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

By January 27, 2010General, Regulations

It’s been a while since we’ve blogged about the unnecessary and extraordinary harm done by the Consumer Product Safety Improvement Act, the 2008 legislation that has driven safe products off the market, effectively banned pre-1985 children’s books, and forced thrift stores to remove toys and winter coats from their shelves.

Hugh Hewitt, in his interview with NAM President John Engler Tuesday, reminds us of the CPSIA’s swath of economic damage, even as the radio host makes a broader point. From the transcript:

HH: Now this brings me to the key question, Governor, because a couple of my law partners, Gary Wolensky and Liz McNulty do a lot of time advising companies about the Consumer Product Safety Improvement Act, I know how botched up that is. I know how it’s ruined manufacturing and destroyed competitiveness, et cetera. A lot of people like me don’t really trust Congress to do any of this well. If they can’t handle something as simple as lead levels and phthalate levels in products, how could they possibly get this right?

Good question. A powerful enemy of economic recovery is uncertainty, the doubts of businesses, investors and the public about government’s intentions. If you’ve followed the impact of the CPSIA — a bill passed with overwhelming Congressional support — then it’s reasonable to fear much larger legislative adventures like health care reform or government control of carbon dioxide.

At least the excesses of the CPSIA have finally — finally! — created a consensus that Congress must act. The Consumer Product Safety Commission on January 15 sent a report to Congress about the law’s implementation, a communication that included a call for a legislative action that embraced. (Congress had requested the commission’s recommendations in the conference report on the CPSC’s appropriations bill, included in the DOT spending bill.)

  • Additional flexibility for enforcement of the strict lead ban under section 101(a) of the CPSIA. (They are reacting to the effective bans on children’s ATVs, bikes, and children’s books, among other things.)
  • Only prospective — not retroactive — regulation of new lead-content standards of 100 ppm.
  • Additional flexibility on testing requirements for products made by for small volume manufacturers such as crafters and home-based businesses.

Commissioners Anne Northup and Nancy Nord argued effectively for additional legislative steps. In her statement, Northup made the obvious point: There’s a difference between lead exposure and lead absorption or ingestion. She writes: “[Riding] a bike or wearing a coat with a zipper is not a health risk because it does not meaningfully increase the blood lead level in a child. However, because there are still negligible amounts of lead detectable by scientific equipment that may be wiped off by touching a bicycle handlebar, the CPSIA treats these items in exactly the same way it treats products that truly could hurt a child by increasing the blood lead level.”  Northup recommended:

  • Allow for a level of de minimus, absorbable lead
  • Reduce the age range (the bill currently applies to children 12 and under)
  • Change the statute to provide relief to small businesses
  • Do NOT add a new exclusion, such as for a “functional purpose”
  • Eliminate the retroactive effects of the lead and phthalates bans

She 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.)

It’s disappointing the entire CPSC did not agree with Northup’s reasonable suggestions, proposals for legislation that reflect the real word in which manufacturers, businesses and consumers operate.

Nevertheless, the CPSC’s report to Congress reflects a unanimous call for Congressional action. It’s much appreciated.

The CPSC’s report follows last December’s maneuvering by Rep. Henry Waxman (D-CA), chairman of the House Energy and Commerce Committee, who floated legislative language to address some of the problems with the bill. As Commissioner Nord wrote on her blog, “While the amendment is less than clear legislative drafting, with its passage, Congress does acknowledge, for the first time, what many of us at the agency have been saying for many months–the inflexible nature of the CPSIA has limited the ability of the CPSC to minimize the unintended consequences of the law–hurting product sellers and limiting consumer choice while not advancing safety.”

The Waxman amendment, written unilaterally by his committee staff, did not become law. But it did represent a recognition that Congress needs to rewrite the law. That’s a big admission coming from the prime legislative mover for the CPSIA. (For more, see Rick Woldenberg’s blog.)

So here’s where we stand now:

  • At least 11 pieces of legislation were introduced by members of both parties in 2009 to amend the CPSIA to make it less onerous.
  • The CPSC unanimously support Congressional action.
  • Chairman Waxman acknowledges the legitimacy of a legislative fix.

So let’s act. And let’s act soon, before more businesses close, costs continue to mount, and consumers are deprived of safe, desired products.

Returning to Hugh Hewitt’s point above: If Congress wants more Americans to trust it, not only does it need to acknowledge its mistakes, it has to fix them, too. The CPSIA is a good place to start — now.

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