Posts Tagged 'children’s products'

All I Want for Christmas Is . . .

A lifetime government job.  And if the commissioners at the CPSC grant tihe pending pettion to ban certain flame retardants, the staffers working on the ban will get that wish.

Earlier this month, the commission held a day-long hearing to consider a petition to ban all organohalogen flame retardants (OFT’s) used in children’s products, the plastic cases for electronics, mattresses and pads, and residential upholstered furniture.  Petitioners assert that the chemicals making up these flame retardants accumulate in the body and could cause cancer and other chronic diseases. Comments on whether to grant the petition will be accepted until mid-January.

So why does granting this petition guarantee lifetime employment for the staff working on it?  First, the breadth of the petition makes for an almost unmanageable task for those trying to write a regulation that would be upheld by a court.  The petition is not just asking for a ban of a single substance; instead it includes at least 83 different flame retardants, each somewhat different from the other, and would apply to substances for which risks are undemonstrated and entirely speculative. The product categories are also very broad and would include thousands and thousands of products where exposure to the OFR’s differ one from another.  Contrary to the assertions of the petitioners, the statute does not allow for regulation based on speculative harm. And like it or not, the statute does require that any regulation be based on risk and exposure.

In this regard, petitioners draw an analogy to the commission’s regulation of lead, a comparison that is entirely inapposite.  Prior to passage of the CPSIA, the agency regulated lead based how exposure contributed to risk of injury.  Congress changed that science-based approach and decreed that mere presence, not exposure, was the trigger for regulation of lead.  However, for other substances, the agency must still find the existence of a hazard and the mere presence of a substance does not necessarily indicate there is a risk of harm.

Establishing the extent of the risk for a wide class of chemicals as they are used in broad product categories is not the only statutory hurdle that must be addressed.  It is entirely unlikely that the ban requested by petitioners would satisfy the cost benefit analysis required both by the statute and by good administrative policy. For example, while barriers, rather than OFR’s, may be an option for upholstered furniture, the costs of implementing that option are extraordinary.  And the agency would need to consider the value of the lives saved from fires that were prevented by the OFR’s.

The statute also calls for the creation of a Chronic Hazard Advisory Panel (CHAP) when the agency seeks to regulate chronic hazards like those now under discussion.  As experience has shown, managing the work of a CHAP will keep a number of staffers working hard for the foreseeable future.

This is not to say that the health effects of OFR’s should not be examined.  On the contrary, the Environmental Protection Agency has the authority (soon-to-be enhanced under proposed amendments to the Toxic Substances Control Act), and has underway activities looking at these substances.  TSCA clearly gives the EPA the authority to regulate both these chemicals and their uses and the EPA is doing that.  If the pace or outcome of this activity does not satisfy the petitioners, then they should take action at EPA to change that, not go forum-shopping around the government.

This petition illustrates the quicksand the CPSC wanders into when it acts to regulate broad classes of chemicals that may present chronic hazards.  The agency is well equipped to address acute hazards but chronic hazards through chemical exposure present very different challenges.  Should the agency grant the petition and venture into the regulation of whole classes of chemicals, that action could sink the agency into a quagmire that will keep staff busy for years trying to claw out.

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Summer Reading

August is here, Congress is leaving town and it is time to settle in by the pool for a good read.  Let me recommend a few Woman-Reading-By-The-Poolthings.  For those looking for something light and frivolous, I recommend the CPSC’s proposed direct final rule instructing that only those toys made from the trunks of trees (Just the trunks?  Really?) will be exempt from pre-sale testing for heavy metals.

However, for a more thoughtful perspective not only on this rule but also on the overly-constrained approach a majority of Commissioners have adopted to trying to provide relief from its overly burdensome testing rules, I recommend Commissioner Mohorovic’s statement accompanying this rule.  He has rightly pointed out that the Commission has framed its work on burden reduction in such a way that real, meaningful results—that reduce costs without compromising safety—will be almost unachievable.  As the Commissioner states, where testing costs add a safety value then those costs are worthwhile, but where testing is required for the point of testing, as is the case under the CPSC’s current approach, then valuable safety resources are being squandered.

To further round out your CPSC reading list, be sure to check out the CPSC Commissioners’ blogs.  You can find them on the agency web site. I was so pleased to see that the Commissioners now are able to post blogs on the web site. This was not true back in 2009 when I started “Conversations with Consumers.”  To write and post a blog I had to go outside the agency and set it up privately.  Check out the Commissioners’ blogs from time to time to get a sense of what issues are of special interest to the leaders of the agency.

Defining “Wooden-Headedness”

In The March of Folly, historian Barbara Tuchman writes:

Wooden-headedness, the source of self-deception, is a factor that plays a remarkable large role in government.  It consists of assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs.  It is acting according to wish while not allowing oneself to be deflected by the facts.

Late last week the CPSC Commissioners voted to write Ms. Tuchman’s definition of “wooden-headedness”  into the Code Le_avventure_di_Pinocchio-pag046of Federal Regulations by issuing a direct final rule to give long-awaited “relief” from the burden imposed by its third party testing rules as directed by Congress way back in 2011[1].

The Commission has been promising relief from its burdensome testing requirements but has been doing everything it can to avoid doing anything since 2011 when Congress first directed it to take action.  Now after four years of study and promises to Congress (even as recently as last month), the Commission has found [INSERT LOUD DRUM ROLL HERE] that toys made from unfinished and untreated wood from the trunks of trees do not have to be tested for the presence of seven heavy metals regulated by the toy standard.

The Commission’s action last week is justified by a contractor’s study which is itself a study in the precautionary principle run amuck.  The contractor was tasked with doing a literature search looking at the same natural materials (untreated wood, fibers such as wool, linen, cotton or silk, bamboo and beeswax among other things) which the Commission exempted from testing for lead back in 2009.  Yet only for trunk wood was the contractor able to report sufficient data to show no presence of the suspect heavy metals in concentrations that violated the toy standard.  For most of the other materials there was insufficient evidence reported to show the absence of violative concentrations of the heavy metals. The contractor, however, did find that a report that wool from sheep dipped in arsenical pesticides (which are no longer used) had high concentrations of arsenic as did wool from sheep grazing next to a gold smelting mine.  In other words, if the contractor, in doing its literature search, found a study documenting a problem, then the material was disqualified.  If the contractor could not find a study documenting a problem, the material was also disqualified on the basis of insufficient information.

Back in 2009, the agency staff was able to make rather more expansive determinations quite quickly and efficiently, without expensive contractor studies, and to my knowledge, public health and safety has not been threatened by this action.  The current agency action seeks to take the smallest, most ineffectual step possible and then point to a constrained reading of the statute and an inconclusive contractor study to justify inaction.

Congress told the agency to take action to reduce testing burdens or report back if statutory impediments required Congressional action.  The agency has done neither.  Instead, the Commission, on several recent occasions, has promised Congress that action on test burden reduction will be forthcoming.  One hopes that limiting testing exemptions to toys made from tree trunks is not what the Commissioners had in mind when those statements were made.  It is hard to believe that Congress will find this a satisfactory response either.

So if you use bamboo or perhaps linen or beeswax in crafting your toy, you are out of luck because there is no evidence these materials are unsafe.  For those small businesses out there who might make a toy from a tree limb or decorate the toy with bark or twigs, you are also out of luck!  And if you are looking for clarity, too bad.  As one of my friends in the small business community said when she heard about this, “Is a branch 12 inches in diameter a trunk? Do I need to ask the lumber yard if the wood came from a trunk? Will they even know? Will I need to have proof the wood came from a trunk?  It just comes across as comical.  Is there value in this determination?  I suppose, but for many it is just too little, way too late. Four years late to be exact.”

The fact is that public health is not impacted by toys that include components of natural materials—the agency’s experience with lead has shown that.  Indeed, the natural materials exemption is a very narrow one and hardly opens the flood gates to testing avoidance. One must ask why the agency is so adverse to finding a workable solution to reducing testing burdens.  Wooden-headedness brings about wooden thinking.

[1] Direct final rules are reserved for those rules that are noncontroversial, and usually deal with routine, narrow or non-substantive matters. They go into effect unless someone objects.  In this case the rule, and the testing relief it proffers, could not be more narrow.

Exposing Exposure For What It Is

Last Friday the Commission unanimously reached an important, eminently practical, and pretty obvious decision: there are children’s products that have more than 100 parts per million (ppm) of lead that should be allowed to be sold. That’s because removing lead at that trace level is not really feasible and that trace amount of lead will not cause a safety risk to a child.

That’s a lot to say, but it says a lot.

Although last summer the agency said there was no technological reason not to impose a 100 ppm lead-content limit on children’s products, thanks to Public Law 112-28 (also known as H.R. 2715), we now have found a way to provide realistic exceptions to that rule. Why? Because in that law Congress emphasized that exposure to lead, not just the mere presence, is the key to determining the true risk of harm. If reducing lead content is not practicable or technologically feasible, if the product isn’t likely to be mouthed, and if using the product won’t measurably increase blood lead levels, then the product can be over 100 ppm—and be okay. There’s no health risk.

There are other components of children’s products, beyond those dealt with in the petition spurring this decision, which may similarly qualify. I hope the Commission continues to use this reasonable approach, albeit long overdue.


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