Behold: "The Database of Doom"

The Washington Times gets it...

"Consumer agency endangers employers with rumor and innuendo"

EDITORIAL: CPSC's database of doom

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

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]

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

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.”

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