Safety and Common Sense

CPSC Registry Launch Could Hurt Those It Was Meant To Help

2011-12-22T17:04:00.002-05:00

Under administrative authority and without agreement from the Commission, the Consumer Product Safety Commission has implemented procedures under which small batch manufactures can register to utilize an alternative testing requirement or exemption from third party testing and certification. In doing so, the agency has inappropriately made a unilateral policy decision to publish the business name, city and state of any small batch registrant who cannot prove that the publication would disclose confidential business information.

Congress, in an effort to prevent small business closures and the accompanying financial hardship to business owners and their employees who would be affected by CPSC’s third-party testing requirement, directed the CPSC to provide small batch manufactures with either alternative testing requirements or a complete exemption from third party testing and certification.

In order to register as a small batch manufacturer under the law, a business must make no more than $1 million in total gross revenues from the sale of all consumer products, and must make no more than 7,500 units of the registered product. The revenue and production data of businesses identified as having registered would therefore also be made public. Given the nature of these small businesses, it is unrealistic to expect their owners to possess the legal knowledge necessary to provide evidence and argument establishing the confidentiality of their revenue and production data.

The administrative decision by the CPSC to publish the business information of small batch manufactures on www.SaferProducts.gov may end up hurting many of the organizations and manufacturers that Congress intended to help. Such companies could be subject to potential negative advertising from larger competitors claiming that the failure to third-party test makes the products less reliably safe. In addition, the same consumer groups who have long pushed for third-party testing may also wish to more widely disseminate the names of manufacturers whose products are not third-party tested, to their competitive disadvantage. Smaller companies can also have greater difficulty placing their products with retailers; so exposing a business’ low revenue threshold could reduce its sales opportunities.

Finally, a small company with a successful product may not wish potential competitors to know that its size makes it an easy target for lower cost competition or a hostile takeover. Companies’ aware of these issues could well choose not to register in order to avoid the competitive harm that may result. It is impossible to imagine that Congress meant to imperil small batch manufacturers who take advantage of this exemption.

Stay No More

2011-12-22T13:56:00.002-05:00

As many of you are aware, on December 31, 2011, the CPSC will lift its stay of enforcement on the requirement that most children’s products be third-party tested and certified for compliance with lead, phthalates and/or ASTM F 963 toy safety standards.

As a result, over three years after passage of the CPSIA, children’s product manufacturers and importers will begin to bear the greatest burden imposed by the Act. As I have argued in the past, it has become increasingly clear to most that third-party testing will impose enormous costs without a proportionate justifying benefit, and that the CPSC’s exercise of new enforcement authority and cooperation with the U.S. Customs and Border Patrol (CBP) is a better and more cost-effective approach to ensuring the safety of children’s products sold in the United States.

I want to share with you a recent article I wrote for the BNA Toxics Law Reporter entitled, “The Best Approach to Ensuring the Safety of Children’s Products Sold in the United States.” I hope you find it both interesting and insightful.

Los Angeles Port Tour

2011-11-21T16:32:00.002-05:00

Last week, I had the privilege of visiting our country's largest port in Los Angeles to see first-hand some of the new and exciting technologies that our ports are using to ensure our safety. It is nice to know that the CPSC is benefiting from the port's use of cutting edge technology to protect American consumers from unsafe products.

During my visit to Los Angeles, I was able to take some photos that show much of the work that is being conducting at our ports on a daily basis. I hope you enjoy them.

CPSC Flushes Safety Down The Pool Drain

2011-09-28T19:41:00.000-04:00

In a remarkable reversal, a 3-2 majority of the Consumer Product Safety Commission voted today to reinterpret the phrase “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) to no longer permit the use of unblockable drain covers to protect against entrapment in public pools using single drain systems. As a result, cash strapped schools, municipalities, community pool organizations and others will be required to install an expensive and less protective back-up system.

The Commission’s original interpretation was based on the recommendation by its career technical experts that a $40 unblockable drain cover provides better protection against entrapment and drowning than does a $1000 – the least expensive and therefore most popular – back-up device, a safety vacuum release system (SVRS). According to Commission staff, unblockable drain covers prevent an entrapment before it happens, whereas an SVRS kicks in 4 seconds after a drain is blocked. As a result, a child playing in a pool without an unblockable drain cover can be eviscerated, or inextricably trapped by hair or a limb and drown before the SVRS turns off the pump. Even the SVRS manufacturer acknowledges this limitation in its product.

Commission staff has not changed its position that unblockable drain covers are safer than an SVRS, and did not recommend any change to the Commission’s interpretation. Since the Commission’s original interpretation, there have been no entrapment incidents that raise any concerns about the effectiveness of unblockable drain covers. In addition, despite receiving extensive public comment on the question before issuing its original interpretation, the Commission majority refused to hold any public hearing or solicit any public input on its reinterpretation.

The sole reason for the Commission’s decision is that a single Commissioner – Bob Adler – has changed his “legal interpretation” of the VGB Act. He claims to have done so based on two meetings with Debbie Wasserman Schultz, who sponsored the legislation. But the legislation was co-written by Vac-Alert Industries President Paul Pennington, whose company manufacturers an SVRS and will profit richly from the new mandate to use a back-up system.

Vac-Alert hits the jackpot, but what of the losses suffered by the public? For those pools that can afford it, thousands of dollars in unnecessary equipment will be purchased at taxpayer expense. But for those localities that don’t have the resources, pools will be opened late or closed permanently, potentially adding to nationwide drowning statistics by reducing the availability of swimming lessons. Finally, families will again be exposed to the risk of drain entrapment drowning and evisceration, which in the cruelest of ironies, was the cause of death of Virginia Graeme Baker, after whom the VGB Act was named.

Drain on the Economy

2011-09-23T16:55:00.010-04:00

On September 28th, the CPSC is scheduled to revoke its previous interpretation of “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB), resulting in costly new requirements for community pools and spas throughout the country. Earlier this week I shared with you just a few of the letters I have received from businesses and stakeholders who will negatively be affected by this change---all with no safety benefit to consumers. To date, we continue to receive more letters and more information regarding the revocation. I remain hopeful that the Majority will listen to these comments and allow facts and reason to guide their decision.

Recently, Pool & Spa News published an article entitled "New Drain Ruling May be Imposed" which provides the industry’s perspective on the issue. Dick Nichols, president of Genie Pool and Spa Service in San Jose, Calif, said in an interview that he doesn't "know what it is they're trying to accomplish, but this whole thing has been the most ludicrous waste of people's money I think i've ever seen in my 35 years in the business." Well Mr. Nichols, I couldn't agree more.

Spreading The Word

2011-09-20T17:52:00.005-04:00

Here are two unsolicited letters we received opposing the recovation of our previous interpretive rule on pool and spa drains. These letters make it clear that the CPSC would have received relevant information on this issue if we simply had placed the revocation up for public comment.

In particular, the unblockable drain cover manufacturer and the CPS both talk about new products that ensure the drain cannot be removed through the use of more and stronger fasteners and sturdier materials. To illustrate this point further, the removability of the covers was a principal argument put forth by consumer groups and repeated by one Commissioner in opposition to the original interpretation.

Had we put the issue up for public comment, we would have learned some of the valuable information provided by Ms. Snow, as well as NSPF’s important points, in time to take them into account.

NSPF Recommendation to CPSC - Revocation of Unblockable Pool Drains

Bonnie Snow Letter to CPSC

Troy,

You know that we designed the BeeSafe System to be the best, safest solution for all of the entrapment hazards in swimming pools. We even attempt to eliminate the problem of covers coming off by using lock tite on the stainless steel screws to eliminate vibration loosening the screws of the lid. The CPSC panel only saw our product and while not unanimous their vote favored allowing our product as a stand alone solution. If the issue now is the possibility of the cover coming off then I have a better solution than adding a back-up. This would be to use the Mr. Sticky Industrial Adhesive (the adhesive that makes our product a permanent installation for the body of the product) on the lid as well in the final step of our installation. I can send specifications for the product to justify this making our product free from the hazard of broken or missing covers in that it is designed for repair of submarines, used as a permanent strong bond on pvc, and that it has a long lifetime. We can get the adhesive to every customer who has purchased our product and have them secure the lid permanently before the time required in your new interpretation of unblockable. What we want and what is appropriate is to classify our BeeSafe Systems as equal to or better than the alternative solutions. What would it take and to whom do I need to contact to have our product considered as equal to or better than dual drains? The separation across our product is equal or better than the separation of dual drains. Dual drains could be blocked by two children attempting to race to see who can cover each of the drains, but BeeSafe cannot be blocked even if several children sit on it together. The tubes have the unique feature of emptying when covered and suction is broken faster than the detection of a back-up device. With this feature, our products are equal to or better than the back-up systems as well.

We have had several sales to customers who were very dissatisfied with a breaker system. One that took theirs out and replaced with the BeeSafe System told me that the breaker had to be turned off daily for maintenance, false triggered many times during the night which resulted in no chemical mixing, and then in the fall when the drain was completely clogged with leaves, the system failed to turn off the flow. It seems prudent to consider that entrapment isn't the only issue that CPSC should consider. If dependence on a breaker can and often does false trigger and leave a pool without adequate chemical mixing then other water borne disease will increase. It might be worthwhile to do some monitoring in some of the health districts to collect data on the number of bad samples taken with specific information on the type of VGB compliant product used. When I was working for the Utah County Health Department this was the reasoning for not wanting back up systems on the pools. Once they became popular we saw a dramatic increase in pool samples that had too high a bacterial count and detection of e-coli.

Our main reason for getting into this was to save lives. Our company is barely surviving but we had hopes of possibly breaking even or making a small profit with our second model that is now in testing. It is being molded by Custom Molded Products. They are also willing to help us with sales to the distributors. CMP is now concerned that there is no market for a product that costs more than a few dollars to produce. The customers who have been seeking an unblockable drain are those who have pools that cannot easily be remodeled with dual drains and that recognize the downfall of the secondary back-up systems. BeeSafe is more expensive, but a safer alternative and we lose our niche in the market if a back up is required.

Most of our sales have been to community pools, especially in Illinois, where they have no sump, or have aluminum lined pools, and also large pools that need the high flow rate that none of the smaller products have been able to reach. Many chose our system because they could not afford the expensive remodel that would be required for drain line as well as the additional modification of the drain for a dual system. The community pools are where most children learn to swim and with the problems of increased water borne diseases with the secondary devices we may lose many of these facilities. Some of the districts have based their decision on what unblockable product to use simply on the cost. Requiring them now to add a less than adequate back-up system will result in many of these facilities shutting down their pools. Please help us to get our information out to the right people and let us know the procedure for getting our product classified as "Equal to or Better Than" so we can continue to produce the best solution available in the pool industry. If necessary we would come with our products to demonstrate that our products should be classified this way as they are much more than just unblockable.

Bonnie
Bonnie Snow, Owner/CEOBeeSafe Systems

Red Tape Regulations

2011-09-19T16:55:00.000-04:00

Every day I see newspapers and television programs focusing on the horrible impact that regulations are having on our economy and our ability to produce well paying jobs in this country. At the CPSC, I continue to hear from businesses and individuals that are simply too frustrated or too small to comply with many of the burdens that our government is continuing to place on them. As a government and as an agency we are continuing to create red tape regulation that is simply killing our ability to compete with the rest of the world. Furthermore, we are failing to abide by the very rules and laws that we set forth when determining how to regulate.

A recent example of this is the Commission’s decision to change its interpretation of the Virginia Graeme Baker Pool and Spa Safety Act requirement that public pools have either an “unblockable drain” or a costly back-up system, to no longer permit unblockable drain covers to satisfy the requirement. As many of you know, this change, coming just 17 months after the announcement of the original interpretation, will require cash strapped states, municipalities, and community pools associations that, in reliance on the rule, incurred the expense of installing unblockable drain covers, to now start over with the installation of costly back-up systems. But perhaps more troubling than the result, is the fact that the Commission is apparently going forward with the change without seeking any input from the regulated community concerning the wisdom or cost of the reinterpretation. Indeed, the majority expressly rejected a Commissioner’s request that compliance officers in the fifty states at least be informed about the decision ahead of time to obtain their input.

This is particularly disturbing given the fact that all of the evidence currently before the Commission, including that there has not been a single drain entrapment death in three years, supports the conclusion that the existing rule effectively ensures public safety. Imposing additional costly burdens notwithstanding this fact would appear to be a definitional case of “unnecessarily” burdensome regulation. Notably, the original approach was adopted following the solicitation and consideration of public comment.

The new approach, according to the Federal Register Notice announcing the vote, was inspired by a large number of virtually identical form letters received from consumer advocates. In short, the Commission is reversing itself based on what amounts to the ex parte views of one interest group without even seeking the input of parties with potentially countervailing interests or views. So much for the President’s directive that independent agencies seek public comment and regulate based on real world evidence and data.

Last week, I wrote a letter to Administrator Cass Sunstein urging him to look into the actions of our agency and provide some much needed guidance on our current rulemaking agenda. I fear that if we do not stop to think about what our rules are doing to businesses, we will soon have far fewer businesses to regulate.

Feeling Relief Yet?

2011-08-15T15:59:00.005-04:00

Late last week, the President signed H.R. 2715, a law that is intended to help clarify and enhance the Consumer Product Safety Improvement Act of 2008. I sincerely appreciate the hard work of the House and Senate leadership in prioritizing some necessary reforms, including exemptions from the law’s non-risk-based lead content and/or third-party lead testing requirements for ATVs, bikes, books and most used children’s products. In addition, avoiding the waste of retroactively applying the CPSIA’s .01% lead limit was a priority for all children’s product manufacturers—and I am thankful that HR 2715 strips the CPSIA of this unnecessary requirement.

By exempting children’s ATV’s from all lead limits, allowing bicycles to remain at 300ppm, and exempting from third-party testing the metal components of bicycles and most children’s books, Congress signaled its awareness that these products do not present a health risk to children. I continue to urge my colleagues to regulate based on risk and to exercise flexibility wherever possible and appropriate. As I have argued in my statement on 100ppm the Commission’s approach to lead is clearly one of those cases.

Notwithstanding these improvements, Congress missed a rare opportunity to ensure that all safe, children’s products (not only ATVs, bikes and books) may be legally sold —and that non-risk-based, costly testing and certification requirements be eliminated in favor of more efficient, more meaningful ways to enforce safety measures up the supply chain for domestic and foreign manufacturers.

While some proponents of the law will argue that it reduces the burden of third party testing on small manufacturers, the fact remains that this mechanism applies to only a small niche of the overall regulated business community. By excluding from the third party testing requirement very low production products (7,500 units), provided they are manufactured by a business meeting a very narrow definition of “small” ($1,000,000 annual revenue), the law allows few businesses to obtain relief under this provision, perhaps including only those who fashion by hand unique or very small batches of products.

In addition to the perceived relief, it is important to note that no businesses will be excluded under the provision until the Commission has issued guidelines under which businesses may register their status with the CPSC. I hope that the political leadership of the Commission recognizes the importance of prioritizing the drafting of these guidelines, so that small businesses can register before the crushing costs of third-party testing drive them out of business, when the stays are lifted on January 1, 2011. In this respect, to paraphrase our Chairman, relief delayed is relief denied.

Some continue to suggest that H.R. 2715 will meaningfully improve the public database. Sadly, this is not the case. The law’s grant of up to 5 additional days to investigate material inaccuracy claims before posting reports will do little to reduce the number of inaccurate reports published. Similarly, little is achieved by requiring the Commission to “seek the model, serial number, or a photograph,” when not included within a report. By not requiring the commission to actually obtain the information prior to posting the claim, this provision is little more than a smoke and mirrors technique aimed at silencing criticism of the database. In the end, reports will continue to be posted without this information, manufacturers will still often be left with insufficient information to understand and respond to reports, and consumers will be left guessing about the subject of many of these claims.

While I clearly do not agree with the view that this new law addresses all of the problems in the CPSIA, I do remain hopeful that this will give the agency the opportunity to take a fresh look at the costs and benefits of the rules we issue, especially as they relate to small business. I believe that this new law requires us to re-propose our pending rule addressing periodic third party testing since the underlying rule has changed, as well as provides us with the opportunity to regulate based on fact rather than on opinion.

Finally, it is a mistake to conclude that Congress intended to endorse those provisions of the law that it failed to change. Just as a Congressional majority could not be found for more significant changes to the CPSIA, it is clear from the tenor of debate that there would also not be majority support to pass the original CPSIA today.

Be Quiet!! Be Quiet!!

2011-07-29T18:10:00.005-04:00

Chairman Tenebaum’s frustrations are clear in her guest commentary post of 7/28/2011, but it should reassure most Americans that the system is working exactly as intended. Congress established a Commission that includes two members not of the President’s party to ensure that a robust, open and honest policy debate will prevent a majority from engaging in one sided rulemaking. I regret that the Chairman is unable to respect opinions with which she differs. But my positions have always been grounded in fact and based on my sincere and deeply held views.

With respect to specific issues, my individual public statements speak for themselves: Database Statement 1, 2; Effective Date for New Crib Standard; Technological Feasibility of 100ppm Lead; Children's Textiles; Definition of a Child’s Product; and, Third Party Testing for Children’s Carpets and Rugs.

Consumer product safety is always my first priority. But I also believe it is essential to adopt regulations that achieve the Commission’s safety mission in a way that does not unnecessarily burden the economy, disrupt markets, destroy jobs, increase consumer prices, reduce consumer choice, or undermine the quality and durability of consumer products. I am proud to have worked to bring that balance to Commission debate, and will unapologetically continue to do so.

I often receive letters, emails and calls from everyday Americans who are suffering because of this Commission’s costly regulations. They speak of closed businesses, lost jobs, and products that are available everywhere in the world except here in America. I recently compiled a list of businesses and individuals harmed by our actions. But perhaps the most eye opening account I have ever received is one sent to me recently by a CPSC field agent:

I just had an opportunity to read your July 20, statement concerning lead ppm.

"I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.

Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.

It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy."

The Chairman has difficulty hearing the truth from me. I hope she can be reached by the words of a career Commission employee.

Regulating for the sake of?

2011-07-21T15:10:00.005-04:00

Over the past week, I have commented briefly on the President’s Executive Order as well as the Commission Majority’s unfortunate decision to move forward on the reduction of lead in toys from 99.97% lead free (current level) to 99.99% lead free. As I have mentioned in the past, the Commission Majority often points to the inflexibility of the CPSIA or the need to protect public health to explain its willingness to burden the economy with unnecessary and wasteful regulation. The party-line decision last week that there are no products or product categories for which 100 ppm total lead content (99.99% lead free) is not technologically feasible belies those claims. The Majority has ignored the flexibility Congress granted the Commission to avoid imposing a 100 ppm limit, and cannot point to any gain in public health to offset the substantial economic harm its decision will cause.

There is a reason President Obama issued an Executive Order in January requiring Executive Agencies to reduce unwarranted regulatory burdens on American businesses, and issued another Executive Order last week imploring independent agencies, including the CPSC, to do the same. The President recognizes that overly burdensome regulations are strangling the economy and hindering the job growth essential to a sustained recovery.

Last week’s 100 ppm vote gave this Commission the opportunity to let the President know that it is listening and that it understand and cares. Instead, hiding behind the President’s inability to compel us to act and under the guise that the statute made them do it, the Majority once again chose to impose huge economic costs on American manufacturers with no evidence that there will be any improvement in public health.

I encourage each of you to take the time to read my official statement which provides more clarification and analysis of this issue. As always, I welcome your feedback and comments.

One Agency Answered The Call. Perhaps It's Time We Follow

2011-07-20T18:08:00.000-04:00

Today the Wall Street Journal published an article entitled, "Toying With Deregulation: Another agency ignores Mr. Obama's executive order." I bring this to your attention because it focuses on the CPSC’s direct disregard of President Obama’s Executive Order in relation to last week’s vote on the reduction of lead content in children’s toys to 100 parts per million. As the article notes, “while the additional safety gain will be negligible, the change will do damage in other ways, causing companies to avoid recycled metal and plastic, which may contain higher amounts of lead. It will also raise costs for metal parts, potentially driving some businesses to substitute plastic for metal, or stop producing children’s products.”

This article raised three questions in my mind. First, is this really what consumers want for their children or what legislators thought when they drafted this law? Second, how many businesses does the CPSC need to close before somebody gets the message? And finally, and most importantly, how serious are we about following other agencies examples in responding to the President’s Executive Order?

Well, in reference to my last question…apparently not very serious. On July 15th, the EPA (an agency we routinely cite for their stance on lead standards) decided against a proposed rule that would have required contractors to test dust to prove the absence of lead following renovations involving lead paint. It is well known within the health community that lead paint in older homes is one of the most significant causes for higher lead level in children, not toys. If the agency that regulates this recognizes the impact of overregulation on the economy, then why can’t we?

How to Kill Business 101

2011-07-19T18:20:00.000-04:00

Earlier today I had the privilege of being a guest speaker at the American Enterprise Institute. My speech, entitled "How to Kill Business 101: An Insider’s Look at How Over-Regulation Is Killing Our Economy” focused on my experiences in Congress as compared to my current position as a Commissioner at the Consumer Product Safety Commission.

Throughout the discussion, I was able to hear from the regulated community as well as provide some of my insights into ways in which we can lower the cost of regulations while also ensuring the safety of our products. In particular, my speech addressed three main points:

First: It is my belief that when Congress enacted the Consumer Product Safety Improvement Act that they never meant for the law to have such a costly affect on the regulated community. During my confirmation hearing, I was asked to find flexibility in this law, and work towards finding a balanced solution in determining what regulations we needed moving forward. My efforts to encourage my fellow commissioners in the majority to find flexibility in the law continue to fall on deaf ears. It is my hope that today’s event will bring the attention that is needed to change the course of regulations here at the CPSC.

Second: As many of you are aware, last week the commission by a 3-2 vote mandated that every component in products intended for children 12 and under will move from being 99.97 percent lead free to 99.99 percent lead free. We are not talking about lead in paint, which actually does pose a risk to children but rather lead in metal substrate. In the briefing package, even our own staff discounted any health benefits to children. Furthermore, going to such levels will be exceedingly costly to those who make children’s products who will now have to re-engineer, buy virgin plastic and virgin steel and absorb higher testing costs to prove to us that they are complying. American families on modest budgets will soon be paying the cost of this excessive regulation. As I have mentioned before, and NIH and EPA studies verify, the traditional dangers with lead stem particularly from old houses where paint contains high lead levels and areas where gas has been left on the ground, potentially causing ingestion in a child. Ironically, the EPA, who is tasked with oversight of this issue, has just withdrawn a Rule that would have focused on reducing children’s exposure to lead in paint while we are going in the opposite direction.

And Finally: I focused on the importance of following the President’s Executive Order at the CPSC. The President has asked even the Independent Agencies to consider cost/benefits analysis and look for less costly alternatives but that did not stop the Majority here at the CPSC. Our staff actually acknowledged that moving to the 99.99% lead free might be impossible for businesses and that they might close, that it would make products less durable and that they would not work as well.

I would like to thank AEI for having me come to speak today and always welcome the opportunity to be a guest at any organization. Together I believe we can truly make a difference here at the CPSC, and look forward to your continued input and support.

Can't meet 100ppm? "Just petition us!"

2011-07-14T09:42:00.001-04:00

At yesterday’s hearing on the technological feasibility of dropping the lead content limit to 100ppm, it was stated that if there’s any manufacturer out there that’s having trouble reaching this lead content limit (even though the Commission’s Majority already made the decision that it’s technologically feasible for all products to meet 100ppm)----just file a petition with the Commission, and we’ll consider it.

Really…..it’s that simple?

Aside from the fact that there is a clear split among the Commissioners regarding how they view the flexibility allowed by Section 101 of the statute, the petitioning process for any company, under just about any of our statutes, is immensely complicated. Here are some key considerations for a company filing a petition as well as some facts and figures to keep in mind:

- First, does the company’s request for relief count as a “petition”? In the past 2 years, the Commission has docketed approximately 6 petitions in the Federal Register. All this illustrates is that these documents were prepared to the required specifications to be deemed a "petition" by the Commission. This does not, however, count the many requests for relief that we rule out simply because they do not meet the guidelines to be considered a “petition” outlined in our regulations.

- Can the manufacturer make the scientific, engineering, legal and other showing necessary to support their petition for relief? While the largest of businesses may be able to achieve this feat, most small businesses do not have metallurgists or a legal team on hand to put together such a petition.

- Who can afford the cost? We know from one former petitioner to our agency that the cost to file a petition, including legal fees, was approximately $50,000—-and can run much more. Mind you, that is without the odds favoring any guarantee that the Commission will even grant their request.

- Is there a chance of winning? Granting petitions by the Commission is always subjective. As seen in today’s hearing, there are a wide variety of opinions regarding the statute’s flexibility on 100ppm – and even regarding the lack of a health benefit. Just for perspective, it is helpful to remember that every product-specific petition for exclusion filed previously under Section 101 (e.g., petitions for bicycles, ATVs, ball point pens, crystals, and toy cars with brass axles…) has been denied.

- Do you have the time to wait? As a number of manufacturers already know, the petitioning process takes time – including a notice and comment period for the public, and taking into account the many other priorities of the Commission. There is no guarantee that a company will receive the decision they need, and in time to make a difference.

- And realistically…if your business is failing due to the Commission’s decision that it was technologically feasible for you to drop to 100ppm (and/or due to the CPSIA’s myriad mandates)…do you really have a spare $50,000 and the time necessary to petition a federal agency?

As of yesterday’s vote, the Commission may have unnecessarily consigned an unknown number of products and businesses to oblivion. Let's at least have the spine to admit it, rather than pretend we are awaiting the opportunity to provide relief, through petitions, to all comers.

Stay tuned in the upcoming days for my statement and further commentary on the 100ppm decision….

Now it’s crystal clear – independent agencies must be responsive to the President’s call to roll back burdensome regulations

2011-07-11T18:37:00.000-04:00

Today, President Obama issued a new Executive Order, requesting that the CPSC and other independent agencies comply with the President’s earlier Executive Order 13563, calling for the reevaluation and potential repeal of overly burdensome regulations and the promulgation of new regulations “only after consideration of their costs and benefits (both quantitative and qualitative).”

No longer can the statement, “this Order doesn’t apply to us,” hold true for Commissioners at the CPSC.

Last week, I had the opportunity to testify before the Energy and Commerce Subcommittee on Oversight and Investigations concerning President Obama’s earlier Executive Order (E.O.) 13563 and the lack of responsiveness to the E.O. of agencies such as ours. While this original Executive Order did not apply to independent agencies, Administrator Cass Sunstein had urged that they voluntarily comply.

In my testimony, I continued to argue for ways in which the Consumer Product Safety Improvement Act’s regulations can be implemented with less burdensome regulations. I also suggested specific reforms to the law that would ensure that the CPSIA and its regulations would not hurt our ability to create jobs in this economy.

Following the hearing, my former colleague, Representative Marsha Blackburn (R-TN) guest blogged on the Heritage Foundation’s The Foundry website with her reactions to the hearing. I concur with Rep. Blackburn’s statement: “It’s important to understand the reason why regulators are resisting voluntary compliance with Obama’s order: they can’t justify their costly rules and mandates.” The reality is…we need action. We need to better quantify the costs that our regulations are having on businesses throughout the country. We need to engage those most affected by our regulations and we need to provide them with the opportunity to comment on those issues. Further, we need to admit our mistakes, learn from them, and look back at ways we can lessen the unnecessary burden of CPSIA-mandated regulations when there is no known risk.

Several months ago, I applauded the President for his Executive Order and urged my colleagues at the CPSC to help to shred the excess in terms of how we regulate. I have testified before Congress several times requesting more flexibility in the statute and urged my fellow Commissioners to do the same. Last week’s hearing and the latest, dire unemployment statistics have created a new awareness of the issues regulated by independent agencies. I remain strong in my belief that the White House, Congress and the public can play an important role in shaping the CPSC’s decisions.

I once again urge my colleagues to follow the new Executive Order and to stop any further regulations without a plan in place that addresses the concerns of the President, mainly that we “produce a regulatory system that protects public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation."

My Op-Ed in the Washington Times

2011-06-30T16:16:00.000-04:00

Crib crash kills cash, doesn't save kids

Today, the Washington Times printed my op-ed on the implementation of the recent crib rule. I could not have written this without your stories and experiences regarding this rule. I hope you will keep sending me more in the upcoming weeks and months!

Crib Response

2011-06-30T16:05:00.005-04:00

Following the implementation of the crib rule, I received several e-mails and letters from those most affected by the Commission Majority’s decision. While I will continue to urge my Democratic colleagues toward a reasonable interpretation of the CPSIA and the avoidance of unnecessarily burdensome regulation, I and my fellow Republican Commissioner have an uphill battle. I am hopeful that by sharing some portions of these letters with you that my colleagues on the Commission will understand the harm their rulemaking is causing not only to American businesses, but more importantly, to the hardworking American family.

From Sarah in Utah:

When I had my first baby, we were so poor that I had to make all my maternity clothes from leftover fabric, and even then I wasn't able to make enough to last me a week without washing. My aunt lent us a crib that had been hers since my cousins were babies. It was a drop-side crib and it in no way met the current safety standards of that time (13 years ago), let alone today's safety standards. But my daughter survived it too, just like my cousins did, and if it hadn't been for that crib my daughter would have slept in the proverbial dresser drawer.

When I had my oldest son, we were a bit more prosperous and we could afford a used (fixed-side) crib which we bought for $80. That was all we could afford and still get the other things we needed. And by "needed" I mean like clothes and car seats, not diaper wipe warmers and fancy toys. Even so we could only afford used clothes. We used that crib for three boys total, the second of which, a budding engineer, removed two of the slats and forced us to jerry-rig it back together with a metal rod (totally untested by a third party lab) so that it could be used for the third boy, who was born just a couple months later. And when we were done with it, we gave it to another family in need of a crib.

This is how it works in the REAL world, far from the rarefied heights of Washington D.C. Most people starting their families are not prosperous, and not everybody's got a relative who can afford to buy them a brand spanking new crib when they can't pony up the cash. You can make it illegal to sell cribs and put the proverbial Fear of God into retailers and resellers, but you can't stop the distribution of these cribs, because they will continue to be passed down through families and around neighborhoods. If we had done this today, we must have committed several felonies in the provision of sleeping quarters for our four children! And yet, if we had not done so, we would have been guilty of child neglect.

From Rafael de Castro, NINFRA:

I hope that even though we were unsuccessful in our petition, the commission now sees the unintended side effect of instituting the same compliance date for two different segments of our retail supply chain. I can attest to the damage the implementation of this standard has done to many small retailers throughout this country and I am sure this was never intended when the commission decided to adopt 16CFR-1219. In both sides of the argument presented to the commission on June 16th, retailers had suffered unnecessary harm cause by this implementation plan, all of which could have been avoided if retailers would have been given an opportunity to sell through their inventor.

In a statement [by one of the Commissioners] following the vote, he says the following:

“Any Type of extension of the effective date for this rule would be patently unfair to the many retailers, both small and large, that have planned ahead, worked hard, played by the rules and prepared themselves to sell only compliant cribs on June 28th.”

I can tell you that we planned ahead and we worked hard to sell only compliant cribs by June 28th. The problem was never planning or how hard we were working, the problem was the fairness of the rules. As we move forward, I can only hope this commission does whatever studies it has to do to understand the full impact of this implementation plan. Maybe then, opinions such as those stated above by [the] Commissioner will change.

Personally there is a point I must make. While watching the webcast I could not help but notice how the four retailers fighting this extension were portraying us. We were being painted as profit hungry retailers with little regard for the safety of children. Nothing can be farther from the truth. The retailers I am proud to represent are family oriented good people. They understand the importance of safe cribs and welcome any standards, which make cribs safer. We support 16CFR-1219 and think it has set a safety standard this industry has needed for quite some time.

From Jim Vieira, President, Baby Boudoir:

Political ideology aside, anyone leading a government agency should be able to recognize an error in judgment, and take the necessary steps to correct that error when new substantiated information challenges a previously held position. It's clearly illustrated by Commissioner Northup's statement that this error was not even considered, let alone corrected. Meanwhile, were still waiting for certificates of conformity, retrofit hardware and a miracle to save a number of stores on the brink of bankruptcy.

I appreciate all the feedback I have received on this matter and will continue to provide as much information to the Commission as possible. Your input continues to help me in my efforts of being a responsible advocate during the CPSIA rule making process.

Setting The Record Straight

2011-06-28T17:54:00.002-04:00

The Consumer Product Safety Commission’s official pronouncements on the new mandatory safety standards for cribs have caused confusion among the press. This post is intended to correct the record.

The new standards ban drop-side cribs. But the standards also prohibit the sale, new or used, of all cribs – both drop-side and fixed-side – that are not tested to the new standards by a private laboratory. Because very few cribs that were not originally manufactured to the new standards will ever be tested, the new standards essentially ban all such cribs – drop-side and fixed side. As reported in today’s press, millions of drop-side cribs have been recalled. On the other hand, tens of millions of fixed side cribs manufactured to previous standards have never been recalled, never been found to be unsafe, and now also cannot be sold new or resold used.

Drop side cribs have been banned since 2009 by the voluntary standard followed by the vast majority of crib manufacturers offering cribs in the domestic United States market today. Therefore, although it is true that the new standards are the first “mandatory” federal crib standards in 30 years, very few new drop-side cribs have been available in the United States market for two years. That problem was largely solved already through recalls and a change to the industry voluntary standard.

Tomorrow You May See Tens of Thousands of These

2011-06-27T17:51:00.000-04:00

Last week, the Consumer Product Safety Commission had an opportunity to act in a sensible manner and provide important and immediate relief to retailers in the crib industry who requested an extension of the effective date of the new mandatory crib standards. The retailers of these cribs, which the Commission deemed were safe enough to continue to be used for another two years in day care facilities, stand to lose at least $32 million dollars when they are required to throw out noncompliant cribs on June 28. We all agree that the economy is growing painfully slowly, with high unemployment, minimal job creation, and a crushing national debt due in part to the reduced tax revenues associated with a weak economy. Among the central factors economists attribute to the reluctance of private sector employers to hire employees and invest capital are the costs and uncertainty of complying with new regulations. By failing to provide relief to crib retailers, the Commission continues to create over burdensome regulations without a safety justification.

I urge you to read my most recent statement on this issue and comment with your thoughts. If we at the Commission continue to ignore the voices of small businesses, sooner or later there won’t be any small businesses to ignore.

Ribbon Cutting

2011-06-14T16:44:00.002-04:00

Yesterday I had the pleasure of joining my fellow Commissioners in opening CPSC’s brand new state of the art testing facility in Rockville, Maryland. The Ribbon Cutting Ceremony gave us an opportunity to discuss many of the benefits of the new facility as well as get a glimpse into the work that is conducted there.

During the tour, I was able to witness first-hand the important technological steps that CPSC staff are taking to ensure the safety of the products that we use on a daily basis. Unlike the prior facility, this new center allows agency scientists and engineers to work together in a central location with the resources they need to do their jobs effectively. In particular, I was impressed by the center’s ability to conduct carbon monoxide alarm testing as well as their new mattress flammability testing chambers.

I want to congratulate all those who put in the time to make yesterday such a success. I am confident that this new facility will help us in our continuing efforts to ensure safety.

Advancing Change

2011-05-25T13:54:00.002-04:00

As many of you are aware, the House of Representatives Subcommittee on Commerce, Manufacturing, and Trade recently reported favorably the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA) to the full House Energy and Commerce Committee. The ECADA would correct many of the unintended consequences of the Consumer Product Safety Improvement Act of 2008 (CPSIA) and help to refocus the Consumer Product Safety Commission (CPSC) on its core mission of identifying and eliminating hazardous children’s products.

To help illustrate my position on this legislation, I recently sent a letter to each Member of the Committee identifying not only the strengths of this legislation, but also some suggestions as to ways in which we can make a good bill even better.

On balance, I strongly appreciate the Subcommittee’s efforts to resolve the unforeseen problems caused by the CPSIA, and I look forward to continued progress before the Full Committee. The bill makes great strides toward addressing many of the problems with the CPSIA, including its overregulation of lead, imposition of huge third-party testing costs, and a mandate to create a public database using language this Commission subsequently construed to allow the placement of inaccurate and unverifiable information in a government sanctioned database. I therefore support passage of the ECADA and look forward to the day when all of the CPSC’s resources can once again be directed to protecting the public from unsafe consumer products.

Hearing Recap

2011-04-08T22:55:00.000-04:00

Earlier this week, I mentioned that the House of Representatives Subcommittee on Commerce, Manufacturing, and Trade would be holding a hearing on a draft version of fixes to the current CPSIA. I appreciated listening to the testimony of all the witnesses and feel confident that the Committee can work in a bipartisan manner to continue this discussion moving forward.

To illustrate some of the important changes this bill would make, I want to draw your attention to a recent article from Bloomberg news entitled “Toymakers Would Get Regulatory Relief Under Republican Plan.” This article helps outline many of the current problems with CPSIA as well as the important fixes that this legislation will address.

Drafting A Change

2011-04-06T21:37:00.002-04:00

As some of you may know, the House of Representatives Energy and Commerce Committee recently released a draft version of a bill designed to fix many of the unintended consequences of the CPSIA. This important piece of legislation will be the focal point of tomorrow’s Subcommittee on Commerce, Manufacturing, and Trade hearing.

From my perspective, this legislation will go a long way to reduce some of the unnecessary and over burdensome mandates of the CPSIA. For instance, the bill establishes limits for children’s products that are too large to be swallowed, alternative lead limits for metals and a de minimis exception for other materials. It also limits third party testing to specific categories of products with known risks. These changes would free the Commission to focus its efforts on hazardous products, rather than on the enforcement of non-risk based standards and procedural compliance.

Further, I want to note a key provision regarding the Public Database. The bill narrows the definitions of “consumer” and “public safety entity” to persons who either used a product or are closely associated with someone who did. In addition, the bill requires that the name and contact information of the affected individual be included in the report. I believe these simple changes would address many of my concerns regarding the veracity and verifiability of information submitted to the public database.

Finally, I want to commend Chairwoman Mary Bono Mack and members of her staff for their hard work on drafting this piece of legislation. While I know bills can change significantly during the legislative process, this draft reflects the Committee’s commitment to correct the problems with the CPSIA about which there is strong bipartisan agreement. I look forward to sharing my impressions of tomorrow’s hearing and welcome your comments about this legislation.

Funding Debate

2011-04-04T15:40:00.009-04:00

Last week, I had the honor of representing the CPSC as a witness before the House Appropriations Subcommittee on Financial Services and General Government. The hearing, which focused on the CPSC'S 2012 Performance Budget Request, afforded me the opportunity to testify about ways in which I believe we can reduce our budget while actually improving our ability to fulfill our core safety mission.

In my prepared testimony, I illustrated several points where I believe the CPSC is inefficiently using its resources, focusing on the requirements of the CPSIA. For example, I discussed the Commission Majority’s decision to broaden the scope of what falls under the definition of “children’s product.” That decision unnecessarily increased the number of products that must undergo third-party lab testing for compliance with the statutory lead content limits applicable to children’s products. Moreover, the majority failed to meaningfully define “absorption” for purposes of excepting from the third-party testing requirements products that contain no risk. As a result, the rule makes no distinction between products containing lead that is likely to be consumed and products where the lead content cannot cause harm. These regulatory decisions by the Majority have actually increased the economic damage caused by the CPSIA, in areas where the Commission had the discretion to limit that damage.

In addition to my prepared testimony I was able to highlight two points that I believe would be instrumental in reducing both the size of the Commission’s budget and its regulatory burden, especially on small businesses:

First, I urged the Committee to prohibit funding for the new public database until the Commission’s regulations ensure that the information contained in a report of harm is verifiable, and the Commission has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is put on the Database.

Second, I urged the Committee to prohibit funding for the Commission to implement any new third-party testing and certification requirements of the CPSIA. Of course, the Commission would still have its authority to impose such requirements where necessary to address a risk. This will ensure that our focus is on ensuring safety rather than on enforcing standards and paperwork requirements entirely unrelated to risk.

Finally, I was pleased with the discussion by Chairwoman Jo Ann Emerson of the need for a cost-benefit analysis of regulations promulgated under the CPSIA. I believe such an analysis would reveal that much of our CPSIA mandated regulation cannot be justified. This will not only help to save businesses throughout the county that are struggling, but it will also ensure that we are using the resources provided to us by the taxpayer in a logical and substantive manner.

Click here to view last week's broadcast.

Laying the groundwork for reform...

2011-02-18T20:16:00.003-05:00

Yesterday, I had the honor of representing the CPSC as a witness before the House of Representatives Subcommittee on Commerce, Manufacturing and Trade. The hearing, entitled “Review of CPSIA and CPSC Resources,” afforded me the opportunity to testify about the unintended consequences of the CPSIA. We can all agree that the original intent of the CPSIA was an admirable one, however, given the massive impact of the law’s testing and certification requirements and the overreach of the Commission’s database regulation, it is now in the hands of Congress to prevent further disastrous, economic consequences. This hearing provided Congress with the opportunity to discuss these key issues.

In my prepared testimony, I argued for two actions that Congress could take immediately to ameliorate the consequences of the CPSIA and two long-term reforms to ensure that harmless products are not caught up in the law’s purview. Immediate recommendations include:

- Prohibiting the launch of the new database until the Commission’s regulations ensure that the information contained in a report of harm is verifiable, and the Commission has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is put on the Database.

- Prohibiting the Commission from undertaking any further regulatory action without first performing a full cost-benefit analysis and making a finding that the cost of the action is justified by its expected benefits. (This would impact accrediting labs to test to the phthalate or toy standards, the 15-month rule, etc.)

Two long-term proposals for reform include

- Amending the law’s absorbability exclusion § 101(b)(1) so that it has meaning. Such a change would result in excluding products or materials with a level of absorbable lead that the Commission determines not to be harmful to a child’s health.

- Eliminating third-party testing, certification and tracking labels of all children’s products, allowing the Commission to retain its authority to impose such requirements only where necessary to address a risk.

These changes will provide much needed relief to small businesses throughout our country. Further, I believe that by doing this, we can ensure that the CPSC will continue to use the tax dollars afforded to us by hard working Americans in a meaningful way, rather than on enforcing standards and paperwork requirements entirely unrelated to risk.

In the hearing's second panel, Members of Congress were able to receive testimony from several of the small businesses that I hear from on a regular basis. These individuals provided firsthand accounts about the effects that our rulemaking is having on their futures.

I am hopeful that moving forward, Congress will take my testimony and the testimony of the witnesses into account in crafting a reform bill.

Click here to view yesterday’s webcast: http://energycommerce.edgeboss.net/wmedia/energycommerce/SCCMT021711.wvx

Staying Power

2011-02-01T17:27:00.001-05:00

Last night, the Commission voted 4-1 to extend the stay of enforcement on testing and certification to the lead content standard until December 31, 2011. I am pleased that the Commissioners were willing to compromise on this extension.

While I welcome this decision, I continue to believe that the stay of enforcement should remain in place until one year after the finalization of the Commission’s rulemaking on both Testing and Labeling Pertaining to Product Certification and Conditions and Requirements for Testing Component Parts of Consumer Products. After all, the Commission has broadcast to the regulated community since 2009 its commitment to allow component parts testing and certification to become a viable compliance alternative for manufacturers before third party testing and certification for lead content in most children’s products becomes mandatory.

Over the past several weeks, large and small businesses throughout the country who would have been affected by this decision, have been in contact with my office urging a stay of this testing requirement, particularly since the Commission’s testing regulations have not been finalized. In the absence of those final rules, component suppliers are refusing to test altogether or are refusing to supply certifications. In addition, certifications are unavailable from the retail outlets where many small manufacturers obtain component parts.

I believe that third party testing imposes a financial burden that many manufacturers, and particularly small ones, may never be able to bear. But if there is any hope for their survival, it is essential that the stay not be lifted before there is at least an opportunity for certified component parts to form the basis for the final product certifications of small manufacturers.

If you are interested in learning more about the effects of this decision, please read my official statement for more information.

Please know how much I appreciate all the feedback and information that has been provided to my office over the past few weeks on this topic. This decision was an important victory for businesses both large and small throughout the country. I recognize that this could not have been achieved without your input. As always, if you have any questions or comments, please do not hesitate to contact me at commissioner_northup@cpsc.gov.

Shredding the excess

2011-01-21T17:27:00.003-05:00

On January 18, 2011 President Obama issued an Executive Order that expressed his desire to eliminate rules that “stifle job creation and make our economy less competitive.” It should come as no surprise that companies and businesses are continuing to face the burden of government regulation and the challenge of providing opportunities and work for individuals throughout the country. In his recent op-ed, President Obama notes that government agencies need to “make sure we avoid excessive, inconsistent, and redundant regulation.”

As a Commissioner of an independent regulatory agency, I want to know how the CPSC can make this initiative a reality. I invite you to tell me which regulations have been costly to your organization or caused greater inefficiency, where there is very little safety enhancement to be derived. I want to know which rules or regulations your company is worried about, so that together we can move forward in creating jobs while also ensuring safety.

Over the next few weeks, and in the spirit of President Obama’s recent Order, I look forward to sharing with you some of the simple changes that I believe would go a long way in making a significant impact in achieving this goal. In addition, I look forward to receiving your examples and input about ways in which we can move the CPSC in the right direction.

In case you missed it...

2011-01-14T17:34:00.002-05:00

This week, the Washington Post had a front-page article on the looming public database, including a balanced look at industry’s concerns. I did contact the reporter to clarify one key issue:

The article reads, “If a company says a complaint is false or would disclose confidential business information, the CPSC will decide whether to withhold or publish the complaint.” Well…not exactly. Unfortunately, the reporter was led to believe that the agency would be able to resolve all reports of material inaccuracy within the 10 period time period. This is completely unlikely.

On the contrary, the Commission has decided not to exercise any discretion and to go ahead and put up claims even where there is a material inaccuracy claim pending past 10 days. For example, if a manufacturer knows that the product in question is not theirs and files such a claim on the 9th day , it is highly unlikely that the Commission will even be able to resolve the claim by the end of the 10th day (let alone any other pending claims that week)—resulting in the inaccurate report still going up on the database.

And you guessed it—inaccurate information about a manufacturer or their product on a “.gov” database is not only detrimental to the manufacturer, but it is useless to consumers using the database.…

Behold: "The Database of Doom"

2010-11-30T17:03:00.004-05:00

The Washington Times gets it...

"Consumer agency endangers employers with rumor and innuendo"

EDITORIAL: CPSC's database of doom

Database: Setting the Record Straight

2010-11-24T12:56:00.003-05:00

Last week, the Los Angeles Times published an article that did not present fully all of the facts on the Majority’s consumer database proposal. To set the record straight, I submitted the following letter to the editor, which was published in today's paper:

Review rules

Re "Whose concerns will make the cut?" Business, Nov. 16 David Lazarus gives the impression that all reports in the Consumer Product Safety Commission's public-backed database will be vetted. Here are the facts: The commission's proposal includes no requirement that reports of harm submitted to the database be verified for accuracy before they are posted. If a manufacturer claims that a report is inaccurate, there is no requirement or even incentive for the commission to review or make a determination on such claims. To make the database more reliable for consumers, I have proposed an alternative rule that improves on these areas; I hope my fellow commissioners will consider it. Without such changes, the commission's saferproducts.gov database will be useless to the very consumers the commission claims to be helping.

Anne M. Northup
Bethesda, Md.

The writer is a commissioner on the U.S. Consumer Product Safety Commission.

Here is the link to letters to the editor: http://www.latimes.com/news/opinion/letters/

Here is the link to last week's article: http://www.latimes.com/business/la-fi-lazarus-20101116,0,835664.column

WE INTERRUPT THIS PROGRAM…WITH AN ALTERNATIVE

2010-11-09T11:25:00.004-05:00

Given the many flaws of the Commission’s draft final rule for the public database, my colleague, Commissioner Nord, and I have proposed an ALTERNATIVE DATABASE RULE. This rule more accurately reflects the law Congress provided us and it will address some of its key flaws.

Our alternative rule will:
- tighten up who can submit information so that the reports coming into the database are more reliable;
- improve the procedures for correcting inaccurate information so that consumers are not misled by bad information in the database; and
- put in place procedures for review of reports so that the database does not become a “post it and forget it” exercise.

There is still time for the Commission to make these changes since the database vote is not until November 17th. I hope this alternative will receive due consideration.

More details to come on the Database rule’s main flaws…

Click here for Commissioner Nancy Nord's blog post regarding our alternative

Flaw #3: DEFINITION OF "PUBLIC SAFETY ENTITIES"

2010-11-05T15:06:00.016-04:00

We have already seen that the Commission established a definition for “consumers” that is so broad as to allow anyone to submit incident reports to the new database (rendering the category of “consumers” largely useless)---but let’s take a look at another category: PUBLIC SAFETY ENTITIES.

Given that the statute’s list of who may submit reports of harm denotes individuals likely to have firsthand knowledge of the incident, it makes sense that a “public safety entity” would include, for example, the fire fighter that put out the fire caused by a consumer product (direct knowledge of the incident). Or, it could include the city’s health department that inspected the county’s swimming pool and found a defect in its equipment (again, direct knowledge of the incident).

However, the Commission has construed “public safety entities” to mean any entities, public or private, that claim to have “a public safety purpose." The draft rule's definition states:

“…other public safety officials and professionals, including consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose.”

Really? How can the definition of "PUBLIC safety entities" be construed to allow even PRIVATE advocacy groups that may also have financially-driven or politically driven agendas to submit incidents directly into the database? This is a far cry from the kind of submitters provided for in the statute, and a step that opens a Pandora’s box of inaccurate, misleading information.

Based on this definition, the Consumer’s Union (CU), a common example of a consumer advocacy organization, can submit incident reports. While the CU claims to have a public safety mission, their website also lists advocacy campaigns related to big government health care reform, expanded federal regulation of banks, allowing bankruptcy judges to write down home loans, and promoting energy legislation---campaigns that are quite biased and unrelated to risk-based science or consumer safety.

What about the “Pool Safety Council,” which was established by an individual who was president of a company selling anti-entrapment "safety" devices for pools? A number of advocacy organizations with public safety missions may also have a conflict of interest or self-serving motives when it comes to reporting product safety incidents. That is probably why Congress did not authorize them to submit reports of harm to the database.

In any event, a U.S. Government, taxpayer-funded, public database should not be a vehicle for advocacy groups or attorneys that wish to file complaints (which they may have received third-hand) in order to promote hidden agendas. This would make the database misleading or useless for consumers...

Stay tuned for more…

Flaw #2: DEFINITION OF "CONSUMERS"

2010-10-28T18:46:00.004-04:00

Yesterday we established that the current draft of the public database rule would mistakenly allow anyone to submit a “report of harm.” But Congress specifically listed who could post incidents in the public database: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities---not just “anyone.” All of these categories have one thing in common – they are individuals who generally have firsthand information about the incident in question.

So how is “consumers” defined? One would assume “consumers” means (and is limited to) the individual who actually owns or uses the consumer product about which the “report of harm” is submitted—which the statutory context supports. It makes sense that a public database would contain legitimate, “consumer” incident reports—straight from the horse’s mouth.

Unfortunately, the Commission has stretched the definition of “consumers” to mean literally anyone! As the preamble to the rule states, “…the term ‘consumer’ is quite broad, and includes anyone who consumes or uses an economic good.” In other words, the term means anyone who consumes anything—you, me, or someone living in a completely different area code from the incident. This flawed definition opens the door to allowing people with no real knowledge of an incident or with ulterior agendas (competitors, advocacy groups, lawyers) to flood the database with unreliable reports and misuse or mislead the consumers we were intending to help.

Congress would not have bothered to include additional categories if it had meant for “consumers” to cover everyone. If Congress wanted anyone to post (accurately or not), it could have: 1) written the law to say that; 2) left out any list of who can submit, or; 3) provided a sixth category of “others.” But it didn’t. In point of fact, the current definition of “consumers” in our draft rule runs counter to the statute and blatantly ignores the intent of Congress to provide reliable, accurate information for the public's use.

More to come…

Garbage In...Garbage Out

2010-10-27T18:16:00.005-04:00

Over the next few weeks, I will explain in detail the *MAIN FLAWS* in the database rule as currently proposed. It is my hope that this Commission will listen to the commenters and make significant, necessary changes before finalizing this rule:

Flaw #1: WHO CAN SUBMIT A REPORT

The CPSIA only mentions five categories of submitters: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities. Anyone looking at this list would see a common thread—these are all people who might have first-hand knowledge of the incident. Why would Congress have included this list, if it actually intended anyone to be able to submit a report? The answer is, it didn’t. Thus, the rule’s list of submitters should not include those who have no relationship to the incident in question.

But as currently conceived, anyone will be able to submit a “report of harm” to the new, public database—even if the submitter does not know who was harmed, the particular product involved (let alone the exact model), and did not see the incident occur. As of right now, in a national database full of incidents across all consumer products (everything from toasters, to ATVs, to furniture), we are not even limiting who can submit to people who have first-hand knowledge of an incident!

Why is this important? Because Congress intended to create a useful, accurate database for consumers wishing to make a purchase. But this database will not be useful to consumers if random bystanders, attorneys, advocacy groups or even well-intentioned citizens without key facts can fill it with unreliable reports. It will simply be garbage in…garbage out.

More to come…

"I can't hear you...I’m not listening"

2010-10-22T12:38:00.003-04:00

This week’s consumer database hearing confirmed what I have feared since the NPR was released….this commission simply is not interested in listening to your concerns. More than 2/3 of the comments we received indicated that a more narrow definition of “consumer” or “others” would improve the accuracy and reliability of the database---something that is imperative for both consumers and manufacturers that will be using it. A massive public database with unverified complaints and no limits to what can come in (with a self-verification check box and disclaimer that barely pass the laugh test…) is useless to just about everyone but perhaps trial lawyers and advocacy groups looking for someone to sue or a new industry to regulate…..

I hope there is still a chance that the final rule will contain enough improvements to bring some common sense to this massive endeavor.

"The Miley Cyrus Standard"

2010-10-14T17:43:00.003-04:00

Thought you'd be interested in this Washington Times Op-Ed that points out more confusion caused by the Definition of Children's Product and "the discordant effects of big government that apparently can't be tamed."

EDITORIAL: Bureaucrats way out of tune

Definition of “Children’s Product:” Whether you’re in, might be in, or still confused...Welcome to the black hole of CPSIA regulation!

2010-09-29T14:54:00.017-04:00

Today, the Commission had a golden opportunity to put a fence around those products definitely covered by the CPSIA as well as exclude those products which we know pose no risk and which do not HAVE TO fall under the statute. The comments received by the public on this proposed interpretive rule defining “children’s product” by and large asked for just this type of clarity. They also made the case for how a number of everyday, safe products could be reasonably excluded from the requirements of the CPSIA—given, of course, that the law has nothing to do with risk.

But instead, the Commission went in the opposite direction, adding in more products than required and adding products even beyond what was first proposed to the public.

The consequences for whether a product is “in” or “out” of the definition are tremendous: if you’re in, you must pay to have your product (every piece of it) third-party tested, certified, and have a tracking label—which has led many small businesses to leave the children’s market or simply close their doors. Oh, and if you make a product for ages in the grey area (age 10, 11, 12….and older) and really needed this rule to let you know where you stand, you may just now be realizing that the final answer is “it depends!” –which means, somebody out there (i.e., the CPSC, a state attorney general, a retailer) may consider your product a children’s product. Manufacturers of furniture, clothing, or products made for the “tween” years may be learning for the first time that they’re even subject to the law’s non-risk-based lead-content standards.

So much for trying to reduce unnecessary government regulation, protect jobs, and preserve choices for consumers—so much for common sense.

Click here for my official statement on the Final Interpretive Rule: Interpretation of a Children’s Product

ALSO: Read the AP story and New York Times Front Page story covering this issue

“I’m from the government and I’m here to help you!”

2010-09-23T13:00:00.003-04:00

A brand new “Office of Education, Global Outreach, and Small Business Ombudsman” at the Commission is being advertised as a way to help small businesses impacted by the CPSIA—something that may be taken as a cruel joke by those businesses that have already been forced to close their doors or are exiting the children’s product market. What help will a new government office for “outreach” be able to provide, if we as a Commission continue to do very little to mitigate the unintended consequences of the law through our own regulations? Not much……

That is why I could not support today’s vote to create a new government office at the CPSC dedicated to outreach and education.

Furthermore, new government offices or programs, no matter how small, take on a life of their own. They grow and grow—no matter how innocent the original intentions of their creators. It is precisely such mission creep in federal spending that continues to make headlines every day and with which the American people are fed up. Congressman Paul Ryan (R-WI) and American Enterprise Institute President Arthur Brooks said it best in their recent op-ed in The Wall Street Journal:

"Individually, these things might sound fine. Multiply them and add them all up, though, and you have a system that most Americans manifestly oppose—one that creates a crushing burden of debt and teaches our children and grandchildren that government is the solution to all our problems. Seventy percent of us want stronger free enterprise, but the other 30% keep moving us closer toward an unacceptably statist America—one acceptable government program at a time."

Are we listening? I don’t think so…

Click here to read: "The Size of Government and the Choice This Fall"

Click here to read my official statement

Egg-stra regulation!

2010-08-26T10:16:00.004-04:00

Creating knee-jerk federal regulations in the name of safety isn’t the answer…

Check out Wally Olson's take on calls for more federal regulation of food-making due to the salmonella outbreak
The egg and I

The National Swimming Pool Foundation weighs in on pool safety

2010-08-23T16:58:00.008-04:00

The National Swimming Pool Foundation® (NSPF) recently sent a letter endorsing the Commission's implementation of the Virginia Graeme Baker Pool & Spa Safety Act.

“NSPF believes the Commission has taken a sound technical position on this topic and it is correct in the assertion that vacuum release systems do not protect against most forms of entrapment to the degree an unblockable drain.” - NSPF

Because some special interest groups continue to generate press to the contrary, I thought it was important to circulate feedback from NSPF, a group with a long history of promoting pool safety.

The full text of the letter is copied below or you can enlarge the picture to see the original.

Click here for my statement on the Implementation of the Virginia Graeme Baker Pool and Spa Safety Act

August 11, 2009

The Honorable Anne Northup
Commissioner
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Dear Commissioner Northup,

The National Swimming Pool Foundation® (NSPF) has read and supports your position statement on unblockable drain definition relative to the Virginia Graeme Baker Pool & Spa Safety Act. NSPF believes the Commission has taken a sound technical position on this topic and it is correct in the assertion that vacuum release systems do not protect against most forms of entrapment to the degree an unblockable drain. In addition, we applaud the CPSC’s efforts to fulfill the Act’s educational requirement since prevention of drowning and entrapment is paramount!

We understand that the Commission has been challenged by petition, letters and public media efforts to influence the Commission to change its ruling. We urge you to maintain your position.

NSPF is a non-profit organization dedicated to the health and safety of those who use aquatic facilities. NSPF has given over 3.7 million dollars in grants since 2003 to prevent drowning, illness, injury and entrapment and to demonstrate the health benefits of aquatic activity. The Foundation works towards its mission to encourage healthier living through aquatic education and research with its collection of educational materials training over 240,000 professionals since 1982.

It is important that we stand united to implement solutions that will work rather than those that may appear positive - yet have limited value. We applaud your efforts and admire your sound reasoning.

Please let us know if we can provide any assistance in this matter.
Respectfully,

Thomas M. Lachocki, Ph.D.
Chief Executive Officer

Tracynda Davis, M.P.H.
Director of Environmental Health

cc: I. Tenenbaum, CPSC; T. Moore, CPSC; N. Nord, CPSC; D. Lamborn, US House of Representatives

4775 Granby Circle • Colorado Springs, CO 80919-3131 719.540.9119 • 719.540.2787 (FAX) • www.nspf.org

Here It Is: Popular Toys Parents Can No Longer Buy for their Children Because of the CPSIA…

2010-08-19T11:44:00.003-04:00

For some time now, we have been worried about the impact of the CPSIA on jobs, cost and fewer choices. We worry about the number of businesses leaving the children’s product market, the increased costs of new testing requirements that are completely unrelated to risk, and global companies that simply stop selling in the United States because the costs are too high. Now you can see for yourself right off of this company’s website: popular toys that are no longer available to parents in the U.S. due to the CPSIA.

Endangered and Extinct Toys

Summer reading:

2010-08-18T09:43:00.003-04:00

Thought you might find this editorial in The Washington Times regarding excessive regulation interesting. The author got it exactly right. Excessive regulations kill jobs. I have seen it first hand: some businesses just leave the market, small businesses struggle to comply and new startups will never be able to enter our market. So sad.

EDITORIAL: The red tape stimulus

New costs, no common sense

2010-08-11T15:21:00.004-04:00

Even though the safety considerations for mattresses, clothing textiles, carpets, and plastic vinyl are exactly the same for children as for adults, the current successful testing requirements for these products will no longer be enough. Now the Commission’s decision to treat “general product safety rules” as “children’s product safety rules” will require new third-party testing of the children’s versions of these products in CPSC accredited specialty labs. These additional testing costs are being layered on top of testing that has been carefully designed based on science-based protocols that are already known as the “gold standard” in safety.

I do not believe that the Consumer Product Safety Improvement Act requires this new, additional third-party testing that the Commission’s recent string of decisions mandated. These tests will not reduce risk and will ultimately harm productivity, increase cost and limit consumer choice. For instance, government regulation is cited as a major obstacle to new business start-ups or to expansion.

Most Americans will never learn about highly technical regulations that our agency recently passed. But they will be paying the price in higher costs, fewer choices and lost jobs. So, the next time you hear a commentator ask a guest, “What would you do to increase jobs or reduce government spending?”…think about the cost of government regulation…

•Commissioner Northup’s Official Statement on 3rd Party Testing for Flammability of Carpets & Rugs, and Vinyl Plastic Film: Requirements for Accreditation

•Commissioner Northup’s Official Statement on Testing the Flammability of Clothing Textiles, Mattresses and Mattress Pads, and/or Mattress Sets: Requirements for Accreditation of Third-Party Conformity Assessment

ALERT - the Commission needs your feedback regarding moving to 100ppm lead!

2010-07-26T10:20:00.001-04:00

As many businesses may not yet know, the CPSIA requires that the lead content limits for children’s products automatically be lowered to 100ppm (from 300ppm) by August 2011. Essentially, all children’s products will have to be “lead-free” by that time, even if becoming lead-free provides zero additional safety benefit for children. The Commission is now asking for industry feedback on the “technological feasibility” of reducing the lead in their products to 100ppm—is it even possible? And what will be the consequences? Please see the link below on our website. I strongly encourage those that are affected to respond!

Draft Federal Register Notice: Request for Comments and Information - Technological Feasibility of 100 ppm Lead Content Limit for Children's Products, July 13, 2010 [PDF]

Myth #4: The Pool Safety Council has no financial interest in secondary systems.

2010-07-12T17:02:00.002-04:00

Just as health insurance companies lobby Congress and federal agencies for healthcare solutions that benefit their bottom line, it is not surprising that people who develop and sell back-up systems created an association to promote the use of their product. In fact, the founder of the Pool Safety Council, a group that has lobbied Congress and other organizations to require that all pools have back-up system technology, was the President of a back-up system manufacturer until only this past February.

The Pool Safety Council is promoting their petition claiming the CPSC “reversed their guidance of the Virginia Graeme Baker Pool and Spa Safety Act (VGB), removing important entrapment prevention requirements.” However, unblockable drain covers are the safest form of protection against entrapments. They are the only safeguard against all five types of entrapment and the only choice that prevents entrapment from occurring in the first place. If we had not found an unblockable drain cover to be sufficient, there would be no incentive for pool owners to install unblockable drain covers in addition to a costly back-up system, and thus pools would not have the most effective form of protection.

The petition goes on to say, “The reversal brings into question the influence representatives from the pool industry have in CPSC's decision-making process.” In fact, no group has pressured CPSC more than the Pool Safety Council. Speaking for myself, I have had no communication from any other pool representative except for those that have a financial interest in requiring back-up systems. I consider it a triumph of safety over special interests that despite all the pressure from those who have financial interest in requiring back-up systems, that the CPSC decided to adopt a new, safer technology. The Pool Safety Council lobbies for a tighter definition of unblockable drain because pools with unblockable drains are not required to buy their product!

The Commission is responsible for making decisions that promote safety and in this case, making sure that every public pool is as safe as possible. When we adopted the determination that an unblockable drain cover is equivalent to an unblockable drain, we made that decision based on safety.

For more information on the founder of the Pool Safety Council, click here: Pennington Leaves Vac-Alert

Have a safe weekend at the pool!

2010-07-09T17:38:00.008-04:00

Myth #3: “The Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) focuses on entrapment because that is the leading cause of drowning.”

Facts: Unfortunately, an average of 385 children lose their lives playing in the pool each year and the CPSC has made preventing these terrible tragedies one of our highest priorities.

Are entrapments the primary cause of these incidents? No. While entrapments are the main focus of the VGB Act, they are a very serious but rare type of drowning incident. Of the roughly 3,400 drowning deaths that occur each year in the United States, entrapments account for about 1 per year. Of the 12 entrapment deaths since 1999, only 5 occurred at public pools or spas. Since only public pools and spas are addressed by the VGB Act, over half of entrapments would not even have been prevented by the Act.

That is why I am so excited that the CPSC has launched “Pool Safely,” a national public education campaign designed to raise public awareness, support industry compliance, and improve safety at pools and spas. Pool Safely emphasizes the importance of alert adult supervision and swimming lessons for children as well as learning CPR, installing pool alarms, and placing gated barriers around pools. Through Pool Safely, we are able to educate the public about many water safety practices to reduce the risks associated with children in and around pools and spas – not just entrapments.

Conclusion: The VGB Act addresses a rare, but serious type of drowning incident and we have implemented the law to address this issue. But the Commission has gone further to raise awareness and promote drowning prevention through a national public education campaign because entrapments are not the leading, nor even a significant cause of drowning. It’s too bad that the Pool Safety Council has not done the same and has only dedicated one sentence on their entire website to prevent the other ninety nine percent of the child drowning cases that were not due to entrapment.

Stay tuned next week for more myth’s!

And check out http://www.poolsafely.gov/ to learn more simple steps to save lives!

Some More Facts...

2010-07-08T12:08:00.009-04:00

Myth #2: “But Congress said all pools should have back-up systems.”

Facts: Actually, the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) specifically exempted pools and spas equipped with unblockable drains from having back-up systems. Did Congress make a mistake? No, it makes perfect sense not to require back-up systems because as I said yesterday, unblockable drains are the safest, best way to prevent entrapment. Fortunately, there is a new and affordable technology available known as an “unblockable drain cover” that converts a blockable drain into an unblockable drain. Because the Commission found these covers to be equivalent to an “unblockable drain,” people will be able to choose the safest option. If we didn’t, people would be unlikely to install unblockable drain covers in addition to costly back-up systems, and therefore they would not have the safest pools possible.

COMING SOON: Myth #3 - "The VGB Bill focuses on entrapment because that is the leading cause of drowning."

For more information, click here for my statement.

Time for Some Facts

2010-07-07T12:40:00.008-04:00

In March, the Commission reached a bi-partisan decision on how to reduce the risk of entrapment in public pool and hot tub drains. However, several articles have recently reported that the Commission’s vote was an "egregious” misinterpretation of the law—implying that safety took a back seat. Today, I am starting a series of blog posts to debunk the myths surrounding our decision regarding the safest, most accurate implementation of the Virginia Graeme Baker Pool and Spa Safety Act.

Myth #1: The CPSC’s interpretation of “unblockable drain” doesn’t provide the protection required by the law.

Facts: Unblockable drain covers are the only solution that prevents all five types of entrapment. The back-up systems mentioned in the Act only address some of the potential scenarios. For example, some of the back-up systems deal with suction body entrapment and some limb entrapments but would not prevent hair, mechanical, or evisceration entrapments. Of the 11 entrapment drowning deaths from 1999-2009, three were hair entrapments and one was an evisceration, meaning that at least 36% of these deaths would not have been avoided had a back-up system been in place.

Moreover, preventing entrapments in the first place is the best solution to the threat of entrapment drownings. Back-up systems require an entrapment incident to begin to occur before they respond, and even then they may not be able to stop it!

Conclusion: The Commission chose the safest solution that offers the most protection to the public through superior technology and more entrapment prevention.

For more information, click here for my statement.

STAY TUNED: Tomorrow's myth - “But Congress said all pools should have back-up systems.”

USA Today reports on the costs of CPSIA

2010-06-17T13:30:00.002-04:00

Lead testing can be costly for mom and pop toy shops
USA Today's Money section profiles a family owned business that was booming with safe toys three years ago but now is struggling to keep its doors open because of CPSIA...

To the Class of 2010: Beware of the CPSIA

2010-06-16T17:38:00.005-04:00

Successful entrepreneur Phebe Phillips was invited to speak at the Texas Women’s University Commencement in May and shared with the graduates how the Consumer Product Safety Improvement Act has Forced her to close down her business...

Wally Olson at Overlawyered.com brought this story to my atention and I wanted to be sure to share it with you.

Click here to read Phebe Phillips' speech

Because Money Isn't Free...

2010-06-07T17:32:00.002-04:00

Last week the Commission had to decide what we should do with $7.1 million of anticipated unspent funding for this year.

Every year every federal agency has money that’s been appropriated but is unable to use as budgeted for a variety of reasons: a staffer’s salary is appropriated, but that staffer hasn’t been hired yet; a project is completed early or is behind schedule; the costs of a project were lower than expected, etc. When that happens, the agency is confronted with thinking up new ways to spend the money, or it can give the funds back to the U.S. Treasury.

Here at the CPSC, we had $7.1 million allocated for purposes that no longer needed that much money. I thought this would be a good chance to do what most Americans would want every agency to do and give the unspent money back.

The federal debt is over $13 trillion and this year’s deficit will exceed $1.4 trillion. And while $7.1 million won’t make up the difference, if every agency started to do the same, we could start to restore a balanced budget.

Unfortunately, I lost the vote 4-1 and the Commission is finding other ways (of course) to spend the money. I’d be interested in your thoughts on this …

For my official statement, click here

Anyone noticing a pattern here?

2010-05-27T16:38:00.005-04:00

I thought you may be interested in Hugh Hewitt's recent article, "Regulation costs jobs, slows growth" in the Washington Times...

Hugh Hewitt: Regulation costs jobs, slows growth

Survival of the fewest...

2010-05-12T17:19:00.006-04:00

Why save a few and let the rest drown?

That’s what the Waxman proposal (CPSEA) would do since it only helps relieve some thrift stores and possibly ATVs and bikes from the burdensome costs of complying with the CPSIA.

It’s not that I disagree with relief for these few – but why not craft a proposal that fixes the problems with the CPSIA for everyone who makes safe products? One criteria in this proposal for granting relief is that it cause no “measureable adverse effect” on a child’s health. Well, of course. In reality, the only criteria that should ever matter when it comes to the CPSC regulating a consumer product is whether it poses a risk!

I don’t really want to beat up those getting relief, but I do want to point out the ridiculousness of letting off a few and not everyone. The fact is, if these children’s products were actually unsafe, there would be relief for no one.

Careful what you wish for!

2010-05-11T17:04:00.004-04:00

Imagine my surprise when I logged into my personal Facebook account and the first item on my “news feed” was from my friends at the Handmade Toy Alliance encouraging people to call their Representative in support of the Waxman proposal to “fix” the CPSIA!

Even CPSC staff has expressed concern that the small batch provisions will require the Commission to approve any “alternative” test methods on a product by product, rule by rule, basis (How long will HTA members wait on the Commission for all these new regulations?)…and there’s a degree of uncertainty about what an alternative test could even mean (and will it “assure compliance”?) ...and of course, a majority of Commissioners likely will have to vote to approve each of these alternative test methods (can anyone read the tea leaves on those votes?)…

Turns out, it may not be the gift you were wishing for...

The clock is ticking....

2010-05-10T15:38:00.008-04:00

Today the CPSC released the proposed rule for the notorious Public Database (aka the Publicly Available Consumer Product Safety Information Database). I’m sorry to say that it was drafted exclusively by the Majority Party Members of the Commission with next to no input from the Minority Members. As a result, the draft rule is very one-sided in its treatment of accuracy, privacy, and usefulness concerns. Here is an unsolicited (though I believe correct) view that was published independently or you can click here to read my official statement.

The public now has 60 days to comment, so please do yourself a favor and examine this rule carefully! AND COMMENT!

Don't confuse me with the facts...

2010-04-20T14:04:00.005-04:00

Despite the high costs of compliance, loss of jobs and declining product selection due to CPSIA, Chairman Waxman is pursuing his amendment to provide a very narrow exception to only two groups while small businesses are being driven from the children's product market even though their products do not pose genuine risks to children.

As Congress debates ‘too big to fail’ here’s what the government is doing to Main Street…

2010-04-19T16:14:00.006-04:00

As a Kentuckian who knows how badly we need more jobs, it's a shame to hear from a local hometown business who is genuinely trying to comply with the CPSIA, but finding that the costs are so great that they simply cannot afford the testing. Please read the letter I received below and if you have a similar story, email it to me at Commissioner_Northup@cpsc.gov.

"Last week we selected several more products to eliminate from our product offerings. The products are safe, do not violate any of the CPSIA standards and have been around for over 50 years, but they are too complicated and have too many different parts. Therefore they are too costly to have tested and retested over and over again to prove they are safe. I hope some small companies and some decent product selection can survive in this new world where all products are presumed to be guilty. The only survivors will be the ones that are safe and can also afford to prove they are safe.

The group of items that we decided to discontinue are several kinds of dolls that have lots of different colors and accessories and some plastic to test for phthalates. We would have an average about $1500/doll each time we had to test due to a batch change. If we order them 3 times per year it would be $4500/doll in testing costs to be certain that nothing had changed from any of the suppliers that provide the raw materials that make up the doll parts and/or colors and accessories. With 26 different types of dolls, that would come out to $117,000 per year we would spend on testing. Based upon our sales volume we would lose money every time we order the doll.

This week we are dealing with another toy item that had a piece of PVC pipe as part of the toy. We tested the pipe which is a common pvc pipe like millions of people have in their homes and drink water from each day. We found that the pvc is slightly over the minimum acceptable for one of the phthalates. We are now spending $12,000 (more than doubling the cost of the toy) to replace the pipe components and to expedite shipping so we minimize the amount of money and customers we lose to competitors for this item. If phthalates in water pipes aren't hurting anyone, then how can the pipe in this toy cause a problem? We are spending the money, delivering a revised toy at a loss and complying with the law because we fear being put out of business with a large fine, not because we are saving some child from a dangerous encounter with this product.

I guess we and other small companies will continue to shut down product offerings, reduce employees, reduce our income taxes and eventually there may not be enough money to fund the wasteful efforts from Washington. Nature has a way of correcting problems even if we aren't clever enough to do it on our own. I hope somehow we can find a way to curb this monster and get back to focusing on safety issues.”

This blog should come with a warning label

2010-04-14T18:28:00.010-04:00

As my blog is entitled "Safety And Common Sense" and we are trying to find a balance between safety and a vibrant market, this article seemed especially appropriate...

"WARNING: This Column May Be Hazardous" By Tim Rowland

Chomp, Chomp

2010-04-12T11:52:00.008-04:00

Hugh Hewitt warns that the Database Monster will devour American business

Later this week, the Commission will be voting on a proposed rule on how we will be implementing the consumer database, a publicly available consumer product database with reports of harm that can be generated by just about anyone—and on any consumer product from baby cribs to toasters. If you haven’t heard about it, Hugh Hewitt’s article above sums up the different abuses that could crop up from the “reports.”

In Case You Missed It...

2010-04-08T17:50:00.004-04:00

A Wall Street Journal editorial this week defines Waxman’s proposed “functional purpose” exemption perfectly – “A fix of a bad law that is no fix at all.”
Click here to read the WSJ editorial, "Waxman's Lead Poison"
Click here to read my letter to Congressman Waxman

Blogging About Our Blog

2010-04-07T17:51:00.008-04:00

There's hope! Isn't it great that someone as highly regarded as Hugh Hewitt understands the importance of the Consumer Product Safety Improvement Act (CPSIA) and the negative impact it is having on small businesses? I had the honor of joining Hugh Hewitt on his national radio show Monday where we discussed the loss of jobs and high costs of the CPSIA. Didn't somebody famous once say "It's the economy, stupid"?

"Her blog --unique among appointed officials in D.C. in its transparency and its specificity--ought to be a model for federal appointees dealing with controversial subjects like the CPSIA."

Thanks, Hugh - you're terrific!

Click here for a transcript of my appearance on the Hugh Hewitt Show

No Foolin’ Here – CPSC Issues Reasonable Definition of a “Children’s Product”

2010-04-02T16:09:00.001-04:00

This week I was pleased to join my fellow Commissioners in approving the proposed rule on the definition of “children’s product” because I believe it is a sound attempt at interpreting this term in the clearest, most flexible manner for manufacturers and consumers. As we wait to see if Congress will amend the law to address its overreach, including lowering the age range to a more risk-based scope, this proposal at least helps us to focus the age limit downward.

It is important that the agency receive as much feedback as possible on this proposed rule, particularly from the manufacturers whose products occupy the “grey area” between the pre-teen and teenage groups or that produce items intended for both children and adults. So please go to www.Regulations.gov and submit comments in the next 60 days!

Click here to read my full statement.

March Madness – Waxman style

2010-03-19T17:33:00.001-04:00

In response to Chairman Henry Waxman’s request for reaction to his proposed fix to the CPSIA, I have submitted a letter noting that the draft falls woefully short of resolving the problems with the statute I have witnessed since joining the Commission last August. Unfortunately, the so-called functional purpose and low-volume manufacturing exemptions contained in the draft bill are too narrow, expensive, and uncertain to provide much relief.

To read my full letter, click here.

Are we seeing a pattern here?

2010-03-17T13:56:00.005-04:00

The Product Safety Letter summarizes last week's public meetings of the US Association of Importers of Textiles and Apparel's (USA-ITA), sharing how they are affected by the excessive costs of the CPSIA…

“Several representatives of USA-ITA companies told Northup that they have quit selling certain items to avoid the rigors of CPSIA testing. ‘We completely got out of children’s jewelry.’”

“Said another, representing a company that sells t-shirts, the shirts’ designs now feature less colors to cut down on testing costs.”

They are “hard-hit by having to meet the dual requirements of federal standards and those set by U.S. states”

(Product Safety Letter, March 15, Northup Says riders May Be Best Chance for CPSIA Change)

Ever wonder how the IRS Tax Code got so complicated???

2010-03-16T20:43:00.002-04:00

Congressman Henry Waxman’s proposed fix to the CPSIA has been released to the public. Now is the time to weigh in on how this would work for you. Specifically, these are my questions:

- Could your company (or anyone you know) afford to petition the agency in order to prove that the lead in their product serves a “functional purpose,” that it’s “not practicable” to remove, and the other new requirements?

- Note the further limitations under sections entitled: “burden of proof;” “admissible evidence;” “limitation on exception,” and; “narrowest possible scope of exception.” Do these requirements set a bar that you can reach? Would the cost to apply for such an exemption exceed the benefits?

- Does this proposal do more to discourage companies from the hope of an exemption, rather than provide a hope of flexibility?

- How many small businesses could qualify for the “relief for small manufacturers” on testing costs with such a narrow definition of “low-volume”?

- And a rhetorical question: Why would we ask companies (and our own agency staff) to do all of this new work for perfectly safe products to begin with?

If the expansion of the tax code is any reminder….a fix that’s not necessarily a complete fix, yet adds loads of paperwork and time-consuming, complex, costly, new requirements—is probably not a fix.

Please email me at Commissioner_Northup@cpsc.gov

Hit’em again! Hit’em again! Harder! Harder!

2010-03-12T11:53:00.004-05:00

In today’s vote on the Final Rule Interpreting Civil Penalties, the Commission had a chance to moderate some of the CPSIA’s harshest effects by incorporating a reasonable enforcement regime. While the new law greatly expands the allowable penalties, this is one area, and one of the few, where the law is not completely prescriptive. Here the CPSC had freedom to use its creativity and expertise to do what it does best: evaluate risk as an important factor. Unfortunately, I do not believe the lightweight language in the rule is sufficient to encourage good corporate citizens to stay in the game.

By refusing to say that we will not swat flies with sledgehammers, we instead leave people guessing and wondering if the stakes are too high to risk entering the children’s product market.

To read my official statement, click here

Oops there goes another rubber tree...

2010-03-09T11:35:00.001-05:00

You may have seen last week’s article in the Product Safety Letter in which the CEO of American Home Furnishings Alliance told Commissioner Northup that “…some of the member-companies, many of them small businesses, were leaving the youth furniture market because of fears of increased costs due to the new CPSIA requirements.” (Product Safety Letter, March 1, Commissioners Open to Exemption Request from Furniture Makers)

So the next time you are wondering why there are fewer choices in the children’s furniture market…

Unblockable Drain Cover Vote Ensures Safer Swimming

2010-03-08T15:21:00.001-05:00

We won a narrow victory for safety and common sense last week when a bi-partisan majority of the CPSC voted 3-2 to interpret the Virginia Graeme Baker Pool and Spa Safety Act to treat pools fitted with unblockable drain covers as compliant. Commissioners Nancy Nord and Robert Adler joined me in the majority. The Commission’s professional staff reviewed the various alternatives and recommended unblockable drain covers as the best solution to the entrapment risk for several reasons. Unblockable drain covers are the only (let me repeat, only) solution that works for all five kinds of entrapment. Unblockable drain covers prevent an entrapment from occurring in the first place, whereas other back-up systems kick in only after someone gets into trouble (if then). To learn more about why I supported the decision, you can read my statement here.

Some pool safety advocates have criticized the agency’s decision, claiming that the vote puts swimmers at great risk. In truth, of the roughly 3,400 annual drowning deaths in the U.S., an average of less than one per year occurs as a result of a drain entrapment in a public pool or spa. Because we do not have good data on how many people are exposed to blockable drains each year, we cannot ascertain a true risk level. However, unblockable drain covers offer not only the safest but also a cost-effective solution to the drain entrapment problem. I believe they will save more lives and prevent more injuries than the other alternatives.

BREAKING NEWS – Commissioners support an economic impact analysis of the CPSIA

2010-03-05T13:59:00.008-05:00

I know that you will be happy to hear that both Chairman Inez Tenenbaum and Commissioner Nancy Nord agreed on the need for an economic impact analysis of the CPSIA at this week’s congressional hearing before the House Appropriations Subcommittee on Financial Services.

Given that the question of economic data was brought up by Ranking Member Jo Ann Emerson and that Congress has been considering ways to amend the CPSIA due to its unintended economic consequences (see our Recommendations to Congress and my personal statement here), it is clear that our agency should be making these studies a priority.

Just as you have expressed concerns about the CPSIA's impact on our economy, it is clear that Congress shares those same concerns. I believe we should be doing everything we can to define and aggregate the economic impact of the law and I look forward to starting these studies soon!

Jobs and the CPSIA

2010-02-23T09:12:00.007-05:00

What's Haunting America's Toy Industry?

"At a time when the federal government should be doing everything possible to preserve jobs and stimulate economic growth, the CPSIA is doing the exact opposite. In effect, it is essentially anti-stimulus legislation."

Let us know how CPSIA is affecting jobs in your business. What changes can we make at the CPSC to mitigate the impact of the CPSIA? Or do you think a change in the law is needed? Suggest a change here or email me at Commissioner_Northup@cpsc.gov.

Was Toy Fair a "Big Deal" to you?

2010-02-19T10:36:00.001-05:00

The Toy Industry Association's Toy Fair was held this week in New York City, and while I unfortunately wasn't able to attend, Mark Chenoweth from my office enjoyed meeting many of you. It was a great opportunity for us to hear from a variety of toy makers, see the latest and greatest toys, and get a feel for your reactions to the emerging and pertinent issues facing the industry.

As you know, I am very interested in your experience and would love to hear what you have to say about this year's Toy Fair:

- What did you learn, particularly about the CPSIA and CPSC?

- Do you feel more confident now than you did before the Toy Fair?

- Was the CPSIA a topic of conversation between you and non-CPSC staff? If so, what was the general consensus?

- How was this year's fair compared to past ones as far as attendance and morale?

Your feedback is much appreciated! Email me at Commissioner_Northup@cpsc.gov

Report to Congress - Starring YOU

2010-01-27T11:31:00.004-05:00

CPSIA Update: So We All Agree, Then? Congress Must Act!

In this blog post, The National Association of Manufacturers recognizes how important your stories are to show the Congress the impact of the CPSIA!

"[Northup] attached written comments from trade association and individuals — including people who have their own crafts and small businesses — that effectively buttress her recommendations. (Northup’s Dec. 24th opinion column in The Wall Street Journal, “There Is No Joy in Toyland,” helped move the debate in the right direction.)"

The U.S. Isn't as Free as It Used to Be

2010-01-22T15:09:00.001-05:00

The U.S. Isn't as Free as It Used to Be

I know you will especially appreciate the above article from the Wall Street Journal.

It reports that America has dropped in regard to being “economically free” according to the new 2010 Index of Economic Freedom. We could fix this if we can find a way to help our nations entrepreneurs and small businesses without over-burdening them with unnecessary compliance costs!

Letter to the Editor

2010-01-20T17:08:00.005-05:00

In response to a letter to the editor (A Partisan Assault on Child Safety Law, December 31) regarding my December 24th op-ed in The Wall Street Journal, I wish to make several points:

First, regarding the letter’s assertion that there is “bipartisan” support for the CPSIA:

- At least 11 bills have been introduced since the CPSIA’s passage to amend the law to avert its unintended consequences, including some bills by Democrats.

- Members of Congress on both sides of the aisle have written more than a dozen letters to the Commission to request leniency in the law’s requirements for small businesses, exemptions for specific products they feel should not have been impacted by the law, and other changes. To date, the Commission has not addressed these concerns due to a steadfast determination to narrowly interpret the statute.

- Last month, Congress (both Democrats and Republicans) explicitly asked the Commission to report back to them with recommendations on ways to amend the law to make it more workable – a report which was submitted on January 15th.

- For the past year, Republicans in Congress have requested that the Majority hold hearings with stakeholders on the CPSIA, to no avail.

So, to infer that the CPSIA still holds bi-partisan support is absurd and completely false.

Secondly, regarding the “bio-availability” of lead in children’s products, there are terms like these used by non-scientists, the media, as well as CPSC Commissioners describing lead that are worth taking a moment to explore. The author of this letter uses a few of them:

- “Exposure” – The concept of “exposure” to lead is broad. “Exposure” in this context can mean that a product with lead (i.e. your house keys) is in the same room as the person “exposed.” Thus, if you are “exposed” to unsafe levels of lead, this does not necessarily have anything to do with whether you lick it, digest it, or in any way consume it so that it gets into your bloodstream.

- “Absorbability” or “bio-availability” – Not to be confused with “exposure,” the absorbability of lead would mean, for example, when you touch a bicycle handlebar and then lick your fingers, how much lead actually gets into your bloodstream? Very, very, very little, if any. If you continued to touch that handlebar every day and lick your fingers afterwards, there is no plausible possibility you would be at risk of absorbing too much lead.

But more importantly, absorbability is where experts (Centers for Disease Control, National Institutes of Health) have found that lead paint in old houses as well as lead in dirt near old gas stations can be very dangerous for small children. In other words, the risk of absorbability with lead paint in an old home that becomes chipped is quite high. The CDC advises that children under five years old with blood lead levels greater than 10 micrograms of lead per deciliter of blood be treated to prevent lead poisoning (http://www.cdc.gov/nceh/lead/.)

However, none of these agencies has ever found that a child touching or mouthing the brass on a toy car, playing a brass musical instrument, touching a vinyl lunchbox, or riding a bicycle, could ever rub off enough lead, day after day, to ever affect his or her health. Yet, these are the types of products outlawed by the CPSIA.

If you are concerned about “exposure” to lead (as the author of this letter may be), which does not necessarily have anything to do with ingesting lead or a health risk, then you may be interested in simply banning lead in all consumer products, everywhere – with no resulting health benefit at the end of the day. But if you are concerned with the “bio-availability” or “absorbability” of lead and what products actually could cause a rise in the blood lead levels of young children, as I am, you would prefer a policy allowing for de minimis absorbable lead (e.g., as the Food and Drug Administration permits 1 microgram of lead in a piece of candy) where a child is not at risk, combined with a focus on heavy enforcement for items that do pose a risk, like the solid-lead small parts or jewelry referred to in the author’s letter that can be swallowed and absorbed—as well as lead paint in old homes.

I appreciate an open, thorough debate on the science behind these issues and welcome comments. It is essential that the facts and the science behind the risks of lead absorption be front and center as the Commission implements the CPSIA and Congress addresses recommendations to amend it.

My Recommendations to Congress

2010-01-19T14:35:00.006-05:00

I believe that the CPSIA should be amended to reflect the real risks associated with lead absorption. I wholeheartedly supported the consensus recommendations in the agency’s report to Congress, however, my statement suggested several additional amendments that were not included in the Commission’s consensus report:

1. Focus CPSC resources on what we know may actually harm children: Only require third-party testing and certification for products that may contain more than a de minimis amount of absorbable lead (i.e., an amount that could meaningfully raise a child’s blood lead level)

2. Provide the agency flexibility in treating products for 12-month-olds and products for 12-year-olds differently, according to risk: An 8-year-old is not going to suck on a bicycle tire valve stem, and it makes no sense to ban lead in such a component where there is no risk of harm to a child.

3. Give the Commission flexibility to provide relief to small businesses: We have been informed by agency staff that the current statute does not allow this.

4. Avoid adding new exclusions to the statute that would be arbitrary, subjective, unreliable, and only available to companies that can afford to petition the agency: For example, a so-called functional purpose exemption would be all of these things—and it would also radically transform the CPSC into a product pre-approval agency. Statutory exemptions should be written in such a way that those who qualify for them can take advantage of them without agency sign-off.

5. Allow thrift stores, garage sales, and other resellers to sell second-hand goods: Under the CPSIA, the statutory limits for lead and phthalate content prohibit resale, even where the agency has never found these items to be unsafe. This policy threatens to put an end to the second-hand children’s clothing market.

To read my statement that accompanied the CPSC report, click here

To read the CPSC's report, click here

Congress WILL hear you

2010-01-15T18:19:00.001-05:00

Today, my fellow Commissioners and I sent a report to Congress presenting some of the issues the Commission and the small business community have faced due to the unintended consequences of the CPSIA. I voted in favor of the recommendations in the report because I agree that statutory changes are needed. I also added a lengthy statement to the report with a number of more specific recommendations, including many of your notes and ideas.

Because of you and the concerns you shared with me, I had real life examples to show them about the costs and hardships the law is placing on America’s small business community. In my statement, I added an appendix with letters you have sent me – from the requests to extend the stay of enforcement to your recommended changes for the law - as this was a great opportunity to share the insights of people who are dealing with the unintended consequences of this law every day.

Together, we have a chance to persuade Congress that the CPSIA needs some changes – and I am hopeful that they will heed our requests and put this agency back on a course of focusing first on health risk and child safety and move away from interpreting and applying an unwieldy statute that has many provisions that provide little to no benefit for consumers.

Thank you for sending me your stories and recommendations and I hope you will continue to do so!

My appearance on Stossel

2010-01-15T11:53:00.006-05:00

John Stossel on CPSIA

Last night, I was honored to be a guest on John Stossel's new show, Stossel, on Fox Business. As we discussed the CPSIA and it's testing and certification requirements, I tried to convey to him the HUGE cost it is imparting on already safe toys - especially those made by small businesses and crafters. You should have heard the audience's reactions! When they learned that the Goodwill and other charitable organizations were not able to sell products that are NOT a real threat to children, they were outraged! Please watch and let me know what you think!

Six Of One, A Half Dozen Of The Other

2010-01-11T12:03:00.007-05:00

AP: Feds probe cadmium in kids' jewelry from China

Today’s AP/W.Post story shows a major unintended consequence of the lead content limits. By banning lead above 300ppm, Congress has led some manufacturers to make items containing cadmium at over 900,000ppm—which is far more dangerous than 300ppm of lead. A similar problem has emerged from Congress’s ban on certain phthalates. By not allowing manufacturers to use phthalates, which this agency has previously found to not be harmful, manufacturers have turned to using other plastic softeners that have not been tested or found safe by this agency.

A Note on the Sunshine Act...

2010-01-08T09:21:00.002-05:00

As we heard in Wednesday’s hearing, transparency in government is not always a sure thing. It is ironic that the very law that was passed to ensure openness and transparency in Commission activities, the “Government in the Sunshine Act of 1976” (5 U. S. C. 552b) actually does more to tie our hands in a 5-member Commission than to help us. That is why I believe strongly that we need a public hearing next week to discuss the recommendations the Commission will send to Congress on amendments to the CPSIA – before the January 15th deadline.

Once the President appointed a full bench to the CPSC last year, moving the membership from two Commissioners to five, the Sunshine Act requirement kicked in that more than two Commissioners are prohibited from being in the same private room with one another to discuss a pending matter---such as, the kinds of recommendations we should send to Congress to amend the CPSIA, or how we can find more flexibility in the law for small businesses. As a result, our only time for discussion amongst ourselves on these crucial issues is during our weekly public hearings over the webcast.

The consequences of avoiding direct communications with your colleagues (other than 1-on-1 discussions), an over-reliance on staff to fill the gaps, and finally, preventing any discussion of the matter in public are twofold: 1) As a Commissioner, my conversations with another Commissioner on these important topics quickly become meaningless after that Commissioner or myself have furthered the discussion at another time with one of the other three, and; 2) The spread of information from Commissioner to Commissioner (or through staff) often becomes a game of “telephone” where the fact or anecdote starts with one person, is passed to another, and may be barely recognizable by the time it gets to the other Commissioners. Stories take on a life of their own, as I have experienced firsthand, and significant things like facts get gently pushed aside in the interest of deadlines and schedules.

The implementation of the CPSIA is the most important issue before the Commission at this time. If we do not have an open, public discussion amongst the five Commissioners about why the CPSIA needs to be changed and what we will recommend to Congress, the facts and truth behind these issues will never fully see the light of day. Incorrect assumptions on the economic impact of the law or the science behind it will go unchallenged. There will be little to no “sunshine” on the Commission’s activities to make changes, or avoid making them, on a far-reaching law that has impacted thousands of families and businesses—and which we are running out of time to fix.

Transparency and the CPSC

2010-01-06T13:38:00.007-05:00

Today’s public hearing was certainly one of the more “spirited” ones I have participated in since joining the Commission! The fact that my motion was denied and we will not be openly discussing our report to Congress is a huge disappointment and really shows how important it is for you to share with me your ideas and thoughts on what changes should be made to the CPSIA. Please email me at Commissioner_Northup@cpsc.gov as soon as possible so your views are not completely shut out of the report we send to Congress (or at least my statement!)

To see today's hearing, click here
More information about today’s hearing: CPSIA - Transparency, Tenenbaum/Adler-style!

We aren't alone!

2010-01-05T11:44:00.001-05:00

In Case You Missed it: Lone Voice of Reason at CPSC

Glad to see that Angela Logomasini at the Competitive Enterprise Institute also thinks we need more common sense...

What to My Wondering Eyes Should Appear...

2010-01-04T15:16:00.005-05:00

'Can-do' vs. 'Stand-Pat'Entrepreneurs could be the key to recovery

Today's piece from the Washington Post by Robert Samuelson links economic recovery to entrepreneurship...and regulatory restraint. Here's hoping for a New Year's resolution at the CPSC to find the least costly regulatory policy to protect families and children from harm so that our children are safe and their moms and dads still have jobs.

My Op-Ed in The Wall Street Journal

2009-12-24T07:09:00.006-05:00

There is No Joy in Toyland

Today, the Wall Street Journal printed my op-ed on the CPSIA's disastrous unintended consequences. I could not have written this without your stories and experiences and I hope you will keep sending me more so we can usher in some common sense with the New Year!

Northup leads effort to extend the stay of enforcement

2009-12-17T21:19:00.003-05:00

Official Statement

Yesterday, Commissioner Anne Northup successfully sought an extension of the stay of enforcement for testing and certification requirements for lead content imposed by the Consumer Product Safety Improvement Act of 2008. The Commission voted 4-1 to extend the stay until February 10, 2011 instead of yesterday’s proposed date of August 10, 2010.

Statement of Commissioner Anne M. Northup on the Interim Enforcement Policy on Component Testing and Certification

2009-12-17T13:28:00.002-05:00

I voted to approve the Interim Enforcement Policy on Component Testing and Certification for lead content in order to provide guidance and more options to businesses who must comply with the law’s testing and certification requirements for lead, in the interim, before the Commission has completed a number of necessary rulemakings to implement the Consumer Product Safety Improvement Act (CPSIA).

While I support the issuance of this interim policy, which is necessary to provide some flexibility to the marketplace, I am hopeful that the Commission also votes to accept my amendment to the “Commission Action on the Stay” to extend the stay for lead content until six months after such time as we have finalized the 15-month rule on compliance and testing frequency as well as the rule defining a children’s product. In fact, this interim policy is only necessary because the Commission is still working on these two, crucial rulemakings. These two rules will provide fundamental information that businesses will need in order to make basic investment decisions on how they will come into compliance with the testing and certification requirements in the CPSIA. Without all of this information, and by lifting the stay prematurely, we would add to the confusion for companies trying to become CPSIA-compliant by creating one set of requirements shortly before we provide the marketplace with final, binding regulations which will be substantively different.

We also cannot ignore the fact that Congress has asked the Commission for recommendations on amendments and clarifications to the law in order to find ways to halt the unintended consequences of the CPSIA plaguing small businesses—especially as it applies to materials that in no way affect a child’s health. It is possible that Congress will reinsert “risk” into the statute to allow the Commission to account for whether a product or material could pose any real risk to children when issuing regulations on new testing and certification requirements. If they do, this will provide the Commission and the business community much more flexibility in approaching these new requirements.

Up until now the Commission has been engaged in a classic standoff with Congress. The legislature has pointed a finger at the agency for interpreting its statute inflexibly, and the agency has in turn pointed a finger at the Congress for writing an inflexible statute. For that reason, the Commission should take every opportunity to insert flexibility into these regulations and should be responsive to Congress’s most recent request to recommend clarifications to the law.

In that vein, I have listed below opportunities that were lost to improve this interim policy through increased flexibility, especially given that the Commission just held a two-day workshop on component testing where businesses presented a number of challenges that the Commission has not yet had time to address. In the following ways I believe the enforcement policy could have been strengthened:

With respect to risk:

• It is important to keep in perspective as we move forward with this policy that we are not always talking about products that pose a risk to children. A “non-compliant” product in the case of lead content would not necessarily mean a product that could pose a safety hazard for a child, but these could be products that contain lead substrate (e.g., bicycles, brass musical instruments, the brass axle collar of a toy car, the imprinted ink on a children’s t-shirt, the zipper on a child’s pair of jeans) where the lead is not bio-available, but yet the product would still be in violation of the CPSIA. It would represent a poor allocation of limited enforcement resources to penalize “non-complaint” products rather than truly unsafe ones.

• The policy fails to use the maximum flexibility granted the agency in the area of enforcement to provide a distinction between what it means to enforce the lead limits for products that present a real risk of harm to a child (e.g., lead paint) vs. enforcing the law for products that present no real harm to children, such as products that contain lead substrate but for which there is no bio-available lead. My staff and I presented this proposal during internal discussions with agency staff and other Commissioners' offices. This is an important distinction, both for the agency’s workload and mission and for the marketplace struggling to comply with the new testing requirements. Separating these enforcement policies would allow the Commission to prioritize safety (which is its core mission) while also providing maximum flexibility to businesses struggling to comply with the law’s requirements. This enforcement distinction would also minimize the unintended consequences of the CPSIA.

• Along the same lines of separating enforcement policies based on risk, I would have preferred that the Commission pursue a more stringent policy toward enforcement of the lead paint ban. While I support the policy that retailers, distributors, importers, or manufacturers may certify to the lead content standard at any point in the distribution process, I believe lead paint (which, after all, is where the greatest risk lies) should be held to a stricter standard. I would limit the ability to certify compliant paint to the original paint manufacturer and the final product manufacturer using Type I component testing only. Therefore, if a product were found to have leaded paint, such as the products that were recalled during the height of the lead-in-toys controversy in 2007, the liability would be clearer and more easily traced.

With respect to small businesses:

• The policy does not include any allowance for relief on testing costs for small businesses, beyond component testing. It is important to keep in mind that the reason that Congress wrote and passed the CPSIA in the first place was due to the high-profile recalls of several toys made with lead paint by large-scale toy manufacturers who produce products in China. Unfortunately, this enforcement policy does not provide any distinction between what is required for a large company that may produce millions of toys in foreign manufacturing facilities (and that can also have their products tested in their own firewalled labs) vs. what is required for small domestic manufacturers of children’s products that now have to pay to have their products tested in third-party accredited labs. Additionally, testing a product in a lab in a country such as China is likely to be cheaper than the cost of sending that same product to a third-party lab in the United States. While this enforcement policy is well-intentioned, by failing to make any distinction between large and small businesses (and, incidentally, foreign and domestic manufacturing) it also serves to solidify the competitive advantage that large manufacturers will have over small manufacturers due to the inability of small companies to afford to meet the new testing and certification requirements. For this reason, large toy manufacturers have turned a corner to become supportive of the new, onerous regulations and clearly see the competitive advantage that the law gives them over smaller companies.

• There is also no distinction in this enforcement policy for low-volume manufacturers, which may include either a small or large company. Companies that produce only five or ten of a product to sell to a small retailer or to a crafts fair cannot spread the testing costs for their product across economies of scale like a high-volume manufacturer. However, a company that produces 10,000 identical dolls per year would have a competitive advantage in spreading the testing costs for a doll across 10,000 units. The low-volume manufacturer will be severely disadvantaged until possibly such time as the Commission completes the official rulemaking for testing frequency (dubbed the “15-month rule”)—a date that has yet to be determined.

• Additionally, I have concerns that the issuing of this interim policy coupled with the August 2010 date for lifting the stay will not provide relief for businesses that already are dealing with more stringent requirements from large retailers. There is no reason to believe that if retailers are placing more onerous requirements for testing on businesses than are required under the law now that anything short of an official rulemaking from the Commission or a change to the statute would prevent this. After all, no matter what testing and certification is done prior to the product being sold to the consumer, anyone who has certified to the lead limits, or has relied on the certification of someone else in the distribution chain, including retailers on up to the to the manufacturer level, could be liable for a non-compliant product.

If the Commission were to have focused on inserting risk into this enforcement policy, we could have, for example, reduced the liability for retailers to ensure that they do not force suppliers and manufacturers to jump through more hurdles than are necessary for products that are inherently safe. This could be accomplished by: 1) absolving retailers of any penalties associated with non-compliant products, unless the product poses a real risk to a child (e.g., lead paint); 2) allowing for only a stop-sale of a product, instead of a recall, for products found to be non-compliant but that pose no real risk; and/or 3) providing that retailers are only liable for the need to possess a certificate of compliance with the lead limits, but are not liable for the lead content of the product itself.

Other concerns:

• I also object to the policy that companies be expected to practice “random sampling” to obtain a testing sample due to the one-size-fits-all nature of this policy and the additional burden this will place on domestic companies. We can solve the problem of “golden sampling”—a practice prevalent in China where a business purposefully avoids compliance by testing a sample that is “better” than the batch—without also burdening domestic manufacturers with micro-managed sampling requirements. Instead of expecting only a “random sample,” the manufacturer should be able to pursue a wide variety of avenues in determining how to minimize compliance failures. For example, I believe that final product testing could be permitted without truly random samples, since regardless of the method of sampling the manufacturer is still on the hook for any and all compliance failures.

• Finally, the concern was raised during the two-day workshop on component testing that the needs of testing labs could end up being prioritized over businesses and consumers as these policies and rulemakings unfold. The Commission has not discussed a way to address this issue. At the workshop, the Commission heard from the interests of laboratories, who would prefer that the Commission go so far as to endorse or allow random sampling along each production line, or random sampling where the lab would choose the sample—which is clearly in the financial interest of testing labs who would be able to charge for each visit or sample. This would be a clear burden on small and large businesses and entirely unnecessary to improve safety.

To Stay or Not to Stay... Lead Is Still Undecided

2009-12-16T12:24:00.008-05:00

The general public may find today's split vote on lifting the stay a tad bit confusing. Let me offer a brief explanation. After working for many weeks to reach a consensus on all but one of the issues regarding lifting the stay on testing and certification, I wanted to be able to vote with the majority on these items. My staff worked with Chairman Tenenbaum's staff to make clear that I would vote in favor of lifting the stay so long as lead content was not included in the vote. There are many outstanding issues to address with testing and certification for lead content, and the Commission needs ample time to do so. However, when I finally received the vote documents at 1:48 a.m. (rather than the required 5 days in advance), I discovered that lead was back in…..we’d be voting on all the issues together, in one vote.

For this reason, I proposed separating the vote on lifting the stay for lead content from everything else proposed in the document. As a result, the Commission voted unanimously today to move forward with a plan for lifting the stay on the bulk of issues and to postpone the lead vote until tomorrow.

Check back later today for updates...

CPSC Votes for Complex Stay Approach

ALERT…

2009-12-11T11:45:00.004-05:00

I am pleased to report that it may not be just the hundreds of small businesses who have contacted me and this agency that realize the devastation caused by the CPSIA− it's also Congress. This week, the House of Representatives posted the fiscal year 2010 "omnibus" appropriations bill which will fund various government agencies, including the CPSC.

Accompanying that bill is report language (pages 33-34) requesting that the CPSC report to Congress by January 15, 2010 with specifics on what can be done to improve the statute...that is, before the stay is due to be lifted on February 10th. I intend to be responsive to this request.

So far, a majority of the Commission has declined to approach Congress formally to ask for meaningful changes to the law. But Congress is open to and, in fact, now requesting that the CPSC draw on its experience with the implementation of CPSIA to recommend changes in the law that will make it more reasonable without compromising child safety. Knowing the cost to both large and small businesses in dollars, lost jobs and reduced productivity, Congress is asking for recommendations to eliminate these unintended consequences. Woe to us if we waste this opportunity by making feeble suggestions that would help only one or two industries but leave the small business backbone of our economy with no relief. As I say in the title of my blog: Safety AND Common Sense…you can (and SHOULD) actually have both.

The House voted last night (12/10) to approve this bill and it may be considered in the Senate as early as tomorrow (12/12).

"The Death of Common Sense"

2009-12-10T11:00:00.001-05:00

Tuesday in New York City, I enjoyed meeting with Philip K. Howard, a fellow Kentuckian and author of "The Death of Common Sense" and "Life Without Lawyers." His work has referenced the CPSC and argues that "safer" isn't always better. For example, if kids find risk-free playgrounds too boring, they may stay home playing video games instead of getting exercise at the playground.
Why Safe Kids Are Becoming Fat Kids

Open response to today's email campaign

2009-12-09T19:02:00.000-05:00

Thank you so much for writing me about your concerns with the Consumer Product Safety Commission’s pending decision to lift the stay of enforcement on testing and certification for lead content. I am very concerned that lifting the stay prematurely will devastate the market – particularly, small businesses. There is no reason to rush lifting the stay for testing and certification of products that contain lead in a form that does not affect a child’s health.

We need to find a way to make the CPSIA a practical law that will protect children from risk without creating a cost-prohibitive compliance process. Small manufacturers and retailers cannot spread the price of compliance over as many items as larger companies. For this reason, the component testing rule is a fundamental element of compliance and has to precede any lifting of the stay. We should avoid making it financially difficult for American businesses employing American workers to bring innovative, quality products to market that comply with the law.

I am actively looking for a way to bring a reasonable, common sense interpretation to the CPSIA. I led the effort to ask the Commission to support a more flexible interpretation, but unfortunately it did not receive a majority of the Commissioners' votes. Hopefully we can find a reasonable path forward before the stay is lifted.

I invite you to read my new blog, www.SafetyandCommonSense.blogspot.com. The examples you are sending me really help demonstrate the problem and I hope that you will send me more details, facts, or anything that shows me how you are being affected by the CPSIA: How much has it cost you? How are you coping with those costs? Have you eliminated product lines because testing costs made them unprofitable? Your real-life stories are the best way to show the perverse effects of the law – that we are hurting our businesses without any real upgrade to our children’s safety. I also invite you to post the letter you sent me on my blog where your story can be seen by others.

Thank you again for your email. Please do not hesitate to send me more at Commissioner_Northup@cpsc.gov in the future. I hope you have a wonderful holiday season.

Sincerely,
Anne Northup

Making a difference for children

2009-12-08T11:27:00.001-05:00

“We are a nonprofit, and we are barely making it.”

Even worthwhile volunteer efforts are being affected by the application of this law.

Volunteers take toy pressure off North Pole

The National Press Weighs In

2009-12-08T11:12:00.001-05:00

Here is how three leading national publications view the recent 3-2 vote on banning brass in any form for children’s products.

Congress's Brass Knuckles - The Wall Street Journal

Brass Attacks - The Washington Times

A mistake the lead-heads won't fix - The Las Vegas Review-Journal

Welcome!

2009-12-07T18:10:00.002-05:00

Welcome to my blog “Safety and Common Sense…You Can Actually Have Both.” By way of introduction, I am one of the new Commissioners appointed by President Obama to fill a Republican slot on the Consumer Product Safety Commission (CPSC). I was honored to receive this appointment because the CPSC has a strong history of protecting consumers from unreasonable risk, illustrated by the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years. We are a small agency, but we have an amazingly talented staff that provides excellent research and analysis, advice to manufacturers, enforcement of our standards, and able assistance in doing our number one job – protecting you and your children.

Last year Congress passed the Consumer Product Safety Improvement Act with good intentions to broaden the CPSC’s ability to protect our families. However, as the CPSC has begun to implement and enforce the law, it has become clear that parts of the law lack flexibility and require costly changes even when the products in question pose no risk to a child. These unintended consequences are negatively impacting the American marketplace. Specifically they are raising prices, reducing consumer choice, and threatening domestic jobs without improving safety. Since I came to the CPSC, I have heard from manufacturers and small businesses about their difficulties in complying with the law’s requirements.

I am starting this blog so that I can share my views with you in a forum where you can respond and tell me how the CPSIA and other aspects of the agency’s work affect you. When I was in Congress, my constituents often wondered whether federal agencies stayed in contact with those who were impacted by their regulations and policies. Now that I am part of this important federal agency, I want to be sure that every-day Americans can have their voices heard. I hope you will share any and all of your experiences, thoughts, or comments so that we can stop the unintended consequences of the CPSIA and other instances of overregulation that do not reduce risk.

Transcript of my appearance on The Hugh Hewitt Show

2009-11-24T16:06:00.001-05:00

I was recently a guest on Hugh Hewitt's nationally syndicated radio show where we discussed the impact of the Consumer Product Safety Improvement Act on small businesses. Check out the transcript and let me know what you think!
Transcript of my appearance on The Hugh Hewitt Show