Monday, March 30, 2009

Today's Daily Fax

Here's why CPSC Acting Chair Nancy Nord is NOT the problem with CPSIA.

Heathrow Scientific LLC is a company that makes laboratory equipment, which is primarily used by adults. But a few of their items end up in junior high schools, where children under the age of 13 are exposed to them. Their junior high school customers have begun asking to see the certifications required by CPSIA.

You may think these customers of theirs are misinformed. Since it's possible, let's think about who may be informing them. Schools that buy lab equipment usually do so through some sort of administration, usually a public school district. Public school districts generally do not turn to CPSC to advise them on these matters, because they have their own lawyers. Therefore it is extremely likely that these "misinformed" customers are getting their advice from their own lawyers.

Now, perhaps this particular district just has a crazy lawyer who interprets things funny. But it's not just this one company's one customer. Attorney Gary Wolensky of the firm Snell and Wilmer, which specializes in product liability law, has been on the Hugh Hewitt show repeatedly endorsing the position that CPSIA applies strictly to all children's goods including books and thrift stores and dirt bikes and apparel and all the other unreasonable things that have been rumored to be swept up in CPSIA's broad net. Is a product liability law firm more likely to be getting its information from the CPSC, or from actually reading the law? Jennifer Taggart is an environmental engineer and lawyer who runs a lead testing service. She concurs with Wolensky on the requirements of the law and the strictures it places on CPSC's ability to interpret them. Do you think she got her information from "mommy bloggers", or from reading the law?

The CPSC is cut completely out of this loop! How then can anyone reasonably blame them for a misinterpretation of the law?

Senator Dick Durbin has decided that it is definitely CPSC's fault and specifically lays the blame at the feet of Acting Chair Nancy Nord. He accuses her of not being "constructive or accurate" and says: "You accused a law that significantly strengthens the Commission’s hand as having 'taken away our responsibility to look at the risks and make judgments about what is or isn’t safe for American consumers.'" Is this accusation of Durbin's true? No, it is not, because when Nord made just such a judgment-- that items made with phthalates that were manufactured before Feb. 10, 2009 did not pose a sufficient hazard to require their retroactive removal from store shelves-- a COURT struck her down less than one week before the deadline. Surely the court did not get their "misinformation" about the breadth of CPSC's interpretive freedom from CPSC, as CPSC was the party they ruled against! Every time CPSC has tried to interpret the law in a less strict manner, some foot-chomper in Congress has sent Nord a nastygram spanking her for it. But now Senator Durbin complains that Nord is NOT interpreting CPSIA broadly enough? You can't have your cake and eat it too. CPSIA, on even a most basic reading, does not allow exemptions or changes to be made on the basis of Congressional opinions.

There are millions of people out there with one opinion of CPSIA, and then there is a handful of Congressmen and Congresswomen with a different opinion. While it's true that many of the millions did consult with CPSC to see how they were interpreting it, Senator Durbin and friends insult the intelligence of thousands of attorneys advising tens of thousands of clients who sell to millions of children and their parents. If I had to place a bet on whether it was Congress or the American people who were most likely to be the source of legal idiocy, my bet would be on Congress. Crafting moms making baby blankets from yarn they bought at Wal-Mart do not have the same incentive to publicly posture that Senators and Representatives do.

The problem is not CPSC. The problem was never CPSC. The problem is in CPSIA, and in those who carefully crafted it for their own purposes and not for the protection of the public. I urge you, as a member of Congress, to amend this law quickly, before the American public realizes the full extent of the idiocy of this law for which your colleagues have voted.

Please attend the Amend The CPSIA rally at the Capitol Building on Wednesday at 10 a.m. If you cannot attend in person, at least have a staffer attend, or have a staffer attend online. The rally will be the first of its kind, interactive and streaming live online at

Wacky Hermit