Rep. John Dingell (D-MI) last week sent a letter to the Consumer Product Safety Commission asking 10  questions about the Consumer Product Safety Improvement Act. As chairman of the House Commerce Committee, Rep. Dingell was a voice for a little real-world balance last year when Congress considered H.R. 4040, the CPSIA. Unfortunately, the imbalanced Senate version wound up playing a bigger role in the writing of the final bill.

Which make Rep. Dingell’s inquiries good questions, but belated. For example:

4. Does CPSC have any suggestion for how to mitigate any such economic impact of the Act on small manufacturers of children’s products (e.g., component testing for lead and phthalate content) that, in accordance with the intent of the Act and the CPSC’s mission, will not compromise the health and safety of children using them?

5. What information has CPSC received about the impact of the Act on the availability of second-hand products for children, especially clothing?  It is my understanding that many second-hand stores now refuse to sell children’s products.  Does CPSC have any suggestions for how to mitigate any negative effects of the Act on second-hand stores for children’s products, especially in light of the recent economic downturn and the consequent increased need for low-cost sources of children’s clothing?

6. Does CPSC believe that the age limit contained in the Act’s definition of “children’s products” (i.e., 12 years and under) is appropriate?  If not, what should the age limit be?  Further, should CPSC have the discretion to lower the age limit for certain groups of children’s products for which the risk of harm from lead or phthalate exposure is remote to non-existent (e.g., snaps or zippers on children’s clothing)?

7. Although some youth all-terrain vehicles (ATVs) and youth motorcycles are intended for use by children under 12 years of age, does CPSC believe it is necessary that these products be tested for lead and phthalate content?  Similarly, does CPSC believe that these products present a risk to children for the absorption of phthalates or lead?

There has been an effort by some responsibility-shifting members of Congress to make the CPSC and especially Commissioner Nancy Nord the fall guy for the CPSIA’s many, many excesses. But ultimately, it’s the lawmakers who made the law, and it’s up to Congress to fix it.

To the extent Rep. Dingell’s questions and the answers due this Friday help in the writing of that law, good. Late, but good.

Below we note the possibility of a House Small Business Committee hearing into the effects of the Consumer Product Safety Improvement Act, a hearing tentatively scheduled and then unscheduled. Which reminds us of this item we pulled from the House Energy and Commerce Committee’s website on December 8, 2008 (since deleted):

*THE FOLLOWING HEARING HAS BEEN POSTPONED TO A DATE TO BE DETERMINED*
WEDNESDAY, DECEMBER 10, 2008
Implementation of the CPSIA: Urgent Questions about Application Dates,
Testing and Certification, and Protecting Children
This is an oversight hearing examining implementation of Public Law 110-314
(H.R. 4040, the Consumer Product Safety Improvement Act (CPSIA)).
Subcommittee on Commerce, Trade, and Consumer Protection Hearing
10:00 a.m. in room 2123 Rayburn House Office Building

Postponed until a date to be determined.

Well, when is that date?

UPDATE (8:30 p.m. Saturday): A reader asks how one knows if a committee (such as the House Small Business Committee) has scheduled a hearing, postponed it, or nothing is one the agenda. Answer: Check the Congressional Record’s Daily Digest on Fridays, when it carries a list of the upcoming week’s hearing. According to the latest Daily Digest, no hearing is pending.

Otherwise, if a hearing does get put on the schedule, we’ll make sure to note it here at the blog. But you shouldn’t anticipate one.

Walter Olson at City Journal, “The New Book Banning“:

It’s hard to believe, but true: under a law Congress passed last year aimed at regulating hazards in children’s products, the federal government has now advised that children’s books published before 1985 should not be considered safe and may in many cases be unlawful to sell or distribute. Merchants, thrift stores, and booksellers may be at risk if they sell older volumes, or even give them away, without first subjecting them to testing—at prohibitive expense. Many used-book sellers, consignment stores, Goodwill outlets, and the like have accordingly begun to refuse new donations of pre-1985 volumes, yank existing ones off their shelves, and in some cases discard them en masse.

He reports an account of book destruction from the somewhere outside the Beltway:

I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage! Today was the deadline and I just can’t believe it! Every book they had on the shelves prior to 1985 was destroyed! I managed to grab a 1967 edition of “The Outsiders” from the top of the box, but so many!

The bill that became the Consumer Product Safety Improvement Act, H.R. 4040, was introduced on November 1, 2007. It became law on August 14, 2008. Nine-plus months of Congressional consideration and negotiation and some limited floor debate. Nine months, and the result is economic havoc. Books being destroyed!

The American Recovery and Reinvestment Act, H.R. 1, was introduced on January 26, 2009. The final version of the economic stimulus bill passed the House and Senate on February 13. Nineteen days, and the result will be …

From the White House:

President Bush Signs H.R. 4040, H.R. 4137, and H.R. 6432 Into Law

H.R. 4040, the “Consumer Product Safety Improvement Act of 2008,” which reauthorizes the Consumer Product Safety Commission for FYs 2010-2014 and expands the Commission’s role in ensuring the safety of consumer products, especially those designed for children;

H.R. 4137, the “Higher Education Opportunity Act,” which reauthorizes and makes changes to higher education programs; and

H.R. 6432, the which reauthorizes through FY 2013 the Animal Drug User Fee Act and authorizes a new user fee program for animal generic drugs.

The report from ABC News is all about toy safety and children products provisions, which supporters of expanded regulation and litigation successfully used to frame the political debate. MarketWatch’s story is more descriptive and disinterested. We’re waiting for the first news release from advocates, something along the lines of “Group X Hails Progress, Demands More…”

UPDATE: Speaker Nancy Pelosi’s statement emphasizes the children.

As noted below, H.R. 4040, the now-passed consumer product regulation and litigation bill, bans three classes of phthalates “temporarily” until scientific studies prove these plastic softeners are safe to use. A preemptive ban represents the “precautionary principle” in action, preventing any use of a substance until it is demonstrated to pose no risk whatsoever.

This regulatory principle (which is used in the European Union) is an effective weapon when wielded by luddites, ideological scaredycats, anti-consumerists and friends of the tort bar against anything that offends their sensitivities. After all, you can never absolutely prove a negative.

Company: “We’re glad to introduce our new Product A, with X-Appeal! After years of extensive testing and rigorous federal regulatory review, its approval is a win-win for everyone. This product cuts costs to consumers by 50 percent, lasts twice as long, eliminates previously challenged ingredients, and is fun, too!”

Company Critic: “You don’t care about children. You just care about money. Our studies — well, it’s more like an opinion survey, but a scientific one — show a substantial risk when the substance is injested daily in excess of 500 grams. We’re calling for a consumer boycott.”

But so much for reductive scenarios. In the real world…

Columnist Dan Gardner of The Ottawa Citizen reports that Toronto public health officials have warned parents to minimize their children’s time spent on cellphones. Dr. Ronald Herberman, the director of the University of Pittsburgh Cancer Institute, sent staff a memo urging children and adults to reduce their use of cellphones. Similar warnings have been made in Europe. Serious stuff, right? From “The precautionary principle“:

“Overall,” reports the U.S. National Cancer Institute, “research has not consistently demonstrated a link between cellular telephone use and cancer or any other adverse health effect.” A spokesman told the National Post that: “Health Canada sees no scientific reason to consider the use of cellphones as unsafe.”

And because the types of cancer allegedly caused by cellphones are very rare, any risk — if there is one — “is probably very small,” adds the U.S. Food and Drug Administration.

These conclusions aren’t actually disputed by the authorities warning against cellphone use. What they argue instead is — however much nobler the intentions — almost the mirror image of the tobacco industry’s doubt campaign.

There is some evidence that cellphones might cause harm, they say. And there are large gaps in the research. And that’s enough to act.

“At the heart of my concern,” Dr. Herberman told The Associated Press, “is that we shouldn’t wait for a definitive study to come out, but err on the side of being safe rather than sorry later.”

Yes, it’s the “precautionary principle” again.

So, let’s panic parents, attack a key technology, and, just possibly, gin up enough public anxiety so a class-action suit will be easier to generate…because of the possibility of a chance of a risk, maybe.

Among the bad precedents set in the just-passed H.R. 4040, the consumer product litigation and regulation bill, was the banning of six classes of phthalates (a plastic softener), and more specifically the “temporary” banning of the three forms of the chemical pending a safety review by regulators and the National Academy of Sciences. No matter that previous safety reviews by European and American scientific panels saw no reasonable danger of using phthalates in toys and nail polish.

So we now have the policymaking branch of government venturing even deeper into regulatory matters, for which it is ill-prepared; Congress responds politically, not scientifically.

Even worse, this preemptive prohibition represents an embrace of the “precautionary principle,” a regulatory standard that demands any substance be first proved safe before it can be used.

• Sen. Dianne Feinstein (D-CA) said, “I believe this legislation is important as the first national effort to begin to exercise a precautionary principle in the use of chemicals as additives to products that affect human health. It is my belief that chemical additives should not be placed in products that can impact health adversely until they are tested and found to be benign.”
• Also, the Pew Charitable Trusts’ Environmental Health campaign issued a release upon the CPSC bill’s inclusion of a phthalates ban: “That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.” 

Just the tip of the iceberg, eh? So let’s “temporarily” ban those 80,000+ chemicals, just to be safe.

Cass R. Sunstein, a prominent Harvard Law Professor, examined the precautionary principle in a recent Boston Globe column, “Throwing precaution to the wind“:

The central idea is simple: Avoid steps that will create a risk of harm. Until safety is established, be cautious; do not require unambiguous evidence. The principle, in its many variations, has come to play a powerful role in public debate, the development of government policy, and even international law. It can be, and has been, applied to countless problems, including nuclear power, cellphones, pesticides, electromagnetic fields, and even human cloning.

Yet the precautionary principle, for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks - and hence the principle bans what it simultaneously requires.

Indeed. What replaces phthalates? A substance with its own, perhaps unforeseen risks? Or is there no replacement, meaning some products will no longer be available in a malleable form? “Oh, we used to have a vinyl product that would have been perfect for that use, really durable, but well, Congress banned it.”

And if you embrace the precautionary principle, then cost can never be considered. The result is the preclusion of any sort of cost-benefit analysis.

As Sunstein says, the precautionary appeal is deeply incoherent. It asks for proof of a negative, an impossible standard to meet but one that offers endless opportunity for grandstanding and political attacks.

In a vote last night, 89-3, the Senate adopted the conference report for H.R. 4040, the CPSC authority and regulation and litigation expansion bill.

So the bill goes to the President for his signature, which he will certainly provide. When, though? He heads to Kennebunkport tonight, is at Camp David Sunday, and then leaves for South Korea, Thailand and China on Monday. Doubt he’ll sign the bill as part of the Olympics’ opening ceremonies.

Here’s the Washington Post story, which focuses on the toy’s angle.

It’s a done deal, H.R. 4040. Or will be soon enough. Chairman Dingell and Ranking Member Barton are praising the bipartisan agreement. “The end product is worthy of support by everybody,” Barton said.

There’s much that concerns the business community in this legislation, obviously. We’ve written about the objections over the last several days.  That said, the members of the conference committee and their staffs listened and acknowledged those concerns.

The reality is that the heightened public anxiety about toys and children’s product safety, in particular, has helped create an environment in which some form of legislation like this was going to pass. And so it will…

The NAM sent a letter to the conferees today that affirms the association’s belief in enhanced funding and authority for the CPSC and also registers our concerns. The text is here.

UPDATE (6:05 p.m.): 424-1.

Self-appointed consumer activist groups have issued a joint release hailing the final conference report on H.R. 4040, the CPSC litigation and regulation expansion bill. The statement has been posted on the USPIRG website here: “Consumer Groups Urge Final Passage of Product Safety Bill”

The talking points are all about toy safety, protecting the children. This obvious political sales job suggests there are many actual provisions in the bill the groups would prefer not to talk about and would rather not be examined in detail. (See this PointofLaw.com post for some substantive objections.)

And in this political world, you can expect the legislation to pass the House today — it’s on the House’s suspension calendar — go the Senate for a probable vote Friday and be signed into law by the President.

So that ends the debate, right? Oh, sure.

From a what-have-you-done-for-me-lately statement by Andy Igrejas, manager of the Pew Charitable Trusts’ Environmental Health campaign:

“That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.”

Thus, with all its other purposes, the CPSC bill is also a stalking horse for the precautionary principle.  Some people just think Europe is better.

The conference report for H.R. 4040, the CPSC regulation and litigation expansion bill, is now available here as a 1.8 MB .pdf download.

The bill is listed on the House’s suspension calendar for action today.