I have mentioned several times in my blog, the Consumer Product Safety Improvement Act (CPSIA) of 2008 and for those of you who don’t know, it was a law enacted in response to the lead recalls in 2007. Do you even remember them? In short, the legislative process begins with sponsorship by either a house Representative or a Senator. They introduce their draft to the senate or the house, which then is referred to a committee. The Bill is then given a number (CPSIA was HR 4040 or House Reform Bill 4040).

Once scheduled, the committee will hold hearings. Those testifying may be officers from relevent branches of government, executives of corporations or anyone potentially affected by the proposed legislation. This process has its own procedures, so I won’t go into those details. The testimony is (or at least should be) a critical step in the process of enacting and/or amending appropriate and effective legislation. The committees hear the testimony of those who have stake in the proposed bill, determine if the legislation is appropriate and potentially approve the bill to the house or senate floor. Considering that those with committee seats are not likely the foremost experts on the topic of every bill referred to their committee, you would assume that the testimony is necessary in determining if the bill is fair, just and appropriate. Not so with CPSIA. Especially when the bill is sponsored by someone seated on the committee seeking re-election that year. I won’t mention any names…Representative Bobby Rush (D) from Illinois.

We ended up with a law that was essentially fast tracked through the legislative process, just months before elections, spurred a ton of media attention and all based on lead laden products that never resulted in any reported injuries. I am sure this bill was mentioned once or twice during the campaigns of those who took part in its successful enactment. Should government have intervened? Perhaps. Should this law have been passed so quickly, without considering the unintentional consequences and far-reaching scope or at a minimum, seriously taking into consideration the testimony of those parties who would be affected? No way! How about CPSC testimony? Should their expert testimony have been considered? Yes. Was it? No. Can you imagine if your doctor felt it best that you undergo a critical and necessary medical procedure, only to be trumped by your city mayor, who says no? Your mayor shouldn’t be involved in that decision and neither should have the energy and commerce committee in approving CPSIA to the house, without first considering the testimony of parties from both sides of the spectrum. It’s this little thing they call democracy.

The average consumer may not see the impact of this law because it hasn’t been the focus of media attention, nor do they realize how it affects their everyday purchases. Plus, with health care reform, natural disasters and the war in Afghanistan at the forefront of media coverage, naturally no one is concerned about the ill effects of CPSIA. What you also may not know is some members of Congress have indirectly admitted that the law was nutty. A draft of a revision was made public last week. Representative Henry Waxman of California (D), who is the chairman of the House Energy & Commerce committee is the person overseeing the drafting of this revision. In short, this revision is a complete waste of time and tax dollars. I don’t know how much time was spent on this draft, or how much time will be spent in hearings (if we are so honored to have any), discussion or any other part of the legislative process, but it’s a waste based on the draft proposal. The bill neither provides relief to manufacturer’s nor decision-making authority to the CPSC, who certainly have the expertise to make decisions concerning consumer product safety. The proposal doesn’t change anything and for the past 18 months, all that we as an industry have argued, rallied for, campaigned against has been ignored. It speaks volumes when even the commissioners of the CPSC disagree with the proposal.

CPSIA defined products, that throughout the history of man were considered safe, an over night hazard with the enactment of CPSIA. Companies were left holding inventory in the millions of dollars which were illegal to sell on Tuesday, when on Monday they could have sold as many as they wanted. For example, the phthalates limitations were retroactive, which meant that you could no longer sell product that had already been produced and stored in your warehouse, if they exceeded the new limit on the day of enactment. Let me stress this; It was perfectly safe for sale on Monday, but running in the streets screaming crazy, wear protective gear, the Martians are coming unsafe on Tuesday. If an item were that hazardous, why weren’t there any recalls post CPSIA enactment? The answer; the committee nor the house or senate really knew the true details of the bill; they didn’t know if it should or already did apply to products already in the market. I don’t know whether anyone in Congress read the bill or even if they did, would they have the knowledge to determine if it was really good or bad? Isn’t selling legislation to your constituents much like a car salesman selling a lemon? who really asks for the carfax report anyhow? There was never, never, never any documented proof that phthalates were hazardous. There were independent studies claiming phthalates were unsafe, those that determined they were safe and those that said there were no conclusive results either way.

Consumers still have products with phthalates in their homes, in their children’s bedrooms, play rooms and cribs. Up until a couple of years ago, any soft, flexible plastic had a relatively high chance of containing one of the banned phthalates defined in CPSIA. The committee doesn’t expect you to throw those toys away, because of a threat to your child’s safety…but why not? They are unsafe right?! Why not remove all toys from the homes of consumers because they contain phthalates? They only considered the date of sale and this retroactive application of the law, rather than a process of stepping down the limits, so that toy makers could be relieved of inventory and provide us time to find alternatives to phthalates. No one KNOWS if phthalates are unsafe; that’s why there has never been an urgency to rid them from your homes. If chemicals are so hazardous that you pass this ridiculous law, then why aren’t you recalling all of the products that employed these chemicals before the effective date?! Because they aren’t as hazardous as everyone claims. If there is beef on the market contaminated with Salmonella, the agencies will go to great lengths to recall and quarantine that beef…it is hazardous…it can kill you. Why not phthalate laden toys?! Get my point?

I might add that after the bill was signed, CPSC counsel decided that the language in the legislation meant the limits didn’t apply retroactively, although when most read the bill, they clearly saw that the limits proposed applied to all goods, even to merchandise in inventory. Although we saw it coming, and even though the CPSC has been granted the authority to make decisions of enforcement, their opinion was overturned by a US District Court Judge in NY, just a few days before the effective date. Why? Because a consumer group petitioned the court to review the ruling against the language in the law; the judge was right…his ruling was right. But, what I never got, was why this consumer group felt that it was such a monumental victory that the CPSC opinion was overturned? We know that the law is intended to protect children from unnecessary harm, but couldn’t a phase in period have been compromised? Weren’t there at the time about a zillion toys with phthalates that kids were in the process of chewing on the day of enactment? Are there awards to consumer groups who can cause the most stir in our industry? I imagine those awards are something like the Emmy’s, except in a room at the Residence Inn, with drop ceilings, folding chairs and a lady named Nancy who hands you your paper name tag when you sign in at the door. It doesn’t seem so monumental to me and I don’t know that I would even book a flight to such an event.

I am not against limitations….if there is proof that excessive amounts are not safe for kids, because I certainly don’t want my daughter exposed to something proven to be unsafe. I am however not in favor of a law that was enacted more for purposes of campaign propoganda than the true protection of our children. The law didn’t directly improve the safety of our children, with exception to perhaps the lead in substrate provisions, which itself was shoddy and not well thought out. Also, why reduce the lead limits in paints, when for 30+ years the limits were considered sufficient in the protection of children? Because of the Mattel recalls? The recalls were the result of failure to meet the then current limits, not a failure of those limits in protecting children from being poisoned by lead. What prompted the change in the lead in paint limits? Should I only be allowed to drive a 4 cylinder car because some other guy is an habitual speeder? Is it to say that 3 years ago, your kids were exposed to toys that although met the limits defined in the law, were unsafe? If so, why aren’t those toys being recalled now? Because they aren’t unsafe. The new limits are simply the result of overzealous legislation and they figured why the hell not? Lets just sprinkle this in while we’re at it.

In closing, the law in general was unreasonable, partially unsubstantiated, not supported at all by scientific data and admittedly improper in its scope of application by the committee; nevermind effective dates. They have now drafted a revision, which doesn’t appear to be supported outside of the walls of their committee chamber. It isn’t the answer we have been asking for…it isn’t the solution to the compounding problems created by CPSIA. The initial concept of the law was clearly a good one, but not well thought out and certainly not completely supported by facts. It is disappointing to see that those we elect to office don’t always represent and stand behind us or at even consider listening (not hearing, but listening) to us on topics as serious as this. I don’t have a lot of faith in the legislative process after witnessing the creation and enactment of this bill and I don’t know if the process will ever change; unless of course that change is the elected officials themselves.