Hugh Hewitt
Voting to kill and injure kids: A congressional CYA endangers children
By: Hugh Hewitt
Examiner Columnist
April 5, 2009
Thousands of children 12 and younger ride motorcycles, ATVs and snowmobiles, which is why a lot of effort and time has gone into designing vehicles made for smaller folks. On Friday, The Wall Street Journal noted a study by the Motorcycle Industry Council that concluded "90% of the youth fatalities and injuries on motorcycles occur when kids ride adult vehicles."
On Thursday of last week, the Senate of the United States voted 58 to 39 to reject an amendment to the budget bill designed to keep kids on bikes designed for them and thus off adult vehicles. The reason the amendment was offered by South Carolina's Jim DeMint is because the 2008 "Consumer Products Safety Improvement Act" mandates that products containing even trace amounts of lead --trace amounts highly unlikely to ever come in contact with a child's digestion system-- were banned from sale to children 12 and under.
The law took effect in February an instantly made it illegal to sell the kid-sized vehicles because of nearly undetectabl amounts of lead in tire valves, brakes, batteries etc. Replacement parts for vehicles for kids are similarly interdicted.
The Journal quoted Ken Luttrell, a Democratic state house member from Oklahoma as noting the obvious: "With these new regulations, Washington has only succeeded in making biking much more dangerous for kids."
There isn't any debate about the impact of the law on the ATV industry. Nor is there much debate about the insanely expensive toll the CPSIA is taking on the children's toy business, children's shoes, children's clothing, resale and thrift shops and on and on.
Whenever I report on the law on air my e-mail box fills up with small business owners who cannot cope with the expensive (and in some instances impossible to comply with) mandates of the law. Follow a blog like Overlawyered.com that chronicles the chaos, and the picture of an extraordinary blunder by Congress emerges.
Billions lost and who knows how many jobs disappeared is a scandal in good times and an unpardonable one in a severe recession, but the idea of a measure intended to increase child safety resulting quite directly in the death and injury of children really does set a new low mark for Congress.
I interviewed Consumer Products Safety Commission Chair Nancy Nord on my radio show on March 15 and pressed her on this issue. "I am so concerned about this problem," she replied. "The last thing we want is for young children to end up on adult ATV’s, and this is a really, really perverse consequence of this law."
Aware of the absurdity, Commission staff issued a ruling last week that doubled down on the ban. Commissioner Nord then issued a statement saying that while she agreed with the staff's analysis of the clear intent of the law, she was directing a year-long delay in enforcement of the absurdity.
Gary Wolensky, a lawyer with the Irvine, California firm of Snell & Wilmer who represents many impacted businesses and who first brought the law to my attention, in an e-mail response to my question about what all this means, wrote that it might allow "ATV manufacturers time to sell or export their inventory and develop new ATV's with component parts that either meet the lead content limit or are inaccessible."
"It also give Congress an opportunity to fix what is a well-intentioned but very flawed law," Wolensky continued. "Without Nord's action the Motorcycle Industry would be left with hundreds of millions of dollars in unusable inventory. Nord has taken a common sense approach and now we'll see if [Commissioner]Thomas Moore joins Nord as well as how the Attorneys General from California, Illinois, New York, and Connecticut respond."
Nord seems to be doing everything she can to keep kids off of vehicles which are much more dangerous to them than the lead content in the kids' machines. But what was the Senate thinking when it rejected the DeMint amendment? The problems with CPSIA run deep and it is so obviously flawed that immediate action is necessary on a number of fronts, but Congress is fiddling while many businesses burn down and kids go off on the wrong bikes.
It is embarrassing to admit that such a well-intentioned law has gone so badly wrong, but is wounded pride enough to keep Nancy Pelosi --a grandmother-- from acting to stop a real threat of real injury and death to children?
Apparently so. The reluctance of Congress to do a small but urgently necessary correction to an overbroad law is a warning of what to expect when its massively much more complicated "health care reform" kicks in and the law of unintended consequences begins to roll forward.
Examiner columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.
Follow The Examiner
