UPDATE: the latest dramatic performance in this soap opera comes from Commissioner Moore, with his own response to Representative Dingell about the CPSIA implementation. You don’t want to miss this one.

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.

There was a promising development today when the CPSC announced a one-year stay of enforcement of CPSIA’s testing and certification requirements. Note, however, that products must still meet the new standards as of 2/10/09, only the testing and certification requirements have been delayed. AND there is still concern that State Attorneys General may choose to enforce testing standards anyway, AND that the CPSC’s stay could face legal challenge from the CPSIA’s backers. Walter Olson’s post today on Overlawyered explains.

It still comes down to the fact that the CPSC’s authority is limited, and the law is the law. Keep up the pressure on Congress to change the law so that the CPSC and small businesses trying to comply aren’t put in the position of finding ways around it. The best news today is that Senator Jim DeMint from South Carolina announced his intention to do just that. Email Senator DeMint and your own reps in the House and Senate again today to make sure they don’t back down in the face of pressure from powerful CPSIA backers with their armies of lawyers and lobbyists.

Rep. Jim DeMint announces intent to reform CPSIA
CPSC’s Press Release
Associated Press Coverage
Fashion-Incubator on the Stay