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. (continue reading…)

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.

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.

Sarah Natividad, owner of Curious Workmanship, a home-based microbusiness in Tooele, Utah, uses Twitter to report her decision to shut down her operations, a business decision forced upon her by the Consumer Product Safety Improvement Act:

We quoted Sarah in the Washington Times op-ed a few weeks ago, and she has commented recently on CPSIA-related posts at Shopfloor.org. Sorry to see it come to this.

Bet she’s make a good witness at a House Energy and Commerce Committee hearing on the CPSIA.

House Democrats voted 137-122 yesterday to elect Rep. Henry Waxman (D-CA) chairman of the House Energy and Commerce Committee, replacing the current chairman, Rep. John Dingell (D-MI. The move was significant in terms of practice, with Dingell’s seniority being trumped, as well as in terms of politics and policy, as Waxman is much more willing to aggressively regulate and direct the economy. So, a sample of the reaction…

• San Francisco Chronicle, “Waxman win boosts state’s clout in Congress“: “After years battling the Bush administration and Dingell over the state’s efforts to set the nation’s toughest limits on greenhouse gases, Californians now control both House and Senate committees that will be writing climate-change legislation. They will have key allies in House Speaker Nancy Pelosi, D-San Francisco, and President-elect Barack Obama, who just this week pledged rapid action on global warming.”

• Detroit Free Press, “Dingell’s ouster as committee chair a sea change in Michigan’s clout“: “In a historic week that saw Michigan’s prestige in the nation’s capital rapidly dwindle with automakers spurned in their request for billions of dollars in aid, Dingell, the state’s most powerful voice in the U.S. House of Representatives, was stripped of a key committee chairmanship….For decades, the post had allowed the Dearborn Democrat to promote and protect Michigan’s interests — especially the automotive industry….Rep. Thad McCotter, a Livonia Republican, characterized it as ‘a body blow’ to Michigan families.”

• Detroit News editorial, “Dingell’s defeat a victory for California extremists“: “The Democrats didn’t choose Rep. Henry Waxman to replace Dingell because the California Democrat is more charming or politically persuasive. They picked him because he advocates a radical approach to combatting global warming and other environmental threats, while Dingell has insisted on a more deliberate approach that balances the needs to protect both jobs and the environment.”

• Wall Street Journal editorial, “The Waxman Democrats — What the coup against Dingell means for business“: “We should add that Mr. Dingell is hardly some business apologist. At Energy and Commerce in the 1980s and early 1990s, Mr. Dingell would burn the paint off the committee room walls with his interrogations of energy, insurance and drug company executives. The irony is that Democrats have found, in Mr. Waxman, an even more extreme antibusiness tribune, who will no doubt use his new powers to go after any concern that turns a profit but refuses to pay his party the obeisance of campaign cash and regulatory submission. In short, the Democrats have ousted the dean of the House for the spleen of the House.”

  (continue reading…)