When Reality Creeps Into Paradise

For fly fishermen, paradise has to be defined as casting for salmon in the pristine rivers and “loughs” of Ireland.  As a novice angler, I got a taste of paradise this past week fishingwhen I tried my hand “dapping” for salmon in a beautiful but utterly remote area of Connemara in western Ireland. (The salmon were quite safe while I was in the river.) At a totally-off-the-beaten-track fishing lodge, I meet an American couple who were also seeking a quiet corner of paradise.  As we talked, they told me they had sold their business and were taking a bit of time to decompress.  That is when reality came creeping in.

This couple had for many years imported toys which they sold in retail stores they owned in the middle and western part of the country. They also designed toys which were manufactured to their specifications in China and other parts of Asia for sale in their stores. With my gentle prodding, they told me that they took pride in being in compliance with all safety regulations and had never had a safety-related problem with any toy they designed or sold. They told me how much they loved their business and the joy their products brought to their customers.
When I asked them why they decided to sell their business, they said that they got out because of Proposition 65 and the CPSIA.  I was very surprised that they specifically mentioned those two laws so I pressed them further. They said testing and regulatory compliance costs had impacted the viability of the business.  This was exacerbated by marketplace confusion with complex regulations that were impossible to comply with with any certainty. They made a decision that they could not–and would not–deal with the potential compliance liability that the U.S. regulations had imposed.
I suppose that some will say that this couple was merely the unfortunate victim of a system designed to make the marketplace safer for all.  To those, I have to point out that the CPSC, in its testing and related regulations, made no attempt to find a balance between imposing regulations that address defined and documented risks as opposed to every conceivable risk, no matter how remote or undocumented, and, thus,  allow those businesses that sell safe products to flourish.  As evidence, just read the regulatory flexibility analysis that the agency economists did prior to promulgation of the testing rule which predicted that the regulation would result in market dislocations. Nevertheless, and not surprisingly, a majority of commissioners soundly ignored that predication. The testing regulation went much broader than the law required or that safety could justify. How does such a result benefit consumers?
I have not been shy in criticizing the inept efforts of the agency to identify and implement ways to reduce the burden of unnecessary testing.  The agency persists in nibbling around the edges of the problem rather than addressing the real problem  which is that the underlying regulations were written too broadly. Perhaps if the agency delays long enough, the casualties will have been taken and there will be no one left standing to complain about regulations that impose undue costs and burdens on American consumers.  But as most fishermen know, the reality is that if you cast too wide a net, you may end up killing more than you catch.
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2 Responses to “When Reality Creeps Into Paradise”


  1. 1 James Finkel September 16, 2014 at 11:04 am

    I was linked to this through Overlawyered.com. I find it somewhat ironic that you chose to reveal that the conversation occurred while fishing. You were not using dangerous lead weights were you?

  2. 2 Gordon Meyer July 31, 2014 at 3:03 pm

    Intelligence, logic, reputable science, and good business sense must be included in the formula to regulate toys and other consumer goods. This has alluded federal regulators, and has been further compounded by the slow response by federal lawmakers to draft legislation in a reasonable amount of time and that is based on sound ideals. But State AG’s and state legislators have not been satisfied with the Federal response nor the laws they created. This has complicated the “playing field” and have it quite difficult for manufacturing and distribution channels to know what is required, let alone small business owners caught up in the swell of ocean of every changing rules.


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