Behold: "The Database of Doom"

The Washington Times gets it...

"Consumer agency endangers employers with rumor and innuendo"

EDITORIAL: CPSC's database of doom

Database: Setting the Record Straight

Last week, the Los Angeles Times published an article that did not present fully all of the facts on the Majority’s consumer database proposal. To set the record straight, I submitted the following letter to the editor, which was published in today's paper:

Review rules

Re "Whose concerns will make the cut?" Business, Nov. 16 David Lazarus gives the impression that all reports in the Consumer Product Safety Commission's public-backed database will be vetted. Here are the facts: The commission's proposal includes no requirement that reports of harm submitted to the database be verified for accuracy before they are posted. If a manufacturer claims that a report is inaccurate, there is no requirement or even incentive for the commission to review or make a determination on such claims. To make the database more reliable for consumers, I have proposed an alternative rule that improves on these areas; I hope my fellow commissioners will consider it. Without such changes, the commission's saferproducts.gov database will be useless to the very consumers the commission claims to be helping.

Anne M. Northup
Bethesda, Md.

The writer is a commissioner on the U.S. Consumer Product Safety Commission.

Here is the link to letters to the editor: http://www.latimes.com/news/opinion/letters/

Here is the link to last week's article: http://www.latimes.com/business/la-fi-lazarus-20101116,0,835664.column

WE INTERRUPT THIS PROGRAM…WITH AN ALTERNATIVE

Given the many flaws of the Commission’s draft final rule for the public database, my colleague, Commissioner Nord, and I have proposed an ALTERNATIVE DATABASE RULE. This rule more accurately reflects the law Congress provided us and it will address some of its key flaws.

Our alternative rule will:
- tighten up who can submit information so that the reports coming into the database are more reliable;
- improve the procedures for correcting inaccurate information so that consumers are not misled by bad information in the database; and
- put in place procedures for review of reports so that the database does not become a “post it and forget it” exercise.

There is still time for the Commission to make these changes since the database vote is not until November 17th. I hope this alternative will receive due consideration.

More details to come on the Database rule’s main flaws…

Click here for Commissioner Nancy Nord's blog post regarding our alternative

Flaw #3: DEFINITION OF "PUBLIC SAFETY ENTITIES"

We have already seen that the Commission established a definition for “consumers” that is so broad as to allow anyone to submit incident reports to the new database (rendering the category of “consumers” largely useless)---but let’s take a look at another category: PUBLIC SAFETY ENTITIES.

Given that the statute’s list of who may submit reports of harm denotes individuals likely to have firsthand knowledge of the incident, it makes sense that a “public safety entity” would include, for example, the fire fighter that put out the fire caused by a consumer product (direct knowledge of the incident). Or, it could include the city’s health department that inspected the county’s swimming pool and found a defect in its equipment (again, direct knowledge of the incident).

However, the Commission has construed “public safety entities” to mean any entities, public or private, that claim to have “a public safety purpose." The draft rule's definition states:

“…other public safety officials and professionals, including consumer advocates or individuals who work for nongovernmental organizations, consumer advocacy organizations, and trade associations, so long as they have a public safety purpose.”

Really? How can the definition of "PUBLIC safety entities" be construed to allow even PRIVATE advocacy groups that may also have financially-driven or politically driven agendas to submit incidents directly into the database? This is a far cry from the kind of submitters provided for in the statute, and a step that opens a Pandora’s box of inaccurate, misleading information.

Based on this definition, the Consumer’s Union (CU), a common example of a consumer advocacy organization, can submit incident reports. While the CU claims to have a public safety mission, their website also lists advocacy campaigns related to big government health care reform, expanded federal regulation of banks, allowing bankruptcy judges to write down home loans, and promoting energy legislation---campaigns that are quite biased and unrelated to risk-based science or consumer safety.

What about the “Pool Safety Council,” which was established by an individual who was president of a company selling anti-entrapment "safety" devices for pools? A number of advocacy organizations with public safety missions may also have a conflict of interest or self-serving motives when it comes to reporting product safety incidents. That is probably why Congress did not authorize them to submit reports of harm to the database.

In any event, a U.S. Government, taxpayer-funded, public database should not be a vehicle for advocacy groups or attorneys that wish to file complaints (which they may have received third-hand) in order to promote hidden agendas. This would make the database misleading or useless for consumers...

Stay tuned for more…

Flaw #2: DEFINITION OF "CONSUMERS"

Yesterday we established that the current draft of the public database rule would mistakenly allow anyone to submit a “report of harm.” But Congress specifically listed who could post incidents in the public database: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities---not just “anyone.” All of these categories have one thing in common – they are individuals who generally have firsthand information about the incident in question.

So how is “consumers” defined? One would assume “consumers” means (and is limited to) the individual who actually owns or uses the consumer product about which the “report of harm” is submitted—which the statutory context supports. It makes sense that a public database would contain legitimate, “consumer” incident reports—straight from the horse’s mouth.

Unfortunately, the Commission has stretched the definition of “consumers” to mean literally anyone! As the preamble to the rule states, “…the term ‘consumer’ is quite broad, and includes anyone who consumes or uses an economic good.” In other words, the term means anyone who consumes anything—you, me, or someone living in a completely different area code from the incident. This flawed definition opens the door to allowing people with no real knowledge of an incident or with ulterior agendas (competitors, advocacy groups, lawyers) to flood the database with unreliable reports and misuse or mislead the consumers we were intending to help.

Congress would not have bothered to include additional categories if it had meant for “consumers” to cover everyone. If Congress wanted anyone to post (accurately or not), it could have: 1) written the law to say that; 2) left out any list of who can submit, or; 3) provided a sixth category of “others.” But it didn’t. In point of fact, the current definition of “consumers” in our draft rule runs counter to the statute and blatantly ignores the intent of Congress to provide reliable, accurate information for the public's use.

More to come…

Garbage In...Garbage Out

Over the next few weeks, I will explain in detail the *MAIN FLAWS* in the database rule as currently proposed. It is my hope that this Commission will listen to the commenters and make significant, necessary changes before finalizing this rule:

Flaw #1: WHO CAN SUBMIT A REPORT

The CPSIA only mentions five categories of submitters: consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities. Anyone looking at this list would see a common thread—these are all people who might have first-hand knowledge of the incident. Why would Congress have included this list, if it actually intended anyone to be able to submit a report? The answer is, it didn’t. Thus, the rule’s list of submitters should not include those who have no relationship to the incident in question.

But as currently conceived, anyone will be able to submit a “report of harm” to the new, public database—even if the submitter does not know who was harmed, the particular product involved (let alone the exact model), and did not see the incident occur. As of right now, in a national database full of incidents across all consumer products (everything from toasters, to ATVs, to furniture), we are not even limiting who can submit to people who have first-hand knowledge of an incident!

Why is this important? Because Congress intended to create a useful, accurate database for consumers wishing to make a purchase. But this database will not be useful to consumers if random bystanders, attorneys, advocacy groups or even well-intentioned citizens without key facts can fill it with unreliable reports. It will simply be garbage in…garbage out.

More to come…

"I can't hear you...I’m not listening"

This week’s consumer database hearing confirmed what I have feared since the NPR was released….this commission simply is not interested in listening to your concerns. More than 2/3 of the comments we received indicated that a more narrow definition of “consumer” or “others” would improve the accuracy and reliability of the database---something that is imperative for both consumers and manufacturers that will be using it. A massive public database with unverified complaints and no limits to what can come in (with a self-verification check box and disclaimer that barely pass the laugh test…) is useless to just about everyone but perhaps trial lawyers and advocacy groups looking for someone to sue or a new industry to regulate…..

I hope there is still a chance that the final rule will contain enough improvements to bring some common sense to this massive endeavor.

"The Miley Cyrus Standard"

Thought you'd be interested in this Washington Times Op-Ed that points out more confusion caused by the Definition of Children's Product and "the discordant effects of big government that apparently can't be tamed."

EDITORIAL: Bureaucrats way out of tune

Definition of “Children’s Product:” Whether you’re in, might be in, or still confused...Welcome to the black hole of CPSIA regulation!

Today, the Commission had a golden opportunity to put a fence around those products definitely covered by the CPSIA as well as exclude those products which we know pose no risk and which do not HAVE TO fall under the statute. The comments received by the public on this proposed interpretive rule defining “children’s product” by and large asked for just this type of clarity. They also made the case for how a number of everyday, safe products could be reasonably excluded from the requirements of the CPSIA—given, of course, that the law has nothing to do with risk.

But instead, the Commission went in the opposite direction, adding in more products than required and adding products even beyond what was first proposed to the public.

The consequences for whether a product is “in” or “out” of the definition are tremendous: if you’re in, you must pay to have your product (every piece of it) third-party tested, certified, and have a tracking label—which has led many small businesses to leave the children’s market or simply close their doors. Oh, and if you make a product for ages in the grey area (age 10, 11, 12….and older) and really needed this rule to let you know where you stand, you may just now be realizing that the final answer is “it depends!” –which means, somebody out there (i.e., the CPSC, a state attorney general, a retailer) may consider your product a children’s product. Manufacturers of furniture, clothing, or products made for the “tween” years may be learning for the first time that they’re even subject to the law’s non-risk-based lead-content standards.

So much for trying to reduce unnecessary government regulation, protect jobs, and preserve choices for consumers—so much for common sense.

Click here for my official statement on the Final Interpretive Rule: Interpretation of a Children’s Product

ALSO: Read the AP story and New York Times Front Page story covering this issue

“I’m from the government and I’m here to help you!”

A brand new “Office of Education, Global Outreach, and Small Business Ombudsman” at the Commission is being advertised as a way to help small businesses impacted by the CPSIA—something that may be taken as a cruel joke by those businesses that have already been forced to close their doors or are exiting the children’s product market. What help will a new government office for “outreach” be able to provide, if we as a Commission continue to do very little to mitigate the unintended consequences of the law through our own regulations? Not much……

That is why I could not support today’s vote to create a new government office at the CPSC dedicated to outreach and education.

Furthermore, new government offices or programs, no matter how small, take on a life of their own. They grow and grow—no matter how innocent the original intentions of their creators. It is precisely such mission creep in federal spending that continues to make headlines every day and with which the American people are fed up. Congressman Paul Ryan (R-WI) and American Enterprise Institute President Arthur Brooks said it best in their recent op-ed in The Wall Street Journal:

"Individually, these things might sound fine. Multiply them and add them all up, though, and you have a system that most Americans manifestly oppose—one that creates a crushing burden of debt and teaches our children and grandchildren that government is the solution to all our problems. Seventy percent of us want stronger free enterprise, but the other 30% keep moving us closer toward an unacceptably statist America—one acceptable government program at a time."

Are we listening? I don’t think so…

Click here to read: "The Size of Government and the Choice This Fall"

Click here to read my official statement

Egg-stra regulation!

Creating knee-jerk federal regulations in the name of safety isn’t the answer…

Check out Wally Olson's take on calls for more federal regulation of food-making due to the salmonella outbreak
The egg and I

The National Swimming Pool Foundation weighs in on pool safety

The National Swimming Pool Foundation® (NSPF) recently sent a letter endorsing the Commission's implementation of the Virginia Graeme Baker Pool & Spa Safety Act.

“NSPF believes the Commission has taken a sound technical position on this topic and it is correct in the assertion that vacuum release systems do not protect against most forms of entrapment to the degree an unblockable drain.” - NSPF

Because some special interest groups continue to generate press to the contrary, I thought it was important to circulate feedback from NSPF, a group with a long history of promoting pool safety.

The full text of the letter is copied below or you can enlarge the picture to see the original.

Click here for my statement on the Implementation of the Virginia Graeme Baker Pool and Spa Safety Act

August 11, 2009

The Honorable Anne Northup
Commissioner
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Dear Commissioner Northup,

The National Swimming Pool Foundation® (NSPF) has read and supports your position statement on unblockable drain definition relative to the Virginia Graeme Baker Pool & Spa Safety Act. NSPF believes the Commission has taken a sound technical position on this topic and it is correct in the assertion that vacuum release systems do not protect against most forms of entrapment to the degree an unblockable drain. In addition, we applaud the CPSC’s efforts to fulfill the Act’s educational requirement since prevention of drowning and entrapment is paramount!

We understand that the Commission has been challenged by petition, letters and public media efforts to influence the Commission to change its ruling. We urge you to maintain your position.

NSPF is a non-profit organization dedicated to the health and safety of those who use aquatic facilities. NSPF has given over 3.7 million dollars in grants since 2003 to prevent drowning, illness, injury and entrapment and to demonstrate the health benefits of aquatic activity. The Foundation works towards its mission to encourage healthier living through aquatic education and research with its collection of educational materials training over 240,000 professionals since 1982.

It is important that we stand united to implement solutions that will work rather than those that may appear positive - yet have limited value. We applaud your efforts and admire your sound reasoning.

Please let us know if we can provide any assistance in this matter.
Respectfully,


Thomas M. Lachocki, Ph.D.
Chief Executive Officer

Tracynda Davis, M.P.H.
Director of Environmental Health

cc: I. Tenenbaum, CPSC; T. Moore, CPSC; N. Nord, CPSC; D. Lamborn, US House of Representatives

4775 Granby Circle • Colorado Springs, CO 80919-3131 719.540.9119 • 719.540.2787 (FAX) • www.nspf.org

Here It Is: Popular Toys Parents Can No Longer Buy for their Children Because of the CPSIA…

For some time now, we have been worried about the impact of the CPSIA on jobs, cost and fewer choices. We worry about the number of businesses leaving the children’s product market, the increased costs of new testing requirements that are completely unrelated to risk, and global companies that simply stop selling in the United States because the costs are too high. Now you can see for yourself right off of this company’s website: popular toys that are no longer available to parents in the U.S. due to the CPSIA.

Endangered and Extinct Toys

Summer reading:

Thought you might find this editorial in The Washington Times regarding excessive regulation interesting.  The author got it exactly right. Excessive regulations kill jobs.  I have seen it first hand: some businesses just leave the market, small businesses struggle to comply and new startups will never be able to enter our market.  So sad.

EDITORIAL: The red tape stimulus

New costs, no common sense

Even though the safety considerations for mattresses, clothing textiles, carpets, and plastic vinyl are exactly the same for children as for adults, the current successful testing requirements for these products will no longer be enough. Now the Commission’s decision to treat “general product safety rules” as “children’s product safety rules” will require new third-party testing of the children’s versions of these products in CPSC accredited specialty labs. These additional testing costs are being layered on top of testing that has been carefully designed based on science-based protocols that are already known as the “gold standard” in safety.

I do not believe that the Consumer Product Safety Improvement Act requires this new, additional third-party testing that the Commission’s recent string of decisions mandated. These tests will not reduce risk and will ultimately harm productivity, increase cost and limit consumer choice. For instance, government regulation is cited as a major obstacle to new business start-ups or to expansion.

Most Americans will never learn about highly technical regulations that our agency recently passed. But they will be paying the price in higher costs, fewer choices and lost jobs. So, the next time you hear a commentator ask a guest, “What would you do to increase jobs or reduce government spending?”…think about the cost of government regulation…

•Commissioner Northup’s Official Statement on 3rd Party Testing for Flammability of Carpets & Rugs, and Vinyl Plastic Film: Requirements for Accreditation

•Commissioner Northup’s Official Statement on Testing the Flammability of Clothing Textiles, Mattresses and Mattress Pads, and/or Mattress Sets: Requirements for Accreditation of Third-Party Conformity Assessment

ALERT - the Commission needs your feedback regarding moving to 100ppm lead!

As many businesses may not yet know, the CPSIA requires that the lead content limits for children’s products automatically be lowered to 100ppm (from 300ppm) by August 2011. Essentially, all children’s products will have to be “lead-free” by that time, even if becoming lead-free provides zero additional safety benefit for children. The Commission is now asking for industry feedback on the “technological feasibility” of reducing the lead in their products to 100ppm—is it even possible? And what will be the consequences? Please see the link below on our website. I strongly encourage those that are affected to respond!

Draft Federal Register Notice: Request for Comments and Information - Technological Feasibility of 100 ppm Lead Content Limit for Children's Products, July 13, 2010 [PDF]

Myth #4: The Pool Safety Council has no financial interest in secondary systems.

Just as health insurance companies lobby Congress and federal agencies for healthcare solutions that benefit their bottom line, it is not surprising that people who develop and sell back-up systems created an association to promote the use of their product. In fact, the founder of the Pool Safety Council, a group that has lobbied Congress and other organizations to require that all pools have back-up system technology, was the President of a back-up system manufacturer until only this past February.

The Pool Safety Council is promoting their petition claiming the CPSC “reversed their guidance of the Virginia Graeme Baker Pool and Spa Safety Act (VGB), removing important entrapment prevention requirements.” However, unblockable drain covers are the safest form of protection against entrapments. They are the only safeguard against all five types of entrapment and the only choice that prevents entrapment from occurring in the first place. If we had not found an unblockable drain cover to be sufficient, there would be no incentive for pool owners to install unblockable drain covers in addition to a costly back-up system, and thus pools would not have the most effective form of protection.

The petition goes on to say, “The reversal brings into question the influence representatives from the pool industry have in CPSC's decision-making process.” In fact, no group has pressured CPSC more than the Pool Safety Council. Speaking for myself, I have had no communication from any other pool representative except for those that have a financial interest in requiring back-up systems. I consider it a triumph of safety over special interests that despite all the pressure from those who have financial interest in requiring back-up systems, that the CPSC decided to adopt a new, safer technology. The Pool Safety Council lobbies for a tighter definition of unblockable drain because pools with unblockable drains are not required to buy their product!

The Commission is responsible for making decisions that promote safety and in this case, making sure that every public pool is as safe as possible. When we adopted the determination that an unblockable drain cover is equivalent to an unblockable drain, we made that decision based on safety.

For more information on the founder of the Pool Safety Council, click here: Pennington Leaves Vac-Alert

Have a safe weekend at the pool!

Myth #3: “The Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) focuses on entrapment because that is the leading cause of drowning.”

Facts: Unfortunately, an average of 385 children lose their lives playing in the pool each year and the CPSC has made preventing these terrible tragedies one of our highest priorities.

Are entrapments the primary cause of these incidents? No. While entrapments are the main focus of the VGB Act, they are a very serious but rare type of drowning incident. Of the roughly 3,400 drowning deaths that occur each year in the United States, entrapments account for about 1 per year. Of the 12 entrapment deaths since 1999, only 5 occurred at public pools or spas. Since only public pools and spas are addressed by the VGB Act, over half of entrapments would not even have been prevented by the Act.

That is why I am so excited that the CPSC has launched “Pool Safely,” a national public education campaign designed to raise public awareness, support industry compliance, and improve safety at pools and spas. Pool Safely emphasizes the importance of alert adult supervision and swimming lessons for children as well as learning CPR, installing pool alarms, and placing gated barriers around pools. Through Pool Safely, we are able to educate the public about many water safety practices to reduce the risks associated with children in and around pools and spas – not just entrapments.

Conclusion: The VGB Act addresses a rare, but serious type of drowning incident and we have implemented the law to address this issue. But the Commission has gone further to raise awareness and promote drowning prevention through a national public education campaign because entrapments are not the leading, nor even a significant cause of drowning. It’s too bad that the Pool Safety Council has not done the same and has only dedicated one sentence on their entire website to prevent the other ninety nine percent of the child drowning cases that were not due to entrapment.

Stay tuned next week for more myth’s!

And check out http://www.poolsafely.gov/ to learn more simple steps to save lives!

Some More Facts...

Myth #2: “But Congress said all pools should have back-up systems.”

Facts: Actually, the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) specifically exempted pools and spas equipped with unblockable drains from having back-up systems. Did Congress make a mistake? No, it makes perfect sense not to require back-up systems because as I said yesterday, unblockable drains are the safest, best way to prevent entrapment. Fortunately, there is a new and affordable technology available known as an “unblockable drain cover” that converts a blockable drain into an unblockable drain. Because the Commission found these covers to be equivalent to an “unblockable drain,” people will be able to choose the safest option. If we didn’t, people would be unlikely to install unblockable drain covers in addition to costly back-up systems, and therefore they would not have the safest pools possible.

COMING SOON: Myth #3 - "The VGB Bill focuses on entrapment because that is the leading cause of drowning."

For more information, click here for my statement.

Time for Some Facts

In March, the Commission reached a bi-partisan decision on how to reduce the risk of entrapment in public pool and hot tub drains. However, several articles have recently reported that the Commission’s vote was an "egregious” misinterpretation of the law—implying that safety took a back seat. Today, I am starting a series of blog posts to debunk the myths surrounding our decision regarding the safest, most accurate implementation of the Virginia Graeme Baker Pool and Spa Safety Act.

Myth #1: The CPSC’s interpretation of “unblockable drain” doesn’t provide the protection required by the law.

Facts: Unblockable drain covers are the only solution that prevents all five types of entrapment. The back-up systems mentioned in the Act only address some of the potential scenarios. For example, some of the back-up systems deal with suction body entrapment and some limb entrapments but would not prevent hair, mechanical, or evisceration entrapments. Of the 11 entrapment drowning deaths from 1999-2009, three were hair entrapments and one was an evisceration, meaning that at least 36% of these deaths would not have been avoided had a back-up system been in place.

Moreover, preventing entrapments in the first place is the best solution to the threat of entrapment drownings. Back-up systems require an entrapment incident to begin to occur before they respond, and even then they may not be able to stop it!

Conclusion: The Commission chose the safest solution that offers the most protection to the public through superior technology and more entrapment prevention.

For more information, click here for my statement.

STAY TUNED: Tomorrow's myth - “But Congress said all pools should have back-up systems.”

USA Today reports on the costs of CPSIA

Lead testing can be costly for mom and pop toy shops
USA Today's Money section profiles a family owned business that was booming with safe toys three years ago but now is struggling to keep its doors open because of CPSIA...

To the Class of 2010: Beware of the CPSIA

Successful entrepreneur Phebe Phillips was invited to speak at the Texas Women’s University Commencement in May and shared with the graduates how the Consumer Product Safety Improvement Act has Forced her to close down her business...

Wally Olson at Overlawyered.com brought this story to my atention and I wanted to be sure to share it with you.

Click here to read Phebe Phillips' speech

Because Money Isn't Free...

Last week the Commission had to decide what we should do with $7.1 million of anticipated unspent funding for this year.

Every year every federal agency has money that’s been appropriated but is unable to use as budgeted for a variety of reasons: a staffer’s salary is appropriated, but that staffer hasn’t been hired yet; a project is completed early or is behind schedule; the costs of a project were lower than expected, etc. When that happens, the agency is confronted with thinking up new ways to spend the money, or it can give the funds back to the U.S. Treasury.

Here at the CPSC, we had $7.1 million allocated for purposes that no longer needed that much money. I thought this would be a good chance to do what most Americans would want every agency to do and give the unspent money back.

The federal debt is over $13 trillion and this year’s deficit will exceed $1.4 trillion. And while $7.1 million won’t make up the difference, if every agency started to do the same, we could start to restore a balanced budget.

Unfortunately, I lost the vote 4-1 and the Commission is finding other ways (of course) to spend the money. I’d be interested in your thoughts on this …

For my official statement, click here

Anyone noticing a pattern here?

I thought you may be interested in Hugh Hewitt's recent article, "Regulation costs jobs, slows growth" in the Washington Times...

Hugh Hewitt: Regulation costs jobs, slows growth

Survival of the fewest...

Why save a few and let the rest drown?

That’s what the Waxman proposal (CPSEA) would do since it only helps relieve some thrift stores and possibly ATVs and bikes from the burdensome costs of complying with the CPSIA.

It’s not that I disagree with relief for these few – but why not craft a proposal that fixes the problems with the CPSIA for everyone who makes safe products? One criteria in this proposal for granting relief is that it cause no “measureable adverse effect” on a child’s health. Well, of course. In reality, the only criteria that should ever matter when it comes to the CPSC regulating a consumer product is whether it poses a risk!

I don’t really want to beat up those getting relief, but I do want to point out the ridiculousness of letting off a few and not everyone. The fact is, if these children’s products were actually unsafe, there would be relief for no one.

Careful what you wish for!

Imagine my surprise when I logged into my personal Facebook account and the first item on my “news feed” was from my friends at the Handmade Toy Alliance encouraging people to call their Representative in support of the Waxman proposal to “fix” the CPSIA!

Even CPSC staff has expressed concern that the small batch provisions will require the Commission to approve any “alternative” test methods on a product by product, rule by rule, basis (How long will HTA members wait on the Commission for all these new regulations?)…and there’s a degree of uncertainty about what an alternative test could even mean (and will it “assure compliance”?) ...and of course, a majority of Commissioners likely will have to vote to approve each of these alternative test methods (can anyone read the tea leaves on those votes?)…

Turns out, it may not be the gift you were wishing for...

The clock is ticking....

Today the CPSC released the proposed rule for the notorious Public Database (aka the Publicly Available Consumer Product Safety Information Database). I’m sorry to say that it was drafted exclusively by the Majority Party Members of the Commission with next to no input from the Minority Members. As a result, the draft rule is very one-sided in its treatment of accuracy, privacy, and usefulness concerns. Here is an unsolicited (though I believe correct) view that was published independently or you can click here to read my official statement.

The public now has 60 days to comment, so please do yourself a favor and examine this rule carefully! AND COMMENT!

Don't confuse me with the facts...

Despite the high costs of compliance, loss of jobs and declining product selection due to CPSIA, Chairman Waxman is pursuing his amendment to provide a very narrow exception to only two groups while small businesses are being driven from the children's product market even though their products do not pose genuine risks to children.

As Congress debates ‘too big to fail’ here’s what the government is doing to Main Street…

As a Kentuckian who knows how badly we need more jobs, it's a shame to hear from a local hometown business who is genuinely trying to comply with the CPSIA, but finding that the costs are so great that they simply cannot afford the testing. Please read the letter I received below and if you have a similar story, email it to me at Commissioner_Northup@cpsc.gov.

"Last week we selected several more products to eliminate from our product offerings. The products are safe, do not violate any of the CPSIA standards and have been around for over 50 years, but they are too complicated and have too many different parts. Therefore they are too costly to have tested and retested over and over again to prove they are safe. I hope some small companies and some decent product selection can survive in this new world where all products are presumed to be guilty. The only survivors will be the ones that are safe and can also afford to prove they are safe.

The group of items that we decided to discontinue are several kinds of dolls that have lots of different colors and accessories and some plastic to test for phthalates. We would have an average about $1500/doll each time we had to test due to a batch change. If we order them 3 times per year it would be $4500/doll in testing costs to be certain that nothing had changed from any of the suppliers that provide the raw materials that make up the doll parts and/or colors and accessories. With 26 different types of dolls, that would come out to $117,000 per year we would spend on testing. Based upon our sales volume we would lose money every time we order the doll.

This week we are dealing with another toy item that had a piece of PVC pipe as part of the toy. We tested the pipe which is a common pvc pipe like millions of people have in their homes and drink water from each day. We found that the pvc is slightly over the minimum acceptable for one of the phthalates. We are now spending $12,000 (more than doubling the cost of the toy) to replace the pipe components and to expedite shipping so we minimize the amount of money and customers we lose to competitors for this item. If phthalates in water pipes aren't hurting anyone, then how can the pipe in this toy cause a problem? We are spending the money, delivering a revised toy at a loss and complying with the law because we fear being put out of business with a large fine, not because we are saving some child from a dangerous encounter with this product.

I guess we and other small companies will continue to shut down product offerings, reduce employees, reduce our income taxes and eventually there may not be enough money to fund the wasteful efforts from Washington. Nature has a way of correcting problems even if we aren't clever enough to do it on our own. I hope somehow we can find a way to curb this monster and get back to focusing on safety issues.”

This blog should come with a warning label

As my blog is entitled "Safety And Common Sense" and we are trying to find a balance between safety and a vibrant market, this article seemed especially appropriate...

"WARNING: This Column May Be Hazardous" By Tim Rowland

Chomp, Chomp

Hugh Hewitt warns that the Database Monster will devour American business

Later this week, the Commission will be voting on a proposed rule on how we will be implementing the consumer database, a publicly available consumer product database with reports of harm that can be generated by just about anyone—and on any consumer product from baby cribs to toasters. If you haven’t heard about it, Hugh Hewitt’s article above sums up the different abuses that could crop up from the “reports.”

In Case You Missed It...

A Wall Street Journal editorial this week defines Waxman’s proposed “functional purpose” exemption perfectly – “A fix of a bad law that is no fix at all.”
Click here to read the WSJ editorial, "Waxman's Lead Poison"
Click here to read my letter to Congressman Waxman

Blogging About Our Blog

There's hope! Isn't it great that someone as highly regarded as Hugh Hewitt understands the importance of the Consumer Product Safety Improvement Act (CPSIA) and the negative impact it is having on small businesses? I had the honor of joining Hugh Hewitt on his national radio show Monday where we discussed the loss of jobs and high costs of the CPSIA. Didn't somebody famous once say "It's the economy, stupid"?

"Her blog --unique among appointed officials in D.C. in its transparency and its specificity--ought to be a model for federal appointees dealing with controversial subjects like the CPSIA."

Thanks, Hugh - you're terrific!

Click here for a transcript of my appearance on the Hugh Hewitt Show

No Foolin’ Here – CPSC Issues Reasonable Definition of a “Children’s Product”

This week I was pleased to join my fellow Commissioners in approving the proposed rule on the definition of “children’s product” because I believe it is a sound attempt at interpreting this term in the clearest, most flexible manner for manufacturers and consumers. As we wait to see if Congress will amend the law to address its overreach, including lowering the age range to a more risk-based scope, this proposal at least helps us to focus the age limit downward.

It is important that the agency receive as much feedback as possible on this proposed rule, particularly from the manufacturers whose products occupy the “grey area” between the pre-teen and teenage groups or that produce items intended for both children and adults. So please go to www.Regulations.gov and submit comments in the next 60 days!

Click here to read my full statement.

March Madness – Waxman style

In response to Chairman Henry Waxman’s request for reaction to his proposed fix to the CPSIA, I have submitted a letter noting that the draft falls woefully short of resolving the problems with the statute I have witnessed since joining the Commission last August. Unfortunately, the so-called functional purpose and low-volume manufacturing exemptions contained in the draft bill are too narrow, expensive, and uncertain to provide much relief.

To read my full letter, click here.

Are we seeing a pattern here?

The Product Safety Letter summarizes last week's public meetings of the US Association of Importers of Textiles and Apparel's (USA-ITA), sharing how they are affected by the excessive costs of the CPSIA…

“Several representatives of USA-ITA companies told Northup that they have quit selling certain items to avoid the rigors of CPSIA testing. ‘We completely got out of children’s jewelry.’”

“Said another, representing a company that sells t-shirts, the shirts’ designs now feature less colors to cut down on testing costs.”

They are “hard-hit by having to meet the dual requirements of federal standards and those set by U.S. states”

(Product Safety Letter, March 15, Northup Says riders May Be Best Chance for CPSIA Change)

Ever wonder how the IRS Tax Code got so complicated???

Congressman Henry Waxman’s proposed fix to the CPSIA has been released to the public. Now is the time to weigh in on how this would work for you. Specifically, these are my questions:

- Could your company (or anyone you know) afford to petition the agency in order to prove that the lead in their product serves a “functional purpose,” that it’s “not practicable” to remove, and the other new requirements?

- Note the further limitations under sections entitled: “burden of proof;” “admissible evidence;” “limitation on exception,” and; “narrowest possible scope of exception.” Do these requirements set a bar that you can reach? Would the cost to apply for such an exemption exceed the benefits?

- Does this proposal do more to discourage companies from the hope of an exemption, rather than provide a hope of flexibility?

- How many small businesses could qualify for the “relief for small manufacturers” on testing costs with such a narrow definition of “low-volume”?

- And a rhetorical question: Why would we ask companies (and our own agency staff) to do all of this new work for perfectly safe products to begin with?

If the expansion of the tax code is any reminder….a fix that’s not necessarily a complete fix, yet adds loads of paperwork and time-consuming, complex, costly, new requirements—is probably not a fix.

Please email me at Commissioner_Northup@cpsc.gov

Hit’em again! Hit’em again! Harder! Harder!

In today’s vote on the Final Rule Interpreting Civil Penalties, the Commission had a chance to moderate some of the CPSIA’s harshest effects by incorporating a reasonable enforcement regime. While the new law greatly expands the allowable penalties, this is one area, and one of the few, where the law is not completely prescriptive. Here the CPSC had freedom to use its creativity and expertise to do what it does best: evaluate risk as an important factor. Unfortunately, I do not believe the lightweight language in the rule is sufficient to encourage good corporate citizens to stay in the game.

By refusing to say that we will not swat flies with sledgehammers, we instead leave people guessing and wondering if the stakes are too high to risk entering the children’s product market.

To read my official statement, click here

Oops there goes another rubber tree...

You may have seen last week’s article in the Product Safety Letter in which the CEO of American Home Furnishings Alliance told Commissioner Northup that “…some of the member-companies, many of them small businesses, were leaving the youth furniture market because of fears of increased costs due to the new CPSIA requirements.” (Product Safety Letter, March 1, Commissioners Open to Exemption Request from Furniture Makers)

So the next time you are wondering why there are fewer choices in the children’s furniture market…

Unblockable Drain Cover Vote Ensures Safer Swimming

We won a narrow victory for safety and common sense last week when a bi-partisan majority of the CPSC voted 3-2 to interpret the Virginia Graeme Baker Pool and Spa Safety Act to treat pools fitted with unblockable drain covers as compliant. Commissioners Nancy Nord and Robert Adler joined me in the majority. The Commission’s professional staff reviewed the various alternatives and recommended unblockable drain covers as the best solution to the entrapment risk for several reasons. Unblockable drain covers are the only (let me repeat, only) solution that works for all five kinds of entrapment. Unblockable drain covers prevent an entrapment from occurring in the first place, whereas other back-up systems kick in only after someone gets into trouble (if then). To learn more about why I supported the decision, you can read my statement here.

Some pool safety advocates have criticized the agency’s decision, claiming that the vote puts swimmers at great risk. In truth, of the roughly 3,400 annual drowning deaths in the U.S., an average of less than one per year occurs as a result of a drain entrapment in a public pool or spa. Because we do not have good data on how many people are exposed to blockable drains each year, we cannot ascertain a true risk level. However, unblockable drain covers offer not only the safest but also a cost-effective solution to the drain entrapment problem. I believe they will save more lives and prevent more injuries than the other alternatives.

BREAKING NEWS – Commissioners support an economic impact analysis of the CPSIA

I know that you will be happy to hear that both Chairman Inez Tenenbaum and Commissioner Nancy Nord agreed on the need for an economic impact analysis of the CPSIA at this week’s congressional hearing before the House Appropriations Subcommittee on Financial Services.

Given that the question of economic data was brought up by Ranking Member Jo Ann Emerson and that Congress has been considering ways to amend the CPSIA due to its unintended economic consequences (see our Recommendations to Congress and my personal statement here), it is clear that our agency should be making these studies a priority.

Just as you have expressed concerns about the CPSIA's impact on our economy, it is clear that Congress shares those same concerns. I believe we should be doing everything we can to define and aggregate the economic impact of the law and I look forward to starting these studies soon!

Jobs and the CPSIA

What's Haunting America's Toy Industry?

"At a time when the federal government should be doing everything possible to preserve jobs and stimulate economic growth, the CPSIA is doing the exact opposite. In effect, it is essentially anti-stimulus legislation."

Let us know how CPSIA is affecting jobs in your business. What changes can we make at the CPSC to mitigate the impact of the CPSIA? Or do you think a change in the law is needed? Suggest a change here or email me at Commissioner_Northup@cpsc.gov.

Was Toy Fair a "Big Deal" to you?

The Toy Industry Association's Toy Fair was held this week in New York City, and while I unfortunately wasn't able to attend, Mark Chenoweth from my office enjoyed meeting many of you. It was a great opportunity for us to hear from a variety of toy makers, see the latest and greatest toys, and get a feel for your reactions to the emerging and pertinent issues facing the industry.

As you know, I am very interested in your experience and would love to hear what you have to say about this year's Toy Fair:

- What did you learn, particularly about the CPSIA and CPSC?

- Do you feel more confident now than you did before the Toy Fair?

- Was the CPSIA a topic of conversation between you and non-CPSC staff? If so, what was the general consensus?

- How was this year's fair compared to past ones as far as attendance and morale?

Your feedback is much appreciated! Email me at Commissioner_Northup@cpsc.gov

Report to Congress - Starring YOU

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

In this blog post, The National Association of Manufacturers recognizes how important your stories are to show the Congress the impact of the CPSIA!

"[Northup] attached written comments from trade association and individuals — including people who have their own crafts and small businesses — that effectively buttress her recommendations. (Northup’s Dec. 24th opinion column in The Wall Street Journal, “There Is No Joy in Toyland,” helped move the debate in the right direction.)"

The U.S. Isn't as Free as It Used to Be

The U.S. Isn't as Free as It Used to Be

I know you will especially appreciate the above article from the Wall Street Journal.

It reports that America has dropped in regard to being “economically free” according to the new 2010 Index of Economic Freedom. We could fix this if we can find a way to help our nations entrepreneurs and small businesses without over-burdening them with unnecessary compliance costs!

Letter to the Editor

In response to a letter to the editor (A Partisan Assault on Child Safety Law, December 31) regarding my December 24th op-ed in The Wall Street Journal, I wish to make several points:

First, regarding the letter’s assertion that there is “bipartisan” support for the CPSIA:

- At least 11 bills have been introduced since the CPSIA’s passage to amend the law to avert its unintended consequences, including some bills by Democrats.

- Members of Congress on both sides of the aisle have written more than a dozen letters to the Commission to request leniency in the law’s requirements for small businesses, exemptions for specific products they feel should not have been impacted by the law, and other changes. To date, the Commission has not addressed these concerns due to a steadfast determination to narrowly interpret the statute.

- Last month, Congress (both Democrats and Republicans) explicitly asked the Commission to report back to them with recommendations on ways to amend the law to make it more workable – a report which was submitted on January 15th.

- For the past year, Republicans in Congress have requested that the Majority hold hearings with stakeholders on the CPSIA, to no avail.

So, to infer that the CPSIA still holds bi-partisan support is absurd and completely false.

Secondly, regarding the “bio-availability” of lead in children’s products, there are terms like these used by non-scientists, the media, as well as CPSC Commissioners describing lead that are worth taking a moment to explore. The author of this letter uses a few of them:

- “Exposure” – The concept of “exposure” to lead is broad. “Exposure” in this context can mean that a product with lead (i.e. your house keys) is in the same room as the person “exposed.” Thus, if you are “exposed” to unsafe levels of lead, this does not necessarily have anything to do with whether you lick it, digest it, or in any way consume it so that it gets into your bloodstream.

- “Absorbability” or “bio-availability” – Not to be confused with “exposure,” the absorbability of lead would mean, for example, when you touch a bicycle handlebar and then lick your fingers, how much lead actually gets into your bloodstream? Very, very, very little, if any. If you continued to touch that handlebar every day and lick your fingers afterwards, there is no plausible possibility you would be at risk of absorbing too much lead.

But more importantly, absorbability is where experts (Centers for Disease Control, National Institutes of Health) have found that lead paint in old houses as well as lead in dirt near old gas stations can be very dangerous for small children. In other words, the risk of absorbability with lead paint in an old home that becomes chipped is quite high. The CDC advises that children under five years old with blood lead levels greater than 10 micrograms of lead per deciliter of blood be treated to prevent lead poisoning (http://www.cdc.gov/nceh/lead/.)

However, none of these agencies has ever found that a child touching or mouthing the brass on a toy car, playing a brass musical instrument, touching a vinyl lunchbox, or riding a bicycle, could ever rub off enough lead, day after day, to ever affect his or her health. Yet, these are the types of products outlawed by the CPSIA.

If you are concerned about “exposure” to lead (as the author of this letter may be), which does not necessarily have anything to do with ingesting lead or a health risk, then you may be interested in simply banning lead in all consumer products, everywhere – with no resulting health benefit at the end of the day. But if you are concerned with the “bio-availability” or “absorbability” of lead and what products actually could cause a rise in the blood lead levels of young children, as I am, you would prefer a policy allowing for de minimis absorbable lead (e.g., as the Food and Drug Administration permits 1 microgram of lead in a piece of candy) where a child is not at risk, combined with a focus on heavy enforcement for items that do pose a risk, like the solid-lead small parts or jewelry referred to in the author’s letter that can be swallowed and absorbed—as well as lead paint in old homes.

I appreciate an open, thorough debate on the science behind these issues and welcome comments. It is essential that the facts and the science behind the risks of lead absorption be front and center as the Commission implements the CPSIA and Congress addresses recommendations to amend it.

My Recommendations to Congress

I believe that the CPSIA should be amended to reflect the real risks associated with lead absorption. I wholeheartedly supported the consensus recommendations in the agency’s report to Congress, however, my statement suggested several additional amendments that were not included in the Commission’s consensus report:

1. Focus CPSC resources on what we know may actually harm children: Only require third-party testing and certification for products that may contain more than a de minimis amount of absorbable lead (i.e., an amount that could meaningfully raise a child’s blood lead level)

2. Provide the agency flexibility in treating products for 12-month-olds and products for 12-year-olds differently, according to risk: An 8-year-old is not going to suck on a bicycle tire valve stem, and it makes no sense to ban lead in such a component where there is no risk of harm to a child.

3. Give the Commission flexibility to provide relief to small businesses: We have been informed by agency staff that the current statute does not allow this.

4. Avoid adding new exclusions to the statute that would be arbitrary, subjective, unreliable, and only available to companies that can afford to petition the agency: For example, a so-called functional purpose exemption would be all of these things—and it would also radically transform the CPSC into a product pre-approval agency. Statutory exemptions should be written in such a way that those who qualify for them can take advantage of them without agency sign-off.

5. Allow thrift stores, garage sales, and other resellers to sell second-hand goods: Under the CPSIA, the statutory limits for lead and phthalate content prohibit resale, even where the agency has never found these items to be unsafe. This policy threatens to put an end to the second-hand children’s clothing market.


To read my statement that accompanied the CPSC report, click here

To read the CPSC's report, click here

Congress WILL hear you

Today, my fellow Commissioners and I sent a report to Congress presenting some of the issues the Commission and the small business community have faced due to the unintended consequences of the CPSIA. I voted in favor of the recommendations in the report because I agree that statutory changes are needed. I also added a lengthy statement to the report with a number of more specific recommendations, including many of your notes and ideas.

Because of you and the concerns you shared with me, I had real life examples to show them about the costs and hardships the law is placing on America’s small business community. In my statement, I added an appendix with letters you have sent me – from the requests to extend the stay of enforcement to your recommended changes for the law - as this was a great opportunity to share the insights of people who are dealing with the unintended consequences of this law every day.

Together, we have a chance to persuade Congress that the CPSIA needs some changes – and I am hopeful that they will heed our requests and put this agency back on a course of focusing first on health risk and child safety and move away from interpreting and applying an unwieldy statute that has many provisions that provide little to no benefit for consumers.

Thank you for sending me your stories and recommendations and I hope you will continue to do so!

My appearance on Stossel

John Stossel on CPSIA

Last night, I was honored to be a guest on John Stossel's new show, Stossel, on Fox Business. As we discussed the CPSIA and it's testing and certification requirements, I tried to convey to him the HUGE cost it is imparting on already safe toys - especially those made by small businesses and crafters. You should have heard the audience's reactions! When they learned that the Goodwill and other charitable organizations were not able to sell products that are NOT a real threat to children, they were outraged! Please watch and let me know what you think!

Six Of One, A Half Dozen Of The Other

AP: Feds probe cadmium in kids' jewelry from China

Today’s AP/W.Post story shows a major unintended consequence of the lead content limits. By banning lead above 300ppm, Congress has led some manufacturers to make items containing cadmium at over 900,000ppm—which is far more dangerous than 300ppm of lead. A similar problem has emerged from Congress’s ban on certain phthalates. By not allowing manufacturers to use phthalates, which this agency has previously found to not be harmful, manufacturers have turned to using other plastic softeners that have not been tested or found safe by this agency.

A Note on the Sunshine Act...

As we heard in Wednesday’s hearing, transparency in government is not always a sure thing. It is ironic that the very law that was passed to ensure openness and transparency in Commission activities, the “Government in the Sunshine Act of 1976” (5 U. S. C. 552b) actually does more to tie our hands in a 5-member Commission than to help us. That is why I believe strongly that we need a public hearing next week to discuss the recommendations the Commission will send to Congress on amendments to the CPSIA – before the January 15th deadline.

Once the President appointed a full bench to the CPSC last year, moving the membership from two Commissioners to five, the Sunshine Act requirement kicked in that more than two Commissioners are prohibited from being in the same private room with one another to discuss a pending matter---such as, the kinds of recommendations we should send to Congress to amend the CPSIA, or how we can find more flexibility in the law for small businesses. As a result, our only time for discussion amongst ourselves on these crucial issues is during our weekly public hearings over the webcast.

The consequences of avoiding direct communications with your colleagues (other than 1-on-1 discussions), an over-reliance on staff to fill the gaps, and finally, preventing any discussion of the matter in public are twofold: 1) As a Commissioner, my conversations with another Commissioner on these important topics quickly become meaningless after that Commissioner or myself have furthered the discussion at another time with one of the other three, and; 2) The spread of information from Commissioner to Commissioner (or through staff) often becomes a game of “telephone” where the fact or anecdote starts with one person, is passed to another, and may be barely recognizable by the time it gets to the other Commissioners. Stories take on a life of their own, as I have experienced firsthand, and significant things like facts get gently pushed aside in the interest of deadlines and schedules.

The implementation of the CPSIA is the most important issue before the Commission at this time. If we do not have an open, public discussion amongst the five Commissioners about why the CPSIA needs to be changed and what we will recommend to Congress, the facts and truth behind these issues will never fully see the light of day. Incorrect assumptions on the economic impact of the law or the science behind it will go unchallenged. There will be little to no “sunshine” on the Commission’s activities to make changes, or avoid making them, on a far-reaching law that has impacted thousands of families and businesses—and which we are running out of time to fix.

Transparency and the CPSC

Today’s public hearing was certainly one of the more “spirited” ones I have participated in since joining the Commission! The fact that my motion was denied and we will not be openly discussing our report to Congress is a huge disappointment and really shows how important it is for you to share with me your ideas and thoughts on what changes should be made to the CPSIA. Please email me at Commissioner_Northup@cpsc.gov as soon as possible so your views are not completely shut out of the report we send to Congress (or at least my statement!)

To see today's hearing, click here
More information about today’s hearing: CPSIA - Transparency, Tenenbaum/Adler-style!

We aren't alone!

In Case You Missed it: Lone Voice of Reason at CPSC

Glad to see that Angela Logomasini at the Competitive Enterprise Institute also thinks we need more common sense...

What to My Wondering Eyes Should Appear...

'Can-do' vs. 'Stand-Pat'Entrepreneurs could be the key to recovery

Today's piece from the Washington Post by Robert Samuelson links economic recovery to entrepreneurship...and regulatory restraint. Here's hoping for a New Year's resolution at the CPSC to find the least costly regulatory policy to protect families and children from harm so that our children are safe and their moms and dads still have jobs.