My response to Representative Schakowsky

As I mentioned two Fridays ago, I received a letter from Jan Schakowsky, representative from Illinois. It wasn’t pleasant to say the least and is reprinted below. As many others suggested, the letter was intended to intimidate me and prevent me from exercising my right to free speech with respect to my protests against the CPSIA law. As far as can be determined, this letter is the only letter ever written by a legislator to a private individual regarding their activism in opposition to the CPSIA law. A well placed source suggests I’m being targeted as the focal point of a negative PR campaign. Whether this is true or not is yet to be determined but in any event, the correspondence merited a response if for no other purpose than to correct its inaccuracies. My response is reprinted following Schakowsky’s letter to me.

Representative Schakowsky’s writes:

February 12, 2009

Dear Ms. Fasanella:
It has come to my attention that, as author of the websites “Fashion-Incubator” and “National Bankruptcy Day,” you have used an illustration of a tombstone to mark the day on which certain provisions of the Consumer Product Safety Improvement Act went into effect.

I agree that the Consumer Product Safety Commission, under the leadership of Chair Nancy Nord, has not implemented the law in such a way that provided guidance and answers to business owners in a timely fashon. However, I am outraged and deeply offended that you have chosen to mark February 10th with such irreverence.

The Consumer Product Safety Improvement Act was passed because there are children who have been injured and killed by dangerous products. These are children who were loved by their families but who now lie under actual tombstones. Let me give you some of their names:

  • Danny – at sixteen months, he was strangled when the top rail of his poorly designed, untested portable crib collapsed around his neck. Danny is one of seventeen babies who died from this particular design.
  • Kenny – on Thanksgiving Day 2005, Kenny died in excruciating pain after swallowing tiny magnets that had fallen out of his older siblings’ toys. The toys were sold, even knowing that the magnets fall out and the extreme damage – or in Kenny’s case, death – that can result when they are swallowed.
  • Jamell – died after swallowing a charm that came free with children’s shoes and was 99% lead content.
  • Liam – who was caught and suffocated in the gap that formed between his crib rail and mattress when the hardware failed.

All of those deaths and many more could have been prevented if a law like the Consumer Product Safety Improvement Act had been in place. Out of respect for those children and their families, I hope you will remove all images of tombstones from your sites, tone down your rhetoric, and work to protect children’s lives by focusing on product safety.

Sincerely,

Jan Schakowsky
Member of Congress
Email

My response to Representative Schakowsky:
February 24, 2009
Ms Jan Schakowsky
2367 Rayburn House Office Building
Washington, DC 20515

Dear Representative Schakowsky,

I am writing in reply to your letter dated February 12, 2009 in which you criticized pages on my websites at www.nationalbankruptcyday.com [cit] and www.fashion-incubator.com[cit]. These pages on my sites relate to implementation of the Consumer Product Safety Improvement Act, and the design you objected to expressed my view that the retroactive effect of the new lead and phthalate standards under the CPSIA will kill many small businesses. My main business is consulting to small apparel manufacturers. I care deeply about my clients and their businesses. These hard working Americans have no record of harming children with their products. The ill effects of the CPSIA on small apparel manufacturers and retailers will harm our country without making any child safer. Your chastisement of this point of view has only amplified my estrangement from some of the liberal, “consumer protection” groups that I respected and supported.

The debate over the CPSIA has long featured misuse of child injuries data by consumer advocates to justify the overreaching CPSIA. The enduring sorrows of these families should not be exploited callously for political gain. By overstating and distorting the relationship between the tragedies experienced by these families and the new law, your letter exemplifies the myriad inappropriate arguments in support of the CPSIA.

In your letter, you state that “[t]he Consumer Product Safety Improvement Act was passed because there are children who have been injured and killed by dangerous products” and provide four examples of deaths involving children’s products as an illustration. Your letter continues: “All of these deaths and many more could have been prevented if a law like the Consumer Product Safety Improvement Act had been in place.” Sadly, this is untrue and a critical question in the debate over this law. You have argued that this draconian law was needed to fill a regulatory gap to save these children. However, as the CPSIA could not have been effective to change any of these sad outcomes, how can such a dramatic, over-arching and exceedingly costly law be justified? In this case, it cannot.

Your cited examples do not tell the whole story:

  • Your First Example: Danny, strangled by the top rail of his crib.
    Danny and seven other children were lost due to this product defect. The CPSC implemented a recall of Danny’s crib in 1993 and similar models were recalled over the next four years, primarily during the chairmanship of Anne Brown [cit/cit] . In cooperation with the JPMA, the CPSC developed voluntary standards for cribs that eliminated this product design flaw and today virtually all cribs sold in the United States meet these standards. None of this activity required any aspect of the CPSIA. Prior to the passage of the CPSIA, the CPSC had ample authority under the Federal Hazardous Substances Act and Consumer Product Safety Act to implement mandatory regulations but chose not to do so. In fact, both Acts empower the Commission to rely on voluntary standards if such standards would adequately prevent a risk of injury and would be substantially complied with. The new crib standards to be promulgated not later than August 2016 under the CPSIA simply makes mandatory what the CPSC had the authority to implement since 1970.
  • Your Second Example: Kenny, died after swallowing small magnets that had fallen out of toys.
    Kenny’s death was one of the first identified cases indicating a possible problem with multiple magnets. The CPSC implemented a recall of the product involved, as well as many other similar products, some of which contained hazardous magnets and some of which did not contain hazardous magnets [cit] . In light of the discovery of this new hazard, the ASTM F963-07 standard was updated to establish criteria for use of magnets in toys. As the hazard was unknown at the time of this accident, the CPSIA (had it been law at the time) would have had no impact on this child’s safety. As was fitting, the CPSC acted under prior legislative authority to remediate the problem upon discovery.
  • Your Third Example: Jarnell, died after swallowing a lead charm that came free with children’s shoes.
    Lead in children’s products that can cause injury has been banned since approximately 1970. In February 2005, after recalling a number of items of children’s jewelry that presented such a hazard, the Commission issued a policy statement that set forth the criteria for evaluating the hazards associated with such jewelry. Subsequently, in January 2007, the Commission commenced a rulemaking proceeding to formally define children’s jewelry as a banned hazardous substance. In March 2008, five months before the passage of the CPSIA, the manufacturer paid a $1,000,000 civil penalty to resolve the Commission’s allegations that it violated the law [cit]. As far as can be determined, the January 2007 rulemaking proceeding has been tabled in light of the CPSIA which mandates specific levels of lead in children’s jewelry. It is clear, however, that the CPSIA was not necessary to regulate leaden children’s jewelry and in fact the rulemaking might have been completed already had Congress not intervened. As a result, it can be argued that the CPSIA actually delayed implementation of rules on leaden jewelry.
  • Your Fourth Example: Liam, who suffocated in his crib when its hardware failed.
    Crib hardware has been an issue for 30 years at CPSC and is largely related to hardware loosening or becoming lost over time, especially with used cribs [cit/cit]. It is notable that the CPSIA does not address many of crib hardware issues other than to restrict the sale of used cribs that fail to comply with to-be-adopted mandatory standards (another retroactive standard). In fact, under the old FHSA and CPSA, the CPSC had the authority to address crib hardware issues that constituted product defects (see the first example) by recalling affected cribs and amending its existing crib rules if necessary to address hardware issues. Nothing in the CPSIA would have addressed the issues that led to Liam’s death, nor does the CPSIA confer authority on the agency to address hardware issues that did not exist prior to its passage.

Fundamentally, the issues underlying the four deaths you cite are not regulatory authority, but in fact resources (financial and personnel) and agency direction. The adequacy of prior legislation had nothing to do with these incidents and therefore the new law would not have remedied the above-referenced accidents. Blaming Acting Chairman Nancy Nord for the consequences of this absence of Congressional support is disingenuous.

On a personal note, I resent your implication that I am insensitive to children’s safety. The issue of children’s safety is not the sole possession of CPSIA supporters; there are many committed children’s advocates, mothers, teachers and counselors who adamantly oppose this law while still remaining very committed to safety. The vast majority of my manufacturers were compelled to enter the market for many of these reasons with products that exceed CPSIA standards. Unfortunately, today many of these same manufacturers are unable to locate contractors willing to take their work or even to acquire usual business insurance due to the fear of liability under the CPSIA. In an industry dominated by small firms (68% have fewer than 20 employees) the market chaos bodes poorly for consumers as well.

It is my sincere wish that the debate over the CPSIA can be conducted without twisting it into some sort of “good citizenship” test. The incontrovertible fact remains: CPSIA will not make children’s products safer but it will make them scarcer and more expensive. The law fails to incorporate concepts of risk assessment and will have the unintended consequence of devastating the business community and employment in this challenging economic environment.

We can do better than the CPSIA to protect our children. I would welcome a further constructive dialogue on how we can best achieve this goal for our nation.

Sincerely,

Kathleen Fasanella
www.fashion-incubator.com
www.nationalbankruptcyday.com

What didn’t make the final cut was this passage:

My delay in responding to your letter is due to indecision and mourning. Indecision wrought by my perceived futility of writing a response that will not be read anymore than the content of our continuing objections to CPSIA has been. As a life long liberal activist, I am grieving the loss of my faith in being forced to admit that the activist groups to which I’ve belonged, do not look beyond the rhetoric to examine root causes of our social afflictions.

I remain grieved that CPSIA has pitted activists against each other. I resent the polarization of well meaning but misinformed activists on both sides; reducing the controversy to simplistic descriptions of safety versus profits, right versus left, China versus domestic, and large enterprises versus small ones. It has simply become intolerable to me, not that I haven’t written of it many times before now.

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