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.

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

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!