Safety Commission granting the conventional bicycle industry a two-year stay but not exemption from CPSIA’s lead limits (earlier). Since everyday bikes unavoidably contain some lead that is potentially absorbable (if at infinitesimal levels), they are not legal, exactly, but the Commission promises not to go after anyone for selling them, for now. CPSC acting chair Nancy Nord:

    We are compelled to deny the petition because the language of the statute does not give us the flexibility to do otherwise, even though our staff does not believe that lead exposure from using bicycles and related products presents a risk that they would recommend the Commission regulate. The risk assessment methods traditionally used by the Commission in evaluating exposure to lead are no longer available to us under the CPSIA.

    Nevertheless, we also recognize, as we did when presented with a similar petition filed by the All Terrain Vehicle industry, that safety requires the presence of some lead in the metal used in the product to insure structural integrity. I am also mindful of the staff’s findings that the contact children may have with the parts of the products that contain lead is not extensive and would not present a risk as we have traditionally understood the term—that is, would not increase blood lead levels in any measurable way. Presented with the dilemma of inflexibility in the law vs the need for regulatory action that recognizes safety and good sense considerations, we are opting to stay enforcement.
    Rumors of wolves
    This course of action is becoming all too frequent for the CPSC. It is needed to avoid market disruptions and to protect consumers. However, it is not the optimal way to implement a statute.

  • On the other hand — and with potentially catastrophic consequences for businesses large and small — the commission by a 1-1 vote (Nord in favor, Thomas Moore against) turned down a stay (PDF) of the tracking label requirements due for August (earlier here and here). Much coverage at NAM ShopFloor, here (decisions on packaging, whether to etch numbers into products, etc. must be made with much lead time and manufacturers now face staggering costs if they guess wrong), as well as here, here, and here.

    • When flocks stray

  • Yesterday the House Small Business Committee held its long-awaited hearings, the first in either chamber since CPSIA took effect, on the law’s calamitous impacts on business. I haven’t had a chance to watch yet, but the House Small Business majority (Democratic) side has put up videos. The impression one gets from reform blogs is that 1) the hearing itself was pretty good but that 2) committee leadership then proceeded to ignore much of what was actually said and rally behind the Waxman line that there’s nothing wrong with the law itself, it’s just that the CPSC leadership hasn’t implemented it properly. [Carter Wood, Rick Woldenberg, Woldenberg’s submitted statement]
  • Chalkydoodles has a two-part interview with founder Cecilia Leibovitz of the Handmade Toy Alliance: part I, part II (via ExUrbanis);
  • CMMJaime takes a look at the CPSC’s new handbook for resellers, and finds its reassurances for small businesses subjective and vague, particularly when it comes to lines like: “Use your best judgment based on your knowledge of the product”.
  • “Toy importer Rob Wilson’s company sometimes sells wooden children’s puzzles, but he hasn’t ordered one since last November.” That’s from the Metro-West Daily News in suburban Boston, which also has this ominous political bit:

    McGovern [Rep. James McGovern, D-Mass.] said the federal agency is not being onerous, and businesses should work with it to resolve their worries.

    In a written statement, Sen. John Kerry’s office said the measure is meant to keep dangerous products off the shelves, and it needs a chance to work before it is changed.

Public domain paper doll images courtesy Karen’s Whimsy.

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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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CPSIA chronicles, April 21

oakandreeds3

  • 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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CPSIA, tangled politics of, cont’d

Last week twenty-eight Democratic senators sent a letter (PDF) to Acting CPSC Chair Nancy Nord the gist of which can be summed up as, “Never mind the law we passed, start enforcing the more reasonable law we wish we’d passed”. Neat move, if somewhat at odds with the concept of the “rule of law”.

Rick Woldenberg scrutinizes the politics (with particular attention to ATVs/minibikes) and also points out something seldom brought out in press accounts: the last 23 commission votes on CPSIA have been settled by 2-0 votes, with reputedly “good” CPSC commissioner Thomas Moore (cozy with Congress, vocally pro-CPSIA, a Democrat) voting exactly the same way as Nord, the reputedly “bad” commissioner (at odds with Congress, unenthusiastic about much of CPSIA, known to be a Republican, etc.) Fickle friends Which particular decisions, one wonders, would have turned out differently had some new appointee been installed in the vacant third seat, as Rep. Henry Waxman is reputedly demanding as a precondition for even considering hearings on the law? Woldenberg makes the same point today in a Chicago Tribune letter to the editor, responding to an exceptionally lame April 4 editorial in that paper. More on CPSC politics: news-side WSJ; Nord responds to attack from Sen. Durbin, and requests that President Obama name permanent chair to replace her (more). (Update: the National Law Journal is out with coverage of the “furor” CPSIA has set off in Washington).

On a brighter note, AmendTheCPSIA has posted videos (slow loading) of the Capitol Hill rally two weeks ago to demand action on the law. Here’s the video of dirtbike racing dad Rod Yentzer and 6-year-old (!) son Chase:

And here’s bike dealer Steve Burnside of DSD Kawasaki in Parkersburg, West Virginia:


Also, Carol Baicker-McKee has a another excellent post on the rally, while Rick Woldenberg discusses the politics of the event. Earlier rally coverage here.
Public domain image: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.

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