- Apparently I’m not the only one to lose patience with the New York Times, at least when they publish an editorial as bad as yesterday’s. My critique was not only (as mentioned) reprinted almost immediately at Forbes.com, but drew an extraordinary reaction elsewhere, including (not exhaustive): Virginia Postrel, Christopher Fountain, Patrick @ Popehat (strong language — now you’re sure to click), Carter Wood/ShopFloor, Mike Cernovich, Katherine Mangu-Ward/Reason “Hit and Run” (says I go “completely ballistic (in a good way!)”), Jonathan Adler @ Volokh Conspiracy, Memeorandum, Above the Law, Tim Sandefur, Mark Thompson/Donklephant (extensively “fisking” the Times editorial; related, Deputy Headmistress), Alison Morris/Publisher’s Weekly Shelftalker blog (law reminds her of Cory Doctorow novel Little Brother), Jacob Grier, Amy Alkon/Advice Goddess, Joe Weisenthal/ClusterStock, Valerie Jacobsen/Bookroom Blog. And: Deputy Headmistress at Common Room, Faith in Truth, Amy Ridenour/National Center and NewsBusters, Charles Kuffler/Off the Kuff. I’m particularly grateful to Robert Ambrogi at Legal Blog Watch for his wider look at how blogs and other newer media have helped correct the shortcomings of some venerable old-media institutions on this story.
- It’s often noted that the most visible economic interests on the children’s-products scene, namely the two big import-oriented toymakers, the makers of mass-market children’s apparel, disposable diapers, and the like, and the big retailers like Wal-Mart and Toys-R-Us, 1) mounted no effective resistance to CPSIA’s passage, 2) have experienced lobbyists in Washington who took an interest in the bill’s progress, and 3) can more or less live with the new rules as part of a business plan that includes mass factory runs and mass merchandising over which the high costs of testing and compliance can be spread, an advantage not shared by smaller producers and retailers. From this it is often concluded that the large companies purposely devised the law’s provisions so as to destroy smaller competitors. I doubt we’ll ever get a definitive answer to that question one way or the other unless Washington insiders step forward with firsthand accounts (hint), but I’d be wary of adopting the “Mattel and Hasbro are secretly chuckling all the way to the bank” meme without better evidence than has surfaced to date, for reasons outlined by David Foster, Kathleen Fasanella, and Deputy Headmistress. The last-named points quite reasonably to the long paper trail in which the Ralph-Nader-founded Public Citizen, a longstanding anti-business pressure group with close ties to the plaintiff’s bar, and its Nader-founded close ally PIRG, boast of having led the campaign for a maximally stringent CPSIA. Related points here (Eric Husman) and here and here (Deputy Headmistress). More: Mark Thompson has some highly pertinent things to add in the comments section.
- We’ve already visited the question whether one big organization that has vociferously defended CPSIA, the Natural Resources Defense Council, took care to obtain the needed manufacturer certifications before offering its own promotional baby “onesie”. Now Patrick at Popehat asks the same question about a second such group, Greenpeace.
- My favorite line from the late Daniel Patrick Moynihan was one about how when institutions fight each other for long enough they come to resemble each other. When I went over to Amy Alkon’s comments section and saw yet another “but Snopes said there’s nothing to this fuss about CPSIA” comment, it hit me: Snopes is now in the business of perpetuating urban legends.
- Unless you’re a New York Times editorialist, in which case you might not notice it under your own nose, it’s easy to find good coverage of the appalling debacle CPSIA has brought for youth powersports — motorbikes, mini-ATVs and the like. There’s USA Today, the Minneapolis Star Tribune, the Rapid City (S.D.) Journal, the Las Vegas Review-Journal, and Marketing Daily, for instance, as well as the discussion on Rush Limbaugh.
- Kopfschmerz means headache, and describes the sensation felt by German exporters of toys and children’s products.
- While we’re at it, I never did round up the numerous reactions to my post of a week ago on CPSIA and vintage books. A sampling includes The Anchoress, Todd Seavey (also reminded of Ray Bradbury), Open Your Ears and Eyes, Blackadder’s Lair, John Holbo/Crooked Timber, 5 Kids and a Dog, Mark Bennett’s noteworthy posts at Defending People reprised at Blawg Review #199, Carter Wood at NAM ShopFloor and again, David Foster at Chicago Boyz, Der Schweizer Narr (from Switzerland, in German), International House of Bacon (CPSIA “the single worst piece of regulation in my lifetime”), children’s author Vivian Zabel/Brain Cells and Bubble Wrap, She’s Right, Joey and Aleethea, Dewey’s Treehouse, Sherry/Semicolon Blog, and Classic Housewife.
- I’ve started a new tag, CPSIA and resale, for easy retrieval of posts in that category. There are already tags for the law generally and for its effects on books and minibikes — at some point I’ll get around to adding tags for the law’s effects on needle/apparel trades, toys, and libraries, too, and maybe others.
Five days until the law’s effective date, and far more to round up than space allows:
- Hundreds rally in front of Macy’s in New York’s garment district to protest the law [AP/AM New York; pic, and estimate of crowd at 1,000, at Publisher’s Weekly] Plans for Feb. 10 day of protest [Fasanella/Fashion Incubator]
- Several Senators are reported to have joined as sponsors of Sen. DeMint’s reform bill, which his staff says he wants to offer as an amendment to the stimulus bill (more). More welcome news: Sen. Orrin Hatch (R-Utah) calls for hearings on CPSIA [his office].
- “Using a bazooka to kill a (lead-free) gnat”: the inimitable Prof. Richard Epstein on the law’s high costs and low benefits [Forbes.com]. “Huge job losses” could result unless Congress goes back to drawing board
[Quin Hillyer, Washington Examiner, and more at American Spectator] More from Iain Murray at National Review “Corner” [here and here] and much coverage from Carter Wood at NAM “ShopFloor” as well.
- At Crooked Timber, generally a pro-regulation site, John Holbo looks kindly on CPSIA reform — but a guy from PIRG pops right up to defend the measure. Scroll to comments #25 and #28 for good comments by familiar names, and then to Holbo’s own #30 (“I’m increasingly convinced that this is an unusually horrible law.”)
- Reps. Rush and Waxman, Sens. Rockefeller and Pryor blame the whole mess not on their own offices’ drafting, but on CPSC Commissioner Nancy Nord, who resisted many of the law’s extreme provisions, and they demand her ouster [Little Ida]. CPSC Commissioner Thomas Moore likes the law just fine as is, which may help explain why Waxman et al. didn’t call for his head [same]. And yet another “we’re calling the shots here, but any failures are your fault” letter from Rush, Waxman et al to CPSC [Fashion Incubator]. NPR Marketplace’s coverage tends, with the law’s advocates, to promote the “inept agency” rather than the “insanely drafted law” narrative;
- A news account in the WSJ attributes last Friday’s stay to “pressure from manufacturers”, with no mention of grass-roots movement at all. Lame. Meanwhile, CNNMoney quotes safetyists and trade associations, but not small producers, leaving readers clueless about costs. USA Today does a better job at presenting all sides.
- The ultimate acronym? “Congress Passes Stupid Ill-conceived Act” [Three By Sea]
- Rick Woldenberg and Heartkeeper Common Room have both been incisively taking on and refuting the assertions of the law’s diehard promoters, namely, the groups like PIRG, Public Citizen and Consumers’ Union; check out both sites and scroll through multiple posts. And Kathleen Fasanella’s Fashion Incubator promises to stay on top of activist and protest developments.
Public domain image, Ruth Mary Hallock: Grandma’s Graphics.
I was sitting down to write a more extended post about the press’s treatment of the CPSIA controversy when I found that Prof. Mark Obbie, whose LawBeat blog watches the world of legal journalism closely, had already said much of what I wanted to say (while generously citing my work along the way). So instead I will refer you to him, and just add a few further observations.
As do I, Prof. Obbie finds noteworthy the “weird blind spot” of the New York Times, which as I noted a week and a half ago (citing commenter Amy Hoffman)
still has not covered this debacle — a crucial point, since it’s hard to get an issue truly onto the news agenda at other highly ranked media outlets if the Times refuses to notice it…. There’s something truly crazy here, given that the Times plays a conscious role as a key trend-spotter in both the design world and the apparel trade, as well as the world of law and governance.
As of Monday, three days after the CPSC’s stay and weeks after the outcry over the law had surfaced in places like the Washington Post (Dec. 21), Wall Street Journal (Jan. 8), Detroit News (Jan. 10) and Los Angeles Times (Jan. 2), the only notice of the controversy to be found in the Times’s index was what Obbie rightly labels “this pathetic gesture, cribbed from the Bloomberg wire, published on Saturday’s page B2 in the Times”. The tiny 45-word piece commits the typical beginner’s mistake (which, I hasten to add, I committed myself on Jan. 2 before I’d begun to look at the issue carefully) of mentioning only toys as a target of the law, thus missing most of its actual sweep.
The Times was hardly alone in being stone deaf. If any serious reporting on the law went out over the national Associated Press or Reuters wires, or on any of the three old-line TV networks or PBS over the past two months, I missed it, though of course I am happy to be corrected if a reader calls it to my attention.
It will be noted that good coverage of CPSIA frequently emanated from “Style”, local-beat, or feature/human interest reporters, and much less often from Washington or government bureaus. I observed in my second Forbes piece that in some quarters of the elite press
it’s usual to turn for guidance on consumer issues to groups like Public Citizen or U.S. PIRG — the very groups who gave us CPSIA in the first place.
I think Washington-based reporting is particularly prone to a version of this problem. The reporter and editor will ordinarily want to be fair and not just run with whatever line Public Citizen or PIRG are putting out, so they know they need to track down the other side of the story. The problem of course is buried in that phrase “the other”. The temptation (which, of course, the consumer group will often encourage) is to designate as “the other” side some big industry or household-name business with a lobbyist, trade association, or P.R. firm conveniently present on the Washington scene to be dialed up — in this case, someone like the Big Two giant toymakers known for their mass-merchandised Chinese imports, or maybe a retailer like Wal-Mart or Target.
We now realize in retrospect something that may not have been quite as apparent earlier when CPSIA was being pushed to approval amid near-unanimous cheering in the press: that the interests of these mass merchandisers may diverge quite drastically from that of small toy, garment, or school-supply makers or retailers not present at the Washington negotiation table, and that laws mass producers can “live with” and are willing to sign off on are not necessarily compatible with the survival of the small makers and sellers. So the story told from inside Washington will be quite different from the story told later outside. That’s my theory, anyway, to account for the selective deafness of some sectors of the national press, and perhaps in particular some editors and publishers who self-consciously concern themselves with questions of high national policy.
Away from my desk for three days, and just catching up with the flow of commentary on the issue:
- Too much reporting in local press sources to round up, but check out, e.g., the Knoxville News-Sentinel, Fredericksburg (Va.) Freelance-Star, Arizona Republic, and Nashville Business Journal. Carter Wood at ShopFloor links to excellent coverage in, among other places, the Grand Rapids, Mich. (Jennifer Ackerman-Haywood, “Running with Needles”) and Portland, Maine newspapers.
- Law compared to “an anvil on a onesie” [Small Things Considered; more; via]. Crafts-market site Etsy has an interesting thread on vintage sellers and the law, among many other valuable forum discussions. Mami Mobile rounds up many links from affected bloggers. More: Daily Grind of a Work at Home Mom, Eve Tushnet (scroll to Jan. 15), Kim’s Play Place with many updates, and Evolving Excellence.
- Until only weeks ago, Henry Waxman and his allies were blasting the beleaguered leadership of the CPSC for not being tough enough on producers of kids’ goods; now Waxman seeks to reposition himself as favoring deregulatory steps that the Commission has unaccountably failed to implement. Some appear to be taken in by this imposture, but not blogger Common Room, who has been doing a series of posts documenting why Waxman and his Congressional colleagues were and are the key decision-makers and ought not to be allowed to shift the responsibility to others;
- Who’s dug in to the “great law, no need to change, only evildoers oppose it” position? Well, there are the trial-lawyer-allied, student-fee-funded PIRG groups (Seattle Times), and, even more stridently, the trial-lawyer-defense outfit Center for Justice and Democracy (The Pop Tort). Eric Husman and Common Room have taken a look at the law’s supporters as well. But note an exception: InjuryBoard, the large online trial lawyer site, just ran a surprisingly open-minded interview with anti-CPSIA activist Kathleen Fasanella of Fashion Incubator;
- “[T]he only feasible alternative is for Congress to delay implementation. Many in Congress will not agree to this, in part, because of pressure from the consumer groups ….However, Congress may do something this week or next to either clarify the law, give further guidance on legislative intent to the CPSC, or maybe even delay implementation.” [Ross/Product Liability Prof Blog]. More from the law and policy blog world: Prince/PLProf; Bader/CEI “Open Market”; Bill Childs, TortsProf.
Just as my earlier piece on CPSIA was going to press last Friday at Forbes there came a new development: Reps. Henry Waxman (D-Calif.) and Bobby Rush (D-Ill.), who sponsored the law and have opposed efforts to revisit it, issued a letter that seemed to soften their stance a bit and hold out hope for more exemptions. The magazine asked me to analyze these new developments and the result is up now. Unfortunately, the news is bad: the letter’s suggestions for exemptions are piecemeal, narrow, and much too late. We are still on course for a calamity should the law’s provisions go into effect Feb. 10 and (later round) in August — a calamity that Waxman and other sponsors of the law had every reason to see coming when they passed the bill last year.
In the mean time, as I point out, the Waxman/Rush letter raises the question of whether our leaders on Capitol Hill realize that ordinary children’s books are often bound with metal staples, and that toddlers seldom convey to their mouths such objects as bicycle tires and dartboards. The piece, again, is here (& Matt Bandyk, U.S. News).
More: In comments on an earlier post, kids’ wear entrepreneur Amy Hoffman says the New York Times still has not covered this debacle — a crucial point, since it’s hard to get an issue truly onto the news agenda at other highly ranked media outlets if the Times refuses to notice it (though some are covering the story anyway, as with Bloomberg in a pretty good piece today). There’s something truly crazy here, given that the Times plays a conscious role as a key trend-spotter in both the design world and the apparel trade, as well as the world of law and governance.
In addition, Common Room provides some sorely needed guidance to protesters as to where their CPSIA outrage should be directed: the fact is that Henry Waxman, as chair of House Commerce, is by far the #1 decisionmaker in whether or not this law will be changed. (Next in importance? His counterparts over at the U.S. Senate.) Protests to other House members are significant mostly in creating pressure on Waxman; the ordinary course of business in the House is to leave these matters to the Committee chair, so protesters must hope to get across the message that the ordinary course of business won’t do this time. As for the incoming Obama administration, as Common Room explains, it has few if any ways of intervening directly to prevent a business calamity on Feb. 10 and a further calamity in August; its main power is the power of picking up the phone and jawboning Waxman with the message that he cannot expect cooperation on unrelated things he wants unless he un-bottles up legislation to fix CPSIA. Waxman is also known to listen to the lawyerly pressure groups like Public Citizen and U.S. PIRG, and to Consumers’ Union. My personal view is that while it’s pointless to try to change the minds of these three groups — they will remain utterly in the grip of their ideology or constituency, and unsympathetic to producers — they might be made to see the prudence of urging compromise on Waxman lest national attention to the issue damage their own images.
Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.
One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.