Consumer Product Safety Commission Archives - Shopfloor

CPSIA Update: The Law is Plumb Loco

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Rick Woldenberg of Learning Resources Inc. just refuses to let the Consumer Product Safety Improvement Act beat him into submission, two-and-a-half years after the law began producing all sorts of economic mayhem to the benefit of no one save lawyers and “consumer activists.” In The Hill, Rick writes about last week’s House committee hearing on the draft legislation to repair the fatally flawed law. From “Enough already! It’s time to amend the lead law“:

As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.

Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.

We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.

For more from Rick, a REAL consumer activist, see his AmendtheCPSIA.com blog.

We reported on the House hearing last week here and here. Walter Olson has more at Overlawyered.com, “CPSIA: ‘Toymakers Would Get Relief Under Republican Plan’.”

CPSIA Update: A House Hearing, a Senate Amendment

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From the House Energy and Commerce Committee:

Discussion Draft of H.R. ___, a bill that would revise the Consumer Product Safety Improvement Act

April 7, 2011

The Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing on Thursday, April 7, 2011, at 9:00 a.m. in 2123 Rayburn House Office Building.  This will be a legislative hearing on the Discussion Draft of H.R. ___, a bill that would revise the Consumer Product Safety Improvement Act.  Witnesses to be announced.

Click here to view text of discussion draft.

And from AutoBlog, “U.S. Senate introduces amendment to keep youth motorbikes legal“:

In February 2009, it became illegal to sell children’s motorbikes in the United States. The reason? The amount of lead they contained exceeded the maximum allowance established by the Consumer Product Safety Improvement Act of 2008 (CPSIA). This law wasn’t aimed at the motorcycle industry and its youth products, but they became caught up in the issue.

Shortly thereafter, policymakers and the motorcycle industry came to a temporary agreement that put a stay of enforcement in place through the end of 2011. This workaround bought motorbike manufacturers and Capitol Hill extra time so that they could come up with a more elegant solution.

Now, that potential solution has been introduced to the floor in the form of Senate Amendment 264. Co-sponsored by Senators Amy Klobuchar (D – MN) and John Tester (D – MT), SA 264 would amend CPSIA to exclude youth off-highway vehicles from the lead law provisions.

More from the American Motorcyclist Association, “Senate Lead Ban Amendment Introduced.”

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.

Fix the CPSIA Erratabase Before It Harms Commerce, Consumers

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The Consumer Product Safety Commission is scheduled to take its product safety complaint database online Friday, doing a real disservice to consumers who want accurate information and to companies that will have their reputations harmed by false, inaccurate and even malign reports about their products.


CPSC promotes its database

The National Association of Manufacturers this week filed a petition for reconsideration of the final rule implementing the database under the Consumer Product Safety Improvement Act (CPSIA). The NAM also requested an extension of the CPSC’s “soft launch” for three months to prevent the database from going “live” before fixing a number of administrative and policy challenges yet to be resolved. (NAM letter.)

We’ve seen many claims that the test phase of the database produced few of the false complaints that the manufacturers and others have been so concerned about. The advocates for the regulatory state at OMB Watch, for example, reported:

Manufacturers and business associations like the National Association of Manufacturers have targeted the database for fear that inaccurate data will be reported by consumers and, as a result, profits could be hurt. In CPSC’s testing of the site during the soft launch, however, “of the 900 complaints that were logged, four were determined to be inaccurate,” according to a March 3 BNA article (subscription required).

Curse you, business owners, for caring about profits!

This isn’t the full story, but even if it were, that’s four wrong complaints that could harm a company or product’s reputation. Multiply the number of complaints tens of thousands of times once the database starts operating, and the 0.44 percent inaccuracy rate starts to look seriously damaging. (We can also speculate about the trial lawyers and “consumer activists” holding back submissions during the trial run, waiting for the database to get up and running before salting it with inflammatory reports.)

Worse, NAM and its members have identified six serious problems with the database that would make it a font of bad information, the erratabase we write about. Consider this one:

Manufacturers, importers or private labelers have indicated that they have received reports of harm identifying an incident as involving their product that did not in fact involve their product, so were materially inaccurate, and advised CPSC of this fact. They have not received return affirmative confirmation that CPSC staff will not post such false claims in the database. CPSC staffers have indicated they may not possess the resources to adequately scrub the database to avoid posting upon such notification. This is contrary to the express direction of Congress that materially inaccurate information with the potential for irreparable reputational harm be vetted prior to posting.

Rep. Mike Pompeo (R-KS) won passage of an amendment in H.R. 1, the continuing resolution, to block funding for the database until Congress had conducted a thorough review. (See Shopfloor, “CPSC Erratabase and the Interests of Trial Lawyers.“) The amendment has brought Pompeo the expected obloquy from the left, and Sen. Jay Rockefeller (D-WV), chairman of the Senate Commerce Committee, issued a news release denouncing it. Read More

CPSC Erratabase and the Interests of Trial Lawyers

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It appears the Consumer Product Safety Commission’s product safety complaint database could actually kick into operation this month, inviting attacks against manufacturers and confusion for consumers encountering false reports.

The two-week spending resolution passed by the U.S. House on Tuesday, H.J. Res. 44, omits the many amendments to block funding for Executive Branch programs previously approved in H.R 1, the 2011 continuing appropriations bill. That means that the amendment sponsored by Rep. Mike Pompeo (R-KS) to block funding for the CPSC database until Congress further examines it  — which the House approved by a vote of 234-187 — will not go into effect before the database does on March 11.

A Washington Times editorial today identified the dangers behind the potential manipulation of the database and who stands to benefit. From “Leash law for lawyers“:

On March 11, the CPSC is set to launch a new online database publishing thousands of outside complaints about allegedly unsafe products. These attacks would be publicized before any investigation and without independent evidence that complaints are legitimate. It’s an open invitation for competitors or interest groups to destroy a product’s reputation – and sales – without proof. It’s also a major come-on to trial lawyers eager to file class-action suits. Attorneys could tell juries that publication on an official government website is evidence that allegations have weight.

Even without this new database, it’s too easy to force products off the market. Previous bogus consumer scares – such as worries about the chemical Alar on apples and the purportedly cancer-causing properties of silicone breast implants – show the dangers of letting unsubstantiated allegations gain premature credibility. The CPSC database would add to the mischief trial lawyers could cause with spurious lawsuits.

Rep. Pompeo’s CPSC funding amendment fits well with the 112th Congress’ priority of job creation. It should be obvious that manufacturers under attack by trial lawyers exploiting bogus product complaints are less likely to hire new employees.

Rep. Pompeo’s floor statement and the House debate on the amendment are here. For the National Association of Manfacturers’ further views on the database, see this post.


CPSIA Update: How to Fix the CPSC Erratabase

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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

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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 Begins ‘Soft Launch’ of Product Safety Complaint Erratabase

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The Consumer Product Safety Commission has a nice Monday morning surprise, a “soft launch” of the new consumer product safety complaint database, SaferProducts.gov, which the National Association of Manufacturers believes is ripe for abuse.

Alston and Bird reported the news in a client advisory last Thursday, “Consumer Product Safety Commission Database to Become Operational on January 24, 2011, Weeks Earlier than Expected“:

This early “soft launch” was announced during a CPSC presentation on January 20, 2011. Manufacturers and others affected by the database now effectively have one full business day to prepare for the database’s launch….

Although the CPSC indicated that consumer reports of harm submitted during the soft launch would not be publicly viewable during the launch period, clients should still be prepared to respond promptly to reports of harm. Today’s unexpected announcement also suggests that clients should be prepared for other unexpected actions by the CPSC with regard to the database.

UPDATE (10:25 a.m.): To be fair, we should repeat the CPSC’s important note about the “soft launch”: “Reports and manufacturer comments collected during Soft Launch will not be published and searchable in the Database, even after the official launch in March 2011.” Rest of the post continues below …

The NAM detailed manufacturers’ objections in a Jan. 13 Capital Briefing, “CPSC to Roll out Product Safety Database“:

This database has alarmed manufacturers, who fear that it will become a poorly monitored site that encourages reputation-harming complaints. Unfortunately, the new rule invites the gaming of the database to the detriment of manufacturers of safe products, even to the point of expanding the definition of “consumer” and “public safety entities” those who can register an online complaint to include trial lawyers and activist groups.

Advertising Age’ latest report also spots the problems. From “Marketers, Meet the Feds’ Very Own Yelp“: Read More

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.