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November 8, 2009
Nord and Northup Take CPSIA Concerns to the Public
By Product Safety Letter staff
A CPSC vote November 4 to deny a lead exclusion petition showed the clear division, along party lines, of the commission not only on some CPSIA matters, but also on whether and how to communicate to Congress about the law. More on Commissioners' sometimes-impassioned public debate just prior to the vote is in the November 9 edition of Product Safety Letter. However, the losers in that 2-3 vote -- Republicans Nancy Nord and Anne Northup -- went beyond the normal official statements that often follow commission votes. Nord also expressed her displeasure on her new blog, while Northup issued a press release. Moreover, Northup's official statement itself went beyond the typical with a lengthy discourse (at least by CPSC standards) on the legal ramifications of the vote.
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To read more stories, see the archives. | Below are four items: Nord's official statement, her blog entry, Northup's offical statement, and her press release.
STATEMENT OF COMMISSIONER NANCY NORD ON THE REQUEST FROM LEARNING CURVE BRANDS INC. FOR EXCLUSION FROM SECTION 101(b)(1) OF THE CPSIA
November 4, 2009
The Commission has denied, by a 3 to 2 vote, a petition by Learning Curve Brands for an exclusion from the lead provisions of the Consumer Product Safety Improvements Act ("CPSIA") for brass and other mechanical components of replica and toy die-cast items. The agency also voted down a motion I offered to grant a stay of enforcement so that Congress might reconsider the reach of Section 101, the lead provisions of the CPSIA.
This case presents yet another example of the unintended consequences of the CPSIA. No one believes that this product presents a risk of lead poisoning to children. The result of not granting an exclusion is to remove from consumers' hands products that, in their current state, do not present a real risk. A substitute collar for the axle, for example made of plastic, could prove a greater safety concern if it could more easily break, posing a choking hazard for small children. This result imposes burdens on both consumers and businesses without any net increase in consumer safety, and indeed a potential decrease in consumer safety.
In this case, certain things are clear:
- Our staff report indicates that there is no real risk of harmful lead exposure associated with the brass collar components of die-cast toys.
- If brass is prohibited in children's products under the CPSIA, the impact could be far reaching throughout our economy. The implications of this decision for other children's products, not only those in the home, but also in our schools -- such as desk hinges, locker handles, and coat hooks -- are significant and should be considered by Congress.
- There will be significant economic injury not only to Learning Curve Brands, but also to other companies making children's products with brass in them.
- These losses are exacerbated by the retroactive effect of the law which extends the ban to inventory, including items sold in thrift stores.
Instead of being able to craft something that works for both consumers and product sellers, the Commission's decision does not advance consumer safety and restricts consumer choice. As exclusion requests continue, the ability for the Commission to grant exclusions remains slim, because of the inflexible nature of the law. I urge Congress to give us the clear ability to address these issues based on our scientific expertise.
Getting Down to Brass Tacks (and toys, and hooks, and hinges…)
November 4, 2009 by Nancy Nord
First of all thanks for following my blog, I appreciate your comments. I want this to be a place where you can voice your opinions and share your ideas on activities at the Commisison. Many of you have already participated in this dialogue and I encourage you to continue.
The lack of flexibility in the lead provisions of the CPSIA effectively requires the Agency to force from the market products that no one considers a real safety risk. This does not advance consumer safety, diverts staff resources from real safety issues, and puts an unnecessary burden on manufacturers and sellers of children's products. Today at our Commission public meeting we were presented with a vivid example of this fact. I encourage you to view the webcast. Click on "Commission Public Briefing/Meeting (Wednesday, November 4, 2009, 9:00 a.m. -- 10:00 a.m.)." My colleague Commissioner Anne Northup made especially persuasive arguments that did not, however, carry the day.
By a 3 to 2 vote the Commission denied a petition for an exclusion from the CPSIA lead provisions for a small brass fitting on a toy car. The Commission also voted down a motion I offered to stay enforcement until Congress could address the reach of this provision. See my statement on today's vote.
The implications of this vote are significant for the following reasons, among others:
- First, this is the first opportunity that the newly reconstituted CPSC with three new commissioners, has had to consider the appplication of the lead provisions. The Commission has now very clearly determined that we do not have the flexibility under the law to make common sense decisions with respect to lead.
- Second, the impact of this decision goes well beyond the particular toy subject to the petition. I am especially concerned about what this decision means for our schools, where brass is found on desk hinges, coat hooks, locker pulls and many other items. Are schools now going to be forced to remove all brass and if so, who will bear this financial burden?
- Third, brass is found throughout a home and removing it from toys does little in terms of removing it from a child's environment. If brass were really harmful to children, we would be taking action to remove it from the home but no one is suggesting that there is a safety issue that needs to be addressed in this way.
- Fourth, there will be significant economic injury to not only the company that filed the petition, but also to other companies making children's products with brass in them.
There has been much lip service, both in Congress and at the CPSC, about common sense application of the law. Today's action provides no lip balm.
STATEMENT OF COMMISSIONER ANNE M. NORTHUP ON THE REQUEST FROM LEARNING CURVE BRANDS, INC. FOR EXCLUSION FROM SECTION 101(b)(1) OF THE CPSIA
November 4, 2009
Today I was in the minority when I voted to accept the petition from Learning Curve Brands, Inc. to allow an exclusion for brass collars on toy cars under the Consumer Product Safety Improvement Act (CPSIA), which contain trace amounts of lead. I believe that a reasonable interpretation of the statute allows for a de minimis amount of lead which poses no real harm to children to be excluded from the new lead limits enacted in the CPSIA. This reasonable and common-sense interpretation of the law's exclusions is not only safe for children and legally viable, but is necessary to maintain stability in the marketplace for small businesses and other producers of children's products.
Protecting children from exposure to lead is a serious issue and one that has been addressed by numerous federal agencies such as the CDC, EPA, NIEHS, and NICHD. Lead can be found in the air we breathe, the ground we touch, and the water we drink. It most significantly affects children under the age of five who crawl on their hands and knees and put their hands and other objects in their mouths. Lead in larger concentrations can cause brain damage, behavioral problems, attention span deficit, etc. High levels of lead exposure are most often found in old homes where lead paint is chipping (which often occurs in the most disadvantaged neighborhoods), in soil tainted by leaded gas, or in water from old pipes. According to every agency with responsibility for reducing high lead levels in children, the best ways to reduce lead exposure include cleaning, repairing, washing hands, and testing high-risk children. Not one of these agencies suggests checking current toys (other than chipping paint on older toys) to eliminate de minimis sources of lead. In fact, considering that children touch and use many, many items throughout the house, this would be impossible.
While there is no level of lead that has been declared "safe" by any federal agency, many agencies have recognized that a level of lead in a child that has no measurable impact on the health of the child is acceptable. The Centers for Disease Control recognizes a level of 10 micrograms of lead per deciliter of blood as a level of concern with respect to lead poisoning. Some believe, as I do, that this level may need to be lowered. Additionally, the Food and Drug Administration in 2006 recommended a maximum lead level of 0.1 parts per million (ppm) in candy, since it is nearly impossible to rid the environment of all lead. One Commissioner observed that in all probability, the CPSC staff, who are most knowledgeable about lead risk, would allow their children to play with these cars even if a child was at the "tipping level" for lead poisoning.
Unfortunately, the Commission's vote today to deny Learning Curve's petition to allow brass collars on toys finalized interpretations of "any" and "absorption" in exceptions under the CPSIA, in a way that no product will meet this standard. Thus, it is an exception written into the statute that has been rendered useless.
While the CPSIA bans children's products containing lead in excess of certain levels, it also explicitly exempts some materials and products that "will neither -- (A) result in the absorption of any lead into the human body" nor "(B) have any other adverse impact on public health or safety." Even the most trivial trace of lead detected in a wipe test can theoretically come off on the hand, move from hand to mouth, get ingested, and then get absorbed (albeit at undetectable levels in the blood). The product in question in the petition, brass collars on wheels, contains a lower level of absorbable lead than what the Food and Drug Administration has found to be acceptable in a piece of candy. The brass collars registered above zero on the wipe test (.8 ?g or 8/10,000,000 grams). Even though the lead cannot leach out or be extracted by saliva, rubbing away minute amounts of the metal, brass in this case, allows trace amounts of lead to wear off. Thus the exclusion would no longer apply if "any" means zero. In fact, the Commission staff conceded that they are not aware of any materials to which the exclusion based on absorption would apply.
I voted to accept Learning Curve's petition for an exclusion because I disagree with the determination that the law allows for zero flexibility for the definition of "absorption of any lead." For the following reasons, I believe there are numerous ways that the statute allows for a de minimis exception to the lead ban:
First, a narrow interpretation of the provision in question, § 101(b)(1)(A), contradicts several accepted canons of statutory construction. The "whole act" canon dictates not just looking to the general words used in a particular clause, but interpreting them in view of the entire statute and its wider purposes. Disregarding this canon provides an interpretation that misses the forest for the trees. Section 101(b)(1) explicitly establishes an exception to the lead ban, so it cannot properly be read not to establish one. The scope of the exceptions established elsewhere in § 101(b) provides additional reason to think that the first, most broadly worded exception of the series is more than an empty set. In § 101(b)(2), Congress created an exception for inaccessible component parts, which the Commission has interpreted to cover many products. In § 101(b)(4), Congress created an exception for electronic devices, which the Commission already has interpreted to include many children's products. Read in the context of the whole act, it is hard to believe that § 101(b)(1) was intended as a vanishingly small exception when the other adjoining exceptions are not narrow ones.
The canon against "surplusage" likewise requires that "a statute should be interpreted so as not to render one part inoperative."1 An agency -- no less than a court -- must give force to every provision of an enactment. A narrow reading of the word "any" not only renders the absorption exception inoperative, but it also makes other parts of §101(b)(1) pointless. For example, the discussion of "objective, peer-reviewed, scientific evidence," the reference to "reasonably foreseeable use and abuse" and the mention of "other adverse impacts on public health" all become irrelevant if the word "any" by itself negates any exceptions. In contrast, an interpretation permitting a de minimis exception solves the surplusage problem by giving meaning to § 101(b)(1)(B). In referring to "any other adverse impact on public health," §101(b)(1)(B) implies that the "absorption of any lead" mentioned in § 101(b)(1)(A) must itself be absorption at a level that would cause an adverse impact on public health or safety.
Most noticeably, the Commission's interpretation violates the canon against absurdity in a variety of ways.2 The CPSC's stark interpretation imposes enormous costs on retailers and manufacturers, who must abandon non-compliant inventory and re-engineer harmless products, with no added benefit to children. It has, for instance, already led many thrift shops and consignment stores to stop selling children's clothes due to the miniscule lead content in zipper stays and buttons. In addition, the Commission's interpretation prohibits the sale of some toy modeling dough products whose lead content is so low that it would be legal to sell it as food. Further, the Commission's rule requires banning the sale of everything from children's bicycles and brass band instruments to junior golf clubs -- even though no detectable rise in blood lead levels occurs from children using these products. Finally, consistent application of the rule will require prohibiting libraries from lending children's books published before 1986 (when some ink used still contained lead). These absurd consequences of CPSC's interpretation become all the more ridiculous when considering that children will still face exposure to traces of lead from everyday products like doorknobs, faucet handles, drawer pulls, and even school lockers. When construction of a statute yields such plainly absurd results, the Commission should reconsider the interpretive approach it has taken.
In addition to violating canons of construction, banning even de minimis lead absorption levels that do not compromise children's health and safety turns the entire statute on its head -- undermining the statute's clear purpose to protect children's health. For instance, where the presence of lead makes the steel frame of a bicycle stronger or makes the steel axle of a toy better able to grip the wheels attached to it (thus minimizing the choking hazard detached small parts would present), the lead increases the overall safety of the product. Worse yet, where refusing an exception will increase unhealthy risks (like using adult products in lieu of children's products), that affirmatively threatens the health and safety of children using these products.
Finally, the Commission's treatment of § 101(b)(1) becomes even harder to defend in light of the exception it has read into § 102(a)(2)'s third-party testing requirements. Section 102(a)(2) states that "before … distributing in commerce any children's product that is subject to a children's product safety rule, every manufacturer of such children's product … shall" submit sufficient samples for third-party testing.3 Admittedly on its own initiative, the Commission has exempted gemstones, pearls, wood, natural fibers, surgical steel, precious metals, and other natural materials from lead testing when used in children's products despite the reference in the law to "any" children's product. Thus, even though § 102 contains no language whatsoever inviting a list of exceptions, the Commission has exempted from testing "certain products or materials that inherently do not contain lead or contain lead at levels that do not exceed the lead content limits under section 101(a) of the CPSIA."4 Meanwhile, the Commission has interpreted § 101(b)(1) in this vote so narrowly that it has completely eliminated an exception Congress wrote into the law. By effectively adopting a reasonable de minimis standard in the testing context, the Commission has already embraced a definition of "any" that permits de minimis exceptions. For purposes of consistency alone and to establish a defensible position for any future litigation, the Commission should extend that same treatment to § 101(b)(1)(A).
Since I believe that the law allows for a common-sense de minimis exception to the lead ban, I also believe the Commission has a responsibility to act on this interpretation. As a former Member of Congress, I doubt that Congress would bother to create an exception that could not possibly cover any products. As such, I subsequently offered a motion to stay enforcement and delay the decision, following the failure of the first vote, in order to seek greater clarification from Congress on the definitions of "any" and "absorption" and then to return to the petition at a later time. Unfortunately, this vote failed 2-3, ensuring that the Commission as a whole is not interested to receive additional information from Congress on the issue.
While one company's request for leniency for brass collars, which are used to attach wheels to toy cars, may seem trivial, this decision also sets a precedent for how the Commission will interpret the entirety of the CPSIA. By solidifying the interpretation that "absorption of any lead" means zero lead in a children's product outside the safe harbor, even a de minimis amount, the Commission has decided there is no additional flexibility in the law for common-sense applications or reasonableness. Contrary to the intent of Congress and to dozens of letters from Members of Congress to the Commission following passage of the law, today's vote signaled that the Commission will not allow for a flexible and reasonable execution of the CPSIA.
In considering the consequences of today's vote, I am particularly concerned about the effects of this interpretation on small businesses and young families. In meetings with larger American companies, many of whom produce all of their products offshore, the cost and engineering expertise necessary under the CPSIA appears to be staggering. Thus, even these companies have speculated that small businesses will find compliance next to impossible. Often, it is our small businesses that actually hire American workers and produce products here in the United States. Furthermore, the cost of compliance will, of course, be passed on to families with young children and low-income families who face the tightest budget constraints.
As a result of today's decision, unless there is quick action from Congress to amend the CPSIA, the permanent impact of the law on the market will be irreversible. In the end, it is consumers and small businesses here and abroad that will bear the burden of this economic impact. I regret that I was unable to persuade my fellow commissioners of the wisdom of this interpretation. However, I will continue my fight for finding reasonableness and flexibility within this law.
NEWS from Commissioner Anne M. Northup
U.S. Consumer Product Safety Commission
Northup fights for flexibility in CPSIA, loses
BETHESDA, MD -- Today, Commissioner Anne M. Northup lead an unsuccessful fight to adopt a reasonable interpretation of the Consumer Product Safety Improvement Act of 2008 as it is currently written.
Commissioner Northup pushed the United States Consumer Product Safety Commission to recognize a "de minimis" lead exclusion in the law. The children's product in question poses no real health risk to a child and should qualify for exception in the statute for products that do not result in the absorption of any lead.
"Today I asked the Commissioners to recognize flexibility in the CPSIA." said Northup. "It is now clear that the Commission does not believe there is 'any' written into the law."
In a 3-1 vote, the Commission refused to grant the petition, denying the flexibility that her fellow Commissioners have repeatedly claimed to seek in the CPSIA. Her colleagues "wish" they could agree with her and "sympathize" with her arguments, but are unwilling to grant the exclusion. One Commissioner even observed that he believed CPSC staff would be comfortable with their own children playing with the toy.
The Commission then voted (3-2) against granting a stay of enforcement and against delaying the vote to seek further input from Congress. By rejecting a reasonable interpretation of the statute and the chance to seek clarification from Congress, the Commission has rendered an entire section of the law inoperative. Denying this exclusion sets a precedent that will yield a host of absurd results for other products containing lead at undetectable levels.
"From my confirmation hearings to correspondence from Members of Congress, I have been asked to employ a flexible interpretation of the law. The Commission continually assures the public that we are looking for flexibility, but today's vote foreclosed that opportunity with respect to this provision of the law," she said.
"The challenge before the CPSC is to craft rules that provide the greatest protection of children while not shutting home?based businesses, crafters, and thrift stores out of the markets. To meet this challenge, we will have to depend on Congress to reasonably address the unintended consequences of the CPSIA. Unless they act soon, more small businesses will be forced to shut down."
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