March 21, 2009

The Honorable John D. Dingell, Chairman Emeritus
2328 Rayburn House Office Building
House Committee on Energy and Commerce
Washington, DC 20515

Dear Chairman Dingell:

I was heartened to read the CPSC and Acting Chairman Nord’s 3/20/09 response to your inquiry of 3/05/09, as their recommendations would at least begin some relief for businesses crushed by the CPSIA, and allow for common sense application.

However, after reading Commissioner Moore’s response to your letter, I am further outraged by the dysfunction and apparent political games and finger pointing that continue to stymie progress toward a reasonable solution to the serious problems this bill has spawned. I take personal offense to his characterization of the business community, as I believe we have shown great cooperation in supporting safety standards, and have made every attempt to comply with this law even when it is nearly impossible. Because my home-based crafting business simply could not comply with expensive testing requirements, I have closed. If that’s not acting in good faith, I don’t know what is. We’re moms and dads, not some evil empire of business tycoons, and we should not be used as pawns in this charade.

While it may be in the best interest of one political party or another to wait for new appointees who may be more agreeable to their point of view, or for Congress to wait for the CPSC to act, or for the CPSC to wait for Congress to act, waiting certainly is NOT in the best interest of taxpayers, citizens, children or small business people living under the oppression of this law today. Every day this drags on, businesses in limbo are pushed to the brink of collapse due to lost profits, impaired productivity, obsolete merchandise, and the cost of compliance.

The time to slow down was during the drafting and implementation of this bill. Now that this law is wreaking havoc on our precarious economy, immediate action is required. I am asking you to be the voice of reason and force an end to the political posturing by urgently pushing through sensible reform legislation.

Sincerely,

Jen DeGrace
Jen Lynn Designs

I must admit I appropriated the use of underlining from Chairman Nord’s staff response. Pur-IT-tee effective, heh? It occurs to me that I never posted my official response to Rep. Dingell’s request for CPSIA information, which was delivered along with the others collected by Rick Woldenberg. For good measure, I’ll post that response here as well:

March 11, 2009

The Honorable John D. Dingell
2328 Rayburn House Office Building
United States House of Representatives
Washington, DC 20515

Dear Representative Dingell:

I have lamented, to the President and publicly, my Democratic party’s lack of leadership to reform the CPSIA, so I’m wholeheartedly grateful to you for taking this on and hope other Democrats will follow your lead. While your letter of March 5, 2009 requests feedback from the CPSC regarding the problems with the CPSIA, I would humbly like to take this opportunity to respond to some of the questions you raised from my perspective, as both a mother and small home-based business owner.

I wish I had quantitative data regarding the negative impact on small manufacturers, as I believe it is staggering, and only beginning to come to light. What I do have is anecdotal. I have closed my online hair accessory boutique, Jen Lynn Designs. While I have every reason to believe my products are compliant, I can’t afford the required testing to prove it. Because the CPSIA specifically expands enforcement to State Attorneys General, apparently not bound by the CPSC’s enforcement stay, I chose not to expose my family to potential liability, and therefore closed. Along with my business, I have lost my disposable income, and ability to stimulate my local economy by spending it. My local consignment shop, Second Time Around, has stopped accepting and selling ALL children’s products, formerly the largest portion of their 26-yr old family business.

Please consider the following reforms:

• Allow component testing, which would enable me to purchase compliant ribbon, compliant hair clips, compliant glue and compliant wire and assemble them into an obviously compliant hair bow, in order to sell them lawfully.
• Repeal retroactivity. Implementing new regulations and imposing them retroactively not only has closed down thousands of thrift, consignment and resale shops, cost businesses untold billions in non-salable inventory, and stopped me from selling my own kids’ outgrown clothing (which typically funds the purchase of their next year’s wardrobe) it will be the sole reason for tons and tons of perfectly viable goods overloading our landfills. In my view, that alone is nothing short of immoral.
• Consider the actual science-based and real-world threat posed by products (i.e. infuse some common sense into this law). My children (ages 5 and 7) are encouraged to read books, no matter when they were printed, and they have not licked a page since they were babies. (I can’t even believe this has to be said.) Books, other than those specifically designed for toddlers, should be exempt. Lead in forms that do not leach into the body or pose a proven threat should be exempt. How is it that I can drink out of a crystal glass, but a crystal embellishment on a T-shirt is harmful? And if furniture and wall art in kids’ bedrooms pose a threat to their health, how is it that the same items in the rest of their home are not subject to regulation? My kids spend many more waking hours in our family room – presumably touching things – than they do in their bedrooms.
• Allow manageable labeling for micro-businesses. Labeling has not been widely discussed, as that portion of the law doesn’t take affect until August of this year, but it has the potential to cripple micro-businesses like mine every bit as much as testing requirements do. Requiring detailed (batch, run and lot) information on permanent product labels isn’t practicable for businesses like mine where a batch often consists of one or two products. Some hair accessories are simply too small to host a label with such information, and purchasing and applying the labels is potentially more expensive than the product’s revenue can support.
• Implement appropriate regulations for appropriate age ranges. Special attention should certainly be paid to the contents of products teething babies and toddlers are given. However, beyond toddlerhood, children are generally not putting everything they touch into their mouth. Moreover, older children have access to nearly the entire contents of their homes, scho
  ols and yards. To presume a child aged 4-12 is more endangered by products that are marketed to them than those intended for their parents is to completely disregard the facts surrounding the only recent lead-related child death I have heard cited, as well as common sense. For example, banning pens “intended for children” simply means kids will use their parents’ pens.

I appreciate and share your concern for public safety, and as a parent, I want access to safe products and playthings for my kids. I also welcome improved efforts to make sure homes are free of lead in water and paint – the most common source of dangerous lead exposure. I would love greater access to sleepwear for kids that are not treated with toxic fire retardant chemicals (snug -fitting PJs are often just plain tight and uncomfortable). And I support educational outreach for parents regarding the environmental, choking and poisoning hazards that their kids will inevitably come into contact with, regardless of regulation, as this is after all, part of living in an unpredictable world.

Thank you for your help in establishing safety improvements that positively impact public health, rather than those provisions within the CPSIA which negatively impact the economy (and the kids whose parents have lost their livelihoods) while doing nothing to improve public safety.

Sincerely,

Jen DeGrace
www.JenLynnDesigns.com

Nancy Nord and the CPSC responded to Rep. Dingell’s questions about the CPSIA today. You should take a look, they had a lot to say. There were so many recommendations made all the way through the letter that would provide badly needed relief, that I have to admit I was disappointed that it ended with just three bullet points promoted:

“We conclude that the following three changes would resolve many of the major difficulties identified above:

• Limit the applicability of new requirements to products manufactured after the effective date, except in circumstances where the Commission decides that exposure to a product presents a health and safety risk to children.
• Lower the age limit used in the definition of children’s products to better reflect exposure and give the CPSC discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.
• Allow the CPSC to address certification, tracking labels and other issues on a product class or other logical basis, using risk-assessment methodologies to establish need, priorities and a phase-in schedule.”

The 21-page response did also note (my interpretation):

• They have been underfunded and understaffed, crippling implementation and other duties
• The spectrum of industries affected is enormously broad
• Risk assessment should be used to establish priorities
• Implementation deadlines should be extended
• The cost to businesses, especially small and micro-businesses is significant
• Toxic substance limits should be based on “the possibility of exposure in relation to age” rather than total content
• The law should not be retroactive
• Age limits should be lowered and established by product class
• The CPSC should have more discretion in implementation, to grant exclusions and set age limits

They discussed books at length, including my favorite passage:

“At this time the Commission staff has not had the time or resources to prove that books made more than twenty years ago do not exceed the lead limits as staff has needed to focus its resources on its investigations of deaths and injuries to children and other emerging risks and health hazards.” Since those deaths and injuries are not occurring in libraries filled with old books, this is obviously a huge waste of time. OK, I added that last part, but seriously.

I also enjoyed the full page of legal citations refuting the claims of “Those who argue that common sense exclusions are permitted by the CPSIA”.

This is generally good, but I guess I’m left unsatisfied because while the challenges for small and micro-businesses (crafters are mentioned specifically on memo page 9) are recognized and articulated, the proposed solutions for us are sketchy at best:

“Recognizing that the Commission always has the ability to take action to address unsafe products in the marketplace, Congress could take many different approaches to mitigate the effects on small businesses. Congress could apply the new lead and phthalates limits prospectively to mitigate the impact on inventory existing prior to enactment. It could allow for a more flexible exception process based on balancing of risks against the burdens of the costs of testing and certification but that could overburden staff. Another option would be to allow the Commission the flexibility to decide what children’s products require testing and certification.”

Which basically sounds like the viability of our businesses is tied up in the third bullet of their conclusion, and may ultimately be left up to the discretion of the overburdened, understaffed CPSC, should Congress grant them that discretion. Not exactly a silver bullet.

Note: on page 9 of the memo, I’m thinking that’s supposed to be 763, not 963.

Citizens: contact your representatives and let them know that their mistakes are only dishonorable if they won’t admit them, and the law is only flawed if it they don’t fix it. The buck stops at Chairman Waxman’s desk, as he chairs the Energy and Commerce Committee. Be sure to include him in your correspondence to your representatives, as well as the bill’s sponsor and Subcommittee Chair, Bobby Rush and Energy and Commerce Committee Ranking Member Joe Barton (see his 1/21/09 letter to Chairman Waxman which notes constituents’ concerns.)

For those just catching up with CPSIA legislation and wondering what all the fuss is about, here is a brief introduction:

HR4040, The Consumer Product Safety Improvement Act of 2008 (CPSIA).
There has been a lot of misinformation about this law due to its great scope and complexity, but it does mandate changes that may well affect most of us.

The law is a response to the recalls of toys made in China with lead-tainted paint. It was widely appreciated and easily passed, as we are all eager to protect our kids. However, lawmakers are now becoming aware of some unintended consequences of the 63-page law. Though it was written to address the above problem, it applies so broadly, that several issues have come to light. Just two of these issues include: