Nanotechnology will be on the table when the House Science Committee holds a hearing Wednesday, “The Future of Manufacturing: What is the Role of the Federal Government in Supporting Innovation by U.S. Manufacturers?” Among those testifying is Mark Tuominen, Ph.D., director of the National Manufacturing Network.

The multiagency federal National Nanotechnology Initiative last month released its 2011 budget proposal. In his introductory letter, Presidential Science and Technology Advisor John Holdren, wrote, “Nanotechnology R&D constitutes a core building block of innovation that will ultimately accelerate job creation and transform many sectors of our economy through commercialization.” Can regulation be far behind?

Federal oversight of nanotechnology-containing consumer products was a topic of discussion at the March 4 hearing on the Consumer Product Safety Commission’s budget before the House Appropriations Committee Subcommittee on Financial Services and General Government.

In her prepared statement, Chairman Inez Tenenbaum noted the CPSC’s FY 2011 budget request called for $2 million to support the federal National Nanotechnology Initiative. She said:

In the last few years, there has been increasing public concern about potential health impacts associated with this technology. Although nanomaterials may have the same chemical composition as non-nanomaterials, at the nanonscale they may demonstrate different physical and chemical properties – and behave diferently in the environment and the human body.

The $2 million proposed will alow the Commission to conduct exposure and risk assessments of nanomaterials, allow for database updates to properly flag reports of nanotechnology incidents with consumer products, and conduct consumer outreach efforts such as public meetings. Perhaps even more importantly, it will allow the Commission to take a very proactive approach to this emerging issue, rather than merely reacting to incident reports after they are received.

In her statement, Commissioner Nancy Nord said, “This is an area where I have an especially strong interest and am pleased to see the agency take a strong role as nanomaterials transition from the research laboratory to the consumer market.”

The technology’s move — already well under way — to the marketplace is certainly welcome. One hopes regulators show restraint as they react so as to not endanger this “core building block of innovation.”

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.

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.

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.

Walter Olson of the Manhattan Institute summarizes the many deleterious affects of the Consumer Product Safety Improvement Act in the prime editorial spot, the Wall Street Journal’s opinion pages. The news peg is last Thursday’s hearing by a subcommittee of the House Energy and Commerce committee, where only Inez Tenenbaum, chairman of the Consumer Product Safety Commission, was invited to testify.

From “A Destructive Toy Story Made in Washington“:

This law has saddled businesses with billions of dollars in losses on T-shirts, bath toys and other items that were lawful to sell one day and unlawful the next. It has induced thrift and secondhand stores to trash mountains of outgrown blue jeans, bicycles and board games for fear there might be trivial, harmless—but suddenly illegal—quantities of lead in their zippers and valves or phthalates in their plastic spinners. (Phthalates are substances that add flexibility to plastic.) Even classic children’s books are at risk: Because lead was not definitively removed from printing inks until 1985, the CPSC has advised that only kids’ books printed after that date should be considered safe to resell.

Olson also follows up on the underreported angle of the law’s depredations, the product label requirements.

(The) law’s latest shock hit businesses on Aug. 14. That’s when the law’s tracking-label mandate went into effect, requiring that makers of childrens’ goods “place permanent, distinguishing marks on the product and its packaging, to the extent practicable.” The idea is to facilitate recalls and make it easier to trace safety problems. The result will be to capsize yet more small businesses.

In an opening statement at the committee hearing, Chairman Henry Waxman (D-CA) could only bring himself to say that implementation of the CPSIA had been “uneven”:

Now that we are a year away from the recalls, and the most dramatic stories have left the front pages, some suggest that we didn’t really need to enact such a strong law. But the fact remains that the system we had in place was a failure. This law was necessary to protect kids and families across the country.

To retreat now from the proven consumer protections achieved under this law would be a huge mistake.

Is there any wonder that the public is suspicious of other major “reforms” a la health care? In the case of the CPSIA, we have members of Congress and their allies among the “consumer activists” who are so ideologically attached to the legislation that they refuse to countenance any changes to fix the law’s overrreach or to save businesses.

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 Rick Woldenberg’s “CPSIA - Comments & Observations” blog, “CPSIA - Time to Write Mr. Waxman et. al.“:

The House Subcommittee on Commerce, Trade, and Consumer Protection has scheduled a hearing on Thursday, September 10 at 10:00 AM. The hearing is entitled “Consumer Product Safety Commission Oversight: Current Issues and a Vision for the Future.” The Subcommittee inexplicably is planning to call exactly ONE witness, CPSC Chairman Tenenbaum, to discuss the CPSIA.

I disagree with the Subcommittee on this decision. The business community (particularly Small Business) raised many legitimate and serious objections to this law and its implementation. To exclude the business community from this hearing is to distort the truth and to keep inconvenient views off the record. It’s wrong.

Agreed. On the other hand, it does provide an opportunity for Chairman Tenenbaum to demonstrate leadership by calling for specific changes in the law. We suggest she use the March 20 letter from the CPSC senior staff — transmitted by then-Chairman Nord to Rep. John Dingell (D-MI) — as the basis for recommending reform legislation.

UPDATE (11:45 a.m.): The Handmade Toy Alliance has sent a letter to committee members asking to be heard.

The Senate Commerce Committee holds a confirmation hearing today at 10 a.m. for three nominees: Dennis Hightower, Deputy Secretary, Department of Commerce; and Robert Adler and Anne Northup to be members of the Consumer Product Safety Committee. Based solely on the agenda, we’d assume Mr. Hightower goes first, and then the CPSC candidates go afterward. So it might be 10:30 a.m. before the Committee gets to Northup and Adler.

If the committee shows the hearing via the Internet, we’ll watch and report.

Elsewhere, the CPSC has posted the text of Chairman Inez Tenenbaum’s Aug. 1 speech to the APEC Regulator Dialogue on Toy Safety held in Singapore, her first major substantive speech since confirmation.

In the Washington world, these kinds of inaugural remarks are read with extra care for signs of a new regulator’s philosophy and tone.

For that audience, we’d say Tenenbaum’s cautious endorsement or regulatory harmonization was of interest, but especially her brief discussion of the Consumer Product Safety Improvement Act’s mandate of “the long-standing, comprehensive set of voluntary global toy standards used in the U.S. and some other economies – known as ASTM F963.” 

For domestic manufacturers, the news was her reaffirmation throughout the speech of the role of the CPSC as a regulator and enforcer. For example:

My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests. When a law has been passed by U.S. legislators or a new regulation has been established by CPSC, however, it becomes the law of the land. As CPSC’s chief regulator, I will ensure that our requirements are enforced vigorously and fairly.

Enforcement is actually one of my three top priorities as Chairman, along with government transparency and consumer education and advocacy.

One infers: If Congress passes a law that puts people out of business with no safety benefits to the consumer, the CPSC will be there to enforce that law. Surely.

If Congress passes a law? Congress has passed a law that’s putting people out of business, the Consumer Product Safety Improvement Act.

Regulators do not exist to create policy, but they can and should inform the policymaking branch of government, Congress, of the consequences of the laws it has passed. If the law cannot be reasonably enforced, a regulator should say so. Chairman Tenenbaum’s speech had very little of that.

Perhaps that message will be communicated through staff and personal meetings up on Capitol Hill. One hopes.

One way to communicate the message publicly is under the rubric of “consumer advocacy.” As noted above, Tenenbaum cites consumer education and advocacy as one of her three priorities for her chairmanship. Well, consumers have clearly not been well served by the CPSIA, which has forced the withdrawal of pre-1985 children’s books, discarding of used children’s clothing and toys, and the banning of youth-sized ATVs, bicycles and other products.

If that Consumer Product Safety Improvement Act is removing safe consumer products from the marketplace, consumers are being deprived of safe choices. As a “consumer advocate,” a CPSC commissioner should surely make that point to Congress.

The White House yesterday issued a statement announcing President Obama’s plans to nominate the former U.S. Representative from Kentucky, Anne Northup, to be a member of the Consumer Product Safety Commission. She would hold a Republican seat on the commission.

If Northup and Robert Adler, a Democrat whom the President nominated in June, are confirmed by the Senate, the CPSC would reach its full five-member composition called for by the Consumer Product Safety Improvement Act. Gaining that full membership increases accountability and, theoretically, responsiveness to the public.

During her five terms in Congress, Northup was a strong supporter of the U.S. manufacturing economy. Her voting record on “Key Votes” as identified by the National Association of Manufacturing’s Key Vote Committee was always between 90 and 100 percent, and she received the NAM’s Award for Manufacturing Legislative Excellence. (Voting record summary.) So Northup appreciates what it takes to create a strong economy.

It’s also safe to identify her as being endorsed by the Senate Republican Leader, Mitch McConnell of Kentucky. Presidents defer to the Senate leaders and home-state Senators when selecting political appointees from the minority party.

If there’s any heartburn at all here, it’s that President Obama has chosen to follow the political model when making appointees to this regulatory agency. That’s the approach where the executive rewards party loyalists, often defeated candidates for public office. CPSC Chairman Inez Tenenbaum ran and lost a U.S. Senate race in South Carolina; Northup lost her race for governor of Kentucky. (Adler, it should be noted, was a longtime CPSC staffer.)

The other approach is to appoint experts or people with experience in the regulated subject matter to a regulatory agency. In this model, the regulatory agency is led by people who strive to be impartial arbiters, making decisions purely on evidence, science and the Congressional intent behind the law.

The political model’s strength is that the appointees may be more sensitive to the impact their regulatory decisions have on the public. Tenenbaum, a former state education superintendent, and Northup are both experienced in listening and responding to constituents.

The downside is the appointees often defer to the members of Congress, especially the heads of the committees of jurisdiction and the appropriators. It’s not unusual for staff members of regulatory agencies to grouse that, “Oh, Chairman X has gone up to the Hill to get his marching orders.”

Politics have not served the public, consumers or manufacturers in the drafting and enactment of the Consumer Product Safety Improvement Act. As we have detailed in scores CPSC Update posts, the law has made safe products illegal, deprived consumers of desired products, and put people out of business. The economic costs amount of hundreds of thousands millions of dollars, yet the committee members in charge have dismissed the protests as whining or the pleas of greedy business people.

As a regulatory agency, a CSPC that defers to partisan politics, Congressional dictates and the zealousness of “consumer activists” will NOT be serving the public.

McClatchy’s South Carolina reporter in D.C., James Rosen, has reported that Consumer Product Safety Chairman Chairman Inez Tenenbaum has left for China. From “Tenenbaum to challenge Asian nations on export safety“:

Tenenbaum, 58, will address foreign leaders gathered in Singapore for the annual summit of APEC, a major trade group that coordinates commercial ties among the United States, Canada, Russia and 18 Asian countries. In dozens of meetings with government and business dignitaries from across the vast region, Tenenbaum planneded to use Southern charm to deliver a key message. Her agency is once again aggressively enforcing consumer-safety measures after years of near-dormancy caused by funding cuts, staff reductions and commission vacancies under President George W. Bush.

Tenenbaum is traveling with Carter Keithley, head of the Toy Industry Association, an excellent partnership with business that could communicate clearly to Asian government officials and manufacturers what the United States will expect. We wish them success.

As you can tell from the excerpt, it’s a pretty featurish story, a common tone for hometown papers covering new federal appointees. Thus, it doesn’t address the hundreds of millions of dollars of economic harm caused by the overreaching and inflexible Consumer Product Safety Improvement Act, or ask how Tenenbaum’s absence from Washington could affect CPSIA-related deliberations.

The National Association of Manufacturers has renewed its request for a one-year extension of the August 14th deadline for required product tracking labels, critically needed as the CPSC released guidance just one week ago. As Rick Woldenberg of Learning Resources, Inc., commented on the Hugh Hewitt Show, “The idea that you can put a six page document out three weeks before it’s due, and that that would make everything OK just doesn’t make any sense. It affects 60 percent of the economy.”

Fortunately, we live in an age of telephones, fax machines, and e-mail.