Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA’

CPSIA: How to keep current?

Whimsical Walney and Polka Dot Patch have each put up new posts that help answer the question: who should I be reading and checking regularly for new developments with and commentary about CPSIA? Both lists are excellent, comprehensive, and well annotated, with inevitably a lot of overlap. I’m grateful to be included on both.

Besides the names on these two lists, which I’m incorporating by reference, here are a few other additional resources I’ve found helpful:

And more to come, of that I’m certain.

writingwithquill

Public domain image: Grandma’s Graphics.

Filed under:

CPSIA chronicles, February 27

Their hands are tied

  • Finally! Today’s Boston Globe covers the thrift-store calamity:

    In recent weeks, Goodwill pulled all children’s merchandise from its nine stores in the state. Thrift chain Second Time Around eliminated kids’ clothing from several of its 16 shops. St Vincent de Paul is currently removing children’s clothing with metal zippers, buttons, and painted fabrics from its processing center, which sends out merchandise to its six stores in Massachusetts.

    It’s exactly the sort of coverage that’s been overdue in the biggest newspapers since Feb. 10: well-reported, making clear the human costs of the law for both cash-strapped shoppers and charitable sponsors, and including words like “devastating” and “heartbreaking”. And on page one.

  • If you missed it yesterday, Overlawyered gets results! Although sometimes the opposite of the kind we intend. Yesterday we hailed as a breakthrough the House Small Business Committee’s willingness to hold a hearing next week on the costs of CPSIA. Within a few hours, as Rick Woldenberg relates, Congressional staffers hastily put out word that they were canceling the hearing and that the idea is “not likely to ever be brought back”. There’s no way for us to know just who placed the phone call, but odds are good it was someone who realized that letting people from around the country get in front of a microphone and talk about this law’s effects would not exactly do wonders for the image of Henry Waxman, Bobby Rush, Jan Schakowsky, Public Citizen, PIRG, or their allies. More on the cancellation from Rick Woldenberg, who reports that this is the third time he’s been disinvited from Capitol Hill testimony. Sounds like someone really dislikes the message he would deliver.

    • About ten colors too many

  • Hair bow makers on the verge of a nervous breakdown.
  • The Examiner, which has a wide readership in Washington, D.C., San Francisco, and other cities, is out today with a great editorial on CPSIA which also generously directs readers to this site and its “chilling” reports. It concludes: “This law is an utter disaster. Congress ought to fix it, immediately.” The Examiner also quotes Sen. Mark Pryor (D-Ark.), one of the law’s sponsors, as saying “the law allows the CPSC to make ‘commonsense exceptions’ to anti-lead requirements.” This is not the first time I have been obliged to wonder whether Sen. Pryor actually has a close familiarity with the terms of the bill he helped guide to passage, and if not, whose summaries he has been relying on when he talks to the press. arkansasstateflag
    It is precisely because the law does not confer on the CPSC any “commonsense exception” authority that the commission was obliged to turn down the makers of kids’ minibikes in their plea for an exemption the other day. Same for many other instances that could be cited, such as the pre-1985 books and the size 10 winter coats with zippers and snaps that are being yanked from thrift store shelves. Had the commission such a “commonsense exception” discretion, it would almost certainly have acted by now to defuse these sources of public outcry. To repeat the question: who does Sen. Pryor rely on for his briefings?

    • For adult use only

  • Speaking of products with vanishingly low risk of poisoning that have trouble obtaining commonsense exemptions, we’ve been remiss in not staying on the case of ballpoint pens, mentioned in our Feb. 6 and Feb. 13 roundups. Deputy Headmistress has quite a bit more on the legal limbo occupied by the writing implements, which appear now to be unlawful when intended primarily for under-12 use. And visitor “Scott” wrote last week in our comments section:


    What still amazes me is that the story about ballpoint pens being in violation of the CPSIA isn’t getting more notice. The CPSC admits that ballpoint pens intended for children are covered. As it happens, the US trade association for the makers of pens, pencils and erasers has sent a letter to the CPSC that ballpoint pens are not-compliant and no existing alloy satisfies the lead limits. It may take 2 years to develop an alloy, if one exists. I can only conclude that there must be very very very many stores not in compliance and ‘poisoning’ our children with lead. Are these stores not facing strict liability and risking felony criminal liability including 5 years in prison and $250,000 fines? The stay by the CPSC doesn’t help the pen-makers or sellers, because they’re in knowing violation of the lead limits. All they can hope for is that none of the 50 state attorney generals decides to prosecute what would appear to be a slam-dunk case. There is a chance that the CPSC may eventually decide to make an exemption for pens, however the CPSC admits that its staff is ‘not yet aware of any substance as to which the required showing [of no absorption of any lead into the human body] can be made.’.

Filed under: , , , , , , ,

CPSIA chronicles, February 26

processionofthenursery

  • UPDATE 5:45 p.m. Eastern: Well, that was quick. A source reports that Congressional staffers hastily announced that they’re canceling the hearing next week and that the idea is “not likely to ever be brought back”. Someone must have realized that letting people from around the country get in front of a microphone and talk about the effects of this law would not exactly do wonders for the image of Henry Waxman, Public Citizen, PIRG, or Consumer Federation of America. More: Rick Woldenberg confirms cancellation/disinvitation.
  • A prime objective for critics of the Consumer Product Safety Improvement Act in recent weeks has been to obtain a hearing on Capitol Hill that might focus lawmaker and press attention on the law’s many unexpected and harmful effects. Now it looks as if that might be happening. Rick Woldenberg:

    I have been invited to testify before the Subcommittee on Regulations and Healthcare of the House Committee on Small Business next Thursday. The purpose of this hearing is to explore Small Business issues related to the CPSIA. The Subcommittee is still looking for small businesses to testify. … If you are motivated to testify, you may want to reach out to the Subcommittee staff to volunteer, or if you have a Congressman on the Subcommittee, contact their Washington office urgently. …

  • Relatedly, Whimsical Walney, whose time seems to have been in part freed up for blogging by the CPSIA-induced shutdown of her Bay-Area-based children’s line, offers some advice here and here on how to talk with lawmakers about the act.
  • If you still haven’t taken a look at it, Daniel Kalder’s excellent BooksBlog entry in The Guardian (U.K.) on CPSIA and older books, which quotes from my City Journal article, is here. It’s drawn attention around the world, including places like France, Italy, and Romania.

    • oldtalesreading

  • Speaking of books, America’s libraries appear to have dodged catastrophe for now with the help of the American Library Association’s (understandable under the circs) last-minute embrace of the position that unless someone announces otherwise, it’s going to assume the law doesn’t apply to library stacks or circulation (earlier; commentary on the shift, Deputy Headmistress and Rick Woldenberg). Thus: Cincinnati Enquirer (“We’re hopeful saner heads will prevail and they’ll exempt us,” says Emily Sheketoff of the ALA), Middletown (Ohio) Journal, Brown County, Ohio, News-Democrat.

    So it seems to be mostly the librarians who are the most literal-minded and obedient about following guidance from high government authorities, or who are most legally risk-averse, or something, who are taking drastic steps like tarping over their pre-1985 stacks or planning to discard the volumes entirely or excluding older kids’ books from their used-book sales (in which case they’ll wind up….where?). Esther at Reading Loft/Design Loft has been picturing how libraries will look if they can’t make an exemption stick. And I didn’t notice it when it ran last month, but Annoyed Librarian had a funny rant at Library Journal about the law. Perish the thought, of course, that any library might ever want to acquire a pre-1985 book for kids’ use.
  • Popular conservative talk host Hugh Hewitt has continued his coverage of the law. Per one transcript, he discussed it with star columnist Mark Steyn who knew about the youth motorsports debacle:

    In my little corner of New Hampshire, every 12-year old boy loves taking an ATV, loves riding it around up in the hills. And the idea that the lead in it is going to cause that kid to keel over, is preposterous. This is government by insanity…

    On the other hand, Mark Riffey passes along word that popular talker Glenn Beck doesn’t plan to cover the issue because “there’s no public outcry” (a paraphrase second-hand of what might be a staffer’s view, or his, it’s not clear). What? Does he restrict his reading diet to the New York Times?

  • Wacky Hermit at Organic Baby Farm is angry: “When you have to consult a lawyer before you hold a church benefit sale, you are not in America.” (some rude language).
  • In the first-linked item above, Woldenberg also reports on an announcement by the Consumer Product Safety Commission’s chief of enforcement, Gib Mullan, that the commission intends to shift its enforcement methods in a more punitive direction, handing out many more penalties than previously in order to achieve more deterrent effects on businesses of all sizes. This is well in line with the clear guidance the commission has been given by Henry Waxman and colleagues in Congress. Next Thursday, if those planning the hearing do their jobs right, many in Congress might for the first time hear some voices that no one thought to consult when the law hurtled toward passage last summer. [REPEATING THE UPDATE: Hearing reportedly canceled.]

Public domain images: Grandma’s Graphics, Mabel Betsy Hill and Elson’s Basic Readers.

Filed under: , , , , , , , ,

Enjoy American artisanal/craft beers?

glassofbeer
Thank Carter-era deregulation for that. In 1979 the nation was known for bland, uniform and mass-produced beer, and there were but a mere 44 breweries in the entire country, most of their products very like each other. But legal restrictions were lifted. “Three decades later, the U.S. boasts 1,463 breweries, including 975 brewpubs”, and a culture of beer connoisseurship with few if any equals around the world.

And all just from repealing some unnecessary laws. It’s kind of like running the CPSIA tape in reverse.

Filed under: ,

CPSIA: Powersports, crystals, and stranded inventories

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.

Filed under: , , , , , , ,

CPSIA chronicles, February 24

fenceconversationwithdoll

  • More thrift store and reseller reports, not linked earlier: Blacksburg, Va. (“a lot of customer complaints at the YMCA at Virginia Tech since the thrift shop pulled kids’ toys off its shelves”), Chapel Hill/Carrboro, N.C. (“many patrons are upset” at absence of children’s items), Sioux City, Iowa (“To be on the safe side, Goodwill removed from the sales floors nearly all its used children’s clothing and all its toys”), Le Mars, Iowa (youngster’s outing ends in tears; items in storage for now).

    And yet at many other stores — in other states or cities, maybe even down the block in the same town — decisions on what to drop have been much more selective. Thus New Orleans (large thrift store in St. Charles Parish “no longer accepting small toys, painted wood items or clothing with trinkets or toys attached to them,” those being, of course, a small fraction of the items that could lead to an inadvertent CPSIA violation), and Lufkin, Texas (list of goods Goodwill won’t accept includes bunk beds, bicycle helmets, embellished books, and many others, but a good bit narrower than CPSC guidance would suggest). The shop I visit most often, in a relatively prosperous NYC suburb, had a sparser-looking-than-usual selection yesterday, which nonetheless included items that would raise a definite eyebrow under the CPSC guidelines, such as kids’ athletic shoes with metal lacing grommets. And it’s not hard to find thrift outlets with relatively high profiles in their community — I won’t name names for fear of getting them into trouble — that don’t seem to have dropped much of anything. You’d hardly imagine that CPSIA was supposed to be a uniform national law.
  • Related: Riverside, Calif. Press-Enterprise, “Goodwill Industries International said it could potentially lose $134 million nationwide in the coming year if forced to dispose of all children’s clothing and products, according to spokeswoman Lauren Lawson.” And the Naperville, Ill., Sun covered the headaches of maternity and children’s reseller Connie Ballas (From My Room).
  • Hugh Hewitt’s popular conservative radio show devoted an hour to the law yesterday, interviewing attorney Gary Wolensky of Snell & Wilmer, who represents manufacturers and whose discussion primarily focused on the headaches they face. The show drew a strong call-in reaction and has already led to a flurry of online interest in CPSIA reform.
  • Meanwhile, Jennifer Grinnell of Sherborn, Mass. writes that CPSIA reform needs to be approached as more than a right-vs.-left, blue-red, Dem-Rep political football [Change.org]
  • When the New Orleans Times-Picayune interviewed local toy stores, the independent retailer was finding the law “burdensome” and “very cumbersome” as she tried to communicate with all the producers of items in her stock, while the franchise operator seemed to be having a much easier time of it because he carried only items on a checklist from national and could piggyback his compliance paperwork on headquarters’. Yes, that sounds about right.
  • Don’t toss those pre-’85 kids’ books, thrifters! Set them aside and await orders from D.C.! That seems to be the advice of Examiner columnist (and former children’s bookseller) Diane Petryk Bloom, who’s confident that a law this bad will be amended and suggests that in the mean time some civil disobedience might be in order, advice that might not be taken readily by resellers staring down the business end of those $100,000 potential fines.

    Let’s assume she’s right that most people in the thrift store business can’t bring themselves to leave perfectly good children’s books out on the curb, and instead tuck them into storage for the time being or look the other way while an employee “borrows” them for home use. What happens next, as the weeks turn into months (or perhaps years) with no action from Henry Waxman & co.? The main mechanism by which we will lose older books is not so much that thrift stores will toss them in the trash, as that they’ll refuse to accept them as donations or consignments in the first place, while other outlets worried about legal liability (such as online auction sites) adopt similar policies. Once there’s no convenient way to dispose of the books even as donations, families will simply discard most of them (with occasional collectible/rarity exceptions) when the kids grow up, when moving house, or when winding up a family estate. It’s not as if there’s likely to be much press coverage of these micro-events, which doesn’t make them less than real.

    ParentDish and Etsy also have active threads in progress on the issue of older children’s books.

  • Some other blog talk: Blue Rose Girls, Kora in Hell/WordSmoker (rude language), Lex Fortis (satire), and of course leading CPSIA-watchers Deputy Headmistress/Common Room (on press coverage, Consumers’ Union and dragons) and Valerie Jacobsen (what? you mean CPSC would target small business with punitive actions?)

    • yorkiebarrette

  • Sorry, even if your little girl has been saving up her allowance for one of our pretty hair barrettes, we can’t sell it to you, unless you want it for her dog [MaidenUS]

Public domain image: Grandma’s Graphics, Mabel Betsy Hill; dog image from MaidenUS.

Filed under: , , ,

CPSIA and print-on-demand

sisforstrawberry
Print-on-demand technology has many promising applications for children’s products: it can keep low-sales-volume children’s books from falling out of print, for example, and it can make available T-shirts, posters or school supplies customized with the name of a particular child or family or that of a particular teacher’s class. Unfortunately, in the absence of a green light for component testing, each tiny “run” of goods may need to be lab-tested separately at what will often be prohibitive expense. The CPSC’s enforcement stay as to new-item testing bought a year’s time for most product makers, and its narrow and hastily granted exemption for newly printed books (which, alas, did not extend to countless other printed products) may have saved that particular product category. zisforzinnia For many other users and potential users of the technology, however, the problem has merely been kicked forward to next year in the absence of any willingness by Congress to clarify or change the law. Some discussions: Will Benton; Adam Dewitz, Print CEO (via Book Journeys), WSJ forums (dilemma faced by Tennessee printer). More on book exemption: AAP request, PDF; Etsy thread.

Filed under: , , , ,

Is litigation the answer to the CPSIA problem?

As anyone reading Walter Olson’s posts and Forbes coverage knows, CPSIA is a bad law, with disastrous effects on retailers and small manufacturers.

It certainly seems unfair that Congress can wipe out thousands of businesses with the stroke of pen. It’s certainly bad public policy: as I have written elsewhere, when legislatures act to retroactively disrupt settled expectations, the effects redound far beyond the targeted industries to create uncertainty throughout the economy.

It’s a jump, however, from “bad public policy” to “unconstitutional,” and I am concerned that I see many lay blogs asserting otherwise. Starting in the 1930s, the Supreme Court has given free rein to Congress and legislatures to engage in economic regulation, even when that regulation has dramatic effects on individuals. In cases such as Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 202 (2002), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987), the Supreme Court signed off on the constitutionality of far-reaching regulations, despite the large economic effect on property owners affected by the laws. While conservative justices and scholars have argued that such “regulatory takings” without compensation violate the Fifth Amendment, their respect for the rule of law and the actual text of the Constitution are pooh-poohed by Democrats as following an esoteric (and fictional) “Constitution in Exile” movement. There are, at most, four justices on today’s Supreme Court that would recognize the doctrine of regulatory takings; that number is not going to grow under President Obama (who has explicitly disclaimed any need to appoint judges who merely “follow the law”) and a Democratic Senate.

There exist public-interest law firms like the Institute for Justice that engage in litigation over economic constitutional rights–and, while they take donations, they do so without charging their clients money. I think litigation would be fruitless with the makeup of the current judiciary, but I acknowledge that IJ does do a good job of putting forward its principles, and often leveraging its litigation into political success.

But it concerns me even more to see a website recruiting victims of CPSIA to send money to a lawyer to bring a lawsuit. The attorney, involved, Michael Kushner, is a run-of-the-mill plaintiffs’ attorney without any demonstrated expertise in Fifth Amendment law, but has offered to take the case for a $25,000 retainer–which is certainly not enough to fully litigate this to the Supreme Court. There is questionable ethics, if not outright fraud, in asking parties to what is most appropriately filed as a Rule 23(b)(2) class action to “file forms” and send money to join–the whole point of a class action is that a representative of a class is named who will act on behalf of parties that haven’t signed up. Moreover, the Equal Access to Justice Act permits attorneys who have won constitutional litigation when the government’s position was not “substantially justified” to collect attorney’s fees. And note that at no point in Kushner’s website or the related blog recruiting members does he spell out a theory of legal victory.

Sending money to a lawyer to litigate the CPSIA is throwing good money after bad. That a law is unsound does not make it unconstitutional and vice versa. The road to solving the problem of the CPSIA is through Congress, either by making Democratic legislators see common sense, or electing legislators who aren’t so willing to sign off on bills constructed by trial lawyers to benefit themselves at the expense of society at large. Spending resources on doomed litigation diverts from the pressure needed to get Congress to change its mind.

Filed under: , , ,

CPSIA: N.Y. Times runs three letters

[Title of post revised to reflect the paper’s printing of two more letters in its online (but not physical) edition on Monday.]

When I blasted the New York Times for its wretched editorial on CPSIA Wednesday, Patrick (SSFC/Popehat) made the following prediction:

Those tempted to write the Times to inform its readers about where this editorial gets it wrong will find that, no matter how many letters in opposition are received, the Times will print exactly one. The Times will also print one letter of thanks, from Greg Packer or someone affiliated with PIRG.

It is too early to say whether Patrick’s prediction will come true [see below for update]; the Times did print one short letter today from Nancy Nord of the CPSC, which fits the scheme, but there’s no way of knowing whether it will return to the subject in days to come with a letter supporting its editorial view or additional letters from critics. Before according the Times’ editors any credit for running this one, remember that having called for the removal of a named federal official, they really had to publish a letter from her in response; today’s letter as one would expect is mostly devoted to defending her record while also containing exactly one sentence disputing the Times’ ludicrous and much-derided assertion that fears of harm to small businesses are “needless”.

For the ordinary Times reader who knows little about this issue and is glad to skip to the next item, it will be easy to dismiss a short letter from a Bush appointee seeking to defend her managerial record. What else would you expect a Bush appointee to do? It would be a different matter — something to pause at, maybe ask questions — if a challenge to the Times’ assertions were to appear from wooden toymakers in New England, from apparel crafters in New York City’s garment district, from people who manage thrift and consignment stores, or from someone who deals in used children’s books. But — so far, at least — Times readers have been spared the danger of hearing any such discordant voices.

Update Monday a.m.: the Times online edition, though not the physical paper, runs two more letters today, and in doing so slightly (but only slightly) falsifies Patrick’s cynical prediction. The letter favorable to its own position, and ascribing no fault to the law other than its lack of tougher enforcement, comes not from PIRG but from David Pittle of Consumers Union (better prestige that way). And the Times also prints a mildly critical letter from the Toy Manufacturers of America, a group that 1) endorsed the law as a matter of general principle; 2) is often described in press coverage as closely aligned with giant toymakers who can live with its terms; 3) is cautious if not bland in its objections (“unrealistic”, “unwarranted”, etc.); 4) from its name and niche, reinforces the misimpression that “toys” are mostly what are at stake here, rather than a far wider range of children’s products ranging from books to apparel to minibikes. For all readers can discern from this TMA letter (and we do not, of course, know what the Times chose to condense or cut) the main economic costs of CPSIA might take the form of a quarter of down profits at Mattel or Hasbro. I have more to say in this earlier post about the tendency of CPSIA advocates to designate large and politically cautious industrial concerns as “the other” side for the press to consult, even though their interests and viewpoints may diverge widely from those of the smaller and family firms that dominate much of the children’s product trade. As of Monday, persons whose sole news source is the New York Times (especially the paper version) still have no idea that the law imposes any unusual burdens on this latter group.

Public domain image courtesy Grandma’s Graphics, Anne Anderson.

writelettersallyouplease

Filed under: , , , ,