Posts Tagged ‘Richard Blumenthal’

May 14 roundup

NPR on CPSIA: “Public Concern, Not Science, Prompts Plastics Ban”


Major story by Jon Hamilton on yesterday’s NPR “Morning Edition”: “A new federal ban on chemical compounds used in rubber duckies and other toys isn’t necessary, say the government scientists who studied the problem.” “Now they tell us,” writes Carter Wood. More from Jonathan Adler @ Volokh and commenters.

Although most coverage of the CPSIA debacle (this site’s included) has focused on the lead rules, the phthalates ban (phthalates are an ingredient often used to make plastic soft and bendable) is also extraordinarily burdensome, for a number of reasons: 1) as readers may recall, a successful lawsuit by the Natural Resources Defense Council and others forced the last-minute retroactive banning of already-existing playthings and child care items, costing business billions in inventory and other losses; 2) vast numbers of vintage dolls, board games and other existing playthings are noncompliant, which means they cannot legally be resold even at garage sales, let alone thrift or consignment shops, and are marked for landfills instead; 3) obligatory lab testing to prove the non-presence of phthalates in newly made items is even more expensive than testing to prove the non-presence of lead. The phthalate ban is also an important contributor to the burden of the law on the apparel industry (the ingredient has often been used in screen printing on t-shirts and similar items) and books (“book-plus” items with play value often have plastic components). has reprinted a letter from Robert Dawson of Good Times Inc., an amusement maker.

Earlier coverage: Feb. 6 (NRDC and allies win court case on retroactivity); Feb. 7 (various points, including Connecticut Attorney General Richard Blumenthal’s vow that his office will “take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced”); Feb. 12 (what ingredients in playthings are going to replace phthalates, and are those ingredients going to be more safe or less?); Mar. 4 (vintage dolls); Mar. 11 (California Senators Barbara Boxer and Dianne Feinstein were particularly identified with pushing the phthalates ban to enactment).

P.S. Environmentalists disputing the NPR coverage: Jennifer & Jeremiah @ ZRecommends, Jennifer Taggart (The Smart Mama) in NPR comments. And Sacramento attorney Anthony Caso has a backgrounder for the Washington Legal Foundation (PDF) with more about the CPSC, the NRDC, and maneuvering on phthalates.

CPSIA: What will be enforced?

To cap a week of bewilderingly rapid developments, the Consumer Product Safety Commission yesterday announced new guidelines somewhat widening the scope of products that it will consider presumptively lawful to sell (unless a merchant is actually on notice that they contain hazards) when the law’s major provisions take effect three days from now, on Tuesday, Feb. 10. From a quick once-over — and all this is subject to correction by lawyers expert in the matter — the new guidelines appear most useful for the children’s publishing business and for makers of children’s garments and electronics, although fraught with difficult problems even for them; they do little to help many other businesses and small manufacturers affected by the law, and are most ominous as regards two major constituencies affected by the act, resale stores and public libraries.

First, a bit of background. In a February 4 post, “The Blame Game“, Rick Woldenberg has laid out the “noose-like” tightness with which the drafters of the CPSIA sought to prevent the CPSC from granting exemptions from the standards; they also provided that liability under the law would not be suspended just because a request for exemption was under consideration. In short, the CPSIA is purposely drafted to place many advantages in the hands of consumer groups or other litigants who might wish to challenge an exemption in court. Since the CPSC cannot be sure of having the last word — its attempt to carve out an exemption for pre-Feb. 10 phthalate inventories was just struck down — it would be incautious for producers or retailers to rely overmuch on its policy pronouncements, especially since, while it obviously has some discretion over its own enforcement efforts, it cannot prevent others (like state attorneys general) from bringing their own actions. One of those state AGs, Richard Blumenthal of Connecticut, just issued a press release crowing over the consumer groups’ phthalate victory and warning retailers, thrift stores presumably included, that “My office will take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced.” (Note that while the phthalate ban was often argued for on the basis of the “precautionary principle” — even if no actual harm to humans has been proved, shouldn’t we alter the formulas for making the items to be safe rather than sorry? — Blumenthal & co. now seek to redefine millions of existing playthings in American homes as “toxic toys”.) It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).

In any event, the CPSC now edges into daring and legally uncharted territory by declaring that it will presumptively excuse not just untreated beige cotton, wool and other materials, but also dyed fabrics, as well as certain innocuous varieties of trim. This is of help to garment makers, who will still of course face possible legal exposure on their plastic buttons, metal snaps, and other nonfabric components. Electronics makers will benefit because the commission will adopt a more lenient view of when components are inaccessible, that is, not reachable by a child even after an effort to smash and break the object. Certain metals and alloys known not to contain lead will also be listed as presumptively safe. Finally, “ordinary” children’s books (it is not clear whether books with staples qualify) will be presumptively lawful if published since 1985.

Published since when?

That’s right, since 1985. It seems before that year some books were printed with lead-containing inks. None of the discussion I’ve seen of the issue seems to report that any American child has ever been injured by eating the ink in books. But the implication is pretty clear for books published before 1985: unless you’d care to put them through testing, title by title and edition by edition, it’s now legally safer to throw ’em out. One might propose vast bonfires in public squares, if not for the fear of violating air quality regulations.

It is not unusual for small independent booksellers to have in inventory still-unsold books of pre-1985 vintage. Perhaps these can be saved from landfills through the use of stickers reading, “Sold as a collectible only — under no account to be used by persons under 12”, as sellers of, say, vintage plastic dolls may do. But that doesn’t solve the problem for libraries. Their holdings include millions of pre-1985 children’s books, and if they stock them in children’s sections and allow them to be checked out at children’s request, they can’t very well play the “adult collectible” card. Beyond that, book sales are a major source of financial support for libraries, and inevitably include many of those ultra-terrifying, handle-with-lab-gloves pre-1985 children’s books.

Finally, thrift and resale stores remain in an unenviable position. Relatively few of the children’s goods they sell are composed entirely of materials on the hastily-assembled safe list. Most of the garments have snaps, zippers or plastic buttons; most of the sports items, board games and action toys have metal, vinyl or plastic components that might possibly (even if they probably do not) contain some admixture of lead or phthalates; who knows whether the jigsaw puzzles or spiral-bound art pads were printed before 1985, or, for that matter, would count as a “book”? Don’t even ask about bikes, trikes, strollers, car seats, backpacks, or things with rhinestones. And now you’ve got Richard Blumenthal and his allies vowing to “take whatever steps are necessary” — armed with those $100,000 penalties and those jail terms — against anyone who sells or resells items that a short time ago were a normal and, so far as anyone has been able to prove, harmless part of childhood.

Further discussion from Common Room (with particular attention to pre-1985 books: “I think the CPSC just turned my library into contraband. Or something.”) and Ian at Musings of a Catholic Bookstore. Rumor has it that CPSC will issue further guidance on thrift stores and resellers on or before Tuesday, but as Common Room cautions, “There’s a Difference Between a Policy and a Law“.

P.S. Note, incidentally, that the phthalate ban applies to a different (and generally narrower) range of products than does the lead ban: in particular, playthings and child care items. Peas and Bananas has reprinted the details (& welcome Publisher’s Weekly readers).

Public domain image: Grandma’s Graphics, Mabel Betsy Hill.

“Court bars rapist from suing victim”


A Superior Court judge in New London Friday permanently barred a convicted rapist who had harassed his victim with a series of legal actions from filing further lawsuits without the permission of a judge. Judge Clarance J. Jones issued a permanent injunction against Allen Adgers, who is serving a 13-year sentence for kidnapping and raping his former wife at knife-point, said Attorney General Richard Blumenthal, whose office sought the order….

[The wife] moved six times, but Adgers was able to learn her new address each time by filing a legal action that resulted in her being served with a subpoena. As part of the subpoena process, Adgers would get a receipt recording the address where service was made. He sent her harassing letters, which has added four years to his original 13-year sentence. But he still was allowed to force his former wife into court. Acting as his own attorney, the rapist was able to question and taunt his victim….

Blumenthal said that Adgers, in addition to harassing his victim, also filed 16 frivolous lawsuits against government officials since 2001. That will end with the order issued Friday.

(Mark Pazniokas, “Judge Halts Rape Victim’s Ordeal”, Hartford Courant, Feb. 25). Jonathan B. Wilson, who spotted the case, says one lesson — given that it took a situation this extreme to trigger an injunction — is that the system is likely to allow a great deal of litigation abuse in less facially outrageous cases: “So long as plaintiffs have the capacity of filng suit and engaging in discovery without satisfying any minimal standard of justification, unscrupulous plaintiffs will be able to use the compulsive power of the courts to impose frustration and costs on defendants.” (Feb. 26).

Seriously Bad Elf beer

The Ridgeway Brewery in England brews a bitter winter ale which it calls Seriously Bad Elf, complete with a drawing of a gnomic figure on the label. Now officials in Connecticut, including Attorney General and bete-noire-of-this-site Richard Blumenthal, have banned imports of the ale on the grounds that an elf drawing might entice minors to drink the beer. (“‘Seriously Bad Elf’ Beer Banned In CT”, CBS4Boston, Oct. 28; “Connecticut looks to ban British beer with elf label”, AP/USA Today, Oct. 29).

Update: Sony pays $1.5 million to settle ghost-blurber suit

Another triumph of our class-action system: Sony Pictures has agreed to pay out $1.5 million to settle a class action on behalf of filmgoers allegedly persuaded to attend the films “Vertical Limit,” “A Knight’s Tale,” “The Animal,” “Hollow Man” and “The Patriot” by Sony’s use of a nonexistent reviewer, “David Manning”, to say nice things about the films in blurbs. “Manning” was listed in the blurbs as working for the Ridgefield Press, a genuine newspaper in Connecticut which however has never employed any such reviewer (Jun. 12, 2001, Mar. 13, 2004).

Class lawyer Norman Blumenthal said moviegoers would be able to collect $5 rebates by affirming that they attended the original runs of the movies; remaining moneys will go to charity. The AP’s coverage does not discuss how if at all the attendance claims are to be verified, nor the question of how much the lawyers are going to get in fees. When the California courts agreed to let the suit go forward as a class action, a dissenting judge called it a “farce” and “the most frivolous case with which I have ever had to deal”, saying: “We should be occupying ourselves with resolving legitimate disputes instead of laughable cases designed not to gain anything for the plaintiffs, but rather to generate fees for the only true beneficiaries of this disgrace, the attorneys.” (Alex Veiga, “Sony to Pay $1.5M Over Fake Movie Critic”, AP/Tuscaloosa (Ala.) News, Aug. 3).

At times they even talk alike

New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal, both subjects of longstanding coverage in this space, go back quite a way together and share a similar approach toward the duties of the state attorney general. A new story from AP’s Hartford bureau is kind enough to quote me saying some not-very-acerbic things about them. (Jan. 23: Stephen Singer, “Friendship another tie between two like-minded attorneys general”, Newsday, and Stamford Advocate).

Great Tobacco Robbery developments

In March Moody’s lowered its rating of New York City’s tobacco settlement bonds (which securitize the future flow of booty to the city from the great 1998 robbery) in light of the Second Circuit’s highly significant decision in Freedom Holdings v. Spitzer (see Jan. 12) exposing the settlement to antitrust challenge (Reuters/Forbes, Mar. 23). The Second Circuit itself denied a petition for rehearing (opinion Mar. 25 in PDF format). The General Accounting Office published a report confirming that states are spending most of the proceeds on their general budgets rather than on anything related to the weed or its effects (March report in PDF format, via the University of Tennessee’s page on tobacco litigation, which has a number of useful resources), which in turn touched off a number of caustic commentaries (“States Spend Mega-Billion Tobacco Settlement On Budget Shortfalls”, Competitive Enterprise Institute, Mar. 23; Christine Hall, “States Spend Tobacco Settlement on Budget Shortfalls”, Heartland Institute, May 1; see Nancy Zuckerbrod, “States rely on tobacco settlement to fix budgets”, AP/Louisville Courier-Journal, Mar. 23). Also check out the debate between CEI’s Sam Kazman and ever-blustering Connecticut Attorney General Richard Blumenthal on CNNfN (Mar. 18). Vice Squad (Mar. 27) has further updates on the efforts of state governments to curtail small and independent cigarette producers by way of protecting the anticompetitive arrangements established in the 1998 settlement (see Feb. 28). And the Clinton-initiated federal racketeering lawsuit against the tobacco industry, the continued prosecution of which must surely count as among the low points of the Bush Administration’s domestic record, is apparently headed toward trial in September or thereabouts (“Federal suit against tobacco moves toward trial”, AP/Helena Independent Record, Mar. 22).