• The internet is a-hum with reactions to a proposal by West Virginia state representative Jeff Eldridge (D-Big Ugly) to ban Barbie dolls “and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.” That idea is predictably going nowhere (at least in West Virginia: Montpelier, Vt. is said to have voted a Barbie ban*), but Eldridge can perhaps take consolation in that CPSIA has already (with virtually no media taking note of the fact) banned the sale of vast numbers of vintage Barbies that pose equal dangers of symbolic or psychological impairment, if not of actual physical dangers. This 1999 New York Times piece describes how Mattel was “beginning an effort to eliminate” the use of polyvinyl chloride (PVC) compounds in the dolls, and that environmental activist groups contended that PVC often included lead as well as (less surprisingly) the plastic softeners phthalates, some but not all of which are banned by the law. As Denise Van Patten noted in an About.com write-up in January, it is not clear what old dolls are still going to be lawful to sell, distribute or give away under CPSIA, if they cannot be fit into the “adult collectible” exception that covers items so expensive they will be kept out of children’s hands. Soft plastic is only the beginning of the problem. Most older dolls have paint as a component — often only in the rendering of the eyes, but that’s enough to count as a resale red flag under the CPSC’s Feb. 9 guidelines. Hair and dyed fabric, both of unknown composition? Buttons or snaps in the garment, or worse yet, rhinestones? About the only such plaything a thrift shop would not advised to discard under the guidelines would be an unpainted and unvarnished rigid humanoid figurine of raw wood or cast aluminum. If your child does find one of those on a thrift store shelf, she’s welcome to cuddle it all she pleases.
• Carol Baicker McKee is a children’s book author and illustrator who commented eloquently (more) on one of our earlier posts about books. Now she has a great post explaining why, although she “never used to think of myself as an activist,” she’s thrown herself into the fight to change this law. As she points out, some things changed, but other things didn’t change, when the CPSC announced a short safe list of presumptively lawful material for children’s products along with a one-year stay on many testing requirements (but not on the banning of goods that flunk the thresholds). She explains why “the stays provide only the illusion of relief,” and that “when the stay ends a year from now, the destructive testing provisions will still go into effect for all children’s products except the small percentage that have been given a reprieve – the costs of that testing will force the remaining small businesses that have limped along this year into oblivion (and the [requirement for] destructive testing will obviously signal the end of one of a kind products).” Read the whole thing.
• In a classic 1850 pamphlet, Frederic Bastiat writes of “what is seen, and what is not seen” when people recommend government solution to a problem. Deputy Headmistress writes of “what Congress didn’t see“. More: Patrick Stephens on a similar theme last month.
• A Georgia newspaper quotes CPSC spokeswoman Arlene Flecha as saying that “her agency will have inspectors make unannounced visits to stores throughout the country and will randomly conduct tests on products.” And if you’re wondering about the CPSC “Internet surveillance project”, in which agents of the commission pose as consumers in order to trap detect persons selling forbidden goods on eBay or Craigslist, you can find out more about that here (link fixed now).
• At the Heritage Foundation’s InsiderOnline blog, Alex Adrianson has a detail-filled though not lengthy post that would make a good short introduction to the subject to send to (say) a lawmaker.
• Allison Loudermilk at the How Stuff Works blogs takes a look at the law’s heavy impact on thrift stores (“the selection at your local thrift store just got a whole lot slimmer”), while the PTA Thrift Shop of Carrboro, N.C. regrets to inform its customers that it’s out of kids’ resale entirely due to the law; things are only a little better in Salem, Ore. Manager Lisa Sonnek of the York, Nebraska Goodwill has pulled all the children’s clothing, toys, furniture, and pre-1985 books, in accord with policy from above, but has put aside “some clean children’s clothing, in anticipation of the policy being modified in the near future”. Dunno – that might depend on Henry Waxman’s heart melting or something.

*Although numerous online sources report as fact a Montpelier Barbie “ban”, commenter Barb says it’s far from clear that the reports have much of a factual basis.

CPSIA chronicles, March 4 is a post from Overlawyered - Chronicling the high cost of our legal system

• At the American Spectator, Quin Hillyer says his co-thinkers “need to really get up in arms about” changing the law, and has kind words for a certain website that is “the single best place to track all its devastation”. At The New Criterion, Roger Kimball finds that the threat to vintage children’s books provides a good instance of the dangers of “safety”. And commentator Hugh Hewitt is back with another column, “The Congress Should Fix CPSIA Now“.
• Numerous disparaging things have been said of the “mommy bloggers” who’ve done so much to raise alarms about this law. Because, as one of Deputy Headmistress’s commenters points out, it’s already been decided that this law is needed to “protect the children”, and it’s not as if mere mothers might have anything special to contribute about that.
• Plenty of continuing coverage out there on the minibike/ATV debacle, including Brian O’Neill, Pittsburgh Post-Gazette (office of local Congressman Mike Doyle, D-Pa., says most members think, dubiously, that ban “can be fixed without new legislation”); Lebanon, Pa. (“Ridiculous… It’s closed an entire market for us”), Waterbury, Ct. (“The government does stupid things sometimes without thinking”), and, slightly less recent, Atlantic City, N.J. (“I would’ve had three sales this weekend, so they stomped us”). Some background: Off-Road (agency guidance in mid-February told dealers to get youth models “off their showfloors and back into holding areas”); Motorcycle USA (“With right-size models being unavailable to families, we may see more kids out on adult ATVs and we know that this leads to crashes”). To which illustrator Meredith Dillman on Twitter adds: “Just wait until someone gets hurt riding a broken bike they couldn’t get replacement parts for.”
• One result of CPSIA is that a much wider range of goods are apt to be subject to recalls, but not to worry, because the CPSC recall process is so easy and straightforward.

CPSIA chronicles, March 2 is a post from Overlawyered - Chronicling the high cost of our legal system

“Pelosi betrays her own House for a slew of trial lawyers” is a post from Overlawyered - Chronicling the high cost of our legal system

Top Ten Reasons to Oppose the CPSC “Reform” Act (S. 2663)

1. Makes it legally impossible to fire disruptive employees: Once an employee – be they a union salt or just your average disgruntled employee – notifies the CPSC of an action they “believe to be” a violation of a consumer product safety regulation, the employer faces fines in excess of $250,000 if they discharge or take any “negative” action against them. This will dramatically expand the scope of federal whistleblower protections. (Section 21)

2. Creates a public government-sponsored website to anonymously smear companies: The substitute requires the federal government to establish a website to post complaints from consumer groups. Now left-wing interest groups don’t have to harass businesses via their organization’s website, they can post them on CPSC.gov. This places the imprimatur of the federal government on oftentimes frivolous complaints filed by left-wing interest groups. This database will be of little use to anyone other than trial attorneys and left-wing interest groups. (Section 7)

3. Creates a new tool for anti-business state AGs to harass companies: Under the “Spitzer Section” of the bill, State Attorneys General will now have a new cause of action to sue companies to enforce the Consumer Product Safety Commission rules. Instead of having to comply with only one federal authority regulating consumer product safety, American businesses now have to worry about complying with the varying interpretations of law of 50 state Attorneys General. (Section 20)

4. Undermines a cooperative relationship between businesses and the CPSC: Under the information disclosure provisions of current law, information is reviewed for accuracy and fairness. Under the bill, this protection would go away and all information will be posted on the internet within 15 days. This will eliminate thousands, possibly tens of thousands of voluntary reports the CPSC uses every day to do their job. This cooperative relationship ensures that businesses and the CPSC share information and work together to protect consumer safety. Under the new regime, instead of having experts cooperating with experts, you’ll have lawyers fighting with lawyers. (Section 7)

5. Massively increases fines, threatening small businesses for no good reason: The substitute increases maximum civil penalties more than 10-fold and the individual violation penalty more than 50-fold subjecting each product that wrongfully enters the stream of commerce to a $250,000 fine. The threat of a $250,000 fine will cause many small manufacturers and retailers who commit only minor violations (50 toys) to declare bankruptcy. Larger businesses are already discouraged from having defective products in the stream of commerce by the impact on their reputation and more importantly their stock price. After the 2007 scandals alone, Mattel’s corporate valuation lost $5.4 BILLION. (Section 16)

6. Dick Durbin’s Garage Sale: Senator Durbin, at the behest of an Illinois-based company, has included language in the bill that overrides the garage door safety standards developed by the non-profit independent Underwriters Laboratory and American National Standards Institute (UL 325). Senator Durbin decided that it was appropriate to substitute his judgment, and the judgment of the company’s lobbyist, for that of the panel of technical experts who were assembled to evaluate what technologies were safe for use in garage door openers. Senator Durbin is setting a terrible precedent by substituting the judgment of a lawmaker for that of experts in a highly technical and complex subject area. (Section 31)

7. Threatens to send the owners of small companies to prison for unknowingly selling a dangerous product: Section 16(b)(2) states, “(2) DIRECTORS, OFFICERS, AND AGENTS.—Section 21(b) (15 U.S.C. 2070(b)) is amended by striking ‘‘19, and who has knowledge of notice of noncompliance received by the corporation from the Commission,’’ and inserting ‘‘19’’.” Under the new regime, unknowing violations of the CPSA could lead to jail time for business owners. This may make the bill proponents feel good, but it does nothing to improve product safety. (Section 16)

8. Eliminates protections from disclosure of confidential preliminary information: Under current law industry can share information with the CPSC discussing preliminary factual matters (i.e. the company had recently received a report that a product had malfunctioned) even if the information may or may not have a bearing on a possible future recall. This open sharing of information provides a significant amount of important information that the CPSC can use to make informed recall decisions. Under the vague authority to allow disclosure when the CPSC deems the information “in the public interest” companies will be extremely unlikely to voluntarily share information because of fear of having all the information end up on the CPSC’s website regardless of whether it has an actual bearing on public safety. (Section 7)

9. Increases the CPSC’s budget by nearly 100% and significantly increases the staffing at CPSC: The bill increases the budget of the CPSC from $80 Million in FY08 to over $158 Million in 2015. It would also take the CPSC from its 2007 level of 393 full time equivalents to 500 full time equivalents. While there may be needs at the CPSC, there has been scant justification for these increases in the size and scope of government. (Sections 3 and 4)

10. The Bill has been endorsed by the Consumer Federation of America and the Consumers Union: The Consumer Federation of America said the measure contained “significant improvements over the status quo” and the Consumers Union, said the agreement “adds important new tools to the CPSC toolbox, and moves us closer to finally fixing our broken product safety system.” But in fairness, Public Citizen dissented saying the Senate bill would leave the CPSC with “far less authority than most regulatory agencies.” There’s always conference.

“Senate CPSC Bill: A Boon for Trial Lawyers at the Expense of Product Safety” is a post from Overlawyered - Chronicling the high cost of our legal system

CONGRESS is poised to pass a massive giveaway to the ambulance-chasing trial attorneys – under the guise of protecting consumers.

The proposed law [the CPSC Reform Act] would give the 50 state attorneys general new powers to sue the makers of allegedly unsafe products – and even to demand help in their suits from the federal Consumer Product Safety Commission.

Headline-hungry AGs will even be able to sue over products the CPSC has already found to be safe. In other words, national standards will effectively go out the window, as politically ambitious AGs compete to bash business so as to win popularity for future elections.

The legislation – which the House has already passed and the Senate’s likely to pass – would hamper CPSC’s mission by creating multiple unscientific “safety” standards. Each AG’s vision of what the latest scientific studies imply about purported dangers would prevail in a given state, rather than the CPSC’s own (far more expert) findings.

All this would mean a bonanza to trial lawyers – who’d stand to make hundreds of millions from relentless lawsuits within just a few years, since each state would become a new roulette-wheel of potential jury verdicts against manufacturers. …

Further encouraging bogus complaints, the bill would grant unprecedented “whistle-blower” protection to any employee who alleges a fear of product danger – an easy way to secure your job until your case is adjudicated.

Congress’s latest gift to lawyers? is a post from Overlawyered - Chronicling the high cost of our legal system

• H.R. 3010: Arbitration Fairness Act of 2007
  What It Does: Raises costs to and reduces choices for consumers and lowers employee wages by forcing consumers and employees to pass up the benefits of mandatory arbitration, whether they wish to or not. More at Overlawyered, and on SSRN.
  Status: Hearings held in both the House and Senate. Likely to be vetoed if passed.

• H.R. 2881: The Passengers Bill Of Rights
  What It Does: Raises costs to consumers by removing decisions about level of service from the marketplace and putting it in the hands of Congress, enforceable by trial lawyers with punitive damages.
  Status:Approved by the House as part of the FAA Reauthorization Act, 267-151-14. Currently in the Senate.
• S. 2045: CPSC Reform Act of 2007
  What It Does: Decreases consumer safety, raises prices, and reduces wages by (1) balkanizing enforcement of safety standards, and (2) creating a new cause of action that would allow employees about to be fired for incompetence to keep their jobs by making bogus safety complaints and then suing for alleged retaliation. More at the WSJ ($) in a editorial largely taken from an uncredited interview with me.
  Status: Passed by the Senate Commerce Committee. Companion legislation with fewer problems unanimously approved by the House.
• H.R. 3915: Mortgage Reform and Anti-Predatory Lending Act of 2007
  What It Does: Raises interest rates and effectively bars refinancings and lending to the poor by (1) creating the right to sue innocent third parties over bad loans, and (2) creating a vague standard for predatory lending that almost anyone in foreclosure over a refinancing can delay the foreclosure by suing over. More by Ted Frank.
  Status: Approved by the House 297-127-14. In the Senate Banking Committee.
• H.R. 946: Consumer Overdraft Protection Fair Practices Act
  What It Does: Raises costs to and reduces choices for consumers who pay their bills on time by forbidding the opportunity to trade lower interest rates for higher fees.
  Status: Introduced, in the House Financial Services Committee.
• H.R. 698: Industrial Bank Holding Company Act of 2007
  What It Does: Bans Walmart from opening its own bank, reducing competition over banking services at the same time that Congress and Public Citizen are complaining about high bank fees. See Peter Wallison’s take (and earlier).
  Status: Approved by the House 371-16-45, dead in the Senate Banking Committee. Meanwhile, regulators are blocking Wal-Mart’s move.

War is peace, freedom is slavery, and trial lawyer earmarks are “consumer-friendly” is a post from Overlawyered - Chronicling the high cost of our legal system