Archive for July, 2011

Democracy Means Debate

Today I was surprised to learn that our Chairman assumes any disagreement with her view of the world and rulemaking means, in her words, delay and distortion to circumvent the will of America.

I join with the Chairman and our talented, dedicated staff in seeking to remove genuine, unreasonable threats to consumer safety as our statute charges us to do. Life, unfortunately, doesn’t follow statutory rules, and always presents some risk. Falling off a bicycle will hurt even if it contains no lead whatsoever. As a mother, I would do anything in my power to change those realities. As a regulator, I know the CPSC does not have the power to change all those realities.  That’s why I advocate using our limited resources to address the greatest risks to consumers, particularly children.

The Chairman states that our excellent staff are “made up of parents and grandparents who are also consumers.” I guess I need to remind the Chairman we Commissioners and our staff are also made up of parents and grandparents who are also consumers. What’s her point?

I was struck by the number of baseless allegations by the Chairman. Among these was her imagining a “coordinated campaign” against her regulatory agenda. Two or more Commissioners expressing their sincere concerns about a regulatory approach does not a conspiracy make.

What the Chairman characterizes as “vigorous resistance” is actually my principled insistence on collaborative, participatory, democratic government. What does that mean?  That means the Chairman and the majority should not do what they just did on phthalates:  withhold information from the public and foreclose public debate. One virtue the Chairman does not and cannot claim here is transparency.

The “tactics” she accuses me of using are those of needless delay. Let’s see. The Chairman has repeatedly joined in votes to stay enforcement of a variety of CPSC mandates, and she has touted several of these votes as expressions of a spirit of cooperation. Apparently, when she agrees with a delay, it is merely wise bi-partisan restraint, but when I advocate for prudent restraint, it is merely dilatory.  

Additionally, the Chairman ignores the reality that I voted for many of the regulations she cites as CPSC’s latest achievements. In fact, she fails to mention that I took the lead in pursuing the new rules on drawstrings on children’s clothing, pressed the Chairman for months to bring it to a vote, and expanded the scope of that regulation to protect children more fully.

While the Chairman’s slogan “safety delayed is safety denied” may seem catchy, I prefer to focus on substantive language. For example, last week I tried to get regulatory language to focus our resources on our “particular consideration to the safety impacts on children.” I was voted down by the majority.

The message I get from the Chairman is clear: sit down, you’re rocking the boat.  It is unlikely her wish will come true.

Question: When is Children’s Safety a Particular Concern?

It’s a sad day when the Consumer Product Safety Commission (CPSC) – charged with keeping consumers, especially children, safe from harmful products – can’t even agree that it will demonstrate “particular concern for the safety impacts on children” when it enforces its rules. Yesterday was that sad day.

Two weeks ago, when a majority of the Commission decided to impose a heavy-handed, indiscriminate lead requirement when there were plenty of reasons not to, I suggested that we direct staff to draft an enforcement policy to let people know how we would seek to enforce that rule.  What followed were two weeks of negotiations that resulted in a rather empty “statement” drafted at the Commission level that does little to help the community understand our goals.

I had hoped we could, at least, tell people we will enforce the limit with “particular concern for the safety impacts on children.” This would tell manufacturers of things kids actually use, touch, and mouth that they needed to be extra cautious. I was not able to reach agreement to include this phrase.  Apparently, enforcement with  “a particular concern for the safety impacts on children” isn’t a message we want getting out.

During yesterday’s debate, we heard that we can’t make our enforcement policy public or it will turn into a “How to” manual for getting around our rules. However, such a public policy is not an unusual idea.  Other agencies do it, and, indeed, our own agency has done it before, and we’re still able to enforce our regulations especially when companies get either sloppy or cheap and endanger consumers.

During the debate we also heard that kind of public enforcement policy would be “backdoor rulemaking.” I fail to see how it is anything other than the kind of open, transparent governing we should be doing. We are, after all, supposed to govern in the sunshine, so why not put our policies out front so people know just what it is we’re trying to do? It seems odd to me that it would be “backdoor rulemaking” to talk publicly about what we’re doing privately. It seems to me that, if governing openly is “backdoor rulemaking,” then governing in secret is “trapdoor rulemaking”, and that’s a style of governing I can’t support.*

Instead of a clear, open policy that would put manufacturers of the products most likely to cause harm on notice that they needed to adhere to very tight safety programs, we wound up with the statement we approved yesterday. I agreed to the statement because it does acknowledge that lead testing at the level we’re requiring is, at best, an inexact science, and it assures that staff will consider that fact as appropriate when bringing enforcement actions.

Nonetheless, when we can’t even agree to let people know our enforcement decisions embody “particular concern for the safety impacts on children,” then perhaps it’s time to re-think how we approach regulating.

Here is the statement that we did agree to:

The Consumer Product Safety Commission is cognizant of the claims that some manufacturers have made regarding their difficulty in consistently meeting the 100 ppm requirements because of the inherent variability in testing methods and the variability in materials they use in the manufacturing process.

The Commission always attempts to apply good judgment, common sense and fair and reasonable approaches when it enforces its regulations. The Commission staff will always consider documented claims made by manufacturers regarding their difficulty in consistently meeting the 100 ppm lead content requirements.

*In addition to my concerns on the limited value of the statement we passed, I also believe the majority, in opposing a more substantive policy, is misusing the term “backdoor rulemaking.” In real backdoor rulemaking, agencies establish new rules through procedures other than the familiar (and open) notice-and-comment process the law provides for rulemaking. An example of this would be using enforcement powers to force companies into complying with an agency’s demands, thereby setting a de facto rule without having to go through actual rulemaking.

Playing Around with Toy Makers

Today the Washington Times posted my latest Op Ed piece on overregulation and its costs on society. Let me know what you think. Has your company experienced hardships because of the regulating we’re doing? Have you had to exit the children’s market altogether? As a consumer, have you noticed the options for children’s products has decreased at the stores? I want to hear from you. Here’s the op ed in its entirety:

Regulatory Reform: All Talk, No Action at the CPSC

 The Obama Administration has recognized that excessive and unnecessarily burdensome regulations are a drag on the economy.  As the Administration has worked to promote job creation, it has publicized its efforts directing agencies to eliminate or revise unnecessarily burdensome and inefficient regulations.  Apparently, the Consumer Product Safety Commission (CPSC) has not gotten the word.

The CPSC’s failure to get the word is no more apparent than in its efforts to implement the Consumer Product Safety Improvements Act (CPSIA).  The CPSIA was passed after agency recalls of imported products shined a light on the issue of import safety.  The goal of the law is to assure that products intended for children are safe, a goal for which there is universal agreement.  The devil, of course, is in the details, and the details of implementing this laudable statutory goal are devilish for sure. 

Under the law, permissible levels of lead in children’s products are to be reduced progressively, over time.  Currently, children’s products must be 99.97% lead free, and in August, that level increases to 99.99% lead free, unless the agency finds that achieving that minute trace level is not technologically feasible.  In an unfortunate example of politics driving science, the agency just voted along party lines, determining that there are no technological impediments to achieving that level.  That decision was based on a record that is short on facts but long on speculation.  Let’s look at what we do and do not know. 

The most important issue is public health so let’s look at the risk of lead exposure.  While it is a given that children should not be exposed to lead in their environment, it is also a given that consumer products are not a significant source of lead exposure.  Elevated blood lead levels dropped dramatically from the mid-1970’s when lead paint and leaded gasoline were banned.  According to the EPA, exposure to leaded paint in old houses and contaminated dirt and dust remain the biggest sources of lead exposure.  Other sources of lead include drinking water (because of lead plumbing materials still found in some municipal water systems), certain dietary supplements, and certain kinds of pottery, ceramics and crystal, among other things.  Even chocolate can have up to 10 times more lead than what we are mandating for various consumer products.  CPSC staff has told us that the substantial health benefits from lowering lead in children’s products have already been achieved.  The agency expects that further lowering the lead limits to pick up these trace amounts will result in minimal increased health benefits. 

If the health benefits of this policy are not appreciable, what about the costs of moving from a 99.97% to a 99.99% lead free environment?  Lead can be a trace contaminant in recycled plastics and metals.  Therefore, our staff has advised manufacturers of children’s products that, to meet the new level, they may need to avoid the use of recycled metals and plastics.  We do not know is the extent of the use of recycled materials in children’s products.  We do know that virgin plastic is between 50 and 100 % more expensive than recycled options.  Therefore, contrary to the efforts of other agencies trying to push the use of recyclables, the CPSC is pushing industry away from recyclables to more expensive materials without considering whether there is an appreciable health benefit.

With respect to metals, all of the screws, nuts, bolts, and other metal hardware used in children’s products will need to be 99.99 % lead free.  We know that steel under the statutory limit–such as surgical stainless steel – is available but is substantially more expensive than general use steel.  Lead-free brass alloys will cost manufacturers at least 10 % more than other brass alloys.  Low lead tin is available at a 10 to 15 % price premium.    There are, however, questions about availability and variability of these alloys.  The availability of a low-lead alloy does not necessarily indicate that it is economically suitable for a particular application.  There also is a concern that as we push manufacturers to use higher cost materials, they may use less durable materials, such as substituting plastic for metal. This result would present its own safety issues.  In addition, the costs of testing to assure compliance with the 99.99 % lead free limit are expected to increase significantly.

These cost increases are likely to result in a combination of price increases and reductions in the types and quantities of children’s products made available to consumers.  According to the excellent CPSC staff, some firms may reduce the selection of children’s products they manufacture, may exit the children’s market altogether, and in some cases, may even go out of business.  The CPSC staff notes that these costs will have relatively greater consequences for smaller manufacturers and artisans who have less bargaining power, and more limited production runs over which to spread testing costs. 

These are not speculative costs–they are real.  The bicycle industry has told us that, as a result of the CPSIA, they have experienced a 50 % cost increase for their product components.  They have told us that 10 out of 40 manufacturers – 25 %– have stopped producing children’s bicycles and that they expect even fewer manufacturers producing youth bicycles once the new lead limit goes into effect.  Some all-terrain vehicle manufacturers have responded to the lower lead limits by no longer producing youth ATV’s, leaving children no option but to use the more dangerous adult ATV’s.  The Handmade Toy Alliance, representing small toy makers, actually maintains a growing list of companies that have been driven out of business by this law; the list continues to grow.  This is not just some theoretical exercise; these are real people who have lost real jobs and who are being forced to pay more for products with no real safety benefit.

In brief, this drive to a pure lead-free environment with respect to children’s consumer products, especially those that children cannot mouth or swallow, will not give us more appreciable public health benefits.  No child has gotten lead poisoning from riding a bicycle.  This effort will, however, drive up the costs of materials, drive some producers out of the market, cost jobs, and reduce consumer choice.  All the talk about regulatory reform, if not backed up by action, will not change these results.  Leadership and a sensible regulatory policy that is mindful of the real world consequences of government action perhaps could.

Big Costs + No Health Gains = Crazy Results

Tomorrow, the Commission will consider whether, under the CPSIA, children’s products need to meet a new standard that drives lead content from 99.97% to 99.99% lead free.  Our staff has not told us there are health benefits to be gained from this change.  Our staff has told us that, by regulating at this miniscule trace level, we should expect to drive up costs, limit consumer choice, and drive some businesses out of the market (thereby costing jobs).  I predict that this result will not be an issue for a majority of my colleagues; it should be. 

Last week I got an email from an executive of a company whose product line includes some children’s products.  He told me that his company planned to spend at least $80,000 trying to retrofit two products totaling 16,000 units:

  • In one product, a part that will have to be replaced contains 105 ppm.  That misses the proposed limit by less than one thousandth of one percent. 
  • In this product, a second part contains 179 ppm, so it is 99.9821% lead-free but not 99.99%. 
  • In the second product, a part tested at 114 ppm, making it 99.9886% lead-free but not 99.99%.

One of the products is a small toggle lock used on the top drawstring closure of a sleeping bag.  The other is a similarly innocuous product that kids do not mouth or swallow. 

This expense is just for two products from one company.  Imagine how many others are out there making children’s products that will bear similar or greater cost for no health benefit.  There is no concern in any corner, including here at the agency, that these products may expose children to dangerous levels of lead.  Yet while these products are perfectly legal today, come August 15, they cannot be sold.

The agency had the opportunity to try to stop such a wasteful outcome.  Instead, we are poised to require these kinds of crazy results throughout the economy.  While the law is written in a way that greatly limits our options to stop these crazy results, even within the framework of the law, we have done very little to try to regulate in a more sensible manner. 

We need to direct the agency’s resources to address actually dangerous products. Congressional action to correct the obvious problems with the law is also sorely needed.  In the meantime, the waste continues and the costs we all must bear increase.  Our staff has told us that health benefits to be gained are minimal from this effort but great expense will occur.  Consumers are not benefited by such a result.

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