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:

Along with implementing the overreaching Consumer Product Safety Improvement Act, the Consumer Product Safety Commission’s other priority this year has been addressing public complaints about contaminated Chinese drywall. The housing boom and post-Katrina reconstruction led to a shortage of domestic drywall, with imports of the Chinese product filling the gap. But the Chinese drywall has reportedly caused health problems in the people who live or work in the buildings — especially across southern states where the product is more prevalent.

On Thursday, the CPSC and other federal agencies released the initial results of a round of tests on domestic and imported drywall. The key findings:

The study found that sulfur gases were either not present or were present in only limited or occasional concentrations inside the homes, and only when outdoor levels of sulfur compounds in the air were elevated.

The indoor air study did lead to a preliminary finding of detectable concentrations of two known irritant compounds, called acetaldehyde and formaldehyde. These irritant compounds were detected in homes both with and without Chinese drywall, and at concentrations that could worsen conditions such as asthma in sensitive populations, when air conditioners were not working or turned off. The levels of formaldehyde were not unusual for new homes and were higher in homes where air conditioners were not working or turned off.

Although formaldehyde was found, when the air conditioning was turned on, it was not at levels that have been found to cause health symptoms.

The CPSC is quick to emphasize that these are only initial findings, reports continue to come in, and there is much more work to do. The commission has developed a good website with resources, the Drywall Information Center.

For now, we’ll say Chairman Inez Tenenbaum delivered good remarks in Beijing on Monday at the U.S.-China Consumer Product Safety Summit:

The seriousness of this issue can not be underestimated. I appeal to companies in the Chinese drywall supply chain to examine carefully their responsibilities to U.S. consumers who are suffering from problems in their homes and to do what is fair and just in each case, if their products are involved and I want to underscore if their products are involved.

That’s right. Foreign manufacturers need to accept responsibility for their products.

News coverage…

• Wall Street Journal, “U.S. Stops Short of Faulting Drywall“
• McClatchy-Tribune News Services, “Feds: No link yet between drywall, health problems“
• Associated Press, “US safety chief says China helping on drywall“
• Wall Street Journal “China Real Time Report” blog, “Drywall Lesson: Caveat Emptor,” which offers the opinion that Tenenbaum “dodged” tougher questions on drywall in her Beijing press event.

From a news release from the Handmade Toy Alliance, joining the many trade associations calling for a Senate Committee hearing on the jobs-killing Consumer Product Safety Improvement Act.

This is just another reminder to our members of Congress that the issues plaguing small businesses and the hand crafted community from the CPSIA have not gone away,” Jill Chuckas, Secretary of the HTA and owner of Crafty Baby (CT) stated. “A hearing that fully discusses these issues needs to be held very soon.”

Dan Marshall, HTA Vice-President and co-owner of Peapods Natural Toys (MN), went on to state “At this point, there is not enough time for the CPSC to issue enough rulings to help small batch manufacturers address their compliance issues prior to the lifting of the stay on February 10, 2010. Congress needs to begin an active hearing process that engages manufacturers large and small in a meaningful way and finally correct this law.”

Forty-one business groups sent a letter to Sen. Mark Pryor (D-AR) earlier this week calling for a Senate hearing on the CPSIA, a public discussion that includes representatives from people who have been harmed by the law’s excesses. Small businesses, including home-based operations and craftspeople, have been especially vocal about the CPSIA because it imposes compliance costs that many cannot meet.

When Inez Tenenbaum went before the Senate Commerce Committee on June 16 for her confirmation hearing to chair the Consumer Product Safety Commission, she eschewed substantive commentary on the controversial Consumer Product Safety Improvement Act (CPSIA), saying she hoped to practice “common sense.” The disastrous CPSIA has provoked outrage among many business owners, but nominees often avoid hot-button topics and Tenenbaum’s reticence was accepted.

Still, Senator Mark Pryor (D-AR), chairing the session, did suggest she get up to speed and come back for a hearing he would call on the CPSIA, perhaps 60 days after her confirmation.

Well, the full Senate confirmed now-Chairman Tenenbaum on June 19, more than four months ago. She’s had time to travel to China, meet with many, many constituency groups and vote on CPSIA-related rules.

So it’s past time for the Senate and Tenenbaum to engage publicly on the business-destroying CPSIA. Today, 41 trade associations including the National Association of Manufacturers wrote Senator Pryor calling for a committee hearing on the new law. (Copy of the letter here.) The gist:

Consumer product safety is very important to the U.S. manufacturers and the retail community. To that end, the business community has made enormous and often costly efforts to comply with this important safety law. However, the CPSIA’s unintended consequences are causing confusion for consumers and economic damage to our members across the country, especially small businesses. Safe products are being pulled from store shelves because of fear, confusion, and a lack of guidance from the regulatory authorities.

As you know, the House Subcommittee on Commerce, Trade and Consumer Protection held an oversight hearing on the CPSIA on September 10. Chairman Tenenbaum was the only witness at this hearing.

At the Senate hearing, we hope that Chairman Tenenbaum will further detail how the agency will approach the unresolved implementation issues, and we urge you to allow other witnesses to testify at the hearing from the business community so that the Committee obtains a full picture of the outstanding issues related to the law. The manufacturing community appreciated the opportunity to testify before your subcommittee during the development of the CPSIA. As frontline stakeholders in the legislation, we believe the committee would similarly benefit from our perspective on the implementation of the CPSIA.

The various stays of enforcement issued by CPSC to temporarily resolve CPSIA implementation problems will soon expire, and a permanent resolution is needed. We believe that the Senate’s oversight role is extremely important in helping the agency implement common sense solutions to resolve these issues, and we strongly urge you to set a date for a CPSIA oversight hearing.

The list of the groups that joined the letter is in the extended entry below.

This Saturday is one of the big annual cultural days in Washington, D.,C., the National Book Festival on the Mall. It’s an event sponsored by the Library of Congress but paid for by private sponsors. (AT&T, for example, supports the children’s events.)

There’s a long, long list of authors speaking. We’ll be trying to catch Mark Kurlansky, who has written the engaging, commodity-related history books, “Cod” and “Salt.” (Hoping he’ll do “Zinc” and “Sisal,” too.)

Here’s the official poster, which prominently displays familiar images from “Alice in Wonderland.” Hope it’s not a pre-1985 version, banned by the Consumer Product Safety Improvement Act.

More seriously, one of our goals of walking through the exhibits tomorrow is to see whether there’s any reference to the CPSIA’s outlawing of children’s books that could conceivably, possibly, potentially have minute but not-dangerous amounts of lead in their inks or other components.

Walter Olson at Overlawyered.com today catches us up on the book-related damage from the CPSIA, noting that the Consumer Product Safety Commission has yet to issue guidance for pre-1985 books. He quotes from a Publisher’s Weekly article:

Thom Barthelmess, president of the Association for Library Service to Children, a division of the American Library Association, says most librarians are waiting to see what happens. “We’re hoping for a happy resolution, so our collections aren’t decimated,” he says. If the CPSC’s ruling results in libraries needing to pull books from shelves, “there would be huge ramifications,” he continues. “If we lose a lot of titles printed before 1986, many of which are irreplaceable, it would have a huge impact on the nature of our collections.”

If we had to guess, it would be that few people — if anyone — participating in the National Book Festival will be familiar with the CPSIA’s book banning. Hope to be proved wrong.

From the House Energy and Commerce Committee:

Consumer Product Safety Commission Oversight: Current Issues and a Vision for the Future
Publications
Friday, 04 September 2009 12:52

The Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled, “Consumer Product Safety Commission Oversight: Current Issues and a Vision for the Future” on Thursday, September 10, 2009, in 2322 Rayburn House Office Building.

INVITED WITNESS:

* The Honorable Inez Moore Tenenbaum, Chairman, Consumer Product Safety Commission

The Consumer Product Safety Improvement Act became law on August 14, 2008, and this is the first hearing on the law from a committee of jurisdiction.

Many of the individuals, groups and industries who have been severely harmed by the CPSIA are furious at the hearing being limited to just one witness, Chairman Tenenbaum, believing the lack of business and especially small business testimony will frustrate an open discussion of the law’s excesses.

Here’s the American Motorcyclist Association: “Congressional hearing set for Thursday to get information on the law that bans the sale of dirtbikes and ATVs for kids”

And a letter from the Handmade Toy Alliance.

The Washington Times editorialized today, chiding Chairman Henry Waxman (D-CA), who has repeatedly rejected an open debate of the law’s deleterious impact on manufacturers and consumers. From “Waxman stifles dissent.”

On Sept. 8, the two congressmen wrote to the chairman again: “We are concerned, however, that a hearing presenting only the opinions of Chairman Tenenbaum, without a second panel of witnesses representing family-owned retailers, tribal stores, toymakers and other affected parties, is very unlikely to cover the surprising and distressing practical problems that have arisen in connection with the implementation of the new law.”

Mr. Waxman never responded to that letter. “The Energy and Commerce Committee is aware of the letter and is taking the request under consideration,” a committee spokesman e-mailed The Washington Times yesterday.

Somehow, we doubt an invitation to outside parties will be issued by the meeting’s 10 a.m. start. A follow-up hearing is warranted. As the old expression goes, the committee ought to “get the lead out” by holding that hearing soon.

We’re a bit more optimistic about there being a worthwhile discussion of the issues today, but if Congress is going to pass laws that cause such harmful unintended consequences, it should hear from the people.

UPDATE (1:30 p.m.): More than 100 small businesses sent letters to the committee, an effort organized by Rick Woldenberg and the Alliance for Children’s Product Safety. From the news release:

Whether or not the Subcommittee wants to hear about it, the evidence to date demonstrates that the CPSIA has created chaos and losses for businesses, limiting choices for consumers and creating bureaucratic nightmare for companies trying to comply with the law - all without improving product safety. It’s time for Congress to fix this law.

From the American Library Association, an Aug. 27 “dispatch” on how librarians should treat the children’s books that might contain minute traces of lead.

On August 26, 2009, the CPSC’s final rule on children’s products containing lead was released. [Final rule here.] In the rule, CPSC confirmed that libraries have no independent obligation to test library books for lead under the law. CPSC also announced its intention to release a Statement of Policy specifically providing guidance for libraries with regard to the treatment of older children’s books that could potentially contain lead. According to our conversations with CPSC officials, that Statement of Policy should be released within the next several weeks.

While we await the Statement of Policy, ALA recommends that libraries take the following actions. If a library is aware that any children’s book does indeed contain lead above the legal limits or otherwise presents a danger to children, it should remove it from public access, for instance by moving it to the non-circulating collection. We would also ask that if libraries do learn of any books containing lead to please let the ALA – Washington Office know so that we might share that information with other libraries. When the Statement of Policy is released, we will promptly notify our members.

Independent obligation or not — and what does that mean? — don’t libraries have to assume that pre-1985 children’s books are printed with lead-bearing ink? No, the books pose no danger to children, but the Consumer Product Safety Improvement Act outlaws children’s products that could conceivably permit the absorption of ANY lead. In effect, it’s an absolute ban.

The American Library Association has been awfully passive in its response to the CPSIA’s excesses. You would expect an association that sponsors an annual Banned Books Week to rise up in righteous anger against a law that, you know, bans books.

(Hat tip: The Recliner Commentaries.)

A Washington Times editorial, “From yard sales to jail yards“:

When federal agents can swoop down on your personal garage sale and arrest you for selling the wrong old doll, this is no longer the land of the free. Yet just such a scenario is possible because of a campaign called Resale Roundup, which stems from last year’s jobs-destroying Consumer Product Safety Improvement Act.

We wonder what’s next: handcuffing 10-year-olds for improperly mixing roadside lemonade?

The Consumer Product Safety Improvement Act already has proved to be an incredibly destructive law. It sets absurdly low new limits on lead content in items sold for children’s use, even if the product’s lead is virtually impossible to ingest. It sets new testing and labeling requirements for lead and for a common chemical in plastics, even if the testing and labeling process is likely to destroy the item being tested. It makes criminals out of unsuspecting mom-and-pop businesses — or puts them out of business — and has forced bookstores and libraries to pull treasured children’s classics off their shelves.

Now comes the Resale Roundup, which the Consumer Product Safety Commission (CPSC) has ruled can be applied even without any “evidence of bad intentions or ill will.”

News story, McClatchy Newspapers, “Seller, beware: Feds cracking down on garage sales”

BTW, we’re hearing of a Senate Commerce Committee hearings next week with CPSC Chairman Inez Tenenbaum, but hearings on the CPSIA tend to get postponed or canceled.

The Consumer Product Safety Commission’s Scott Wolfson reports yesterday via Twitter, “#CPSC officially now a Commission of 5 - agency welcomed new Commissioners Bob Adler and Anne Northup today.”

Congratulations to all.

Elsewhere, an interesting and optimistic blog post from Sarah Natividad of Tooele, Utah, detecting a CPSC trying to carve out a fair treatment of manufacturers from an unfair law, the Consumer Product Safety Improvement Act.  At issue is the CPSC’s final rule (and commissioner statements) on the lead content limits in certain products. Sarah writes at Organic Baby Farm, “Sending a Message“:

[You] might wonder, what is the message CPSC is sending out now, in between the lines? It’s pretty close to “La la la la la, we’re not listening!”– only it’s not addressed at small business, it’s addressed at the law.

CPSC had a choice of interpretations of the law when it came to exempting things like textiles and wood. They could have taken a strict view of the law. This view is represented by the positions of Commissioner Nancy Nord (although I know she takes these positions reluctantly, knowing and caring how much it hurts businesses, in hopes that Congress will see how ridiculous their law is and change its mind). You see, there have been cases where textiles have been shown to have violative amounts of lead, so CPSC could have easily adhered to the letter of the law and not exempted textiles from third party lead testing. Instead, they went with “All textiles/wood/rocks/etc. are lead-free! …except when they’re not.” This, I think, reflects the new leadership of Chairman Inez Tenenbaum. And while that’s a confusing and maddeningly tautological statement, the selection of it as the official position speaks volumes.

Is it really something to applaud, a regulatory agency that finds ways to circumvent the full impact of badly written law? In reality, yes, but then, does it help fix the law? We’re getting lost in the dialectic of the tautology.

In other lead news, we have a release from all-seeing, all-powerful Attorney General Jerry Brown of California, “Brown Creates Nation’s First Enforceable Lead Standards for Artificial Turf.” He has that power, to create a national lead standard? (Update: Upon closer reading, we see it’s the nation’s first standard, not a national standard.) The first paragraph is a classic of the “politician running for higher office” form, that is, populist AND hubristic:

OAKLAND-Fighting to ensure the safety of children’s playgrounds and ball fields, Attorney General Edmund G. Brown Jr. today signed off on an agreement requiring Georgia-based AstroTurf, LLC to virtually eliminate lead from its artificial grass, creating the country’s first enforceable lead standards for artificial turf products.

The agreement requires AstroTurf* to reformulate its products so that they contain less than 100 parts per million (ppm), and to further reduce lead levels to 50 ppm by June 2010.

So what’s the lead content of regular old footballs fields made from soil and turf? (For point of reference: The White House’s vegetable garden’s lead content is 93 ppm.)

In any case, now that Jerry Brown has weighed in, we know that it’s safe to make children’s products from reformulated Astro Turf. Granted, those cute little Lederhosen will chafe.

* No criticism of Astro Turf implied, either. The power of an ambitious attorney general is nothing to scoff at.

Today marks the effective date for the Consumer Product Safety Improvement Act’s lower standard for lead content in children’s products, dropping from 600 parts per million (ppm) of lead to 300 ppm as of August 14. (CPSC release, earlier post, more from Overlawyered. Good AP story.)

However, as a number of Consumer Product Safety Commission votes on petitions for exemptions have shown (books, and beads and crystals) the ban really affects products that could conceivably permit “any” absorption of lead. That makes the effective standard 0 ppm. As in zero.

So it’s OK for children’s vitamins to contain minute amounts of lead, but not, oh, a little girl’s tap shoes with sequins must be tested and certified as having no lead at all?

That’s right. Children’s vitamins may have tiny, infitesimal amounts of lead and still be safe and legal. The Food and Drug Administration in 2008 released a report, “Survey Data on Lead in Women’s and Children’s Vitamins.”

Estimates of Pb exposures from consumption of products were derived by multiplying the maximum recommended daily serving provided by the label instructions by the Pb mass fractions (i.e., concentrations) determined in this study. The overall median value for Pb exposure was 0.576 µg/day. Five samples would have provided exposures that exceeded 4 µg/day, the highest being 8.97 µg/day. The highest exposure estimate for children’s vitamins was 2.88 µg/day. Estimates of exposures were assessed with respect to safe/tolerable exposure levels that have been developed for particular age and sex groups. These safe/tolerable exposure levels are referred to as the provisional total tolerable intake levels (PTTI)

To make things a little clearer…

Here’s the key excerpt from the next paragraph: “Estimates of Pb exposures for all products were below the PTTI levels for the at-risk population groups of children, pregnant and lactating women and adult women.”

Pb refers to lead, and PTTI stands for provisional total tolerable intake levels, i.e., safe and acceptable levels. And the products were children’s and women’s multivitamins. In other words:

Estimates of lead exposures for all products were below the safe and acceptable levels for the at-risk population groups of children, pregnant and lactating women and adult women.

So the FDA regards it as acceptable for vitamins to contain extremely small amounts of lead, vitamins that children actually eat.

But products that children may occasionally touch with their hands must not have any lead in them — ANY — thanks to the Consumer Product Safety Improvement Act.

In case anyone misses the point, it’s not that vitamins are unsafe. On the contrary: The FDA uses science, risk assessment and a sense of reality to determine what are safe levels of lead exposure for the most vulnerable people, children including.

The CPSIA does not.