“Because We Said So”

By Mark Thompson | Related entries in Bad Decisions, Conservatism, Corporate Business, Dumb Things Said By Smart People, Legislation

At his new Culture11 digs, John Schwenkler points to a Washington Post article about the impending February 10 National Bankruptcy Day, about which I have written prolifically in recent days.

One of the few saving graces with respect to this legislation, which will devastate small, medium and domestic businesses in numerous industries, has been a recent opinion letter which held that the bill’s ban on phthalates would apply only to products manufactured after February 10 and not to pre-existing inventory that was manufactured prior to the statute’s effective date (products containing any amount of lead, no matter how unlikely to be “mouthed” by a child or to contain the legitimately dangerous lead paint, are not so fortunate). This exemption for some pre-existing inventory is important because without it, businesses would be forced to destroy products already on their shelves, even if those products were legal when manufactured. The exemption is particularly important to small and medium sized businesses because of how businesses of that size order and/or manufacture their products many months in advance in order to take advantage of bulk discounts; larger businesses can obviously turn over large quantities of inventory much quicker than small businesses and, moreover, were much more capable of being aware of this law’s potential effects as early as October/November of 2007.

The Natural Resources Defense Council, having solved all “Natural Resources Defense” problems, is apparently not happy with the Consumer Products Safety Commission’s issuance of the exemption for pre-existing phthalate inventory. As such, they have sued the CPSC to make sure the law, with its $100,000 minimum penalties, is enforced in as draconian a manner as possible.

In defense of this lawsuit, the NRDC’s spokesperson expressed little sympathy for businesses that will have to close:

The problems of the retailers and the toymakers are beside the point, Colangelo said. “Congress decided these toys are unsafe,” he said. “That’s critical here. […] We’re talking about something that Congress decided was unsafe and shouldn’t be on the shelves.”

So why are these products so particularly unsafe that it justifies forcing hundreds of businesses to close in the midst of a severe recession? “Because Congress said so.” And why did Congress say so? “Because they’re so particularly unsafe that it justifies forcing hundreds of businesses to close in the midst of a severe recession.”

Again, if ever there was a time for conservative blogospheric activism (although liberal and/or libertarian activism would also be more than appropriate), this would be it. Unfortunately, the Malkinized portion of the Right (also the most activist portion) is much more concerned with talking about the NY Times’ latest flub on the all-important issue of Caroline Kennedy’s qualifications for Senator, not to mention Obama’s amorphous ties to the equally important issue of who the 800th Most Corrupt Chicago Politician of All Time spoke with and when, to even be aware that this problem exists and can realistically be prevented.

(Cross-posted at Publius Endures)

PS – I promise my next post here at Donklephant will be on something other than this issue.


This entry was posted on Monday, December 22nd, 2008 and is filed under Bad Decisions, Conservatism, Corporate Business, Dumb Things Said By Smart People, Legislation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

12 Responses to ““Because We Said So””

  1. Mike A. Says:

    You state the reason phthalates are unsafe is “Congress said so”. Are you implying the work of US scientists showing phthalates having a negative impact on the human endocrine system are incorrect? Or are you simply stating that inventory is more important? Phthalates should have been made illegal years ago, and the fact that we did not do this earlier is not a reason to justify “inventory” costs. The impact of phthalates is not recent news, and companies that chose to ignore the evidence will need to pay the price for inventory costs.

  2. Mark Says:

    Mike A.:
    This is not an issue of whether phthalates have potentially dangerous properties. It’s an issue of whether those properties are so potentially dangerous that they merit shutting businesses down that previously relied upon the law. Moreover, it’s also an issue of considering whether a product made for a 12 year old is one that is likely to be used in such a way as to create the potential for phthalate ingestion….and in fact so likely to be used in that way that it justifies shutting down businesses that sold products containing phthalates. Importantly, I have seen no evidence to suggest that this was a problem so severe that children all over the country were regularly getting sick or suffering defects as a result. If that were the case, then this would be a different story (and phthalates would in fact have been made illegal years ago). Moreover, it is simply unrealistic to expect a small business to know every physical property of every substance contained in each of the products they assemble and/or sell – all that can usually be expected of them is to know whether or not the materials are legal.
    Ultimately, though, the problems this legislation attempts to solve (but actually makes worse) arose in the context of products manufactured by Big Toy. The result of the legislation is that only Big Toy will be able to comply with the new laws with ease – small, medium, and domestic businesses in numerous industries (not only the toy industry, but also clothing and educational products industries, amongst others) will have no choice but to close even though there has never been any allegation of a health problem with their products.
    Again – all this in the middle of a recession.

  3. Mike A. Says:

    Phthalates were made illegal years ago by the EU based on our EPA’s studies of these chemicals. There are no questions about the fact that they are dangerous to the human endocrine system. This is a fact, unless your faith in the free market is stronger than your faith in science. Scientific studies have showed statistical cause and effect that can not be ignored. You could replace “pthathlates” in your post with “lead” and changed the date to be 1975. The basis of your argument seems to be – because we have not banned them, therefore they must be safe.

    There are alternate chemical compounds to replace pthalates and are being used for EU-destined products that are safer and not cost prohibitive.

    A recession is no excuse to continue to poison your citizens.

  4. Mike A. Says:

    One last question Mark, what research did you do to come up with your conclusion

    “Importantly, I have seen no evidence to suggest that this was a problem so severe that children all over the country were regularly getting sick or suffering defects as a result.”

    Is this opinion based on research or casual observations?

  5. Mark Says:

    Mike A:
    That is not my argument at all. My argument, instead, is that the extent to which they are unsafe does not justify retroactively banning them. No one seems to have any objections to a prospective ban (although the bans on products for children over the age of three defy logic because they fail to understand what makes the substances dangerous in the first place)- it’s the retroactivity that causes the problem.

    There needs to be a sense of proportion here, as well – if the substance is that dangerous that it needs to be banned retroactively (suggesting that they are making people sick left and right), then order every product ever made that contains it recalled. But if it is not dangerous enough to order such a recall, then ban it prospectively so you’re not putting people out of business simply because they manufactured a product with components that were legal at the time, especially considering as those components posed no real risk to children over the age of three.

    In terms of lead, keep in mind that only lead paint (and/or other soluble forms of lead) was banned in 1975, except for products intended for children under three, where it was effectively banned completely (IIRC, this latter was partly the result of a form of industry self-regulation, but I may be wrong about that). But non-soluble lead has never been banned (until now) for products intended for use by children over three – the reason simply being that children over age three don’t routinely “mouth” products in a way that would potentially expose them to harm. Now, those products are also retroactively illegal. This is true no matter how unlikely the product is to be “mouthed” by a child – bicycle tire valves, school microscope light bulb solder, Swarovski crystals sewn into a piece of clothing, etc.

    No one denies that lead and phthalates can have harmful effects – but the potential for those harmful effects varies dramatically depending on the age of the child and the way in which the substance is used in a product. This law does not even attempt to recognize that distinction, treating all products containing these substances as if they were guaranteed to cause harm. Had the retroactivity issue only applied to products manufactured for children under the age of three, the inventory issue probably wouldn’t be that much of a problem.

  6. Mark Says:

    Mike A:
    In answer to your latter question, I took a look at the evidence to which advocates of retroactivity (such as Sens. Feinstein, Boxer, and Schakowsky) pointed. It was all premised on potential effects that no one seriously disputed; but, as far as I could tell, they did not point to any statistics about how many children, particularly over the age of 3, were suffering defects/illnesses in a given year.
    Again, there’s no real problem with applying the ban prospectively, but if you’re going to apply it retroactively, you have a pretty high burden of evidence to meet because people have relied on existing law.

  7. George Mauer Says:

    Yeah Mike, you’re being a bit absurd here. No one is disparaging the science, just saying that although the ship is sinking, evacuating it in such a disorderly manner will likely result in far more problems.

  8. Mark Says:

    One final point, just to draw a pretty clear comparison. We all know that regular consumption of sugar by children can cause significant health problems in the long run, yet sugar remains legal and soft drink manufacturers continue to use it despite the existence of low cost sugar substitutes. If tomorrow we banned sugar from soft drinks, would it be justifiable to make that ban retroactive?

  9. Mike A. Says:

    George and Mark,

    - We agree on the science that these chemicals are toxic and this has been known for years.
    - We agree the chemical compound should be banned moving forward.
    - The scientific studies resulted in EU banning, and developing alternatives.
    - For years the American manufacturer’s continued to use these chemicals while the alternatives were available.

    Your point then, is we should have sympathy for the manufacturers who decided to continue to use these toxic chemicals in the face of the scientific data and alternatives?

    We can only agree to disagree on this one.

    PS: I love the comment: “But if it is not dangerous enough to order such a recall, then ban it prospectively so you’re not putting people out of business simply because they manufactured a product with components that were legal at the time, especially considering as those components posed no real risk to children over the age of three.”

    So let me rephrase my previous comment to be more precise. A recession is a poor excuse to continue to poison your children under the age of 3.

  10. Mark Says:

    Mike A:
    ….Except that products for children under the age of three are not the issue here. It’s products for children between three and twelve that are at issue. For the most part, phthalates and lead have not been used in products for children under three for years.

    There is no science showing that these chemicals posed such a large risk to children over 3 as to justify banning them retroactively.

  11. Mark Says:

    Mike A:
    And I might add that you did not address my point (or, really, any of my points): if the materials are that toxic that they pose a real and immediate risk to children, then recall products with those materials that are already out there in addition to prohibiting the sale of products that were manufactured when they were legal. Congress didn’t do that, and to my knowledge no one advocates doing that. Which means that they are not so dangerous as to justify imposing forcing lots of medium and small businesses to default on their loans.

    Again: sugar has been documented to cause lots of health problems. If it were banned tomorrow, would it be justifiable to make that ban retroactive?

  12. Mike A. Says:

    Mark,

    Sorry for the late response. The holidays and everything.

    So, I will address one point that you have stated twice, so I can claim that I have indeed addressed at least one of your points.

    “Again: sugar has been documented to cause lots of health problems. If it were banned tomorrow, would it be justifiable to make that ban retroactive?”

    No it would not be. Sugar is an additive to foods. Foods are labeled with their contents specifically for consumer protection and the ability for consumers to make an informed CHOICE. There are no requirements for manufacturers using phthalates to label products accordingly. Therefore the consumer does not have CHOICE in making a selection with the exception of abstaining from any plastic product purchase (not realistic in today’s world). This analogy fails to support your argument.

    But you raise a good point in making the analogy. I would agree that a good interim solution would be for manufacturers to label their products accordingly while they use up their existing inventory. This would allow them to deplete the inventory and provide the consumer with the ability to exercise an informed choice.

    Enjoy the holidays.

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