Sorting Out Good Intentions Vs. Bad Legislation

Today, the Senate Commerce, Science and Transportation Committee will hold a hearing on the confirmation of nominee Inez Tenenbaum as chairwoman of the Consumer Product Safety Commission.While this nomination will likely not garner much attention, the incoming chairwoman of the CPSC has a heavy responsibility for ensuring the protection of American families. One of the most challenging undertakings that any incoming chairwoman will face is to oversee implementation of the recently passed Consumer Product Safety Improvement Act. [IMGCAP(1)]The CPSIA was passed by Congress last summer in an effort to increase regulation on children’s toys and products. The CPSIA has been in effect since February; however, implementation of this law has caused a myriad of problems and a great deal of confusion. The CPSIA is a vivid example of good intentions that lead to bad legislation. Congress and the commission must act now and provide a sense of clarity on these issues before these regulations hurt the very people they are intended to help. Legislators succeeded in passing a new law so strict, so vague and so sweeping in scope that it is virtually impossible to enforce. As a result, the Consumer Product Safety Commission faces questions such as how to deal with the legislation’s effect on small business and uncertainty about which products are subject to lead and phthalates regulations. Testing is among the most serious issues. The law requires retailers of children’s products to get their products tested by third parties. That’s expensive. New testing requirements apply — or don’t apply, according to almost daily interpretations of the new law. And virtually every product or product component that might come in contact with a child age 12 or younger has to be tested. That’s onerous. These testing costs can range from hundreds to several thousand dollars for each product. For many small businesses, these costs are high enough to put them out of business. Ultimately, these costs will get passed down to consumers. Another serious concern of the new law is its approach to chemical regulation. Public panic last year over tainted toys from China made Congress rush to the rescue. It’s politically difficult to argue with a bill aimed at child safety — whether it actually makes kids safer or not. But legislation based on emotion and politics rather than on science isn’t responsible, and it isn’t reasonable. The law includes an interim ban on certain phthalates, a class of chemicals used safely as a softener in children’s plastic toys for over 40 years. Even though the government’s own research says this product is safe, the ban remains in place until yet more testing is done. Nothing wrong with that — except that the replacements used in the meantime haven’t been tested at all. Congress responded to political pressure but made no attempt to evaluate comparative risks. In this provision, the CPSIA has succeeded in increasing risk for the very kids Congress congratulated itself for protecting.The interim ban on these phthalates will remain in effect until a Consumer Product Safety Commission review is completed on these substances as well as their alternatives. In the meantime, manufactures will continue to replace safe and tested chemicals in their toys with untested materials. In the interest of children’s safety, the incoming chairman’s first order of business should be ensuring this testing process is completed in a fair and timely manner. The cost of compliance, particularly with rules that don’t promote safety at all, presents an economic nightmare for businesses. The liability costs of using untested chemicals in place of safe ones are incalculable. And all that would be worth it if the law made children safer or gave consumers more confidence in toys. The more we see of CPSIA, the worse it looks. Whatever the U.S. economy needs to recover, it certainly doesn’t need the burden of counterproductive regulation. Hopefully, a confirmation of Tenenbaum will provide the agency with momentum to move forward with implementation and clarification of this misguided law. Andrew Langer is president of the Institute for Liberty.

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