Thursday, August 20, 2009

Sending A Message

What CPSC writes in its documents is important, because once it's published in the Federal Register it becomes official policy, which is a step down from law but is still very law-like. But equally important is reading what CPSC doesn't write, because from that we can get clues as to what the future regulatory landscape may look like.

The trend in lawmaking is to write laws that are at once full of broad sweeping generalizations and specific nitpicky points, and then authorizing some regulatory agency to work out all the details. CPSIA is no exception. I still think it's important that we take issue with the points of the law and continue to press Congress to fix their mess. But until they do, we're stuck living with the mess they made, and we have to figure out how our businesses can survive long enough to celebrate victory. So Rick, I love ya man, you're a total CPSIA rock star and you can rant with the best of 'em, but in this regard you're not helping. At this point they're not gonna give us the guidance we seek-- at least not in so many words. Our continued existence with no lead-poisoning casualties is the single best argument against CPSIA.

I watched the hours of webcasted hearings CPSC held, and I do think it is important for any serious CPSIA-watcher to actually put eyeballs to them. Watch the CPSC representatives and their body language, and listen to their inflections. More importantly, watch how they change from November on. In November, their attitude towards CPSIA is "Well, we didn't ask for this, but we've got it now, so let's try to do our best!" Later hearings progress toward an attitude of "How can we find a way to meet the letter of this stupid law without being ridiculous?" They're not going to call it a stupid law, at least not where anyone in Congress can hear them. But you can tell that's how they feel about the law, based on how they talk about it. (Yeah, I've been there. They asked me once to teach a math class in two days a month. 5 straight hours of instruction on two back-to-back days, once a month. At first I told the director, "This is going to be a real challenge, but I think we can do it!" By the end, when the class got cancelled for under-enrollment, my attitude was closer to "Who the heck thought this was a good idea? There's no way it could ever work.")

So, you might wonder, what is the message CPSC is sending out now, in between the lines? It's pretty close to "La la la la la, we're not listening!"-- only it's not addressed at small business, it's addressed at the law.

CPSC had a choice of interpretations of the law when it came to exempting things like textiles and wood. They could have taken a strict view of the law. This view is represented by the positions of Commissioner Nancy Nord (although I know she takes these positions reluctantly, knowing and caring how much it hurts businesses, in hopes that Congress will see how ridiculous their law is and change its mind). You see, there have been cases where textiles have been shown to have violative amounts of lead, so CPSC could have easily adhered to the letter of the law and not exempted textiles from third party lead testing. Instead, they went with "All textiles/wood/rocks/etc. are lead-free! ...except when they're not." This, I think, reflects the new leadership of Chairman Inez Tenenbaum. And while that's a confusing and maddeningly tautological statement, the selection of it as the official position speaks volumes.

Here's what it says: First, that CPSC does not intend to hew to a strict interpretation of the law. Yes, I know that doesn't bind the state AGs from doing so. However, when CPSC makes a determination like the one about textiles and backs it up with pages of addenda full of scientific data, any AG that decides to go against that and sue knows he's going to have to justify why he's decided to fly in the face of the CPSC's decision, now with extra Science!* And Science! is accorded sufficient reverence in our society that I really think flying in the face of it is not something an AG wants to do... at least not publicly. (Maybe in the privacy of his own bedroom; people do all kinds of things in there that they'd never do in public.)

Second, the CPSC's statement tells us that there are places they're absolutely determined not to go. By issuing this statement, they have basically given notice that they're closing the books on pursuing the testing of a whole laundry list of materials, as well as signaled that they're going to take a component-testing approach (something that is allowed under the letter of the law). The formulation "It's lead-free, except when it's not" may be tautological, but given the sheer number of tautologies available to them, the choice of this one is telling. Legally, they can't close the book on testing these materials. But they can insert a small object between the pages so it doesn't close all the way, and place the book on the back of a shelf inside a locked, disused janitorial closet in the basement of an abandoned building. Technically, then, it's not closed; but in reality, nobody will be able to tell the difference. This formulation, then, is pure genius; it lets the CPSC get away with completely ignoring everything made of textiles, wood, leather, and other materials, while at the same time not ruling out that if they happened to encounter some of that orange felt with the 26,000 ppm of lead, they could still enforce the law as written.

Third, the CPSC's approach isn't so much an exemption as a delegation of responsibility to the manufacturers. It signals trust, at least where it comes to the materials for which they could find enough Science! to justify this delegation. It says to the manufacturers "You're gonna make sure these aren't lead-free, right?" More than that, though, it is a loophole through which they are pushing XRF testing. In order for CPSC to officially sanction XRF as a testing or screening method for these materials, they have to do a heck of a lot of lab- and paper-work. But doing it this way, they are tacitly allowing XRF to be used as a screening tool, at least for the materials that have Science! on their side (and aren't specifically mentioned in the law, like paint is). Yes, this leaves business legally unprotected. But of the alternatives available to us without Congress changing the law, this is the best protection we can get.

Finally, CPSC is signaling that they welcome producers of other materials (e.g. composite wood products) to take this approach. If they can find enough Science! to wave around, they can add even more materials and products to expand this loophole even further.

In issuing the very formulations that madden us, CPSC is actually doing us a favor. That it's not the favor we really want, and isn't big enough to make a large amount of difference, doesn't change the fact that CPSC just did us businesses the biggest favor they possibly could. I think we should show some appreciation for it.

* There's science and there's Science! Science! is very official sounding (think Thomas Dolby's song "She Blinded Me With Science") and is usually science-based, where science deals more with facts and is open to different hypotheses. Using a pure science approach to CPSIA results in the inability to make categorical statements like "all fabrics are lead-free," while Science! makes this possible.