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CPSC Commissioner Ann Northup on the devastation on small businesses that continues thanks to the Consumer Product Safety Improvements Act

Monday, November 16, 2009

HH: As you know, I cover the jobs story very, very closely on the Hugh Hewitt show, and I’ve been doing it for years. Part of that is government regulation that kills jobs, and part of that story is the Consumer Products Safety Improvement Act. I have covered it many, many times over the course of the last year. Full disclosure, two of my law partners do very little besides advise people on the CPSIA. But I’ve interviewed Commissioner Nancy Nord about it before, I’ve talked to experts in the field. It is a job killer. And joining me to talk about the status of the Consumer Products Safety Improvement Act before the CPSC, Consumer Product Safety Commission, is Commissioner Ann Northup, no stranger to the Hugh Hewitt Show. She was frequently a guest when she was a member of Congress. Commissioner Northup, welcome back, good to have you on.

AN: It’s nice to be with you.

HH: And thank you for being willing to serve on the CPSC as one of the Republican members. You weren’t in the Congress when the CPSIA was passed, Commissioner Northup.

AN: No, I wasn’t.

HH: What do you make of this law?

AN: I was just, and I just became a commissioner in August. And it is, I mean, a law with unintended consequences is what we’re looking at here. And that doesn’t mean there weren’t a few staffers that knew exactly what they were doing, but just about every member of Congress that I’ve talked to had no intention for this bill to be interpreted the way it’s being interpreted.

HH: Yeah, there is a lead editorial in today’s Washington Times about the decision the CPSC made on brass, and it was a 3-2 decision. You were in the minority with Commissioner Nord, you were outvoted 3-2. What is the effect of that decision last week, Commissioner Northup?

AN: Well, basically, that was the first vote since I joined the commission where we found that a product, brass, even though lead doesn’t leach out of it, that if a child rubs their hand on it, there’s less lead that comes out than what they would normally find in a child’s piece of candy. In fact, the Food and Drug Administration allows candy, children’s candy, to have more lead in it than the amount that could possibly be rubbed off, and yet basically, it decided that it still was illegal, it cannot be used in child’s products. So that means sort of all brass. But it goes beyond that. It means all the things where lead is in them, but they can’t be absorbed, or can’t be leached out, a child couldn’t suck on it and pull the lead out, still will be illegal.

HH: Yeah, Commissioner, did the commission have before it the impact on small businesses from this decision and similar decisions?

AN: You know, the other commissioners decided that there’s sort of a discussion about it, and they believed that we could not use a common sense determination of what any means. I would say a de minimus amount, amount that is so small it’s almost undetectable amount that is absolutely immeasurable if a child got it in their system, that would not cause any health risk, completely harmless, that that could fall in the category of saying that a child would not absorb any if they played with this toy. In fact, one of the commissioners that voted against it said I dare say if we had Consumer Product Safety Commission scientists in this room, their children were playing with this, even if their children were almost on the tipping level of the amount of lead in their blood, they would still allow their child to play with this, because it’s that harmless.

HH: Wow. Now Commissioner, I always tell people, I always fully disclose, I have law partners who do nothing but advise companies on how best to deal with this ridiculous law, so full disclosure. I know what it’s doing to small businesses, I know the jobs that it’s destroying.

AN: Terrible.

HH: But do the commissioners know?

AN: I think at least some say that’s not our problem. Our problem is we’re going to interpret this law the literal way that, you know, so that we can’t be sued by the environmentalist community, or the community that wants a chemical-free world, and it’s not our problem. But you’re exactly right. And let me just say, Hugh, that if you take all children’s things, the products that are made by the really big companies are all in China. I mean, the companies may be here, but the products are made in China. It is the small businesses that are saying we don’t know how we can possibly comply with the costs of this bill. They’re the people that actually make things in this country, that actually hire Americans in their businesses. And even the big companies that produce most of their things overseas, many of them all of their things overseas, say considering the costs, they do not, they cannot imagine how a small company could continue making things, and be in compliance with the Consumer Products Safety Improvement Act.

HH: I’m talking with Commissioner Ann Northup of the Consumer Products Safety Commission, longtime legislator from Kentucky, from the Louisville area, where my audience in Louisville knows her well. Commissioner, you’re the only legislator on that commission. Do they look to you for common sense advice on what legislative history means? Because this is not what the Congress intended.

AN: Well, I don’t think it is what the Congress…everything from what Congress tell us, but more importantly, you know, I actually submitted a legal brief that laid out that there’s a whole section that exempts products that have lead where a child cannot absorb any of the lead. And you know, clearly they meant something by that, and what basically the decision last week meant was that not one product would fall under that exemption, that basically, that exemption is totally meaningless.

HH: Wow.

AN: Now Congress, you know, it meant something to the people, to the staffers and the members that wrote it, and they had to think that this was going to bring some reason to it. But you know, when you have a commission that decides we don’t care, the literal translation of this is where we’re going to go, it has all these unintended consequences. And let me just say, Hugh, it doesn’t just apply to the products, what materials they can use. It also means that they then have to have the products certified in a third-party lab, which is expensive. They have to then provide certification, that’s an enormous amount of paperwork, on the internet, proving that it was tested. Every time they change a component, they have to go back to the lab, get it retested, recertify it, make sure that paperwork follows that product wherever it goes. I mean, it’s the paperwork and the enormous responsibility that goes with the fact that we could not see our way clear to exempting these materials.

HH: Let me ask you, Commissioner Northup, has the commission authorized enforcement, or will they be looking the other way as small and medium companies struggle to do their best to comply with the act? In other words, if they just can’t do it, are they going to be prosecuted by the CPSC?

AN; Yes, and not only will they be prosecuted if they use, like in this case, brass, there are buttons, zippers, grommets on children’s clothes, all of those things have lead in them. None of them will be allowed. Not only that, they’ll all have to be tested, they’ll all have to be certified, and the certification will have to follow every single product. So now, for example, a product could be lead-free. But if the certification isn’t there in the right form, they could be charged with a certification failure, even though the product is perfectly in compliance with the law.

HH: Are you colleagues in the majority in the commission all gung ho to go and prosecute little businesses? Is that part of their agenda?

AN: Oh no, they say they’re not. They say they’re not. In fact, they decry this. But, I mean, we’re not…after I lost the vote, I then made a proposal, number one, that we would delay the vote and ask Congress to clarify what this “any” meant, the word any in this law. And that was voted down, 3-2. And then when that was over, then I tried to bring an amendment to ask for a study on the cost of what it’s going to cost businesses to comply, and I was ruled out of order. So you have to sort of say, you know, if you really were heartbroken over coming to a conclusion that you didn’t think made any sense, you might delay the vote and ask Congress to clarify the language, or you might agree, you would allow an out of order motion to be acted on. You don’t, you know, if it’s not on the agenda, if three of the five commissioners agree to bring it up, it can be brought up. But in this case, it was ruled out of order.

HH: Wow.

AN: So I think there’s, you know, I don’t know, it’s hard for me to determine whether there’s going to be flexibility.

HH: Commissioner Northup, we’re out of time. I hope you will continue to fight the good fight on behalf of the small businesses that are devastated by the CPSIA, and we will have you back to continue updating it. Thanks for joining us, and thanks for fighting it the right way as best you can, Commissioner.

AN: Thank you, Hugh.

End of interview.

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