Late Friday the Consumer Products Safety Commission unanimously denied the multi-industry petition to exempt crystals, beads, rhinestones and other decorative bangles from the lead content standards of the Consumer Product Safety Improvement Act, the now-notorious CPSIA.
The three commissioners all issued statements accompanying their votes. New Chairman Inez Tenenbaum cited the legislative history of the CPSIA, which at one point included an exemption for the crystals, later excised. She points to the statute’s ban on products which could produce any absorption of lead by children, and notes the law does not say the CPSC can take potential harm into account.
[A] decision to grant the exclusion by using compliant metal jewelry as the baseline for assessing the acceptable level of exposure will reintroduce risk analysis back into consideration, including such factors as bioavailability of the lead, accessibility of the lead to children, foreseeable use and abuse, foreseeable duration of exposure, marketing, and life cycle of the product. Such an interpretation of the exclusion section of the CPSIA appears to be direct conflict with the statutory language, which does not allow for the consideration of risk.
Our emphasis. No risk-based analysis.
Chairman Tenenbaum then says the CPSC’s enforcement will focus on products primarily intended for children 6 and under (the law applies to products for kids 12 and under), who are more likely to mouth products. In his statement, Commissioner Moore endorses this approach.
So that would make CPSC’s enforcement “risk based.” But didn’t Chairman Tenenbaum just observe the law prohibited such a real-world approach?
In any case, such arbitrary enforcement does nothing to remove the legal liability from manufacturers making and retailers selling the products. The CPSIA allows enforcement by state attorneys general, and civil litigation remains a threat.
Commissioner Nord agreed that the law did not permit an exclusion, but argued for a stay of enforcement as a way to recognize the hardship imposed by the law. Her statement also included a helpful summary of the CPSIA’s many flaws:
At the time of [the law’s] drafting, CPSC staff pointed out that lack of a de minimus standard could lead to arbitrary results but committee staff informed them that this flexibility was not intended. (I recognized that one of the primary sponsors of the legislation recently wrote us arguing that we can “grant exclusions for…materials that can be shown to pose no measurable increase in a child’s blood level…” As much as I agree that this would be a more sensible policy result, the statute does not seem to allow for this flexibility.
The result of not granting an exclusion is to remove from consumers’ hands products that do not present a real risk, that consumers want to buy and that are being produced by companies, many of them small business, who without any net increase in consumer safety.
Nord concludes with her most explicit call yet for Congressional action to fix the law: “It is time for Congress to address the serious issues created by this law in order to make it truly work for the consumer. The lead exclusion process would be one place to start.”
Unfortunately, Congressional leadership appears wedded to the bad law. Chairman Henry Waxman (D-CA) of the House Energy and Commerce Committee recently said there would be hearings on the CPSIA, but then last week he indicated it would be September before any hearing happened. So consumers, manufacturers and employees are out of luck, and more jobs will be lost thanks to Congressional inaction.