Nancy Nord Archives - Shopfloor

CPSIA Update: CPSC Extends Deadline for Lead Testing, Certification

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The Consumer Product Safety Commission on Tuesday, Feb. 1, voted 4-1 to extend the deadline to Dec. 31 for third-party product testing and certification for lead content under the Consumer Product Safety Improvement Act. Only Commissioner Robert Adler voted against the extension.

The CPSC’s news release is here, and the draft statement for the Federal Register is here.

Commissioner Nancy Nord said:

This extension will … give the agency more time to complete the component testing proposed rule and the testing and certification proposed rule. Both these rules need to be in place before the stay of enforcement is lifted. While I would have preferred to specifically tie the lifting of the stay to the issuance of these rules, the December date gives everyone—the agency and manufacturers–a bit more time to prepare.

The stay of enforcement does not relieve anyone from complying with the underlying lead regulations. Therefore, consumer safety is not impacted by the agency’s action. Instead we have pushed off for a bit longer this burdensome third-party testing requirement. However, unless Congress changes the law, the testing requirement will go into effect at the end of December.

The National Association of Manufacturers and members of the NAM’s CPSC Coalition had sought the extension. We appreciate the CPSC’s decision that reflects the real obstacles businesses had encountered in trying to meet the unworkable requirements, and certainly agree with Commissioner Nord that Congress needs to fix the fundamentally flawed Consumer Product Safety Improvement Act.

More …

  • Statement of Chairman Inez M. Tenenbaum on the Commission Approval of a Final Extension of the Lead Content Testing and Certification Stay of Enforcement, February 2, 2011 (pdf)
  • Statement of Commissioner Robert S. Adler Regarding the Extension of CPSC Stay of Enforcement of Testing and Certification Requirements on Lead Content in Children’s Products, February 1, 2011 (pdf)
  • Statement of Commissioner Anne M. Northup on the Extension of the Stay of Enforcement on the Testing and Certification of Certain Children’s Products for Total Lead Content, February 2, 2011 (pdf)

Moving Toward Federal Regulation of Nanotechnology

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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.”

CPSIA Update: Commissioner Nord Says ‘Fix’ Falls Short

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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.

CPSIA Update: So We All Agree, Then? Congress Must Act!

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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.)

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CPSIA Update: Crash, Shatter, Tinkle Go the Jobs

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As we await the Consumer Product Safety Commission’s release of guidance that industry must follow in attaching permanent tracking labels to all children’s products, we offer this update on the economic damage already wrought by the Consumer Product Safety Improvement Act (CPSIA).

This summary below comes from CPSC Commissioner Nancy Nord in her statement issued in conjuction with the CPSC’s denial Friday of the petition from the fashion jewelry industry and others to exempt crystals and beads from the CPSIA’s lead-content standards. The commission posted its decision late Friday, and there has been no news coverage we’ve seen on the determination.

Too bad. As Commissioner Nord notes:

If we adopt the staff recommendation, there will be significant and severe economic injury to those who make and sell these products. Although the total impact has not been computed, we have been given enough anecdotal evidence to know that the economic loss will be severe. Here is a sample of what we have heard:

  • A major retail chain attributed a $6.5 million loss in the first quarter to the lack of an exclusion for crystals; $200,000 of jewelry that complies with Proposition 65 in California nevertheless was pulled by another manufacturer;
  • About 2 million jewelry pieces from a different manufacturer are being returned, the loss estimated to reach millions of dollars;
  • A retailer reported $700,000 in testing costs for crystals;
  • Substantial drop in sales reported by companies who have substituted plastic for crystal products, and
  • Examples of job losses: a small children’s jewelry manufacturer with 50 employees anticipates closing down because of this law; several companies are preparing to reduce their workforce by 1/3 because of the CPSIA.

Seems newsworthy.

Much more, including dependable and discouraging analysis from Rick Woldenberg, “CPSIA – Fashion Jewelry Loses a BIG One.”

UPDATE And here’s the CPSIA’s vote, just arrived via e-mail.

CPSIA Update: CPSC Denies Exemption for Crystals, Beads

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Late Friday the Consumer Products Safety Commission unanimously denied the multi-industry petition to exempt crystals, beads, rhinestones and other decorative bangles from the lead content standards of the Consumer Product Safety Improvement Act, the now-notorious CPSIA.

The three commissioners all issued statements accompanying their votes. New Chairman Inez Tenenbaum cited the legislative history of the CPSIA, which at one point included an exemption for the crystals, later excised. She points to the statute’s ban on products which could produce any absorption of lead by children, and notes the law does not say the CPSC can take potential harm into account.

[A] decision to grant the exclusion by using compliant metal jewelry as the baseline for assessing the acceptable level of exposure will reintroduce risk analysis back into consideration, including such factors as bioavailability of the lead, accessibility of the lead to children, foreseeable use and abuse, foreseeable duration of exposure, marketing, and life cycle of the product. Such an interpretation of the exclusion section of the CPSIA appears to be direct conflict with the statutory language, which does not allow for the consideration of risk.

Our emphasis. No risk-based analysis.

Chairman Tenenbaum then says the CPSC’s enforcement will focus on products primarily intended for children 6 and under (the law applies to products for kids 12 and under), who are more likely to mouth products. In his statement, Commissioner Moore endorses this approach.

So that would make CPSC’s enforcement “risk based.” But didn’t Chairman Tenenbaum just observe the law prohibited such a real-world approach?

In any case, such arbitrary enforcement does nothing to remove the legal liability from manufacturers making and retailers selling the products. The CPSIA allows enforcement by state attorneys general, and civil litigation remains a threat.

Commissioner Nord agreed that the law did not permit an exclusion, but argued for a stay of enforcement as a way to recognize the hardship imposed by the law. Her statement also included a helpful summary of the CPSIA’s many flaws:

At the time of [the law’s] drafting, CPSC staff pointed out that lack of a de minimus standard could lead to arbitrary results but committee staff informed them that this flexibility was not intended. (I recognized that one of the primary sponsors of the legislation recently wrote us arguing that we can “grant exclusions for…materials that can be shown to pose no measurable increase in a child’s blood level…” As much as I agree that this would be a more sensible policy result, the statute does not seem to allow for this flexibility.

The result of not granting an exclusion is to remove from consumers’ hands products that do not present a real risk, that consumers want to buy and that are being produced by companies, many of them small business, who without any net increase in consumer safety.

Nord concludes with her most explicit call yet for Congressional action to fix the law: “It is time for Congress to address the serious issues created by this law in order to make it truly work for the consumer. The lead exclusion process would be one place to start.”

Unfortunately, Congressional leadership appears wedded to the bad law. Chairman Henry Waxman (D-CA) of the House Energy and Commerce Committee recently said there would be hearings on the CPSIA, but then last week he indicated it would be September before any hearing happened. So consumers, manufacturers and employees are out of luck, and more jobs will be lost thanks to Congressional inaction.

CPSIA Update: More Money for CPSC Won’t Solve Law’s Problem

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The supporters of the expanded regulatory state at OMB Watch take note of Congressional efforts to increase funding for the Consumer Product Safety Commission, above and beyond the increases asked for by President Obama. The post, “Congress Looks to Boost CPSC Funding above Obama Request,” reports that while President Obama asked for $107 million for the CPSC in FY 2010, the Senate Appropriations Committee has approved $115 million, and the House Appropriations Committee supported $111.3 million.

The National Association of Manufacturers supported increased funding for the CPSC included in last year’s Consumer Product Safety Improvement Act, and the agency could surely use additional staff and resources. The CPSC has yet to issue guidance for the law’s requirement for product tracking labels, which goes into effect August 14. Labeling nearly every product meant for children with a permanent tracking label is a huge undertaking, but the CPSC’s lack of guidance has left industry working in the dark. (Commissioner Nancy Nord last Friday promised guidance soon. We’re waiting.)

But we suspect the push for even more spending is really an effort by some in Congress to change the subject. A overwhelming bipartisan majority last year passed the Consumer Product Safety Improvement Act, which is has wreaked havoc on everything from ATVs to thrift stores to retailers of dance outfits to the ballpoint pen industry to home-based businesses making baby booties or all-natural wooden toys. It’s put people out of business. (See this, this and this.)

Rather than acknowledge the harm that the CPSIA has caused, Congress’ self-appointed protectors of the consumers prefer to spend more money so they can say, “Safety comes first, and we’re giving the CPSC the tools it needs to implement the law.”

It’s deflection. What we need is not more aggressive implementation of a bad law, but a better law.

CPSIA Update: Yet Another Economic Flat Tire Due to the Law

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Welcome aboard, Chairman Tenenbaum. You just missed yet another strange act of regulatory confusion that your colleagues at the Consumer Product Safety Commission were forced into making because of the Consumer Product Safety Improvement Act (CPSIA).

The CPSC has issued a two-year stay of enforcement for youth bicycles from the law’s lowered standards for lead content. The action means the CPSC will not go after manufacturers and retailers for failing to meet the new standards, but it does not free the companies from legal liability.

It’s an unhappy medium. But then, enforcement of the law would have endangered children.

Commissioner Nancy Nord issued a statement upon the issuance of a stay. Excerpt:

From the standpoint of the consumer, enforcement of the law as written by the Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood. But most importantly, because lead adds to the strength of the metal used and has other useful attributes, enforcement of the law could adversely impact the safety of children’s bicycles, leading to more deaths and injuries. A stay of enforcement is our only option to protect children.

While the stay of enforcement will allow children’s bicycles to continue to be sold over the next two years, the stay also contemplates that manufacturers develop plans to reengineer their products to remove the lead from the metal used in children’s bicycles. In other words, we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter.

It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays opens the agency up to legal challenge for not enforcing the law.

Commissioner Moore also issued a statement expressing concern about the structural integrity of bicycles and supporting the two-year state.

CPSIA Update: Ballpoint Pens Banned, Maybe, Could Be…What?

By | General, Regulations | One Comment

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.

Nord …

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.