Commissioner Nancy Nord of the Consumer Product Safety Commission (CPSC) writes at her blog, Conversations with Consumers about draft legislation to fix the excesses of the Consumer Product Safety Improvement Act. From the post, “Does the Fix Need a Fix?”:

On February 5, I wrote here that the Congress was considering making changes to the CPSIA. That’s moved to the next step: the five CPSC Commissioners have now been asked to comment on draft legislation to address the unintended consequences of the CPSIA.  Because it has not yet been introduced, it is not officially available but you can read the draft bill analyzed in several blogs including Learning Resources and Shopfloor.

For almost two years we have been talking about the problems with this well-intended but flawed legislation.  I am so pleased that Congress is now willing to begin the process of fixing some of the problems with this law.  While some proposed language is helpful,  my reading overall is the fixes do not meet the mark with respect to focusing on the real safety risk.

For more on the draft legislation being circulated by Chairman Waxman’s staff of the House Energy and Commerce Committee, see our post Monday, “CPSIA Update: House Energy and Commerce Offers Fix.”

Nord raised the many problems with the CPSIA in her prepared testimony at the CPSC’s budget hearing March 4 before the House Appropriations Committee Subcommittee on Financial Services and General Government. In offering a solid list of recommendations to improve the law, Nord reported:

Small businesses have been especially hurt by the sweep of this law. The agency has not done a full economic impact on the effects of CPSIA on small businesses; however anecdotal information puts the impact in the billions of dollars range. We know that many small businesses have been put out of business or have left the children’s products market.

CPSC Chairman Inez Tenenbaum was the chief witness at the appropriations hearing, and in her statement restricted her comments on the CPSIA to the costs of implementing the law. Some might argue that an appropriations hearing is not the correct venue to raise policy disputes, but then, Congress has been awfully reluctant to address the manifest excesses and economic harm of the law. Best engage the issue when you can. The Consumer Product Safety Improvement Act became law on Aug. 14, 2008.

We see that Rep. Jeff Fortenberry (R-NE) and Rep. Heath Schuler (D-NC) this month introduced H.R.4767 to exempt ordinary books and paper-based printed material from the CPSIA’s lead limit.

That’s a laudable goal, but the problems are too many and too severe for piecemeal solutions. Best that Congress fix the problems through a solid, far-reaching piece of legislation, which we can call the Consumer Product Safety Improvement Act Improvement Act. Or, if clarity helps, the Fixing the Mistakes We Made in 2008 in Passing the CPSIA Act.

Chairman Henry Waxman’s staff on the House Energy and Commerce Committee has released draft legislation meant to correct the multitude of problems in the Consumer Product Safety Improvement Act (CPSIA). It includes many of the proposals offered by the National Association of Manufacturers and its member companies and associations.

The discussion draft is here.

The Consumer Product Safety Improvement Act became law on Aug. 14, 2008.

The draft proposal is meant to provide the Consumer Product Safety Commission additional authority in the exclusion process, one of the most confounding flaws of the current law. If a product poses no threat whatsoever — think brass and other lead-containing metal parts on kids’ ATVs or in bicycle valves — the CPSC has not been able to provide a common-sense exemption from the CPSIA’s effective ban on sales. This language should also help manufacturers and sellers of children’s books and ball point pens.

Also proposed is exclusion language for inaccessible parts containing phthalates — shielded wiring, for example — exemptions for extremely low-volume manufacturers, and exemptions for thrift stores. The language would apply prospectively the reduction in 2011 to 100ppm for lead content instead of applying it retroactively, as has been current practice.

The draft also proposes to give the CPSC new authority on voluntary recalls, subpoena power and public notification of imminent hazards.

The Consumer Product Safety Improvement Act became law on Aug. 14, 2008.

The NAM is collecting comments from members in response to the draft language. Not surprisingly, the most passionate and engaged activists on the issue, Rick Woldenberg of Learning Resources Inc. has commented extensively on the draft language at his blog, “CPSIA - Comments & Observations.” Chairman Waxman has at least acknowledge that the law is flawed, Woldenberg writes, but he sharply criticizes the draft’s omissions and failings. From “CPSIA - The New Waxman Amendment Analyzed,“:

CRITICAL ISSUES are absent and unaddressed in this legislation. Examples:

• Risk Assessment by the CPSC and/or the Commission.
• Changes in age limits for the lead standards and phthalates ban.
• Narrowing of the scope of “Children’s Product” to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
• True reform to protect small businesses.
• Tracking labels relief.

All valid points.

More from Woldenberg:

• CSPIA - Treatment of Resale Goods under the Waxman Amendment
• CPSIA - Treatment of Section 101(b)(2) in the New Waxman Amendment

The Consumer Product Safety Improvement Act became law on Aug. 14, 2008.

UPDATE: Roll Call has a sympathetic article on Chairman Waxman today, “Henry Waxman in His Element.” The story does not mention the CPSIA, which became law on Aug. 14, 2008.

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:

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.)

The Wall Street Journal today editorializes on yet another in the series of absurd and jobs-killing decisions the Consumer Product Safety Improvement Act has forced upon the Consumer Product Safety Commission. From “Congress’ Brass Knuckles“:

The wheels on the bus won’t go ’round and ’round in many playrooms this year if the Consumer Product Safety Commission has its way. On Wednesday, the Commission voted against a petition to exempt small pieces of brass used in the wheels on toy cars, tractors and buses from draconian lead standards. The fiasco is one more sign that Congress must address the chaos created by its 2008 law regulating lead in toys.

Lead is a typical component of brass but poses minuscule risk to children through toys. As the CPSC’s own staff remarked, “the estimated exposure to lead from children’s contact with the die-cast toys would have little impact on the blood lead level.” But no matter, the language of the law says the Commission can’t consider risk in granting exclusions. Any potential absorption of lead at all is grounds for a ban, despite its presence in other common brass fixtures kids get their hands on regularly, like doorknobs and keys.

This zero tolerance for lead — and reality — is indeed included in the CPSIA law, which is why the law must be changed.

The National Association of Manufacturers-led CPSC Coalition sent a letter from 41 different trade associations to Sen. Mark Pryor (D-AR) in October asking for a Senate Commerce Committee hearing on the CPSIA. (Copy here.) It’s long past time for the Senate to hear from people and businesses who have been laid low by the CPSIA’s brass knuckle approach.

UPDATE: More from Walter Olson at Overlawyered.com, “CPSIA’s ban on brass.”

Good online column from Hugh Hewitt, who sees the unintended but still damaging consequences of the Consumer Product Safety Improvement Act, the Endangered Species Act and the Clean Water Act as persuasive grounds to fear expanded federal government control of health care. From “The CPSIA, The ESA, The CWA and Obamacare“:

What the CPSIA, the ESA and CWA all have in common is that the disastrous economic costs they are operating to exact from the private sector were not intended by the men and women who drafted them and were not foreseen by those who legislators who voted for them. Client after client arrives in our offices in various states of disbelief that Congress could have possibly intended the federal laws to operate in such destructive fashion.

The answer is always the same: Congress did not so intend, but activists, enthusiasts within bureaucracies, and the federal courts have all combined to take seemingly sensible efforts at apparently practical, small-step legislation and turn them all into regulatory behemoths with vast power to cripple or completely destroy private enterprise.

The Wall Street Journal also reached for historical comparisons — if a little further back in history — in its tough editorial today, “The Worst Bill Ever“:

Critics will say we are exaggerating, but we believe it is no stretch to say that Mrs. Pelosi’s handiwork ranks with the Smoot-Hawley tariff and FDR’s National Industrial Recovery Act as among the worst bills Congress has ever seriously contemplated.

That’s not bombast. The Journal cites specific economic catastrophes inherent in the bill, including the European levels of high taxation.

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.