Rick Woldenberg of Learning Resources Inc. just refuses to let the Consumer Product Safety Improvement Act beat him into submission, two-and-a-half years after the law began producing all sorts of economic mayhem to the benefit of no one save lawyers and “consumer activists.” In The Hill, Rick writes about last week’s House committee hearing on the draft legislation to repair the fatally flawed law. From “Enough already! It’s time to amend the lead law“:

As directed by Congress, the CPSC has dutifully banned the sale of rhinestones to children, ended the era of youth model ATVs and forbidden the use of brass bushings in toy car wheel assemblies. Why? They might emit a single atom of lead! The supporters of the law justify these extreme actions on the grounds that lead is a poison but somehow overlook that kids are exposed to more lead every day from eating a snack, drinking water or playing outside in the fresh air. The descent into regulation purgatory is down a slippery slope.

Being governed by this law can give you fits. For example, to be able to continue to legally sell our geology kits to schools (featuring real rocks!), we must give this warning: “Caution: Federal law requires us to advise that the rocks in this educational product may contain lead and might be harmful if swallowed.” We don’t relish looking like idiots at the hand of the U.S. government.

We’re certainly not alone in feeling the pain. The law affects many safe products spanning the U.S. economy, like books, t-shirts and shoes, ATVs and dirt bikes, bicycles, donated or resale goods, musical instruments, pens and educational products. The number of companies touched by the CPSIA is in the many thousands.

For more from Rick, a REAL consumer activist, see his AmendtheCPSIA.com blog.

We reported on the House hearing last week here and here. Walter Olson has more at Overlawyered.com, “CPSIA: ‘Toymakers Would Get Relief Under Republican Plan’.”

There’s always been enough political blame to go around for the job-killing excesses of the Consumer Product Safety Improvement Act (CPSIA). With legislation pushed as a response to reports of dangerous children’s products from China, congressional backers of the expanded regulatory state joined with “consumer activists” and the trial lawyers to craft a bill that simply went too far. The CPSIA imposed standards that did little for safety while reflecting no understanding of the real world of manufacturing, retailing and especially small- and home-based businesses.

The conference report for H.R. 4040 passed the House on a vote of 424-1 and the Senate by 89-3. President Bush signed the CPSIA into law on August 14, 2008. So, bipartisan excess.

But as the regulatory rigidity, excesses, and mind-boggling costs became apparent, Congress choose not to fix the law. There were meetings, discussion, one hearing and no legislation this year.

The Consumer Product Safety Commission in 2009-10 has also made a few adjustment and regulatory interpretations, but the law is still adding company-destroying costs and burdens that can’t reasonably be considered necessary for safety. Were children made any safer by removing books and warm jackets from libraries and second-hand stores?

Congress doesn’t have to act, no. Government can wait out the best of them, letting the costs add up, the home-based business give up, U.S. competitiveness deteriorate, and the complainers fade away.

But some refuse to fade. Walter Olson at Overlawyered.com brings us up to date on Rick Woldenberg, a man who doesn’t know the meaning of the word “fade.” From “CPSIA, business anger and the election“: (continue reading…)

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.

All praise to radio talk show host, lawyer, and law professor Hugh Hewitt, who has labored hard to spread the word about the disastrous economic and personal harm caused by the Consumer Product Safety Improvement Act. On Friday, he interviewed Rick Woldenberg of Learning Resources, Inc., a leading activist calling for CPSIA reform, and the three-segment discussion covered all the law’s problems from A to X. (Y and Z are still out there waiting to make themselves known.)

We posted on the interview Saturday, and now Hugh Hewitt has made the transcript available. Thank you! (See also his post: “When Congress Screws Up: ESA, CPSIA and Obamacare.”)

Read the whole thing, but for now here’s the section about tracking labels. The NAM appreciates the mention, Hugh.

HH: Now in terms of the labeling, the tracking label requirement that we talked about during the break, it is effective August 14^th. Explain to the audience when you got word on how to implement the requirement.

RW: Two days ago.

HH: See, no one’s going to believe that, because it’s so absurd.

RW: Well, and there’s been a great deal of interaction with the agency about tracking labels. You know, I must say candidly, the agency has been put in a situation where they always look bad on this kind of thing, and I don’t really want to jump on their back for it. Yes, it’s really unfortunate that it took 11 ½ months, but I will say it’s not like the agency had nothing else to do. They were given a lot of simultaneous, impossible requirements to meet. The mistake I believe that the agency has made is not just admitting that it took too long, and then slow the process down to allow for the kind of discussion with industry, and the time for a smooth, reasonable implementation that a process like this would require. The idea that you can put a six page document out three weeks before it’s due, and that that would make everything okay just doesn’t make any sense. It effects 60% of the economy. (continue reading…)

Radio talk show host Hugh Hewitt on Friday conducted the best single interview we’ve heard on the topic of the Consumer Product Safety Improvement Act, a three-part segment with Rick Woldenberg of Learning Resources, Inc. The interview features a timely focus on the permanent product label requirements that go into effect August 14.

The entire interview is available via an .mp3 file, starting at about 10:30 in. Hewitt also has a brief blog report here. (Thanks for the Shopfloor plug, Hugh.)

The strength of the interview is that Hewitt uses his lawyerly skills to build step-by-step the case against the CPSIA’s excesses, starting with the origins of the legislation.

The fundamental problem with the bill? Woldenberg:

The worse thing about the law is that under the guise of safety, they have taken all concepts of safety out of the law. I know it doesn’t make any sense, but the law has removed from the CPSC the ability to assess risk.

Hewitt asks about when the CPSC provided guidance on how to implement the new product tracking labels. Rick responds: Two days ago. (Wednesday). Woldenberg:

The mistake the agency I believe has made is not just admitting that it took too long and then slow the process down to allow for the kind of discussion for industry and the time for a smooth, reasonable implementation that a process like this would require.

The idea that you could put a six-page document out three weeks before it’s due and that would make everything OK just doesn’t make it any sense. It affects 60 percent of the economy.

The NAM has petitioned for a one-year extension of the labeling requirements, which remain overwhelming and unclear.

Why won’t anyone fix what’s obviously a disaster? Woldenberg:

I personally think it’s message control. Back in August of ’08, Congress was heading into a re-election campaign, they were three months from the polls, and they wanted to look tough on safety. They invented a crisis. The recalls in ’07 and ’08 did not result in injuries, but they were so hysterical about it they invented a crisis and then they solved it in order to look active.

Why has the media not picked up on the excesses of the law?

It’s hard to understand. I think that it has an air of unreality to it. How could anyone believe that the U.S. government would outlaw rhinestones on jeans? It doesn’t make any sense and when you say it to people, they look at you like something’s wrong with you. It’s just hard for people to get their arms around the fact that this could really be happening.

But the fact of the matter is that across this country, many, many resale shops – Salvation Army, Goodwill and so on – have discontinued selling children’s merchandise because of this law. So come winter it’s going to be tough to buy a used children’s coat. And that’s Congress’ fault.

Congress should rewrite the law to restore the ability of the CPSC to consider risk in implementing the law, Rick contends.

The entire interview is invaluable and should be widely disseminated.

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.

Keen review by CPSIA-reform advocate Rick Woldenberg of yesterday’s Senate Commerce confirmation hearing for CPSC-nominee Inez Tenenbaum. He notes her general engagement and the positive tone of the hearing, some of her bobbles which one can attribute to still getting up to speed, and the frequent invoking by the nominee and committee members of the term “common sense.” Rick hopes it’s “code for an acknowledgement that the legislative scheme needs to be fixed.” We hope it’s code for “common sense.”

Rick also notes Tenenbaum’s references to the power of “guidance.” To wit:

Another worry: Ms. Tenenbaum’s apparent conviction that many problems under the CPSIA will be resolved with more guidance and the issuance of final regulations. Perhaps some issues can be resolved that way but most won’t, like tracking labels, resale shops’ legal liability under the new law, the cost of safety testing, the need to self-report for every conceivable violation of the law and the confusing state of competing regulatory agencies (CPSC versus 50 SAGs). Interestingly, Ms. Tenenbaum stated that the stays were “working” and that fewer stays will be necessary as new guidance is issued. I hope the subject of how well stays are working is on her investigative agenda when she starts her new job. (continue reading…)

A column in Roll Call by Rick Woldenberg, chairman of Learning Resources Inc., and a leading advocate for reforming the Consumer Product Safety Improvement Act, “Congress Should Return Toy Safety Regulation to the CPSC“:

I am a toymaker and I do not make “toxic toys.” I never thought I would have to make that statement, but unfortunately, all children’s products companies remain under assault by consumer groups capitalizing on a notorious series of toy recalls in 2007 and 2008 to propagate misconceptions about safety.

Having pushed Congress to pass the Consumer Product Safety Improvement Act last year, these same groups now refuse to acknowledge the flaws in this law. Despite an outcry over the overly broad reach of the new law, a misguided labeling policy and the devastating retroactive application of the new standards, Congress has refused to budge. Politics has taken over children’s product safety.

Rick expresses the views of many people out there who never really dealt with Congress until the CPSIA went into effect – small manufacturers, owners of home-based businesses, craftspeople, thrift-store managers, etc. They’re frustrated and at times aghast: This is how Congress works? Why can’t they just fix the law?

Very good questions.

Incredible. And how arrogant. Despite thousands of first-person reports of businesses closing up shop, children’s books being destroyed, thrift stores deprived of used clothes and toys, mini-bikes and kids bikes being made illegal, some “consumer activists” regard the Consumer Product Safety Improvement Act as a success.

From The National Law Journal, “Consumer bill sets off a furor“:

“Any legislative fixes at this point would be very premature,” said Public Citizen’s [Christine] Hines. “The most important issue right now is for Nancy Nord to be replaced. She was never a huge supporter of the law from the time of the year-long negotiations.”

Hines said the other commissioner, [Thomas] Moore, agrees that congressional intervention now would be premature.

“At this point, because there is so much difficulty at the agency in terms of agreement, the agency has taken a strict constructionist view of some of the language in the law,” said Hines. “I believe the new law gives the agency the authority to issue reasonable regulations. We still feel it has enough authority to address business concerns and to ensure that products are safe. The 2007 recalls and the uproar about unsafe products on the market tend to get lost in this debate.”

So nice that Public Citizen is now the official spokesman for Commissioner Moore.

But Nord and Moore have voted the same way on the last 23 votes. Replace Nord with a permanent chairman — as she herself has requested — and there’s no indication the commission will do anything differently.

Rick Woldenberg of Learning Resources Inc., a forceful advocate for CPSIA reform, responded recently to a hatchet job in ConsumerReports.org, which misrepresented a pro-reform rally and made the same, weak case as the Naderites at Public Citizen. Rick wrote:

Finally, you also mischaracterize the remarks of the Rally speakers as endorsing YOUR view that Nancy Nord is at fault for the delays and failures to issue exemptions that you assert. I do not recall Ms. Nord’s name or role being mentioned during any speech, and she was certainly not a focus of the day’s events. Speaking for myself, I do not agree with your statement at all, and would observe that the data shows that Acting Chairman Nord and Comm. Moore have voted 2-0 in their last 23 decisions. It is hard to understand the reasons behind the finger pointing at Ms. Nord or at Republicans in general if the Commissioners are apparently acting in bipartisan unison. Is it because attacks on Ms. Nord make a nice diversion from an examination of the law itself?

Yes. Yes it is.

• Associated Press, “Lead law likely to still apply to dirt bikes, atvs“
• Playthings, “Publishers seek CPSIA exemption“
• American Motorcyclist Association, “From the mouths of kids: Riders rally in Washington, DC, against …“
• Springfield, Mo., News-Leader, “Blunt joins effort to overturn ATV ban
• KCOO TV, Oklahoma City, “New Lead Law Bans Child-Size ATVs“. This story makes an important mentioned several times yesterday at the Amend the CPSIA Rally, that the new law actually increases the risks to children:

[Oklahoma Honda Suzuki sales manager Shawn] Bostwick said he fears that since he can’t sell ATVs specifically for children, parents may buy larger ones, which could cause more crashes.

“Putting children on oversized ATV or dirt bikes that are too powerful and too heavy for the children, that is going to affect the children more, in my opinion, than the current law is trying to do,” he said.

Speaking of yesterday’s rally, Alliance for Children’s Product Safety, news release, “Businesses Speak out on Damage Caused by Consumer Product Safety Improvement Act“:

WASHINGTON, Apr 01, 2009 (BUSINESS WIRE) — At a rally today on Capitol Hill, Members of Congress, small business owners, authors, crafters, apparel makers, educational toy manufacturers, ATV dealers and motorcycle enthusiasts urgently called on House and Senate leaders to fix the Consumer Product Safety Improvement Act (CPSIA). The most sweeping attempt at U.S. consumer product safety law reform in a generation, the CPSIA’s vast scope and complexity has inadvertently created a “worst case” scenario for tens of thousands of American businesses, charities, libraries and others.

Woldenberg is the leading organizer and citizen activist who has helped mobilize the many, many disparate groups — and individuals — harmed by the law’s overreach. He has a website devoted to the effort at his company, Learning Resources Inc.