Given that we've already heard from US PIRG and Public Citizen, it should not be surprising that another Nader organization has decided to weigh in on the CPSIA debate. This time, it's a front organization for Big Law, the Trial Lawyers, called the Center for Justice and Democracy, and their pet blog, the
Pop Tort.[1] They are dredging up the same arguments that David Arkush and Rachel Weintraub have already trotted out to the applause of The True Believers:
There is no problem with CPSIA, the CPSC has all the power it needs to make broad exemptions for small businesses, etc. The real problem is Nord, she needs to go. [paraphrasing]
I think we've already exploded that several times over. It flies directly in the face of
Rachel Weintraub's statements before the committee during the hearings for the CPSIA (pdf) (HR 4040):
Unfortunately, the CPSC's ability to be proactive has been thwarted by a shrinking budget, a lack of aggressive leadership within the agency, and statutory provisions that create obstacles to the effective prevention of product risks.
...
Before proceeding to a detailed explanation of our recommendations, we wish to emphasize the importance we place on four particular issues -- Section 6(b), independent third-party testing of children's toys and products, the need to include whistleblower protections, and language clarifying the reach of CPSC's authority regarding the preemption of common law claims in any CPSC reform package.
Her recommendations then begin with an entire section -- headlined in boldface, "
1. Strengthen CPSC A. Increase Budget" -- which has since been dropped by all of the pro-CPSIA crowd as an issue. CPSIA increased the budget authority, but Congress has not allocated the actual resources. Nevermind that the same people who passed the law still control the Congress, or that they have sent hundreds of billions to Wall Street, Detroit, and various other places.
After expressing support for a number of other measures designed to increase the size and scope of the CPSC, Weintraub then began to discuss lead in children's products. The boldfaced headline once again makes it clear that she wasn't talking about reasonable measures that take into account then actual risks: "
Ban Lead from Children's Products". Nevermind whether or not the children can actually access the lead, or whether they are likely to come into contact with it, or whether they can actually absorb it (all of the things you would need to
prove in applying for an exclusion, see below).
But the really interesting bit is this:
Lead has been found in products made by large manufacturers, as well as in those made by smaller companies. We support a ban on lead in all children's products, which currently does not exist.
They don't want a small company exemption. They are telling people that the CPSC can offer such an exemption, but the careful reader may observe that they never support their assertions with citation of the relevant portion of the law. Even their favored Chairman Moore has come out strongly against small companies (as noted below).
They don't want reasonableness. In her testimony, Weintraub said this:
We recommend that the language be preceded by the following statement, which is included in S. 2045:
"the prohibition contained in section 2(A) shall apply without regard to whether the lead contained in such children's product is accessible to children."
What about exemptions for inputs (cloth, dyes, components) or component testing versus final product testing? Again, Weintraub is against
any compromise:
To assure that products are safe when they enter the American and global stream-of-commerce, safety must be infused into the earliest stages of the supply chain. For this reason, independent third-party testing of final products, as well as components, must be required [emphasis added]. Third-party testing entities must be independent from and have no financial relationship with the manufacturer producing the product. Testing must be conducted to identify design flaws as well as violations of existing regulations [emphasis added], such as those governing the use of lead paint. Components and final products must be tested at numerous stages of production and tests must be conducted randomly throughout the manufacturing process [emphasis added]. Products should also be certified that they meet the appropriate standards and should bear a label indicating that they are certified.
Testing for design flaws? Who will judge that, and by what standard? This is a statement that effectively places all decisions on design within the federal government as advised by Ralph Nader and his devoted followers, Rachel Weintraub (Consumer's Union et al), Ed Mierzwinski
(US PIRG), David Arkush (Public Citizen) and
Joanne Doroshow (Center for Justice & Democracy). Dissenters need not apply.
More recently,
Weintraub reacted to reports that CPSIA is seriously flawed with what has become the party line: "Nord has to go. The law has to stay. And don't worry, they will address your concerns." Compare these new sentiments to her older comments quoted above:
"The most important issue right now is to ensure that there is strong, effective leadership at the helm of the Consumer Product Safety Commission," Weintraub said.
She emphasized that new leadership is vital in order to begin implementation and enforcement of the CPSIA -- which, among other things, mandates lead-testing for certain products intended for children--with "a common sense approach consistent with the law."
Weintraub acknowledged industry concerns about the law, particularly those having to do with the costs of testing products for compliance. However, she decried efforts to have the law revised as attempts to have it "opened, gutted and weakened."
The law as written, according to Weintraub, already addresses "almost every common sense concern," including those related to children's clothing and books. "Textiles that are 100% fabric ... and books printed after 1985 do not contain lead," and do not need to be tested.
An exemption for testing of textiles that are 100% fabric essentially means "togas". Except for togas, no final products consist of 100% fabric: diapers, sheets, and other "simple" products also contain thread and various other components such as interfacing and dye. Is she now endorsing component testing and opposing the random testing, in-process testing, and final product testing that she earlier claimed "must be required"? I doubt it. These are appeasements intended to shut down -- or shut
up -- the opposition.
In a particularly nasty posting containing a variety of outright lies, and ironically entitled, "
True Lies: Debunking A Major CPSIA Myth [2]", the also ironically titled CJD asserts that the CPSC already has already asserted its own power to issue the small business exemption. As evidence, they cite the "
Children's Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination or Exclusion". All such rules contain a statement regarding compliance with the Regulatory Flexibility Act (RFA) which requires agencies to consider the compliance cost on small businesses. Their interpretation of that statement in the linked document is:
Here, the agency decided the CPSIA's impact on small businesses wasn't bad at all. Why? Because of its authority to issue exemptions to small businesses from the CPSIA!
The actual statement?
The Commission's Directorate for Economic Analysis prepared a preliminary assessment of the impact of relieving certain materials or products from the testing requirements of section 102 of the CPSIA. The Commission preliminarily found that the proposed rule would not have a significant impact on a substantial number of small entities. The procedures and requirements would allow certain businesses, including small businesses, the ability to seek determinations and exclusions which would allow these entities to continue to manufacture their products without the continuing cost of testing the materials for the presence of lead. Based on the foregoing assessment, the Commission certifies that the rule issued today on procedures and requirements would not have a significant impact on a substantial number of small entities.
Is this a small business exemption? No. It says that small businesses can apply for the "determinations and exclusions" which were the subject of the ruling. In that regard, they are no better off than large manufacturers. It does not grant them a "small business exclusion", it grants them the same right to apply for exclusions as large businesses by the following method:
For products that exceed the lead content limits prescribed in section 101(a) of the CPSIA, any requests seeking an exclusion must submit documentation based on the best-available, objective, peer- reviewed, scientific evidence showing that lead in such product or material will not result in the absorption of any lead into the body, taking into account normal and reasonably foreseeable use and abuse by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, nor have any other adverse impact on health or safety. This is the standard by which the Commission will review such requests for exclusions. A justification submitted by an interested party for an exclusion should provide:
A detailed description of the product or material and how it is used by a child;
Representative data on the lead content of parts of the product or materials used in the production of a product;
All relevant data or information on manufacturing processes through which lead may be introduced into the product or material;
Any other information relevant to the potential for lead content of the product or material to exceed the CPSIA lead limits that is reasonably available to the requestor;
Detailed information on the relied upon test methods for measuring lead content of products or materials including the type of equipment used or any other techniques employed and a statement as to why the data is representative of the lead content of such products or materials generally;
An assessment of the manufacturing processes which strongly supports a conclusion that they would not be a source of lead contamination of the product or material, if relevant;
Best-available, objective, peer-reviewed, scientific evidence to support a request for an exclusion that demonstrates that the normal and reasonably foreseeable use and abuse activity by a child (including swallowing, mouthing, breaking, or other children's activities) and the aging of the material or product for which exclusion is sought, will not result in the absorption of any lead into the body, nor have any other adverse impact on health or safety. This literature should support a request for exclusion that addresses how much lead is present in the product, how much lead comes out of the product, and the conditions under which that may happen and information relating to a child's interaction, if any, with the product; and
Best-available, objective, peer-reviewed, scientific evidence that is unfavorable to the request that is reasonably available to the requestor.
All I can conclude about "Joe Consumer" [henceforth known as Paid Shill for Big Law in accordance with this site's policies regarding symmetric comment policies] at Pop Tort is that if his assertions were due to an honest mistake, he can and should correct that blog posting; otherwise, I can only conclude that if these people at CJD are lawyers, they aren't very good lawyers, or they are very unethical lawyers.
The rest of the Pop Tort "debunking" is about as nutritious and wholesome as its quasi-namesake, consisting of anti-Nord smears and a few other false statements. One of those is that the Commission should have already completed issuing rulings on testing protocols, but still has not done so. Recalling even Rachel Weintraub's statements about the lack of staff and underfunding, it is worth noting that in addition to having to enforce the CPSIA and its aggressive set of required rulings, the CPSC has also been saddled with the
Children's Gasoline Burn Prevention Act of 2008 and the
Virginia Graeme Baker Pool and Spa Safety Act of 2008. These latter two laws are arguably much more important than CPSIA because actual children have actually died from gasonline burns and pool drain issues, while nobody has died from lead poisoning from a garment. Even so, no, the CPSC could not have issued final rulings because of the heavy schedule imposed by the CPSIA and the continuing limitations of staff and budget due to Congress, not Nord (alternatively, we could conclude that Nord, Moore, Weintraub, and others were incorrect or lying about staff and budget back in 2007 and 2008, but I doubt the Naderites would be willing to adopt that argument). Eight (8) CPSC rulings were mandated by law between 8 August 2008 and March 2009 and seven (7) more are required by August 2009, in addition to six (6) sets of Test Procedures and Accreditation requirements, and numerous rulings not specifically required, such as findings on the retroactivity of the lead ban, findings on the retroactivity of the phthalate ban, and defending the latter in court against
special interest groups who advocate a hard-line interpretation of the rulings with exemptions for nobody, regardless of their public statements about the ease with which CPSC can make hardship exemptions. The final rulings on lead testing are not required until August 2009. Incidentally, several of the standards change in August 2009, so all testing done until now will be null & void unless manufacturers -- who still have not been granted any exemptions or stays from the requirements to comply with lead levels -- have been testing at the more stringent level.
To see what the CPSC really thinks of small businesses -- regardless of what the Naderite puppetmasters are saying publicly -- one need only look at
the statements of Thomas Moore, the "good" commissioner, upon the announcement of the stay of enforcement. He said,
Many of the smaller businesses do have legitimate concerns about how they will comply with the new law and the cost of the new testing and certification requirements. However, their fears are being fueled to some extent by others who, through an aggressive misinformation campaign, are trying to create a groundswell of panic that will lead to the repeal of the testing and certification requirement entirely.
The goal of the testing and certification provision is a sound one: to make sure every manufacturer of a children's product, no matter their size [emphasis added], regardless of where they are located, knows the standards that apply to their products and takes the appropriate steps to ensure compliance with those standards before the products are put into the hands of consumers. The closer we get to that goal, the fewer recalls our agency will have to undertake and the fewer injuries we will see to children.
Note first that he is ambiguous on the point of whether their concerns are legitimate or fueled by misinformation. He was parroting the party line of the special interest groups at that time: "there are no problems with the law, there is only a misinformation campaign conducted by some nebulous and nefarious group out there." He is offering to note their concerns and at the same time to dismiss them; the former to make them think that he gets it, the latter to assure his handlers that he isn't swayed.
Note second that it does not offer any exemption related to business size. The rest of Moore's letter emphasizes the ways in which small business might be able to comply, but no size-based exemption is in the offing. The game continues.
This rhetoric is a classic shell game, a bait & switch. The Naderite grifters are running this game brilliantly: here they offer a chance of component testing, there they pull it away; here they offer a small business exemption, there they pull it away. In their official statements before Congress and the courts, it is all hardline, take-no-prisoners, "safety vs. profits", while in their press releases intended to appease the legitimate concerns of small businesses, they talk about exemptions and the possibility of "reasonableness". The legislation was intended to remove the reasonableness and lattitude the CPSC had in enforcing the existing statutes (including the Flammable Fabrics Act), but you wouldn't know that from their non-binding public assertions. It's the iron fist in the velvet glove.
-----------------------------
[1] The title is a reference to the practice of creating organizations which have the appearance of grass-roots organizations, but are not. Many of Nader's organizations are front-groups for the enrichment of Ralph Nader, while others (CJD) are front-groups for Trial Lawyers and other special interest groups. They are actually very small groups of people who work with each other in interlocking groups to give the appearance of being a much larger "movement". See
Walter Olson's earlier work to expose the inappropriately named Center for Justice & Democracy.
[2] Incidentally, you can try to comment on the post at Pop Tort, but they won't publish it unless they can put you in a bad light. I commented, nothing. Kathleen commented, nothing.
Kathleen commented on their asymmetric commenting policy (they commented on all of the CPSIA reform blogs) and that one he published. This is the same policy enforced on the US PIRG blog (which
Rick Woldenberg has noted).
Labels: CPSIA, police-state, politics, regulation, transparency
