Rick Woldenberg of Learning Resources Inc., a leading advocate of reforming the Consumer Product Safety Improvement Act, enthusiastically endorses the NAM CPSC Coalition’s renewed request for a one-year stay of the CPSIA’s product tracking label requirements:

In its letter, NAM called the lack of CPSC implementing guidance on tracking labels “an unconscionable dilemma for industry”. The tracking labels fiasco creates enormous burdens for industry and is in many ways pointless and unjustifiable. See my earlier posts (here, here, here and here) on this topic and my testimony before the CPSC for background (here and here). To allow this provision to stand, without having given ANY guidance or answered ANY of the legitimate and appropriate questions of industry, would be shamefully irresponsible of the CPSC Commission. [Unfortunately, Congress seems immune to shame when it comes to the CPSIA and will not act to delay this provision. As its leaders will tell you, Congress has already acted with great "common sense".] The notion that it is okay to induce widespread economic convulsions as part of some kind of jolly “learning process” must be REJECTED.

If Rick comes across as exercised, frustrated and angry, well, thousands of manufacturers — including many, many small, home-based business owners — are similarly besides themselves. When Congress passes a law that puts you out of business and then pretends there’s not a problem, frustration and anger seem like a reasonable reaction.

In light of the arrival of new CPSC Chairman Inez Tenenbaum, the National Association of Manufacturers and the CPSC Coalition have submitted another request for an emergency, one-year stay of enforcement of Section 103 of the Consumer Product Safety Improvement Act (CPSIA) which requires a new tracking label for children’s products made on or after August 14, 2009.

A request was first made on March 24, 2009, but on May 13 the two-member Consumer Product Safety Commission split one/one on the emergency stay. (Commissioner Nord voted yes, Commissioner Moore no.)

From the CPSC Coalition letter (copy here):

The Section 103 tracking labels provision is a novel manufacturing requirement in the United States and has raised legitimate questions about implementation, feasibility and the breadth of application. The lack of guidance or implementing rules has created an unconscionable dilemma for industry. Taking action now will provide the Commission, industry, and other product safety stakeholders time to work together to develop an orderly approach to this new requirement, maximizing the prospects for a tracking label system to be both useful and cost-effective for all stakeholders and minimizing the possibility of yet another economic crisis.

In Chairman Tenenbaum’s confirmation hearing testimony, she emphasized the importance of guidance in making sure the CPSIA worked effectively. But right there is nothing to guide manufacturers or retailers in implementing the tracking label requirements. Even if the CPSC produces the greatest guidance ever drafted within the next month, it will be impossible for business to put into place.

Chairman Tenenbaum can demonstrate her belief in the value and seriousness of CPSC guidance by voting to provide the necessary time, a one-year stay.

From Al Kamen’s Washington Post column, reviewing the State Department’s annual compilation of gifts from foreign visitors to federal officials:

[Ukrainian President Viktor] Yushchenko gave Lynne Cheney “Three Ukrainian cookbooks,” valued at $90, which she kept. And he gave the Cheney daughters and grandkids seven Ukrainian children’s books, six plush stuffed animals, three girls’ blouses, three boys’ shirts, and a “wooden toy cart with horses,” which they kept.

Goodness. That’s a full gift bag of children’s products. Had they been tested for lead or phthalate content? What about the paint or varnish on the wooden toy cart with horses? Were the children’s books published pre-1985, or do the Ukrainians even today still use ink with trace amounts of lead? And surely the gifts had permanent labels attached to them.

These gifts could have started a real foreign policy crisis.

If only it were this kind of a joking matter. The next big snagbar from the Consumer Product Safety Improvement Act arrives with the August 14th deadline for permanent tracking labels on all children’s products. Walter Olson summarizes at Overlawyered.com the many, crushing problems associated with the latest CPSIA requirement:

As noted earlier, the next all-out debacle on the CPSIA front is expected to result from the law’s tracking and labeling regulations, due to take effect August 14, and for which the CPSC has not yet issued guidance, although product makers ordinarily need to resolve crucial issues of manufacturing (as with etching of lot numbers) and packaging at least many months if not longer in advance of sale. Sharon McLoone at CNNMoney had quite a good report a week ago on this latest crisis, which as of this writing has not been followed up much of anywhere else in the press.

Welcome aboard, Chairman Tenenbaum. You just missed yet another strange act of regulatory confusion that your colleagues at the Consumer Product Safety Commission were forced into making because of the Consumer Product Safety Improvement Act (CPSIA).

The CPSC has issued a two-year stay of enforcement for youth bicycles from the law’s lowered standards for lead content. The action means the CPSC will not go after manufacturers and retailers for failing to meet the new standards, but it does not free the companies from legal liability.

It’s an unhappy medium. But then, enforcement of the law would have endangered children.

Commissioner Nancy Nord issued a statement upon the issuance of a stay. Excerpt:

From the standpoint of the consumer, enforcement of the law as written by the Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood. But most importantly, because lead adds to the strength of the metal used and has other useful attributes, enforcement of the law could adversely impact the safety of children’s bicycles, leading to more deaths and injuries. A stay of enforcement is our only option to protect children.

While the stay of enforcement will allow children’s bicycles to continue to be sold over the next two years, the stay also contemplates that manufacturers develop plans to reengineer their products to remove the lead from the metal used in children’s bicycles. In other words, we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter.

It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays opens the agency up to legal challenge for not enforcing the law.

Commissioner Moore also issued a statement expressing concern about the structural integrity of bicycles and supporting the two-year state.

The Washington Times today publishes a column we’ve written on the Consumer Product Safety Improvement Act, an op-ed headlined “Lead-footed safety issues,” or in the print version, “Like a lead balloon.”

The arguments will be familiar to those who read Shopfloor or otherwise follow the CPSIA’s excesses:

It’s a safe bet that no member of Congress has ever given a speech proudly endorsing a bill to close mom-and-pop businesses, hurt low-income shoppers, cause libraries to discard children’s books and ban products ranging from dirt bikes to ballpoint pens.

Last year, Congress overwhelmingly passed a law that did all these things - forcing small businesses to close and punishing manufacturers, retailers and consumers. Yet the Consumer Product Safety Improvement Act (CPSIA) became law with few warnings - and no congressional floor speeches - about the serious economic harm it would cause.

We conclude with an observation about Inez Tenenbaum, soon to assume the duties as chairman of the Consumer Product Safety Commission:

Ms. Tenenbaum is being put in a difficult position, asked to enforce a flawed law that is destroying businesses and depriving consumers of safe and useful products. Her tasks ahead include not just regulation and enforcement, but persuasion. She must convince Congress of what is already painfully clear to businesses large and small: It’s time to fix the Consumer Product Safety Improvement Act.

McClatchy Newspapers, “Tenenbaum gets unanimous approval to lead safety agency“:

“There are a great number of challenges facing the Consumer Product Safety Commission, but the good thing is that Congress voted last year to revitalize the agency in light of the surge of imports and the fact that we live in a global economy,” Tenenbaum said.

Two-thirds of the products regulated by the commission now come from overseas, most of them from China.

China’s government has drawn the ire of consumer advocates because of health and safety problems caused by contaminated toys and pet food, defective drywall and other products.

Tenenbaum represents new leadership, and when she determines that Consumer Product Safety Improvement Act’s overreach has caused serious problems with no benefit to product safety, Congress will not be able to dismiss her with political excuses.

Reuters story.

From the U.S. Senate Commerce Committee, “Commerce Committee Approves Nominees”

WASHINGTON D.C. - Today the U.S. Senate Commerce, Science and Transportation Committee conducted an off the floor markup on the nominations of:

 

•       Ms. Inez M. Tenenbaum: To be Chairman and Commissioner of the United States Consumer

         Product Safety Commission

 

•        Mr. Julius Genachowski: To be Chairman of the Federal Communications Commission

 

•        Mr. Robert McDowell: To be Commissioner of the Federal Communications Commission

 

•        The Committee also considered nominations for promotion of U.S. Coast Guard officers.

 

The nominees were all successfully voted out of Committee. 

Keen review by CPSIA-reform advocate Rick Woldenberg of yesterday’s Senate Commerce confirmation hearing for CPSC-nominee Inez Tenenbaum. He notes her general engagement and the positive tone of the hearing, some of her bobbles which one can attribute to still getting up to speed, and the frequent invoking by the nominee and committee members of the term “common sense.” Rick hopes it’s “code for an acknowledgement that the legislative scheme needs to be fixed.” We hope it’s code for “common sense.”

Rick also notes Tenenbaum’s references to the power of “guidance.” To wit:

Another worry: Ms. Tenenbaum’s apparent conviction that many problems under the CPSIA will be resolved with more guidance and the issuance of final regulations. Perhaps some issues can be resolved that way but most won’t, like tracking labels, resale shops’ legal liability under the new law, the cost of safety testing, the need to self-report for every conceivable violation of the law and the confusing state of competing regulatory agencies (CPSC versus 50 SAGs). Interestingly, Ms. Tenenbaum stated that the stays were “working” and that fewer stays will be necessary as new guidance is issued. I hope the subject of how well stays are working is on her investigative agenda when she starts her new job.

In conjunction with the confirmation hearing for Inez Tenenbaum to chair the Consumer Product Safety Commission, Sen. Kay Bailey Hutchison (R-TX), issued a news release calling for a Senate Commerce Committee hearing to work on fixing the Consumer Product Safety Improvement Act.

This is the clearest statement from a Senator we’ve seen about the CPSIA’s problems, and it carries weight because Hutchison is the ranking Republican on the committee.

From “Senator Hutchison Calls for Committee Hearing to Fix New CPSC Law“:

“Overall, last year’s law is a good one, and it makes many improvements to the agency. As with most new programs, though, there are a few glitches that need to be worked out,” said Senator Hutchison. “While we worked very hard to write a good bill and had the best of intentions, we knew it was not perfect, and unintended consequences of the law have since surfaced.”

Senator Hutchison voiced her concerns with the new law’s effect on thrift stores, charity sales, and small businesses and noted the need for “common sense” when it comes to enforcement. She added that she was concerned with the time businesses have to comply with the law, as well as the need to provide flexibility when a business needs more time.

“This Committee needs to hold a hearing to discuss implementation of the law and identify significant problems so we can find a solution that will not inflict further harm on the industries and businesses, including small businesses and home crafters, that are already suffering during these tough economic times,” Senator Hutchison said. “Everyone can agree that we want to protect consumers from harmful products, especially children, but an unreasonable law will only be counterproductive.”

Banning dirt bikes, ballpoint pens and pre-1985 kids books and the closure of scores of home-based businesses qualify as more than “a few glitches,” but we won’t quibble with the diplomatic rhetoric of a Senate news release.

What’s significant and welcome here is a key committee member says it’s time to fix the law. For that …thank you.

Inez Tenenbaum’s opening statement before the Senate Commerce Committee is now posted. It includes no real engagement with the serious problems caused by the Consumer Product Safety Improvement Act.

Sen. Pryor suggests she return to the committee to provide an update, perhaps 60 days after her confirmation, saying they could explore more detail then. Fair enough.

Sen. Kay Bailey Hutchison (R-TX) comments about CPSIA, “However, there are some glitches, as often happens with legislation, and some areas where there has been a difference of opinion about the intent of some of the language. ”

Tenenbaum deflects generally — as is SOP in these confirmation hearings — saying, “It would be premature ….to take a position on whether the law needs to be amended,” but she hopes her tenure at the CPSC is seen as embracing common sense.

And, “As soon as we can promulgate the regulations and get guidance in place…the less I believe you will be you will hear in the Senate about the law…”

Hutchison asks about stays of enforcement. Tenenbaum says, “To me the stays of enforcement seem to be working.”

Senator Hutchison is exactly right when she says the Senate Commerce Committee needs to havea  hearing about the CPSIA. This certainly isn’t one.

Many folks are following the confirmation hearing with Twitter here.

UPDATE (11:15 a.m.): Senator Boxer poses tough question: “Can you assure me you will put the children first?” Tenenbaum admits that, yes, she will.

Sen. Mark Warner (D-VA) asks about Chinese drywall.

UPDATE (11:30 a.m.): Thanks to Sen. Amy Klobuchar (D-MN) for raising problems her constituents, Polaris and Arctic Cat, face with complying with CPSIA’s reporting requirements for component parts. Although she says no one anticipated these difficulty-causing interpretations. Shouldn’t they have?

UPDATE (noon): Sen. McCaskill says librarians have called her crying because of CPSIA’s effect in removing books. Both she and Tenenbaum talk about need for guidance. With respect, again that misses the point. The problems stem from the law.

Sen. Pryor asks for follow-up questions by today, so committee can move quickly on confirmation. Meeting adjourned.