Another week goes by with no action from Congress to fix the CPSIA. BUT, we did see yet another fiery, indignant letter from Congressional Democrats blaming the CPSC and, specifically, (Republican) Acting Chairwoman Nancy Nord for poor implementation and her “recent comments, which grossly mischaracterize the law”. I swear that woman must have a target tattooed on her forehead. Interestingly, in his 3/27 letter, Senator Durbin blasts Nord for her characterization of the problems with the CPSIA, while praising the work of the Commission career staff, apparently he failed to notice that the letter was actually written by the career staff – a wise move on the part of Nord, obviously aware that her own opinion would be politicized.

I’m not interested in making this a partisan issue (full disclosure: I’m a registered Democrat, though I consider myself Independent) but it has become clear to me that Congress’s inaction is all about politics. It’s not that I’m clairvoyant, or even particularly insightful: they have made it painfully clear, in their own words, that all they are interested in is the removal of Nancy Nord from the CPSC, and replacing her with a Democrat appointee.

So I must ask – if Congress (backed up by lobbyists responsible for this law) really believes the CPSC/Nord is the problem, why not take the reins and hand them an amendment as specific as the law itself? How about turning some of that righteous indignation into action? Stick it to ‘em! I think we’ve seen what the CPSC has to offer in the way of solution (next to nothing), but Congress has failed to offer even that much. In fact, Democrats (with few but notable exceptions listed below*) appear incapable of any action beyond angry letters that deflect responsibility.

Take heart, and take action. The “Amend the CPSIA” rally is this Wednesday, 4/1 in DC. If you can’t be there in person, check out the website now and send in your story, find out how to get involved, and don’t miss the LIVE web cast of the public hearing, which starts at 10:00am EST on Wednesday.

*Worth noting: Democrats who have taken action to fix the CPSIA are few but deserve praise for bucking party pressure:

• Senator Jon Tester sponsored S. 608
• Rep. Jim Cooper cosponsored H.R. 968
• Rep. Bobby Bright cosponsored H.R. 1027
• Rep. Brad Ellsworth sponsored H.R. 1465
• Rep. Earl Pomeroy cosponsored H.R. 1587
• Rep. Dingell made inquiry to CPSC

Perhaps they didn’t get the memo?

Commissioner Moore’s pathetic response yesterday to Rep. Dingell’s request for CPSIA information so infuriated me that I just had to… write a letter. Dammit. This was mailed today:

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

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.

I’m shamefully late getting this posted, as time is now short, but here’s hoping late is better than not at all:

If you haven’t read Congressman Dingell’s letter to the CPSC, you must. This is sharply different from anything else I’ve heard out of Democrats in Congress, in that he admits that there are problems with the CPSIA that merit immediate attention, and is apparently open to resolving them legislatively. His letter poses several intelligent questions to the CPSC about the problems and possible solutions, and requests an urgent response by this Friday, 3/13.

Get busy: If you are negatively impacted by the CPSIA, respond to his questions directly so he will know first-hand how the CPSIA is working in the real world.

Rick Woldenberg posted an email address on his excellent blog, CPSIA – Comments & Observations where you can send your response to Rep. Dingell’s letter and it will be delivered to both the CPSC and Rep. Dingell’s office along with all the other responses sent in. This is a great way to make sure your letter is noticed and has impact. Start writing!

When you are done with that, you might stop by Reform CPSIA, where they are collecting the stories of those impacted by the CPSIA in order to showcase the literal impact this law is having. I think it’s a great step toward making our plight more tangible.

I know it’s a lot of work, but if you only do one thing, at least write to Rep. Dingell and let him know how critically his support for amending this legislation is needed. He’s the first to open the door, let’s be sure to get our foot in.

One step forward, two steps back. It’s downright disheartening, and you can bet that’s the objective. I’m thoroughly disgusted with Congress’s lack of responsibility and common sense. Not to mention common courtesy: for the dozens of emails, letters and phone calls I have made, I’ve yet to receive one single response. Today, I’m writing again to President Obama:

Dear Mr. President:

Like so many others, I worked hard to get you elected, and I’m thrilled that our collective efforts were fruitful. Solutions to real problems require a measured, thoughtful and reasoned assessment of myriad issues too often top-lined for the sake of media sound bites or political sparring. Your ability to both weigh and articulate complexities is one of the reasons I voted for you.

So I am asking you now to apply that skill to the very real problems with the CPSIA. This is not a business vs. children issue, as it has been portrayed. As a mother, a liberal, an environmentalist and small business owner, I welcome the new limits on harmful materials in children’s products, just as ardently as I oppose the irresponsible and destructive aspects of this law, which do not improve safety. These include:

RETROACTIVE APPLICATION OF NEW STANDARDS has created immoral and unnecessary waste, not to mention lost profits and productivity, confusion and closed businesses. Wasted unsalable new inventory and used goods. Businesses, non-profits and individuals scramble to follow the law and the CPSC’s specific directions to sequester books published before 1985, and dispose of, rather than donate or sell used clothing bearing buttons, snaps or zippers, as well as untested toys and other products. This is particularly unconscionable considering that there are no reported injuries attributed to these products. Products found to cause injury have already been recalled, and are therefore already unlawful to sell, making this completely unnecessary and shamefully wasteful.

END PRODUCT TESTING has forced small producers out of the market, ironically leaving the spoils to the same large companies – manufacturing overseas – who are guilty of the very offenses that spurred Congress to create the CPSIA in the first place. While it may seem reasonable to test each component of a completed made-in-China “Dora” doll before selling millions of them, that logic does not hold up when applied to testing each component of a completed domestic handmade dress before selling three of them. Expensive third-party testing is simply not practicable for small producers, and as their products have not been shown to be the offenders, imposing regulations that force them out of the market is unfair, un-American and considering the current economy, unwise. What does make sense, affords greater safety and efficiency, is requiring manufacturers to use CPSIA compliant materials and manufacturing processes.

I have had to close my hair accessory business because testing is simply not an attainable option for a small producer of custom products. Congress has made it painfully clear how expendable and insignificant they consider my plight through their profound lack of response to my repeated requests for CPSIA reform. But I believe my situation is representative of thousands, and worth a closer look.

If family integrity is revered at all, the entrepreneurial efforts of mothers providing their families with needed income while home caring for their children should be valued and encouraged, not ignored, disparaged, or regulated out of existence. And it goes well beyond moms like me, working from home. My local consignment shop, a 26 year old family business, has stopped selling children’s items – previously the largest portion of their sales. I’m afraid to sell my own kids’ outgrown clothing, which typically funds their next year’s wardrobe. Our school district and local library are biting their nails, waiting, hoping for reasonable reform before the stay of enforcement expires. Even many domestic manufacturers far larger than myself can’t afford to comply with testing requirements and are on the brink of collapse. Personally, I have lost my disposable income, and with it, my ability to stimulate the local economy. Multiply these experiences by tens of thousands across the country.

And while businesses hobble along, crippled by the CPSIA, close up completely, or operate unknowingly in violation (risking significant liability) Congress deflects responsibility and plays politics with the CPSC. The complete unwillingness of Democratic lawmakers to even concede there is more to the story than big business vs. children’s safety is excruciatingly disheartening to me as a liberal, forsaken by my own party.

I beg you to intervene. Please make CPSIA reform an urgent priority, for the sake of small business, consumer safety, and our children. Far more of them will be compromised by their parents’ loss of income than could ever be compromised by reading old books or wearing jeans with zippers.

Sincerely,

Jen DeGrace
Jen Lynn Designs

Please continue to make your voice heard. Only sustained and growing public outcry can possibly affect change.

I just didn’t have it in me to post yesterday. Thanks so much to all of you who have expressed your support. It’s not too late to contact all your Congressional reps and ask them to support CPSIA reform. If the law is sufficiently amended, I’ll be back in business. More importantly, we can save tons of perfectly safe and viable (and valuable) items like older books and current clothing from heading straight to the landfill.

I visited my local consignment shop today, Second Time Around, and was sad to hear that not only are they no longer accepting or selling children’s items (the store was completely cleared of them!) but that the change may mean the end of their 26 yr old family business. She told me she’s had clients in her store literally cry upon hearing the news, not knowing how they are going to clothe their kids. I guess they’ll go to Walmart or Target? Hmmm… is it just me, or is it starting to seem like the big box stores have more to gain from this legislation than consumers?

I’m not giving up. Even if it is too late for me, it’s not too late for sanity. I’ll be sending out a new round of letters today and tomorrow to make sure my pen-pals know they’re responsible for shutting down my business. This batch includes:

Hey, FYI, I called Senator DeMint’s office today for an update on his CPSIA reform bill (S374). I was told it is “in committee”. It has to be passed there to be brought to the floor, I guess. So the committee it’s “in” is Commerce, Science and Transportation. Contact them! The Chair is Rockefeller (already on my pen-pal list) and the ranking member is Kay Bailey Hutchinson. So I added her to my list.

Oh yeah, I also emailed our school district superintendent to ask how CPSIA is affecting the schools. Just curious.

I’d love to hear from others, either publicly by adding your comment here, or you can email me and let me know what you are doing, and how this is affecting you either as a business or as a consumer. Anyone you’d like me to add to my letter & email writing campaign? I think I’ve still got a few envelopes left.

I promise to post something fun and crafty tomorrow.

Act fast, as this will be voted on soon!

Also, why are the media giants sitting on their hands? The New York Times, CNN and NPR have only covered CPSIA in passing, if that. Where is the in-depth coverage this issue deserves?

Post a reply to my topic: Economy in Peril: Why is the national media ignoring the CPSIA fallout? and ask CNN to cover the story in depth.

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

Congress: stand up and take ownership. Stop passing the “CPSIA buck” back and forth with the CPSC, and deal with it head-on.

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: