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CPSC Commissioner Ann Northup on the difficulties implementing the CPSIA

Friday, April 9, 2010
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HH: Commissioner Ann Northup has joined me now. She has just flown in, so it’s probably a little, more than a little wild. Come sit here, Commissioner. Ann Northup is a Republican commissioner of the United States Consumer Products Safety Commission. For a long time, she was in the 3rd district of Kentucky, representing Louisville. Many of you remember she used to be on the program with me during those years, 1997-2006. She joined the Consumer Product Safety Commission this year, I think. Has it just been 2009?

AN: It’s just been a year. Yes, it has.

HH: Welcome, it’s good to see you.

AN: I’m delighted to be here. It’s nice to see you.

HH: How was your landing? We had quite a landing coming in today.

AN: It was, the weather is pretty windy out there, but it was fine. I was just sorry that it took so long to get my suitcase, and…

HH: Oh, not a problem. It’s so good to see you. Now I have been setting this up as the primer on the Consumer Products…because we’re here for the Sporting Goods Manufacturers Association, you and I. And I wanted to give the primer, and I found out just yesterday as I was getting ready for this, that you’ve been blogging about this. You may be the first public official who really blogs about what they do at http://safetyandcommonsense.blogspot.com. When did you get this idea?

AN: You know, I think it was a feeling that there was a need to collect information. When I was approved by the Senate and joined the Commission, there are five members, they’re all hard-working, we all come from different perspectives, but there was an amazing amount of blank space when it came to how does this new Consumer Products Safety Improvement Act going? And what sort of effect is it having? And what’s it doing to our companies? And what’s it doing to the selection that consumers have. And so you know, as a member of Congress, I always understood it was important to sort of cast a wide net for opinions, because most people have their head down every day. They go to work, they pick up their kids, they stop by and get a rotisserie chicken on the way home to give a healthy dinner to their kids, pick up the cleaning, do homework, do the science fair project, go to bed. They don’t have time to think now who needs to know what my frustrations are, what the costs are, what the challenges are, the fact that I just closed my business. So our goal was to cast a wide net and say look, how is this affecting you? And this is what we’re talking about. And if you have an opinion, here is a way to get your voice heard.

HH: It’s pretty amazing. I have not seen any public official run as kind of a wide open and transparent a blog as this. I’ve seen a lot of Congressional blogs that say hey, I’m going to be here at this time, come and see me, I’m going to do a town hall, or used to be a town hall. They’re not doing too many town halls anymore. But I really want to recommend to people http://safetyandcommonsense.blogspot.com, Commissioner Northup’s blog. It’s linked over at Hughhewitt.com. We’ve got a minute to the break, so before we do that, just let me ask, what’s the difference between being a member of Congress and being a commissioner on the CPSC?

AN: Oh, my goodness. It’s enormous. You know, when you’re in Congress, you’re talking about ideas. Of course, there are so many ideas, I mean, you’re talking about health care, the national debt, the war in Iraq, the energy…I mean, you could go on and on – transportation, all the needs. And bills come through, and they’re sort of written, and they’re amended, and we add a few words, and never did I have any idea what went on in the different agencies as they had to make sense out of these, because they had to define every term, write rules, and actually apply it to everyday life.

HH: You see, I think CPSIA is such a precursor of Obamacare. So we’ll talk about it when we come back from break.

– – – –

HH: You people who think Obamacare’s a good idea, you have no idea what’s coming when they take a 2,000 page bill and send it to the agencies. And the best way I can illustrate that is through the CPSIA, the Consumer Products Safety Improvement Act. And this is about a six minute segment, Commissioner. I’m just going to let you set up the history of why we go the act, and what a hundred page bill requires, 100 page, 1/20th of what Obamacare has required and what it’s done.

AN: Well, let me just say that you know, up until the Consumer Products Safety Improvement Act was passed, this agency assessed what the risks were. They realized you know, if a home burned down here, a home burned down in another state, both of them, the dishwater caught fire, you know, they were quick to assess oh, is there a defective part, what do we need to do, recall them. I mean, there are so many dedicated employees there that were focused on risk. What happened with this bill is that it disregarded risk. It said that no component of any child’s product can have more than initially 600, it was lowered to 300 last August, and next August, the level, in 2011, it goes down to 100 parts per million lead. That basically is no lead. I mean, 10,000 parts per million is 1 percent.

HH: Right.

AN: So we’re talking about 100 parts per million. It’s virtually lead-free. And that means not in any kids furniture, not in the screw, not in the hinge, not in the bracket. It means not in any component of a toy. Never mind that the Tonka truck axle needs the strength, needs the machinability, needs to glide. It needs lead in it to work right. It can’t have it. It means in all children’s products, like the desk at school, the lunch box. So first of all, it means that every child’s product, literally every one, has to be reengineered. But besides that then, you have to have the product tested in a third party lab. And we have to certify the labs. So we’re out there certifying labs right now. You have to pay to have it certified. Every single component of the child’s toy, furniture, that it meets these standards. You have to certify it based on those tests. You have to label it with the cohort information. In other words, this product has the yellow paint that was in this batch, and has the red paint in this batch, and it has the axle from this batch, so that it has to be permanently attached to this toy, jumper. I mean, this is zippers, snaps…

HH: It’s like millions of products, isn’t it?

AN: Everything. Millions. Millions. And millions of components.

HH: It’s really unbelievable. Every time I talk about this with Wolensky, my partner, I just shake my head and say this can’t be true. But it just is.

AN: And we have to write to give insight to…I mean, the businesses are desperately saying what does this mean? Is this product covered? Is this product covered? What about a product that a 12 year old uses, but a 13 year old uses, too, because the cut-off is 12 and under. So never did I have any idea when I was in Congress how we do that. First of all, we have to define terms, define terms like children’s products, define terms like toys. This mean we study, we consider what is a children’s product. Then we write a definition, and we have to put it in the federal register. It’s, the definition for children’s products is about a hundred pages long, by the way.

HH: You just mentioned, let’s take a catcher’s mitt made for a teenage boy. But if you’ve got a ten year old who’s big, and they’re using a catcher’s mitt, is that a child’s toy?

AN: Right. In our definition, it is not going to be. So if it’s a full size, it won’t be. If it doesn’t have a diminishing interest for a child 13 and over…but I have to tell you, it took hours of talking about it and talking about it to get that flexibility written into the definition. So now that’s published in the federal register. Then the federal register will get comments, hundreds of comments, maybe. Hundreds of pages, anyway. And then we have to respond to every one of those. Then we finalize what that definition is. Then when we get those definitions written, then we write the rules. This is how often you have to test every component. This is what you have to do every time you reengineer it. This is the random sample you have to pull on an ongoing basis. What is a random sample? How many make up a selection large enough?

HH: Hold that thought.

AN: It’s an incredibly complicated thing.

– – – –

HH: You just told me a story about where this came from, this whole law, that I did not know, and I thought I knew this law pretty well. Tell people about that.

AN: Well, there are really two incidents. One is that a little boy who was six year old swallowed a charm. It was 80%, 800,000 per million parts of lead. It got in his stomach, the stomach was able to extract the lead. It poisoned him over a couple of days or weeks, and it was a very sad case. The charm actually came in a tennis shoe box for his mother. And she decided not to put it on her shoelace, and the child got a hold of it, and swallowed it. So that wouldn’t even be covered by this law, because it wasn’t even intended for a child. And the other was the Chinese toys that came in, in the Christmas around ’07, that had higher, paint with higher lead content than was allowed. You know, it’s important that we acknowledge, lead poisoning in children is very serious. There are very few children, a couple percentage in this country, that suffer from that, primarily because of what we’ve already done. One is we know that paint, if children get leaded paint into their system, that their body can absorb that lead. So in old buildings where there’s chipping paint that’s lead-based paint. The other is that lead is in the ground from all the lead in gas that we had for years. And so in older parts of the city, or near a gas station, these fumes went up in the air, they came down, and settled in the dirt. And so that’s why they tell you, the CDC talks about you should mop your floors, you should clean your windowsills, you know, so that if you have a child that’s sort of on the tipping point, it’s important that you do these things. Nowhere would anybody say a child could get lead poisoning from components in the toys. Lead paint? That’s important. But not in the axle of the Tonka truck, not in the tee ball bat that they play with…

HH: The exhaust pipe of the off-road vehicle.

AN: And not the zipper that they have, not the snap, not anything made with brass on it, not any hinge or screw. And first of all, kids don’t go and suck on the screw on their crib. But even if they did, they would not get, they would not extract lead that’s trapped in this metal.

HH: But it’s still regulated. That screw in that crib is regulated.

AN: That screw…that’s right. And so what you lose when you have to get rid of the lead is, you lose the strength, you lose machinability. We’ve all seen zippers that sort of stick, they don’t glide. That’s what lead did. It helped them glide. So what are we doing? We are causing businesses to go out of business, especially small businesses, especially ones that are small businesses in this country that actually make products in this country, are simply not able to spread the costs, these huge, new costs over the smaller number of products they make. We’re causing fewer choices for consumers. We’re driving up the price of the products that they buy.

HH: Has it cost as many jobs as I suspect that it’s caused?

AN: Yeah, I mean, we have a whole page of companies that have said I can’t do this. I can’t afford the costs. I don’t have enough…you know, they make specialty items, companies that are often small companies in this country.

HH: And the regulatory burden, I know, because many of them are our clients, people don’t know how to interpret this. They write in, they have to hire expensive lawyers to go get exemptions from you. It must be a morass at the building.

AN: Well, and we’re not giving any exemptions. So far, there hasn’t been a vote to give exemptions. And so they’re trapped in figuring out how they’re going to make this. And you know, I think there’s the ATV, the bicycle people, I mean, who sucks on their bicycle handlebars at six years old? And you know, even if you did, you couldn’t swallow enough lead that it would register a change in your blood lead level.

HH: And Congress won’t fix it. I saw Chairman Waxman has proposed an amendment on your blog, and your blog has dissected it. It’s not really that helpful. In fact, it might make things worse.

AN: It really isn’t helpful. It’s really meant to solve the political problem he has from the ATV people. They obviously are very organized. It’s very serious for them. They have children’s, smaller ones that are safer for children, and they’ve had to take them off the market. But you know, I mean, it has all these hoops you have to jump through. You have to prove that you can’t make it officially, you can’t make it, that it’s not practical, that there’s no substitute material, you have to say how you’re going to get into compliance over the next few years, you have to prove…here’s what’s funny. I think the third qualification is you have to prove that it doesn’t harm the health or safety of a child. Well Hugh, if it doesn’t harm the health or safety of a child, why are we even regulating it? What else do we have to prove?

HH: I’m talking with Commissioner Ann Northup of the Consumer Products Safety Commission. And that is what I want people to understand. This law, it’s not about products that were unsafe.

AN: No.

HH: It’s a, it is about jailing all children’s products that had any lead, whether or not they were safe, the vast majority of which they were.

AN: Absolutely. Most parents, you know, what parents want to know is that they’re going to go into the toy store next year for Christmas, and first of all, there are going to be some new products on the market, that there are not just going to be the same products that were there last year. As the mother of six children, you know, I always needed a few new products for the toy box. And they need to know that they’re safe. And they can rely on that. Certainly, the paint standards were important, and I do think we should enforce those, because those do, lead in paint is dangerous for a child. But to have so overreached, and to have caught in this trap so many other things that many members of Congress had no idea would be caught in the trap, it’s reducing the choice, it’s driving up the cost, it’s making businesses wonder if they can be compliant. The new fines…

HH: The labs must be happy. The labs must be printing money.AN: Yes, yes, you have a new, you always have a few people who benefit from this. But let me just point out that the labs in China are a whole lot cheaper to get it tested than they are in the United States. So that’s one more disadvantage for American companies, because they have to send their stuff to labs that are even more expensive.

– – – –

HH: Commissioner, before we go any further, would you describe the CPSC? It’s got five members, three of whom are in the majority party. Two cannot be from the majority party, so you’re one of the Republican members.

AN: Right, right.

HH: But you were nominated by the President, confirmed by the Senate.

AN: That’s right, that’s right.

HH: Tell people about how that works.

AN: Well, first of all, I have to say it’s a very hard-working commission – long hours, all five commissioners are really very, very involved in this work. We have different perspectives. You know, there’s…but the chair is new, Inez Tenenbaum, she’s from South Carolina, very, very bright, very organized, very, very efficient, and very interested in effectively implementing this law, and many other things. She’s got the sleep initiative, she’s doing a lot of social media to get out recall information on unsafe products. She’s overseeing a study to revamp the commission. So she’s got the ATV safety issues before her, so…

HH: How many employees are there?

AN: It’s now at five hundred. It’s grown from three hundred and something three years ago to five hundred, and it’s growing.

HH: And other than the CPSC, what’s the biggest allotment of your time, or is it…

AN: That’s pretty much it. That’s pretty much it.

HH: I know you did the baby sling a couple of weeks ago.

AN: Yes, those are issues where you know, we look at the most complicated recalls, and we’re given the information, and then have a chance to make, you know, some of the tougher calls. But primarily, what we’re doing night and day is defining guidance rules, rules of how to implement this bill, and it is complicated. You might see on my blog a stack of IRS v. CPSC, and I asked the question, did you ever wonder how the IRS got so complicated? Well, now I know. I mean, every single line in the bill has different meanings, has to be interpreted, guidance has to be given, has to be effectively and fairly administered. It’s very, very, it’s not like running a company.

– – – –

HH: But I asked you to stay over, because I wanted to ask you about Obamacare, because I don’t believe there are any former members of Congress serving in a regulatory capacity in Washington, D.C. right now, except Ann Northup. And I’m wondering when this bill went through, it was 2,000 pages. Given what you’ve learned about a hundred page, roughly, bill, the CPSIA, how many nightmares are ahead for Obamacare?

AN: You know, I honestly cannot even fathom it. I honestly cannot fathom it. I actually saw a little bit of this back in 1994, when the Kentucky General Assembly, which I was a member of, in anticipation that the Hillary proposal was going to pass health care reform, it lasted a year. There were so many committees, and so many hundreds of people trying to figure out how to make this work, and all the new requirements, and what would be in a model…I mean, one of the first things they have to do in this bill is to figure out what is in a qualified health care bill, or qualified health care plan, and what constitutes adequate insurance. And there are all these mandates – mental health benefits, first dollar coverage for check-ups, wellness programs, so forth. And that’s what was in the Kentucky plan. And it started driving the cost of any plan so high, that all but two companies left Kentucky from selling insurance. And the ones that did said they were leaving because they were going to go under. Nobody could afford it. So what do I worry about? Well, you know, as I walk about Louisville, I hear the small businesspeople all saying I’m trying to figure out how I can get by with the fewest employees necessary. Can I move jobs overseas? Can I make it somewhere else? Because I’m afraid the cost of the coverage, or the cost of the penalty, is going to be so much. And that’s my biggest worry.

HH: In a 2,000 page bill, given what you’ve seen happen at the Commission with a hundred page bill, they’re not going to have this thing figured out for years. The uncertainty of what it means is going to hang over the economy for a decade.

AN: Well, I haven’t read it. I do know that people talk about, you know, some people say a lot, some people say it’s not that many, but that there are this many new commissions that are set up, and there are this many more panels that are going to set up. And what I realize from being at the Commission is that they’re going to have to untangle every line of this by saying okay, what does this word mean? And truly, we debate over, for example, in this bill, it applies to children’s products, the lead content issues. And we define what does something primarily intend, designed or intended for children under the age of 12. What does that mean? Does that mean that if they initially buy it when they’re ten it covers that product? Does it not? I mean, this took weeks to define this and to come to some conclusion. We’ve had debates over, we’re going to define a toy. Is a toy a baseball bat? Is a toy a tee ball bat? Is a toy a beach toy? Is a toy a raft?

HH: Is a chemistry set a toy?

AN: Probably not, not unless it’s geared towards children.

HH: But there used to be these kids…I had one, you know, chemistry set, and you’d mix it up and go poof, and sort of blow things up, that sort of stuff. And so it was intended for kids, but it was chemistry stuff.

AN: Well, we actually have defined that so that unless it’s purposefully intended for children, it won’t be included. But when you think of how much time goes into that, just us talking about what the civil penalties are going to be, Congress changed the civil penalties, it is pages long. It is trying to give some consistency and fairness. But it’s a hard thing for the government to do.

HH: Let me ask you about anger in the electorate, because you were an elected official, you won a lot of elections, both state and Congress. And now we’re in a period where the national news media is saying there is going to be an angry electorate out there. I think it’s a frustrated electorate, and you’re dealing with frustrated constituents at the CPSC, people whose jobs and their businesses…what do you sense is the mood in the country?

AN: Well, I can tell you this bill has made far more people angry than happy. People that may have not had a political, you know, just went along every day, paying their taxes, complying with OSHA, complying with employment law and everything, that suddenly got this bill, they are…

HH: The CPSIA?

AN: The CPSIA, I mean, they are mad. And this, as I walk around my city, it is a roar. It is a roar of people. And you know, I think it’s in part that they’re worried about the bill, they’re worried about whether they were listened to, but I think they’re also worried about the debt of this country, and they really doubt that this bill is going to lessen the debt. And they’re really angry about that.

HH: Now do you get the sense that people inside the Beltway, and I lived there, ’83-’89, sort of in the Reagan years, and we prided ourselves in the agencies on being responsive. Do you think D.C. is more or less responsive than fifteen years ago?

AN: You know, I think that D.C. is divided. It’s sort of like what team are you on? And it’s, so I think there are probably Democrats that voted for the bill that felt like this is the team I’m on, and I’m going to take one for the team, and that they didn’t have any other choice, in a way, that they would have made the Democrats back in their district mad if they hadn’t voted for it. They, the Republicans still would be mad that it passed. And so I think that…and so I don’t know what they’re thinking. I’ve never seen anything, really, honestly, quite this strong.

HH: You ran in a good year for Republicans, 2002. You ran in a bad year for Republicans, 2006. What’s this feel like to Ann Northup right now?

AN: Every bit as bad. Every bit as bad. Every bit as strong, and worried. But I will tell you, I understood that people were mad about the war.

HH: In 2006?

AN: That’s right. They were. They, as I walked around from the first fair I went to, I sensed that they saw our young men and women that were dying, they had a president that was saying stay the course, they’re hair was on fire. And they were afraid that the president’s hair was on fire. And I think that that’s why they felt like, well, do something. If it’s so important that we should sacrifice our young men and women, then either change the leadership, or you know, do a surge, or deal with the fact that it’s not getting better. And stay the course made them mad.

HH: And so you think the same kind of rejection of Obama is occurring as occurred with Bush in 2006?

AN: Yeah, I think this may be even stronger…

HH: Wow.

AN: …because I think that there was, there were enough Americans out there that felt like they sort of believed Bush was right, that we needed to win this war, that we needed to take it to the terrorists, or the terrorists were going to take it to us. They just didn’t want to have somebody say stay the course to them. In this case, I really feel like Americans have sort of a multi-frustration. They’ve seen money fly out the door. And it’s going to get nothing but worse. They see the jobs situation so incrementally improving, and they’re afraid about what our standing is in the world, in part due to Iran, in part due to China buying our debt, in part due to a sense that maybe Europe isn’t respecting us any more than hoped they would. And so our standing in the world is not just do they like us. It’s are we about to be, to not be the player we have been, the sort of leader of the free world in the future. And so I think there’s a lot of concern mixed up with the economy, international and so forth, that’s going on.

HH: And last question, I know I’ve got to let you get a little rest, because you just flew in. Do you think that most of the regulatory issues of CPSIA will be resolved in 2010? Or is it going to take years?

AN: It’ll take a couple of years. We’ve actually lifted the stay, I mean, kept the stay that was supposed to be lifted in February until February, 2011. That was something I was very excited about. I thought that the Commission and Inez provided the leadership for that, and I was very, very concerned about lifting that. So that means that is when the actual testing, certification, labeling, all of that, the sort of technical offenses, where if you have a compliant product, but you’re not technically compliant, you can end up paying big fines. And I think that that’s going to be very tough for businesses.

HH: So they’ve got until February of next year?

AN: Right.

HH: Maybe a new Congress will arrive that’s serious about reforming it. Commissioner Ann Northup, thank you so much for spending time with us, both at SGMA and on the Hugh Hewitt Show. I appreciate it very much.

AN: Thank you, I’m delighted to be here. It’s good to see you.

End of interview.

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