Boston Globe Catches up to “Mommy Bloggers”

Posted by Valerie on February 27, 2009

The devastation of CPSIA is on the front page of today’s Boston Globe.

The Examiner in Washington reflects on the outstanding work done by Walter Olson at Overlawyered.com.

Meanwhile, we Mommy Bloggers haven’t known what we’re talking about.

Creating Pain for American Children

Posted by Valerie on

Consumer groups ostensibly formed to protect children have used their power to bring dangerous weapons into the communities and homes where little kids live. Where American children were once exposed to pretty pictures in old books, they are now exposed to a lack of  lack of affordable clothing and a shrinking purse in the hands of their providers.

These ”consumer advocacy” groups seem to think in one-dimensional fractions. To them, American businesses are the Big Bad Wolf, hoping to terrify Red Riding Hood with big teeth and eyes before  devouring her, but in reality the owners and employees of American businesses are both the producers and the consumers of America, the loving parents and grandparents of America’s children.

Businesses are, far more often than not, a blessing and a comfort to American children. When these “consumer advocacy groups” attack businesses wantonly and without warrant, they are attacking families–and children.

While CPSIA was in formation, a number of groups spoke and wrote in favor of it. Notable among them are seven advocacy and lobbying organizations which regularly issued joint statements pushing hard against American businesses, pressing for the passage of CPSIA, lobbying against reasonable amendment, and celebrating its passage. The same seven advocacy and lobbying organizations are now resisting hearings and fighting any attempt to revisit this horrible legislation.

In some cases, these groups are blaming frightened businesses for the havoc that they themselves have created against the parents and children that they were organized to protect. 

• Consumer Federation of America 
• Consumers Union
• Kids in Danger
• National Research Center for Women & Families
• Public Citizen
• Union of Concerned Scientists
• U. S. Public Interest Research Group (U. S. PIRG)

I will quote from the joint statements issued by these groups, as well as other sources, to show that from the beginning, these lobbying interests deliberately sought a total ban on lead without respect to measurable health risks and without regard to the damage to businesses, to families, and to children.

These groups seem to be unaware that while attempting to protect our children, they have harmed our children. They have forced families into economic crisis and have put a nearly insurmountable barrier between our kids and some of the very best educational products ever manufactured.

If someone would start a ministry teaching these “consumer groups” statistical and logical analysis, it would be a great service to the United States of America. The incalculable benefits of teaching these groups to attend to measurable risk and drop the use of circular reasoning would be well worth almost any cost. I would certainly donate to such an educational endeavor.

While trying to create their lead-free, phthalate-free utopia, while declining to attend to any sensible analysis of statistical risk, these groups have brought governmental oppression against children and families in a harmful way. Until these groups can see that children actually, believe it or not, benefit from American business, they will never know the harm that they are doing to America’s kids by refusing to revisit CPSIA.

Having accomplished the absolute lead ban which they sought and now seeing the current and growing fallout from it, these seven lobbying and advocacy groups fight every effort to obtain reasonable exemptions from Congress and have turned to blaming businesses for understanding the law as written–and blaming the CPSC for enforcing the standard that they have forced upon this nation.

CPSIA’s lead and phthalates standards are arbitrary, divorced from risk, reality and safety. We–our families–pay the price for that.

November 6, 2007
Rachel Weintraub, Director of Product Safety and Senior Counsel for the Consumer Federation of America (CFA) speaks before the House Committee on Energy & Commerce on behalf of the CFA and also on behalf of Consumers Union, Kids in Danger, Public Citizen, Union of Concerned Scientists, and U.S. PIRG

Lead has been found in products made by large manufacturers, as well as in those made by smaller companies. We support a ban on lead in all children’s products….We support a bright line ban on the use of lead in children’s products to no more than trace amounts….there is no justifiable reason why such a dangerous additive should be used in children’s products, as safer alternatives almost always exist…. [A]ny children’s product not in compliance with this rule be considered a banned hazardous substance, whether or not the lead is accessible to a child.

(At the same time, Weintraub requested independent third-party testing of final products and components both: “Components and final products must be tested at numerous stages of production and tests must be conducted randomly throughout the manufacturing process.” Other gems included raising the maximum age for children’s products from 6 to 12, defining knowing violation to allow for the prosecution of innocent people, removing the necessity for giving a notice of non-compliance prior to prosecution, adding jail time, removing the provision that criminal transgression must be done willfully and demanding that all manufacturers and importers post big liability bonds before doing business. Another group of demands invited competitors and disgruntled employees to destroy good companies without proof of wrongdoing, leaving those ruined businesses with no legal recourse.)

Rachel Weintraub clearly called, on behalf of these groups, for an absolute ban on lead without regard to risk and without regard to the fact that sometimes, as in bicycle tires or microscopes, lead performs a necessary safety or educational function.

An absolute ban on lead is what they wanted, and it is what we got. Here’s how the ban now reads in the CPSIA–

“…any children’s product…that contains more lead than the limit established…shall be treated as a banned hazardous substance under the Federal Hazardous Substances Act…. The Commission may, by regulation, exclude a specific product or material from the prohibition…if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither…result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children’s activities, and the aging of the product; nor have any other adverse impact on public health or safety.”

Where an “either…or” would have made a little bit of sense and would have saved many wonderful products, we have been forced to live under an absolute “any lead” requirement and a ”neither…nor” decision tree, meaning that even if a particular product is safe, or even clearly beneficial, the absolute standard will still apply.

This arbitrary lead standard must apply to every piece of clothing, every book, and every toy even if there is no known adverse impact on health or safety. This was deliberate. There is a good amount of evidence in the record that the CPSC lost the opportunity to use discretion on lead simply because they have allowed lead to be used in perfectly harmless ways in children’s products in the past. No evidence of measurable risk was ever presented to Congress in terms of lead in children’s products, but circular reasoning was used to label formerly permissible uses of lead as inappropriate more than once and by more than one person during the hearings.

The CPSIA absolute ban on lead allows no exceptions for any safe clothing, any safe books, or any safe toys in spite of the fact that we have no record of any child ever poisoned by clothing, books, or regular toys. “But my product is safe” has no meaning in the context of CPSIA; thanks to this legislation, the concepts of risk and safety have become meaningless. 

In the wake of Rachel Weintraub’s testimony, Consumer Federation of America, Consumers Union, Kids in Danger, National Research Center for Women & Families, Public Citizen, Union of Concerned Scientists, U. S. Public Interest Research Group (U. S. PIRG)  must have known that they were calling for a strict ban, and that they were demanding than strict ban without reference either to accessibility or to risk.

There’s more evidence in several joint statements produced by these groups.

Undated Coaltion Summary for H. R. 4040, which became CPSIA 

Ban on Children’s Products Containing Lead; Lower Lead Paint Limit – The CPSIA bans lead in children’s products and establishes a more stringent lead paint limit. Beginning 180 days after the date of enactment of the CPSIA, any children’s product that contains more than 600 parts per million total lead content by weight for any part of the product will be treated as a banned hazardous substance under the Federal Hazardous Substances Act (FHSA).

February 26, 2008 Letter to Senators

The record number of recalls in 2007…especially those recalls of popular children’s toys with excessive levels of lead…shattered the illusion of our nation’s effective safety set [sic] and highlighted the many significant flaws in our product safety system…. S. 2663 closes a gaping loophole in current law by creating uniform limits on the levels of lead permissible in children’s products and in paint. By lowering lead levels in children’s products – without creating loopholes and unnecessary exceptions – this bill will help address the serious health and cognitive problems associated with long-term and repeated exposure to dangerous lead. 

(If the number of recalls was the proof that CPSA wasn’t enough, do these groups really think that CPSIA will produce fewer recalls? Absurd!) 

February 29. 2008 Press Release

Attorneys General…may initiate action only if the residents of that state are threatened or adversely affected by a violation of a consumer product safety standard or rule…. The CPSC does not have the capacity to enforce recalls in every store and every city across the country. In order to protect children from unsafe toys and children’s products, for instance, it makes sense to have 50 additional “cops on the beat”….

S. 2663 does, however, repeal a provision that precludes the CPSC from pursuing criminal penalties unless the agency has given notice of the violation and the criminal persisted. By definition, someone who violates criminal law “knowingly and willfully” should not need notice of the violation before being prosecuted….

Small, reputable businesses will not be driven into bankruptcy [by the new penalties]. But the threat of higher fines for violations of consumer product safety laws will and should deter all companies from shortchanging safety concerns….

 March 4, 2008 Battle against the first DeMint Amendment 

We strongly urge you to oppose the DeMint Amendment 4095 to S. 2663, the Consumer Product Safety Reform Act…. A vote in support of the DeMint amendment would deprive the public of critical safety reforms, including a publicly accessible product safety database, specific toy safety protections, limited powers for state attorneys general to enforce the federal CPSC law, and protections for workers who blow the whistle on product safety violations…. This is our golden opportunity to put the safety of our children first and to strengthen the Federal Agency who has the responsibility and the authority to protect our children and our families. We strongly urge you to vote against this amendment. 

March 6, 2008 Celebratory News Release 

The Consumer Product Safety Reform Act, S. 2663 as passed, will do the following: increase CPSC’s budget over the next seven years to $155 million; create a consumer database of product hazard information to better help consumers make informed purchasing decisions; make the industry’s voluntary toy safety standards mandatory, ensuring that all toys are tested to comprehensive criteria; establish third–party, pre-market testing of children’s products; increase the current limit on CPSC’s civil penalties to $10 million for most violations, and cap it at $20 million for “aggravating circumstances;” give State Attorneys General tools to better protect their residents; lower lead levels in children’s products; and protect CPSC staff and private-sector employees who blow the whistle on wrongdoing.

The groups acknowledge the importance of marrying the strong reforms of the Senate bill with key provisions in the House product safety bill passed in December. In particular, the groups point to the Senate’s provisions addressing the public database, State AG enforcement and whistleblower protections. The groups will urge conferees to keep these provisions, while also adopting a critical House measure that ensures product testing of more children’s products by defining such products as those designed for children under 12 years of age….

May 15, 2008 Calling Congress to Finish the Job

“Toxic chemicals like lead and phthalates have no business in children’s toys,” said U.S. PIRG Public Health Advocate Liz Hitchcock.

July 23, 2008 News Release Urges CPSIA Passage

In response to the recall of 45 million toys and children’s products in 2007, the House and the
Senate both passed strong CPSC Reform Acts granting the beleaguered agency new funding and authority to police imports and to ban lead in children’s products. Final action on a conference committee report resolving differences, however, has been delayed by numerous industry requests for exceptions to the law, the groups said.

“Will Congress give ExxonMobil and the toy industry Christmas in July or will it guarantee America’s littlest consumers a safe holiday season by finishing CPSC reform now?” said Ed Mierzwinski, U.S. PIRG Consumer Program Director..

 July 31, 2008 News Release Applauds CPSIA Passage

The bipartisan Consumer Product Safety Improvement Act of 2008 will make consumer products safer by requiring that toys and infant products be tested before they are sold, and by banning lead and phthalates in toys…. Lead will be essentially eliminated from toys and children’s products…. Toxic phthalates will be been banned from children’s products.

August 14, 2008 News Release Applauds Bush Signature

Today, consumer, public interest and scientific groups applaud President Bush for signing product safety reform legislation into law that will overhaul the Consumer Product Safety Commission (CPSC)…. This critical new law will make consumer products safer by requiring that toys and infant products be tested before they are sold, and by banning lead and phthalates in toys…. Lead will be essentially eliminated from toys and children’s products.

December 4, 2008
Public Citizen and The Natural Resources Defense Council File a Lawsuit Requiring Retroactive Enforcement of the Phthalates ban. (This lawsuit was successful.)

These groups all knew that they were calling for an absolute standard divorced from known risks, but look at this letter they sent to Nancy Nord recently. All of a sudden, maybe risk-based analysis should be good enough after all?

January 7, 2009 Letter to Nancy Nord  

[We] write to urge the Commission…to immediately dispel misinformation now circulating…. Some small businesses have expressed concern about the lack of guidance and information from CPSC about the implementation of the CPSIA…. Now CPSC must take the initiative to allay their fears by providing prompt, common-sense, and explicit interpretations regarding exemptions to CPSIA…and education regarding compliance with the CPSIA for retailers, including thrift and consignment stores….

Congress itself acknowledges within the legislation that while certain products create a risk, some products and materials will be granted exemptions from the pre-testing requirements if they do not present a risk of harm.

In the four months since passage of the CPSIA, the Commission has failed…to provide clarity for industry about common sense testing and certification exclusions for products and materials that will not harm the public health….we strongly urge the CPSC to move quickly to clarify how this new law applies to certain products or materials that do not present a risk to children or the public. However, CPSC should only grant exclusions to this provision that are scientifically well supported to have no negative impact on public health and safety.

PSC must work with second-hand sellers to ensure compliance with the intent of the CPSIA – keeping dangerous products off shelves and out of our homes – while also presenting common sense solutions for these stores. Once CPSIA is fully implemented, the secondhand market will be safer since unsafe products will be taken out of the stream of commerce.

However, to be clear, exemptions should not be made to the law’s requirements based upon the size of the product maker or seller …. To the contrary, there are many reasons to include such entities.

They write this letter, but they do know, as well as anyone, that the lead standard they demanded is a “bright line” standard that does not allow exemptions for mercy to businesses or lack of risk to children.

January 22, 2009 Bloomberg.com Quotes from Rachel Weintraub

“This law passed because our product safety net was broken,” said Rachel Weintraub, senior counsel for the Consumer Federation of America, a nonprofit organization based in Washington. “The answer is not to reopen the bill.”

January 30, 2009 Statement from a Coalition of Public Interest Organizations

“In recent weeks, a number of misleading statements about the testing requirements of an important new product safety law have appeared in the media, on blogs and on other Web sites. While we have urged the Consumer Product Safety Commission (CPSC) to promptly address reasonable concerns that have been raised regarding compliance, and provide better information about the new law, our organizations all agree that the law is fundamentally sound and essential to ensuring a safer marketplace…. In truth, the CPSC has the authority to exempt materials from testing requirements where there is no risk of harm to the public health….exemptions for materials that inherently do not pose safety risks…would address nearly all of the concerns raised on behalf of small business….the CPSC can provide implementation guidelines and grant exclusions from the testing requirements once businesses show that there is no risk of harm from the materials used.”

This sounds so reasonable, but the truth is that these organizations deliberately fought to remove flexibility from the law. They fought to create legislation that forbids the CPSC to use measurable risk to assess safe and beneficial products. This coalition demanded a “white line ban” on lead in all children’s products–and it did so on purpose.

These groups got what they asked for–and they know very well what they asked for. Repeatedly, testimony included reference to cases where the CPSC had allowed small amounts of lead to remain on the market when there was no evidence of risk. Against that past flexibility and with no evidence of harm to anyone, these groups presented the circular premise that “if it’s lead it should be banned because it’s risky” and “well, duh, it’s risky because it’s lead.” To these groups at that time, there was no need for evidence and no value to nuance.

Last year, these groups made it clear that they no longer trusted the CPSC to take a risk-based, flexible approach to lead. They wanted the “bright line ban” without regard to accessibility or risk; they wanted the “neither…nor” wording that they got. Now we have a standard which does not allow for over 600 ppm lead in any component of any children’s product, even if there is no risk of harm and no safety risk. There are two tiny exceptions, yes, but neither of these can be applied to books, clothing, or non-electronic toys.

These groups fought for this stringency, and there is no reason to believe that they suddenly don’t understand what their wording means. In fact, in a subsequent letter to President Obama, they made it very clear that they know that CPSIA is an absolute ban on lead in all children’s products.

January 30, 2009 Letter to President Obama

The bipartisan CPSIA makes consumer products safer by requiring, for the first time, that toys and infant products be tested for safety before they are sold, and by banning lead and phthalates in toys….the agency has not properly addressed concerns being raised by small businesses, home crafters, thrift stores, book publishers, and libraries among others. These concerns involve, for example, establishing common-sense exclusions from lead testing for textiles and paper-based books that are proven to be lead-free, component part testing where appropriate for lead and phthalates, and clear guidance for thrift stores. This did not have to be the case. The CPSIA already includes mechanisms for solving these legitimate concerns raised by these groups in a manner that protects the public health…..Effective leadership at the CPSC is urgently needed to help implement the law as intended, to provide common sense interpretations of the law, and to clarify pervasive misstatements and confusion about this consumer protective law.

February 10, 2009 Statement of David Arkush, Public Citizen

South Carolina Sen. Jim DeMint’s attempt to undermine the Consumer Product Safety Improvement Act by amending the economic stimulus package fortunately never came to fruition. Lawmakers should block any more attempts to change the product safety law.

DeMint’s proposal, never voted on, would have unnecessarily exempted some businesses from the new safety regulations and would have allowed retailers to keep selling products that contain dangerous levels of lead….

Lead is not inherently dangerous. Lead is dangerous only in an inappropriate amount and in an inappropriate place. It is irrelevant in some good products and a positive benefit in others.

This arbitrary, bright line standard does not protect children from any known or measurable risk, but these advocacy groups fight on, determined to oppose the good, ethical businesses that provide for America’s children.

When winter comes and inexpensive winter coats are hard to find, when Christmas comes and businesses have closed and parents have lost jobs, do you wonder if these defenders of children’s safety will begin to look a little bit like wolves in grandma’s clothing?

(All emphases above are mine.)

Nancy Nord Speaks to the Toy Fair

Posted by Valerie on February 26, 2009

The Acting Chairman of the CPSC, Nancy Nord, spoke at the Toy Industry Association Toy Fair ‘09 on February 16, 2009. The following excerpts are typed verbatim from that speech.

“…Sometimes…well-intentioned laws…end up having unintended consequences. These kinds of laws, and I’m not talking only about consumer protection laws here, can sometimes leave confusion rather than clarity in their wake, and their unintended side effects sometimes include collateral damage like shuttered factories and lost jobs.

…we in this room have been through very trying times, the implementation of a sweeping new law regulating the toy industry in the context of the most serious economic crisis since the Great Depression….

I think we all know that the genesis of the Consumer Product Safety Improvements Act lies in a series of high-profile toy recalls that occurred over the last several years. While a number of these recalls were for hyper-technical violations of, for example, our lead paint standard and others did not present any acute hazards, I’ve gotta tell you, some of them were downright scary, and I’m talking here about the magnets and the Aqua Dots recalls….

The lead paint issue did not involve problems that were not already covered under existing laws, but that did not stop it from contributing to really what amounted to almost public panic and hysteria up on the Hill….

…I do have concerns about the legislation, and my concerns center around several issues, which I think make responsible regulation a little bit more difficult. And let me just run through them very quickly.

First of all, the law was crafted in the heat of the moment in reaction to the toy recalls of 2007 and 2008, and it’s never a good idea to enact legislation when emotions are running so high.

Second, the lack of flexibility within the law in some cases ties the agency’s hands and does not allow us to deal very effectively with real-world issues as they arise in real time.

Third, with respect to the lead and phthalates bans, the concepts of risk and exposure, which really are at the core of our safety statutes, those two concepts have effectively been eliminated. Instead, the mere existence of those two substances, even without any exposure, requires that we take enforcement action.

Fourth, the bans on lead and phthalates are retroactive, making inventory on store shelves potentially illegal and threatening the economic viability of many small businesses….

…something that was perfectly legal and safe February 9th, on February 10th has a very different status, potentially, and that applies to products that are on container ships, sitting in warehouses, and sitting in store shelves, not only the shelves of the big retailers, but also on the shelves of the smallest thrift shops and charity stores.

Manufacturers and retailers alike are feeling the effects of the law’s retroactive impact. The Commission has been asked repeatedly, “How are retailers, especially small retailers, supposed to know if the products on their shelves meet the new requirements?” And that question really goes to the heart of the dilemma that we have. While retailers and resellers do not have an obligation to test their products, they do have an obligation to make sure that what they sell meets the requirements of the new law…. Small retailers are left with millions of dollars of inventory which they do not know if they can safely sell. And then thrift shops and charity stores, which given our current economic situation, have a very, very important role to play in our society, these groups are now questioning whether they can continue to sell children’s clothing and toys.

This is an untenable situation, but it is a situation that is driven by the new law. The agency has tried to calm fears by making clear that we will be reasonable in our enforcement policy, but we cannot waive the law. Only Congress can change it….

[There are] products that contain lead above the prescribed limits that at the same time do not present any known health risk to children. With respect to those products, we have proposed an exclusion process, but Congress has [restricted] our ability to grant exclusions, even in those situations where we don’t think there is a health risk….

So, unless Congress changes this provision, and I see very little indication that they are going to be doing that, industry should not count on exclusions as a practical way to avoid reengineering their products. While I realize that you are being asked to spend resources at a very difficult time, to address a problem that doesn’t really seem to have much to do with safety, you must understand that the Commission’s hands are tied at this point….

What is the role of industry going forward? Well your first obligation, of course, is to know the requirements of the law and to comply with it. As I’ve said a couple of times this morning, the Commission really does want to work with you. We really don’t have any interest in putting out of businesses companies that are honestly trying to comply with the law. But make no mistake. While we will be reasonable in our efforts to enforce the law, we will enforce it….

Merely complaining to us about the confused provisions, and the unrealistic deadlines of the law, will not change those provisions or those deadlines. Hard data, statistics can help us and the Congress better understand the effects of the law on your industry. And if you can provide that data, we will listen to you….

Like it or not, the CPSIA is now the law of the land. The industry must obey it, and the commission will enforce it, so it does not do us any good to lament the train after it has hit us upside the head. Instead, we need to start concentrating on what to do about the headache….

The first emphasis above is mine, and I will have more information on it later tonight. The second emphasis is Nord’s strong verbal emphasis in the original.

You may view the complete speech in four parts both at Youtube and at CPSIA-Central. (At this writing the parts are posted in reverse order at CPSIA-Central, in the left column a little more in than halfway down the page.)

I did make a complete transcription of this speech, all four parts. If anyone needs a transcription, please e-mail me.

One More Ride on the Merry-Go-Round

Posted by Valerie on

The media can’t understand medical research to save anyone’s life, and as usual the researchers show every sign of wanting to keep it that way. Take a look at these headlines….

Low-carb? Low-fat? Study finds calories count more

It’s Not What You Eat, It’s How Much

What’s the Best Diet? Eating Less Food

Diets that count calories work just as well as Atkins, shows research

This isn’t news reporting. And the last headline is entirely unaccountable, except by bias.

My guess is that not one person reporting on this for the major news outlets has taken the time to read the new study that came out in the New England Journal of Medicine this week. Please take the reporting with a grain of salt until you do. I read the study twice, and I learned that it didn’t compare the effectiveness of various calorie intakes, nor did it test any low-carb diet, let alone Atkins. And yet, here’s the conclusion of the authors, in their own words, “Reduced-calorie diets result in clinically meaningful weight loss regardless of which macronutrients they emphasize.”

Here’s what the study actually showed:

1. Four variations of a very high carb diet were equally ineffective in promoting long-term weight loss.

2. 17 researchers were willing to call an average 7# weight loss over two years ”clinically meaningful,” as a ploy to grab headlines.

In which physician’s office anywhere  is a patient today hearing, “Congratulations, Joe! Since 2007, you’ve gone from 238# down to 231#! That’s clinically meaningful!”

3. Researchers are once again displaying a bias against testing any published low-carb plan or any variation of any published low-carb plan.

No study that ever resulted in a “low carb diets don’t work” headline has ever tested anything remotely similar to a low-carb diet. Feel free to try to prove me wrong, but not one.

I could go on, but Dr. Mike will probably be writting about this within 48 hours, if he hasn’t already.

The conclusion and reporting of this study is just one more “load of bologna” from “indispensable government-funded research.” Just remember this: Back when the government wasn’t at war with the citizens’ natural dietary inclinations, we didn’t have an obesity epidemic.

I want you to meet a couple of guys….

Jimmy Moore

and

Kent Altena

Say No to CPSIA

Posted by Valerie on February 24, 2009

Daniela Shelton has created this poignant button to publicize CPSIA. I’ll have it on my sidebar tomorrow.

Daniela also has wearable CPSIA buttons at her Hasenpfeffer Incorporated Etsy Store and more CPSIA images to choose from at Flickr.

Her CPSIA images are free to use on your blogs and web sites, provided that you give her credit.