WASHINGTON – Republicans on the U.S. Consumer Product Safety Commission have seized on a symbol of what they call a regulatory agency run amok: poisonous paper clips.
In a 3-2 vote along party lines in September, the commission ruled that staples, rulers, toothpicks and paper clips found in science kits were subject to testing for lead. The panel’s two Republicans sided with makers of the kits in a failed attempt to win an exemption from rules aimed at detecting the toxic metal in products used by children.
“What started out as an exercise to be helpful devolved into a regulatory quagmire,” Republican Commissioner Nancy Nord said at the hearing, referring to the science sets. “What we are left with is a rule that leads to nonsensical results.”
Three years after the discovery of lead paint in toys from China, which prompted legislation expanding the safety agency’s powers, the commission is riven by partisan debate about whether it’s engaging in regulatory overkill or protecting consumers after failing to do so during the Bush administration.
The board has gone after Mattel Inc. for hazardous toys and Swedish furniture chain IKEA for risky window blinds while coaxing retailers such as Wal-Mart Stores Inc. to recall dangerous cribs.
The CPSC “had a reputation of not being swift or hard on corporations that didn’t comply,” Chairman Inez Tenenbaum, who was appointed by President Barack Obama in June 2009, said in an interview. “That’s certainly not the reputation it has now. We have a new law. We’re going to enforce that law.”
‘Contorting Themselves’
It’s how the measure is being enforced that bothers critics. The debate over defining children’s projects that require extra testing under the law showed commissioners “contorting themselves in an attempt to create rules that can be applied in the real world,” said Ed Krenik, a lobbyist in Washington at Bracewell & Giuliani LLP who represented the Hands On Science Partnership, a trade group for 16 companies that sell science kits to schools.
“The results have caused many businesses to leave the children’s-products market,” Krenik said, citing small companies that are now defunct such as KidBean.com and StoryBlox.
The internal divisions may resurface on Thursday when commissioners testify at a Senate Commerce Committee hearing on the agency.
Barbie, Thomas
The commission polices the safety of more than 15,000 types of consumer goods, from strollers to sports equipment. The agency was criticized by lawmakers of both parties as failing to protect consumers in 2007, after toys from China such as Barbie accessories made by El Segundo, Calif.-based Mattel, the world’s largest toymaker, and RC2 Corp.’s Thomas the Tank Engine trains were recalled for containing high levels of lead paint.
The Consumer Product Safety Improvement Act of 2008 passed 424-1 in the House and 89-3 in the Senate. Among provisions was a requirement that manufacturers test children’s products to be certain they don’t contain lead or phthalates, chemicals used to soften plastic that Congress said may be hazardous to the young.
The Toy Industry Association Inc., a New York-based trade group with members such as Mattel and Hasbro Inc., said in February 2009 that the law would cost its members $1.8 billion for destroyed inventory that didn’t meet the new standards. The American Chamber of Commerce in Hong Kong set the law’s cost at $300 million for children’s apparel makers alone, the consumer- product commission said in a report to Congress in March 2009. The commission didn’t make its own assessment of the total impact.
$14,000 for Bicycle
Testing for lead may cost $50 to $100 for each component in a product, according to the commission, which cited an industry estimate that evaluating the 233 parts in a bicycle may cost $14,000.
The 2008 law also provided more funding and staff for an agency whose budget had eroded to about $62 million in 2006 from more than $140 million in 1976, adjusted for inflation, according to advocacy group OMB Watch. From 1996 through 2007, the agency lost 16 percent of its employees, shrinking to 393 from 469, the Washington-based group said.
The commission now has a staff of more than 500, a budget of $107 million and a Democratic majority whose activism on issues such as lead-testing has brought protests from its Republican minority as well as the companies it regulates.
Complaint Website
The panel voted 3-2 on Nov. 24 to log complaints about consumer products such as strollers and sports equipment on a federal website for the first time. The commission’s approach was opposed by the panel’s Republicans and business representatives, who said it would lead to spreading unverified and erroneous claims about products.
Nord was rebuffed in an effort to restrict reports to people with first-hand knowledge of an defect, such as a parent.
“I do not want some absolute stranger to report something about my child to a federal government database,” Nord said. “That is creepy.”
The commission debated the children’s-product rules for more than five months after a draft was published in April. The Sporting Goods Manufacturers Association, the Craft and Hobby Association and the Halloween Industry Association were among trade groups whose products failed to win exemptions.
Brass buttons, rhinestones, musical instruments, ball-point pens, bicycle handle bars and library books that may have lead- based inks are examples of products swept up by the law’s testing requirement, according to Nord, who headed the agency under President George W. Bush and is backed by fellow Republican Anne Northup, a former U.S. representative from Kentucky.
“We clearly don’t want our children exposed to lead,” Nord said. “But the statute forced us to regulate where there wasn’t a risk.”
‘Stoke the Fears’
The debate over school science kits is a “campaign aimed to stoke the fears of the regulated community,” Tenenbaum said in a Sept. 29 statement.
The agency narrowed the definition of products used by children by exempting hobbyist materials, such as crafting kits and art supplies not specifically aimed at kids, and making clear that products marketed to schools won’t be automatically subject to the rules, she said. Not all science kits would require testing based on the agency’s criteria, according to Tenenbaum.
“Commissioner Nord and Commissioner Northup are casting votes according to the way they would like the law to have been written,” Commissioner Robert Adler, a Democrat, said.
Confronting Companies
The dispute reflects Tenenbaum’s willingness to confront companies on safety after Nord’s more conciliatory approach, said Don Mays, senior director of product safety at the nonprofit Consumers Union.
Under Bush, the agency was reduced to two commissioners, Nord, who was acting chairman, and Democrat Thomas Moore. Congress had to pass a law to permit the agency to operate without a quorum after it had been unable to act on rules for eight months.
Under Tenenbaum, the agency is pushing to ban drop-side crib models after 32 fatalities were reported over nine years. At a February speech in Washington, she warned manufacturers against blaming parents for negligence when a child dies.
“I have a message for manufacturers,” Tenenbaum said. “Take responsibility and show respect to the grieving family, yes, even if they are pursuing litigation.”
The agency has expanded the criteria used to assess fines while raising maximum penalties to $15 million per violation from $1.8 million as provided under the 2008 law.
Last December, following reports of five deaths and 16 near-strangulations involving window coverings, the agency coaxed companies such as Wal-Mart of Bentonville, Ark., the world’s biggest retailer, and J.C. Penney Co. of Plano, Texas, to recall more than 50 million roman shades and roll-up blinds.
“It’s nothing like it was, when we were thinking children could be at risk from unsafe toys,” Mays said. “They couldn’t come close to pressuring the industry to do the right thing. It’s a more proactive approach now.”
