Technology

A Time for Anger: Fisking the Times

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After months of pleas from the small business community, the New York Times (the so-called paper of record) finally decided to cover some of the central elements of the legislation. Except that it was not an article discussing the potential costs of the legislation; nor was it even an article discussing the debate over the legislation at all. No. It was an unsigned editorial. Alleging that CPSIA hasn’t been enforced aggressively enough, and that therefore the commissioner of the CPSC must go. Any reading of the editorial makes clear that the Times did not bother to research what the law actually says or how it is supposed to be implemented. Instead, it appears that they merely regurgitated the talking points of the handful of Dem politicians and interest groups who continue to support the law in the face of overwhelming evidence that it is an abject lesson in the problem of unintended consequences.

Not surprisingly, Walter Olson is angry. He zones in on one particularly offensive paragraph of the editorial and destroys it.

Well, I’m pretty angry myself. So I think it’s worth doing a full fisking of this stinking heap of ignorance. The editorial starts:

The American International Toy Fair in New York City this week has offered the newest and most tantalizing playthings in the world: walking plastic bugs, 3-D coloring sets, even Barbie, now 50 and wearing a golden outfit for the occasion. Yet one question hovered over the fair and its glittering new gizmos. Can the federal government assure consumers that the toys are safe?

Knowing a little bit about the Toy Fair, I can assure you, loyal readers, that the actual question hanging over the Fair was “Does anyone have any idea how you are going to comply with this law when it goes completely into effect without going out of business?”

As many parents, and ultimately manufacturers, learned the hard way, the Bush administration did not make the safety of toys and other products a priority. That led to the recall of millions of toys — some because of lead paint, others because of hazards such as small and powerful magnets that children swallowed. The Obama administration now has an opportunity to fill that regulatory gap by appointing new leadership for the Consumer Product Safety Commission.

So the problem here is that the Bush Administration failed to enforce existing safety laws, thereby leading to the recall of millions of toys? Now, I’m no fan of the Bush Administration, but this seems a little silly. How does the Times think that these toys were recalled? Isn’t the remedy for a prohibited product getting on the market to recall it and to penalize the importer? And isn’t that precisely what happened? And how many injuries were reported as a result of these products getting recalled? The answer is one (sadly it was a death) – except that the product that caused that death was perfectly legal under the then-existing standards, and is actually still legal under the new CPSIA standards since it was made for an adult.

Perhaps the Times is saying that the CPSC should have caught the products before they entered the stream of commerce, if only it had different priorities. This most likely is unrealistic to expect a tiny government agency to accomplish. But one thing is for certain, passing a law that creates unprecedented levels of paperwork for that tiny agency to review is a pretty good way to ensure that the agency will spend an even greater percentage of its resources looking for paperwork errors rather than actual safety hazards.

Last year, Congress passed the Consumer Product Safety Improvement Act, giving new authority and resources to a shockingly understaffed agency. The law has been described, accurately, as providing the safety net that consumers assumed they already had.

Unfortunately, the commission has yet to implement important aspects of the new law.

Really? So, Congress passes a law that provides unprecedented authority – and responsibility – to a “shockingly understaffed agency” and expects them to implement the entire law within six months – and the Times is shocked, SHOCKED, when the agency is unable to do so within that time frame. But perhaps I’m being unfair to the Times – after all, the law provides the agency with “new resources” as well. One problem – the agency didn’t actually get new resources until several months later, and the “new resources” are added incrementally over the course of six years. So the idea that CPSIA’s problems are merely a result of a lazy CPSC is patently false…..and that all says nothing about the fact that CPSC regulations, like all regulations, are subject to a sixty day notice and comment period before they can be implemented.

The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.

This is the most offensive paragraph. For a full explanation of why, see Walter Olson’s post. But simply put, the idea that any business would threaten to close and/or actually throw out thousands of dollars of inventory upon which they rely to make a living merely because of “needless fears” fomented by shadowy opponents is utterly absurd. Indeed, the guidance that the CPSC has issued on this point, far from being overly soft on product safety, specifically recommends that businesses owners discard many of these products.

The law provides ways to address such concerns without undercutting its new and vitally important protections against lead or other toxic substances in children’s products. Even so, the commission decided last month to delay for a year any real enforcement of the law, which was supposed to have taken effect on Feb. 10.

First of all, the law DID take effect on February 10 – what was stayed for a year was the enforcement of two or three specific elements of the law, including the certification and testing requirements. The lower lead limits and ban on phthalates – even for products intended for use by children with no realistic chance of ingesting the substances – still apply, with extremely stiff penalties for violations. Also – the new law deputizes State Attorneys General; while the CPSC has requested the states hold off on enforcement of the testing and certification requirements, there’s no guarantee they will do so.

As for the alleged “ways of address[ing] such concerns,” proponents of the law never seem to specify what, exactly, these ways are. To be sure, the law allows the CPSC to exempt some products from the lower lead requirements – but this allowance only applies, so far as I’m aware, to the lower lead requirements (and certification thereof). In addition, the CPSC may only exempt “specific product[s] or material[s]” “after notice and a hearing….on the basis of the best available, objective, peer-reviewed, scientific evidence….” In other words, it’s not as if the CPSC is allowed to just categorically exempt any products for which this law would be an undue and unnecessary burden.

President Obama must quickly replace the commission’s acting chairwoman, Nancy Nord, who opposed adding new resources and authority to her agency. He should then choose the kind of enlightened leadership that every parent and toy lover needs and that will give consumer safety the priority it deserves.

Because the idea that Congress may have just put forward a poorly drafted law with no consideration of how it would affect small business is just too simple.

Cross-posted at The League of Ordinary Gentlemen