Anne Northup Archives - Shopfloor

The CPSIA, Preventing Action on More Serious Risks

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The House Appropriations Subcommittee on Financial and General Government on Thursday held a budget hearing on the Consumer Product Safety Commission, with testimony from CPSC Chairman Inez Tenenbaum and Commissioner Anne Northup.

Commissioner Northup’s statement highlights all the problems that can occur when regulatory agencies abandon risk-based analysis, forced in this case by the Consumer Product Safety Improvement Act. Very good statement:

In both 2009 and 2010, the CPSC focused its time and resources principally on implementing the CPSIA. Although the Commission is a relatively small agency (FY 2010 funding of $118.2 million), its budget has grown by nearly 48 percent since the law’s passage in 2008, with both old and new resources shifted away from risk-based priorities to implement the arbitrary, non risk-based mandates of the CPSIA, including the lead content and phthalates bans, the Public Database, and the third-party testing, certification and labeling requirements. Over the past two and one-half years, the Commission has issued an estimated 3,500 pages of regulations and guidance documents as a result of the CPSIA—a large portion of which must be read and understood by every affected company in order for them to grasp the law’s complex requirements.

The diversion of the Commission’s resources to CPSIA implementation reduces our focus on genuine safety hazards. Our agency is charged with “protecting the public from unreasonable risks of serious injury or death” from consumer products—but we cannot fulfill this mission if our time is spent primarily enforcing the CPSIA, including its non-risk-based lead content and testing requirements.

CPSIA Update: First, Fix the CPSC Erratabase

By | Briefly Legal, Regulations | One Comment

From The Washington Post, “Publicly accessible product safety database hits House roadblock“:

As part of the spending bill that passed the House on Feb. 19, Rep. Mike Pompeo (R-Kan.) won support for a measure to withhold money to implement the system, which is set to launch March 11. The database, which was welcomed by consumer advocates, would make public thousands of complaints received by the Consumer Product Safety Commission each year about safety problems with products, from table lamps to baby strollers.

Pompeo, backed by groups representing manufacturers, said the database would be filled with fictitious or inaccurate claims and place new financial burdens on U.S. businesses.

“This will drive jobs overseas,” Pompeo said during floor debate on his amendment. “It will increase the cost for manufacturers and consumers.”

We’ve uploaded Pompeo’s floor statement and the debate on the amendment here. For the National Association of Manfacturers’ views on the database, see this post.

The New York Times, the most irresponsible media outlet in uncritically cheering on the Consumer Product Safety Improvement Act, fumed editorialy about manufacturers’ objections, claiming, “The concern about frivolous lawsuits is a predictable canard. The database was designed with safeguards to avoid bogus claims and keep lawyers from trawling for clients.” Right, because no trial lawyer would ever gin up bogus product complaints to shake down manufacturers.

And even if Congress intended the database to operate with safeguards, the Consumer Product Safety Commission ignored congressional intent and instead wrote a rule favored by the (often indistinguishable) litigation interests and “consumer advocates.” As CPSC Commissioner Anne Northup testified in the House recently:
Read More

CPSIA Update: How to Fix the CPSC Erratabase

By | General, Regulations | 2 Comments

Testifying at a House hearing Thursday, Vice President Wayne Morris of the Association of Home Appliance Manufacturers (AHAM) did an able job reporting the concerns of manufacturers about a new product safety complaint database being launched by the Consumer Product Safety Improvement Act.

Morris was a witness at the House Energy and Commerce Subcommittee on Manufacturing and Trade’s hearing, “A Review of CPSIA and CPSC Resources.” (His prepared statement is here.) As AHAM’s news release summarizes:

AHAM’s testimony supports the creation of a public database and supports the funding necessary to properly execute this undertaking. However, it also AHAM’s viewpoint that the current design and operation of the web site decreases the quality and accuracy of information that will keep consumers safe, places unreasonable burdens on manufacturers, and does not require timely resolution of good faith material inaccuracy claims.

Manufacturers have proposed many ways to fix the database, Saferproducts.gov, as Morris made specific recommendations:

• Information should not be added to the public database while there is a pending claim of material inaccuracy.
• Eligible reporters to the database should be limited to those with first-hand information about the harm or with a relationship to the consumer – which, AHAM pointed out, was Congress’s intent.
• Registration of model or other descriptor information should be required where available. AHAM acknowledged that such information would be difficult to determine for some consumer products (such as rubber balls).

In her prepared statement, CPSC Commissioner Anne Northup called for Congress to enact two major changes to the way the commission does business, including modifications to improve the value of the product safety database. She testified that Congress, through the appropriations process, could immediately: Read More

CPSIA Update: House Hearing to Examine CPSC, Including Erratabase

By | Briefly Legal, Regulations | 2 Comments

The House Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade has an excellent line-up of witnesses scheduled for its hearing Thursday on the Consumer Product Safety Commission and the Consumer Product Safety Improvement Act.

The first panel includes two CPSC commissioners, Chairman Inez Tenenbaum and Anne Northup. The second panel:

  • Ms. Jolie Fay, founder of Skipping Hippos and secretary for the Handmade Toy Alliance.
  • Mr. Wayne Morris, vice president for division services, Association of Home Appliance Manufacturers
  • Mr. Rick Woldenberg, chairman of Learning Resources, Inc., an educational games and resources company
  • Ms. Nancy A. Cowles, executive director of Kids In Danger

The Handmade Toys Alliance has emerged as the most effective grassroots organization in explaining how the CPSIA has done so much damage to small business operators who make hand-crafted products at home or in small shops. Many have been driven out of business by the CPSIA’s regulatory inflexibility and costs.

Wayne Morris represents manufacturers and will offer views of the threat posed by the new product safety database, which the CPSC has designed in such a way to invite inaccurate or even false complaints that could do damage to a company’s reputation with no effective recourse. Most troubling is the CPSC’s decision to expand the definition of those who can make complaints via the database, potentially allowing trial lawyers or activists to submit inflammatory comments for pecuniary or political reasons.

Rick Woldenberg is the tireless advocate for regulations that recognize the real world of business — the real world, period. His advocacy at the blog, CPSIA – Comments & Observations, has really moved the debate.

Strangely, on the eve of the hearing, Chairman Tenenbaum has chosen to publish a blog post about the complaint database cosigned by U.S. PIRG’s public health advocate, Liz Hitchcock. The post urges U.S. PIRG members to use the public safety database, but Congress never approved making such “consumer activist” groups acceptable reporters under the CPSIA. The definition of who qualifies to lodge a complaint was expanded far beyond the statute by a majority vote of the CPSC, led by Chairman Tenenbaum, and it’s that expansion that debases the database. Tenenbaum’s co-blogging at the site of a leading left-leaning activist group immediately before the hearing almost looks like a conscious poke in the eye to committee members.

UPDATE (9:20 a.m. Thursday): Rick Woldenberg covers the news leading up to today’s committee hearing.

CPSC’s Northup: Database Will Show Blatant Disregard for Accuracy

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A Senate Commerce subcommittee held what was billed as an oversight hearing on the CPSC and toy safety in conjunction with the holiday gift-giving season. It was pretty mundane affair, with just a little useful discussion of Rep. Henry Waxman’s proposal for a “functional exclusion” for products from the inflexible mandates of the Consumer Product Safety Improvement Act. The proposal is a diversion from fixing the CPSIA’s many substantive flaws.

Surprisingly, the issue of the just-finalized rules for the product safety complaint database (see below) was just mentioned and not discussed.

Commissioner Anne Northup, however, provided a good review of the provision’s harmful approach in her prepared testimony. (We’ve split the paragraph up for readability):

A prime example of wasted taxpayer resources—$29 million worth in fact—will be the consumer database that the Commission is tasked with implementing early next year. The CPSIA requires that the Commission establish and maintain a database on the safety of consumer products that is publicly available and searchable on the Commission’s website.

Unfortunately, the majority of the Commission adopted a rule just last week that will make the database useless or worse. Among other problems, the rule defines consumers to include just about everyone, so that reports of harm can be submitted by people with ulterior motives rather than just the actual consumers who suffered harm and have firsthand information about the consumer product. Read More

Barton: CPSC Ignored Congress is Creating Product Database

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The Washington Post today picks up an earlier Chicago Tribune story on the Consumer Product Safety Commission’s rules to create the product safety complaint database, a straightforward, tit-for-tat journalistic accounting of the disagreements. We could grouse about the major media covering the excesses of the Consumer Product Safety Improvement Act after only the damage is done, but at least there’s journalism being committed.

Today’s article mentions an issue that the National Association of Manufacturers has emphasized: The CPSC’s definition of the “reporters” who can submit recognized complaints to the database is much broader than the definition Congress established.

In what could yet develop into an obstacle for the new system, a Republican congressman who is in line to become the chairman of the committee that spawned the database legislation said the rules for the database were tilted against business.

“Several provisions of the staff-proposed final rule run contrary to the intent of Congress and the clear and unambiguous language of the act,” Rep. Joe L. Barton (R-Tex.) said in a letter to Tenenbaum.

Barton is seeking to become the chairman of the House Energy and Commerce Committee, which under Chairman Henry Waxman (D-CA) cheered on the rigid, expensive and unworkable rules that have driven ATVs and bikes out of the market, clothes out of thrift stores, children’s book out of libraries, and home-based businesses out of existence. The committee never engaged in serious oversight of the agency and the Consumer Product Safety Improvement Act during the 111th Congress, and we expect that to change no matter who the new chairman is.

Barton’s letter is available here.

CPSIA Update: The Database that Ate Manufacturers

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The Consumer Product Safety Commission today posted its notice of proposed rulemaking for the public consumer complaint database. Excerpt:

Section 212 of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) amended the Consumer Product Safety Act (“CPSA”) to require the Commission to establish and maintain a publicly available, searchable database on the safety of consumer products, and other products or substances regulated by the Commission. The proposed rule would interpret various statutory requirements pertaining to the information to be included in the database and also would establish provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers; publishing reports of harm and manufacturer comments in the database; and dealing with confidential and materially inaccurate information.

This is the database that has alarmed manufacturers, who fear that it will become a poorly monitored site that encourages reputation-harming complaints and salting by product-liability attorneys. Unfortunately, even as the House Energy and Commerce Committee considers modest fixes to the consumer Product Safety Improvement Act, the database has been declared a settled matter not open to legislative review.

Commissioner Anne Northup is unhappy with the notice. She writes at her blog, Safety and Common Sense:

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!

CPSC Commissioner Northup on CPSIA, Lead

By | Health Care, Regulations | No Comments

Hugh Hewitt, the radio talk show host, blogger, law professor and all-around good guy, on Monday interviewed Commissioner Anne Northup of the Consumer Product Safety Commission, and the transcript of the conversation is now up at HughHewitt.com.

Hugh accurately expresses the astonishment and frustration of business people in trying to figure out and respond to the Consumer Product Safety Improvement Act (CPSIA), and Northup, a former Republican member of Congress, confirms that the law is excessive, complicated and disconnected from reality. The discussion of lead content is good, and we appreciate her reaction to efforts now under way in Congress to “fix” the CPSIA.

HH: And the regulatory burden, I know, because many of them are our clients, people don’t know how to interpret this. They write in, they have to hire expensive lawyers to go get exemptions from you. It must be a morass at the building.

AN: Well, and we’re not giving any exemptions. So far, there hasn’t been a vote to give exemptions. And so they’re trapped in figuring out how they’re going to make this. And you know, I think there’s the ATV, the bicycle people, I mean, who sucks on their bicycle handlebars at six years old? And you know, even if you did, you couldn’t swallow enough lead that it would register a change in your blood lead level.

HH: And Congress won’t fix it. I saw Chairman Waxman has proposed an amendment on your blog, and your blog has dissected it. It’s not really that helpful. In fact, it might make things worse.

AN: It really isn’t helpful. It’s really meant to solve the political problem he has from the ATV people. They obviously are very organized. It’s very serious for them. They have children’s, smaller ones that are safer for children, and they’ve had to take them off the market. But you know, I mean, it has all these hoops you have to jump through. You have to prove that you can’t make it officially, you can’t make it, that it’s not practical, that there’s no substitute material, you have to say how you’re going to get into compliance over the next few years, you have to prove…here’s what’s funny. I think the third qualification is you have to prove that it doesn’t harm the health or safety of a child. Well Hugh, if it doesn’t harm the health or safety of a child, why are we even regulating it? What else do we have to prove?

The conversation occurred at a meeting of the Sporting Goods Manufacturers Association. Hewitt also addresses a topic we’ve broached before: If Congress can’t get the CPSIA right, how can it expect to restructure the entire U.S. health care and insurance system?

The CPSIA Serves as a Cautionary Example

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From Hugh Hewitt, a leader among bloggers and radio talk show hosts in bringing attention to the Consumer Product Safety Improvement Act, “Obamacare and CPSIA –How the Latter Predicts the Future of the Former“:

CPSIA is the perfect example of how Congress operates in a vacuum, removed from the realities of the problems the legislators believe they are addressing, and so embarrassed by their failures that they refuse to return to the scene of their screw-ups to repair the damage.

I know about the CPSIA because three of my law partners specialize in the Act and I hear every day about the latest large, compulsory expenditure on compliance.  I am going to broadcast from Las vegas today, where CPSC Commissioner Anne Northup is addressing the Sporting Goods Manufacturers Association and hope to bring more attention to the law and its widespread impact.  (Northup’s blog is here and I hope she leads off today’s show.) Columnists like Friedman are great cheerleaders of theory, but they ought occasionally to visit the practice of Congressional mandates.  They would discover a much quicker way towards job creation –which is for Congress to confront their massive mistakes of the past before creating even more for the future.

CPSIA Update: President Obama Could Urge Biparisan Fix

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Below we catch up with the past two months of developments with the Consumer Product Safety Improvement Act, or CPSIA. As we noted, an important contribution to the public debate over this overreaching law was new CPSC Commissioner Anne Northup’s Christmas Eve column in The Wall Street Journal, “There Is No Joy in Toyland.” Excerpt, with our emphasis.

For the past several months, American businesses have been caught in the middle of a classic standoff between the federal commissioners in the majority, who argue that the statute ties their hands, and members of Congress, who claim they wrote flexibility into the law and blame the commission for any harsh consequences. Although the commission steadfastly refused to reach out to Congress to seek clarifications to the law, Congress has now reached out to us—asking the agency last week for a list of recommendations to amend the statute….[snip]

Hopefully, this request from Congress will result in real changes to the law, not a half-hearted effort on our part or Congress’s to avoid responsibility for the problem.

President Obama could help this process along by urging Congress to pursue a bipartisan fix. We can protect children from harmful products without striking a blow against the teetering American economy—but we must act quickly. Otherwise, the CPSIA’s Grinch-like rules will needlessly cost our country more jobs and reduce the opportunity for small businesses to help lead our country out of recession.

Tonight’s the State of the Union address. Mr. President?

Addendum: The request from Congress that Commissioner Northup is referring to came in the conference report for H.R. 3288, the DOT appropriations bill passed in December. We’ve put the language in the extended entry: Read More