Saturday, January 16, 2010

Reacting to the CPSC's Report on Congress on Reforming the CPSIA

The following is a cross-post of an entry on the CPSIA-Central website by Rob Wilson, Vice President of Challenge & Fun and HTA board member.

Some of you might be wondering where I disappeared to recently. Like many of you, I am in the children's products business, and we just finished our Christmas season, and we are now feverishly finishing our 2010 catalog---yes amazingly enough, despite the CPSIA we will have a 2010 catalog, albeit much different from our 2008 catalog.

This has been a busy couple of weeks with panic (hysteria?) over cadmium in children's jewelry and an informal recall that ensued of all "cheap" children's jewelry irrespective of brand, model, manufacture date (nothing like using those permanent labels that are putting companies out of business!), actual testing results per product, etc.

The other big story is the request from Congress for the CPSC to submit a list of recommended fixes to the CPSIA. Hmm, where to start! Well, while most (including Commissioners Northup & Nord) would have hoped for an open process of the Commissioners meeting together and to discuss this and strive to come up with the optimal recommendations, particularly in light of the complexity of this law, and the broad ramifications that an inferior response would bring, this was denied by the other Commissioners. I can only speculate that there was pressure/concern from the powers that be that an open airing of the problems with this law would not look good (hence, no proper Congressional Hearings either!).

Regardless, the split Commission did issue a "unanimous" "bipartisan" set of recommendations yesterday. Now, the fact that they agreed on these recommendations, does not mean that they agree these recommendation are complete. Indeed Commissioners Nord & Northup were very clear in their comments about additional specific things that they recommend, which for some reason, despite making perfect sense (at least to me), could not be agreed upon as a Commission.

In contrast, I was frankly disappointed by the additional comments of Chairman Tenenbaum and Commissioner Adler. It was clear from the beginning that the Commissioners would end up submitting a watered down set of recommendations, given their different approaches to this law. Commissioners Nord & Northup took the opportunity to follow-up the recommendations with their own set of concerns & recommendations. I did not see anything compelling from Chairman Tenenbaum & Commissioner Adler other than an effort to rationalize the weak set of recommendations that were agreed upon. I can understand they might have a different approach to fixing the clearly documented problems of this law. But what is it? I essentially see a recap that lead is bad, that the CPSC is enforcing the standards, and a request for a little more flexibility in enforcing the CPSIA. What about the laundry list of problems businesses of all sizes have been hounding the CPSC with for the 14-15 months?

In particular, I felt that Chairman Tenenbaum's comment that it is as simple as telling manufacturers to "Get The Lead Out" misses the point entirely. Last I checked, there are a growing number of companies (see Commissioner Northup's comments for a list of some of the more notable ones) that have either closed or no longer doing business in the USA. Did these companies have lead in their toys? No. Were they part of the recalls of 2007? No. Are they respected globally for quality and safe toys? YES! But why are they not here? They have "gotten the lead out", yet the cost of duplicate testing, the complexity of the law, not to mention permanent labelling, and other administrative burdens, make it simply untenable to do business in this country.

Comments like these make me think that Chairman Tenenbaum assumes that the only people selling children's products are the manufacturers. In fact, we have developed a highly complex network of manufacturers, brands, brokers, importers (of all sizes & shapes), sales reps, retailers (that also import directly from Europe or elsewhere) etc. It is a reasonable request to "get the lead out", except that by and large, the lead is out. Furthermore, it is not reasonable to think that this one size fits all regulation will fit all. It doesn't it; it won't; and it never will, until there is one size left---and that is the mega corporations. May we never see that day.

I do recognize that the unanimously agreed upon document contains a section calling on greater flexibility of the Commission to work with "Small Manufacturers' and HandCrafters' Concerns" but I didn't see any specific recommendations for technical amendments, nor do I really know what constitutes a "Small Manufacturer." Brio is not a small manufacturer...but they are gone. Does the CPSC unanimously understand how the CPSIA has affected this important supplier of children's toys? I don't know; I can only see concerns of this type in the comments by Commissioners Northup & Nord.

On the other hand, I want to express my appreciation to Commissioner Northup for once again standing up for, and finding middle ground between business, safety, regulatory necessities, and common sense. I also applaud her for advocating open government by listing letters that we have all sent to the Commission over the months, as an appendix to her comments. For those naysayers that say there are just a few "implementation" problems with the law, or it is something a few tweaks can fix, I urge you to read (or at least scan through---there are many!) each letter. They all tell personal stories, many tragic, of the impacts this law has had on businesses & consumers across this country.

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