Friday Flights

A flurry of stories spotted while flying around this morning's reading.

Discriminating: The Trinity Cross of the Order of Trinity, a cross-shaped medal of honor established by Queen Elizabeth, has been ruled unlawful because it "discriminates against non-Christians".

"A review of the British honours system by the Commons Public Administration Select Committee in 2004 recommended reducing the number of decorations from twelve to four, with the new proposed titles having no reference to the Cross or Christian saints."

Crawling: Unseasonal rains are pushing poisonous spiders as large as a man's hand into the neighboring town of Bowen, Australia. The eastern tarantula, with a leg span of 16cm (6.3in) (!), "...are also known as whistling or barking spiders for the hissing noise they emit when they are disturbed or aggravated at close range". I can only stand in awe of the unflappable Aussie attitude in the face of such arachnid nightmares:

Asked what he would do with the giant spider he caught this week, Mr Geiszler said: “I think I’m going to mount this one in acrylic to show people how big it is. It’ll make a great paperweight.”

Stultifying: CPSIA update: Despite earlier assurances to the contrary, it seems garage sales do officially fall under the over-reaching Consumer Product Safety Improvement Act. You are a retailer as far as the US Consumer Product Safety Commission is concerned.

"Maybe you didn’t really care about the law before because it was only putting small retailers and work at home moms out of business. Hopefully you will care about it now that you can be slapped with a $100,000 fine for selling your kids’ old books at a yard sale."

Clarifying: Dozens of funny signs from around the world. It's hard to pick a favorite, but this one's regrettably missing punctuation kept me chuckling for a while (with this one a strong runner-up):

CPSIA Update: Video Of Malcolm Smith "Illegal" Bike Sale

A follow-up to our post last week on the CPSIA protest held at motorcycle maverick Malcom Smith's motorbike shop.

As we've been reporting, carelessly worded legislation in reaction to revelations of high contents of lead in various children's toys resulted in the Consumer Product Safety Improvement Act of 2008, signed into law by President Bush. This well-intentioned Act of Congress became effective in February of this year, and has unintentionally plunged many industries into economic turmoil due to the blanket restrictions placed upon selling **anything** to children under the age of 12. Incredibly, children's motorbikes are subject to the ban, although hopefully not for long.

Senator Tom Self Revs Up Motorbike Fans To Hit The Kill Switch On CPSIA

Kentucky frontiersman Daniel Boone once joked, "I have never been lost, but I will admit to being confused for several weeks."

As part of his ongoing efforts to kickstart more public awareness about the unintended economic consequences of the congressional confusion that led to the Consumer Product Safety Improvement Act (CPSIA), Missouri State Senator Tom Self gave a talk to the race enthusiasts at the Daniel Boone Motocross track last Sunday afternoon in London, Kentucky. Senator Self urged the crowd to get the US Congress to become at least as honest as Daniel Boone in recognizing the disastrous effects the well-intentioned CPSIA law has been having on the motorcycle industry, where conditions are reaching the friction point:

“Amateur racing right now, folks, is in the balance,” Rep. Tom Self said to a crowd of motocross riders.

“When people hear about this, they either think of one of two things. Either that it’s not true because it’s ridiculous, or it is true and there must be some simple fix. ... The problem is it is true ... and it could literally take an act of congress to change it.”
Self is talking about the Consumer Product Safety Improvement Act that was passed by the U.S. Congress in August and went into effect in February. The act limits the lead content in children’s toys — everything from infant’s toys, to books, and for Self, and most alarmingly for motocross enthusiasts, motorcycles. The act banned the sale of small 50cc and 65cc motorbikes that are only big enough for use by children because they contain lead. This leaves somewhere between one to two million bikes on inventory across the country that can’t be sold, according to Self. It’s not that the congressional act is completely a bad thing in Self’s mind — it does protect small children, particularly infants, from ingesting lead from toys — it’s that the act oversteps its effectiveness.

“What the government needs to concentrate on more is, if they’ve got that kind of situation(lead in toys), deal with that situation and don’t go broading out just for the sake of trying to overprotect,” Self said. “So many times government, again well intentioned, tries to work on something, but how it works on paper and practically are two completely different things.”

The act bans toys, clothes, books — any product used by children — that might contain lead in them for fear that the children could ingest the lead by putting the product in their mouths, or by handling the product and then putting their hands in their mouths. Self says it is ridiculous to assume that small children would somehow ingest lead from playing with a motorcycle.
...
Banning the children’s bikes also means replacement parts will stop being made, which Self says, leads to bikes that are dangerously under-kept or simply inoperable. “The concerning part of that is you’ve got kids that have been riding for a while, and their bike is not available,” Self said. “And, Lord willing, this won’t happen, but they are going to be awfully tempted to climb on a bike that is too big for them. And then you’ve got a real problem.”

Self’s appearance near London was his last of a 10-day tour that took him to Illinois, Indiana and to St. Louis in his home state [of Missouri], where he spoke to a crowd of 50,000 people at the Supercross ride. The tour was about getting the word out, Self said. Although the act has already been passed, and there is an uphill battle getting the law changed, Self told the crowd of motocross riders and their families that if they got active and vocal, things could change. But, Self said, that’s going to take everyone in the motocross community. “If we don’t buck up and get serious about this thing, we are all going to be playing Mumbly Peg and chess in a year,” Self said to the motocross riders.

“It’s that simple. It’s your choice. In motocross there’s a saying, ‘You’ve got two choices. You can go big or go home.’ Kids you want to go big, or do you want to go home?” The littlest motocross riders in the crowd all let out a, “Go big.”

A sign of immaturity in children is when they fail to see the consequences of their actions; without a belief in the value of seeing the big picture, they would constantly snack on chocolate bars and coca-cola instead of fruits, vegetables and juice, they would stay up "past their bedtime" at the expense of a good night's sleep and being refreshed for the next day, they would simply jump on a motorbike and ride instead of summoning the discipline to first learn about safety and maintenance, as well as the honesty required in understanding how to ride within one's limits.

Sometimes I get the impression that the average kid who spends time in the great outdoors has more maturity, common sense and appreciation for the broad horizon of life's Big Picture than does the average members of Congress, who don't even read the bills they sign into law.

CPSIA Update: Gaming The System Instead Of Helping Toy Manufacturers

Rick Woldenberg is part of the team organizing the Amend The CPSIA rally scheduled for April 1st in Washington, DC. So far several members of Congress have agreed to participate in the attempt to raise national awareness of the unintended collateral damage that the new consumer protection legislation known as CPSIA (Consumer Product Safety Improvement Act) has brought to small businesses already suffering from the current shaky economy.

Rick Woldenberg notes this morning, however, that to date the five Congressional Representatives (Joe Barton, Marsha Blackburn, Phil Gingrey, Cliff Stearns, Ed Whitfield), the single Senator (Jim DeMint) and one ex-Governor (Jim Engler) who have agreed to attend the rally in some capacity... are all Republicans. No Democrats have agreed to participate.

In fact, a Democrat member of Congress who wanted to attend, confided to Rick Woldenberg that they were "told in no uncertain terms by "leadership" that an appearance would not be permitted."

Unfortunately, what's going on is that there is a major turf war underway, and we are caught in the middle. The CPSIA is being claimed as a hard-fought and emblematic achievement of the Democratic Party leadership and it thus appears that opposition to the defective law is seen as opposition to these leaders. Hence, Democrats aren't allowed to speak publicly with common sense on the CPSIA - they have to tow the Party line of infallibility, regardless of how strained it is. Any Democratic member of Congress daring to defy Party leadership by acknowledging the flaws in the law and calling for fixes, risks isolation or other punishments.

The CPSIA received overwhelming bi-partisan support last year when it was brought to a vote in both Congress and the Senate; 89 Senators voted in favor, the forementioned Jim DeMint being one of the three "no" votes. In the House of Representatives, only Ron Paul voted against the bill, with a grand total of 424 members voting in favor, including all five Representatives scheduled to make an appearance at the upcoming rally. They are presumably willing to admit they made a terrible mistake, no matter how civic-minded they were at the time of their vote. The goodness of the original intentions is no guarantee against obtaining bad results from the consequences those actions may bring.

Taking the effort to perceive, and to measure, the results of our good intentions is a sign of our good faith, of just how good the initial intentions were. If the attitude of the Democratic Party leadership is that it refuses to even acknowledge that good intentions can actually lead to bad results, what does that say about the sincerity of the motivation behind the initial intentions?

UPDATE: To my embarassment, I was in such a rush to post this earlier that I forgot to give proper credit to Overlawyered.com for the update on the rally.

Good News About Bad News: CPSIA Is Officially News

I think this qualifies as good news about the preposterous CPSIA (Consumer Product Safety Inspection Act):

It is now officially News! Because it's finally been covered by the Washington Post. Maybe with this extra attention, extra pressure can be brought to bear on getting some necessary changes made to the vaguely worded legal anguage that categorizes old books as poisonous to 12-year old children, especially with the upcoming April 1st "Amend the CPSIA" rally being held in Washington DC... an event unmentioned in the Washington Post article, Book Dealers Told To Get The Lead Out:

...
Legislation passed by Congress last August in response to fears of lead-tainted toys imported from China went into effect last month. Consumer groups and safety advocates have praised it for its far-reaching protections. But libraries and book resellers such as Goodwill are worried about one small part of the law: a ban on distributing children's books printed before 1985.
...
The legislation, which passed with strong bipartisan support, was a reaction to lead's being discovered on and in thousands of imported toys, mostly from China, in 2007. It restricts lead content in products designed for children age 12 and younger to 600 parts per million by weight; the threshold drops to 300 parts per million in August of this year. Items as varied as bikes and jewelry are affected.

So are books such as "Madeleine," "Goodnight Moon" and "Corduroy."

Lead was phased out of printer's ink following the 1978 paint ban; lacking a firm date for when it effectively disappeared, the safety commission has ruled that the toxic metal might be found in any book printed before 1985.
...
Implementation of the new law has libraries and secondhand bookstores reeling. Although they could pay to have each old book tested, the cost ($300 to $600 a book, according to the American Library Association) makes that impractical.
...
The commission says that it is understaffed and overtaxed by the new areas it must police.
"The agency is really stretched to the limit as to what we are doing about this new law," [Joe Martyak, a spokesman for the commission and the chief of staff to its acting chairwoman, Nancy Nord] said. But he said that the agency has been given very little leeway. He cited new restrictions on children's bikes that have also caused a backlash: There was enough lead in the tire valves to push them over the enforcement limit, even though there might not be lead anywhere else in the bike.

"Whether you consider that common sense or not, that's the way the law is written," he said.
...

The several dozen comments to date reflect the usual combination of disbelief and fury that tends to be exhibited when people first discover the existence of this needlessly nonsensical law.

From acesdc at 1:51 pm:

[H]ow is "children's book" defined? Does "The Hobbit" count? "Animal Farm"?
The Bible? I read Jim Bishop's "The Day Kennedy Was Shot" at 10--is that good enough?

alert4jsw at 1:09:54 PM wrote:

This is absolutely ridiculous. What would be wrong with putting a sticker - a simple 1/2 inch dot of a specific color would suffice - on the covers of books published before 1985 to alert parents that they might contain this minuscule amount of lead, and to be extra careful to see that their kids aren't eating them? The idea of requiring a chemical analysis that would cost several hundred dollars and take weeks, if not months, to complete in order to be able to sell a book for 50 cents is simply crazy. The bike rule is even more ridiculous. How many times has anyone, anywhere, ever seen a kid sucking on a tire valve? While lead may be a problem, we should probably fund some studies to see what it is that the people who come up with these nutty ideas were exposed to as a kid to make them this clueless.

The article covers a lot of ground. I think I'm being a little churlish in my opening paragraphs; the Post has covered CPSIA before, concerning the new law's damage to the toy industry. I just don't understand why this isn't being covered every day, since there's damage being done every day. Businesses are being hurt by arrogant congressmen, all in the name of good intentions.

[Thanks to Walter Olson at Overlawyered.com]

CPSIA: Malcolm Smith Riding To The Rescue Of Hard-Hit ATV Industry

CPSIA update: Riverside, California, where kids are wiser than Congressmen, saw an organized and advertised act of civil disobediance this week:

In defiance of the Consumer Product Safety Improvement Act of 2008 - or CPSIA - which prohibits the sale of youth motorcycles and ATVs deemed unhealthy for children under 12 due to supposed high-levels of lead content, motorcycle dealer Malcolm Smith will sell these banned vehicles as a sign of protest.

Retailer and off-road motorcycle legend Malcolm Smith sold three children's bikes, which, according to the letter of the new law, could cost him a grand total of $300,000 in fines:

"We're selling a few bikes, and only a few because I can only afford so many fines!" Malcolm Smith said with a laugh. "I'm going to have to ask the public to donate to pay them if they put me in jail."

In their attempt to reduce the possibility of children contracting lead poisoning from toys, Congressional wisdom seemed to have been running on empty since their CPSIA over-reaction became law this February. The vague wording of their new consumer protection law means that real children's vehicles such as motorbikes and snowmobiles can fall under the CPSIA's mercurial reach as well as toy versions of them, since they are all products manufactured for children aged 12 years and under.

As part of his protest, and as a revelation of how little contact the Washington ruling elite seems to have with much of anything out of the doors of Congress, let alone the outdoor off-road vehicle industry, Malcolm Smith points out how the law should be affecting the fishing industry:

As an example of how ridiculous he believes the new regulations to be, he pulled out a bag of lead split fishing sinkers that he purchased at a sporting goods store down the street from his shop. Anybody could go in and buy them, he said, and most of the time people use their teeth to clamp them down on the fishing line.

The tipping point that sparked Smith's high-profile protest seems to be the singular incident when he surprised a customer with the news of the CPSIA's existence:

“Not long ago, about a week ago, a woman came in and was going to buy a bike for her daughter so her whole family would be able to ride together in the desert,” Smith said. “And I said, ‘You can’t buy one.’ She could not believe it. “Then, I just had enough.”

... Smith figures he’s lost at least $5,000 in net profit since Feb. 10, on lost revenues of more than $30,000 for units and parts and riding gear that he couldn’t sell. The Motorcycle Industry Council estimates that the ban could cost the industry $1 billion this year, and Dealernews magazine estimates there is more than $100 million of unsold inventory sitting in dealer storage areas.

Public outrage has been muted because the public in general had been kept in the dark by a largely indifferent mainstream media. (Although that is slowly changing, as the effects grow too large and too far-reaching to continue to ignore.) Specialized media, however, has definitely not been asleep at the wheel in their reporting of the ongoing conflict between good intentions and common sense.

Fortunately, the attention of the specialized media has been sufficient to get Federal wheels turning in Congress and the Senate, to finally start addressing the CPSIA overkill:

The House Committee on Energy and Commerce will consider H.R. 1510, introduced by Rep. Denny Rehberg of Montana. The short bill amends the law to allow the CPSC to exempt dirtbikes, ATVs and snowmobiles — but only if the commission determines that it is not technologically feasible for the vehicles to comply with the lead limits due to necessary components.

More important, the bill strikes out the word “any” from a certain passage of the law. This use of the word, the CPSC has argued, prevents it from exempting powersports vehicles.

The second bill, S. 608, introduced by Sen. Jon Tester (also of Montana), will be considered by the Senate Committee on Science, Commerce and Transportation. The legislation exempts vehicles intended primarily for children ages 7 and up. Much broader than the House bill, it also excludes all pre-owned children’s products and repairs made to children’s products

If this post is your first introduction to this unbeliavable story, may I direct you to the best resource for continuing coverage of the CPSIA controversy: Walter Olson's reporting at Overlawyered.com. (A tip of the helmet to Overlawyered for many of the links used in this post.)

For a quick overview of the story so far, I highly recommend the interview conducted with both Walter Olson and attorney Gary Wolensky earlier this week by radio talk show host Hugh Hewitt. Audio of the interview can be heard here, my transcripts are here and here.

"That’s A CPSIA Toy, We Can’t Sell It To You", Says Store Clerk To Customer

Continuing my transcript of Hugh Hewitt's radio program from earlier this evening, where he spent the first hour of his show discussing the economic implications of the disgraceful CPSIA (Consumer Product Safety Improvement Act) with writer/scholar/blogger Walter Olson and lawyer Gary Wolensky.

The audio of Hugh's show is here. Part one of my transcript is here. Now part two [corrections welcome]:

[20:58] Hugh Hewitt: Gary Wolensky, the CPSC, the Consumer Products Safety Commission, yesterday told libraries they had to take all old library books off their shelves, and today they reversed themselves. This is an agency that is melting down.

Gary Wolensky: That’s exactly right. This demonstrates the problem of giving, of conflicting advice to businesses, and this has been going on since August. Fact of the matter is, Wolfson [Scott Wolfson, spokesman for the Consumer Product Safety Commission] came out yesterday and said, “Pull all the books, children’s books manufactured before 1986, off of the shelves.” And there’s no reason for that. And then the CPSC reversed themselves today.

HH: In the meantime, every librarian in the country is walking around wondering, when will the plaintiffs lawyer decide, there was a predicate for doing this, because the CPSC cannot immunize them unless they pass an exemption. And if they’re selling those books… you know, a lot of those libraries do the ten cent book giveaways sort of thing, I begin to worry if I’m a school district, I go out and get cautious because, again, private lawyers can bring… that’s what I want to drive home right now. The big danger to Malcolm Smith, and to everybody, is not the Consumer Products Safety Commission going to send out some lawyer from Washington DC, it’s some desperate lawyer who hasn’t worked in a while, who decides, I’ll take a swing at that, I’ll get my attorney’s fees.

GW: You’re going to have a cottage industry, no question that these industries will need an exemption. But let me just say one thing to all the librarians out there around the country. Don’t do anything. Don’t pull your books, your kids books, off the shelves, don’t quarantine them, don’t burn them, just leave them where they are.

HH: I got another e-mail today. From a consumer who went to Toys ‘R Us. Major retailer. Now, I’m not the kind of guy who goes in to Toys ‘R Us, I don’t have to buy any toys for kids. But, they had gone in to buy a present for a nephew, and they tried to take something off the shelf, and were told by a Toys ‘R Us employee, “we can’t sell you that, leave it on the shelf because we’ve got bare shelves; that’s a CPSIA toy, we can’t sell it to you.” Is that urban myth or is that happening?

GW: That is happening. For anyone who does go in to Toys ‘R Us to buy gifts for kids, they will see that in just about any Toys ‘R Us store, that there are shelves that are empty, or half empty, and that is directly related to this Act.
…
[commercial break]

[28:07] HH: [taking a call] Steve in Tuscon, welcome to the program, you’re on the Hugh Hewitt show.

Caller: Hey Hugh. … I work for a privately held company, so I can’t mention the name on the radio, but we’re the world’s largest wholesaler of library books. To school libraries, and public libraries. We represent every large publisher… so, this has created quite a problem, especially for a company like ours, the inventory that we hold, we have to start looking at the huge, millions and millions of titles and decide which ones schools may not order, if this continues. And the loss of the inventory there. Also, your comment about, it is true: “hey libraries, you’ve got to take these books off the shelf”, and not one library that we know of even took that seriously. It was just the dumbest thing they’ve ever heard. I mean, how are you going to go through your whole library.

HH: I know! It’s an insane law.

Caller: And one of my customers pointed out to me, yes this is costing a lot of money, from the manufacturers’ point of view, of toys, books, whatever; but think of the manpower dollars it would take up if we had to start doing some of these stupid things.

HH: Gary Wolensky? Non-compliance is actually… you can’t recommend non-compliance but it sure is rational in some instances.

GW: It is. What you need, what your company needs, what the industry needs, is to try their darndest to get an exemption. Short of that, then the way the law reads right now, is that you have to look and figure out which books are written for kids under thirteen years of age, and then you need to make sure [laughter], that it complies with the lead content and lead paint standards.
…
HH: One more call on this. Teresa, also in Tuscon. Hi Teresa…

Caller: Hi. As an adult, can I walk in to Toys ‘R Us or one of these stores and buy one of these toys for myself, let’s just say that I collect toys or I like toys, as an adult.

GW: The answer to that, is no. Because, even if you tell somebody at Toys ‘R Us that the toy is for you, they’re never going to believe it, and if the toy is not off the shelf, they’re just going to say that they can’t sell these toys.
…

By the end of the show, both Hugh and his in-studio guest Gary Wolensky were laughing and sounding like they were having a bit of trouble suppressing a collective case of the giggles. Who can blame them, the subject is so idiotic that, when the story is laid out in detail, it almost defies belief. Sometimes truth is not only stranger than fiction, it's also much crueler.

[thanks to the watchful Overlawyered.com for many of the links]

CPSIA: "It's Hard To Remember Anything In The Last 20 Years As Crazy As This"

CPSIA update: Hugh Hewitt had a riveting first hour on his radio talk show tonight, as he continued his significant coverage of the economic carnage being wrought by the legal insanity known as the Consumer Product Safety Improvement Act, which was let loose upon an unsuspecting America this past February. Hundreds of product lines have been unduly affected by this monstrosity born of good intentions, who-knows-how-many millions (or has it reached billions..?) of dollars worth of inventories are being needlessly destroyed, businesses are going out of business and there's no relief in sight.

Hugh Hewitt has been far and away the most responsive journalist in spreading awareness of this unbelievable economic scourge; as he himself points out later in the interview, he's even telling other journalists about CPSIA's infernal existence. For his program this evening Hugh interviewed a guest he's had on before on this subject, attorney Gary Wolensky, who represents the besieged motor bike industry, and the Manhattan Institute's indefatigable Walter Olson. It was a great discussion. Well, "great" is a relative term in this case, as the story being discussed is a preposterous example of the complete indifference that Congressional elites have for working class Americans.

The audio is here. It doesn't seem like Hugh is going to provide a transcript as he sometimes does with important interviews, so as my small contribution to keeping people informed on this story, I've quickly put one together myself. Here's part one [corrections welcome]:

[11:00] HH: ...We’re arguing about $165 million in bonuses to AIG, what is your best estimate about what the CPSIA has cost America?

Walter Olson: It’s hard to get a peg on it. Certainly billions of dollars. And it’s hard to measure what happens when a small business has to close down. What happens to that family, what happens to the employees. But, we know that in just one industry, the mini-cycle/dirt-bike industry, they’re talking about a billion dollars of damage this year. That’s just one of many industries affected by this.

HH: Now Walter Olson, we’ve talked in the past before, we know that sometimes laws lead to extraordinary hardships, wrongfully. In this instance, everyone knows what’s going on, but do you see any signs in Congress that they are going to move to save these billions of dollars, these tens of thousands of jobs, which they did not intend, at least they say they did not intend to kill.

WO: It’s very discouraging in a way, because even though you’ve now got a lot of talk going from people on the Republican side, even John Dingell, one of the Democrats is making some of the right noises, the ones in control are Henry Waxman and his counterparts on the Democratic side of the Senate, they are stonewalling, they are saying they will not even have hearings let alone amend the law.

HH: Gary Wolensky, Walter Olson mentioned ATVs, off-road vehicles, all-terrain vehicles; on this show on Friday, Chairwoman Nord of the Consumer Products Safety Commission told me there was going to be a hearing this week on this and I urged them to just pass an exemption regardless of what the law said. Has that hearing happened?

Gary Wolensky: The hearing has not happened up to now Hugh, and I have not heard that in fact there is going to be a hearing this week.

HH: Do you have… do you think she was shining me on? Did you hear that interview?

GW: I heard the interview. I think she’s a very nice person, unfortunately she’s irrelevant, because her hands are tied and she can’t get anything done. And she won’t go adversarial, which she can do but won’t.

HH: Walter Olson, my urging of the chairwoman on Friday was, they just instruct their staff, to pass exemptions out left and right, because this is a nutty law that is endangering children. Their mission is to protect consumers, but if you put kids on adult bikes they get injured, some of them get killed. Do you see any sign within the CPSC that their staff will do whatever it takes to stop this outrage from happening?

WO: Well, they are being driven by their legal staff on this, because I think that legal staff is telling them that the statutes are written to tie their hands, and they might lose a lawsuit if they ignore the crazy language that Congress put in.

HH: But Walter I was a General Counsellor to two Federal agencies, I know what it’s like to see crazy language, but I also know that I did what the boss said; if the boss came out and said “we’re not going to do stupid things, we’re going to give exemptions”, they have to go that way. If media generated some demand on the CPSC, do you think that would matter?

WO: [sigh] I’m fairly skeptic it would not have, because… remember, they tried to do a common-sensical thing on the inventories, the stuff with the plastic, and they got struck down in court. Apparently they were trying to soften the blow on some of the crazy things in the law, but they pointed to specific language, that “not any lead exposure”, so the mini-bike people, the ball-point pen people, who knows who else who can’t take the lead out of their products without losing the product, who knows what’s going to happen to them.

HH: Gary Wolensky, today a motorcyclist announced that he was simply going to sell the ATVs. “Screw ‘em”. “Tell them to come prosecute me.” What’s your reaction to such obvious civil disobediance? I’ll get his name off the printer at the break.

GW: I saw that. As a lawyer, giving my best legal advice, I certainly would not tell anyone to break the law.

HH: Do you think they’ll prosecute him?

GW: I don’t think they are going to prosecute him.

HH: Walter Olson, what do you think about that? Have you read that story yet?

WO: I’ve read the story, I think it’s going to rev up the press’ interest in this. He’s a very well-known person…

HH: His name is Malcolm Smith…

WO: Malcolm Smith, very famous in that sport.. it could be like H.L. Mencken on Boston Common, remember when he sold the banned book and he became a cause celebre. In that case I think they arrested him but nothing happened to him. In this case… you know, they’re not going to send someone to arrest him, it’s… it’s not as if a public citizen is going to do a citizen’s arrest, I don’t **think** anything will happen.

HH: What I worry about, Gary Wolensky, is that since there’s a private plaintiff’s action attached in the law, some idiot plaintiffs lawyer will go and lay a suit against Malcolm Smith Motorsports and that that lawyer will get a summary judgment.

GW: Well, I can see it coming two ways. Number one, a private plaintiff’s attorney, also, a state’s Attorney General, our state Attorney General sees something like the statement that you’ve just referred to, and he can start an injuction proceeding. I can also see a plaintiff’s attorney, getting a motion for summary judgment, and also compulsatory damages.

HH; Malcolm Smith, God love you. Malcolm Smith Motorsports located on Indiana avenue in Riverside, you can read about this on Motorcycle-usa.com. Walter Olson, what’s the interest of the readers of your blog? Obviously, you’ve covered litigation abuse for a decade now… you’ve been doing this for 17, 18 years now, and this really one of the most outrageous episodes in the law that I’ve ever covered; what’s the interest at Overlawyered.com?

WO: I happened onto it. I have to say, I neglected it last year when they were actually passing this darn thing, but as I began seeing the stories, I realized that in some ways this is the craziest legislation that I will get a chance to write about… [chuckles]

HH: Yes!!

WO: … in this decade. And it is so full of interest, there are so many different, innocent people out there, nice people, the sort of people you would want to be making things for your kids, but who are having their lives turned upside down by this. I can’t resist the human interest. Secondly, simply as a defiance of cost-benefit analysis and common sense, it’s hard for me to remember anything in the last twenty years that was as crazy as this.

HH: Now I also want to press you, Walter, as we’re both journalists, and we’re both lawyers – Mr. Walensky does not have to share the shame of being a journalist – I find mainstream media abysmally incompetent here. Now I’ve asked a number of my pals who’ve called in, guys I like a lot, like [Newsweek's] Howard Fineman, [the Washington Post's] E.J. Dionne, if they’ve even heard of the law. And they haven’t heard of the law. Mark Steyn has, by the way. Are you as astonished as I am that nobody cares about this?

WO: I am astonished, and I’ve even written about this, why is it the more you lead the press to this the more totally out to lunch they are on this issue. The east coast, the New York Times and so forth, they just have no clue what is going on out there, almost none of the good journalism has come out of Washington on this, even though that’s where the Agency is, that’s where most of the legal knowledge is and so forth. Instead, the AP is finally doing something good, after months and months, it’s coming out of Jefferson City Missouri, because they’ve got one good reporter there, who's actually figured out it’s a major issue.

HH: Last question for Walter Olson… if President Obama came out, and said, “I am going to fix this”, do you think that would be a huge political plus for him?

WO: Well I think it would be a huge political plus, because as soon as people learned about the issue, and of course you’ve got librarians and book people and so forth all suffering under the law, there would be overwhelmingly on his side. In fact all he would have to do is stare down Henry Waxman, which they’ll tell you in Washington is impossible. I don’t actually think it would be impossible, at all. Barack Obama, you can do it.

HH: I don’t know why Henry Waxman wants to dis-employ so many people....

[commercial break]

[Part two of the transcript continues here]

Consumer Product Safety Chairman On CPSIA: "There Are Some Real Problems Here"

The economic scourge caused by the CPSIA continues to destroy billions of dollars worth of inventories in this recessionary ecomony, and the US Congress doesn't appear in any hurry to amend any of the unintended consequences of their Consumer Product Safety Improvement Act. They seem unable to admit they have made a mistake, and the final cost for this vanity is reaching an astonishing level.

Radio talk show host Hugh Hewitt continues to do an excellent job of covering this appalling story, in fact he's one of the only media voices giving this economic plague any regular attention. Yesterday Hugh Hewitt interviewed Nancy Nord, Chairman of the Consumer Products Safety Commission, looking for some answers to the obvious question: What is being done to fix this problem?

The good news: the commission knows about the economic damage the CPSIA is causing.
The bad news: there doesn't seem to be anything they can do to stop the damage from continuing.

From the transcript:

...
Hugh Hewitt: Congress and the commission are now sort of pointing fingers at each other. I’ve been forwarded e-mails from Senator Durbin’s office to some of the impacted business out there saying it’s up to you guys to grant exemptions. And I’ve read some statements from commission staff saying we don’t have the authority to grant exemptions. You know, so the finger pointing goes on, and the businesses are burning down. What’s happening?

Nancy Nord: Well, it really is something that we’re very concerned about. Congress passed this very well-intended piece of legislation in response to the recalls of 2007-2008. They did it very quickly, and perhaps did not give sufficient thought to some of the provisions. You raised the exemption provision, and that is a very, very good example of what I’m talking about. Although the legislation indicates that we can give exemptions from the lead provisions of the law, in certain circumstances, those circumstances are very, very limited. And Congress was very precise in telling us when we could give exemptions, and when we could not. And unfortunately, we are now seeing many, many more products that have trace amounts of lead, products that really are not going to harm consumers at all. They’re not unsafe. But they don’t meet the very, very strict standards of the law. And the way the law is written, our hands are tied. So Congress really needs to find, to help us find some wiggle room here, if you will. We’re very hard-pressed to find exclusions from this new law.

HH: Now if I were your general counsel, and I have been the general counsel of two federal agencies, OPM and NEH, I’d come in and I’d say to you, Madame Chairman, we’ve got to take a stand here, we’ve got to issue an exemption, for example, to all-terrain vehicles, regardless of the trace amounts of lead, because they’re dying, people are losing their jobs, hundreds of millions of dollars of inventory are lost, and let the chips fall. You’re not going to go to jail, I’m not going to go to jail, but these people are going to go out of business. How do you respond to that?

NN: Well, our job as a regulatory agency is to implement the law that Congress wrote as Congress wrote it. So that is what we need to do. You should be aware, I’m sure you probably are aware that we did try to take a reasonable approach with respect to implementing one of the provisions dealing with a substance called phthalates, which are used in plasticizers. It’s what makes a rubber ducky squeezable, if you will. And a federal district court overturned us and said no, our reading of the law was incorrect, that Congress really intended that everything in inventory, everything on store shelves, things sitting in container ships making their way to this country, they were all outlawed if they were not tested for phthalates.
...
HH: I’ve gotten a lot of e-mails, you probably have as well…from very small businesses, people who make a thousand dollars worth of products, or five thousand dollars worth of products. Now I’ve had big time lawyers on like Wolensky of Snell and Wilmer, and they represent sporting goods and all-terrain vehicles, and they can go argue the case to the commission. But these small timers, they’re just wiped out. Are you getting those e-mails as well?

NN: Well, of course we are. One of the problems with this law, and actually, I think one of the biggest problems with this law, is the fact that it basically is retroactive. It put in place a ban on lead in children’s products, and it applies not only to products manufactured after the effective date of February 10th, but it applies to all products sold in the United States after that date, which pulls in inventory, it pulls in products on store shelves, things that were deemed perfectly safe on February 9th, on February 10th, are deemed to be illegal. And that is perhaps not the best way to regulate...
...
The thing that I think you need to understand, and your listeners need to understand, is that the law has been pretty precise in what they have told us to do, and that is what we need to do. Our obligation as a regulatory agency is to implement the CPSIA.
...
Now as we have gone through this process, we have found that there are some real problems here. We have brought them to the attention of Congress. I would hope that we can work with Congress to solve these problems as quickly as we possibly can, because the last thing that we want to do, that I want to do, is to impose economic havoc on businesses that are really just trying to provide safe products to the consumers.

US Senators Making Up Their Own Reality To Justify CPSIA?

Senator Claire McCaskill (D-Missouri) interviewed on KSMU radio about the impending economic devastation unleashed through the enactment of the disastrous CPSIA (Consumer Product Safety Improvement Act):

“We’ve had a number of children die in our country last year because of lead on products that had been imported primarily from China. So, there was a new attempt to look at lead testing and in the process of trying to address the dangers of lead content in some products in this country, we inadvertently caught thrift store in this net,” McCaskill said.

Valerie from The Bookroom did some thorough fact-checking of the Senator's statements, to see just how bad the problem of lead poisoning has been. Her discovery:

There is no report of any child poisoned by children’s products in 2008...
[...W]as Senator McCaskill talking about 2007? No again. There is no report of any child poisoned by children’s products in 2007. In fact, lead poisoning from children’s toys, clothing, and books is unknown. It simply doesn’t happen...

Meanwhile this misbegotten legal steamroller continues to flatten the very kind of initiative that we all need right now more than ever, the optimistic spirit of "can-do" enterprise that does so much to define American exceptionalism, our neighbors' admirable trait of choosing hope in the face of despair. One by one, the lights are going out, from Hawaii....:

In Kailua, little Raven Mollison holds what's left of her mom's at-home business. "It's the last doll that my mom made so she gave it to me," she said.

Her mom Denise, ran a doll shop to pay for Raven's medical supplies. The eight-year-old has Russell Silver Syndrome, which stunts her growth.

"I'm very sad that she's shut it down out of business," said Raven.

But Denise says she has no choice. A new anti-lead law calls for safety tests she can't afford. "Parents and consumers are hesitant to purchase my products and truthfully I don't blame them. If I could provide the certification then everything would be fine but my hands are tied," said Mollison.

In response to critics who call the law a job-killer, CPSC [Consumer Product Safety Commission]has issued a stay of enforcement which puts testing requirements on hold for a year until it can work out a compromise. But business owners must still abide by the new lead limits.

"The snag here is they're saying 'don't test but follow the guidelines'. You can't be sure you're following the guidelines unless you test so it's a catch 22," said Mollison.

...to Arkansas:

A Kidd's Dream, located at Oak and Court streets, will close on Feb. 9, the day before the Consumer Product Safety Improvement Act goes into effect. Brenda Kidd and daughter Gayla Wade opened the business, a children's consignment shop, in February 2007.
...
Kidd said, "We will be held criminally and civilly responsible for anything sold that does not meet the new requirements."
...
Taunya Kidd, another daughter of Brenda Kidd, was helping her mother and sister last week at the store's going-out-of-business sale.
"The only ones it's not going to affect are the ones who were importing from China in the first place," she said. "Mattel can easily afford to test one (toy) from each lot. We kept waiting for them to make an exemption or an exception, but all they did was say 'you're not our primary target, but you still have to follow the law.'"
She added, "This is the first thing you see when you come downtown. I hate that it's going to be sitting empty."

...to Kansas:

Local Goodwill stores will no longer sell many children's clothes, toys and other items, citing liability concerns over new federal safety regulations that take effect today.
Painted toys and clothing with metal clasps or fasteners -- including blue jeans, coats and hooded jackets for children 12 and younger -- were pulled from store shelves Monday night, said Gayle Goetz, vice president of development for Goodwill Industries Easter Seals of Kansas.
...
Goodwill officials worry that fewer products will mean fewer sales, which will mean less money raised for people with disabilities and others the nonprofit group helps.
Right now, though, shoppers -- including many who see thrift stores as a way to stretch their dollars during hard economic times -- are likely to feel the most effect.
"There's a lot of people whose income has dropped, but their children keep growing," Goetz said. "So, 'Now I need another size of blue jeans, and I can't get them at Goodwill.' It's unfortunate."

Where does it end?

Mark Steyn On CPSIA: "Government By Insanity"

Mark Steyn was interviewed in the first hour of today's Hugh Hewitt radio show, primarily to get Mark's reaction to this week's political news. Hugh has been covering the legislated carnage courtesy of the Consumer Products Safety Improvement Act (CPSIA), and he raised the subject with the Columnist To The World:

MS: [...T]his safety thing has made every children's book printed before 1985 apparently a lethal weapon!

HH: Yes.

MS: It's illegal... if I happen to have a 1982 edition of Tom Sawyer lying around, it's illegal for me to sell that at my local rummage sale, because it'll kill the kid who reads it. This is rubbish! None of this stuff is needed... All of that gets in the way of the dynamic and productive part of the American economy.

HH: You know, Mark, it sideswiped the entire all-terrain vehicle industry, destroying a huge market segment where they would sell these vehicles to 12 and under, they can't do it now because of lead in the machines. It was not intended to do that, it just did it!

MS: Let me tell you something, I'm not going to pay any attention to that. In my little corner of New Hampshire, every 12-year old boy loves taking an ATV, loves riding it around up in the hills. And the idea that the lead in it is going to cause that kid to keel over, is preposterous. This is government by insanity...

How many businesses is this law crippling? Hugh posts an email he received as a result of the hour he devoted to CPSIA on his Monday program:

...I am a franchisee of a quick service hamburger chain sitting on $30,000 in obsolete inventory as a result of this act due to the phthalate content of our kids meal toys, which by the way had been deemed safe for years but have suddenly (first week of Feb 2009) and with no notice been determined to immediately be hazardous and non saleable. It’s a terrible blow to discard this inventory as I struggle to pay my bills in the middle of this recession.

After the Mark Steyn interview, Hugh took some listener calls, and heard from a pen manufacturer; the retailers that he sells to have apparently canceled all their fall back-to-school orders, because they are waiting to see what the long-term results of CPSIA will be. Unlike all-terrain vehicles, children may actually put pens (highlighter and otherwise) in their mouths...
How many small entrepreneurs is this law crushing? Can an outfit like Bugbitesplayfood afford to pay $10,000 for testing whether or not every component used in their hand-stitched ham sandwich is in compliance with CPSIA? What will be left of the handcraft industry if the law is left to stand? How many work-at-home mothers might have to find another way to earn an income... outside of the home, away from their kids?

If there's a silver lining to this legal monstrosity, it's the revelation of just how amazingly industrious a nation the United States has become. How many of us, for instance, were aware of the existence of an Irish Step Dance Apparel Industry?

[Hat tip to Overlawyered for the latest news of how CPSIA hurts the children's garment industry]

America Soon To Be Banning All Children's Books Published Before 1985..?

Are old children's books soon to become the latest black market item in the United States?

"I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage!..."

Yesterday I downloaded the latest PJM Political Podcast from Pajamas Media, as has become my habit, to listen to during my weekly Sunday hike through mountain trails. The show contained a stunning interview that stopped me in my forest tracks, I just couldn't believe what I was hearing.

Ed Driscoll was talking to Walter Olson about some unforeseen consequences to the Consumer Product Safety Improvement Act of 2008, and the upcoming destruction of millions (or is it billions?) of dollars of inventories that the new law requires... proving once again that good intentions are no guarantee of just results.

[To be clear: the above quote is not from the podcast, it is from a shocked observer of the results of the legislation, as related in Olson's article, "The New Book Banning" .]

In the first hour of his radio show today, Hugh Hewitt interviewed guest Gary Wolensky on this unintended war on thrift shops and libraries... will download and listen to that tomorrow.

UPDATE: From the Boston Pheonix, how the CPSIA will inadvertently affect libraries:

The CPSIA, intended to keep lead out of toys, may well also keep books out of libraries, says Emily Sheketoff, associate executive director of the American Library Association.

“We are very busy trying to come up with a way to make it not apply to libraries,” said Sheketoff. But unless she succeeds in lobbying Capitol Hill for an exemption, she believes libraries have two choices under the CPSIA: “Either they take all the children’s books off the shelves,” she says, “or they ban children from the library.”