Regulatory hell, now hiring

When you think of some of the crummiest jobs in the world -- Port-a-Potty emptier and poultry processor, just to name two -- at least realize that the people unfortunate enough to be in those lines of work serve a productive purpose.

They're meeting a demand for a service or product. Although an especially disgusting or boring task might be absolutely brutal -- and have to be repeated enough to smash even the most resilient soul -- there's a point to the work. Results can be seen.

Consumer Product Safety Commissioner Anne Northup can't relate to that these days. The former five-term Kentucky congresswoman and the people she oversees can only dream of feeling a sense of accomplishment. De-pooping a dog park would be far more validating than the utterly meaningless, bureaucratic hell that currently consumes their every waking hour.

Northup and her charges have seen their careers hijacked by a single piece of knee-jerk, ill-considered legislation. The Consumer Product Safety Improvement Act, enacted in 2008 in response to the recall of lead-tainted toys from China, has blown up an untold number of American small businesses and piled huge costs on the manufacturing and retail sectors without meeting its primary objective: preventing lead poisoning in children.

I've been writing about this lousy law for a year and a half now, and no matter how much attention is directed to its innumerable shortcomings, the regulatory process gets only more confusing, and the news gets worse.

"The amount of time wasted on this law is mind-boggling," Northup said Tuesday after speaking at The Venetian during a litigation and risk management summit for the Sporting Goods Manufacturers Association. "It's depressing to me. I have some really talented people under me, and to see this many smart people devoting all their energy to this … it's created a lot of stress in the agency."

The law was supposed to ensure small children who'll put just about anything in their mouths wouldn't be able to ingest lead. But lawmakers passed the bill in such a hurry that it was vague beyond belief, leaving the heavy-handed Consumer Product Safety Commission to write all the regulations and enforcement guidelines.

Every proposed rule is subject to a public comment period before the appointed members of the commission vote on them. Small businesses, thrift stores and the resale industry have begged for mercy throughout the process, but to little avail. Northup, a Republican appointee of President Obama, frequently finds herself on the wrong side of 4-1 and 3-2 votes. Her attempts to inject reason and common sense into the regulations have been turned back, time and again.

Now the law covers products for kids up to 12 years old -- know any middle school students prone to sucking on baseball bats and bike handlebars for hours at a time? -- and includes everything from charms to sports equipment, furniture, clothing, books, school supplies and household items. Every single retail item designed for a child, even those that obviously contain no metal, must have its lead content tested and certified.

No small business can afford to comply with the law.

The commission is two years into the process of implementing the law, and Northup says it will take at least two more to finish the job.

"We just put a 100-page definition of 'children's product' into the Federal Registry," she said Tuesday.

Northup documents her work and the tragically comic regulatory process in a blog at www.safetyandcommonsense.blogspot.com. It's a remarkably candid and informative read, and it might be the most valuable resource on the Internet for interested taxpayers and businesses affected by this boondoggle. If all presidential appointees were this open about their jobs, they wouldn't have jobs (Northup doesn't expect to be re-appointed).

Northup's latest fights deal with the proposed legislative "fixes" put together by far-left Rep. Henry Waxman, D-Calif. His amendment, the Consumer Product Safety Enhancement Act, would actually make the law even more unworkable for small businesses.

His bill would allow companies to apply for exemptions for products that exceed the law's lead-content standards, provided those products are subjected to additional rigorous testing to determine whether kids can suck, scrape or strip lead from the product. Northup said the bill was written specifically to keep bicycle, motorbike and ATV makers from discontinuing child-size models.

It's another expensive and time-consuming process on top of existing testing protocols, and it would require companies to make proprietary information public.

"The language does nothing to fix the CPSIA's misguided statutory limits for total lead content," Northup wrote in a March 18 letter to Waxman. "Cutting-edge public health agencies do not instruct parents to prevent their children from riding bicycles, playing brass instruments, or playing with metal toys. Why not? Because these agencies know lead in the substrate of such items poses no real risk to a child. ... Removing lead from some substrates will make them work less well (e.g., furniture hardware will not be as strong, zippers will not slide as easily, axles in rugged toy trucks will bend more readily), and there is no reason to make those trade-offs when safety is not at issue. ...

"Not only does regulating lead content so minutely waste taxpayer dollars that could be put toward policing genuine risks, but worse yet it is also a colossal waste of finite compliance resources to have the agency play gatekeeper over which harmless products can or cannot demonstrate a functional need for the lead embedded in them."

This law is such a disaster, Northup said, the commission is hiring hundreds more people to wade through the regulatory flotsam and jetsam. The pay is good -- what taxpayer-funded position isn't? -- but only the brave need apply for such purposeless work.

And you think your job stinks?

Glenn Cook (gcook@reviewjournal.com) is a Review-Journal editorial writer.