Lawsuit
The CPSC’s Authority
I picked up a few interesting comments from a variety of phone calls I had today.
1. CPSC lawyers do not think they have the authority to grant a stay as requested by the NAM petition. The citations provided in the NAM petition do not directly authorize such a stay, but there might be room for interpretation.
2. Even if CPSIA is delayed, there is worry that some State Attorney Generals (AGs) will take matters into their own hands. Under Section 24(b)(2)(c), they can immediately prosecute violations of CPSIA after notifying the CPSC if there is a substantial hazard and immediate action is necessary to protect lives. The delay, if it were to happen, would probably only affect the lead requirements and not other portions of CPSIA. Therefore, the State AGs could do this if they were so inclined.
3. The CPSC might issue additional guidance, similar to the thrift shop guidance, exhorting manufacturers to try to comply but indicating that they are not going to aggressively enforce the lead requirements for some period of time while the law is still being clarified.
4. There have been discussions with the consumer groups who may be receptive to some type of delay while things get sorted out.
Obama’s hold order does NOT affect CPSIA
Why you need to contact Waxman rather than Nord
Obama’s hold and review order will NOT delay implementation of the CPSIA. It’s truly frightening how little people understand about the limited power of a President.
The CPSIA is a LAW. Presidents neither make and pass laws nor do they pull them off the lawbooks and make them ‘non-laws.’ They can help write laws, encourage Congress to write them, promote them, and they can sign the finished law or veto it. That’s it. CONGRESS writes and passes the laws (that’s why it’s called the legislative branch)- the president only signs them, or not. Once signed, he can’t nullify it, overturn it, cancel it, or alter it in any way.
The CPSIA is a law that was written, promoted, and put to the vote by a Democratic Congress who then presented then President Bush with a filibuster proof majority, so he signed it. New Presidents CANNOT simply nullify laws that Congress has already passed and previous Presidents signed. This is highly illegal and he simply can’t do it.
What Presidents can do, and generally do- when they take office is to put on hold all the most recent regulations, orders, administrative rulings- the sorts of things which are NOT laws and which Congress did not vote on and pass and a President sign. An example of a recent regulation would be the Commission’s exemption of unadulterated textiles such as wool, silk, and cotton from the testing requirements That has now been put on hold.
An example of the regulations that President Obama’s ‘hold and review’ order covers would be, in fact, anything the Commission has said or done. This is why it is monumentally important NOT to let Waxman pull the wool (dyed or otherwise) over your eyes and convince you that the Commission is the only agency that can help you. They can’t help at all. They can’t delay the February 10th deadline- ONLY Waxman can do anything about that by calling a committee meeting of other Congress critters and voting on it. He’s lying when he tells callers that Nord can help.
The Commission is supposed to have three members. They only have two because the Democrat controlled congress refused to seat the third member, a Bush appointee. Instead, Congress voted to ‘temporarily’ accept the two member commission as authorized to make decisions- they deliberately left that commission undermanned while increasing their workload tenfold.
Congress, recognizing perfectly well that two people is not enough to do the job, ALSO enacted, as part of the CPSIA, a new requirement that at a certain time (I believe it’s August), the two member Commission would become a FIVE member commission. President Obama has the authority to appoint five members, but even then, Congress has to approve them. He doesn’t have authority to overturn the law. He doesn’t have the authority to decide that the Commission will only be three members or should be six.
Waxman understands this all perfectly well. He understands, better than many small crafters, that anything the Commission says has an expiration date anyway, that previously when they have tried to rule favorably to small businesses (making the phthalates ban NOT apply to existing inventory), Congress (in the person of Barbara Boxer) and special interest groups (not, in this case, corporate bogeymen) have lashed out at the Commission and insisted they have no authority to do this, and the phthalates ban must apply to existing inventory.
When his office tells you he can’t help, you must contact the Commission and Nancy Nord- he is laughing up his sleeve. He is disrespecting your intelligence and assuming you are ignorant of the facts (hopes you are, in fact). Anybody who sends you after Nancy Nord instead of the Congressman is dismissing you and sending you on a rabbit chase, or bought the empty rhetoric of Waxman’s office themselves. The ONLY significant help small businesses can receive right now is for Waxman himself to listen to and act on the letter from Barton and Radonovich.
As they explained to him (but Waxman hopes you don’t know):
“…even if the CPSC devotes full staff attention and moves at the most expeditious speed, it will be unable to issue the necessary guidance prior to Feb. 10 without violating Federal rulemaking requirements.”
They also explained to Waxman:
“by simply delaying the imposition of pending CPSC action to work our way through this problem we can save many jobs and ensure that toys are safe.”
But there’s only one way the pending CPSC action can be delayed- and it’s not through President Obama (HE CANNOT OVERTURN LAW):
“…the first step toward providing prudent and effective relief is for our Committee to conduct a hearing so everyone involved can explore the facts for themselves, understand the urgency, and coalesce around a solution.”
The Committee must conduct a hearing. Only Waxman can call such a Committee meeting. Only Congress can act in a meaningful way to fix the problems with this bill. Nancy Nord and her Commission of two cannot- and whatever they say can and likely would be changed by the new members of the Commission when Obama appoints them.
Henry Waxman, and Waxman alone, can act to call that important meeting of the Committee he heads. There is nothing Republicans can do but pester him with letters (which does not mean it’s not a good idea to encourage them to pester him with letters). There is nothing Nancy Nord can do- although personally, I think it would be a good idea to write her and THANK her for putting up with Waxman’s demonizing her over his bad law. There is nothing that President Obama can do other than a apply a little moral suasion and political strong-arming (and it’s not a bad idea to write him and ask him to play some of that charismatic political capital), but if Waxman doesn’t call a Committee meeting, I don’t think the President can force one, so every contact with somebody else needs to be bolstered by contact with Waxman’s office, and needs to focus on asking those other people to persuade Waxman to do the right thing. DO NOT let him keep up the deception that this is a Commission problem.
Henry Waxman and the Committee on Energy and Commerce MUST MEET and push back the Feb. 10th deadline. ONLY they can.
Contacts:
Henry A. Waxman
California-30th, Democrat
2204 Rayburn HOB
Washington, DC 20515-0530
Phone: (202) 225-3976
Class Action Update 1-21-09
Dear Supporters,
Click the link below to download the letter from attorney Micheal Kushner regarding the Class Action Lawsuit.
Kushner Law Firm - CPSIA Status January 21, 2009
Questions may be directed to me through comments on this website or directly at dlapolla@gmail.com.
Sincerely,
Dawn Michelle LaPolla
Class Action Update Feb. 14th
Dear Supporters,
We have received an enormous amount of support for the Class Action Lawsuit. Everyone from WAHMs, small businesses, crafters, to large scale businesses are all interested in supporting the Reformation of the Consumer Product Safety Improvement Act (CPSIA). It effects ALL OF US, large or small.
A lot has been happening in a very short amount of time and over the next few weeks significant actions will be taken.
Early next week, the Kushner Law Firm will be posting a copy of the contract on their website. I will add a link to it here once it has been posted. Interested parties may then review the contract and decide if they want to become an actual plantiff on the case. We have received approximately 150 submitted forms regarding the lawsuit. This does not necessarily mean we currently have 150 plantiffs. But, with this scenario, if everyone on this list was to sign a contract, the initial fee for the retainer would be under $70.00 a piece! We are continually receiving interest forms, therefore, it is likely that the total number of supporters will continue to rise. Donations for those of you who cannot fully participate but would like to support the cause, will also be accepted. Those donations will be made to the law firm directly. Additional information regarding how you can donate will also be posted here as well once I have that information.
I have received numerous comments and emails regarding the personal impact of this legislation. I have read your stories and I hear the panic and confusion that you all share. DO NOT LOSE HOPE! We are doing everything we can to stop this law. If you have not done so, I urge you to sign the petition and include a personal message as to how it effects you and your business. Submit the online form for the Class Action Lawsuit. The more supporters we receive the better as the cost will be significantly reduced for all involved. Yes it does cost money but what we contribute will be so much less than the cost of complying with the Act itself, (costly and redundant product testing) or the cost of going out of business entirely.
I urge you to contact your local news stations, radio stations, newspapers and Congressman. We must rally together as Americans to save our businesses, our hobbies, our passions, our way of life as we know it.
Sincerly hoping for change,
Dawn Michelle LaPolla
Baby Sprout Naturals
Subscribe to ReformCPSIA.org to receive email updates!
Please forward relevant information for posting to this website to dlapolla@gmail.com. Or leave a comment on our blog. Thank you for your support!
Class Action Lawsuit
CLASS ACTION LAWSUIT
==========================================================================================
Update January 28th, 2009
CPSIA Summary:
The Consumer Product Safety Improvement Act (CPSIA) is requiring lead testing on all products (including apparel and components of apparel which knowingly have little or no lead such as ribbon, tulle, thread, elastic etc.) designed for children under the age of 12. “This new Act is unconstitutionally overbroad and vague, and disregards the significant and disastrous impact on small and medium businesses as Section 605 of the Regulatory Flexibility Act requires” says Michael Kushner, of The Kushner Law Firm.
Immediate action is required in order to save many businesses and to keep costs from skyrocketing for children’s toys, accessories and clothing.
The contract for the lawsuit is complete and available for review upon request. We are at a critical time and we need to gather all parties who desire to participate. Our lawsuit will call for a Temporary Restraining Order, followed by a Preliminary Injunction to stop the implementation of the CPSIA and to do so prior to February 10th we need to move very fast.
If you are interested in joining the lawsuit, please complete the form below. Once you receive a copy of the contract we ask that you DO NOT disclose, to any outside party, the terms of this agreement. We and thousands of businesses like yours are counting on you to join. This Fee Agreement is very comprehensive and will fully explain how we will organize this group into an effective team to fight this unfair law.
Many of us are small businesses and cannot afford to pay tens of thousands of dollars in legal fees to fight the CPSIA, therefore, we are depending on our numbers to keep the costs down for each individual. The legal retainer is $25,000 to file the lawsuit. If we have 100 participants, it will only cost $250 each, a much more affordable sum, and less than even one lead test under the CPSIA. If 200 people join it would bring the initial cost down to $125. And so forth. Keep in mind that once the lawsuit is filed it will become public and will receive more media attention. I think we will get a lot more support once the word REALLY gets out.
The attorney will hold all contracts until a minimum of 100 people have submitted payment, assuring us that the costs will be divided by at least 100 people. The lawsuit will be filed by next week in order for the court to have time to review it and take action. Since it will take about a week to properly prepare the lawsuit for filing with the Court, we need you to act without delay. We anticipate many more supporters, but need everyone to take action rather than wait for others. Please take action now – do not let the CPSIA ruin your business and thousands of American businesses like yours.
If you wish to participate, this is how to proceed:
1. Fill out the interest form below (there is no obligation to join - we will send you a copy of the contract for review)
2. Read and sign the Fee Agreement.
3. If paying by credit card, please complete the credit card form attached for the amount of $250 for the initial retainer. Fax the contract and credit card form to the number on the letterhead of the contract: 949-421-3031.
4. If paying your portion by check, please enclose a check for $250 for the initial retainer. Write “CPSIA” in the memo field of the check and then mail the contract and check to the address listed on the contract letterhead:
Kushner Law Firm
RE: CPSIA
15 Enterprise, Suite 110
Aliso Viejo, CA 92656
Rachele and I will be available to answer all your questions and concerns. Since we have 400+ potentially supporters in this lawsuit, please contact me or Rachele via email at the following email addresses. That way we will be able to address your concerns as quickly as possible. Include your phone number in the email as well so that we can respond to you in the most efficient way.
We look forward to working with you on this lawsuit and we are determined to make our voices heard! Let’s keep children’s products safe and American businesses in business!
Thank you,
Dawn LaPolla
Baby Sprout Naturals
dlapolla@gmail.com
www.ReformCPSIA.org
Rachele Dressler-Sweetser
Monkey Baby Clothes
lmksmom@yahoo.com
www.ReformCPSIA.org
Unique Visits
External Links
CPSIA-Central
Amend the CPSIA
Fashion Incubator
What is the CPSIA
Overlawyered
Handmade Toy Alliance
RWoldenberg