The Consumer Product Safety Commission, with Commissioner Thomas Moore now acting chairman, has managed to make implementation of the Consumer Product Safety Improvement Act (CPSIA) even more confusing for business and consumers. Muddling a bad law is not progress, but then, the CPSIA is already plenty bad.
The issue at hand was a petition from the Writing Instrument Manufacturers Association for an exclusion from the lead-content limits in the CPSIA. The balls in ballpoint pens sit in a metal tip, and the alloy contains minute amounts of lead that fail to meet the CPSIA standards. Although expert analysis and the CPSC staff identify no health threat to children from using the pens, the 2008 law forbids the possibility of “any” absorption. Nothing, pens included, can meet this absolute standard.
Last week, the commissioners voted to issue the following decision, or non-decision, as the case may be:
A decision has not been reached on this matter. The Commission voted 1-1 on WIMA’s request for an exclusion of ball point pen tips. Acting Chairman Moore voted to deny the request for exclusion. Commissioner Nord voted to grant the request for exclusion, as it applies to children’s products. Regarding a stay of enforcement the Commission voted 1-1. Acting Chairman Moore voted that if the vote is to deny WIMA’s request for exclusion or the vote results in no action due to a one-one tie, do not direct the staff to draft a stay of enforcement of the section 101 (b)(1) lead for ball point pens that are children’s products. Commissioner Nord voted that if the vote is to deny WIMA’s request for exclusion or the vote results in no action due to a one-one tie, direct the staff to draft a stay of enforcement of the section 101 (b)(1) lead for ball point pens that are children’s products.
Manufacturers need legal certainty, an understandable and consistent statutory and regulatory framework — call it, oh, the rule of law — in order to function in an economy. IF, IF, IF is no help whatsoever.
Both commissioners attached statements to their votes, and the CPSC’s general counsel issued a letter to the trade association asserting the WIMA had exaggerated the potential impact to the ballpoint pen industry. WIMA contended that 4 to 5 billion pens would fail to meet the lead-content standards. The CPSC’s general counsel countered:
The lead ban is applicable to children’s products containing lead. The term “children’s product” means a consumer product designed or intended primarily for children 12 years of age or younger. Accordingly, to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for use by children 12 years or younger, these pens would not be subject to the lead limits under CPSIA.
So we’re not talking billions of pens. It’s only a couple hundred million, at most.
The commissioners’ statements are well worth reading to demonstrate how bad law creates bad outcomes; they also offer a clear difference between the two’s regulatory philosophies.
The writing instrument manufacturers have indicated that they may be able to find a
substitute for the lead in ball point pens in a couple of years. I hope they will work toward that goal. Their other alternative is simply not to make or market ball point pens with excess lead that appeal primarily to children. In the meantime, while I do not expect the agency to turn into the “pen police,” manufacturers, retailers and distributors should police themselves as we move toward a marketplace where lead in children’s products is dramatically reduced.
But remember, the Consumer Product Safety Improvement Act also grants enforcement authority to state attorneys general, and there’s also potential liability in the form of class-action suits. In Commissioner Moore’s view, the ballpoint pen manufacturers have to live with one of two things: A liability time bomb, or the withdrawal of millions of dollars worth of products from the marketplace.
The Commission needs to spend its resources focusing on products that actually harm children, not chasing speculative harms that are not relevant to the real world. Removing perfectly safe products will needlessly limit consumer choice and, more importantly, not advance consumer safety. If Section 101(b) has any meaning at all, then a rulemaking proceeding to consider an exclusion for children’s pens should be initiated.
That is indeed the bottom line. The CPSIA requires removal of perfectly safe products from store shelves for no safety benefit whatsoever.
That the two commissioners have been pushed into this bizarre corner of regulating contra reality reaffirms what should be obvious to everyone, even the safety absolutists: The CPSIA is horrible, economically ruinous legislation that Congress — CONGRESS — must change.