Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA’

CPSIA and Violet’s Peapod

The testing requirements of the Consumer Product Safety Improvement Act are due to go into effect nine months from now, when the temporary stay expires. Here’s what they’ll do [AmendTheCPSIA.com] to the economics of one Bay Area designer who specializes in “100% natural, locally-made, completely adorable peapod-shaped baby sleep sacks”, a product line relatively well suited to absorb the costs of a testing program since the item sells for a fairly high price and doesn’t have many component parts:

If I were to have each batch of my current inventory tested by CPSC-approved third party, I would have to pay $57 per print and batch for 3rd party lead testing, and $278 per print & batch for phthalates, totaling $4,690 altogether. If I were to increase my price point based on cost increases to cover this 3rd party testing, I’d have to raise my price point by $19.14 each. My precious baby sleepsacks are barely selling at $53.95, so charging $73.09 each in these tough economic times would surely put me out of business.

[…Or I could instead produce] a single batch of sleepsacks (ONE PRINT). I’d then have it 3rd party tested for lead and phthalates, and increase the price point to $57.95. With an increased price point and only one style/print in my line, I could hardly remain competitive in the marketplace!

Filed under: ,

New CPSIA “primer” site

New resource recently launched by the crafter/activist who did business as Whimsical Walney, with help from the one who does business at Organic Baby Farm: WhatIsTheCPSIA.com, a site for everyone trying to get up to speed on the Consumer Product Safety Improvement Act and the reasons it needs reform. Among the many common questions it seeks to answer (with new material being added steadily): “I thought CPSIA is a toy law, why do you have to test clothes?”, “Why does CPSIA affect home crafters?”, “Can’t CPSC make exemptions to CPSIA for certain products?”, “Why does CPSIA affect schools?”. Worth checking out. (Corrected to add proper credit to Whimsical Walney; more.)

Filed under:

For CPSIA reform, unexpected bedfellows

It’s often been observed that the movement to reform CPSIA brings together people with remarkably diverse cultural, political, and social backgrounds, in a coalition that includes small-town woodcrafters and urban libertarians, homeschooling moms and regulatory economists, back-to-the-land localists and NPR-fan library administrators, and so forth. In her much-awaited article for the June Reason, now online, Katherine Mangu-Ward profiles people in groups like the Handmade Toy Alliance, Etsy, and the craft-fair world, few of whom ever expected to find themselves in a pitched battle against the regulatory state. Further discussion: Reason “Hit and Run“.

Filed under: ,

Small business, big business and regulation

Coyote has some thoughts on the tendency of market regulation to entrench bigger, more experienced companies at the expense of small:

I hate to admit it, but regulation in my own business (which I neither sought nor supported) has killed off many of my smaller competitors and vastly improved our company’s competitive position. It is no accident that the list of the largest companies in heavily-regulated Europe nearly never change, decade after decade, whereas the American list has always seen substantial turnover.

Or, put differently, CPSIA in its effects as a regulatory enactment is not so atypical as we might like to think.

Filed under: ,

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.

Filed under: , , , ,

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.

Filed under: , , , , , , ,

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).

Filed under: , ,

CPSIA chronicles, April 24

porcupinesnake2

  • 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)

Filed under: , , , , ,