- S. 2045, THE CPSC REFORM ACT OF 2007

[Senate Hearing 110-1184]
[From the U.S. Government Publishing Office]

S. Hrg. 110-1184

S. 2045, THE CPSC REFORM ACT OF 2007

=======================================================================

HEARING

before the

SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY

of the

COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

__________

OCTOBER 4, 2007

__________

Printed for the use of the Committee on Commerce, Science, and
Transportation

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

U.S. GOVERNMENT PRINTING OFFICE

77-232 PDF WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska, Vice Chairman
Virginia JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
Christine D. Kurth, Republican Staff Director and General Counsel
Paul Nagle, Republican Chief Counsel
------

SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY

MARK PRYOR, Arkansas, Chairman JOHN E. SUNUNU, New Hampshire,
JOHN D. ROCKEFELLER IV, West Ranking
Virginia JOHN McCAIN, Arizona
BILL NELSON, Florida TRENT LOTT, Mississippi
MARIA CANTWELL, Washington OLYMPIA J. SNOWE, Maine
FRANK R. LAUTENBERG, New Jersey GORDON H. SMITH, Oregon
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota

C O N T E N T S

----------
Page
Hearing held on October 4, 2007.................................. 1
Statement of Senator Klobuchar................................... 9
Statement of Senator McCaskill................................... 11
Statement of Senator Nelson...................................... 31
Statement of Senator Pryor....................................... 1
Letter from Sharon B. Winston, Technical Information
Specialist, U.S. Consumer Product Safety Commission to the
NHTSA...................................................... 38
Statement of Senator Sununu...................................... 7

Witnesses

Durbin, Hon. Richard J., U.S. Senator from Illinois.............. 1
Korn, J.D. Alan, Director of Public Policy and General Counsel,
Safe Kids USA.................................................. 69
Prepared statement........................................... 71
McGuire, Joseph M., President, Association of Home Appliance
Manufacturers; on behalf of the National Association of
Manufacturers.................................................. 76
Prepared statement........................................... 78
Mierzwinski, Edmund, Consumer Program Director, U.S. Public
Interest Research Group........................................ 42
AB 706 Fact Sheet, dated August 27, 2007, entitled ``The
Crystal Golden-Jefferson Furniture Safety and Fire
Prevention Act''........................................... 47
Article, dated November 19, 2006, from The New York Times
entitled ``Chemical Burns''................................ 54
Article, dated October 12, 2007, from Science magazine
entitled ``The Fire Retardant Dilemma''.................... 55
Letter, dated October 4, 2007, from William L. Hickerson,
M.D., F.A.C.S., Burn Center at Arkansas Children's Hospital
to Tate Heuer, Senior Legislative Assistant to Senator Mark
Pryor...................................................... 44
Letter, dated October 18, 2007, from William L. Hickerson,
M.D., F.A.C.S., Burn Center at Arkansas Children's Hospital
to Senator Mark Pryor...................................... 45
Prepared statement........................................... 58
Moore, Hon. Thomas H., Commissioner, U.S. Consumer Product Safety

Commission..................................................... 17
Prepared statement........................................... 18
Nord, Hon. Nancy A., Acting Chairman, U.S. Consumer Product
Safety
Commission..................................................... 12
Prepared statement........................................... 14
Plunkett, Travis, Legislative Director, Consumer Federation of
America........................................................ 63
Prepared statement........................................... 64
Thompson, Al, Vice President, Global Supply Chain Policy, Retail
Industry Leaders Association (RILA)............................ 81
Prepared statement........................................... 83

Appendix

American Academy of Pediatrics, prepared statement............... 104
American Council on Electrical Safety (ACES), prepared statement. 99
Article, dated October 4, 2007, from Consumers Union, entitled
``Consumers Union Urges Reforms for CPSC; Supports Provisions
in `The Consumer Product Safety Reform Act of 2007' ''......... 100
Boxer, Hon. Barbara, U.S. Senator from California, prepared
statement...................................................... 99
Duke, Charles Jeffrey, General Counsel, Zippo Manufacturing
Company,
prepared statement............................................. 109
Letter, dated October 23, 2007, from Friends of the Earth to Hon.
Daniel K. Inouye............................................... 102
Response to written questions submitted by Hon. Mark Pryor to:
Alan Korn, J.D............................................... 118
Joseph M. McGuire............................................ 118
Hon. Thomas H. Moore......................................... 111
Travis Plunkett and Edmund Mierzwinski....................... 115
Al Thompson.................................................. 119

S. 2045, THE CPSC REFORM ACT OF 2007

----------

THURSDAY, OCTOBER 4, 2007

U.S. Senate,
Subcommittee on Consumer Affairs, Insurance, and
Automotive Safety,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:38 p.m. in
room SR-253, Russell Senate Office Building, Hon. Mark Pryor,
Chairman of the Subcommittee, presiding.

OPENING STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS

Senator Pryor. I want to thank everybody for being here and
we have Senator Durbin here. I thought what I might do is
acknowledge Senator Durbin, and then after he speaks, we may do
our opening statements after that, to let Senator Durbin get
back to his pressing scheduled needs.
We all know that, in the Senate, Senator Durbin's the
Assistant Majority Leader, but I think everyone around this
table and on the Senate floor will tell you that the respect
that we have for him is not just tied to his title, it's on his
skills as a legislator.
And I was in his home town of Chicago, or his home state,
the big City of Chicago, not long ago, and I ran my own
informal poll about what kind of job Senator Durbin's doing,
and let me tell ya, he is loved in that State. Everyone I
talked to was very, very pleased with him, and the leadership
he provides for that State.
Also, I need to note that early on this year, as Senator
Sununu knows we--I talked to Senator Durbin along with some
others about getting some more money for the Consumer Product
Safety Commission. He was already way ahead of me, he was
already on track to do that, and very, very supportive.
And then he's had his own legislation to try to deal with
toy issues and other things, along with some other Senators
here we'll talk about in a few moments.
But, Senator Durbin, thank you for being before the
Committee today, and we're honored to have you. Go ahead.

STATEMENT OF HON. RICHARD J. DURBIN,
U.S. SENATOR FROM ILLINOIS

Senator Durbin. Thank you very much, Mr. Chairman, and I'm
glad you had a chance to meet my family in Chicago.
[Laughter.]
Senator Durbin. Senator Sununu, Thank you for being here,
and Senator Klobuchar, your leadership, as well, on this issue,
and for today's hearing on consumer products safety.
Last month, my Financial Services ang General Government
Appropriations Subcommittee held a hearing on the same topic, I
was honored that, Mr. Chairman, you and Senator Klobuchar, as
well as Senator Bill Nelson were able to join us at that
important hearing. It's good to see the leaders on this issue
working together on a bipartisan basis to address it.
Let's face it: Our consumer product safety system is
busted, and in need of major repair. The Consumer Product
Safety Commission is operating under laws that are outdated, at
funding levels that are unrealistic, and frankly has been
unable to perform the most basic part of the mission that
they've been assigned.
Over the past several months, we have witnessed the recall
of over 20 million defective toys, and other children's
products. Just last week, the Chicago Tribune ran yet another
series of investigative reports about a dangerous crib that was
manufactured by a company known as Simplicity, Incorporated, of
Reading, Pennsylvania.
I've got some photos I hope the Members of the Committee
can see, of what these cribs look like. If you'll notice, this
crib railing broke away from the structure, and created a
hazard which I'll just describe in a minute.
These cribs were poorly designed. The drop rail on the side
of the crib could detach from its plastic track, creating a gap
between the crib and the rail. Children could fall into this
gap, causing asphyxiation and serious injury.
The flaw resulted in dozens of injuries, and the death of
at least three young children. The first infant's death from
this crib was reported to the Consumer Product Safety
Commission in April of 2005. Yet, there was a delay of nearly
two and a half years between that incident and the recall of
this product.
During this period of time, two more children died, and
hundreds of thousands of faulty cribs were purchased and
installed in homes across America. Interviews and records in
the Tribune's story show that the Federal investigator assigned
to investigate the April 2005 death, failed to inspect the crib
in his initial inquiry, and didn't track down the model or
manufacturer.
According to the investigator, and I quote, ``We get so
many cases, once I do a report, I send it in, and that's it. I
go on to the next case. We could spend more time, but we are
under the gun, we have to move on.''
Only after inquiries by this newspaper did the investigator
return to California to find the crib that caused the death. It
had been held as evidence by the Sheriff's Department, and
later put in storage by a lawyer retained by the family.
Now, last month in my home State, our State Attorney
General Lisa Madigan, wrote to the crib company, posing as a
consumer who had purchased on of these faulty cribs. In
response to her complaint, the company sent an envelope with 8
pieces of plastic hardware, without any instructions or
explanations. This is unacceptable.
Like the Magnetix toy recall of April 2007, the crib
recalls were only announced following the hard work of
investigating journalists. I want to recognize the efforts of
two, in particular--Patricia Callahan and Maurice Posely--in
bringing these cases to the public's attention and spurring the
Consumer Product Safety Commission to act.
However, it is inexcusable for us, representing this great
nation and this great government to have to rely on
enterprising journalists to make certain that our agencies are
doing their job.
Last week, I wrote to the Commission, asking them for a
detailed report and timeline on what happened in this deadly
case. An infant died. It took two and a half years before the
product was recalled, and in that span, another two children
died.
If the death of an infant does not set off the alarm bells
at the Consumer Product Safety Commission, what will?
This is the kind of thing that, I think, causes concern
among families across America--uncertain about what toys are
safe for Christmas? What crib should I buy for my new baby?
They trust us. They think if these products are for sale in our
stores, surely someone in our government has taken a look at
them. They must be safe.
Well, sadly, because of inadequate laws, inappropriate
funding and lack of response, we can't answer affirmatively
when it comes to that request from our constituents across
America.
What these recalls revealed is the Consumer Product Safety
Commission needs to change. Congress is taking steps necessary,
in terms of increasing its budget. As the Chairman noted, I am
Chairman of the Financial Services and General Government
Subcommittee that is going to increase the funding for the
Consumer Product Safety Commission.
I'm sorry I can't put more money in that Commission. I
definitely want to make sure that they have more inspectors,
better laboratories. That they can respond more quickly, in a
timely fashion, to give American families peace of mind.
This is an indication of what's been happening here. You
can see from this chart, the bar graph, the increase in imports
into the United States, and then take a look at the dotted red
line, how the staffing at the Consumer Product Safety
Commission has been in decline, dramatically, and leveled off
over the last several years.
Since its inception in 1973, the staffing at this
Commission has decreased by almost 60 percent, from a high of
978 employees, to a low of 401, currently. The lab facilities
are incredible. It is hard to imagine that this is what America
has to offer to test the safety of products being sold to our
families.
What you're looking at here, as I said in my earlier
hearing, may look like my basement, but in fact, it happens to
be one of the laboratory facilities of the Consumer Product
Safety Commission where it investigates toys. Take a look at
that, and tell me if that builds confidence in the work that's
being done.
Now take a look at the drop test site, which we showed in
the Committee, as well. This is how toys are tested, to see if
you drop them, whether they'll fall apart. This--Bob, I think
is his name--is probably a good, hardworking employee, look
what he has to work with. Two lines drawn on a wall. They hold
the toys up to these lines and drop them to see what happens.
This is our scientific testing of products being sold to
families across America for our children to use. This is
absolutely unacceptable.
We have to change it, I hope the Appropriations Committee
will start us on this track, but there's more to be done.
Mr. Chairman, I want to salute you, because you and I have
talked about this for quite awhile. You had some great ideas, I
had a bill, you said, ``I'll sit down with you and see what we
can do to bring that bill into our plans for reauthorization.''
I'm very satisfied with what you did. I think that at the end
of the day, bringing these two bills together is going to
create an even stronger legislative product that will get the
job done.
The Consumer Product Safety Commission is currently
required in Section 6(b) of the statute to give firms a 30-day
window before reporting hazards to the public. Because of this
requirement, at times, the CPSC cannot act quickly to protect
human health. That isn't there fault, that's the statute.
In addition, the maximum fine the CPSC can levy has not
been updated for a long time. One of their enforcement tools
can be shrugged off now as just the cost of doing business.
Thankfully, Chairman Pryor, you've done great work in
crafting your comprehensive package of proposals in your Reform
Act. I want to thank you Senator Klobuchar, Senator Nelson, and
Senator Sununu for that effort. This will significantly--your
bill--will significantly increase the funding level for the
next 7 years, will allow the CPSC to increase its staff level,
update its information technology systems, and improve--I
shouldn't say improve--create a lab facility.
This bill would reduce the time lag under section 6(b) to
15 days, and allow the CPSC to share information with
government authorities. It would also create a third-party
requirement that all children's products be tested or
credentialed at labs, and that we have the lowered lead
threshold from 600 parts per million to 90 parts per million.
I might add that Senator Nelson--also a Member of your
Committee--and I have a bill that would require the testing of
products used by children under the age of 6--whether they're
toys or cribs--anything, seats for automobiles that kids might
be using.
This bill would also strengthen your enforcement
capabilities, increasing maximum fines, and making it illegal
to sell recalled products. Last, it would expedite recalls, by
requiring durable markings on children's products--a great
idea.
Combined with increased funding, this is a package of
proposals that can make it less likely for us to worry about
delaying recalls of consumer goods that are threatening our
families' children. I support this set of proposals.
The stories of recent months have really raised, in my
mind, a fundamental question as to whether or not this
Commission--even given new resources and new authority--has the
will to make a difference. I hope they do. We're counting on
them. Families across America are counting on them.
Funding and authorities can't solve this most fundamental
issue. It can only come from the determination of the people
who work at the Consumer Product Safety Commission.
I thank you for allowing me to make this opening statement.
Happy to answer any questions, or let you proceed with your
hearing.
Senator Pryor. Do you have any questions? Do you have any
questions?
Thank you.
Senator Durbin. Thank you very much.
Senator Pryor. Senator, we appreciate you being here today.
Thank you very much.
What I'd like to do now is go ahead with our opening
statement portion of the hearing and welcome everyone. Thank
you to everyone for being here. We know everybody's busy. We
know that product safety issues have become a very prominent
issue in the American media. Given the number of recalls and
the attention that people are placing on it now, I think that
the people in this country expect us, Congress--the House and
Senate--to take action on this.
I do want to say though, before we get started, I want to
be very clear about this; I want to thank industry, because
many industries--whether it be individual companies, or
industries generally--have taken steps and they've been trying
to be proactive and trying to deal with the situation as it
exists today. And certainly I appreciate your efforts. Your
work has not gone unnoticed.
But, I think that we all agree that we all need to work
together to strengthen product safety in this country. I would
hope that today's hearing would be--not necessarily the start
of, because we've been talking about this for awhile now--but
part of a constructive dialogue on this issue, and a dialogue
that leads to legislation, and more specifically, that leads to
a reauthorization of the Consumer Product Safety Commission.
I'd like everybody to know who's here, that now is the time
to let your voice be heard. Even if you're not a witness today,
certainly, I encourage you, and all Senators encourage you to
come in to our offices and talk to us about these issues that
are in this bill. We need to hear from you now, because, we
would like to move some legislation through the Senate this
year.
I know that I personally, and my staff, and the Commerce
Committee staff, and probably other Senators and their staffs,
as well, have sat down with many companies, industries, and
groups to talk about this legislation--some before the
legislation was drafted, some while it was drafted, some after
its been drafted--just a continuing discussion about it.
But many of those groups have been talking about concepts.
We need to move from the concept to the concrete. We would like
to have your ideas. If you want to have a role in shaping this,
certainly we encourage you to come and see us, very, very soon,
and talk about what you want to see in this legislation.
And also, let me say, and I know that the other Senators
would say the same thing, given the chance, that on a bill like
this, please understand, no one is going to be 100 percent
happy. No one's going to get every single thing they want.
We're going to try to have a bill that has balance to it. We'd
love to get a bipartisan bill, and quite frankly, we'd like to
get a bill that we can get 60 votes on, in the U.S. Senate.
So, I know I have my work cut out for me, and other Members
of this Committee and the Senate does, as well.
The focus here today is the Consumer Product Safety
Commission. Most Americans, if you were to ask them, what does
CPSC stand for? They probably don't have any idea, and they
probably don't have any idea what it does. And, as a
confession, let me say that, I didn't really know what the CPSC
did until I was elected as Attorney General of my State.
It became very clear, very quickly, how important the CPSC
is when it comes to making sure our products are safe in the
American marketplace.
Then, I must say, that when I came to the Senate, I was
shocked at how under-resourced the CPSC is and how it's been
allowed to wither on the vine over the last few years. I'm not
pointing fingers, I'm not saying one Administration or one
Congress, one Party--I don't want to get into any of that right
now--but the reality is that we see an agency that, in my view,
is in distress, and an agency that needs comprehensive reform.
That's the goal of this legislation--to have comprehensive
reform. We're not trying to just throw money at a problem and
hope that the problem goes away. We're actually trying to
restructure and reshape and retool the Consumer Product Safety
Commission so that it's prepared to meet the demands and the
challenges in the 21st century marketplace.
So, let me just cover four broad topics that are in the
legislation. Before I do, I want to thank Senator Durbin,
Senator Bill Nelson and Senator Klobuchar, for their
cosponsorship. They've really gone the extra mile on this
legislation, and I appreciate it and we're trying to reach out
to other Senators right now to try to get their thoughts, and
hopefully, maybe get some cosponsors on--more cosponsors on
both sides of the aisle.
But, let me say, again, I recognize that, from my
standpoint, at least, the Consumer Product Safety Commission is
an agency that has been overwhelmed by the changes in our
economy, and the changes to that agency. There are now 15,000
consumer products in the marketplace that the CPSC regulates.
In addition, there are a number of emerging technologies, like
nanotechnology that, in my view, and if I talk to the CPSC
people they'll tell us--that the CPSC is not really equipped to
handle the emerging technology.
Senator Durbin showed a chart there a few moments ago that
talked about the employee downward slide at the CPSC. President
Bush has recommended further budget cuts. I just don't think we
can expect this overburdened agency to prevent dangerous
products from entering the shelves, and entering the
marketplace here, if we continue to see cuts in the agency.
So, to address this, we're trying to ramp up the funding
for this agency over a 7-year period, about 10 percent a year.
That doesn't get us back to the 900 employees that the agency
used to have, it only gets us back to 500 employees. But we
think, given today's technology, and just changing
circumstances, we think--we hope--that the 500 employees will
be sufficient to do the job.
We also want to make sure that we have the proper
checkpoints at our ports and also that the testing facilities
that the CPSC has are adequate.
Another part of the bill would be improving safety in
children's products, specifically, again--a lot of news media
attention on this. The CPSC does much, much more than just
children's products, but that's been where a lot of the news
attention has been recently.
One thing we want to say in this legislation very clearly
is that lead in children's products is unacceptable and the
bill contains an outright ban on lead in children's products.
There is an allowance for some trace amounts here and there. We
can talk about that in a few minutes. But also, in addition to
just the children's products, and the lead, this bill would set
up a government-certified, third-party system to test
children's products, to make sure they comply with U.S.
standards.
Also, there's a process where the Consumer Product Safety
Commission could give some sort of certificate where a product
could be stamped on the package, for example, that shows that
it does meet all U.S. safety standards.
Another thing that we do in the bill is we enhance the
penalties and we really try to go after the bad actors and the
unscrupulous importers. In fact, I think we've heard some
people say, maybe anecdotally, but I think the CPSC has some
record on this, as well, that some of the lower fines that the
CPSC can give, basically have just become a cost of doing
business for some of these importers and for some of these
people who are allowing these dangerous products to come into
the marketplace.
What we want to do with the fining authority and the
penalty authority, is to put the Consumer Product Safety
Commission on par with other Federal agencies, and give them
some teeth, and even some criminal authority under some narrow
circumstances, to go after the repeat offenders and the bad
actors, when the circumstances call for that. We want to
enhance the recall effectiveness. Senator Durbin gave us an
example of a product that took way too long to be recalled. We
want to streamline, and help strengthen, the rulemaking process
over there, and--this is just touching the highlights of some
of the things we want to try to do in this legislation.
Last thing I want to say before I turn it over to Senator
Sununu--I want to thank him for his leadership on this
Subcommittee and just being generally concerned about this
issue, as well, like the rest of us have been. And also, I just
want to again, tell the audience that we really are hoping to
have some quick Committee action on this legislation. So, just
want to put you on notice that it's time to come in and talk to
us about any changes or any recommendations you might have in
the legislation.
Senator Sununu?

STATEMENT OF HON. JOHN E. SUNUNU,
U.S. SENATOR FROM NEW HAMPSHIRE

Senator Sununu. Thank you very much, Mr. Chairman, and
thank you to the witnesses we're going to hear from today. This
is obviously a very important subject, the Consumer Product
Safety Commission has a tremendous responsibility dealing with
an incredible range of products, and making sure that hazardous
products are taken off the shelves, and obviously with regard
to the recent recalls in children's toys, making sure that the
toys that kids play with are safe and can be trusted, and that,
when there's a problem, it's dealt with swiftly and
effectively.
Senator Durbin asked--perhaps rhetorically--in his
statement, whether or not the Consumer Product Safety
Commission has the will to deal with this problem. At the
outset, I want to state that my experience is that they do have
the will to deal with the problem. I think the men and women at
the Commission are hardworking and conscientious.
The two Commissioners here today, Commissioner Nord and
Commissioner Moore--with whom I and my office have dealt with--
I think have worked very hard and put a tremendous amount of
time and energy into their work. While there's a clear need for
some changes, improvements and additional powers to be put into
their hands--Chairman Pryor mentioned the issue of fines and
penalties, getting rid of lead paint and the like--I think the
men and women at the Commission have worked very hard, and this
year under particularly tough circumstances, with a tremendous
number of recalls, driven in part by continued growth in
imports from China and other parts of the world.
I hope that we don't question the ethic and the commitment
of those men and women who are responsible, at the end of the
day, for ensuring the safety of these products, and that we
work to give them the resources they need.
I think it's extremely important, as we look at these
issues and try to improve the statutes and the regulations
under which the Commission operates, that we try to get the
balance right, and that we look to find those approaches that
have the broadest support and that we can be most certain will
improve the situation.
As a couple of examples, we can talk about penalties and
fines--they clearly need to be increased. We absolutely need
civil penalties and fines such that the punishment fits the
crime.
But, we have also benefited historically from a fairly high
level of cooperation on the part of firms whose products are
recalled. We want to maintain the highest potential level of
cooperation, because that means that actions are taken faster,
more efficiently, and more effectively, when there's a problem.
If we create a system that encourages the maximum amount of
litigation, and the maximum amount of confrontation, we run the
risk of undermining a lot of the cooperation that has
historically existed.
So, we want stronger penalties. We need stronger penalties.
But we want to make sure that we also maintain incentives for a
cooperative approach wherever possible.
We want to benefit from the strength and the experience
that Attorneys General can bring to this effort. They deal with
consumer fraud, they deal with issues of safety and consumer
protection every day.
But at the same time, we need to make sure that we have as
clear and consistent a set of laws as possible. If every state
were to take a different approach to consumer safety or
consumer products or recalls or liability or litigation, then
we're going to create a system that's confusing, and not just
confusing and costly for businesses, but confusing for
consumers. And that carries with it some real, real risks.
It is true that we can't have a bill where everyone gets
100 percent of what they want. But we can have a bill where
just about everyone agrees, everything in the bill improves the
current situation, improves the framework, improves the
regulations, improves the power of the Consumer Product Safety
Commission in a positive way.
I think that's what we should strive for. I think we should
listen very carefully to the Commission members themselves,
because they've had to work under pressure, under the
challenges of understaffing, under the challenges of under-
funding--and I think they have good ideas about how to improve
the Commission itself. I think we should work very hard to
identify those areas of consensus, and then based on that
information, act in as timely and deliberate a fashion as we
can.
I look forward to doing that. As you know, Mr. Chairman,
we--unfortunately--didn't really have a lot of time to review
the legislation before it was introduced. And that was a little
disappointing, and a little problematic, but I think there's a
lot of opportunity to work going forward, and try to strengthen
the legislation--bring in as many people from both sides of the
aisle as possible and listen to their recommendations. I think
at the end of the day that will be how good legislation is
finally produced.
Thank you very much.
Senator Pryor. Senator Klobuchar?

STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA

Senator Klobuchar. Thank you, Senator Pryor, and Senator
Sununu for your leadership on this Subcommittee, and thank you
Senator Pryor for holding this hearing.
I think as everyone knows, this has been the summer and the
fall of recalls. It seems like every day for the past 4 months,
when you open up the paper you hear that another toy or
children's product has been recalled.
As a mother and a former prosecutor, I find it totally
unacceptable that these toys are continuing to get into the
hands of our children, and it shouldn't be happening in this
day and age.
As my 12-year-old daughter said--she was very uninterested
in this issue when it was regarding Spongebob Squarepants, and
the Thomas the Train set, but as she said when the Barbies came
up, ``Mom, this is getting serious.''
One of the first products recalled this summer as a result
of lead paint was the Thomas and Friends train, like the one
that I have right here, 1.5 million of which were recalled. The
RC2 Corporation, as everyone knows who has been following this
issue, apologized to the customers, and said it would make
every effort to ensure that this wouldn't happen again, and to
encourage customer loyalty, and to prompt its customers to send
in the trains, RC2 offered customers returning trains a bonus
gift for their troubles.
Well, the bonus gift backfired in a big way. Just last
week, it was discovered that 2,000 of these bonus gift trains
contained lead paint levels four times higher than legally
allowed, leaving parents of toddlers across the Nation to deal
with a double recall.
As a result of this, and approximately 20 million other
toys that have been recalled, American consumers are losing
faith and losing confidence in the toys they can purchase in
the stores. And, as we have watched this recall process unfold
this summer, everyone has been enlightened to learn of the lack
of resources, which Senator Durbin and Senator Pryor discussed
at the Consumer Product Safety Commission.
In total, the Consumer Product Safety Commission has only
about 100 field investigators and compliance personnel
nationwide. Even worse, we now know from the photos and the
visits of our staff, that they have only one toy inspector--
Bob, the small parts guy--who is going to be retiring at the
end of the year.
It is time for us to act. And I appreciate the work of
Commissioners Nord and Moore. They have educated us on how the
Commission can be modernized, and I thank Senator Pryor for
working with all of us to put together this bill.
I also thank the companies that we have been working with
in Minnesota, Target and Toys `R' Us, for their input, and
they've been very forthcoming.
And I am also pleased to report that this legislation that
Senator Pryor has put together contains two of the more
important pieces of legislation that I introduced, that makes
it easier to identify recalled products and illegal to sell
them, and also the lead ban that Senator Pryor discussed.
And the need for this ban, tragically, struck at home for
our people, when a little 4-year old boy named Jarnelle Brown
died after swallowing a heart, a little charm that he got with
a pair of tennis shoes. He didn't buy the charm, it was given
to him as a little bonus gift with the tennis shoes, and he
swallowed it. And he didn't die from choking. He didn't die
from inhaling that charm. He died over a series of days as the
lead crept into his bloodstream. He should never have had
access to that toy in the first place, and it was made in
China. And when they tested it in Minnesota, it was 99 percent
lead.
The first piece of legislation that I introduced that's
included in this bill is that lead ban. And, I think it's hard
for people to believe that we don't have a Federal lead ban
now. We have guidance, a voluntary guideline. What we did is we
took that guideline, and looked at other guidelines with the
understanding that there is trace lead in products, and set it
at .04 parts per million for jewelry, lower .02, which is the
standard they're going to be using in California next year, and
we've made some other exceptions, as well, for batteries and
other things.
The second piece of legislation which I think is really
important to the parents across the country is that they know
what products they're dealing with. When they look at their
kids' toy boxes, and they see all of these toys, and they're
supposed to figure out when they bought it, and a date, and a
batch number--unless you're my mother-in-law, no one keeps the
packaging from the toys.
And, one of the things that I'd like to see improved in
this legislation, is to make sure that we require that the
numbers and the batch numbers be actually printed on the toy.
Obviously you're not going to be able to do it with pick-up
sticks and things like that, but for most toys, you're going to
be able to write a date and a batch number at the bottom. And I
think it should be very clear, so that parents can easily look
at this.
The other thing you need to do is to have it on the
packaging. Because unlike some of our major retailers like
Target or Wal-Mart, a lot of the Mom and Pop operations, or
when things are sold on eBay, they're not able to identify in
their computer system when something's recalled. And, it would
also be good to have it on the packaging for retailers, only.
Obviously, the parents are going to need it on the toys
themselves.
So, those are our practical solutions. We look forward to
working with Senator Pryor and the rest of this Committee on
something--the time has come. It's time to act, and I'm hopeful
we're going to get this legislation through this Subcommittee.
Thank you very much, Mr. Chairman.
Senator Pryor. Senator McCaskill?

STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI

Senator McCaskill. Thank you, Senator Pryor. I will
hopefully have an opportunity to ask some questions.
But, when all of this surfaced, the first question I had
was, where is the Inspector General at the Consumer Product
Safety Commission? So, I did what you would think most
consumers would do, if they wanted to contact a government
agency, I went to the Internet. And I was surprised when I
learned that there was no website in existence for the
Inspector General at the Consumer Product Safety Commission.
Now, you may not think this is startling, until you realize
there are only three Inspector Generals in the entire Federal
Government that don't have websites. The other two are the
Capitol Police, and the CIA. I don't think either one of their
missions have to do with helping consumers.
So, I asked a series of questions of the IG, and I don't
mean to pick on the Inspector General--but all of these
problems are things that should have been discovered by an
Inspector General and reported by an Inspector General--whether
it's staff morale, or whether it's the failure to have adequate
staff to do the work, whether it's the inadequacies of the
testing facilities, or even the unbelievable fact, to me, that
we negotiate recalls. The products should be recalled, we
should recall them. There should be no negotiation. That's
negotiating something that has to do with the safety of the
American consuming public.
I received a lengthy response from the Inspector General,
and I must say that I now understand why the Inspector General
at the Consumer Product Safety Commission is very ineffective--
there are only two people there. This is a huge responsibility
to have a budget of only $200,000 and a staff of a total of
three.
If you look at what they're supposed to be doing--now, I'm
not saying it should be like the Department of Defense, where
we've got 20,000 people that work in the area of oversight and
accountability, but certainly we could do better, I think, than
two.
And so, I think this legislation, and the attention that
this problem is getting is incredibly important, and I thank
you Senator Pryor for doing this today.
I will say that, the irony of it being Thomas the Train is
not lost on any of us that are mothers, because, I remember
thinking with some kind of self-satisfaction that buying Thomas
the Train toys was getting back to basics. There are no motors,
there are no parts that come apart, there's nothing to put
together--it's a wooden track and a simple rolling train, and
my kids loved them.
They're embarrassed I'm talking about this, because they're
too old now to admit that they ever liked Thomas the Train,
that went between the Transformers and the Teenage Mutant Ninja
Turtles with all the swords and stuff. I always went for Thomas
the Train. So, imagine how disappointing it is to parents
across the country who thought they were doing the right thing,
and the safe thing, as it turned out, no one's minding the
store for safety. We must do better. I think the American
public deserves it, and frankly, I think they ought to demand
it.
Thank you, Mr. Chairman.
Senator Pryor. Thank you.
I'd like to ask our two Commissioners to come up and take
your seats at the table, please.
First we're going to have the acting Chairman of the U.S.
Consumer Product Safety Commission, the Honorable Nancy A.
Nord, and then we'll have the Honorable Thomas H. Moore, who's
also a Commissioner on the Consumer Product Safety Commission.
So, again, we want to welcome you all, and as you're taking
your seats, let me correct an oversight a few moments ago. I
mentioned the cosponsors of the bill, but I forgot the most
important one, who is Senator Inouye. Senator Inouye is an
original cosponsor, and I accidentally--I know, I
accidentally----
Senator McCaskill. Whoops.
Senator Pryor.--left out the Chairman.
[Laughter.]
Senator Pryor. But, anyway, thank you all for being here,
and Chairwoman Nord, if you'd like to go ahead and start, we'd
love to hear from you. Thank you.

STATEMENT OF HON. NANCY A. NORD, ACTING CHAIRMAN, U.S. CONSUMER
PRODUCT SAFETY COMMISSION

Ms. Nord. Thank you, Mr. Chairman, Members of the
Committee. I really very much appreciate the opportunity to
testify today on S. 2045, and I want to thank the Committee for
your interest in, and support of the safety mission of the
CPSC.
No small amount of work went into the crafting of the
original legislation establishing the CPSC 35 years ago.
Congress's thoughtful deliberations, hard work, and keen
foresightedness resulted in the creation of an agency that has
contributed substantially to the decline in the rates of death
and injury related to the use of consumer products.
The dynamics of the marketplace have changed dramatically
since then, and it's important to move forward in modernizing
this Agency. But, it's also important to do so, recognizing
that the statutory foundation on which the Agency was built, is
fundamentally a strong one.
In moving forward, it's important to understand the
rationale and common sense behind the original legislation, and
the subsequent reauthorizations that underpin the most
effective product safety system in the world.
Since being appointed to the Commission two years ago, and
subsequently being named Acting Chairman last year, I've
closely studied, enforced, and directed the implementation of
CPSC's statutes that we enforce.
Based on this working experience, earlier this year I
submitted to the Congress a comprehensive list of legislative
proposals, the Product Recall Information and Safety
Modernization Act, or PRISM, that would strengthen the
Commission's hand in enforcing our laws and protecting the
American public from unsafe products.
I'm pleased to see a number of my proposals from PRISM
included in the Chairman's bill that we're discussing today.
For example, the bill adds asset forfeitures as a potential
nd the
rationale and common sense behind the original legislation, and
the subsequent reauthorizations that underpin the most
effective product safety system in the world.
Since being appointed to the Commission two years ago, and
subsequently being named Acting Chairman last year, I've
closely studied, enforced, and directed the implementation of
CPSC's statutes that we enforce.
Based on this working experience, earlier this year I
submitted to the Congress a comprehensive list of legislative
proposals, the Product Recall Information and Safety
Modernization Act, or PRISM, that would strengthen the
Commission's hand in enforcing our laws and protecting the
American public from unsafe products.
I'm pleased to see a number of my proposals from PRISM
included in the Chairman's bill that we're discussing today.
For example, the bill adds asset forfeitures as a potential
Mr. Moore follows:]

tiny rare-earth magnets was not a recall, but merely a ``replacement''
program:
---------------------------------------------------------------------------
\6\ Child's Death Prompts Replacement Program of Magnetic Building
Sets, CPSC release of 31 March 2006 available at http://www.cpsc.gov/
cpscpub/prerel/prhtml06/06127.html.

In November 2005, a 21-month old boy named Kenneth Sweet, Jr.
died of blood poisoning and tissue necrosis; an autopsy showed
that two separate sets of magnets had pinched parts of his
---------------------------------------------------------------------------
small intestine.

CPSC and [the manufacturer] Rose Art did not recall Magnetix
toys on store shelves. Instead, Rose Art told consumers who are
``uncomfortable having the product in your home'' to return the
sets to the company for a free replacement product suitable for
children under the age of six. As of September 30, 2006, MEGA
Brands [acquirer of Rose Art] had received approximately 13,000
requests for replacements. This means that most of the four
million Magnetix toys sold before March 31 have not been
returned and could remain in homes across the United States.

to report.
Under circumstances provided in the statute, companies are
required, by law, to report certain information to the Commission and
to respond truthfully and completely to our information requests.
Companies can keep certain information out of the public eye by
appropriately identifying information such as trade secrets, which they
want kept confidential and the Commission can use the law enforcement
exception to the Freedom of Information Act, if it feels withholding
certain information is necessary. What more assurance companies need
for them to provide the information they are required to provide, I do
not know.
Public safety is our concern, not protecting companies from public
scrutiny, and when there is a chance that there is a product in the
stream of commerce that could hurt or injure someone we must have the
ability to compel companies to tell us about that product and we must
have the ability to quickly inform the public so that the product does
not cause harm. Quick and accurate dissemination of information about
potentially harmful products is essential to protecting the public from
the risk of harm posed by those products. Given the often very
difficult time we have obtaining information from some companies now, I
doubt seriously that the current provisions of 6(b) play much of a role
in encouraging disclosure. Consumers want timely, accurate warnings
about products that may cause harm to their families. We should be able
to provide that information to them in an accurate and expeditious
manner.

Question 2. How should the Commission react if companies don't
provide information required by law?
Answer. The failure to furnish information required by our statutes
is prohibited by law and can subject the offender to possible civil and
criminal penalties. The Commission should have the necessary tools and
resources and be willing to aggressively enforce the laws adopted for
the protection of the American consumers. S. 2045 provides increased
resources and a substantial increase in our civil penalty cap. With
these additional tools, the Commission could be in a much stronger
position to compel compliance with its statutes and companies will be
less inclined to test the will of a stronger Commission by withholding
lawfully required information.

Question 3. How do you believe we can ensure the best collaboration
between the CPSC and industry in relation to this issue?
Answer. The law requires reporting certain information to the
Commission. The Commission is the regulator and has a job to perform
with respect to the American public and the regulated community. One of
the best ways to provide for the safest products for the marketplace is
through a cooperative approach with industry. When working with
industry can help us achieve our product safety goals, we should
certainly be willing to work very closely with them, and we have. But,
competition in the marketplace does not and will not inevitably take
the form of a rivalry to produce the safest products. To successfully
continue the mission of the agency, the Commission must have the
resources and the flexibility to respond quickly and effectively to
critical situations where the lives and health of the American public
are at risk, whether the affected company or industry is cooperating
with us or not.
The best way for Congress to ensure collaboration between the CPSC
and industry with respect to information that might lead to the
determination that a product presents a hazard is to give the
Commission the tools it needs to enforce its statutes. The Commission
must then be willing to clearly communicate its expectations of
industry for compliance while at the same time clearly communicating
that there is a system in place for the responsible treatment of
information provided.
Attorneys General
Question 1. Commissioner Moore, in your submitted testimony you
state that the enforcement by Attorneys General could be a tremendous
benefit given the agency's limited resources for litigation. What kind
of resources does the agency have for litigation purposes?
Answer. We have a pool of resources which include our existing
compliance staff (including 10 attorneys in the legal branch) and
several members from our General Counsel staff (2-3 attorneys), and
about $170,000 in contract funds to draw upon. The pool of money is not
a litigation pool but a pool for technical support, of which litigation
is one part. We don't budget separately for litigation and technical
support.
We generally have conducted a limited amount of litigation so the
funds and staff are made available for other support activities. If
litigation develops as a priority, then the Commission must reassign
the necessary resources away from other ongoing activities.

Question 2. What, if any, relationship has the CPSC had with

hat we're,
that has already been mentioned at length.
So, you all are not only setting a better standard, you are
improving the chances that those standards will be well
enforced.
Mr. Mierzwinski. Senator, I just want to echo that your--
your approach is absolutely the better approach, than to give
this to rulemaking. And we strongly support that. And, as Alan
and chlorinated fire
retardants such as brominated and chlorinated Tris, PentaBDE, OctaBDE,
DecaBDE, PBBs, and PCBs from products have been made throughout the
world, including the private and public sectors. These efforts have
made available replacements substantially safer to human health while
atively low levels of
exposure can affect large numbers of children. This means that more
children need special education, there are fewer gifted children, and
over time, the average IQ of the entire population falls.\19\
Lead Poses a Serious Health Hazard to Children At Every Level of
Exposure and Every Stage of Development
Lead is easily absorbed by ingestion or inhalation. The most common
route of exposure of children is through ingestion, usually by putting
hands and other objects in their mouth. Both hand-to-mouth exploration
and playing on floors are typical behaviors for children, especially
rent, I have been incredibly
distressed by the seemingly endless stream of reports about defective
and dangerous children's toys and products.
Forty percent of all consumer products, nearly $250 billion, were
imported into the United States last year from China.
The Consumer Product Safety Commission currently employs only 420
full time employees responsible for ensuring the safety of well over
15,000 products totaling $614 billion.
The products CPSC monitors range in diversity from baby products to
playground equipment to cell phones. Given that range of responsibility
for protecting consumers and a budget of only $63 million annually, I
worry that we simply have not done enough to ensure the safety of
products coming in through our borders.
As foreign imports soar, now is the time for us to step up our
efforts to ensure that the food we consume and the products we use are
as safe as possible.
I am pleased to see this bill significantly increases the
authorized funding amount for the CPSC each year through 2015 and
provides for penalties for violations of this Act.
While I am glad to see this bcriminal penalty under the CPSC statutes; it clarifies the
criteria to be applied in assessing penalties; makes it
unlawful to sell a recalled product after the public
announcement of the recall; and it gives the Agency greater
flexibility in designing a remedy when the recall is ordered.
Harmonization of the CPSC statutes is another important
element that is common to both our proposals. I'm also pleased
to see in the Chairman's bill, my proposals to streamline the
rulemaking process, and clarify the information sharing
provisions with State, local and foreign governments.
The testing and certification provisions of the bill also
represent an area where we have common ground. In my proposal,
I contemplated that the testing and certification requirements
would be part of specific rulemakings, and so would be tailored
to the risks that we're trying to address in the particular
rulemaking.
S. 2045 takes a different approach, and overlays a detailed
testing and certification process for children's products on
top of existing rules, and directs the Commission to construct
and implement the program.
As I'm sure the Committee is aware, the National Institute
of Standards and Technology is charged under the National
Technology Transfer and Advancement Act of 1995 with
coordinating the conformity assessment activities of the
Federal Government with those of the private sector.
Assuming that this is consistent with the policy behind the
provision in your bill, I would contemplate working with NIST
to develop the best approach to meet the requirements of the
bill, while utilizing the existing conformity assessment
infrastructure.
One particular provision of PRISM that is not in your bill,
and that I would strongly encourage the Committee to consider
as it continues its work on the legislation, is my proposal to
clarify the enforceability of voluntary standards upon which
the Commission has formally relied. I believe that such
standards are, and should be, enforceable as mandatory product
safety standards, under appropriate circumstances, as set out
in the Act.
I believe that this interpretation of the Consumer Product
Safety Act would be an especially potent tool to use in dealing
with unsafe imports, and I'll be submitting a briefing paper to
the Committee, further outlining this important issue.
While I believe many of the provisions of the legislation
will be very helpful to the Agency, there are several
provisions that I've flagged in my written testimony as raising
resource concerns, expanding our jurisdiction into non-safety
areas, and being unintentionally counterproductive in helping
us carry out our mission.
I have a number of substantive recommendations in that
regard and I look forward to the opportunity to meet with the
Committee's staff to discuss these recommendations in depth.
We welcome the scrutiny and attention of Congress, and
commend the leadership of this Committee for recognizing the
need for reauthorization.
Mr. Chairman, you referred to a constructive dialogue, and
that is what I truly hope will take place, both here today and
as we move forward. Our common goal is to make certain that the
CPSC continues to represent the world's gold standard for
consumer product safety. I look forward to working with you
toward this objective, on behalf of American families.
[The prepared statement of Ms. Nord follows:]

Prepared Statement of Hon. Nancy A. Nord, Acting Chairman,
U.S. Consumer Product Safety Commission
Mr. Chairman, and Members of the Committee:

I appreciate the opportunity to testify today on S. 2045,
legislation introduced by Chairmen Inouye and Pryor to modernize the
statutes of the U.S. Consumer Product Safety Commission (CPSC). I want
to thank the Committee for your interest in and support of the
important safety mission of the CPSC. It has been a privilege to work
this year with Chairman Pryor and Ranking Member Sununu and other
Senators, and staff members, both at public hearings and in personal
meetings, conversations and correspondence.
Since its creation, CPSC's governing statutes have made the agency
unique among government regulatory agencies in numerous ways. Forty
years ago, in 1967, the Congress created the National Commission on
Product Safety, and after 3 years of work, the Commission reported its
findings to Congress in 1970. Informed by the Commission's findings,
Congress proceeded to create the Consumer Product Safety Commission in
1972.
No small amount of work went into the crafting of that original
legislation. For example, the Senate Commerce Committee held 10 days of
public hearings; and in the House, the Interstate and Foreign Commerce
Committee held thirteen days of hearings and ten executive sessions,
including the joint sessions by the conference committee.
Congress's thoughtful deliberations, hard work and keen
farsightedness resulted in the creation of an agency that has
contributed substantially to the decline in the rates of death and
injury related to the use of consumer products. We estimate that
overall, injuries and deaths associated with the use of products under
CPSC's jurisdiction have declined by almost one-third since the
agency's inception. Some products have shown even more dramatic
reductions, such as crib-related deaths that have declined by 89
percent over that time.
The blueprint that Congress used in building this agency has served
the public well. I am proud of CPSC's record of achievement and of the
public service of the talented staff who have dedicated themselves to
the agency's safety mission over these past three and a half decades.
In preparing for a hearing earlier this year, I came across a
statement from 1972 by former Congressman Harley Staggers who was
Chairman of the House Interstate and Foreign Commerce Committee when
the CPSC was established. Chairman Staggers was on the floor of the
House bringing forward the CPSC enacting legislation and he noted in
his remarks: ``The technological revolution and ever-increasing public
demand for consumer products has produced over the last several years
thousands of new products whose applications are not easily understood
and whose use may pose potential for harm.''
I was taken by the fact that this statement could be repeated today
without sounding at all dated, and yet, there have obviously been very
significant changes since 1972 in the way that consumer products are
manufactured, marketed, bought and sold.
Clearly, the dynamics of the marketplace have changed dramatically
over these years. There are new technologies that have emerged, and
continue to emerge, in creating and manufacturing products, such as
nanotechnology which is addressed in the Chairman's bill. Additionally,
technology has changed the way that consumers shop and purchase goods
and the way that the public receives information. Perhaps the most
significant change is that most of America's consumer products now come
from overseas.
So it is important to move forward in modernizing this agency, but
it is also important to do so recognizing that the statutory foundation
on which the agency was built is a fundamentally strong one. In moving
forward, it is important to understand the rationale and common sense
behind the original legislation and the subsequent reauthorizations
that underpin the most effective product safety system in the world.
The mission of the CPSC is to protect the public from unreasonable
risks of injury and death associated with more than 15,000 types of
consumer products under the agency's jurisdiction. We fulfill this
mission by enforcing our governing statutes, including the Consumer
Product Safety Act (CPSA), the Federal Hazardous Substances Act (FHSA),
the Flammable Fabrics Act (FFA), and the Poison Prevention Packaging
Act (PPPA).
Since being appointed to the Commission two years ago, and
subsequently being named Acting Chairman last year, I have closely
studied, enforced and directed the implementation of these statutes.
Based on this working experience, earlier this year I submitted to
Congress a comprehensive list of legislative proposals, the Product
Recall, Information and Safety Modernization Act, or PRISM, that I
believe will strengthen the Commission's hand in enforcing our laws and
protecting the American public from unsafe products.
I am pleased to see a number of my proposals from PRISM included,
and in some cases expanded, in the Chairman's bill that we are
discussing today. For example, the bill adds asset forfeiture as a
potential criminal penalty under CPSC's statutes and makes it unlawful
to sell a recalled product after the public announcement that it has
been recalled. Harmonization of CPSC's statutes is another important
element that is common to both of our proposals. When CPSC was created,
the agency inherited the authorities of other existing agencies, and we
need to make the various statutes that CPSC administers more
consistent.
I am also pleased to see in the Chairman's bill my proposal to
eliminate the requirement (but not the option) to do three-stage
rulemaking, as opposed to two-stage rulemaking, which is what most
other agencies use to promulgate their regulations. Implemented
properly, this change would allow us to use three-part rulemaking for
controversial and complex issues and issues that raise new matters
while using two-part rulemaking for amendments to existing regulations
and non-controversial technical rules (and I recommend Congressional
direction to this effect). This change will make our regulatory process
more streamlined, efficient and effective.
While I have some questions about the implementation, resource
requirements and potential outcomes of some sections of S. 2045, and I
look forward to discussing some of those today, I do believe that many
of the provisions in the legislation, many of which were drawn from my
proposal, will enhance CPSC's ability to accomplish its important
safety mission.
One particular provision of PRISM that is not in the bill, and that
I would strongly encourage the Committee to consider as it continues
its work on the legislation, is my proposal to clarify the
enforceability of voluntary standards upon which the Commission has
formally relied. Under existing law, the Commission is required to
terminate a formal rulemaking to write a safety standard and ``rely
upon'', a voluntary standard under certain circumstances, and only
after notice and comment to the public.
The extent to which such a ``relied upon'' consensus standard is
enforceable by the CPSC has been a subject of some debate in recent
years. I have suggested that such standards are and should be
enforceable as mandatory product safety rules, under appropriate
circumstances, as set out in the Act.
I believe that this interpretation of the CPSA would be an
especially potent tool to use in dealing with unsafe imports. It would
allow Customs and the CPSC the ability to stop these products at the
port and refuse admission so that they are far less likely to reach
store shelves or consumers hands.
We have seen situations where consensus standards, complied with by
much of industry, do a very good job of addressing a risk of injury.
But if a foreign-manufactured product, which does not comply with such
consensus standards, is imported into the United States, without this
tool our enforcement option is to effect a recall. By clarifying the
enforceability of relied upon voluntary standards, we would have a
better ability to stop the import of unsafe products. I firmly believe
that these changes would strengthen the Commission's hand, and I hope
that the Committee will take a close look at that as we move forward.
For the record, I am submitting a briefing paper to the Committee
further outlining this very important issue.
While I believe many of the provision of the bill will be very
helpful to the agency, there are several provisions that I flag as
raising resource concerns, expanding our jurisdiction into non-safety
areas, and being unintentionally counterproductive in helping us carry
out our mission. I have a number of substantive recommendations in that
regard and look forward to the opportunity to meet with committee staff
this month to discuss them in-depth.
With respect to resource concerns, while the Senate Appropriations
Committee and the full House of Representatives have passed funding
increases for the CPSC, the Committees have also given the agency
direction for the use of those funds. For example, the House-passed
bill would increase CPSC's funding by $4.1 million and recommends
funding sufficient to maintain staff at a level of 420 FTEs. CPSC staff
estimates that the cost of that would be $2,087,000. The Committee also
included $1,500,000 for information technology improvements. That would
leave a balance of just over $500,000. (The bill approved by the Senate
Appropriations Committee would provide an additional $3.2 million above
the House measure.)
The resource requirements of S. 2045 would require many times the
discretionary amount left to us under the appropriations bills. For
example, the requirement for five commissioners will increase the
agency's overhead by approximately $2 million, monies that could
otherwise be spent on other safety-related enforcement or regulatory
activities. As another example, implementation of the ban on lead in
children's products, one of eight rulemakings mandated in the bill,
will require resources to be diverted away from existing enforcement
and regulatory activities.
To assist your deliberations, I have requested that our budget
office analyze the bill to determine the resource implications and will
provide that information to the Committee when it is available.
With respect to expanding our jurisdiction into non-safety areas, I
point to the provision in Section 16 making it a violation of our Act
to sell a counterfeit product whether or not the product is safe and to
the provision requiring the CPSC to referee whistleblower disputes.
Further, the regulatory system set up for certifying and auditing
testing laboratories seems to duplicate many of the functions of
existing government and private organizations.
With respect to provisions that make it more difficult to carry out
our mission, I point, as examples, to the information disclosure
provisions (which will make it more difficult to obtain the useful
information we need to assess risks), the massive increase in penalties
(which will induce companies to overwhelm us with uninvestigated
consumer complaints), and the parens patriae provision (which will
interfere with Commission investigatory and enforcement activities).
As I noted earlier, the legislation that established the CPSC in
1972 was the result of a long, arduous and thoughtful process by
Congress. In the enacting legislation, the authors envisioned that the
talents and resources of the private sector would play an important
role in assuring consumer product safety for the American public.
By leveraging those talents and resources through the voluntary
standards process, which is given preference in our governing statutes,
experts and persons from industry, consumer advocacy organizations, and
other interested parties are brought together to develop the effective
safety standards that cover many of the 15,000 types of consumer
products under the agency's jurisdiction.
Some have called this the ``Summer of Recalls'', especially with
regard to toys manufactured overseas. I understand the concerns of
parents and caregivers. I want to assure them that this agency is
aggressively policing the marketplace, and that is part of the reason
that you are seeing these recalls. The CPSC is engaged in a multi-
pronged approach that involves initiatives with the Chinese government
and the private sector, including foreign manufacturers directly, and
increased surveillance and enforcement activities at the borders and
within the marketplace.
These recalls make the case for some of the changes in CPSC's
governing statutes that we have proposed, but in amending these
statutes, we should be careful not to undermine a system established by
Congress over 30 years ago that has been extraordinarily effective in
maintaining the safety of the vast majority of the hundreds of millions
of products brought into American homes every year and in making our
product safety system the envy of the rest of the world.
CPSC's safety mission is never a completed task. It is an ongoing
and continuously evolving process. We welcome the scrutiny and
attention of Congress and commend the leadership of this Committee for
recognizing the need for reauthorization. Our common goal is to make
certain that the CPSC continues to represent the gold standard of
consumer product safety. I look forward to working with you toward this
objective on behalf of America's families.

Senator Pryor. Thank you.
Commissioner Moore?

STATEMENT OF HON. THOMAS H. MOORE, COMMISSIONER, U.S. CONSUMER
PRODUCTS SAFETY COMMISSION

Mr. Moore. Mr. Chairman, Mr. Ranking Member, and Members of
the Subcommittee, I appreciate the opportunity to appear before
you today to provide testimony on S. 2045, legislation to
reform and reauthorize the United States Consumer Product
Safety Commission, CPSC. The Commission is charged by Congress
with the critical responsibility of protecting the public
against unreasonable risk of injury and death, associated with
over 15,000 classes of consumer products.
This is now--and has always been--a very crucial
responsibility, because without CPSC's intervention, the
consequences of exposure to the hazards associated with
dangerous products may literally be of a life or death nature
for individual consumers who unknowingly possess unsafe
consumer products.
The question that many American consumers will be asking
during this holiday gift-buying season is, is it safe?
This year, the Commission has been involved in a large
number of highly publicized recalls. Some of these recalled
products were associated with long-trusted domestic
manufacturers, and involved very popular products that could be
found in the homes of millions of consumers. These recalls have
shaken the confidence of the American consumer in the
government's present ability to protect them from unreasonable
hazards associated with products produced in our current global
marketplace.
Today we find that increasing numbers of U.S. companies are
either importing finished products or component parts made in
other countries, or establishing their own production plants
outside of the U.S. In many, many cases, domestic companies
have not exercised the same degree of control over these
products as they would have if their products were being made
in this country.
This inability to have constant, hands-on supervision has
resulted in products entering this country that do not meet
long-established U.S. mandatory safety standards. In addition,
the delicate balance that exists between the development and
enforcement of mandatory product safety standards, and the
development and enforcement of voluntary product safety
standards is not always completely understood by many foreign
manufacturers who introduce consumer products into this
country's system of commerce.
As a result, we are now keenly aware that inspection,
testing, education and enforcement tools at the Commission's
disposal are glaringly insufficient to police our present,
globally affected consumer marketplace. Moreover, new and
emerging technologies, such as nanotechnology, present unique
challenges for the Commission. Given the many products already
on the market using nanotechnology, from computer chips to
Docker pants, I do not think it will be too long before the
Agency is asked to assess the risk of nanotechnology use in
some consumer products under our jurisdiction. At this point in
time, we would be hard-pressed to make an assessment, because
we simply do not have the resources to do it.
As you are aware, CPSC's last authorization expired in
1992, and although we have visited the process of
reauthorization on a couple of occasions, our statutes have not
been significantly revised since 1990. However, it is
exceedingly obvious that the marketplace for consumer products
has changed dramatically since that time.
I must acknowledge that both the House and the Senate were
moving in the direction of modernizing the Commission well
before the publicity surrounding recalled products under our
jurisdiction began earlier this year. We know that these
reauthorization proceedings can be an exceedingly intensive
undertaking for the CPSC, but I welcome this reauthorization
process in both the House and the Senate, because I believe it
presents a unique, and much-needed, opportunity for all of us
to focus on the Commission's present and future agenda. I think
that this comprehensive legislation package takes a giant
step--more like a giant leap--in the direction of giving the
Commission the tools that it needs to become the enforcement
force that it should be in today's consumer marketplace. Many
of the provisions come from recommendations submitted by myself
and Acting Chairman Nord, and I am very hopeful that we see
this legislation move from the introduction stage to final
passage.
However, I think it is very important that, in whatever we
do collectively--through efforts at the Administration level,
Congress and the Commission to address the most recent problems
facing the Commission, we must send a clear, unequivocal
message to manufacturers, importers, and retailers who bring
and offer for sale in this country products which present a
substantial product hazard or that do not comply with the U.S.
product safety standard. That message should be that, your
actions are unacceptable and you will be held accountable.
The Commission must have the sufficient resources, the
adequate authority, and the internal willingness to deliver
that message with no hesitation. The Pryor legislation goes
very far in providing the first two variables in the equation
for an effective enforcement authority. The Commission must be
ready to supply the rest.
Thank you for holding this important hearing--very
important hearing. And I would be happy to now answer questions
that you may have. Thank you.
[The prepared statement of Mr. Moore follows:]

Prepared Statement of Hon. Thomas H. Moore, Commissioner,
U.S. Consumer Product Safety Commission
Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee,
I appreciate the opportunity to appear before you today to provide
testimony on S. 2045, legislation to reform and reauthorize the United
States Consumer Product Safety Commission (CPSC). The Commission is
charged by Congress with the critical responsibility of protecting the
public against unreasonable risk of injury and death associated with
consumer products. This is now, and has always been, a very crucial
responsibility because, often without CPSC's intervention, the
consequences of exposure to the hazards associated with dangerous
products may literally be of a life or death nature for individual
consumers unknowingly in possession of unsafe consumer products.
Is it Safe?
The question that many American consumers will be asking during
this holiday gift buying season is, ``is it safe?'' This year, the
Commission has been involved in a large number of highly publicized
recalls. Some of these recalled products were associated with long
trusted domestic manufacturers and involved very popular products that
could be found in the homes of millions of consumers. These recalls
have shaken the confidence of the American consumer in the government's
present ability to protect them from unreasonable hazards associated
with products produced in our current global marketplace.
Today we find that increasing numbers of U.S. companies are either
importing finished products or component parts made in other countries
or establishing their own production plants outside of the U.S. In
many, many cases, domestic companies have not exercised the same degree
of control over these products as they would have if their products
were being made in this country. This inability to have constant hands-
on supervision has resulted in products entering this country that do
not meet long established U.S. mandatory safety standards.
In addition, the delicate balance that exists between mandatory
product safety standards development and enforcement and voluntary
product safety standards development and enforcement is not always
completely understood by many foreign manufacturers who are involved in
importing consumer products into this country's stream of commerce. As
a result, we are now keenly aware that inspection, testing, education
and enforcement tools at the Commission's disposal are glaringly
insufficient to police our present globally affected consumer
marketplace.
Moreover, new and emerging technologies such as nanotechnology
present unique challenges for the Commission. Given the many products
already on the market using nanotechnology, from computer chips to
Dockers pants, I do not think it will be too long before the agency is
asked to assess the risks of nanotechnology use in some consumer
product under our jurisdiction. At this point in time we would be hard-
pressed to make such an assessment because we simply do not have the
resources to do it.
As you are aware, CPSC's last authorization expired in 1992 and,
although we have visited the process of reauthorization on a couple of
occasions, our statutes have not been significantly revised since 1990.
However, it is exceedingly obvious that the marketplace for consumer
products has changed dramatically since that time.
I must acknowledge that both the House and the Senate were moving
in the direction of modernizing the Commission well before the
publicity surrounding recalled products under our jurisdiction began
earlier this year. We know that these reauthorization proceedings can
be an exceedingly intensive undertaking for the CPSC, but I welcome
this reauthorization process in both the House and the Senate because I
believe it presents a unique and much needed opportunity for all of us
to focus on the Commission's present and future agenda.
Senator Pryor's legislation, which is the subject of this hearing
today, takes a giant step--more like a giant leap--in the direction of
giving the Commission the tools that it needs to become the enforcement
force that it should be in today's consumer marketplace. From this
point in my statement, I will go through the legislation, section by
section, and express my views on its affect on how a future Commission
would operate given the passage of such a provision.
Section by Section
Section 3: Reauthorization
Section (a)--Reauthorization Levels
I support this incremental approach to increasing our budget and
staff. Since we require a yearly increase of about 3 to 4 percent to
keep current with increases in salaries, rents and other operating
costs, yearly increases in the range of 10 to 15 percent would, in my
mind, provide the Commission with a good growth pattern. This growth
pattern would also allow the Commission to do a yearly assessment of
where the areas of need most exist at the Commission therefore allowing
the Commission to address its needs in light of the current consumer
product safety problems.
Section (b)--Lab Modernization Funding
I support providing this level of funding to modernize our testing
facilities. Given that we are the Federal agency designated to protect
consumers from product hazards and that our laboratory testing plays a
key role in making hazard determinations, I think that the state of our
lab should concern everyone. The Lab Modernization Feasibility Study,
completed jointly with GSA in 2005, formed the basis for a capital
project submitted to OMB by GSA as part of their FY 2007 budget.
However, other national priorities precluded the project from being
funded. It was estimated back in 2005, that the cost to truly modernize
our lab, if we were to stay on the current site, would be somewhere
around thirty million dollars. Forty million over 2 years would expand
our capabilities plus give us new equipment and a physical plant that
is both energy efficient and an effective use of space.
Section (c)--Funding for Nanotechnology Research
I support funding for research in this emerging hazard area as I
have indicated above.
Section 4: Personnel
Section (a)--Professional Staff
I support bringing the level of full-time personnel employed by the
Commission to a minimum of 500 by the beginning of FY 2013. In fact, it
is my hope that by 2013 we would be beyond the 500 FTE level. In a
three-year period, the Commission staff level has been reduced from a
funded level of 471 FTEs in FY 2005 to a proposed level of 401 FTEs for
FY 2008. I would hope that we could get well above that level of
employment in the 5 years contemplated in this legislation.
Section (b)--Professional Career Path
I support incentives to attract highly qualified professionals to
the Commission and to keep them there. Over time we hope to be able to
train replacements for the many experienced employees that have left
the Commission during the last few years but the experience that we
have lost will take years to recover.
Section (c)--Change of Employment Status by Political Appointees
I support this provision which would provide a mechanism for the
Commission to discourage the practice of unnecessarily placing
political employees into career positions.
Section (d)--Personnel in Immediate Office of Commissioners
I support this provision which would prevent alliances from being
formed by a majority of Commissioners to affect staffing in any
Commissioner's immediate office. I do understand that in times where
the whole Commission is being reduced, Commissioner's immediate offices
should also be a part of reduction considerations but any decision
about reductions in immediate offices should be something agreed upon
by all Commissioners.
Section 5: Full Commission Requirement; Interim Quorum
Section (a)--Number of Commissioners
I support restoring the Commission to its full 5 member complement.
It is my experience that the current 3 member structure usually only
allows for one alliance to be formed--by the majority political party
at the Commission. With only 3 Commissioners, the Chair assumes greater
significance than our statute contemplates. The ``executive and
administrative functions,'' which should be the only authority that
sets the Chair apart from his colleagues have morphed into control over
policy matters. Now the Chair only has to secure one vote--that of his
fellow party member--to control the Commission. If the Chair had to
secure two votes, his ability to have unchecked say over policy matters
would be lessened. Also, when you have an agency with five members, the
Sunshine Act does not hamper the normal dialogue that should go on in
an agency because any member can still talk to any other member about
agency business. But where you have only three Commissioners, the
result is that no Commissioner should ever talk to another Commissioner
about any matter of substance pending before the Commission except in
an open meeting after public notice because two members constitute a
quorum.
Section (b)--Temporary Quorum
When there are only three Commissioners on the Commission, in times
where there is a vacancy on the Commission, two Commissioners, if not
of the same party, should always constitute a quorum for transacting
Commission business. I certainly understand that this might tend to
lessen the pressure on the President to fill a vacancy but as long as
there are only three Commissioners, the chance of losing the ability to
operate as a Commission will exist. It has happened on three separate
occasions since 2001.
Section 6: Submission of Copy of Certain Document to Congress
I support this provision. Congress used to get a copy of our budget
submission to the Office of Management and Budget (OMB). Several years
ago, in an effort to cut down on the reports it was receiving, Congress
indicated it no longer wanted to see those budget submissions. OMB has
since made these budget submissions confidential so they no longer can
be made public by the agency. I think that Congress (and the public)
should be able to fully review the agency's original budget request to
the administration as it makes final funding decisions with regard to
the agency.
Section 7: Public Disclosure of Information
I think that this provision of the legislation strikes a good
balance between the need for the public to have expeditious and
accurate information about potentially hazardous products and the
legitimate desire of companies to protect themselves from the possible
disclosure of confidential or inaccurate information about them or
their products. I know that some argue that being able to provide
information to the Commission and having it kept secret from the public
somehow encourages fuller disclosure by companies than there would be
otherwise. However, companies are required, by law, to report certain
information to the Commission and to respond truthfully and completely
to our information requests. Companies can keep certain information out
of the public eye by appropriately identifying information such as
trade secrets, which they want kept confidential, and the Commission
can use the law enforcement exception to the Freedom of Information
Act, if it feels withholding certain information is necessary.
Section 8: Rulemaking
I support this provision which gives the Commission the option of
streamlining the regulatory process in the Consumer Product Safety Act
and the Federal Hazardous Substances Act when the Commission feels that
a shorter process may be appropriate. One example of such an occasion
might be where the Commission believes an adequate voluntary standard
exists (based upon active staff participation in the development of the
standard) that addresses a real risk of injury but which is not being
adequately complied with and where the enforcement powers that come
with a mandatory standard could significantly increase the compliance
rate. Giving the Commission the option to go straight to a notice of
proposed rulemaking in such a case as this makes sense and would be a
reasonable application of such an option. Another example where the
Commission might decide to streamline the process is in a rulemaking
where the Commission is proposing amendments to a current regulation
that do not change the overall thrust of the regulation.
Section 9: Prohibition on Stockpiling Under Other Commission-Enforced
Statutes
I agree with this provision which adds the anti-stockpiling
provision of the Consumer Product Safety Act to all of the other
statutes which the Commission administers.
Section 10: Third Party Certification of Children's Products
I support this provision which requires independent third-party
testing and certification of children's products, as defined, which are
subject to a consumer product safety standard under the CPSA or a ban
under the CPSA or any other Act administered by the Commission. This
provision will give the Commission additional enforcement powers to
identify and stop violative children's products from entering this
country and authority to penalize those who fail to comply with its
requirements.
The Commission will also have the ability to prescribe by rule the
qualifications of the certifying parties, criteria for which a
certificate can be issued, as well as requirements for periodic audits
of testing laboratories.
Section 11: Tracking Labels for Durable Products for Children
I support this provision. Identifying the exact product to be
recalled can sometimes present a problem. We have been involved several
times in situations where we have initiated a recall and then, based
upon subsequent information, had to expand that recall. I agree that
the burden should be on the manufacturer/importer/distributor to make
sure that children's products or other products are clearly marked and
distinguished so that problem products can be readily sourced and
identified by the manufacturer, the Commission staff and by consumers
who may have the product in their homes.
Section 12: Substantial Product Hazard Reporting Requirement
I agree with explicitly extending the reporting requirements of
Section 15(b) of the CPSA to all of the other statutes that we
administer.
Section 13: Corrective Action Plans (Mandatory)
I support giving the Commission the authority to decide what remedy
a company must take to adequately protect the public when the company
has refused to do a satisfactory voluntary recall. Some companies have
used our inability to require a particular remedy in a mandatory recall
setting as leverage in structuring their voluntary recall response. The
current system, which allows the company to select the recall remedy,
is one reason why the Commission has so rarely used its mandatory
recall authority.
With regard to the language in new subsection 3(C), depending upon
the remedy chosen for the action plan, there may or may not be a
product still being distributed in the market that was subject to the
recall. The subcommittee might want to consider amending the language
along the following lines: ``. . . the manufacturer, retailer or
distributor shall take whatever remedial action, including ceasing
further distribution in commerce of the product to which the action
plan applies, as the Commission shall order.''
Section 14: Identification of Entities in the Supply Chain
I support this provision. It puts everyone in the supply chain on
notice that they need to know who they are dealing with, no matter how
long that chain is. In the event of a recall or other investigation by
the Commission, such information can be essential in getting accurate,
timely information to consumers.
Section 15: Repeat Violators--Importers
I support this provision. While individual importers are not
licensed, and in fact, anyone can go online and get an identification
number and instantly become an importer, importer brokers, who most
importers use, are licensed. Our staff has identified brokers they
consider to be bad actors whose importers routinely bring in violative
products, and who take advantage of our limited port presence to steer
importers with noncomplying products to ports where they are less
likely to be inspected.
I was shocked to read in the recent report to the President by the
Interagency Working Group on Import Safety that there are over 825,000
importers. I do not know how many different people/entities that number
actually represents since one person can have an unlimited number of
import registration numbers, but even if only 10 percent of them handle
consumer products, that still presents our agency with a daunting
responsibility in terms of educating and policing that community.
Focusing on the brokers may be a more manageable task.
Section 16: Sale and Exportation of Violative and Recalled Products
Section (a)--Sale of Recalled Products
I support this provision. This will make retailers, in particular,
more vigilant in checking their shelves to make sure recalled products
are promptly removed and will help stop the sale of recalled items over
the Internet, a problem which has increased in recent years. This also
expands the prohibited acts section of the CPSA to cover any of the
rules or bans issued by the Commission under our other statutes.
Section (b)--Export of Recalled Products
I have raised the issue of our export policy because I believe it
is time to have a discussion about whether that policy still serves our
national interest. I purposely refrained from suggesting any ``fix''
because I think there needs to be a broad reexamination of the role
this country now plays in the world marketplace. If we want other
countries to protect our consumers here in the U.S. through their
export policies, then perhaps we should be more willing to protect
their consumers through our own export policy. It has been twenty-five
years since this was last debated and it is fitting that any discussion
be in the Congress, as Congress established our current policy.
This provision gives the Commission broad authority to prevent the
export of a product that violates one of our mandatory rules or bans,
or has been recalled, or has been declared an imminent hazard under the
CPSA. On its face I think this is good policy although it would be much
simpler for the Commission to enforce if the law stated that the
Commission would only allow export of those products if it received
notification from the receiving country that it would accept the
product.
There are U.S. manufacturers who make products for export that meet
the standards of the receiving country but that do not comply with the
comparable U.S. mandatory standard. A policy that required the
receiving country to evidence its acceptance of the product would not
interfere with legitimate trade between willing trading partners.
I see no impediment to applying such a requirement that we receive
positive notice from the receiving country before allowing exportation
of recalled unregulated products. This would eliminate the need for the
phrase ``would have been subject to mandatory corrective action under
this or another Act enforced by the Commission if voluntary corrective
action had not been taken by the manufacturer.'' It could be difficult
for the Commission to develop industry guidance on such a phrase. The
staff does now, on occasion, negotiate a non-export provision with a
company as part of a voluntary recall of an unregulated product. This
legislative change would provide staff with the clear authority to deny
the exportation of recalled unregulated products as part of the
corrective action plan unless the receiving country indicated their
willingness to receive the product. I also support making the export
provisions of the Flammable Fabrics Act consistent with the export
policy in our other statutes.
The current export policy was written in a different era when we
were a major exporter. Now we are largely on the receiving end and our
consumers do not know who to trust anymore when they are buying a
product. Changing our policy to one that requires the consent of the
receiving country to export a product that we would not sell to our own
citizens puts us in a better position to be able to more successfully
demand that products coming into our own country from abroad meet our
own safety standards.
Section (c)--False Certification of Compliance With Testing Laboratory
Standards
I support this provision which will give us another tool to
penalize makers and importers of recalled products that purport to meet
nationally recognized standards, but which intentionally do not.
Counterfeiting is big business and we should make it a costly mistake
to make unsafe products under the false auspices of a respected entity
such as the Underwriters Laboratories.
Section (d)--Misrepresentation of Information in Investigation
I support this provision. Occasionally manufacturers, in an attempt
to reduce the cost of a recall, will try to limit the number of
products affected by it. Then, when injuries occur with the same
product, but in a production run not covered by the initial recall, the
Commission is forced to expand the scope of the recall to cover those
additional products. We seem to be seeing more of these situations
lately. This provision would make companies pay closer attention to
correctly identifying the scope of their products included in the
recall and give us one more tool to keep companies honest in their
dealings with the Commission.
Section 17: Penalties
Section (a)--Civil Penalties
I support this increase in the maximum amount of civil penalties
that may be assessed for violations of our statutes. While I had
initially supported having no civil penalty cap at all, I think the
amount specified by this bill is sufficient to prevent even the largest
companies from viewing the risk of getting caught violating our
statutes as merely a cost of doing business.
Our negotiating room would no longer be so limited that it would be
difficult for the agency to make, and for industry to see, meaningful
distinctions in our assessments of civil penalty amounts among the
types and circumstances of the violations involved. As a practical
matter, the staff and the Commission would still be guided by the
circumstances of each violation but would no longer be constrained by
an upper limit that often results in penalties lower than the staff
would like to assess. In addition, with such an increase the agency
could immediately begin to look at assessing penalties for all
violations of section 19 and not focus, as we have almost exclusively,
on failure to report, a situation that I believe has resulted from a
maximum penalty amount set too low to accommodate multiple violations.
I support making the penalty amounts the same in all of our
statutes. I also support the provision that makes it clear that the
Commission may consider other factors in deciding the amount to assess
for a civil penalty in addition to those specified in our statute.
Section (b)--Criminal Penalties
I support removing the requirement in the CPSA that there has to be
a notice of noncompliance received by the company from the Commission
before a criminal penalty can be imposed for a violation of section 19.
This has been an impediment to the Justice Department's ability to
pursue criminal sanctions on the agency's behalf.
The two-tier criminal penalty system laid out in the bill is
similar to one that the Justice Department has indicated we should have
and since they actually prosecute our criminal cases, I would bow to
their assessment that they think such a system is needed. It might be
helpful if the bill provided some guidance as to the meaning of
``knowing'' and ``willful'' in the criminal penalty provisions.
I also support the two-tier system in the FHSA. I do note that
while it increases the penalties, it does add a ``knowing'' requirement
to the first tier offenses that does not currently exist. Given the
increase in the penalty amount, and the desirability of harmonizing the
criminal penalties with that of the CPSA, that may be an appropriate
change.
I do not know why there are no criminal penalties under the
Flammable Fabrics Act, but considering that children's sleepwear,
mattresses, and upholstered furniture are regulated (or may potentially
be regulated) under this statute, Congress might want to consider
including the same criminal sanctions in that statute as are contained
in the CPSA and the FHSA.
I also support having the additional criminal penalty of requiring
a company to forfeit any assets associated with a violation of our
statutes. All of these provisions will greatly strengthen the agency's
hand in criminal cases and put real teeth in our enforcement abilities.
Section 18: Preemption
I believe the Commission went astray went it decided in 2006, after
years of not offering an interpretation of the preemption language in
the Flammable Fabrics Act, to use the new Mattress Flammability
Standard to interpret that statute to prevent certain civil court
actions. I would hope any court looking at this sudden and unnecessary
change in Commission policy would ignore it, but I would have much
preferred if the Commission had not attempted to sway the courts with
its own interpretation in the first place. It is up to Congress to
decide what the preemptive effects of our statutes should be and I
leave it to Congress to decide whether all of our statutes should
contain the explicit non-preemption language contained in section 25(a)
of the CPSA that makes it clear that CPSC rules and other orders ``do
not relieve any person from liability at common law or under State
statutory law to any other person.''
Section 19: Information Sharing with Federal, State, Local and Foreign
Governments
I support this provision for information sharing. The Commission
would have to be judicious in its distribution of material to others
and vigilant in making sure that information provided by it or given to
it is not disclosed inappropriately. Information given by the agency to
an entity who inappropriately disclosed it, should nullify any
agreement to share information with that entity in the future.
Section 20: Bond Authority
I support this provision to require a measure of financial security
from those who seek to distribute or sell products in our country and
whose products may subsequently be recalled or seized at their port of
entry for failure to comply with a mandatory standard. This may be
particularly helpful in the case of certain importers who have little
financial stake in the transaction they are facilitating.
Section 21: Enforcement by State Attorneys General
Given the Commission's historically small resources for litigation,
having fifty additional legal teams to enforce the provisions of our
statutes could be of tremendous benefit. However, the Commission needs
to retain control over the interpretation of its statutes for
enforcement purposes and would not want to spend significant resources
intervening in cases to assure this result. The subcommittee might
consider whether it is possible to require the State Attorneys General
to consult with the General Counsel of the Commission prior to filing a
lawsuit and condition the filing of the suit upon the consent (or non-
objection) of the Commission. This would allow us to head off misguided
lawsuits and lessen the need for the Commission to intervene in these
proceedings.
Section 22: Whistleblower Protection for Manufacturers' Employees
The bounty provision of this section is intriguing. On occasion,
employees of companies have provided information to the Commission that
has proven useful in pursuing actions against their companies for
violations of our statutes. Encouraging employees with this type of
information to come forward, and then protecting them when they do,
could act as one more deterrent to companies who put profit ahead of
safety. However, the protection side of the equation would be difficult
for our agency to administer. Each case would require an examination of
the facts in the particular situation and an understanding of the
personnel system and rules in the employee's company as well as the
history of the interactions between the employee and the company. These
are not the types of cases in which CPSC lawyers are typically involved
and I am not at all sure that having the Commission become so
intimately engaged in the inner workings of a company's employment
practices would be appropriate. If the subcommittee wants to provide
protection to employees in these situations, it may want to look at
another venue for these employee complaint determinations, such as the
Department of Labor.
Section 23: Ban on Children's Products Containing Lead and Amendment of
the Lead Paint Rule
I support this provision. I am pleased to see that this bill gives
teeth to the Commission's 1998 guidance statement to industry urging
them to remove lead from children's products. The response from the
Congress, the media, and from parents to the recent spate of recalls
makes it clear that consumers will not tolerate their children being
exposed to lead in children's products. The bill provides a ceiling for
lead in these products, but gives the Commission the authority to set
that ceiling even lower. It also lowers the amount of lead allowed in
paint or other surface coatings on children's products. It is my
understanding that the majority of American paint manufacturers already
meet this extremely low level of 90 parts per million, so this change
reflects a standard of care most members of our industry already meet
and it should similarly be attainable by paint manufacturers in other
parts of the world who send their products to the United States.
Section 24: Cost-Benefit Analysis Under the Poison Prevention Packaging
Act
I support this provision as I believe it clarifies the intention of
an earlier Congress not to require a cost-benefit analysis in a statute
that seeks to reduce children's poisoning deaths by requiring certain
substances to be in child-resistant packaging. The cost of child-
resistant packaging adds pennies to the cost of a product. This is a
small price to pay to help keep our children safe. This Act has worked
well and it should not be weakened by allowing OMB to pressure CPSC to
read language into the statute that does not exist.
Section 25: Completion of Upholstered Furniture Rulemaking
I appreciate the subcommittee's frustration with the slow pace of
this rulemaking, although I think certain developments, such as the
Commission's work in the mattress rulemaking, have added greatly to our
understanding of the fire dynamics of upholstered furniture and have
changed the way our staff is looking at this problem for the better. I
do think it is time for the Commission to issue a proposed rule based
on the staff's extensive work and let all parties have their say.
Conclusion
I think that the comprehensive legislation package introduced by
Senator Mark Pryor, with Commerce Committee Chairman Senator Daniel
Inouye as original cosponsor, and with Senator Richard Durbin and
Senator Amy Klobuchar as cosponsors, will severely test the will of
Congress to provide the Commission with the necessary tools it needs to
be an effective force in protecting consumers from product safety
hazards. Many of the provisions come from recommendations submitted by
myself and Acting Chairman Nord.
However, I think that it is very important that in whatever we do
collectively--through efforts at the Administration level, Congress and
the Commission--to address the most recent problems facing the
Commission, we must send a clear, unequivocal message to manufacturers,
importers and retailers who bring and offer for sale in this country
products which present a substantial product hazard or that do not
comply with a U.S. product safety standard: That message should be
that, ``your actions are unacceptable and you will be held
accountable.'' The Commission must have the sufficient resources, the
adequate authority and the internal willingness to deliver that message
with no hesitation. The Pryor legislation goes very far in providing
the first two variables in the equation for an effective enforcement
authority. The Commission must supply the rest.

Senator Pryor. Thank you, Commissioner.
What we're going to do is go a little bit out of order
because of some scheduling constraints here. I'll recognize
Senator Sununu first, and we'll go to Senators Klobuchar, then
McCaskill, then Nelson.
Senator Sununu. Thank you, Mr. Chairman.
Chairman Nord, you spoke about one provision you'd like to
see included in the legislation that's not there, that's the
``relied upon'' standard. Could you explain, briefly, what that
really means, and why you think it's an important item to have
in the legislation?
Ms. Nord. Yes, the Consumer Product Safety Act sets out a
rather complex way for the Commission to write safety standards
on its own initiative. But, it also recognizes that there is a
very skilled community out there that writes safety standards,
that pulls in all stakeholders, that looks at the technical
feasibility of these things, and comes out with voluntary
standards. An example might be an Underwriters Laboratory
standard for electrical products, extension cords, that sort of
thing.
The statute says that the Commission may rely on these
voluntary standards under certain circumstances. It talks in
terms of putting that decision out for notice and comment so
that we can get input from the public on whether that standard
is a good one, and should be relied on.
I believe that the statute can be read--and should be
read--to say that in those circumstances, when we go through
that process, that standard then takes on an enforceability
characteristic. And if we did that, then we would be able to
use that as a way to deal with unsafe imports.
As I said, there's a UL standard for electrical products--
that's a voluntary standard, that's not a mandatory standard.
But, I think that's an example of something where we could rely
on that standard--after getting notice and comment, which our
statute requires--and then enforce that standard against
imports also. I think it could be done now, under the way the
statute is written, however, if there is confusion on that
point, I would be happy to submit for your consideration some
clarifying--minor clarifying--amendments.
Senator Sununu. Where in the legislation might you
highlight one or two areas of particular concern? Where do you
think that the goals or the objectives of the legislation might
not be well-served because of secondary impacts or unintended
consequences?
Ms. Nord. Well, I'm concerned about the provision calling
for a parens patriae enforcement of the Consumer Product Safety
Act. We can talk about how that would impact our Agency, but I
do think that that would result in a great deal of confusion
and a lack of primacy of the Agency in interpreting its own
statutes.
I am concerned about the amendment to Section 6(b), because
I think that 6(b) is very much of a tool in our tool chest that
we use in order to get information from companies, and enforce
the law. So, I'm concerned about the way that that provision of
the bill is written. I think, however, that under the construct
that is set out there, we can make some changes to it, to keep
the good parts of 6(b), but get rid of the parts that are being
criticized.
Senator Sununu. And 6(b) affects manufacturer's ability and
opportunity to comment on information, and provide information
to the Commission, is that correct?
Ms. Nord. Yes, yes it does.
Senator Sununu. So is it--part of that process sort of
maintaining a high level of cooperation and collaboration?
Ms. Nord. Well, it's more than that.
Under the Consumer Product Safety Act, manufacturers are to
report to us whenever they become aware of a defect that could
present a problem. That is a much, much looser standard than
any other Federal agency has with regard to reporting
requirements. It's much looser than, for example, what NHTSA
has.
So, what we are doing is telling companies that they need
to report to us, and they have to make a judgment call as to
when they need to report to us--it's when a defect could pose a
problem.
Senator Sununu. When you say it's a looser standard, you're
saying it's a very low bar----
Ms. Nord. Yes.
Senator Sununu.--a very low threshold for them to come
forward to you with information, because they think that there
might be an issue?
Ms. Nord. Yes, yes. But, on the other hand, I'm not
criticizing that standard, I think that standard is important,
because it encourages companies to come to us and talk to us
about problems. We, then, work with the company to determine
whether there is an issue, whether there is a defect, whether a
recall needs to happen. And with respect to a number of the
reports we get, we determine that no recall is required.
What we don't want to do, and what I'm concerned about with
the way the amendment to 6(b) is written, is that it is going
to decrease the incentive for companies to come to us and work
through these problems. Because the confidentiality isn't
protected. I think, however, that if we were to take the
construct of the amendment to 6(b) in this Act, and include a
requirement that we could keep confidential information that is
reported to the Commission until after there is a recall, that
could go a great way toward alleviating the concern that I have
about how this would operate in a way that would be
counterproductive to the Agency.
Senator Sununu. Commissioner Moore, are there any
provisions in the legislation that you have concerns about, or
that you'd like to see expanded or added to?
Mr. Moore. I really have looked at the legislation
carefully, and we've reviewed it carefully, and I think it
offers some very positive steps for us to take, in terms of our
ability to be effective in the consumer safety area. So, I
don't see any problem with the legislation.
Senator Sununu. Thank you, last question--there's a
provision, Commissioner Nord, to authorize $20 million for
upgrades to the lab in Gaithersburg. We saw a picture, and
obviously it was a very cluttered space, where there were a lot
of items on the bench--I don't think we should draw too many
conclusions from one photograph, but I would guess that there
are some specific needs. Any time you have a laboratory, you
want to keep it as up to date as possible.
Does the Commission have a blueprint or an idea of how that
funding for laboratory space would be used? And what the
priorities would be, if that funding were included in final
legislation, and an appropriation bill?
Ms. Nord. Is that to me?
Senator Sununu. Yes.
Ms. Nord. Oh, yes.
We are now working very closely with GSA to try to find a
real estate solution to the issues presented by the laboratory.
It is out of date, it needs to be modernized. At one point, we
were talking with GSA about basically tearing it down and
rebuilding it. And, at that point--and this was about 5 or 6
years ago, we were talking in the range of $20 million. If we
were to reconstruct it, I think $20 million would probably be
low.
I think we can do it in a more cost-effective way, through
a realistic solution to the problem. However, I do feel
compelled to say to you, that even in a modern laboratory, the
picture you saw of Bob and the drop test--that would still be
the same. That test is used around the world in order to
determine small parts. It's used in the most modern
laboratories, and in our laboratories. So, that is the same
test that you would be seeing, when we move into our new
laboratory, which I hope will be soon.
Senator Sununu. Thank you very much.
Thank you, Mr. Chairman.
Senator Pryor. Thank you.
Senator Klobuchar, you're recognized for 5 minutes.
Senator Klobuchar. Thank you, Commissioner Nord,
Commissioner Moore. And, we're together again, Commissioner
Nord, I think it's a third time. They say third time is a
charm, hopefully not a lead charm.
[Laughter.]
Senator Klobuchar. I was trying to understand--I just
couldn't resist--how you identify products to test and to
recall. And, you know, I've been--Tamara Fucile who's my great
staff member on this--these were her daughter's trains, and
these were recalled on June 13. She, in fact, had a whole
starter set for her daughter, which included this little tree,
and this signal in the Thomas the Train set. And so, she
dutifully gave these to me with which to go around the country.
But, she found out that these other sets were recalled on
September 26. So, she thought these were safe, even though they
were in one grouping of toys that she bought together--and you
can see how her daughter has chewed on these, on the corner of
the tree--and, in fact this green paint, and this with the
green paint as well, was recalled even though they were all in
the same set, on September 26.
And so, what I'm confused about is, if these were tested
and we found out that this red paint had a problem, why these
weren't recalled at the same time, when they were in the same
set? And so, how do you identify the products that you need to
test for a recall?
Ms. Nord. Recalls occur in a variety of different ways.
First of all, companies--because they do have an obligation to
report to us, they do come to us and say, ``Look, we think
we've got a problem.''
When that happens, a couple of things can happen. First of
all, we will sit down with the company and research it, and
make a determination as to whether a recall should occur, or it
shouldn't occur.
Another way that recalls happen is that, if the company
comes to us and says, ``Look, we believe that we have got a
violation of,'' for example, ``the lead paint ban.'' We're
going to do a recall. And it's something that they--they don't
have a conversation with us about. They have decided to do it.
That is what is called a ``fast track'' recall, and when that
happens, we try to get those recalls accomplished within 20
days of having the first conversation with the company.
What happened with respect to the Thomas the Train Engine,
I believe, is that the company--well, I know--the company came
to us and said, ``We are going to be doing a recall of this
product, because we have found lead paint in them.'' We
facilitated that recall.
Senator Klobuchar. But when they have the same items in the
same set--doesn't that trigger some kind of testing
requirement? When they've told you that this item has a
problem, you don't test for the other items in the same set?
Ms. Nord. No, the lead paint ban is a bright-line statutory
ban. If they sell product with lead paint, then they are in
violation of that.
Senator Klobuchar. I understand that, but our country did
not step in, and say that these other items should be recalled.
It would seem it would be simple to test this green paint, and
to find a set that was sold together like this.
Ms. Nord. Our country stepped in and said, ``If you sell
something with lead paint, you will be in violation of the law,
and it will be recalled.''
Now, after the June situation with Thomas the Train Engine,
we did sit down and do a great deal of testing on these
products. And, I'd be happy to get back to you as to why the
green tree was or was not--there's a lot of misinformation out
there about these particular products. But let me just find out
what, actually, we did, and I'll respond to you. Be happy to.
[The information previously referred to follows:]

Thomas and Friends Product Testing
The green tree was tested before the original recall of items in
the Thomas and Friends Wooden Railway Toys set in June 2007, but the
test did not show lead-containing paint. Later tests showed some green
trees with lead-containing paint and some without; however, the firm
decided to recall all of the green tree units without regard to
production date. Accordingly, this item was added to the recall list on
September 26, 2007. (http://www.cpsc.gov/cpscpub/prerel/prhtml07/
07308.html).

Senator Klobuchar. Thank you, my time is expired, and I
appreciate that. We can talk about it more in the future.
Senator Pryor. Senator McCaskill?
Senator McCaskill. I recall, Ms. Nord, when you were here
earlier this year in front of the Commerce Committee. And my
recollection is--and I think the record will reflect this--that
you indicated, in fact, testified, that the Fiscal Year 2008
budget request was adequate for your needs. Is that correct?
Ms. Nord. I testified that we were submitting a budget that
laid out what we would be doing. That the monies that were
being requested would be adequate to do the things that were
laid out in that budget document.
Senator McCaskill. But weren't you specifically asked if
you needed more? And didn't you specifically say that you
didn't?
Ms. Nord. No. I believe I was asked--what I recall saying
is that, with more I would do more.
Senator McCaskill. But you didn't request more?
Ms. Nord. We requested what was in the budget document. And
that was, frankly, a unanimous vote of the Commission. So, my
colleague and I made that request.
Senator McCaskill. It's irrelevant whether it was unanimous
or not. I'm trying to figure out how we get past the reality of
the situation we're facing right now? We had a full Committee
hearing concerning your agency, and there were no alarm bells
signaled by anyone at your agency at that hearing that the
facilities were inadequate, that the staff was inadequate. You
all did not come to this Committee at that point in time and
say, ``We've got all these problems out there.''
Now, we have this scandal that has been uncovered in one of
our Nation's largest newspapers, and here we are and I'm
assuming that you will say today that you need more.
Ms. Nord. Give me more, and we will spend it.
Senator McCaskill. No, I'm not asking you--do you, do you
believe to do your job--this is a very simple question. You are
the leader of this agency. Do you believe that you need more to
protect the American consumer, or not?
Ms. Nord. I would like to have more resources, absolutely.
Senator McCaskill. And are you requesting more resources to
do your work?
Ms. Nord. There is an appropriations bill that has been
before the Senate and it gives us, I believe, another $7
million. We will put that to very, very good use.
Senator McCaskill. That's not my question. You will not--
are you requesting more money for your Agency? Yes or no?
Ms. Nord. Give me more money, and I will put it to good
use, Senator.
Senator McCaskill. Why can't you say you need more? What is
the problem here? You have got the parents of America that are
outraged that they are buying products from manufacturers like
Mattel, the venerable Barbie doll, Thomas the Train, part of
our cultural land of toys in America, and they are scared. And
this article has exposed that you've got a corner of a room
where you're testing toys, there are only 2 people working in
the IG's office, your staff is back at the level it was in the
1980s and you can't bring yourself to say, we need more?
Ms. Nord. Senator, in March I did identify the problem with
the laboratory in rather significant detail, I highlighted it
at that point. I'm just so pleased to see that this Committee
is authorizing significant amounts of money so that we can deal
with that.
Senator McCaskill. I think it's obvious that for some
reason you are uncomfortable stating the obvious. And it really
worries me about this agency and your unwillingness to state
the obvious.
Could you tell me the average length of time between the
point in time you get notice of a potential recall, the average
number of days between notice of a potential recall and recalls
that have actually occurred?
Ms. Nord. We do--in any given year, between 450 and 475 of
them. Every one would be very different, I would need to----
Senator McCaskill. I asked for the average.
Ms. Nord. About half of our recalls are fast track recalls,
which I've just described to Senator Sununu. They're done
within 20 days of when the company comes in and starts talking
to us.
With respect to the other recalls, those are the much more
complicated ones, and that can range from a few days to a year,
or more than a year. It really depends on the complicated
nature of the recall, the complexity of the issue, the kind of
product that we're dealing with, but----
Senator McCaskill. But if you had more staff, it could go
more quickly, couldn't it? Maybe it wouldn't take a year if you
had more help.
Ms. Nord. If we had more staff, what we would be doing is
probably--well, we would be--out there in the marketplace
policing the marketplace in a more aggressive way, absolutely,
ma'am. We would be on the Internet, we would be increasing the
number of compliance officers we had. With more staff, we can
do more, absolutely.
Senator McCaskill. I want to assure you that, I think, for
the majority of Congress you're not going to get in trouble for
saying you don't have enough and that you need more.
Thank you, Mr. Chairman.

STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA

Senator Nelson. Would the Senator yield?
Senator McCaskill. If it's OK with the Chairman, he's in
control, I think.
Senator Pryor. Not necessarily.
Senator Nelson. Yes, the Chairman's in control.
Mr. Chairman, I just want to say to the Senator from
Missouri, the reason the Chairman of the CPSC will not answer
the question, is that she, as Chairman, as a political
appointee, is not allowed to ask for more, because she is under
the orders of the White House Budget Office only to ask for
what is approved by the White House budget. And this isn't the
only Agency that does this. We've got a huge amendment that's
coming up on the floor on the Commerce, State, Justice
Appropriations that directly affects me, and a lot of folks,
including you in Missouri on NASA. And NASA can't request more,
although they desperately need more. Because they've spent all
of that money on the return to flight after the Space Shuttle
Columbia's disaster.
And so, why don't we just get to the nub of the coconut,
which is, you can't ask for more even though you say you'll
spend more, because you're under orders from the White House
not to ask for more. Is that correct?
Ms. Nord. I have never had a conversation like that with
the White House, but----
[Laughter.]
Senator Nelson. Mr. Chairman----
Senator Pryor. Go ahead.
Senator Nelson. Well, there's one of them. Let's stipulate
that once a product is recalled that it ought to be removed
from the stream of commerce. But unfortunately, that has not
happened.
Here is Barbie's Dream Kitty Condo. And Barbie's Dream
Kitty Condo has a kitty cat. And this product was still being
sold over the Internet after it had been recalled--that was 2
weeks after it had been recalled. Obviously, it's critically
important to get these things out of circulation. This one was
recalled because of the lead paint, as was this Thomas the
Train because of the lead paint.
So, what about the recalls. What is the CPSC doing to make
sure that once the recall is made that you get them out of the
stream of commerce?
Ms. Nord. That is an excellent question, Senator, and I'm
so pleased that you raised it, because it does highlight a
weakness in the statutes that we are administering.
I was rather surprised--to say the least--to realize that
it is not a violation of the law to sell a recalled item,
unless we would go through a process to declare it a
substantial product hazard. That is why I suggested, and I'm so
pleased to see in the Chairman's bill, a provision that would
make it against the law to sell a recalled item. And, I hope
that that provision is, indeed, enacted.
Trying to get recalled products out of the stream of
commerce is an incredibly difficult and complex thing, and you
referenced the Internet. The Internet has made it more
difficult, by orders of magnitude. We do have a relationship
with the big auction houses, where they agree to not sell
recalled items, or to take them down if they find them. But
things slip through, and we are continually having those kinds
of conversations with auction houses. When you get down to the
smaller sellers, or individual sellers, it becomes a very, very
difficult problem, and we have to address it on a case-by-case
basis. But, I think the provision in the Chairman's bill that
makes it against the law to do this will be very, very helpful.
Senator Nelson. So, that's helpful, and that's another
reason why we need to pass your bill.
So, until this bill gets passed, and it becomes law, you're
saying that you are powerless to deal with the items that have
been recalled and are still out there in the stream of
commerce?
Ms. Nord. No, we're not powerless to deal with them, and
with respect to----
Senator Nelson. Well, tell us what?
Ms. Nord. With respect----
Senator Nelson. What powers do you have that enable you to
deal with it now?
Ms. Nord. With respect to, for example, the lead paint ban.
They would be selling a product in violation of a regulation.
So, they would be in violation of a standard. So, we would be
able to bring an action against them. And, indeed, we do do
that.
With respect to things that are recalled because they are
defective, but there is no regulation, at that point, we would
have to make a determination that that was a substantial
product hazard, and they would have had to have reported to us.
So, what we would do would be to get them on a reporting
violation. That's not the most graceful, easy way to enforce
the law. So, again, I'm pleased to see that the Chairman has
included this provision in his bill.
Senator Nelson. OK, I'm reporting to you now that Barbie's
Dream Kitty Condo is being sold on the Internet, after it has
already been recalled. So, what power does the CPSC have to
stop it being out there in the stream of commerce?
Ms. Nord. And it's being recalled for a lead pain
violation?
Senator Nelson. Yes.
Ms. Nord. It's in violation of the statute, and we will
take enforcement action.
Senator Nelson. There it is, right there.
Ms. Nord. Thank you, Senator. We'll get right on it.
Senator Nelson. All right.
Ms. Nord. Sir, in fact, sir, if your office could give us
the details, it would be helpful.
Senator Nelson. OK. Well, other than what I've just told
you. Mattel----
Ms. Nord. Well, where did you buy it?
Senator Nelson. On the Internet.
Ms. Nord. Well, we need to have a website address.
Senator Nelson. All right.
Ms. Nord. Thank you.
Senator Nelson. Have you asked manufacturers to make the
process easier for consumers through incentives, to return
products?
Ms. Nord. In some cases, yes, indeed, we do do that. Each
recall is different, and each recall is tailored to meet the
particular issue that is presented to us. And in some cases,
yes, indeed, we have required incentives.
Senator Nelson. You've required them?
Ms. Nord. Yes.
Senator Nelson. Have you negotiated with manufacturers on
voluntary corrective action plans?
Ms. Nord. Of course, yes.
Senator Nelson. You have?
Ms. Nord. Of course.
Senator Nelson. And as a result, have they said that
they're going to get them out of the stream of commerce?
Ms. Nord. Well, when you have a recall, that is what you're
doing.
Senator Nelson. But, in the secondary case, when they go
back into the stream of commerce?
Ms. Nord. They shouldn't be going--I'm not sure I'm
following you. They shouldn't be going back into the stream of
commerce if they've been recalled----
Senator Nelson. But they are.
Ms. Nord. Well, in that case, we would be going after them
for a violation--we recently had a situation where we did
recall a piece of clothing because it had a drawstring, which
is a substantial product hazard, and the product ended up on
the shelves, so we took enforcement action against the product
seller. We do that from time to time, sure.
Senator Nelson. In your testimony, you have expressed some
concern over the part of this bill that would require third-
party testing and certification of children's products.
You stated that, ``the regulatory system set up for
certifying and auditing testing laboratories seems to duplicate
many of the functions of existing government and private
organizations.''
Ms. Nord. Yes.
Senator Nelson. I want to show you a new photograph that
you haven't seen.
Ms. Nord. Oh, good.
Senator Nelson. This is the CPSC.
Ms. Nord. Yes.
Senator Nelson. Does that please you?
Ms. Nord. I've been testifying since I have been the acting
Chairman of this agency that our lab needs to be modernized. We
need a new laboratory.
Senator Nelson. And yet, you don't want independent
certification?
Ms. Nord. No, I never said that.
Senator Nelson. Well, in your testimony you stated, ``The
regulatory system set up for certifying and auditing testing
laboratories seems to duplicate many of the functions of
existing government and private organizations.''
Ms. Nord. No, what I am concerned about in the provision,
and it may be just a function of, that we're not understanding
what the drafters had in mind, but there is a whole structure
out there for credentialing laboratories, certifying
certifiers.
For example, as I said in my oral statement, the National
Institute of Standards and Technology under something they call
NVCASE, National Voluntary Conformity Assessment Systems
Evaluation Program--well, it's a program that they have where
they certify the certifiers, and then a group like ANSI or A2LA
will then certify the people that are actually doing the
testing.
And that process works fairly well, it's something that
people are familiar with. And I would hope that under the
construct of the Chairman's bill, something like that would not
necessarily be precluded from the requirements. And there are
people out there who know how to do this, and the CPSC does
not. I mean, we have a testing laboratory, we test, but for us
to certify other people to go do testing would be a brand new
and, I think, rather resource-intensive process for us.
So, what I'm saying is that I would hope that we could use
all of the various resources that are out there, that are
already looking at these issues, and not reinvent something
from whole cloth. And I would hope that that was the Chairman's
intention when he drafted the bill.
Senator Nelson. Since 80 percent of these toys come from
China, do you have any objection to independent certification
before the toys would ever be shipped from China?
Ms. Nord. Absolutely not. And, indeed, in the proposal that
I sent to the Committee several months ago, I requested an
amendment to the Federal Hazardous Substances Act so that we
could indeed have certification authority.
Senator Nelson. It's obvious that neither the Chinese
government is going to police the toys--and it hasn't--nor is
the Chinese industry going to police the toys--and it hasn't.
So, isn't it logical that, since most of the toys are coming
from China, to ensure that we don't have defective toys, that
they get an independent certification such as one of those
international laboratories that is well-recognized for its
professionalism?
Ms. Nord. Sir, I think that independent testing and
certification is a very, very good way to assure product
quality, as well as give the CPSC a very effective enforcement
tool.
Senator Nelson. Do you intend for the CPSC to take a
position on that?
Ms. Nord. On----
Senator Nelson. What we've just been talking about, for the
last 5 minutes?
Ms. Nord. I am taking a position. As the Chairman. I would
have to defer to my colleague.
Senator Nelson. Well, I would assume that would be
something you would present before the CPSC.
OK, Mr. Chairman, thank you. You've been very kind with the
time.
Senator Pryor. Chairwoman Nord, let me ask you a few
questions.
First, you talk about the--some people call it ``fast
track'' authority, some people call it ``relied upon'' or
voluntary standards--you mentioned a few moments ago that you
believe that the proper interpretation of the statute is for
the CPSC to accept a voluntary standard and to try to make it
enforceable, is that fair?
Ms. Nord. In certain instances, I think we have the
authority to do that.
Senator Pryor. And has the CPSC done that?
Ms. Nord. They did it--they have done it twice.
Senator Pryor. And how long ago was that?
Ms. Nord. It was back in the 1980s.
Senator Pryor. Is there a reason why you haven't done it
since you've been at the CPSC?
Ms. Nord. I sought to do it once, but I was not able to get
a majority vote in order to do it.
Senator Pryor. And we understand the agency has had
problems with quorum and all of that, so----
Ms. Nord. No, I was not able to get a majority vote in
order to do it.
Senator Pryor.--let me ask about the full-time employees.
As I understand it, today, you're authorized for 420 full-time
employees, I believe. Do you know how many full-time employees
you actually have?
Ms. Nord. Well, it fluctuates--but at this point, we're
down to around 400, under 400.
Senator Pryor. And has that been the trend that the number
of employees are going down?
Ms. Nord. Well, our challenge was that under the
President's budget we would have an FTE ceiling cap of 401
employees.
Senator Pryor. Yes.
Ms. Nord. So, what we need to do is get down to that cap,
unless our budget is different.
Senator Pryor. Well, there again, we can talk about OMB and
all of that----
Ms. Nord. OK.
Senator Pryor.--in another context, if you want to.
You, I believe, mentioned in your opening statement and I
know in the written testimony, as well--that you have some
concerns about the Attorney General enforcement, the State
Attorney General enforcement?
Ms. Nord. Yes, I do.
Senator Pryor. Right now, how are enforcement actions done,
when you have to go to court--do you all do that or does the
Department of Justice do that?
Ms. Nord. The Department of Justice does it.
Senator Pryor. And how many cases are referred to the
Department of Justice every year? Give me a sense of that
workload there.
Ms. Nord. We have always an ongoing number of cases that
goes up and down, probably 10 at any given time.
Senator Pryor. I'd like to get into that in more detail at
some point with you or your staff----
Ms. Nord. Fine.
Senator Pryor.--to figure out exactly how that's working
right now, and how the Department of Justice is doing and how
they prioritize it, and how they move things through the
system, and how satisfied the Commission is about that.
Let me also mention that there--what I perceive as an
inconsistency in your testimony--and that is, when you talk
about penalties, and we talk about whistleblowers and things
like that, I think you mentioned that increased penalties might
result in more information coming to the CPSC, but when you
talked about the disclosure provisions in the bill, you talked
about how that might mean less information coming to the CPSC.
Could you clarify that? Maybe harmonize your testimony there?
Ms. Nord. I'd be happy to.
As I mentioned to Senator Sununu, under Section 15(b),
companies are required to report to us if they become aware of
a problem that could pose a defect. That's a very, very loose
standard.
What we tell companies is, when in doubt, report. We want
to hear from them about issues and problems that may pose a
problem, because once they report, we look at it, then we go
back to them, ask for more information, work it through and
then make a determination as to whether there's a real problem
here, or if it is not a problem. So, that's what's happening
under Section 15(b), and that's what we want to have happen.
What I'm concerned about, under the penalties provision, is
that if you increase the penalties so dramatically, as you have
in your bill, companies will--out of an excess of caution, at
least probably the big ones--not go through that process of
trying to separate the wheat from the chaff, and we will get it
all.
And so, our compliance office is then going to be
challenged to sort through the large amount of information we
get, in order to figure out what's significant, and what isn't.
And that, I think is going to overwhelm--I know, the compliance
people have talked to me in great detail about their concerns
about this provision, and how it may well overwhelm them.
Right now, I think that the statute sets up a good counter-
balance. It protects information that comes in that we use, and
while we're using it. And once a recall occurs, then that
protection goes away. If you feel that the penalties are too
low, increase them. And indeed I suggested $10 million. But, I
think $100 million may have the perverse effect of having
companies basically send all their consumer complaints to us,
and let us go through the process of figuring out what's
important and what isn't.
Senator Pryor. And, I think you referred to confidentiality
when you were discussing this with Senator Sununu, I think you
said that was your primary concern.
But let me ask this--previously in other testimony, you
also mentioned, you referred to NHTSA in another context. But
NHTSA has a website where all of their complaints--as far as I
can understand it--all of their complaints, no matter how valid
or not they are, they go on the website and are open to the
public for everybody to see. What's the downside of you all
posting all of the complaints, just so John Q. Public can see
what's being said about these various products? Whether valid
or not, let the public sift through that. What's the downside
of not following a NHTSA model there?
Ms. Nord. Well, if we were to follow the NHTSA model, that
would be fine, but what I would suggest to you is that we
really have to follow the NHTSA model.
When complaints come into NHTSA, it is at a much further
point in the process. When somebody reports into NHTSA, it is
because they have fully investigated the report, and they're
ready to do a recall. So, that's one aspect of it.
With respect to consumer complaints coming into NHTSA, Mr.
Chairman, first of all, NHTSA is dealing with a much more
defined jurisdiction than the CPSC is. We get about 30,000
consumer complaints coming into our Agency every year. They
come in, in various forms, many of them are not accurate. I'm
not sure how the public would be benefited by learning about
the fact that, you know, a person has complained about a coffee
maker of Brand A, when actually it's Brand B, and the fire was
started by faulty wiring in the home. That really doesn't help
the consumer.
So, I think if we're going to go that route, we need to
spend Agency resources to make sure that the consumer
complaints that go online have some meaning so that consumers
are not mislead or confused by what's there.
Senator Pryor. Well, we can check the facts on that, but
you know, my understanding, and the Committee staff just
reiterated it with me, is that consumer complaints are posted
on the NHTSA website, for example, the one they gave me is with
baby seats, car seats.
[The information referred to follows:]

Senator Pryor. But anyway, we can talk about that later.
Let me ask one last question and that is, in your testimony you
say, with respect to expanding our jurisdiction into non-safety
areas, I point to the provision in Section 16, making it a
violation of our Act to sell a counterfeit product--whether or
not the product is safe--and to the provision referring to.
Let me ask this--you have indicated in your testimony--both
written and oral testimony--today that you feel like this bill
that we've drafted gets us into non-safety areas. Maybe you and
I just see it differently, but when it comes to the third-party
certification to look at products, to make sure they meet our
standards, to me that is a safety--I would not characterize
that as a non-safety process. I mean, to me, you have a third-
party that you all would lay out the parameters of what they
need to be doing. They basically need to certify that these
products--whatever they may be--meet U.S. safety standards, and
to me, that is not a non-safety area. Could you elaborate on
that?
Ms. Nord. I couldn't agree with you more, sir. Third-party
testing certification to product safety standards is something
that I think needs to be implemented. And I am in wholehearted
support of that, and will work cooperatively and
enthusiastically to implement that kind of provision.
What I was referring to is the provision in the amendment
to Section 19 of our Act, dealing with prohibited acts, which
would make it a violation of law to import a product with a
false certification from a nationally-recognized testing
laboratory. Which wouldn't necessarily go to safety, to a
safety aspect.
And all I'm suggesting is that that really is a false
labeling issue, I think, more properly under the jurisdiction
of the Federal Trade Commission. What you're basically having
us do, is now police the marketplace against counterfeits. And
while I am--I think that we need to do everything we can to get
rid of counterfeits and protect intellectual property, I'm just
not sure of the role of the CPSC is to do that, I think that's
more properly the role of the Federal Trade Commission, and
that's the only point I was trying to make there.
Senator Pryor. I guess what would concern me there is if
you take that position, and take it too literally, you're going
to have a huge body of products that just fall between two
camps: is it FTC or is it CPSC, and to me there's a very large
safety component. And I'll admit, it's probably not present in
every single case, but there's a very large safety component
when it comes to counterfeit products. I think by their
nature--I'm not saying they're unsafe by their nature--but I do
think by their nature, they are not complying with globally
recognized standards, just by them being counterfeit products
and being mislabeled. Just on the outset, they're telling the
world that they're not playing by everybody else's rules.
Ms. Nord. I couldn't agree with you more. And frankly, when
we see counterfeit goods, that's a flag to us. Then we do test
them for safety. Because you're absolutely right--if something
is counterfeit, there is a very good chance that it is also
unsafe.
But, our agency is looking at the safety aspect of it, not
the consumer fraud piece of it. This is an interesting
conundrum that our agency was in about a year ago, just as I
was coming on the Commission, whereby we found a group of
products that were counterfeit, and they were such good
counterfeits that they were very, very safe. And that puts us
into an odd situation, because we couldn't find a safety
violation in those counterfeit goods.
And I'm just trying to draw that distinction between
counterfeiting--making us, having us enforce intellectual
property laws, as opposed to safety laws.
Senator Pryor. I want to thank both of you for your time
today, and your testimony. Did you all have any other questions
of this panel? Because I was going to move to the next panel.
Senator Klobuchar. That's fine. Thank you.
Senator Pryor. Is that OK? Thank you all for your time, and
your testimony today. I'm sure we'll be back in touch. And by
the way, we're going to leave the record open for two weeks,
and allow Senators to submit questions in writing and we'd
appreciate timely responses.
What I'd like to do now is introduce the second panel.
We're, right now, by the way as a floor update--we're waiting a
little bit on the Senate, we understand that we may have votes
at some point soon, but it's indefinite. So, we'll just plow
through this and see how far we can go.
But, I would like to introduce the third panel, now, which
will be Mr. Ed Mierzwinski, Federal Consumer Program Director,
U.S. PIRG; Mr. Travis Plunkett, Legislative Director, Consumer
Federation of America; Mr. Alan Korn, Director of Public Policy
and General Counsel, Safe Kids Worldwide; Mr. Joseph McGuire,
President of the Association of Home Appliance Manufacturers,
on behalf of the National Association of Manufacturers; and Mr.
Al Thompson, Vice President for the Global Supply Chain Policy,
Retail Industry Leaders Association.
So you all, if you don't mind, take your seats, and as soon
as we get everybody's microphones turned on and placards in
place there, we'll go ahead and allow you all 5 minutes each
for an opening statement.
And I'm sorry--did I pronounce that right--is it
Mierzwinski?

STATEMENT OF EDMUND MIERZWINSKI,

CONSUMER PROGRAM DIRECTOR,

U.S. PUBLIC INTEREST RESEARCH GROUP

Mr. Mierzwinski. Senator, that's correct, that's the best
it's been pronounced in Congress, ever.
[Laughter.]
Senator Pryor. All right. Well, thank you.
Well, if you want to be our first testifier, please go
ahead.
Mr. Mierzwinski. Thank you very much, Chairman Pryor,
Senator McCaskill, Members of the Committee.
I'm Ed Mierzwinski and I'm with the U.S. Public Interest
Research Group. We serve as the Federal lobbying office for an
association of state public interest research groups with over
a million members around the country.
For 21 years, we have published a report on dangerous toys,
and that report is called Trouble in Toyland. And Trouble in
Toyland has resulted in over 120 recalls or other corrective
actions by the Consumer Product Safety Commission or other
manufacturers or other agencies. We would believe that it has
actually resulted in more than 120 corrective actions from toys
that we have discovered on the list, except that because of the
notorious Section 6(b) of the Consumer Product Safety Act, the
Commission does not always tell us what they do with the toys
that we have put on the list, even though sometimes these toys
have been on television stations, they've been listed in the
newspapers, and they've certainly been posted on our website.
So, we appreciate the provision in your bill that would fix
Section 6(b).
We would prefer to have Section 6(b) actually repealed, but
we believe your bill goes a long way toward improving it.
Your bill does three things that we think are critical to
improving the Commission. First, it gives it the money and the
opportunity to increase its staff that it needs to provide
safety to the American public.
Second, it holds the corporate wrongdoers accountable, by
increasing civil penalties, making it harder for them to wiggle
out of providing corrective actions, and a number of other
things that it would provide to improve the operations of the
CPSC.
Second, your bill bans lead. It broadens--it very much
broadens current lead bans that are in place for lead paint.
Currently, except for lead paint, the CPSC must do an
accessibility test in order to ban lead in any other product,
including jewelry, and we support strongly the idea of banning
lead in all children's products, particularly only down to
trace levels.
And we would encourage the Committee to look at the
testimony before the House of the American Academy of
Pediatrics last month. They've looked at all of the science,
and they believe these doctors who have been in coalition with
our organizations on a number of projects, that we can get lead
levels down to 40 parts per million, not 200 parts per million,
that's the trace amount in clean soil.
So, we support your provision, and would encourage you to
take a look at improving it even more.
Third, the bill goes a long way toward improving the safety
of imports. We very much support the third-party testing
certification provision, and the other provisions about
improving the safety of imports, and particularly the provision
that gives the CPSC the authority to prevent recalled products
from being dumped abroad, which is a problem that has surfaced
in some of the research and the reporting that has been done
over the summer, as a result of some of the problems with the
CPSC.
I also want to say that as an association of state
organizations that strongly believes that the states should
continue to serve as laboratories of democracy, and that we
need 51 consumer cops on the beat, that is, 50 Attorneys
General, as well as a Federal agency, that your expansion of
Attorney General authority to enforce the Federal Consumer
Product Safety Act and other Acts from the states is a very
critical provision, and the provision that you have in the bill
that says that stronger State laws are not preempted, is one
that we can always, always support. And just like with toxics
in children's products, we believe in the precautionary
principle--Congress should set a floor, but the states should
be allowed to go further.
So, there are a number of provisions in your bill that we
strongly support. We look forward to working with the Committee
on the bill.
There is one item that is not in my prepared testimony, it
came to my attention, I've received a number of communications
in the last day or so from eminent biochemists and some
doctors, including burn doctors, who suggest that you should
reevaluate Section 25 of the bill, which calls for an immediate
furniture flammability standard. My organization has spent many
years, and worked on many projects to get toxic chemicals--
persistent bio-cumulative toxic chemicals out of products. And
we have also worked on fire-safe cigarette laws.
So, we care about burns and we care about toxic chemicals.
These groups believe--and I'd like to enter some materials into
the record if it's proper, that they've provided me--that we
should take, and we'd be happy to work with the Committee to
help those groups come before the staff, to talk about whether
that section needs to be amended.
[The materials previously referred to follow:]

The Burn Center at Arkansas Children's Hospital
Little Rock, AR, October 4, 2007
Tate Heuer,
Senior Legislative Assistant to Senator Mark Pryor,
U.S. Senate,
Washington, DC.

Dear Mr. Heuer:

I would like to share the concerns of the burn community about
current Federal legislative and regulatory activity regarding
upholstered furniture flammability in general, and an open flame
standard for such flammability in particular.
Our concern is highlighted in Section 25 of recently introduced
reauthorization legislation related to the Consumer Product Safety
Commission (CPSC), which proposes a deadline for action on this
standard. Please share our concerns with the members of Senator Mark
Pryor's Subcommittee on Consumer Affairs, Insurance, and Automotive
Safety, in preparation for their meeting on October 4, 2007. As review
of this proposed standard evolves in the coming months, I would also
like to present the concerns summarized in this letter in greater
detail either in person or in writing, as appropriate.
I am writing as a practicing burn surgeon for the past 22 years,
and the current Director of the Burn Center at the Arkansas Children's
Hospital. Along with my 3,500 fellow members of the American Burn
Association (ABA), I am familiar with both the causes and the impact of
severe burn injury, and supportive of all worthwhile burn prevention
efforts. The ABA, for example, was the first professional organization
to support Federal legislation mandating the development of fire-safe
cigarettes in 1979.
The ABA has continually supported Federal studies and state
legislation to support fire-safe cigarettes. However, many of us who
are aware of the current draft of CPSC regulations related to
upholstered furniture flammability standards, including the members of
the ABA Burn Prevention Committee, have serious concerns about those
regulations, as outlined in the CPSC'S proceeding entitled ``Ignition
of Upholstered Furniture by Small Open Flames and/or Smoldering
Cigarettes,'' issued as an advance notice of proposed rulemaking on
October 23, 2003. Our concerns are summarized below and described in
more detail in an attachment providing supporting evidence.

1 Growing evidence of the increasing public health hazard
represented by the flame retardant chemicals required for
upholstered furniture to comply with TB 117.
2. The magnified risk when ignition of FR-treated furniture
occurs.
3. Ineffectiveness of existing upholstered furniture
flammability standard. (California's TB 117, on which the
proposed Federal rule is modeled).
4. Lack of technical success or priority in developing a
Federal open flame standard.
5. The resulting pending initiation of a major study of this
issue by two highly regarded independent research
organizations.
6. Declining justification for a small open flame standard.
7. Probable further decline in upholstery fire incidence, in
the absence of a new standard.
8. The emerging development of alternative approaches to
furniture flammability.

Thank you for your consideration of these concerns.
Sincerely,
William L. Hickerson, M.D., F.A.C.S.
Professor of Surgery/UAMS, Medical Director, Burn Center
______

The Burn Center at Arkansas Children's Hospital
Little Rock, AR, October 18, 2007
Hon. Mark Pryor,
Chair,
Senate Subcommittee on Consumer Affairs, Insurance, and Automotive
Safety,
Washington, DC.

Dear Senator Pryor:

I write to share the concerns many of us in the burn community have
in regards to the current Federal standard-setting activity about
upholstered furniture flammability in general, and an open flame
standard in particular. The reference is to a Consumer Product Safety
Commission (CPSC) proceeding entitled ``Ignition of Upholstered
Furniture by Small Open Flames and/or Smoldering Cigarettes'', issued
as an advance notice of proposed rulemaking on October 23, 2003 and
further discussed in the Commission's December 2005 briefing package.
Our concern is highlighted in Section 25 of S. 2045, the recently
introduced CPSC reauthorization legislation that proposes a June 2008
deadline for action on this standard. While we appreciate the strong
desire of both Congress and the Commission to conclude the lengthy
consideration of this standard, we still have grave doubts whether a
standard with such important potential long-range effect on public
health should be addressed under a mandated deadline.
The ABA has continually supported such legislation, which has now
been enacted in at least 22 states. Now that such laws cover more than
half the Nation's population, we fully expect the cigarette industry
will soon decide to apply fire-safe technology to all U.S. production.
CPSC's cost-benefit analysis however dismissed the likelihood that
fire-safe standards would expand beyond the three states which had
passed such laws by the end of 1995. This development has rendered
obsolete the cost-benefit analysis on which the case for the proposed
flammability standard is based.
Although the new Federal standard might reduce the already small
number of casualties, the burn community might still consider it
another step forward were it not for serious concerns related to the
potential hazards of flame retardant chemicals. Such chemicals are now
used to meet the only existing regulation of furniture foam,
California's TB 117, and their use would expand substantially under the
proposed Federal standard. The ABA Burn Prevention Committee, for
example, has recommended to the ABA Board of Trustees that the
Association take a position opposing any standard that would depend on
the use of chemicals whose safety to the environment and to public
health could not be proven.
Our concerns are summarized below and described in more detail in
an attachment providing supporting evidence. In your upcoming mark-up
of S. 2045, please consider if it is realistic for the Commission to
complete rulemaking by June 2008. We are in a dynamic environment where
the following factors either challenge the premise of the standard or
will continue to evolve rapidly after that date:

1. Growing evidence of the increasing public health hazard
represented by the flame retardant chemicals used in
upholstered furniture to comply with California TB 117.
2. The magnified risk to firefighter health when ignition of
FR-treated furniture occurs.
3. Lack of evidence of effectiveness of the only existing
upholstered furniture foam flammability standard, a state-level
measure enacted in California in 1975.
4. Declining statistical justification for a Federal standard
since it was first proposed in 1994, and, independent of any
additional standard setting, likely
5. The imminent initiation of a major study of the upholstered
furniture flammability issue by the National Fire Protection
Association and Underwriters Laboratories.
6. The very slow turnover of upholstered furniture in lower
income households.
7. The emerging development of alternative approaches to
furniture flammability.

Thank you for your consideration of these concerns.
Sincerely.
William L. Hickerson, M.D., F.A.C.S.,
Professor of Surgery, UAMS Director,
ACH Burn Center.
Attachment
Concerns Regarding CPSC Proposed Small Open Flame Upholstery
Ignition Standard
1. Growing evidence of the health risk from flame retardant
chemicals. Brominated and chlorinated chemicals, the most common flame
retardant chemicals, have been found in increasing levels in the
environment and in mothers' milk. These levels approach those
associated with neurological and reproductive deficits, endocrine
disruption and cancer in animal studies. When incorporated into
manufactured products, these chemicals do not remain encased in those
products, but gradually release and migrate into the indoor
environment, dust, and human's bodies where they represent a
significant threat to public health.\1\
---------------------------------------------------------------------------
\1\ Thomas McDonald, Ph.D., ``Polybrominated Diphenylether Levels
in U.S. Residents: Daily Intake and Risk of Harm to the Developing
Brain and Reproductive Organs'', Integrated Environmental Assessment
and Management, 2005. v.1:4, 343-354. (contains extensive bibliography
on environmental impact of brominated chemicals).
---------------------------------------------------------------------------
The current method of achieving small open flame resistance, the
standard for foam flammability contained in the current draft of the
proposed CPSC standard, is to incorporate substantial quantities of
these chemicals into the upholstery fabric and/or the flexible
polyurethane foam used in upholstered furniture padding.\2\ As a result
of the only existing state standard, California homes, pets and people
now have high levels of toxic fire retardant chemicals. These
chemicals, since their introduction as flame retardants around 1980,
have also been associated with a growing incidence of hyperthyroid
disease in domestic cats. Furthermore, studies are underway at the U.S.
EPA and UC Davis on a possible link between fire retardant chemicals
and autism.
---------------------------------------------------------------------------
\2\ ``An Evaluation of the CPSC Staff Preliminary Regulatory
Analysis of the Draft Upholstered Furniture Flammability Standard,''
CRA International, Oakland, CA, March 2006. (prepared for the American
Home Furnishings Alliance), 106 pp.
---------------------------------------------------------------------------
2. Magnified risk when ignition occurs. Upholstered furniture
ignition standards are based only on the ability of furniture
components to delay becoming the initial item ignited. They do not
protect furniture from igniting in a conflagration that begins
elsewhere in a residence or commercial structure. Such was the case in
the tragic May 2007 furniture store fire in South Carolina, which began
outside the store and killed nine firefighters. (I don't understand the
connection of the previous sentence to the point. You might want to
say. Similar hear is given off from combustion of furniture with and
without added FR chemicals.) When released in a fire, such chemicals,
already known as a threat to firefighter health,\3\ add further to the
toxic chemical burden in the environment.
---------------------------------------------------------------------------
\3\ Grace LeMasters, Ph.D., et al., ``Cancer Risk Among
Firefighters: A Review and Meta-Analysis of 32 Studies,'' Journal of
Occupational and Environmental Medicine, 48: 11, 1189-1202. (contains
extensive bibliography).
---------------------------------------------------------------------------
3. Lack of evidence of effectiveness of existing foam flammability
standard. (California's TB 117, on which the proposed Federal rule is
modeled). The only existing standard requiring resistance to open flame
ignition of the flexible polyurethane foam used in the padding of
upholstered furniture has been in effect in California since 1975.
Since the fire and death rate in fires first ignited in upholstery has
not decreased any more rapidly in California than in the rest of the
country since 1985,\4\ there is no proof that this standard has
contributed to this decline, nor that any tightening of this standard
would contribute to such a decline in the future.
---------------------------------------------------------------------------
\4\ Kimberley Rohr, ``Products First Ignited in U.S. Home Fires'',
National Fire Protection Association, Quincy, MA, April 2005, 131 pp.
---------------------------------------------------------------------------
4. Declining Justification for a ``Small Open Flame'' Standard.
Deaths in fires in which upholstered furniture was the first item
ignited have decreased 80 percent since a voluntary flammability
standard was first adopted by furniture manufacturers in the early
1980s,\5\ and 50 percent since a mandatory Federal standard was first
proposed in 1994. By 2004, such deaths had declined to an estimated
550, over 90 percent caused by cigarettes and just 10 percent from open
flames. The most recent statistics, for the year 2004, estimate a
decline of 50 percent from approximately 1,300 to 650.\6\ The trend
line of the decline in such deaths closely matches that of decline in
smoking in the general population.
---------------------------------------------------------------------------
\5\ Upholstered Furniture Action Council (UFAC) Standard, later
modified and published as ASTM Standard 1351E (see www.UFAC.org)
\6\ CRA International, op. cit. 2006.
---------------------------------------------------------------------------
Although the ``small open flame'' standard, representing only an
estimated 15 percent of fires originating in upholstery, is not
directed at fires started by cigarettes themselves, the decline in
smoking has reduced the presence of the major sources of such flames
which are likely to come in contact with upholstered furniture, namely,
matches and cigarette lighters. The resulting reduced estimate of open
flame-ignited fires originating in upholstery is now so low (averaging
40 a year in the years 1999-2003) \7\ that its statistical significance
is highly questionable.
---------------------------------------------------------------------------
\7\ Rohr, op. cit.
---------------------------------------------------------------------------
5. The pending initiation of a major study of this issue by two
highly regarded independent research organizations. The National Fire
Protection Association and Underwriters Laboratories are about to
embark on a major study of upholstered furniture flammability,
beginning with a review of the very sketchy data available on the
subject.
The study, expected to take 18 months, began with a public briefing
hearing at NFPA headquarters in Quincy, MA on October 17.\8\ The
apparent need for such a study by the Nation's major independent fire
protection and product evaluation organizations calls into question the
appropriateness of both the CPSC's current draft standard and the
proposed June 2008 deadline for final rule-making on this standard.
---------------------------------------------------------------------------
\8\ NFPA-UL Upholstery Flammability Study October 17 Briefing
Session agenda. National Fire Protection Association, Quincy, MA.
---------------------------------------------------------------------------
6. The emerging development of alternative approaches to
upholstered furniture protection. Legislation introduced in California
in 2006 would ban the entire class of brominated and chlorinated
chemicals currently used as flame retardants. In place of these
chemicals, AB 706 enables the California Bureau of Home Furnishings and
Thermal Insulation (the only such state-level organization in the
country) to develop alternative methods to protect the public against
fire risk involving upholstered furniture.\9\ Although AB 706 was
narrowly defeated in the California Senate earlier this month in its
first legislative test, it has gained considerable momentum and will no
doubt be revived in future sessions of the CA General Assembly.
---------------------------------------------------------------------------
\9\ AB 706 Fact Sheet, Office of Senator Mark Leno, Sacramento, CA,
as amended 08-27-07.
---------------------------------------------------------------------------
Potential alternative approaches identified by AB706 proponents and
described in a series of conferences on the flame retardant dilemma in
Berkeley in 2007 include alternative non-toxic chemicals, furniture
design changes, and the adoption of a policy testing the flammability
risk of the entire item of furniture, rather than its individual
components.\10\
---------------------------------------------------------------------------
\10\ View ``Fire Retardant Dilemma'' conference presentations (Nos.
1 through 3, January, April and September 2007) at http://
www.greensciencepolicy.org/conferences.
---------------------------------------------------------------------------
______

AB 706 (Leno)--Fact Sheet--As amended 08-27-07

The Crystal Golden-Jefferson Furniture Safety and Fire Prevention Act

Coauthors: Assembly Members Bass, Berg, Brownley, DeSaulnier, Hancock,
Hayashi, Huffman, Jones, Lieber, Ruskin, and Swanson

Purpose
The California Furniture Safety and Fire Prevention Act will reduce
the threat from fires and health impacts caused by toxic chemical fire
retardants. The bill requires the Bureau of Home Furnishings and
Thermal Insulation to modify fire safety standards for furniture in a
manner that delivers equivalent fire safety without the use of certain
toxic chemicals and institutes updated furniture labeling requirements.
It also institutes a process for the Bureau to obtain recommendations
on toxicity concerns from the California Office of Environmental Health
Hazard Assessment and creates a reconsideration process for any
component or chemical prohibited by the bill.
Summary
AB 706 requires the Bureau of Home Furnishings and Thermal
Insulation to improve fire safety standards for furniture such that
equivalent fire safety is achieved with reduced use of chemical fire
retardants. Current furniture standards are applied to the component
parts of furniture such as fabric or polyurethane foam and do not
reflect the reality of how fires start or burn.
One possible solution is a furniture construction standard that
achieves equivalent fire safety and reduced chemical loading thus
minimizing both fire and chemical exposure risks. AB 706 leaves the
actual standards to the experts through the regulatory process, but
does require that the most toxic chemicals not be used.
This bill would prohibit from seating furniture, mattresses, and
bedding products selected toxic chemicals known as brominated fire
retardants (BFRs) and chlorinated fire retardants (CFRs) that may cause
reproductive, developmental, neurological or other health problems
including cancer, birth defects, learning disorders, and mental
retardation.
AB 706 requires the Bureau to modify existing standards for fabric
and foam used in upholstered furniture in a manner that maintains
equivalent levels of fire retardancy while eliminating the use of BFRs
and CFRs.
This bill creates a process whereby the Bureau may obtain health
and environmental information for fire retardant chemicals and, if
determined by the Bureau to be necessary, prohibit use of fire
retardant chemicals in furniture that cause harm to animal or human
health. Any component or chemical prohibited by this process or by the
provisions of this bill may be reconsidered based on new data.
The bill requires a consumer awareness label that states ``DOES NOT
CONTAIN BROMINATED OR CHLORINATED FIRE RETARDANTS.'' This is intended
to help consumers discern which furniture is safe for human use.
Comments
California has one of the most stringent fire retardance standards
in the world for furniture, mattresses, and box springs, and is
currently developing new regulations to require the use of fire
retardant chemicals in pillows, comforters, futons, and other bedding
products. To meet existing furniture, mattress, and box spring
standards, many manufacturers employ fire retardant chemicals.
Serious Health Concerns--Children at Risk
Two classes of these chemicals, brominated fire retardants and
chlorinated fire retardants, can cause serious toxic effects including
cancer, developmental impairment, birth defects, and endocrine and
reproductive dysfunction, often at extremely low doses.\1\ \2\ Infants
and children are particularly likely to absorb these fire retardant
chemicals through direct physical or oral contact with these compounds
in furniture, bedding, and mattresses, or through inhalation of dust
and ingestion of these substances from their mothers' milk and from
their diets.\3\
---------------------------------------------------------------------------
\1\ Linda S. Birnbaum, Daniele F. Staskal; 2004 Brominated Flame
Retardants: Cause for Concern? Environmental Health Perspectives, Vol.
112.
\2\ Gundersen Y., Vaagenes P., Reistad T., Opstad P.K.., Brominated
Flame Retardants May Cause Brain Injuries In The Fetus And The Newborn,
Tidsskr Nor Laegeforen.; 2005 Nov. 17125(22):3098-100.
\3\ Jones-Otazo, H.A.; Clarke, J.P.; Diamond, M.L.; Archbold, J.A.;
Ferguson, G.; Harner, T.; Richardson, G.M.; Ryan, J.J.; Wilford, B., Is
house dust the missing exposure pathway for PBDEs? An analysis of the
urban fate and human exposure to PBDEs. Environmental Science &
Technology 2005, 39, (14), 5121-5130; Stapleton, H.M.; Dodder, N.G.;
Offenberg, J.H.; Schantz, M.M.; Wise, S.A., Polybrominated diphenyl
ethers in house dust and clothes dryer lint. Environmental Science &
Technology 2005, 39, (4), 925-931.
---------------------------------------------------------------------------
A New Approach to Fire Safety
California can achieve similar or even superior fire safety without
the use of brominated or chlorinated fire retardants. Current fire
safety standards test interior foam filling separately from fabric,
batting, and other components without consideration of the realities of
how furniture fires actually start. This approach is a de facto mandate
to use the most toxic fire retardants.
Improved furniture design, the use of chemicals that are safer for
human health and the environment, and the implementation of an
integrated furniture construction standard to replace outdated tests
should over time lead to further increases in furniture safety.
Furthermore, prohibiting BFRs and CFRs from use in furniture will spur
industry innovation in fire safety through ``green chemistry'' that is
safer for human and animal health and the environment.\4\
---------------------------------------------------------------------------
\4\ Wilson M., Chia D., Ehlers B.. Green Chemistry in California: A
Framework for Leadership in Chemicals Policy and Innovation. Special
Report to the California Legislature, University of California Policy
Research Center and the Center for Occupational and Environmental
Health, University of California, Berkeley. March 2006 (http://
coeh.berkeley.edu/news/06_
wilson_policy.htm).

Regulatory History
In 1977 and 1978 articles in the academic journal Science showed
that brominated and chlorinated Tris, the two major flame retardants
used in children's sleepwear, were mutagens (that means they changed
DNA) and that brominated Tris was absorbed into children's bodies from
their pajamas.\5\ After the National Cancer Institute found brominated
Tris to be a potent carcinogen in animals, the Consumer Product Safety
Commission forced manufacturers to stop using either form of Tris in
children's sleepwear.
---------------------------------------------------------------------------
\5\ A. Blum and B.N. Ames, Flame Retardant Additives as Possible
Cancer Hazards: The Main Flame Retardant in Children's Pajamas is a
Mutagen and Should Not Be Used. Science 195, 17 (1977); M.D. Gold, A.
Blum, B.N. Ames, et al., Another Flame Retardant, Tris-(1,3-Dichloro-2-
Propyl)-Phosphate, and Its Expected Metabolites and Mutagens. Science
200, 785 (1978).
---------------------------------------------------------------------------
In 1975 California instituted Technical Bulletin 117 which requires
all polyurethane foam used as filling in seating furniture to pass
stringent fire safety testing. It was the first (and to date the only)
state in the Nation to have such a standard.
Today, chlorinated Tris, one of the same chemicals removed from
children's pajamas in the 1970s is widely used in furniture sold in
California to meet the standards of TB 117. This chemical has recently
been determined by the Consumer Product Safety Commission to be ``a
probable human carcinogen based on sufficient evidence in animals.''
\6\ The other most widely used chemical fire retardant, Firemaster 550,
is highly ecotoxic according to a U.S. EPA study.\7\
---------------------------------------------------------------------------
\6\ Michael Babich, Dec. 21, 2006, Peer Reviewed CPSC Staff
Research Reports on Upholstered Furniture Flammability, page 12.
\7\ Furniture Flame Retardancy Partnership: Environmental Profiles
of Chemical Flame-Retardant Alternatives for Low Density Polyurethane
Foam Volume 1. U.S. Environmental Protection Agency report EPA 742-R-
05-002A, page 4-3, September 2005.
---------------------------------------------------------------------------
Leapfrogging From One Toxic to Another
Due to their potential harm to human health and the environment,
two categories of fire retardants known as pentabrominated diphenyl
ether (PentaBDE) and octabrominated diphenyl ether (OctaBDE) have been
banned by the State of California for use at levels higher than one-
tenth of 1 percent in virtually all new products, including furniture
and the plastic housings of electronics, computers, and circuit boards
as a result of AB 302 (Chan) enacted in 2003 and AB 2587 (Chan) enacted
in 2004. If California were to ban the two most widely used fire
retardant chemicals in furniture, other chlorinated and brominated
replacements currently being considered to replace them would also pose
hazards to human health and the environment.
Our objective is to prevent senseless and shortsighted leapfrogging
from one toxic chemical to another by prohibiting the entire classes of
brominated and chlorinated fire retardants. This bill takes that step,
but in a modest way by prohibiting BFRs and CFRs from the products with
the most intimate human contact, such as the chair you may be sitting
on now or the bed your children will sleep on tonight.
Fire Retardants in Humans
Since the discovery of carcinogenic Tris byproducts in the urine of
children wearing fire retardant pajamas thirty years ago, other fire
retardants have been found in people's bodies. For example,
polybrominated diphenyl ethers (PBDEs), a subcategory of brominated
fire retardants, have increased forty-fold in human breast milk since
the 1970s.

Levels of PBDEs have increased forty-fold in human breast milk
since the 1970s. Women in North America on average have ten times the
levels of women in Europe or Asia.\8\ PBDEs have the potential to
disrupt thyroid hormone balance and contribute to a variety of
neurological and developmental deficits, including low intelligence and
learning disabilities.
---------------------------------------------------------------------------
\8\ Lunder S., Sharp R.. 2003. Mothers' Milk: Record levels of
toxic fire retardants found in American mothers' breast milk.
Environmental Working Group (www.ewg.org/reports/mothersmilk/).
---------------------------------------------------------------------------
Structurally Like Other Toxics
PBDEs are structurally half way between polybrominated and
polychlorinated biphenyls (PBBs and PCBs) and dioxins and furans which
are known to cause cancer and are prohibited in the United States.
Human health effects from exposure to these related chemicals
include a broad range of developmental and cognitive deficits.\9\ For
example, maternal exposure to PCBs causes long-lasting deficits in
learning, memory, IQ, and attention span in infants and children.\10\
Similar harmful effects are found in animals exposed to PBDEs.\11\
---------------------------------------------------------------------------
\9\ L.S. Birnbaum, D.F. Staskal, J.J. Diliberto, September 2003,
Health effects of polybrominated dibenzo-p-dioxins (PBDDs) and
dibenzofurans (PBDFs)--Environment International, Volume 29, Number 6,
pp. 855-860(6).
\10\ Jacobson J.L., Jacobson S.W.. 2003. Prenatal exposure to
polychlorinated biphenyls and attention at school age. J Pediatr: 2003
Dec. 143(6):780-8.
\11\ Viberg, H.; Fredriksson, A.; Jakobsson, E.; Orn, U.; Eriksson,
P., Neurobehavioral derangements in adult mice receiving decabrominated
diphenyl ether (PBDE 209) during a defined period of neonatal brain
development. Toxicological Sciences 2003, 76, (1), 112-120.

Brominated furans and dioxins exhibit similar carcinogenicity and
toxicity to chlorinated ones.\12\ Given the similarity in chemical
structures, it is probable that PBDEs will have similar human health
effects as those of PCBs, PBBs, dioxins and furans. Continuing to
expose our children to this class of chemicals in furniture,
mattresses, and bedding constitutes an exposure risk we should not be
taking.
---------------------------------------------------------------------------
\12\ L.S. Birnbaum, D.F. Staskal, J.J. Diliberto: Health Effects of
Polybrominated dibenzo-p-Dioxins (PBDDs) and Dibenzofurans (PBDFs).
Environmental International, Volume 29, Number 6, pp. 855-860(6)
(September 2003).
---------------------------------------------------------------------------
Chemical Bans
The European Union and many U.S. states have banned two brominated
PBDE chemicals known as pentaBDE and octaBDE. These states include:
California, Hawaii, Illinois, Maryland, Maine, Michigan, New York,
Oregon, and Rhode Island. This year Washington State and Maine passed
bans on decaBDE which is another brominated PBDE chemical. DecaBDE was
recently banned in Sweden, and is in the process of being banned in the
EU.
Climbing the Food Chain
Apart from toxic effects in humans from direct exposures,
brominated and chlorinated fire retardants have been disposed of in
ways that contaminate soils, groundwater, drinking water, ambient air,
our oceans, and other natural ecosystems. These chemicals have also
been detected at high concentrations in animals and fish, as well as
marine mammals such as dolphins and harbor seals, indicating that they
are already bioaccumulating in the food chain and in marine
wildlife.\13\ \14\ \15\ Fish and meat consumption are partly
responsible for increasing levels of some these chemicals in humans.
---------------------------------------------------------------------------
\13\ Johnson-Restrepo, B.; Kannan, K.; Addink, R.; Adams, D.H.,
Polybrominated diphenyl ethers and polychlorinated biphenyls in a
marine foodweb of coastal Florida. Environmental Science & Technology
2005, 39, (21), 8243-8250.
\14\ Christensen, J.R.; Macduffee, M.; Macdonald, R.W.; Whiticar,
M.; Ross, P.S., Persistent organic pollutants in British Columbia
grizzly bears: Consequence of divergent diets. Environmental Science &
Technology 2005, 39, (18), 6952-6960.
\15\ Voorspoels, S.; Covaci, A.; Lepom, P.; Escutenaire, S.;
Schepens, P., Remarkable findings concerning PBDEs in the terrestrial
top-predator red fox (Vulpes vulpes). Environmental Science &
Technology 2006, 40, (9), 2937-2943; Chen, D.; Bixian, M.; Song, J.;
Suin, Q.; Zeng, E.; Hale, R.C. In Polybrominated Diphenyl Ethers in
Birds of Prey Collected from Northern China, SETAC, Montreal, Quebec,
2006; Montreal, Quebec, 2006; Peter S. Ross, Fireproof Killer Whales
(Orcinus orca): Flame Retardant Chemicals and the Conservation
Imperative in the Charismatic Icon of British Columbia, Canada. Journal
of Fisheries and Aquatic Sciences, Volume 63, Number 1, pp. 224-234
(11) (January 2006).
---------------------------------------------------------------------------
Over the last thirty years, there have been hundreds of scientific
journal articles and reviews citing these and other negative health
impacts in people and/or in animals resulting from exposure to
brominated and chlorinated fire retardants.
Distribution of tens of millions of pounds of fire retardant
chemicals annually in California represents an ongoing danger to public
health and the environment all without an adequate scientific
understanding of the long-term consequences of exposure. Workers
involved in fire retardant and furniture production may be at even
higher exposure risks.\16\ \17\
---------------------------------------------------------------------------
\16\ Thuresson, K.; Bergman, A.; Jakobsson, K., Occupational
exposure to commercial decabromodiphenyl ether in workers manufacturing
or handling flame-retarded rubber. Environmental Science & Technology
2005, 39, (7), 1980-1986.
\17\ Thuresson, K.; Hoglund, P.; Hagmar, L.; Sjodin, A.; Bergman,
A.; Jakobsson, K., Apparent half-lives of hepta- to decabrominated
diphenyl ethers in human serum as determined in occupationally exposed
workers. Environmental Health Perspectives 2006, 114, (2), 176-181.
---------------------------------------------------------------------------
Replacements Brominated and Chlorinated Fire Retardants
Substantial efforts to eliminate brominated and chlorinated fire
retardants such as brominated and chlorinated Tris, PentaBDE, OctaBDE,
DecaBDE, PBBs, and PCBs from products have been made throughout the
world, including the private and public sectors. These efforts have
made available replacements substantially safer to human health while
meeting fire safety standards.
Improved furniture design and AB 706's smarter approach to
furniture fire performance standards may lead to further increases in
furniture safety in the future.
Rather than loading furniture cushions with up to 10 percent fire
retardants by weight in order to comply with California Technical
Bulletin 117, many manufacturers would like to utilize innovations such
as fire resistant foam cushion wraps, health and eco friendly ``green
chemistry'' retardant alternatives, use of fire resistant materials
such as wool blends and synthetics, or other structural barriers such
as polyester batting that provide similar or better fire safety
performance without toxicity.
Simply requiring foam filling to delay burning for 12 seconds when
exposed to a small open flame is an old approach that needs to be
updated to reflect the reality of how fires start and burn.
Fire Fighter Toxicity Risk
When brominated and chlorinated fire retardants burn after a
momentary resistance to open flame, they release a dark smoke that
greatly reduces visibility for fire fighters.
An additional concern for fire fighters when fire retarded
furniture burns is that brominated fire retardants are converted into
dioxin and furans, exposing firefighters to dangerous levels of these
extremely toxic and cancer-causing chemicals.\18\ Firefighters are at
particular risk during the clean up or ``overhaul'' of a burn site when
the need for protective gear may not be apparent. Skin contact with
soot that contains dioxin and furans from combusted brominated fire
retardants is a key route of exposure to firefighters.
---------------------------------------------------------------------------
\18\ Gunilla Soderstrom, 2003, On The Combustion And Photolytic
Decomposition Of Some Brominated Flame Retardants, Thesis, University
of Umea, Sweden.
---------------------------------------------------------------------------
Fire Fighter Cancers
An analysis of 32 studies was published last November in the
Journal of Occupational and Environmental Medicine. The analysis found
firefighters had significantly elevated rates for four types of cancer:
multiple myeloma, non-Hodgkin's lymphoma, prostate, and testicular
cancer.
Eight additional cancers including malignant melanoma and brain
cancer were determined to have a ``possible'' association with
firefighting.\19\ The authors also concluded that firefighter risk for
the four most common cancers could be related to their exposures to
complex mixtures such as the toxic products created when brominated and
chlorinated fire retardants burn.
---------------------------------------------------------------------------
\19\ LeMasters G.K., et al, December 2006, Cancer risk among
firefighters: a review and meta-analysis of 32 studies, J. Occup.
Environ. Med. 2006 Nov; 48(11): 1189-202.
---------------------------------------------------------------------------
Due to elevated levels of cancer among firefighters, the California
Professional Fire Fighters, the California State Firefighters
Association, San Francisco Fire Fighters local 798, the San Francisco
Fire Marshal, and other locals support AB 706.
Crystal Golden-Jefferson
On July 20, 2005, a Los Angeles County Fire Department firefighter
named Crystal Golden-Jefferson passed away from work place related non-
Hodgkin's lymphoma. She was a single mother and a dedicated paramedic
firefighter with 19 years of service to the people of Los Angeles
County. While the cause of Crystal Golden-Jefferson's cancer can not be
definitively linked to dioxin exposure, dioxins are known to cause non-
Hodgkin's lymphoma and Crystal Golden-Jefferson was regularly exposed
to soot and smoke in her work.
In the naming of AB 706, it is the intent of the Legislature to
honor Crystal Golden-Jefferson and other fire fighters who, like her,
have lost their lives due to toxic chemical exposure and workplace
related cancers. Removing from furniture chemicals that convert into
carcinogenic dioxins and furans during fires can reduce workplace
exposures and cancer risk for fire fighters who bravely sacrifice their
lives so that others may live.
Fire Safety Improving For Other Reasons
Fires started from residential furniture or mattresses have
decreased in recent years due to:

Fire safety education,

Improved electrical and building codes,

Increased use of smoke detectors and building sprinkler
systems,

Mandated ``fire-safe'' cigarettes with lower ignition
propensity, and

General decreases in smoking.

In 2005, California passed AB 178 (Koretz) requiring all cigarettes
sold in California be fire-safe by January 2007. Today, the Bureau of
Home Furnishings and Thermal Insulation has difficulty finding
cigarettes that will smolder long enough in order to conduct the
smoldering test required in Technical Bulleting 117.
Are We Really Getting More Safety?
Despite our being the only state with furniture flammability
standards, California has not reduced fire deaths more than other
states during the years that our standard has been in effect. A
comparison of fire deaths by the National Fire Prevention Association
of 5-year averages among the most populous states showed California was
statistically equal to states without the tough furniture standard.\20\
---------------------------------------------------------------------------
\20\ John R. Hall Jr., U.S. Unintentional Fire Death Rates By
State, Fire Analysis and Research Division, National Fire Protection
Association, Ouincy, MA, June 2006.

Fire Safety Standards a Good Idea
Fire safety standards for furniture can reduce fire hazard, but
they must be updated to ensure we are not causing adverse long term
health impacts like cancer and neurological problems that can adversely
affect far more people. The Bureau of Home Furnishings and Thermal
Insulation should have the authority to weigh these issues in
consultation with toxics experts at the California Office of Health
Hazards Assessment in order to best protect public safety from fires
and public health from chemical risks.
Smarter Regulation = More Safety
AB 706--The California Furniture Safety and Fire Prevention Act
will:

Provide the furniture industry more options for creating
safe and affordable furniture,

Create opportunities for green chemistry innovation,

Reduce workplace exposure to toxic chemicals for furniture
industry workers and fire fighters,

Remove toxic brominated and chlorinated chemicals from
products that come in direct contact with our families,
animals, and the environment, and

Protect human and environmental health both now and for
future generations.

All this can be done by smarter regulations developed with an eye
toward protecting overall public health and fire safety.
Status
Held in Senate Appropriations Committee.
Votes
4-10-07 Passed Assembly Environmental Safety & Toxic Materials
Committee in a vote of 5-2.
4-17-07 Passed Assembly Business & Professions Committee in a vote
of 7-3.
5-31-07 Passed Assembly Appropriations Committee.
6-6-07 Passed the Assembly Floor in a vote of 46-31.
7-9-07 Passed Senate Committee on Business, Professions, and
Economic Development in a vote of 6-3.
7-10-07 Passed Senate Committee on Environmental Safety and Toxic
Materials in a vote of 5-2.
Support
Bluewater Network/Friends of the Earth (co-sponsor)
MOMS--Making Our Milk Safe (co-sponsor)
AFSCME
Alisa Ann Ruch Burn Foundation
As You Sow
Breast Cancer Action
Breast Cancer Fund
Burn Institute
California for a Safe Environment
California Furniture Manufacturers Assn.
California Labor Federation (AFL-CIO)
California Professional Fire Fighters
California State Firefighters' Assn.
Center for Environmental Health
City and County of San Francisco
Clean Water Action
Coalition for Clean Air
Coalition for a Safe Environment
Commonweal
Consumer Attorneys of California
Consumer Federation of California
Diversified Health Services
Environment California
Environmental Working Group
Episcopal Diocese of California
Firefighters Burn Institute
Firefighter Cancer Support Network
Get Able
Healthy Children Organizing Project
Marin County Board of Supervisors
MomsRising.org
Monterey Fish Market
Natural Resources Defense Council (NRDC)
Ocean Conservancy
Oceana
Physicians for Social Responsibility
Planning and Conservation League
Sacramento Fire Fighters Local 522
San Francisco Fire Marshal
San Francisco Fire Fighters Local 798
Sierra Club California
Silicon Valley Toxics Coalition
The Trauma Foundation
Neutral
Assn. of Woodworking & Furnishings Suppliers
American Home Furnishings Alliance
California Fire Chiefs Association
Polyurethane Foam Association
Opposition
Alliance of Automobile Manufacturers
American Chemistry Council
BSEF (Bromine Industry)
CA Black Chamber of Commerce
CA Building Industry Association
California Chamber of Commerce
CA Council for Environmental & Economic Balance
California League of Food Processors
CA Manufacturers & Technology Assn.
California Retailers Association
California Space Authority
Chemistry Industry Council of CA
Department of Consumer Affairs
Department of Forestry and Fire Protection
Department of Toxic Substances Control
Dietler Group
Flicker of Hope Foundation
Fresno Fire Chief
Industrial Environmental Association
International Sleep Products Association
Office of Environmental Health Hazard Assessment
Roseville Fire Department
Silicon Valley Leadership Group
W.F. McDonald Company
______

The New York Times OP-Ed--Published November 19, 2006

Chemical Burns

By Arlene Blum

Thirty years ago, as a researcher at the University of California,
Berkeley, I published papers in Science magazine calling for the ban of
brominated and chlorinated Tris, two flame retardants used in
children's sleepwear. Both forms of Tris caused mutations in DNA, and
leached from pajamas into children's bodies. In 1977, when brominated
Tris was found to be a potent carcinogen, the Consumer Product Safety
Commission banned Tris from children's sleepwear.
So I was astonished to learn recently that the same chlorinated
Tris that I helped eliminate from children's pajamas is being used
today in the foam inside furniture sold in California to meet standards
there for fire retardancy, and that the state is considering similar
standards for pillows, comforters and mattress pads. The Federal safety
commission, following California's lead, is working to set a national
standard for fire-retardant furniture.
Unfortunately, the most effective and inexpensive way for
manufacturers to meet such standards is to treat bedding and furniture
with brominated and chlorinated hydrocarbons like Tris. Though the
chemical industry insists that they are safe, when tested in animals
most chemicals in this family have been found to cause health problems
like cancer, sterility, thyroid disorders, endocrine disruption,
developmental impairment or birth defects, even at very low doses.
Many of these chemicals are long-lived and accumulate, especially
in people and other animals high on the food chain. For example, PCBs,
chlorinated chemicals that were also used as flame retardants, were
banned in 1977, but very high concentrations can still be found in many
creatures, including dead killer whales washed ashore in British
Columbia.
According to the polyurethane-foam industry, if the new Federal
standard for furniture were similar to the California standard, using
current technology, then an estimated 17 million pounds of fire-
retardant chemicals, mostly brominated and chlorinated hydrocarbons,
would be used annually. (A more rigorous standard also being considered
by the safety commission would require up to 70 million pounds of
chemicals a year, the industry says. Some of that could eventually end
up in people and the environment.)
To complicate matters, consumers wouldn't know whether the sofa
they're curled up on had been treated with Tris or its cousins. The
United States does not require labeling on furniture contents.
All this is not to say that furniture fires don't pose a danger.
According to a recent report from the commission, 560 Americans died in
house fires that started in upholstered furniture in 2003. But by
contrast, cancer killed more than 500,000.
What makes the potential increased use of chlorinated and
brominated fire retardants all the more troubling is that it comes at a
time when the risk of furniture fires is receding.
Most fatal furniture fires are caused by cigarettes, which
typically smolder for half an hour after being put down. The good news
is that after decades of opposition from the cigarette industry,
cigarettes that extinguish themselves within minutes are now mandatory
in New York State and laws have been passed requiring them in five
other states. They are likely to become universal in the United States
in the near future, thereby greatly reducing the risk of furniture
fires--and the need for chemical treatments.
So why are we still using these potentially dangerous chemicals?
In the United States, chemicals are innocent until proven guilty:
we wait until someone has been harmed by exposure to chemicals before
regulating them. This is not an effective strategy, since most cancers
occur 20 to 40 years after exposure, and are usually caused by multiple
agents. Consequently, it's very difficult to link human cancer to
specific chemicals or consumer products.
And there's another problem: In the United States, the
manufacturers of consumer products are not required to disclose the
results of toxicity tests to regulators or the public before selling
their products.
In marked contrast, the European Union is adopting a ``better safe
than sorry'' philosophy through regulations known as the Registration,
Evaluation and Authorization of Chemicals. Manufacturers must
demonstrate that their products are safe for people and the environment
to introduce them and keep them on the market.
This standard provides a strong incentive for finding new
alternatives to potentially dangerous brominated and chlorinated
chemicals. An innovative Swedish company, for example, is developing a
nontoxic fire retardant, Molecular Heat Eater, derived from oranges and
lemons, that prevents fires in plastics and fabrics.
Home fires are a defined danger in the present. Chemical fire
retardants pose a more ambiguous risk that can last for decades. We
need to consider the larger picture before passing regulations that
would put chemical fire retardants inside our pillows and those of our
children, who are even more vulnerable to carcinogens. These
regulations would lead to the widespread use of fire retardants that
could be ultimately much more hazardous to us and our environment than
the fires they're intended to prevent.
Arlene Blum, the author of ``Breaking Trail: A Climbing Life,'' is
a biophysical chemist.
______

Science Magazine--12 October 2007 Vol 318

The Fire Retardant Dilemma

by Arlene Blum, Center on Institutions arid Governance, University of
California, Berkeley

Although smoking and fire deaths are rapidly decreasing in the
United States \1\ proposed new flammability regulations could add tens
of millions of additional pounds of potentially toxic fire-retardant
chemicals to bed clothing, pillows, and foam within upholstered
furniture \2\. In the 1970s, the flame retardants brominated tris [tris
(2,3-dibromopropyl) phosphate] and chlorinated tris [tris (1,3-
dichloro-2-propyl) phosphate] were removed from use in children's
slcepwear after being found to be mutagens \3\ \4\ that could be
absorbed into children's bodies.\5\ They are also probable human
carcinogens.\6\ \7\ Today, chlorinated tris is the second most used
fire retardant in furniture, found in amounts up to 5 percent of the
foam's weight. How did this happen?

Related structures. PBDEs, used as fire retardants in furniture,
are structurally similar to the known human toxicants PBBs, PCBs,
dioxins, and furans. In addition to having similar mechanisms of
toxicity in animal studies, they also bioaccumulate and persist in both
humans and animals.

In the 1980s, the fire retardant pentabromodiphenyl ether
(pentaBDE) was added to polyurethane foam to meet California's
Technical Bulletin 117; to date, no other states have similar
regulations. PentaBDE disassociates from foam and migrates into the
indoor environment [especially household dust \8\]; studies show that
pentaBDE is bioaccumulating and has the potential to adversely affect
health \9\ and the environment. In 2003, California banned pentaBDE;
eight other states and the European Union (EU) followed suit. In 2004,
the U.S. manufacturer voluntarily ceased production.
PentaBDE was replaced by chlorinated tris and unknown proprietary
mixtures containing chemicals such as chloroalkyl phosphates,
halogenated aryl esters, and tetrabromophthalate diol diester, which
may be no safer. An EPA study of these chemicals shows areas of
concern, as well as large data gaps for human health and environmental
safety information for all of them.\10\
While we continue to risk our health through exposure to these
retardants, they do not appear to provide measurable fire protection.
From 1980 to 1999, states that did not regulate furniture flammability
experienced declines in fire death rates similar to that seen in
California.\1\ Other causes of fire death reductions nationwide include
a 50 percent decrease in per capita cigarette consumption since 1980;
enforcement of improved building, fire, and electrical code; and
increased use of smoke detectors and sprinklers. Recent legislation
mandating fire-safe cigarettes in 22 states, including California,
should bring further reductions in deaths due to fire, without adding
questionable chemicals to home furnishings.
New European regulations for the Registration, Evaluation, and
Authorization of Chemicals (REACH) require industry to provide data to
establish the safety of new and existing chemicals. The United States
should follow suit. In California, Assemblyman Mark Leno introduced AB
706, a bill that authorizes the state to consider human health and
environmental impacts, as well as fire safety, when regulating
flammability. This bill would prohibit the most toxic classes of
chemicals in furniture, mattresses, and bed clothing (unless the
manufacturer can establish their safety) and stop the cycle of
replacing one toxic fire retardant with another.
Fire-retardant chemicals in our homes should not pose a greater
hazard to our health and environment than the risk of the fires they
are supposed to prevent. Equivalent or greater fire safety can be
achieved with new technologies and materials, furniture design, and
green chemistry.

Detection. Biophysical chemist Arlene Blum, using an x-ray
fluorescence analyzer, measures 5 percent bromine from the fire
retardant in her couch foam.
References and Notes
\1\ J.R. Hall Jr., ``U.S. unintentional fire death rates by state''
(Fire Analysis and Research Division, National Fire Protection
Association, Quincy, MA, 20061.
\2\ There are four types of new regulations and legislation under
consideration: (i) Federal regulation by the CPSC (``CPSC staff draft
standard for upholstered furniture flammability, May 2005''); (ii) U.S.
Senate CPSC Reform Act of 2007 (S. 2045) (U.S. Senate Bill 3616); (iii)
pending California state regulation 604 to require bedding and pillows
to be fire retardant [Tech. Bull. 604 (State of California, Department
of Consumer Affairs, DRAFT, 2005)]; and (iv) bills in four states
(Illinois House Bill 1610, New Jersey Assembly Bill 2299, New York
Assembly Bill 1417, and Pennsylvania Senate Bill SB 173) to adopt
California TB 117 for furniture flammability.
\3\ A. Blum, B.N. Ames, Science 195, 17 (1977).
\4\ M.D. Gold, A. Blum, B.N. Ames, Science 200, 785 (1978).
\5\ A. Blum et al., Science 201, 1020 (1978).
\6\ Report on Carcinogens, Eleventh Edition (U.S. Department of
Health and Human Services, National Toxicology Program, Research
Triangle Park, NC, 2005); http://ntp.niehs.nih.gov/ntp/roc/eleventh/
profiles/s061tris.pdf.
\7\ M. Babich, ``CPSC staff preliminary risk assessment of flame
retardant (FR) chemicals in upholstered furniture foam'' (U.S. Consumer
Product Safety Commission, Bethesda, MD, 2006), p. 5; available at
www.cpsc.gov/library/foia/foia07/brief/ufurn2.pdf.
\8\ M. Lorber, J. Exposure Sci. Environ. Epidemiol., published
online 11 April 2007 (PMID: 17426733).
\9\ T.A. McDonald, Integrated Environ. Assess. Manage. 1, 343
(2005).
\10\ EPA, Furniture Flame Retardancy Partnership: Environmental
Profiles of Chemical Flame-Retardant Alternatives for Low-Density
Polyurethane Foam (EPA 742-R-05-002A, September 2005), pp. 4-2 to 4-5.

Mr. Mierzwinski. But we appreciate the opportunity to
testify before you, and look forward to working with you, as we
move into the holiday shopping season, and the toy buying
season. Thank you.
[The prepared statement of Mr. Mierzwinski follows:]

Prepared Statement of Edmund Mierzwinski, Consumer Program Director,
U.S. Public Interest Research Group
Chairman Pryor, Senator Sununu, Members of the Committee: I am
Edmund Mierzwinski, Consumer Program Director of the U.S. Public
Interest Research Group. U.S. PIRG serves as the federation of state
PIRGs, which are non-profit, non-partisan public interest advocacy
organizations with one million members across the country.
We are pleased to present our views at this Legislative Hearing on
the CPSC Reform Act of 2007, S. 2045. The state PIRGs have long been
concerned with the important matters of consumer product safety and the
ability of the Consumer Product Safety Commission (CPSC) to protect all
of us, but especially the littlest among us, children, from preventable
hazards. For example, according to data \1\ from the CPSC, at least 20
children died in 2005 from toy-related injuries. Nine of the children
died from choking or asphyxiating on a toy, balloon or toy part. One
child was killed due to intestinal blockages from small, powerful
magnets.
---------------------------------------------------------------------------
\1\ In addition, approximately 202,300 people sought treatment in
hospital emergency rooms in 2005 for toy-related injuries; at least
152,400 (75 percent) of those injured were children under 15 years old
and at least 72,800 (36 percent) were children younger than 5 years
old. At least 166 children choked to death on children's products
between 1990 and 2005, a rate of about 10 deaths a year, accounting for
more than half of all toy-related deaths. See Toy Related Deaths and
Injuries, CPSC Memo of 5 October 2006, available at http://
www.cpsc.gov/library/toymemo05.pdf.
---------------------------------------------------------------------------
Since 1986, we have conducted toy safety research and education
projects to avoid such tragic and preventable deaths and injuries. Our
annual Trouble In Toyland toy safety reports \2\ over the last 21 years
have led to at least 120 corrective actions or recalls by the CPSC and
manufacturers. These reports have emphasized the hazards posed by
choking on small parts, ingestion of magnets and the chronic hazards
posed by unnecessary exposure to lead, phthalates and other chemicals
known to be toxic.
---------------------------------------------------------------------------
\2\ These reports and other information about toy safety are
available at our website www.toysafety.net. Our main website is
www.uspirg.org.
---------------------------------------------------------------------------
We say ``at least 120 corrective actions'' because we believe that
our reports have led to more actions than those reported to us.\3\ Over
the last few years, CPSC has not responded to our Freedom of
Information Act (FOIA) requests for information about recalls and
enforcement actions taken as a result of our Trouble in Toyland
reports. While we believe that the CPSC has grossly over-interpreted
the notorious Section 6(b) of the Consumer Product Safety Act in
denying us information on these toys that have already been prominently
reported in the news, and indeed, have had actions taken on, we are
pleased that your legislation would drastically improve the public's
right to know under Section 6(b).
---------------------------------------------------------------------------
\3\ As of 2002, CPSC had informed us of 105 PIRG-initiated recalls
and enforcement actions. We estimate that the last four reports
resulted in at least 20 additional CPSC enforcement actions, including
four recalls. In some cases, the CPSC has provided us general
information to this effect (e.g., ``we found that 2 toys on the 2006
PIRG list violated the small parts rule and we have recalled them''),
but CPSC has not told us the specific names of the products recalled,
even though the products appear on a public list in our report.
---------------------------------------------------------------------------
We were also active in the legislative and regulatory process that
led to the passage of the 1994 Child Safety Protection Act, which was
the last major Congressional amendment to the CPSC's authority.
Summary
First, Mr. Chairman, we would commend you for your past efforts to
improve the CPSC, including the recent enactment of your amendment to
the 9/11 law that has temporarily reinstated the lapsed authority of
the CPSC to conduct business with only two commissioners.
We believe that your new legislation, the CPSC Reform Act of 2007,
S. 2045, is a critical, comprehensive, and long-overdue effort to
restore the CPSC from its status as the little agency that couldn't. We
have detailed comments on the bill and suggestions for improving it
even more.\4\
---------------------------------------------------------------------------
\4\ The Committee also has had referred to it several other
laudable bills to reform the CPSC that have been introduced by
Committee Members and other Senators. Our comments on S. 2045, the most
comprehensive bill, apply equally to any similar provisions of these
bills. We would be happy to provide Committee or personal staff with
detailed comments on any of the other bills.
---------------------------------------------------------------------------
Recent news about the routine and repeated importation by a major
U.S. manufacturer, Mattel, of millions of Chinese toys that grossly
failed to meet U.S. safety standards has certainly shined important
light on the plight of the CPSC. The CPSC is an agency that, over the
years, has suffered both from Congressional neglect and from efforts by
opponents of consumer protection--both within and without--to destroy
it.
Your bill includes provisions that will accomplish three important
goals:

First, it provides the CPSC dramatically increased funding,
staffing and authority to hold corporate wrongdoers
accountable;

Second, it broadens and strengthens the ban on lead, a toxic
chemical that causes brain damage and other problems and has no
business in children's products or toys at all;

Third, it strengthens the government's role in ensuring the
safety of imported products while making it clear that any
company that enters imported products into U.S. commerce is
still responsible and cannot shift the blame to some lowest-
cost third-party supplier thousands of miles away.
Our Views on Specific Elements of S. 2045
Funding and Staffing
As is well-known, the CPSC started in 1974 with a budget of less
than $35 million, which, if merely corrected for inflation, would today
be over $140 million. Yet, the agency's 2007 budget is only $63 million
and the President's modest 2008 proposals would cut the CPSC, in real
terms. Conversely S. 2045 would increase the CPSC budget by about 10
percent each year to approximately $140 million in 2014 while also
directly providing additional funds to address its decrepit laboratory
and the emerging safety issue posed by nanotechnology. We support these
efforts, yet would suggest that while S. 2045's increases recognize
that the agency can only absorb so much growth each year, the annual
increases could even be tweaked up slightly to reflect real increases
of 10 percent each year (that is 10 percent after inflation). We also
believe that the bill's proposed staff level increases could be
accelerated and given a higher ceiling, since the proposed increase
from 400 to 500 employees by 2013 would still leave the CPSC at only
about half its 1980 peak employee level. Nevertheless, we support the
provisions.
Quorum, Commission Size and Authority
CPSC is responsible for the safety of 15,000 consumer products
ranging from chain saws to kitchen appliances to children's toys. Part
of the goal of strengthening the agency should be for the Congress to
reinstate its 5 Commissioners, as S. 2045 would do. The bill also
wisely extends the temporary 2-commissioner quorum so the agency can
continue to do the people's business. It limits the power of political
appointees and requires the CPSC, an independent agency, to notify
Congress concurrently of proposals sent to the executive branch.
We strongly support these provisions, especially the bill's
provision (provided that the budget increases go through so that the
CPSC can fund the positions) reinstating 5 commissioners as a long-term
solution to re-establishing the agency's importance in the eyes of
billion-dollar manufacturers that have ignored it, as well as to the
public and its staff.
The Public's Right To Know and the Notorious 6(b)
In our discussions with current and former CPSC staff, and in our
own experience as noted above, nothing has proved more unnecessarily
harmful to the CPSC's ability to protect the public than Section 6(b)
of the Consumer Product Safety Act, which gives corporate wrongdoers
power over the CPSC's ability to disseminate information about
dangerous products to the public. While a consumer can search the
National Highway Traffic Safety Administration's databases for
information about complaints (even those that have not led to action),
the CPSC often cannot even disclose remedial actions it has already
taken.
U.S. PIRG will continue to support outright repeal of Section 6(b).
Nevertheless, your thoughtful proposal to amend it in numerous ways to
limit manufacturer obstinacy and threats of costly litigation has much
merit.
We concur with the detailed comments of the Consumer Federation of
America that S. 2045's Section 7 amending Section 6(b) should be itself
amended in several ways to clarify its effect. In particular, the new
language should apply to prohibited acts under all of CPSC's statutes,
not merely the CPSA; should not eliminate current exceptions to 6(b)'s
limitations and should include an exception for finding that the public
health and safety demands immediate notice for information received
under section 15(b).
Toxic Lead Hazards
Exposure to lead can affect almost every organ and system in the
human body, especially the central nervous system. Lead is especially
toxic to the brains of young children. A child exposed to a single high
dose of lead--such as by swallowing a piece of metal jewelry containing
lead--can suffer permanent neurological and behavioral damage, blood
poisoning, and life-threatening encephalopathy. Exposure to low doses
of lead can cause IQ deficits, attention deficit hyperactivity
disorder, and deficits in vocabulary, fine motor skills, reaction time,
and hand-eye coordination. PIRG studies have found lead levels in
children's jewelry at 28 percent by weight or more.
Children are more vulnerable to lead exposure than adults, since
young children often put their hands and other objects in their mouths;
their growing bodies absorb more lead; and children's developing brains
and nervous systems are more sensitive to the damaging effects of lead.
Currently, while lead is explicitly banned in paint (at levels based on
1970s science), the CPSC must jump through numerous hoops before it can
recall other products containing lead (except those with banned lead
paint). Among other regulatory hurdles, it must first determine that
levels of lead in any product are ``accessible'' to ban the product.
While, positively, the CPSC is proceeding (through a rulemaking in
response to a Sierra Club petition) to ban lead in metal components of
children's jewelry, the better, precautionary approach is to simply ban
lead in all children's toys and products (including, for example,
plastic jewelry).
S. 2045 takes that precautionary approach. It lowers allowable lead
paint levels and bans lead, except in trace amounts, in other
children's products. Nevertheless, we would urge the Committee to
review the recent House testimony \5\ of the American Academy of
Pediatrics, which offers a comprehensive review of current and
historical lead standards and defines trace levels even lower than the
laudable proposals in S. 2045. We concur with these findings from AAP:
---------------------------------------------------------------------------
\5\ See testimony of Dana Best, M.D., M.P.H., American Academy of
Pediatrics at a Hearing on Protecting Children from Lead-Tainted
Imports of the Subcommittee on Commerce, Trade, and Consumer Protection
of the House Energy and Commerce Committee, 20 September 2007,
available at http://energycommerce.house.gov/cmte_mtgs/110-ctcp-
hrg.092007.Best-testimony
.pdf.

The CPSC should require all products intended for use by or
in connection with children to contain no more than trace
---------------------------------------------------------------------------
amounts of lead.

The Academy recommends defining a ``trace'' amount of lead
as no more than 40 ppm, which is the upper range of lead in
uncontaminated soil. This standard would recognize that
contamination with minute amounts of lead in the environment
may occur but can be minimized through good manufacturing
practices.

``Children's product'' should be defined in such a way as to
ensure it will cover the wide range of products used by or for
children. This standard should cover toys intended for use by
or with children under the age of 12 years.

The limit on lead content must apply to all components of
the item or jewelry or other small parts that could be
swallowed, not just the surface covering.

Legislation or regulations should limit the overall lead
content of an item, rather than only limiting lead content of
its components. A single product may contain numerous
components that could cumulatively contain a dangerous level of
lead.
Corporate Accountability
The bill, S. 2045, takes numerous steps to hold corporations
accountable for the safety of products that they enter into commerce.
Quite simply, today, manufacturers are more afraid of Wal-Mart's (and
other retailers) demands for the lowest priced product than they are of
threats from the CPSC for breaking the law.
Most importantly, the bill (Section 17) increases CPSC civil
penalty authority from the current ``business as usual'' cap of $1.8
million dollars to a more imposing $100 million. The section also
broadens criminal enforcement provisions. Section 15 establishes
greater penalties for ``repeat importation'' offenses. Section 16 would
broaden the scope of prohibited acts under the agency's authority. It
would also give the CPSC authority that it does not now have to prevent
the dumping of products that pose hazards onto other countries.
Section 22 would establish new law creating protection for
corporate whistleblowers. While we have not had a chance to evaluate
this section in detail and encourage the Committee to contact the
Government Accountability Project for a review, this is an important
step. No one, whether he or she is an employee of any firm, or of the
government, or even a consumer, should suffer the threat of retribution
for good faith disclosure of information about product hazards.
Improving Corrective Action Plans Under CPSC Recall Authority
The bill (Section 13) also limits the ability of manufacturers to
game the process of recalling hazardous products by taking less action
than would be effective at protecting the public. The bill would
require CPSC approval of corrective action plans, which now are often
poor excuses for protecting the public.
Because the process of a mandatory recall is so difficult, and is
subject to numerous delays and possible litigation by affected
companies, the CPSC nearly always instead negotiates voluntary recalls.
But with the CPSC under pressure to take action as quickly as possible,
the company involved doesn't have to agree to aggressively, if at all,
remove the recalled product from commerce. It can simply agree, for
example, to a ``repair'' or a ``stop sale'' of a recalled item, and
leave old hazardous product on the shelves, provided any new product
meets standards. As we noted in our 2006 Trouble In Toyland report, the
first major CPSC action \6\ concerning the hazards posed by powerful,
tiny rare-earth magnets was not a recall, but merely a ``replacement''
program:
---------------------------------------------------------------------------
\6\ Child's Death Prompts Replacement Program of Magnetic Building
Sets, CPSC release of 31 March 2006 available at http://www.cpsc.gov/
cpscpub/prerel/prhtml06/06127.html.

``Uncomfortable having the product in your home'' is not an
adequate product safety standard.
Strengthen Import Protections
For better or worse, we live in a global economy. Manufacturers
seeking lowest-cost producers routinely stretch supply chains to China
or other countries. While the manufacturer, importer, retailer or
distributor is appropriately responsible under the CPSA and other laws
enforced by the CPSC for ensuring that any product that it enters into
commerce meets U.S. standards (and should not blame some sub-contractor
when it does not), Congress should also take steps to better protect
consumers from the hazards posed by imported products.
The bill, S. 2045 takes several steps, which we support, to improve
import safety.
Section 10 (which applies to all children's products, not only
imports), establishes new third party certification for all children's
products. The section prohibits their importation without such
certification. Importantly, the third party certification is
administered under the authority of the CPSC. It would not be as useful
were it not. Also, importantly, we would read Section 18 (preemption)
as making it clear that mere certification of a product would not grant
any immunity or shield from liability under state law. The committee
should be wary of any attempts by industry associations to change this.
Section 14 provides for improved identification of importers (and
others). Section 20 would require the bonding of any importer, to
ensure that it can pay for any necessary recalls, cost of holding at
the port or product destruction. Section 19 improves the CPSC's ability
to share information with both state enforcers and agencies of foreign
governments. We are well aware of the European Commission's concerns
over the current limitations on sharing hazard information with them;
we believe that Section 19 will ameliorate their concerns.
We would also urge the Committee to review recent House testimony
\7\ by Public Citizen's Global Trade Watch, which points out that
current and proposed trade pacts may limit the effect of your actions
to strengthen import safety, or may subject them to trade sanction
challenges.
---------------------------------------------------------------------------
\7\ See testimony of Lori Wallach, Director, Public Citizen's
Global Trade Watch, at a Hearing on Protecting Children from Lead-
Tainted Imports, Subcommittee on Commerce, Trade and Consumer
Protection of the House Energy and Commerce Committee, September 20,
2007, available at http://energycommerce.house.gov/cmte_mtgs/110-ctcp-
hrg.092007.Wallach-testimony.pdf.
---------------------------------------------------------------------------
Relationship to State Laws
U.S. PIRG is a strong supporter \8\ of the principle that Federal
law should serve as a floor of health and safety protection but that
states should be allowed to protect their consumers, workers and
environment better. As a former state attorney general, Mr. Chairman, I
know you agree that states often act more quickly than Federal agencies
or Congress and provide an important complement to Federal efforts.
Yet, far too often, the Congress ignores this and trades passage of a
weak Federal law for ``Federal uniformity'' in response to the baseless
demands of self-interested industry organizations.
---------------------------------------------------------------------------
\8\ See our website resources on why state preemption of stronger
consumer and environmental laws is a bad idea at http://uspirg.org/us-
law-policy.
---------------------------------------------------------------------------
We commend the Committee for the strong anti-preemption language
included in Section 18,\9\ including its admonishment of former CPSC
Chairman Hal Stratton's attempt to invent authority to preempt state
causes of action for compensation by consumers burned in mattress
fires.\10\
---------------------------------------------------------------------------
\9\ We also recognize the important provision, Section 21,
establishing the right of state attorneys general to bring actions
under the CPSA. If it hasn't already, we suggest the Committee seek
comment from the National Association of Attorneys General.
\10\ We urge the Committee to review the testimony of Professor
David Vladeck at a hearing of the Senate Judiciary Committee,
``Regulatory Preemption: Are Federal Agencies Usurping Congressional
and State Authority?'' held on 12 September 2007, for a discussion of
this CPSC episode and similar efforts by other Bush agencies to preempt
state consumer law even when they haven't been granted Congressional
power to do so. Hearing available at http://judiciary.senate.gov/
hearing.cfm?id=2935.
---------------------------------------------------------------------------
Nevertheless, in the area of state preemption, just as in the area
of children's exposure to toxic products, we believe in the
precautionary principle. So, we have the following recommendations to
amend and strengthen the section.
Ideally, we believe that the language in Section 12 of the Safety
Assurance for Every Consumer Product Act, H.R. 3691, more clearly
achieves the goals of Section 18 of S. 2045. In particular, that
section states:

``No consumer product safety standard promulgated by the
Commission after the date of enactment of the Safety Assurance
for Every Consumer Product Act, or any other action taken by
the Commission after that date, shall contain a preemption
provision which affects any action for damages or the liability
of any person for damages under the statutory law or the common
law of any State, unless such provision is expressly authorized
by statute.''

Alternatively, we would suggest a modification to Section 18(a),
which includes a complex relationship between sections (a) and (c), as
modified by the words ``to an extent greater than,'' which we would
suggest could be changed to the following:

``No consumer product safety standard promulgated by the
Commission after the date of enactment of the CPSC Reform Act
of 2007, or any other action taken by the Commission after that
date, shall preempt any State or local law that would be in
addition to the preemption of State regulations permitted under
subsection (a), as limited by subsection (c).''

Again, we want to commend the Committee for recognizing the
importance of allowing state enforcement, legislation and common law
that provide greater protection than Federal law.
Conclusion
We commend you, Mr. Chairman, and your cosponsors for introducing
this important legislation. The CPSC Reform Act of 2007, S. 2045, is a
critical, comprehensive, and long-overdue effort to restore the CPSC
from its status as the little agency that couldn't. We hope that you
find our comments helpful. We look forward to working with you and your
Committee staff to enact it into law. We would also be happy to discuss
other possible actions under the Committee's jurisdiction to protect
consumers from hazards. Under the CPSC's jurisdiction alone, for
example, we urge you to hold hearings on ATV safety, extending the
Child Safety Protection Act to the Internet, improving recall
effectiveness and investigating the chronic and developmental hazards
from unnecessary exposure to toxic phthalates (plastic softeners) in
children's products. Thank you.

Senator Pryor. Thank you.
Mr. Plunkett?

STATEMENT OF TRAVIS PLUNKETT, LEGISLATIVE DIRECTOR, CONSUMER
FEDERATION OF AMERICA

Mr. Plunkett. Good afternoon, Chairman Pryor, Senator
Klobuchar and Senator McCaskill.
I'm Travis Plunkett, I'm the Legislative Director at the
Consumer Federation of America and I'm going to echo many of
Ed's comments here in commending all of you for this excellent
piece of legislation. It's a far-reaching and comprehensive
bill, it'll strengthen the CPSC, and give it the tools that it
desperately needs to protect consumers.
As you've heard repeatedly, the Agency needs to increase
its financial and staff resources. We strongly support your
proposals toward that end in the bill.
I would suggest that you consider increasing staffing
beyond the increase of 100 full-time employees by 2014. You've
pointed out already, Mr. Chairman, that the Agency is at about
half the number of employees at its peak.
It is true, the technology has improved the ability of
employees to be more effective, but as you've also pointed out,
it is true that the number of imports that need to be examined
in this country have sharply increased, so we'd urge you to
consider a staffing increase, although on funding and staffing,
you take the Agency far above where it is right now. And it's a
very important increase.
On third-party certification, we see that as a crucial part
of the bill. The key to making sure products are safe when they
enter the stream of commerce is to check for safety at the
beginning of the supply chain. We strongly support this
provision, and we'd encourage you to apply, it's a voluntary
standard adopted by the industry, as well. And we also strongly
support the bill's creation of a role for the CPSC in ensuring
the testing laboratories meet minimum criteria and test to the
highest standards.
A number of the provisions in the bill that increase the
accountability of manufacturers, retailers and importers that
put unsafe products on the market have already been mentioned.
I will just tell you that the Consumer Federation strongly
supports a number of those provisions. We'd like to see the cap
on civil penalties entirely lifted, but the bill's increases on
individual fines and cumulative fines are very significant. The
limits will encourage manufacturers to recall dangerous
products faster, and to comply more carefully with safety laws.
We also support the bills goal of authorizing civil
enforcement by State Attorneys General and not encroaching on
stronger State laws. And finally, we support the bill's
proposals to strengthen penalties and procedures for criminal
violations of the law--this has not yet been mentioned--in
particular, removing the so-called receipt of noncompliance
requirement in current law will ensure that those who violate
the law in a criminal manner, do not get a free pass for a
first violation.
For many years, CFA and other consumer groups have urged
Congress to remove Section 6(b), excuse me, there has been much
discussion of that today. We think it's very important that it,
at the very least, be amended in the way that you have
suggested. This will put fewer roadblocks in front of the CPSC
to releasing important crucial safety information in a timely
manner. And, we urge you to proceed with this provision.
We've heard a lot of discussion of lead, I would echo Ed's
comments that the AAP and others think that allowable levels
should be reduced even further. This is groundbreaking, though,
in applying the standard to children's jewelry and other
children's toys, and we commend you for that.
Finally, let me suggest one significant new piece to
improve recall effectiveness, we would recommend that you
require manufacturers to provide a means of, directly and
quickly, communicating information about recalls to consumers
through a registration card. As you move forward with this
bill, we encourage you to think about that as an important new
provision that could be included in the bill.
Thank you for the opportunity to comment on this bill. We
view it as one of the most important pieces of consumer
legislation to be offered in Congress in several years, and we
look forward to working with you on it.
[The prepared statement of Mr. Plunkett follows:]

Prepared Statement of Travis Plunkett, Legislative Director,
Consumer Federation of America
Chairman Pryor, Ranking Member Sununu and Members of the
Subcommittee, I am Travis Plunkett, Legislative Director for Consumer
Federation of America (CFA). CFA is a nonprofit association of
approximately 300 pro-consumer groups, with a combined membership of 50
million people that was founded in 1968 to advance the consumer
interest through advocacy and education. Thank you for holding this
hearing and for providing us with the opportunity to speak today.
First, we must applaud your leadership on product safety issues.
Your inclusion of language extending the quorum in the Implementing
Recommendations of the 9/11 Commission Act of 2007 was critical to
passage of that language which has allowed the agency to operate fully
for an additional 6 months. We also applaud your introduction of S.
2045. This far reaching and comprehensive bill will strengthen the U.S.
Consumer Product Safety Commission and give it the tools it desperately
needs to protect consumers from unsafe products.
The Consumer Product Safety Commission (CPSC) is the independent
Federal agency charged with protecting the public from hazards
associated with at least 15,000 different consumer products. The Agency
was created because the marketplace was not adequately policing itself:
litigation and various Federal laws were not sufficiently preventing
death and injuries from unsafe products. CPSC's mission, as set forth
in the Consumer Product Safety Act, CPSC's authorizing statute, is to
``protect the public against unreasonable risks of injury associated
with consumer products.'' \1\ CPSC's statutes give the Commission the
authority to set safety standards, require labeling, order recalls, ban
products, collect death and injury data, inform the public about
consumer product safety, and contribute to the voluntary standards
setting process. CPSC was created to be an agency that acts proactively
to protect consumers. Unfortunately, the CPSC's ability to be proactive
has been thwarted by a shrinking budget, a lack of aggressive action by
the agency, and statutory provisions that create obstacles to the
effective prevention of product risks. S. 2045 takes many steps to
removing several of these obstacles.
---------------------------------------------------------------------------
\1\ Consumer Product Safety Act, 15 U.S.C. 2051, section 2(b)(1).
---------------------------------------------------------------------------
As a framework for discussing some of the most significant
provisions of S. 2045, I will focus on CFA's core principles for
product safety reform.
1. Strengthen CPSC
A. Increase Budget
With jurisdiction over many different products, this small agency
has a monstrous task. In 1974, when CPSC was created, the agency was
appropriated $34.7 million and 786 full-time employees (FTEs.) Now, 33
years later, the agency's budget has not kept up with inflation, its
deteriorating infrastructure, its increasing data collection needs, or
the fast-paced changes occurring in consumer product development. The
CPSC budget has also not kept pace with the vast increase in the number
of consumer products on the market. CPSC's staff has suffered severe
and repeated cuts during the last two decades, falling from a high of
978 employees in 1980 to just 401 for the 2008 Fiscal Year. This is the
fewest number of FTEs in the agency's 30-year history and represents a
loss of almost 60 percent.
The President's 2008 budget would provide only $63,250,000 to
operate the agency. This represents a reduction of 19 FTEs and a small
increase of $880,000 from the 2007 appropriation. This increase does
not provide for inflation, fails to allow CPSC to even maintain its
current minimal programming, and will not allow for CPSC to invest in
its research, resources and infrastructure.
Because of this historically bleak resource picture, CFA is
extremely concerned about the agency's ability to effectively prevent
and reduce consumer deaths and injuries from unsafe products. It is for
this reason that CFA strongly supports Section 3 of S. 2045. This
section, entitled, ``Reauthorization'' sets up an appropriations
schedule for CPSC through 2015. It increases budget levels by
approximately 10 percent each year, ending in 2014 at just over $140
million. Consumer Federation of America supports these gradual
increases, as we believe that these increases are the most effective
way to strengthen the agency. We have suggested increases of between 10
and 15 percent each year with an end goal of approximately $140
million. Adjusting CPSC's first budget of $34 million to today's
dollars would result in a budget of $140 million. CFA also supports S.
2045's provision that appropriates $20 million in 2009 and 2010 for
CPSC's laboratory, as well the $1 million during these 2 years for
research with other agencies related to nanotechnology.
B. Increase Full-Time Employees
Section 4 of S. 2045 directs CPSC to increase FTEs to at least 500
by October 1, 2013. While we support this increase of 100 FTEs, we hope
that the Subcommittee will consider increasing staffing levels even
faster, given the extraordinary product safety challenges the Nation is
facing. We further support the bill's prohibition of burrowing by
political appointees into career positions.
C. Restore Commission to Five Commissioners
Section 5, ``Full Commission Requirement; interim quorum,''
restores the Commission to five members, as was originally required in
the Consumer Product Safety Act. We support this provision as we
believe that additional members would result in a more robust and
dynamic Commission that would strengthen and enhance the work of the
Commission, thus better serving the public interest. However, we urge
that the full Commission only be restored if the Commission's budget
and staff are increased as proposed in this bill. We want to ensure
that resources will not be taken away from the much needed product
safety work conducted by the agency. This provision also includes a
temporary quorum provision that would extend the current emergency
quorum of two members for nine additional months after this bill is
passed. This Subcommittee may wish to extend this emergency quorum to
expire once there is a full complement of Commissioners.
D. Streamline Rulemaking Procedures
The Consumer Product Safety Act, as amended in 1981, requires CPSC
to engage in a three-step rulemaking process that is unnecessarily
time-consuming. Section 8, ``Rulemaking,'' makes the Advanced Notice of
Proposed Rulemaking (ANPR) process under CPSA voluntary rather than
mandatory. We support this provision as it allows the ANPR process when
justified but would also permit expedited rulemaking when necessary.
The Subcommittee should consider requiring rulemaking ``benchmarks''
that require the CPSC to complete the rulemaking process within
particular time-frames, or to submit an explanation to Congress as to
why these benchmarks cannot be met. Such requirements could expedite
the CPSC's glacial rulemaking process, while allowing the agency to
exceed recommended benchmarks when justified, as well as provide notice
to the public about the time limits for each stage of rulemaking.
2. Require Independent Third-Party Testing
To make sure that products are safe when they enter the American
and global stream-of-commerce, safety must be infused into the earliest
stages of the supply chain. For this reason, independent third-party
testing of components, as well as final products, must be required.
Third-party testing entities must be independent from and have no
financial relationship with the manufacturer producing the product.
Testing must be conducted to identify design flaws as well as
violations of existing regulations, such as those governing the use of
lead paint. Components and final products must be tested at numerous
stages of production and tests must be conducted randomly throughout
the manufacturing process. Products should also be certified that they
meet the appropriate standards and should bear a label indicating that
they are certified.
Section 10 of S. 2045, ``Third party certification of children's
products,'' amends section 14(a) of CPSA and applies to any
manufacturer or private labeler of a children's product that is subject
to: (1) product safety standard under CPSA; or (2) or a rule under any
act declaring a product a banned hazardous product. This would require
testing by non-governmental independent third parties qualified to
perform tests and would require that certificates be issued certifying
conformity to the applicable safety standard or certifying that the
product is not a banned hazardous product. While CFA supports this
provision, we believe it is a reasonable compromise to require that
products also be certified for compliance with all voluntary standards
as well. Further, children's products are defined narrowly, as those
designed or intended for use by children under 7 years old. However,
recognized authorities such as the American Academy of Pediatrics have
recommended that children's products be defined as those intended for
children under twelve years old.
We support the provision in S. 2045 that creates a role for CPSC to
play in ensuring that testing laboratories meet a minimum criteria and
test to the highest standards. The CPSC is limited by its current
budget, staff, expertise, and distance from off-shore manufacturing to
engage in product-testing at the earliest stages of the supply chain.
However, we believe that a publicly accountable entity should regulate
these third-party overseers to set consistent and high standards.
Ultimately the responsibility falls on the manufacturers and/or
importers, many of which are based in the United States, to be more
fully engaged in testing and policing the component parts that make up
their products, as well as their final products.
3. Hold Manufacturers, Retailers, and Importers Accountable and
Responsible
Global and American manufacturers, retailers and importers need to
take responsibility and be held accountable for safety at every stage
of the supply chain. As our economy is becoming increasingly global and
the supply chain is becoming more complex with transactions becoming
more arms-length, our priority must be that safety never falls through
the cracks. Safety should never be ``lost in translation'' or
compromised for a better price.
However, global manufacturers have not been able to comply with
existing laws and regulations, such as those banning lead in paint up
to .06 percent of weight. While CFA agrees that additional legislation
is necessary, such as Senator Pryor's bill requiring independent third-
party testing and expanding the ban on lead in all children's products,
enforcement mechanisms must be in place to ensure compliance with these
laws. Currently, limited enforcement mechanisms are in place. Very low
caps exist on the amount of civil penalties the CPSC can assess against
an entity in knowing violation of its statutes. The current civil
penalty is capped at $7,000 for each violation, up to a total of $1.83
million. A ``knowing violation'' occurs when the importer,
manufacturer, distributor or retailer has actual knowledge or is
presumed to have the knowledge a reasonable person would have or should
have if the person acted reasonably to determine the truth. Knowing
violations often involve a company's awareness of serious injury or
death associated with its product.
CFA supports completely eliminating this cap on the amount of civil
penalties that CPSC can assess. However, we support the reasonable
compromise set forth in Section 17 of S. 2045, which increases the cap
to $250,000 for each such violation up to a total of $100 million.
These new guidelines will encourage manufacturers to recall products
faster and to comply with CPSC's statutes in a more aggressive way.
Importantly, these new civil penalty limits will act as a meaningful
deterrent to non-compliance with CPSC's regulations.
Section 17 also deletes one of the more counterintuitive provisions
of the CPSA, which requires ``receipt of notice of noncompliance'' from
the Commission before any person could be fined under the criminal
penalty provision. Those who violate the law in a criminal manner
should not get a free pass for a first violation. We support the
removal of this clause and also support the inclusion of jail time for
anyone who knowingly commits a prohibited act as defined by CPSC's
statutes, as well as the removal of the ``willfully'' standard for
those who authorize any prohibited act, and the inclusion of asset
forfeiture as a criminal penalty. Criminal violators of CPSC's
regulations must be punished in a meaningful way for criminal behavior
as such behavior compromises the health and safety of our Nation.
Finally, CFA supports the inclusion of Section 15, ``Repeated
importation offenses,'' which allows the Commission to identify a
repeat offender (after notice and hearing) and to recommend to Customs
and Border Protection (CPB) that their import license be terminated.
This is a positive step forward; however, this provision could be
strengthened by requiring CBP to follow any CPSC recommendations.
Further, ``multiple violations'' should be defined.
4. Disclosure of Product Safety Information to the Public
For many years, CFA and other consumer groups have urged Congress
to eliminate section 6(b) of the CPSA. This section of the Act
restricts CPSC's ability to communicate safety information to the
public. Currently, CPSC is required to give a company an opportunity to
comment on a proposed disclosure of information. If the company has
concerns about the wording or the substance of the disclosure they can
object. CPSC must accommodate the company's concerns or inform them
that they plan to disclose the information over their objections. The
company can then sue the Commission seeking to enjoin them from
disclosing the information. Thus, this provision creates a time-
consuming process between CPSC and the affected company, often serving
to delay or deny any potential disclosure.
Section 7 of S. 2045 regarding ``Public disclosure of information''
does not delete section 6(b), but rather amends it in numerous ways.
This amendment requires that any industry response to the CPSC in these
circumstances be provided within 15 days and eliminates the ability of
a company to institute a court proceeding to enjoin release of the
information CPSC may also attach the manufacturer or other entity's
comments as an addendum to the release of public safety information.
This section of S. 2045 takes an important step forward by instituting
a reasonable time-frame for companies to respond to CPSC requests for
disclosing information and minimizes the possibility of lengthy and
resource-intensive litigation.
However, we would recommend several changes to this provision to
make it more effective. First, the new language should apply to
prohibited acts under all of CPSC's statutes, not merely the CPSA, so
that products and relevant information regulated under different
statutes are treated equally. Second, the new language appears to
eliminate an existing exception to 6(b) that allows for the disclosure
of information relevant to ongoing rulemaking proceedings.
CFA also supports the provision set forth in section 6 of S. 2045,
``Submission of copy of certain documents to Congress.'' CFA, other
consumer groups, and Members of Congress have been hindered from having
access to CPSC's budget requests to the Office of Management and Budget
(OMB). Thus, reinstating Section 27(k) of the CPSA which requires the
Commission to simultaneously submit budget requests and legislative
recommendations to both OMB and to Congress will illuminate what budget
the Commission actually requests.
5. Ban Lead from Children's Products
As you are well aware, lead has increasingly been found in
children's products, including toys, jewelry, lunch boxes, bibs, cribs
and other items. Lead has been found in products made by large
manufacturers as well as in those made by smaller companies. CFA
supports a ban on lead in all children's products, which currently does
not exist. While lead in the paint used in children's products is
limited to .06 percent by weight of lead (a standard set in the 1970s),
there is no mandatory law prohibiting the use of lead in children's
jewelry or in other children's products. CFA supports a full ban on the
use of lead in children's products other than trace amounts. This is
because experts confirm that there is no safe level of lead exposure.
Serious, acute and irreversible harm can come to children as a result
of exposure to lead. Finally, there is no justifiable reason why such a
dangerous additive should be used in children's products, as safer
alternatives almost always exist.
Section 23 of S. 2045 requires that any product not in compliance
with this rule is considered a banned hazardous substance, whether or
not the lead is accessible to a child. Section 23 defines the ban on
lead in three ways: (1) for toy jewelry, any lead content greater than
.02 percent by weight violates the standard; (2) for other children's
products, anything greater than .04 percent by weight is in violation;
and (3) the current ban on lead in paint is changed from .06 percent to
.009 percent. For consumer electronics, the bill directs the Commission
to promulgate a rule to reduce exposure to and the accessibility of
lead in electronic devices. The day after this Act takes effect, CPSC
is required to begin rulemaking for all products that are covered, to
determine whether there should be lower limits for lead than required
in the Act.
CFA views this provision as a positive improvement over the status
quo. However, we note again that experts maintain that there is no safe
level of lead. The American Academy of Pediatrics supports a limit of
.004 percent by weight of lead for all children's products. We hope to
work with the Subcommittee to reduce the acceptable levels of lead even
further.
6. Recall Effectiveness
A. Direct-to-Consumer Notification of Recalls
The ability of CPSC to conduct effective recalls of unsafe products
is critical to protecting the public from unreasonable risks associated
with consumer products. CFA supports requiring that manufacturers (or
distributors, retailers, or importers) of products intended for use by
children provide with every product a Consumer Safety Registration Card
that allows the purchaser to register information through the mail or
electronically. Such information should be used by a recalling company
solely to contact the purchaser in the event of a recall or potential
product safety hazard. Product Registration Cards are required to be
attached to car seats to provide a mechanism to directly notify
consumers who purchased a recalled car seat. These methods would be
more effective than the current approach, which relies on the media to
convey the news of the recall.
Consumers who do not hear of product recalls are at greater risk of
tragic consequences, including death or injury. By being dependent upon
the media and generic forms of notice to broadly communicate
notification of recalls to the public, CPSC and the companies involved
are missing an opportunity to communicate directly with the most
critical population--those who actually purchased the potentially
dangerous product. Consumer Safety Registration Cards or a similar
electronic system would provide consumers the opportunity to provide
manufacturers their contact information enabling manufacturers to
directly notify consumers about a product recall.
To improve recall effectiveness, CFA recommends that S. 2045
include a provision that amends section 15 of the CPSA to require
manufacturers to provide a means of directly communicating information
about recalls to consumers through a registration card, electronically
or by other means of technology. Manufacturers, retailers, and
importers should be required to report the existence of the recall to
retailers and all commercial customers within 24 hours after issuing
the recall or warning. All entities within the stream of commerce
should be required to post the recall to websites, if in existence,
within 24 hours of the issuance of a recall. We suggest that
manufacturers, retailers, distributors, and importers be required to
communicate notice of the recall to all known consumers. Retailers,
after receiving notice of the recall, should be required to remove the
recalled product from their shelves and website within three business
days or by the time of a CPSC recall announcement, whichever is
shorter, and to conspicuously post notice of the recall in their stores
for at least 120 days after issuance of the recall.
CFA also supports the concept of section 16 of S. 2045, which
allows the Commission to prohibit the export of products if they do not
comply with any safety standard, are banned as hazardous, or are the
subject of a voluntary recall or other corrective action. CFA supports
not merely ``allowing'' the Commission to prohibit export in these
circumstances but rather, urges the Subcommittee to ``require'' the
Commission to prohibit the export of such products The export of
recalled and hazardous products to other countries should simply be
prohibited.
Section 13 of S. 2045, ``Corrective Action Plans,'' requires
Commission approval of corrective action plans and defines a standard
for what type of plan is in the public interest. We support this
provision as it will strengthen CPSC's ability to obtain a recall
remedy that is effective and safe.
B. Bonding
This summer's recall of tires from an overseas importer highlighted
a serious problem: some importers may not be able to afford the costs
of conducting a recall if safety hazards exist. If a company is
benefiting from the sale of their products in the United States, they
must be able to prove that they can cover the costs of a recall. All
product sellers, including importers, must be required to post a bond
or something equivalent to ensure that recalls could be effectively
conducted. CFA supports section 20 of S. 2045, which directs the
Commission to promulgate a rule to require manufacturers and others
involved in the distribution of a consumer product to post a bond (or
something similar that is acceptable to the Commission) to cover the
costs of a potential ``effective recall,'' holding the product at port,
and/or the destruction of the product.
7. Traceability
When the product safety net fails and an unsafe product enters the
market, it can be difficult to isolate the source of the problem. For
example, a problem may have occurred at the manufacturing phase by a
subcontractor of a subcontractor. Tracking this down can be incredibly
time-consuming and can delay a meaningful corrective action plan.
Further, more than one manufacturer may have used the same
subcontractor so knowing the source of the safety failure is critical
to isolating the problem. Thus, products should contain some type of
label, mark or number on a product that would directly indicate the
source, date and production group.
Section 14 of S. 2045, ``Identification of manufacturer imports,
retailers, and distributors,'' requires manufacturers to submit to CPSC
any identifying information, such as the retailer or distributor and
all subcontractors. This will help CPSC to more readily identify all of
the segments of the supply chain. In addition, section 11, ``Tracking
labels for durable products for children,'' requires indications on
product or packaging that enables a consumer to ascertain the source,
date, and cohort. This will be useful for consumers as they attempt to
identify whether the product they own may be subject to a recall. CFA
suggests improving this provision by requiring this information on both
the product and the packaging, as packaging materials are often
discarded.
8. Preemption
In February of 2006, the Draft Final Rule for Flammability of
Mattress Sets (``Draft Final Rule'') was made available to the public.
Consumer groups opposed this Draft Final Rule not because of its
substantive requirements but because of the novel language added to the
preamble after the notice and comment periods expired that purported to
preempt state common law remedies. CFA, therefore supports the concept
that Congress should clarify the reach of CPSC's authority to prevent
the Commission from usurping well established state regulatory
authority and common law claims.
In conclusion, we support the introduction of this legislation as
it represents a number of crucial steps forward in improving and
strengthening CPSC's ability to protect the public from harmful
products. We look forward to working with the Subcommittee to make this
bill law.

Senator Klobuchar [presiding]. Thank you, Mr. Plunkett.
Mr. Korn?

STATEMENT OF ALAN KORN, J.D., DIRECTOR OF PUBLIC POLICY AND
GENERAL COUNSEL, SAFE KIDS USA

Mr. Korn. Thank you, Madam Chair.
Senator Klobuchar. For the minute.
Mr. Korn. First off, thank you for having this hearing. We
have quite a bit of confidence in this Committee, and in
particular the staff sitting behind you on both sides of the
aisle. There are often weeks where I speak to the ladies and
gentlemen behind you more than I speak to my own wife, which
tells me that this Committee is completely focused on consumer
product safety and we join you in that effort. And you've been
a particular leader in your short time here. We appreciate your
support on the Pool Bill and, in fact, you've improved that
bill for us.
Senator Klobuchar. Well thank you, and you can tell your
wife you talk to her more than me.
[Laughter.]
Mr. Korn. Madam Chair, there are many who feel that the
CPSC is a dead agency and that it's failing repeatedly to serve
its important mission. I am not one of those people. The CPSC
is full of committed staff, who every day work hard to protect
and serve its mission.
The CPSC however, is an agency that is withering on the
vine; and it is in need of immediate water and fertilizer. And
this bill, we believe, is a much needed dose of Miracle Grow.
I won't read through my testimony. I'll go through a few
highlight points that have not been raised yet, except as to
say this. We believe that the most important provision of this
particular bill is its budget increase. Single-handedly, that
is the most important thing we can do to improve this Agency,
notwithstanding the CPSC Chairman's reluctance. Those of us,
who deal with that Agency, know it needs an infusion of funds
and can use an infusion of funds. We're glad to see that
Senator Durbin's on this bill also. That tells me that we're
probably moving toward the right types of resources.
Another provision, and I think one of the more interesting
ones in your bill and Chairman Pryor's bill, is the restoring
of the Commission to five members. Apparently the sponsors feel
that's important to be an effective agency, and we agree. An
agency with five members makes for a more vibrant institution
and would promote active discussion, compromise, and even
dissent when necessary. And I think all those are good things.
We can see that energy and I believe effectiveness in another
agency under this Subcommittee's jurisdiction, and that's the
Federal Trade Commission.
I also see another advantage to that type of vibrancy and
diversification by expanding to five members. And that it
allows the President, whoever that might be, and Congress,
through its confirmation process, to diversify the expertise on
the Committee. And this is how I would envision it. By no means
a recommendation, but this is what diversification could mean.
You could have a Commissioner with a legal background, a
Commissioner with experience in human factors, a Commissioner
with knowledge about children and how they interact with
products, Commissioners with experience in certain risk areas,
such as drowning and fire and burns, a leading killer of kids,
as you know for our work on the Pool Bill. And a Commissioner
with background in engineering and product design. Again, by no
means a recommendation, not my position to do that, but that's
the type of diversification we'd like to see.
We see that, by the way, hypothetically or not
hypothetically, anecdotally at the NTSB. They've got members
with aviation experience, boating experience--let's see, what's
the other one--railway experience. So collectively, we see very
good expertise at that independent agency, and we think they
serve their mission quite well.
Another provision of the bill that hasn't gotten a lot of
attention, I'd like to spend a second on it. And that is the
civil penalties. Right now, the civil penalties are at $1.8
million. In our view, that is nowhere near enough economic
deterrent, in order to promote a manufacturer or a company to
do the right thing or an economic deterrent to doing the wrong
thing. Now, whether it's $100 million, we can discuss with you
and staff as to where that number might be.
And here's a good example. If you've got $50 million of
product in the marketplace, and you find out that there's a
product hazard with that. And you think to yourself, ``Ooh, I
need to report to the Consumer Product Safety Commission, but
you know that if you don't you will only be fined $1.8
million.'' Then you're throwing an economic component into that
decisionmaking where it shouldn't be. One point eight million
dollars, possibly by a civil penalty, or a $50 million recall.
That should not be the case. There should be a higher deterrent
to that, a company shouldn't be put in that place where they're
thinking about that kind of economic ramification when it comes
to safety. So we believe something higher.
In the last few seconds, I want to talk about something
that was just raised by my colleague to my right. And that is
the product notification or direct notification to consumers,
something you mentioned in your opening statement or in your
questioning. I think there's a bill pending in the House right
now that was just marked up at the House Energy and Commerce
Committee, unanimously by bipartisan support. It's a--it's the
Danny Keysar Child Product Safety Notification Act, which would
basically do what is done with NHTSA, and that is require, on
certain products like cribs, playpens, high chairs, and
strollers. I think the recent news suggests why it's important
to directly notify an owner of a product when they have a
recalled product.
So, I would urge the staff and the Committee to consider
that pending bill in the House as a nice component to increase
recall effectiveness in the CPSC Reform Act.
My time is up. I'll--I'll be happy to answer questions.
[The prepared statement of Mr. Korn follows:]

Prepared Statement of Alan Korn, J.D., Director of Public Policy and
General Counsel, Safe Kids USA
My name is Alan Korn, and I am the Director of Public Policy and
General Counsel for Safe Kids USA, a member country of Safe Kids
Worldwide. Safe Kids thanks the Senate Consumer Affairs, Insurance and
Automotive Safety Subcommittee, and in particular Chairman Pryor and
Senator Sununu for holding a hearing on the CPSC Reform Act of 2007 (S.
2045) and ways to improve the overall operations of the U.S. Consumer
Product Safety Commission (CPSC).
I. History of Safe Kids Worldwide
Safe Kids Worldwide is the first and only international
organization dedicated solely to addressing an often under recognized
problem: More children ages 14 and under in the U.S. are being killed
by what people call ``accidents'' (motor vehicle crashes, fires,
drownings and other injuries) than by any other cause. Formerly known
as the National SAFE KIDS Campaign, Safe Kids Worldwide unites more
than 450 coalitions in 16 countries, bringing together health and
safety experts, educators, corporations, foundations, policymakers and
volunteers to educate and protect families against the dangers of
accidental injuries.
Founded in 1987 by the Children's National Medical Center and with
support from Johnson & Johnson, Safe Kids Worldwide and its member
country, Safe Kids USA, relies on developing injury prevention
strategies that work in the real world--conducting public outreach and
awareness campaigns, organizing and implementing hands-on grassroots
events, and working to make injury prevention a public policy priority.
The ongoing work of Safe Kids coalitions reaching out to local
communities with injury prevention messages has contributed to the more
than 40 percent decline in the childhood unintentional injury death
rate during the past 15 years in the U.S. However, with more children
dying from accidental injury than from cancer, heart disease and birth
defects, Safe Kids Worldwide and its member countries remain committed
to reducing unintentional injury by implementing prevention strategies
and increasing public awareness of the problem and its solutions.
II. The Problem: Accidental Childhood Injury
Accidental injuries are a leading cause of death for all Americans,
regardless of age, race, gender, or economic status. Annually, an
average of 27,100 deaths and over 33.1 million injuries are related to
consumer products (although these are not necessarily caused by
consumer products). Unfortunately, children make up a large portion of
these tragic numbers. Each year, more children ages 14 and under die
from unintentional injuries than from all childhood diseases combined.
More than 5,300 children ages 0-14 die and there are over 6 million
injuries serious enough to require medical care due to unintentional
injury.
III. The CPSC Reform Act of 2007 (S. 2045)
In light of the recent news coverage surrounding the CPSC and
product recalls, Safe Kids believes this is the perfect opportunity to
address children's product safety on a comprehensive basis.
Accordingly, Safe Kids applauds Senator Pryor, Senator Inouye and
Senator Durbin for sponsoring the CPSC Reform Act of 2007. It is also
our understanding that Senators Klobuchar and Nelson contributed
extensively to the legislation and they should also be commended. We
believe S. 2045 is an excellent legislative framework to not only
remedy the CPSC's abysmal budget, but to also rejuvenate this important
Federal agency that has not been reauthorized since 1990. Safe Kids
supports many of the provisions contained in the CPSC Reform Act of
2007:
A. Increasing the CPSC's General Budget
Safe Kids is particularly pleased that the CPSC Reform Act of 2007
would dramatically increase the Agency's current operating budget to a
sufficient level in order for it to properly fulfill its mission. The
CPSC monitors the safety of over 15,000 types of consumer products,
including kitchen appliances, sporting equipment, safety devices, home
furnishings and art materials, and is charged with an enormous
responsibility to keep families safe from injury and death. The CPSC
must regulate consumer products, recall them when necessary, educate
the public about safe use and behavior, and stay current on new injury
product trends.
Given its historically small budget and large statutory mandate,
the CPSC has often been effective over the years, but could do much
more with additional resources. The CPSC Reform Act of 2007 provides
those resources by providing $759 million over the next 7 years--a 58
percent increase over current levels. Safe Kids believes this infusion
of funds is single-handedly the most important reform in the
legislation and we applaud the bill's sponsors for arming the CPSC with
appropriate resources in order for it to properly serve its critical
mission.
B. Dedicated Funds for Labs and Staffing
Safe Kids also supports the separate authorizations to upgrade the
Agency's dilapidated laboratory and to increase its staffing level.
This will ensure that the CPSC can accomplish both these important
tasks without having to make any difficult decisions about what should
be prioritized in the new budget. In addition, having specific amounts
of money authorized for the lab and hiring of staff sends the important
message that these are priority tasks for the CPSC. Safe Kids agrees
with those priorities:

1. Upgrade the CPSC Lab

Safe Kids has consistently advocated for an upgrade to the
CPSC's lab facilities. In the past, Safe Kids staff toured the
CPSC testing lab located in Gaithersburg, Maryland. The CPSC,
among other things, uses this lab to test thousands of consumer
products to ensure that they comply with existing voluntary or
mandatory standards, or to determine whether or not they pose
an unreasonable risk of injury to the American public. Safe
Kids staff was impressed by the commitment and expertise of
CPSC lab personnel, but was surprised by the poor quality of
the lab's conditions. The CPSC to this day, while somehow
fulfilling their mission, has done so with less than adequate
technical facilities. We believe that the CPSC should have a
lab that, at the very least, competes with those found in the
private sector and that Congress should provide the funds
necessary to upgrade the facility. The CPSC Reform Act of 2007
provides for $20 million for the upgrade of this important
facility.

2. Staff to Carry Out Agency Responsibilities

In addition, salaries for staff represent the largest portion
of the CPSC's budget. However, the CPSC has gradually had their
staffing levels reduced over the years due to budget
constraints. This has resulted in fewer and fewer CPSC staff
members to carry out the Agency's increasing responsibilities
to keep children and families safe from defective and hazardous
products. Not only has the Agency lost personnel over the
years, but, significantly, the CPSC has lost key staff members
through attrition who had in-depth experience and deep
institutional knowledge. This is now the time to re-invest in
staffing the Agency so that the CPSC, over time, will have an
effective team with historical knowledge that can keep up with
the fast-changing consumer product marketplace. Safe Kids fully
supports the legislation's directive to have the CPSC be fully
staffed with at least 500 employees by 2013.
C. Increasing the Civil Penalties for Violations
Safe Kids supports the increase in the civil penalty allowed by the
Consumer Product Safety Act (CPSA), as contained in the CPSC Reform Act
of 2007. In its present form (under Section 20 of the CPSA), any person
who knowingly engages in a prohibited act, as outlined in Section 19,
is subject to a civil penalty not to exceed approximately $1.8 million.
In some cases, and in particular when larger companies are involved,
the $1.8 million cap may not be enough of an economic deterrent to
prevent the company from engaging in an unlawful act. For example, a
company that has $50 million worth of product in the marketplace may be
willing to incur the civil penalty instead of reporting a defect or
injury as required under Section 15 in hopes of avoiding a recall
(failing to report any information required by Section 15(b) is a
prohibited act under Section 19 and is subject to a civil penalty).
Safe Kids has long advocated for an increase in the civil cap to an
amount that better represents a deterrent. We support the provision in
the CPSC Reform Act of 2007 that would increase civil fines (for all
statutes under the CPSC's jurisdiction) up to $250,000 per violation
with a cap at $100 million.
D. Restoring the CPSC to a Five-Member Commission
The CPSC Reform Act of 2007 contains a provision that triggers an
existing Agency authorization by expanding the Commission to five
Commissioners, as opposed to the current membership of three
Commissioners. The bill's sponsors feel that the Commission can
function more effectively with a full complement of members. Safe Kids
agrees; an Agency with five members makes for a much more vibrant
institution and would promote active discussion, compromise and even
dissent when necessary. We can see that energy, and I believe
effectiveness, in another Agency under this Subcommittee's
jurisdiction--the Federal Trade Commission (FTC). Due in large part to
its full complement of Commissioners (and its adequate budget), the
FTC, on the whole, effectively serves its mission by protecting
consumers from deceptive practices and preserving a competitive
marketplace.
A five member Commission would also allow the President and
Congress to expand and diversify the expertise of the CPSC through the
nomination and confirmation process. For example, the CPSC could be
comprised of the following:

A Commissioner with a legal background;

A Commissioner with experience in human factors;

A Commissioner with knowledge about children and how they
interact with products;

A Commissioner with experience in certain risk areas, such
as drowning or fires/burns; and

A Commissioner with a background in product design and
engineering.

This is, by no means, a recommendation from Safe Kids as to who
should be part of the Commissioner panel, but more illustrative of the
opportunities that a five member Commission can present to the overall
Agency structure as well as diversification. The diversification of
expertise can be seen at the National Transportation Safety Board whose
Board Members have individual, and therefore, collective knowledge in
the fields of aviation, railway and boating.
Safe Kids does, however, caution the Subcommittee that expanding
the Commission by two members would also result in the need for
additional budget resources for staffing, office space and travel. We
believe that the budget relief provided in the CPSC Reform Act of 2007
should be used first to improve overall Agency core functions--such as
increasing recall effectiveness, marketplace policing and conducting
enhanced public education initiatives--not using funds to augment the
number of Commissioners. While we support the expanded Commission, Safe
Kids believes that there other more pressing matters that need to be
addressed first before doing so.
E. Enhancing Product Recall Effectiveness
There are many provisions in the CPSC Reform Act of 2007 that would
enhance the effectiveness of product recalls and improve the strength
of the CPSC compliance staff at the recall negotiating table with
manufacturers:

1. Elimination of the Election of Remedies Provision in Section
15 of the Consumer Product Safety Act

S. 2045 eliminates the ``election of remedies'' provision
contained in Section 15 of the CPSA. Safe Kids believes this
provision unnecessarily handcuffs the CPSC's compliance staff
when they are negotiating a corrective action plan.

Presently, once the Commission determines that a product
distributed in commerce presents a substantial hazard and that
remedial action is required to serve the public interest under
Section 15 of the CPSA, the CPSC may order the manufacturer of
the dangerous product to elect (at the product manufacturer's
discretion) to either:

Bring the merchandise into conformity with requirements of
the applicable consumer product safety rule; or

Replace the product with a like or equivalent product; or

Refund the purchase price (less a reasonable allowance for
use).

(Consumer Product Safety Act, Section 15d)

This discretionary election may not always serve the public
interest. For instance, if the CPSC is recalling a $75 toaster
that poses a serious electrocution or fire and burn hazard, the
manufacturer, once ordered to remedy, may elect to refund the
purchase price less a reasonable allowance for use. The refund
on a toaster that has been in the marketplace for 5 years may
have a refund value of $10. This refund may not be a motivating
enough factor to encourage the consumer to remove the dangerous
product from their household. In this case, the public may be
better served by a different remedy--such as receiving a
replacement item that is of similar quality or having the
recalled product repaired. Safe Kids believes that CPSC
compliance officers should ultimately decide what constitutes
an appropriate remedy given the totality of the circumstances.
We support the change to Section 15 of the enabling statute in
the CPSC Reform Act of 2007 that empowers the CPSC to police
the manufacturer's elected remedy option.

2. Product Tracking

The CPSC Reform Act of 2007 also contains a provision that
would require manufacturers of children's products to place
distinguishing marks on products or packaging that will enable
the consumer to easily identify whether or not the item has
been recalled. This requirement will make it much easier for
consumers to quickly identify if a certain product has been
recalled and hopefully return or dispose of the item in a
timely fashion. Safe Kids supports this sound policy provision.

Historically, recall rates are quite low and much of the
problem can be attributed to consumers not even being aware of
the recall itself. Recall ineffectiveness also stems from
consumers not being able to easily determine whether or not the
product in their possession is the recalled one. Safe Kids
notes that the bill allows the manufacturer to put the
distinguishing marks on the product itself or its packaging. We
would assume that most manufacturers would choose to put the
mark on the packaging instead of the product, especially when
the items are particularly small in size. As parents and
grandparents can attest to, packaging is most often disposed of
when a new toy is brought home. As a result, the tracking
information would also be discarded. Safe Kids believes that
the distinguishing marks--when at all possible--should be
permanently stamped on the product itself so that the tracking
information is present throughout the lifespan of the item.

In addition, Safe Kids recommends that all recall notices
should highlight the distinguishing marks on the product. The
simple existence of the marks is not enough--the recall notices
need to incorporate color pictures of where the marks are on
the products (or its packaging) as well as any graphics to help
the consumer/parent/caregiver determine if there is a recalled
product in their home. The CPSC recently released ``A
Consumer's Guide to the Magnetix Building Set Recall''; this is
a great example of the effective use of images and other
graphic elements to convey safety information.

3. Support for the Danny Keysar Child Product Safety
Notification Act (H.R. 1699)

In its present form, the CPSC Reform Act of 2007 fails to
include an effective tool (product registration cards) that
would help improve customer notification and, therefore, recall
success rates. The Danny Keysar Child Product Safety
Notification Act (H.R. 1699), sponsored by Representative Jan
Schakowsky, would direct the CPSC to require manufacturers of
certain children's ``durable products'' (like cribs, playpens,
high chairs and strollers) to provide consumer product
registration cards in order to help facilitate the recall
process. This bill was recently unanimously approved by the
full House Energy and Commerce Committee. Registration cards,
in some circumstances, can be an important tool to help
consumers become aware of potentially dangerous products in
their home by allowing the manufacturer of a recalled product
to directly notify the purchaser of the product about the
recall and the remedial action warranted. We note, however,
that the Danny Keysar Child Product Safety Notification Act
would not require registration cards for all children's
products; the requirement would only apply to products
inextricably interwoven in a child's daily life. This tailored
use of registration cards makes the Act very practical and
targeted to only those products that, if they contain a design
hazard, pose significant exposure to death or injury. We urge
the inclusion of H.R. 1699 into the CPSC Reform Act of 2007.

4. Authority to Re-Visit a Negotiated Corrective Action Plan

The CPSC Reform Act of 2007 contains a much needed provision
that enables the Agency and in particular, its compliance
staff, to revisit an implemented recall corrective action plan
that has not been effective. This is a particularly important
tool for those recalled products that have a serious hazard and
it can be determined that the recall effectiveness rates are
insufficient (i.e., cribs that pose a strangulation or a
playpen that unexpectedly collapses). Posed with this scenario,
the CPSC can require the manufacturer to more aggressively re-
publicize the recall with posters, paid advertising or an
additional video news release, among other things.

The CPSC Reform Act of 2007 also allows the CPSC to revoke
completely a negotiated corrective action plan if it determines
that a manufacturer or distributor has failed to substantially
fulfill its action plan obligations. The manufacturer/
distributor would then also be required to stop selling the
product. Safe Kids believes that this provision may be
redundant. We believe that once a product is subject to a
recall, the manufacturer/distributor is already prevented from
continuing to sell that product or must sell that product in
its repaired form. We do believe, however, that ``failing to
comply substantially with [manufacturer] obligations under [a
recall] action plan'' should be considered a prohibited act
under Section 19 of the CPSA. This would, in turn, trigger the
authority to administer the civil penalties provision. Exposure
to civil penalties provides an extra incentive for
manufacturers/distributors to aggressively comply with an
action plan in the first place.
F. Third-Party Testing/Certification and Ban on Children's Products
Containing Lead
The CPSC Reform Act of 2007 would require third-party testing
certification to ensure that children's products comply with any
applicable product safety standards. It would also virtually ban lead
in children's products, children's jewelry and consumer use paints.
Associations, manufacturers, retailers and many consumer groups all
agree that these are two concepts whose time has come. Add Safe Kids to
this long list.
We also have two concepts to add to the legislation. First, Safe
Kids believes that the testing required by Section 10 of the CPSC
Reform Act of 2007 should be done throughout the manufacturing process
and on several lots to ensure that all products that may find
themselves in the marketplace comply with applicable safety standards.
The second involves the bill's provision that requires the Government
Accountability Office to conduct periodic audits of third-party testing
labs. The audit procedure described in the CPSC Reform Act of 2007
addresses the expertise and qualifications of the third-party testing
labs. Safe Kids believes that this audit protocol should be expanded to
include a periodic assessment of the financial independence of these
facilities. This will ensure that the certification labs are truly and
continuously independent.
IV. Conclusion
The CPSC has used its relatively small budget and staff to
accomplish an incredibly important task--keeping children safe from
defective and hazardous products. As product-related injuries still
exist and can be prevented, the CPSC is needed now more than ever to
protect consumers, families, and children. Safe Kids commends Chairman
Pryor and Senator Inouye, along with the other sponsors, for their
introduction of the CPSC Reform Act of 2007 and we look forward to
working with this Subcommittee on any efforts designed to protect
children from product-related hazards.

Senator Klobuchar. Thank you, Mr. Korn.
Mr. McGuire, with the Association of Home Appliance
Manufacturers. Thank you.

STATEMENT OF JOSEPH M. McGUIRE, PRESIDENT,

ASSOCIATION OF HOME APPLIANCE MANUFACTURERS;

ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS

Mr. McGuire. Thank you, Senator. On behalf of the NAM CPSC
Coalition, I'd like to thank you for this opportunity.
NAM is the Nation's largest industrial trade association. I
am President of the Association of Home Appliance
Manufacturers, which represents producers of major portable and
floor care residential appliances and their suppliers. I'm also
a parent and youth sports coach and, quite honestly at times,
obsessed with safety.
The Coalition is committed to ensuring that the U.S.
marketplace provides safe products to Americans. Government,
industry, and the public have an opportunity to do something
about enhancing product safety. We should stay focused on the
core issues and problems, and fashion public resources and
solutions to address them.
We support enhancing the resources and the authority of the
Commission to increase its effectiveness. Companies that work
with CPSC recognize that it is thinly staffed, that many
veteran employees are retiring, and that its information
technology and laboratory are grossly inadequate. Although we
believe that the American marketplace is safer than ever and
the CPSC does a good job in leveraging its resources, the
perception of many consumers is the opposite. This troubles us,
as our economic viability depends on the confidence of the U.S.
public in our products.
But product safety is not just a Chinese issue, it pertains
to all links in the supply chain, whether domestic or
international. We support a number of general and product-
specific legislative measures to increase CPSC's ability to
carry out its mission. S. 2045 contains many provisions our
Coalition supports and we applaud Senator Pryor and others,
including you, for your involvement in these.
However, the bill does contain some burdensome and
troubling provisions, which would detract from CPSC's mission,
increase litigation, and undermine the critical open
relationship between CPSC and industry.
The system generally works because--works well--because
industry and other groups voluntarily develop new consensus
standards and report problems voluntarily to the CPSC. The
Agency needs more resources to do its job more effectively and
to take advantage of existing statutory authority. For example,
we support a variation of Chairman Nord's fast track
rulemaking, to adopt a Federal mandatory rule from selective
safety-related provisions of consensus standards. We recommend
this action, where the consensus standard is up to date and
protective of safety and where a substantial number of firms
are not complying with it. CPSC should show that a mandatory
standard will significantly increase the safety of the product
and decrease possible injuries and deaths.
In order not to undermine the private sector safety
standard structure, the Commission should only adopt key safety
aspects of these standards and rely as much as possible on the
standards development organizations for updates,
interpretations, and certifications under these standards.
We also support the concept behind the provisions in S.
2045, which would authorize CPSC to require specific products
sold in our marketplace to show conformance through testing
with safety standards. We strongly applaud making it a
violation of Federal law to knowingly and willfully falsely use
a mark or claim of certification.
My written testimony contains many other of the provisions
in which we support. I would also now like to talk about a few
areas where we have some concerns.
For example, whether deliberate or not, the bill would
eliminate due process protections under Section 6(b) of the
Consumer Products Safety Act for manufacturers. The bill is
designed to expedite CPSC release of product safety information
to the public by eliminating the opportunity of manufacturers
to show that specific documents are of such low validity and
accuracy, that release would be unfair.
Under the pending legislation, the result would be a data
dump of information of no value and little validity, but which
can be used to gain leverage in litigation by competitors and
for other inappropriate purposes. It will be a disincentive for
manufacturers and retailers to voluntarily submit data and
submit it early. The reality is that the delays in releasing
information to the public by CPSC are not due to manufacturer
objections, but to the Commission's outdated technology and
search techniques, which can be improved with increased
funding.
Second, we oppose the proposal to allow states to enforce
provisions of Federal product safety laws through litigation.
States already have the ability to bring actions under Federal
and State laws. This provision would not improve CPSC
effectiveness, but rather would create an enormous new field of
litigation and erect huge barriers to industry's cooperation
with the Commission. It would also impede commerce by
encouraging multiple State product safety agencies.
Third, we oppose the provision that requires CPSC to
adjudicate employee-employer disputes. The bill would divert
significant Commission resources into investigating
whistleblower retaliation allegations. We support enhancing
CPSC resources for tasks needed to promote product safety--
fieldwork, research, faster standards, and information
dissemination and education. We oppose a new form of litigation
driven by shared penalties, compensatory damages, and attorney
fees.
Fourth, we oppose the bills proposed penalty provisions.
Today, virtually all penalties are agreed to voluntarily, but
S. 2045 would increase the maximum cap to $100 million and per
violation fines up to $250,000. This penalty structure will
totally change the existing dynamic, where instead of
negotiating recall terms expeditiously with CPSC, private
lawyers will spend time advising their clients of the benefits
of minimum cooperation with the Commission and other defensive
postures. The results would be an unproductive regulatory
environment, rife with diversionary litigation when so many
dollars are at stake.
[The prepared statement of Mr. McGuire follows:]

Prepared Statement of Joseph M. McGuire, President, Association of Home
Appliance Manufacturers; on Behalf of the National Association of
Manufacturers
Mr. Chairman and Members of the Committee:

Thank you providing me the opportunity to testify on behalf of the
National Association of Manufacturers (``NAM'') regarding S. 2045, the
Consumer Product Safety Commission Reform Act of 2007. The NAM is the
Nation's largest industrial trade association, representing large and
small manufacturers in every industrial sector and in all 50 states.
I am President of the Association of Home Appliance Manufacturers
(``AHAM'') which represents the producers of major, portable, and floor
care residential appliances and their suppliers. AHAM is a member of
the NAM, where I have served in the past as Chairman of the Council of
Manufacturing Associations, a division of the NAM comprised of more
than 200 trade associations. An additional part of our NAM membership
is AHAM's participation in the NAM CPSC Coalition. It is in that
capacity that I appear before you today. On behalf of the Coalition I
thank you for your leadership in addressing consumer product safety
through this hearing and others and in seeking legislation to improve
the effectiveness of the CPSC.
All of AHAM's 165 members are regulated by the Consumer Product
Safety Act (``CPSA'') and the other Federal safety laws administered by
the Consumer Product Safety Commission (``CPSC''). AHAM and its members
work cooperatively with CPSC on policy and individual product issues.
It is the appliance industry's most important regulatory relationship,
and justifiably so, because consumer safety is the most critical
obligation we have to our customers. The NAM CPSC Coalition also is
committed to ensuring that the U.S. marketplace provides safe products
to Americans.
The NAM CPSC Coalition supports enhancing the resources and, where
necessary, the authority of the Commission to increase its
effectiveness. To that end, we have aggressively supported increased
appropriations for this Commission in this Congress, and advocate that
these increased dollars be directed to enhancing the CPSC's personnel
dedicated to product testing, evaluation and enforcement and to
improved technology and facilities. In fact, we might be the only
industry group to lobby the appropriation committees for agency
funding, none of which will be spent on or granted to our members.
Companies that work with the Commission recognize that it is thinly
staffed, that many veteran employees are retiring, and that its
information technology and laboratory are grossly inadequate. Modern
technology makes it possible for a smaller Commission to be more
productive than the larger Commission of the 1970s, but 21st century
technology and resources must be put in place.
We also recognize that there is a crisis of confidence in the
safety of consumer products in the United States marketplace. Although
we believe that the American marketplace is safer than ever, and that
the CPSC does a good job in leveraging its resources, the perception is
gravely troubling to U.S. manufacturers because their economic
viability depends on the confidence of the U.S. public in their
products. To some extent, the proportion of recalls from products
manufactured in China, for example, reflect its growing market share in
key consumer product categories. American consumers have benefited
significantly from the efficiencies achieved by manufacturing many
consumer products in China and other countries. There are unique
challenges ensuring that foreign governments are performing their
legitimate regulatory functions.
Well before the publicity about product recalls this last year,
AHAM has worked closely with the CPSC and with the Chinese government
and industry to enhance the safety processes in Chinese manufacturing.
We have been involved in a number of substantive meetings in China with
national and regional government officials and manufacturers to
emphasize the need to meet government mandatory and industry consensus
standards and to build safety evaluation into every aspect of
manufacturing and testing. Obviously, we support stepped-up efforts to
ensure that Chinese producers throughout the supply chain are meeting
the appropriate standards of safety and quality. The Coalition supports
expanding U.S.-Sino joint programs and applaud regulatory initiatives
such as the recently announced agreements in several product sectors.
We believe that these programs are critical to advancing safety and
that ongoing funding for international outreach and education is
critical to CPSC's mission.
In addition, the Coalition supports a number of general and
product-specific legislative measures to increase CPSC's ability to
carry out its mission. As I mentioned earlier this includes increased
funding. S. 2045 contains a number of provisions our coalition supports
and we applaud you and your staff for seeking improvements. However, we
also believe S. 2045 contains some burdensome and troubling provisions
which would detract from CPSC's mission, significantly add to the
litigiousness of our society and undermine the critical open
relationship between CPSC and industry. The system generally works well
because industry and other groups voluntarily develop new consensus
standards and report problems voluntarily to the CPSC. But, much of S.
2045, as presently drafted, could very well result in more litigation
instead of open dialogues within a relationship of confidence.
Further, when we consider reauthorization and imposing new
obligations on industry, particularly imported products, we need to
weigh whether we are achieving significant enhancements of safety or
whether new non-tariff barriers are being erected. We absolutely agree
that imported products should be designed and manufactured just as
safely as U.S. products. But, to impose trade barriers without regard
to the benefits to American consumers of trade and integrated design,
production and distribution of consumer products would be a mistake.
There are proposals in S. 2045, Acting Chairman Nord's ``PRISM''
proposal, and in proposals developed by NAM members that we believe
will, along with greater resources for the Commission, significantly
improve the ability of the Commission to carry out its vital mission.
For example, we support a variation of Commissioner Nord's ``fast
track'' rulemaking to adopt as Federal mandatory rules selected safety-
related provisions of consensus standards. We believe that with greater
resources these rulemakings could be conducted under existing law. We
can support, for example, eliminating the need for an advance notice of
proposed rulemaking and to decrease somewhat the substantive
determinations that the Commission must make in adopting in whole or in
part certain consensus standards. We recommend this action where there
is a solid record that the consensus standard is up-to-date and
protective of safety, that a substantial number of firms in the
marketplace are not complying with the standard and that there is a
substantial basis for believing that making the consensus standard
mandatory will significantly increase the safety of the product and
decrease possible injuries and deaths.
In order to maintain and not undermine our private sector safety
standards structure, we advocate that the legislation make clear that
the Commission should only adopt key safety aspects of these standards,
expedite revision of the Federal standard when the consensus standard
has been revised, and rely as much as possible on the standards
development organization's interpretations and certifications under
these standards.
We also support the concept behind provisions in S. 2045 which
would authorize the CPSC to require specified products sold in our
marketplace to show conformance through testing with standards. This
presents a challenge with some 15,000 products under CPSC jurisdiction.
However, we strongly applaud making it a violation of Federal law to
knowingly and willfully falsely use a mark or claim certification.
Although a globalized market may require the sharing of vital
safety data with foreign governments and state and local authorities,
this must be done in a manner that protects intellectual property and
confidential business information and ensures that it is not used to
prematurely instigate litigation or to unleash public allegations about
non-public investigations. Certainly, firms should supply, if requested
and known, to the CPSC information on their suppliers, distributors and
retailers.
We can support, with some modification to the legislation,
revisions to the CPSC's authority to ban exports of recalled products.
However, there are limited cases where foreign countries have
protective but different standards. U.S. firms should not be banned
from manufacturing and exporting a product compliant with those foreign
laws.
In the same vein, we support clarifying that it is a violation to
knowingly sell a recalled product or to intentionally build up
inventory of a product before new mandatory standards go into effect.
Further, importers who repeatedly import unsafe products should not be
allowed to participate in our marketplace and CPSC referral to Customs
is appropriate. We also support a carefully tailored asset forfeiture
provision and less use required of ANPR's in order to expedite
rulemakings.
The NAM Coalition supports a number of product-specific proposals
which its industry associations and companies have brought forward.
Much of this legislation relies on and enhances existing consensus
standards and certification programs. The Toy Industry Association and
The American National Standards Institute, for example, have a recently
announced framework for a new mandatory testing requirement for toys
sold in the U.S. That industry is working with the Congress to adopt
legislation to ensure industry-wide adherence to mandatory testing,
standardized testing procedures, and laboratory certification program
for toys. Additionally, The Fashion Jewelry Trade Association advocates
a national standard for jewelry modeled after laws in California and
Minnesota to address concerns about lead content.
The appliance industry supports Federal action to ensure the proper
installation of cooking ranges with UL, ANSI and building code mandated
anti-tipping products and equivalent devices. Although very infrequent,
range tipping accidents can be avoided with the proper installation of
these safety devices. Many building codes already require this
installation, but we know that there are installers and landlords who
often fail to install these devices. In many cases, homeowners resist
the installation of the devices. Therefore, my industry proposes that
it be a violation of Federal law for a person, at least a commercial
installer or landlord, to install a range that is not compliant with
the UL standard and building code provisions.
I would like now to address provisions of S. 2045 that the
Coalition either opposes or has suggestions of modification.
Whether deliberate or not, S. 2045 would eliminate protections of
Sections 6(b) of the Consumer Product Safety Act. Section 6(b)
supplements the Freedom of Information Act and is specifically tailored
to the realities of the information that the CPSC receives and
generates internally. The CPSC receives a huge amount of information
from consumers, doctors, fire investigators, competitors and others
which is raw, unfiltered, and upon analysis proves to be either
inaccurate--often identifying the wrong product or accident cause--or
is unfair, unscientific or technologically flawed. In turn, internal,
preliminary evaluations done by the Commission may be based on such
incorrect information, necessitating further discussion and review of
accurate data.
Now, in and of itself, it is not a bad practice for the Commission
to receive huge amounts of data, regardless of its quality, so that it
can see early trends and spot incipient problems. In fact, a major
initiative of the Commission with some of the largest retailers allows
for the submittal of mostly raw and unevaluated consumer complaints and
other safety related information to the Commission so that it can be
integrated into its databases. Very little of this information proves
to be useful for compliance purposes, but it does give the Commission a
better view of what is happening in specific product areas.
Under current law, firms are informed when information about their
products is to be publicly released and are provided the opportunity to
show that specific documents are of such low validity and accuracy that
release would be unfair. Under the pending legislation, this system
would be eliminated and many thousands of documents could be released
which contain information of no value and little validity but which can
be used to gain leverage in litigation, by competitors and for other
inappropriate purposes. A huge barrier would be placed in the way of
manufacturer and retailer cooperation with the Commission through the
special retailer program. It also would impede the day-to-day filings
under Section 15 where the Commission encourages firms to submit
information even if they do not believe that a substantial product
hazard or defect exists. The Commission should continue to ensure that
information it publicly releases is not inaccurate or misleading.
Delays in releasing information to the public are mostly due to the
Commission's outdated technology and search techniques, which can be
improved with increased funding, not the limited opportunity for
industry to respond to a proposed release. A high percentage of
manufacturers do not even comment on proposed disclosure and the CPSC
has ``fast track'' disclosure authority for imminent hazards. We
adamantly oppose the evisceration of Section 6(b).
We oppose the proposal to allow states to enforce the provision of
the Federal product safety laws through litigation. We support greater
resources for the CPSC and other forms of partnership with states.
Allowing, however, state officials to bring lawsuits against firms
which could be based on totally unproven allegations of failure to
comply with the law would create an enormous new field of litigation
and erect huge barriers to industry's cooperation with the Commission.
We oppose the ``Balkanization'' of the U.S. market into 50 state CPSCs.
Combined with new expanded civil and criminal liability provisions, the
result will be confusion and litigation. No state official should have
the authority to interpret or reinterpret Federal regulation or policy
as administered by CPSC.
Similarly, we are not aware of incidences where company employees
have been punished for bringing consumer product safety allegations to
their company's attention. Yet, S. 2045 proposes diverting significant
Commission resources into investigating whistleblower retaliation
allegations. We support enhancing CPSC resources for tasks needed to
promote product safety--field work, research, faster standards, and
information dissemination, and education. We oppose a new form of
litigation driven by shared penalties, ``compensatory damages'' and
attorney's fees. Developing new forms of Federal torts is not the
solution to enhancing the safety of products. We already have an
extensive litigation in the product liability field and enhancing it
will not result in increased product safety.
We understand that many in the Congress believe that the current
level of penalties per violation and the maximum cap under the CPSA
need to be revised. We believe that the legislation adopted by the
House Commerce Committee last week, H.R. 2474, makes an appropriate
adjustment to the maximum cap by increasing it to $10 million while
requiring the CPSC to adopt a penalty policy using relevant factors.
Today, virtually all these penalties are agreed to voluntarily, but S.
2045 would increase the maximum cap to $100 million and per violation
fines of up to $250,000. This penalty structure will totally change the
existing dynamic where, instead of negotiating with CPSC, private
lawyers will spend time advising their clients of the benefits of
minimum cooperation with the Commission and other defensive postures.
The results would be an unproductive regulatory environment, rife with
diversionary litigation when so many dollars are at stake.
The real penalty to companies that violate standards or make
defective products is the cost of the recall and the damage to their
reputation, not the penalties. The levels of penalties in S. 2045 will
be crushing to many small and medium sized U.S. firms, and as a
practical matter will not be imposed on foreign firms which manufacture
products for export but are not active in our marketplace.
There are a number of other proposed provisions in S. 2045 which we
oppose. For example, it is a violation of due process to dilute the
``knowing and willful'' requirement while at the same time expanding
criminal penalties. Reversing the current preemption of Federal
consumer product safety standards will only promote the creation of
multiple, conflicting and confusing requirements and undermine the need
for safety and uniform standards critical to the national and
international marketplace.
Some of the proposals require technical fixes and we will gladly
work with staff on these. For example, the definition of children's
products is so broad that it could inadvertently include many non-
juvenile, conventional products for adults such as queen or full-sized
beds, floor coverings or household furniture routinely used by children
7 years or older.
Several proposals in the legislation would authorize the CPSC to
micromanage recalls in areas, such as choice of corrective action
remedies, where it is much more productive and efficient to allow the
companies to select the best manner to proceed. Nor should
``voluntary'' recalls become mandatory, thereby undermining the
salutary process of encouraging ``fast track'' voluntary corrective
actions.
We believe that our position places safety first but opposes
unnecessary new mandates, and litigation. We look forward to working
with you and the Committee on adopting beneficial and reasonable CPSC
reform in this Congress. I would be glad to answer any of your
questions or follow up with any requested information.

Senator Klobuchar. Mr. McGuire, your time has expired and
we have a vote. So I'd like to let Mr. Thompson speak so he can
get through his testimony, if that's all right. Thank you very
much.
Mr. Thompson with the retailers.

STATEMENT OF AL THOMPSON, VICE PRESIDENT, GLOBAL SUPPLY CHAIN
POLICY, RETAIL INDUSTRY LEADERS
ASSOCIATION (RILA)

Mr. Thompson. Good afternoon, Senator Klobuchar. My name is
Al Thompson, I'm the Vice President of Global Supply Chain
Policy for the Retail Industry Leaders Association or RILA. But
more importantly, I am the father of two young children, so the
issue of product safety, and particularly toy safety, is one
that carries personal importance to me.
RILA represents the largest and fastest-growing companies
in the retail industry. Our members provide millions of jobs
and operate more than 100,000 stores and distribution centers
domestically and abroad.
As Congress considers how to protect consumers,
particularly children, from dangerous products, I want to
outline some of the public policies that RILA supports and we
welcome their inclusion in S. 2045.
We support increased funding, Federal funding, for the
Consumer Product Safety Commission or CPSC, as mandatory recall
authority for the CPSC and a legal prohibition against
knowingly selling a recalled product. We support the proposal
to include tracking information on children's products to
promote traceability. We support the increased lead standards
in this bill. And we support the establishment of clear and
predictable safety standards. On this note, we welcome the
definition of a children's product in the legislation, because
it is clear and workable.
RILA members are strongly committed to assuring the safety
of products sold on their shelves. In light of recent
incidents, many of our members have enhanced product testing.
For example, some retailers are now requiring testing for all
toys, regardless of the manufacturer. Others are implementing
more rigorous protocols to confirm the safety of toys through
multi-layered testing and documentation. Our members have also
reviewed and strengthened their internal policies and
procedures for product testing, supplier compliance, and the
sanction for non-compliant suppliers. Our members are also
seeking better government standards and guidelines for product
safety.
RILA believes that ensuring product safety is a shared
responsibility. Retailers have vigorous quality assurance
requirements and enforcement mechanisms for their suppliers
that manufacture goods for their stores. RILA members require
their suppliers and manufacturers to understand and adhere to
U.S. Government standards and regulations for particular
products they produce; to operate secure factory environments
and rely on known and approved subcontractors to produce safe,
quality products; to maintain and document production processes
that conform to the safety standards, beginning at the design
phase and continuing through the completion of the finished
product; and, to open their factories and production processes
to periodic and, in some cases, unannounced quality and safety
audits.
When a product is recalled, retailers take prompt action to
remove the products from the stream of commerce and properly
dispose of them so they are not resold. After implementing a
recall, our members also review their suppliers testing
protocols to minimize the potential for future problems and
take appropriate action or levy sanctions as needed.
A successful safety regime requires a close partnership
between the private sector and the U.S. Government, as well as
other governments. While we welcome certain provisions in S.
2045, RILA is also concerned that some provisions in the bill
may undermine the critical cooperation that currently occurs
regularly between the private sector and the CPSC. We believe
Congress should exercise its authority under the Commerce
Clause of the Constitution, to create standards for toy safety
that are consistent, national in scope, and with a uniform
enforcement mechanism.
In many cases, our members sell the same items nationwide.
For example, an Elmo doll sold at one of our member stores in
Arkansas, is likely to be the identical to an Elmo doll sold in
the same company store in Texas. These two products are
manufactured from the same design, they come from the same
factory, and may enter our country in the same container. Yet
this legislation would support disparate civil enforcement
mechanisms for these identical products.
The State enforcement remedies in this bill, would also
expose companies to unlimited liability. The proposal to
increase criminal penalties and to substantially increase civil
penalties would create a defensive posture in the private
sector that could create disincentives for this type of self-
disclosure. Many of the issues concerning product safety have
come to light because companies have stepped forward to
identify problems, immediately report them to the CPSC, and
work collaboratively with the CPSC to take corrective action.
Similarly, the bill's proposals to release confidential
information disclosed by companies to the CPSC to other
government agencies would create disincentives for companies to
be forthcoming with information. RILA would support a
requirement that safety testing labs also be credentialed by
the CPSC or an independent third-party, such as the American
National Standards Institute or ANSI. At a time when media
reports that many independent labs are capacity constrained,
RILA urges you to consider policies that would allow our
member's state-of-the-art labs and their highly trained
employees to remain part of the safety process.
We appreciate the opportunity to testify before you today,
and look forward to answering your questions.
[The prepared statement of Mr. Thompson follows:]

Prepared Statement of Al Thompson, Vice President, Global Supply Chain
Policy, Retail Industry Leaders Association (RILA)
Good afternoon Chairman Pryor, Ranking Member Sununu and Members of
the Committee. My name is Al Thompson, and I am the Vice President of
Global Supply Chain Policy at the Retail Industry Leaders Association,
or RILA.
RILA represents members including the largest and fastest growing
companies in the retail industry, which together account for more than
$1.5 trillion in annual sales. RILA members provide millions of jobs
and operate more than 100,000 stores and distribution centers
domestically and abroad.
At RILA, I am responsible for representing the industry on all
policies that impact our member companies' global supply chains. This
includes issues involving transportation, logistics and security. In
addition to my work at RILA, I also am the father of two young
children, so the issue of product safety, and particularly toy safety,
is one that carries both personal and professional importance for me.
RILA appreciates this opportunity to submit testimony on Chairman
Pryor's legislation, S. 2045, the ``CPSC Reform Act of 2007,'' and to
showcase the steps that our members are taking to ensure product safety
and integrity all along the supply chain. Our industry knows that it
has no higher duty than assuring the safety and quality of the products
it sells to its customers.
RILA believes that ensuring product safety is a shared
responsibility between and among manufacturers, retailers, this
government, and other governments. Through rulemaking and laws,
Congress and the Administration can provide guidelines that are clear,
uniform and national in scope, so that manufacturers can better-issue
detailed specifications to their suppliers and enforce those
specifications with tests, audits, and follow-up. We commend Chairman
Pryor, his cosponsors, and this Congress for taking quick action to
promote the safety of consumer products.
But before I fully describe the processes and product safety
procedures that our members have in place, I want to describe some of
the steps that our individual member companies have taken to ensure
greater accountability from manufacturers in light of several recent
high-profile product recalls.
Because no two RILA members sell exactly the same merchandise, they
each have slightly different protocols and procedures for evaluating
the safety and integrity of supplier operations, as well as the safety
of products on their shelves. In light of recent incidents, many of our
members have:

Enhanced product testing;

For example, some retailers are now requiring testing
and verification of safety compliance for all toys,
regardless of the manufacturer. Others are implementing
more rigorous protocols to confirm the safety of toys
through multi-layered testing and documentation.

Reviewed their internal policies and procedures for product
testing, supplier compliance and the sanctions for noncompliant
suppliers and manufacturers; and
Joined with other allies seeking better government standards
and guidelines for product safety, with a particular focus on
products manufactured for children.

Before I provide specific comments on S. 2045, I want to share with
you some of the steps our members take to assure the safety of the
products on their store shelves.
Retailer Efforts to Assure Safe Products
RILA members have a strong commitment to provide safe, effective,
and affordable goods for their customers. We believe that ensuring
product safety is a shared responsibility. As such, retailers have
vigorous quality assurance requirements and enforcement mechanisms for
their suppliers that manufacture goods for their stores.
In particular, RILA members are actively working to reassure
consumers that products, including toys and children's products, sold
in their stores are safe. RILA believes that the most effective way to
ensure safe products is to focus on the design and production of
products so that product safety is built into products as they are
made.
To assure product safety, many RILA members require their suppliers
and manufacturers--through contracts and product specifications--to:

Understand and adhere to U.S. Government standards and
regulations for the particular products they produce. Many of
our members' specifications actually exceed U.S. Government
standards;

Operate secure factory environments, and rely on known and
approved subcontractors to produce safe, quality products;

Maintain and document production processes that conform to
safety standards beginning at the design phase and continuing
through completion of the finished product; and

Open their factories and production processes to periodic
unannounced quality and safety audits.
Retailer Actions in the Event of a Recall
When a product is recalled--either at the insistence of the
government or a supplier--retailers take action:

To immediately remove the product or products from the
stream of commerce, and properly dispose of them so that they
are not resold; and

To notify purchasers, when possible, that they should return
the product for a refund or replacement.

These prompt actions are the result of protocols that virtually
every RILA member has in place to respond to a recall and protect
consumers.

RILA members proactively monitor and research recalls and
U.S. regulatory agency alerts to keep apprised of product
safety issues. Some retailers have an entire department devoted
solely to this effort;

As soon as a product recall is initiated, RILA members
implement existing recovery plans to remove the subject
merchandise;

Retailer inventory systems produce an error message at the
point of sale if such products reach check-out cash registers,
preventing recalled products from being inadvertently sold to
consumers; and

After implementing a recall, RILA members review their
suppliers' testing protocols to minimize the potential for
future problems, and take appropriate action, or levy
sanctions, as needed.
Comments on S. 2045, the ``CPSC Reform Act of 2007''
RILA welcomes the opportunity to review and comment on S. 2045, the
CPSC Reform Act of 2007. Retailers place the highest priority on the
safety and quality of the products they sell to their customers,
regardless of whether the products are produced domestically or abroad.
Optimally, retailers seek to identify and remedy any product safety
problems long before the product enters the supply chain or reaches
U.S. stores. Therefore, RILA believes the critical point in the supply
chain where product safety compliance efforts should be focused is at
the point of design and manufacture.
Prior to the introduction of this legislation, RILA was on record
supporting government reforms that could better ensure toy safety. We
are pleased that this legislation contains many provisions that our
members strongly support. We look forward to working with Chairman
Pryor and Members of the Committee to support these important
provisions.

RILA applauds the substantial increases in CPSC funding
contained in this bill.

RILA would welcome provisions that ensure that
increased resources are used to accelerate the recall
timeline and to promise better dissemination of recall
information to the public.

RILA welcomes the proposal to reduce the lead limits in
children's jewelry to 200 parts per million (ppm), in surface
coatings to 90 ppm, and in children's products to 400 ppm.

RILA supports the proposal to include tracking information
on children's products so as to identify the source, date, and
cohort of production of the product. In fact, some RILA members
already provide this type of information on their products.

RILA supports the proposals to eliminate the requirement for
advanced notice of proposed rulemaking and to place the Federal
Hazardous Substances Act (FHSA) almost exclusively under CPSC
jurisdiction. These proposals will help to streamline product
safety enforcement.

RILA would support a requirement that safety testing
laboratories be credentialed by the CPSC or an independent
third party such as the American National Standards Institute
(ANSI).

We are concerned, however, that the bill's requirement
that the labs themselves be independent is a step backward.
At a time when the media reports that many independent labs
are capacity constrained, RILA urges you to consider policy
alternatives that will allow our member's state-of-the-art
labs and their highly-trained employees to remain part of
the product safety process.

RILA welcomes the definition of ``children's products'' in
the bill because it is clear and workable, and helps companies
to better understand the scope of products that would be
subject to increased standards.

RILA is concerned, however, that some provisions in the bill may
undermine the critical cooperation that currently occurs regularly
between the private sector and the CPSC.

We believe that Congress should exercise its authority under
the Commerce Clause of the Constitution to create standards for
toy safety that are uniform, consistent, and national in scope
with a uniform enforcement mechanism.

The particular items that our members sell are
virtually uniform nationwide. For example, an Elmo doll
sold at one of our members' stores in Arkansas is likely to
be identical to an Elmo doll sold in the same company's
Texas store. These two products are manufactured from the
same design, they often come from the same factory, and
they may even come into our country on the same boat and in
the same container. Yet, this legislation supports
disparate civil enforcement mechanisms that would treat
these two identical products differently.

The remedies allowed through state enforcement include
damages, restitution, compensation, or other relief, and would
expose companies to unlimited liability.

While we recognize that whistleblowers play an important
role in ensuring corporate accountability, we urge Congress to
carefully consider the implications of a whistleblower
complaint adjudication process that would divert resources from
the CPSC's efforts to develop better standards and better
enforcement mechanisms.

Many of the issues that have been before Congress concerning
product safety are the result of companies that stepped forward
to self-identify problems, report them to the authorities, and
work collaboratively with authorities to take corrective
action. The proposal to impose criminal penalties and to
substantially increase civil penalties would create a defensive
posture in the private sector that could create disincentives
for this type of self-disclosure rather than collaboration with
government regulatory agencies.

Similarly, the bill's proposal to release confidential
information disclosed by companies to the CPSC to other
government agencies undermines the self-reporting protocol in
place today. We believe this provision will create
disincentives for companies to be forthcoming with information.
The bill would eliminate the confidentiality between the CPSC
and private industry. Disseminating confidential design,
sourcing, sales, and product information to any government
agency, domestic or foreign, increases the likelihood that this
information will be disclosed to competitors.
Conclusion
RILA appreciates the opportunity to provide comments to the
Committee as it considers S. 2045 and other proposals to improve
product safety. RILA stands ready to work with Congress and the
Administration to enact policies that strengthen consumer confidence
and advance the production of safe, high-quality products that are
affordable and readily available for consumers.
Thank you for the opportunity to testify today.

Senator Klobuchar. Thank you, Mr. Thompson, for your timely
completion of your testimony. Senator Pryor has returned, our
Chairman, and we are going to go vote and then come back. So we
will be in recess for about 15 minutes and we will return for
questions. Thank you.
[Recess.]
Senator Pryor [presiding]. Let me go ahead and reconvene
the Subcommittee here. I'm sorry, we got called to a meeting
off the floor here that we had to attend, but thank you all for
your patience and--I'm sorry, I got pulled out right before we
broke because I was trying to listen to everyone's testimony.
Let me go ahead and dive in with some questions. And
Senator Klobuchar's on her way, as well. Let me dive in with a
few questions.
For the first three witnesses we had, all of you all talked
a little bit about how you'd like to see some changes in the
legislation. You'd like to see one thing strengthened or one
thing approached a little differently. And then the other two
witnesses, you all said the same thing but related to different
sections of the bill or in different ways. And I think that
underscores the point of what we're trying to do here, which is
find that balance. So, I just want to, again, encourage
everyone here and all of your members and everyone to please
come in and talk to the Committee staff, my staff, and all of
the Senators' staffs to try to work through some of these
issues because we really would like to move this.
And like I said a few moments ago, we've had a lot of
meetings with some of your members and some of you all
specifically, but also we talked a lot about concepts. It's
time for us to move to the concrete and try to actually do some
drafting and if there are going to be some revisions or some
concrete suggestions, we certainly would like to hear from
people with very specific, even, language to try to help us
move this process forward.
Let me ask, if I may, Mr. Plunkett, about the fast track
authority that Chairwoman Nord talked about. Does her approach
concern you, and do you see her approach as inconsistent with
the bill that we've drafted?
Mr. Plunkett. Sir, this would be the fast track, what she
deemed to be fast track authority that involves, essentially a
separate private negotiation----
Senator Pryor. Right.
Mr. Plunkett.--to, at the request of the manufacturer. I
don't see it as inconsistent, Senator. We don't, in fact, see
the provision of confidential information, in some cases, as
inconsistent with--with the notion that the Consumer Product
Safety Commission should not be encumbered in any way,
especially regarding important safety data in releasing that
data as quickly as possible to the public. I think you can find
a balance there that--that encourages industry to come forward,
but corrects what we all acknowledge, or most acknowledge, are
serious problems with the current product safety system, that
don't, as we heard earlier, create enough disincentives to
improper activity.
I think you have largely hit on the right balance here.
You've removed or excuse me, increased civil fine capability,
you've mitigated some of the problems with 6(b). And I would
suggest that if, NAM in particular, is concerned about
increasing litigation under this proposal, they should support
removing their essential, what is essentially a private right
of action under 6(b), that virtually invites them to sue, to
stop release of public information by the Consumer Product
Safety Commission. I think the bill hits on the need to
increase, make more strong enforcement efforts by the CPSC,
while still allowing the kind of private efforts that
Commissioner Nord spoke about.
Senator Pryor. Let me ask, if I may--I don't know--Mr.
McGuire, would you like to respond to that at all, since they
mentioned NAM?
Mr. McGuire. Well, as far as the last point went, on the
6(b) point that was just made. Our concern there is that, I
think what, it seems to me what you're after is to get at the
delay in the release of information to the public. And we
certainly are not opposed to that. What we don't want to do is
remove some safeguards that allow the CPSC to determine whether
the information that's to be released is valid, misleading,
incorrect, or unfair. If that provision is removed, then the
information going out to the public could be misleading and
huge in volume. And that might create a disincentive for
manufacturers and retailers to continue submitting data early
now. We're encouraged now to submit, whether you're in doubt or
uncertain, if there's a problem, submit the data. So we're
doing that.
So, it's seems like, there's a feeling that the reason
there's a delay in getting the information out is because
manufacturers are holding it up by reviewing it. That is not
the case at all. The case is, CPSC needs more trained people to
look at this data, to determine what's valid, what's not valid
and then release it. And we're fine with that.
Senator Pryor. There again, to get to the balance that
we're trying to strike in the bill, we're trying to increase
their personnel there and help them retain and recruit great
employees to help with that problem as well. So we're trying to
find that balance when it comes to the staffing needs there.
Let me ask you, if I may, Mr. Thompson, about corrective
action plans. Could you tell me generally how that process
works at the CPSC and, what the experience has been with
corrective action plans?
Mr. Thompson. Yes, sir. Generally, as was mentioned, when
one of our members, particularly if it's a product made for
their product label, finds that there is an issue, they will
report that information to the CPSC. And then, if it's
something, in the example of lead paint, then they want that on
a fast track to be able to get that information out because
there's no need to determine, kind of, or evaluate whether
something poses a safety hazard or not. In the event that it's
not clear and if our stores feel that there could be a problem,
they report that information to the CPSC and try to work with
them to make a determination, so, that information can get out
to the public.
I would also say, as soon as we report, our stores report
to the CPSC, they remove that product from the stream of
commerce. And do what they have to do to ensure, not only that
that product can't be sold in a store, but also that it can't
be sold online. I think, in addition, and maybe the resource
issue when it comes to it. I think some of our members would
like to maybe see the legislation focus on, kind of, the
process from CPSC standpoint, to ensure that the departments
within the agency are actually coordinated, and also working
together to get that information out in a timely fashion.
Senator Pryor. Has that been a problem?
Mr. Thompson. In some cases it has been.
Senator Pryor. OK. Well, that's good information. We need
to know that.
And you all, both--I know, Mr. Thompson, you specifically
have talked about the proposed criminal penalties. And I
understand how criminal penalties give people heartburn.
Believe me, I understand that. But, you know, there are
criminal penalties that exist right now under the CPSA and the
culture at the CPSC has been to only use the criminal penalties
in very extreme cases. Are you familiar with any of the cases
that they've used those in?
Mr. Thompson. No sir, I'm not.
Senator Pryor. As far as I know, unless you all will
correct me on this, it's only been in one case that they've
ever used it in 35 years. And so, just the culture there is
that they're very, very reluctant to use that. Are you
concerned that by beefing up the criminal portion of the bill,
that they'll use it more? Is that a fair statement of your
concern?
Mr. Thompson. I don't think that's--that's the concern. And
I think--and I'll caution right now--I'm not an attorney so
criminal penalties are not my expertise. I think there's just a
concern that the language right now as written, may be a
disincentive for people to come forward quicker with
information to the CPSC because they are concerned about how
that would come back on them. But I don't think it's, the
concern is on the idea of what the CPSC would choose or choose
not to do.
Senator Pryor. OK.
Mr. McGuire, do you have a comment on that?
Mr. McGuire. Senator, it's my understanding that the bill,
with respect to criminal penalties, would lower the standard
for when they would be applied, and potentially bring in a much
broader net of directors and others and companies. And our
concern is that that would have a chilling effect of the
cooperative approach that companies have with the CPSC in
negotiating recall actions and submitting data early and often.
Senator Pryor. Yes. I understand that in the abstract, but,
you know, given the nature of this Commission and given its
track record over the years, they could have done that before,
but apparently they've only done it in one case in their
history.
So, I'd love to sit down with you or your industry or your
company further and talk more about that. But, you know, we
ought to talk about that. But I'm not sure you're going to see
a big increase in the criminal prosecutions under this Act. But
we can talk about that and we can see. I understand, again I
understand what causes people heartburn, I really do.
Senator Klobuchar?
Senator Klobuchar. Thank you, Chairman Pryor.
As you all know, I'm very interested in making it easier
for parents to identify toys when they have been recalled and I
just wanted to get your thoughts on this. I understand that not
every toy, a little pick up stick, can have the label on or the
mark or demarcation. I don't think you'd necessary want to
label it, because it would be pulled off. But most toys,
including our little tree here that the child ate the paint off
of, could have a batch number or date number at the bottom. And
so that's why I'm interested in the toy, so it makes it easier
for the parents.
But also on the packaging--because I understand and maybe,
Mr. Thompson, you can correct me if I'm wrong. For some of the
retailers, they would need that because the minute they hear
about a recall, they're able to put it in their computer system
and they can't run out, run up any of the--and this is what
Target has told me and Toys `R' Us--that they can stop that
from happening at the point of sale. Is that right?
Mr. Thompson. Yes, ma'am, that is correct. Once the recall
notice goes out, our stores put in a ``block of sale.'' And it,
not only in their physical stores, but on the Internet as well.
In, to respond to your question on traceability, I think
that's something that our industry's looking at moving forward
on very quickly. Because we do feel that it will be helpful to
better identify products that need to be recalled.
And I can speak personally on this as a parent. I think
when we were dealing with the Mattel products recall. In our
case, it was Elmo and Diego. It was very helpful to make----
Senator Klobuchar. It's always interesting to hear people's
choice of toys.
Mr. Thompson. My one-year-old, Elmo's his favorite word, so
we try to satisfy him.
It was very helpful to be able to look at some of the toys
that had marks, to make a determination whether or not we
needed to send that toy back or not. And I think better
improving the ability, better improving traceability will go a
long way to helping parents and consumers be able to make a
determination on what they need to send back.
Senator Klobuchar. And so, are you aware of some retailers
that aren't the major ones, that might not have that ability in
a computer system and would have to actually check on the
shelves or, for instance, on eBay, if people are selling
things?
Mr. Thompson. I could speak to, at least some of our
smaller retailers that, in addition, if they don't have the
``block of sale'' capability, even though I think the
overwhelming majority of our members do. They also post
signage, they put the--the picture of the toy up. So they do
what they can to ensure that once a consumer walks into their
store, that they know that this product has been recalled.
Senator Klobuchar. I'm just trying to get to the
desirability of not just having it on the toy, but also on the
packaging.
Mr. Thompson. I think the--I think if you--you can do it in
a way where you can put it in multiple places, as long as it's
feasible, I think we would be for that. I think, in some
products I think our companies would like to see it on the
packaging as well, just to make it easier for the consumer.
Senator Klobuchar. Mr. McGuire, any response?
Mr. McGuire. I think it's a reasonable idea. I can only
speak to appliances and virtually all of the home appliances
have a date of manufacture or some sort of indication on them,
as to when they were manufactured. And it seems reasonable that
all products have some sort of labeling or demarcation that the
manufacturer or the retailers could work out with the
Commission so that it made sense for retailers, consumers, and
the--and the people in the commerce.
Senator Klobuchar. Thank you. I appreciate that. And if you
could share with your members in the toy area, that we are,
what we do have in the legislation, to the greatest extent
feasible, understanding that there are certain tiny toys that
you're not going to be able to put a label on or mark I should
say, but you could on the packaging.
I wonder if any of our consumer representatives here, Mr.
Korn, Mr. Plunkett, and Mr. Mierzwinski--whose name is almost
as hard as mine--might want to talk a little bit about this
identification issue.
Mr. Mierzwinski. Well Senator, I'll just be brief on that
and maybe Alan or Travis would want to go into detail. But
we'd--we'd obviously support product traceability. When PIRG
finds toys and we deliver them to the CPSC, often some of the
worst dangers are the very small cheap toys. And they may not
have any kind of manufacturer mark of any kind of them. So, we
all support that.
I wanted to make a comment on something earlier, that has
been brought up, kind of, all through the whole hearing. And
that is the issue of recalls. I think that underlying the whole
discussion of recalls is that every product that is recalled is
actually taken off the shelves.
In fact, because of the voluntary nature of recalls, that
is not always the case. Senator Durbin brought up the cribs.
The cribs were not taken out of the people's homes. You could
not bring your crib back. They sent you a little envelope full
of little parts and you had to fix your own crib.
Mr. Korn has with him the Magnetix toys from Rose Arts.
Those toys were not recalled, even though young Kenny Sweet
died when he swallowed several of those toys and they--they--
the magnets bound together in his intestine. They simply issued
a replacement program. The old toys stayed on the shelves.
That's why the provision in the bill, the corrective action
provision that strengthens the CPSC's authority, we think is a
very important one. Because it gives you more leverage in the
negotiation of recalls to force the manufacturer to do a better
job of getting the hazards off the shelves.
Senator Klobuchar. Mr. Plunkett?
Mr. Plunkett. On the traceability issue, Senator. In our
testimony, we recommend that the bill be improved by requiring
the traceable code on both the package and on the toy.
Senator Klobuchar. And I agree with you on that.
Mr. Plunkett. And I think you've hit--you've already hit on
why that's important. I'll just add one more thing. My son had
two toys that were recalled, both were gifts. And in one case,
the gift, the packaging was removed from the gift as part of a
birthday party bag that, you know, that the present was put
into. So we had no way--if the code had only--in such a
circumstance, it was only on the package, we would never be
able to trace the product.
Senator Klobuchar. And I also believe that it leads to more
anxiety for parents, if they're trying to figure out--they hear
about a recall, they look on a website--and if they could know,
then they could--they'd feel like at least they're doing the
right thing for their kids.
So, Mr. Korn?
Mr. Korn. Thank you, ma'am. The bill as it's written right
now does have an ``or'' provision in it that--I think that's a
pretty easy change that we would support, to make it an
``and,'' to get to that situation where, if the packaging is
thrown out and you can do some identification in the home,
which is where the difficult problem is.
It is a--retailers do a generally good job of getting their
product off the shelves. It's getting them out of the daycare
centers, out of the homes that is the difficult task. These are
just recalled products in my home. I pay attention to these
types of things. That's where the recalled products are. I can
almost guarantee you we can go to the Senate daycare center and
we could find three or four, possibly more, recalled products
in there. People just don't know.
Number two is, and Chairman Pryor missed this conversation
when he was out, so I just want to emphasize it for 1 second.
There is--there's a bill pending in the House, child safety
seats come with product registration cards. So that when
there's a recall, the manufacturer directly notifies the owner
of that product that there has been a recall. Or better yet,
can direct mail the repair item, if that's the best way to go.
There's a bill pending there in the House, that came out of
the House Energy and Commerce Committee, unanimously with
bipartisan support, just marked up last week, that would
require this kind of thing--not on all toys or products. I
think it's impractical for some of these type of things. But
for cribs, playpens, other durable products, those products
that are inextricably interwoven in a child's life. And I think
there's some use there and I can provide that legislation to
your staff.
And then finally, there's a provision in your bill that's
very good, that allows the compliance staff at the CPSC to
revisit a recall that has not been effective. And maybe work
with the manufacturers again to say, ``You know, what we did
last time wasn't good enough. We still have cribs our there, we
still have playpens out there. Let's revisit it, and give it
another try.''
I--we also might want to think about adding to Section 19,
the prohibitive act section, failing to substantially comply
with the corrective action plan, could be a Section 19
prohibitive act. So----
Senator Klobuchar. Mr. Thompson, just one last question
that was raised. Mr. Mierzwinski raised this issue of the
concern about some of the recalled products being on the
shelves. And I know that a lot of the retailers, as Mr. Korn
mentioned, have been doing a good job, but I've heard from the
retailers their concern about the average time it takes for the
Consumer Product Safety Commission to recall a product after a
problem was reported. Do your members feel that it's an
acceptable amount of time?
Mr. Thompson. I would think that they do not believe that.
It's, right now in most cases it's an acceptable amount of
time. And I think----
Senator Klobuchar. I think it's approximately 6 months, is
what I've heard.
Mr. Thompson. It does depend, but I know on one recent
case, it was 6 months. And we just felt that, in many ways,
that is way too long. And it gets to the point of what Mr. Korn
was saying, is we will, once we determine there is a problem,
we will remove, our stores will remove that, those goods from
the shelves.
But to get to the point of where you need to get that
information out to the public so it can get out of the daycare
centers and the homes. CPSC generally frowns upon retailers
from taking that action on products that are under their
jurisdiction. They feel that is their responsibility. So we are
waiting on them to be able to do that, so we not only can, so
we can also prepare to receive those goods back from our
customers.
And any measures that, the legislation needed to streamline
that process and make it quicker and more effective, even on
the--even on the fast track, will be helpful. Because we don't
want to have to follow up and rely and wait months, and months,
and months with CPSC, to be able for them to announce a recall
notice.
Senator Klobuchar. Thank you very much.
Senator Pryor?
Senator Pryor. Thank you, Senator Klobuchar.
Let me come back to a point that I made earlier with acting
Chairwoman Nord. And that is, I have a letter here from the
Consumer Product Safety Commission and it's actually dated
August 12, 2004. And what they are doing is they are forwarding
a complaint that they received in their office, at the CPSC.
They're forwarding it to NHTSA, the National Highway Traffic
Safety Administration.
And one of the things I just want to point out for our
witnesses and for the record, is that this e-mail that is the
complaint itself, about a car seat, was posted on the Internet,
posted on NHTSA's website. And what they do, is they black out
the personal information and they show the world--anybody that
wants to look--that there has been a complaint about a certain
type of car seat. This is before they do a recall or before
there's any action taken.
But the question I would have, especially for our two
manufacturers here and retailers here, is why not allow--or
even require--the Consumer Product Safety Commission to have
that same type of transparency. The reason I say that is NHTSA,
in this case, doesn't comment on it. They don't verify it or
try to say it's true or not true. But they post it so that
people who are interested can look and find out what kind of
complaints are out there. So, Mr. McGuire, do you have any
thoughts on why we shouldn't have that same type of policy over
at CPSC?
Mr. McGuire. In general, I think that type of policy is a
good idea. What you want to do is make sure that, in this
case--I'm not familiar with this particular example you're
talking about--but you'd want to make sure that confidential
business information is protected. And you would also want to
make sure the e-mail, if it's an e-mail complaint, is, has some
validity to it, that's it not a complete mistake or
misidentification of a product or a brand or a company.
But CPSC has the authority today. I was talking earlier
about Section 6(b). And manufacturers have the right to talk to
CPSC before they release certain information to the public that
might be unfair. But CPSC, if they believe there is a danger of
a violation, they can--they can go ahead over our objection or
anyone's--and release that. We're not opposed to CPSC sharing
more information with other governments, foreign governments or
other agencies. But I think protections need to be maintained
and that's an area where we would be happy to work with you and
your staff to get a balanced approach.
Senator Pryor. Good. What would you like to----
Mr. Plunkett. I think the issue isn't necessarily, it's
putting protections in the legislation that ensure that
proprietary information and confidential business information
is--is protected. And if it's, basically, blocking out that
information or not listing specific names or manufacturers, I
think that's something we'd be interested in. Because we've
also dealt with this in the House, but I think it's just
ensuring that the legislation does protect proprietary
information.
Senator Pryor. OK, great.
Let me just say that, Mr. Thompson, in your testimony, in
your written testimony, you talked about the need to speed up
the recall timelines, which you've mentioned as well, and
create better dissemination of recall information to the
public. I think those are worthy goals. We're trying to do that
in the legislation, but do you have a different approach or,
how would you recommend that those goals best be accomplished?
What should we do? How can we improve the process that's there
now?
Mr. Thompson. I think it's, you know, I know Senator
McCaskill was mentioning the IG, but I think it's making sure
that, in addition to that, with the resources, that there is
some type of plan to ensure that the processes within CPSC are
going to be inline with that. So that the departments are
actually working better together, whether it be the Compliance
Department and the Public Affairs Department, but just ensuring
that their processes are working in a harmonious fashion to get
that information out.
I think another thing that has to be looked at, in addition
to making sure they have the resources and the people to make
these determinations, is how do they better communicate with
the public. And that can be done in numerous ways, but as a
parent I'd like to necessarily not always find out about recall
information through the newspaper or the media. I think I'd
like to have some of that information from CPSC. And whether
they do that over the Internet or find a way to do that for,
you know, underserved communities particularly, I think they
have to find a better way to do that.
So, I think it's definitely more bodies, I think it's
definitely better technology, but if their processes aren't
improved internally, to not only make determinations and get
information out, the problem's still not going to improve as it
should.
Senator Pryor. You know, you've really put your finger on
something that is a real challenge. And that is how are people
notified? I remember when my children were younger, they had
those Star Wars light saber toys, where they went out and beat
people up in the front yard, you know, that kind of thing.
And----
Senator Klobuchar. Again, people's choices of toys are
interesting, Senator Pryor.
Senator Pryor. They light up, you know, they make noises,
all that. It's great.
But anyway, our kids were out there playing 1 day in the
yard and my sister-in-law came over and she said, ``You know, I
think I saw something on the news that those have been
recalled.'' Well, how does a parent find out that information?
You know, where do you go? I mean, you don't even know where to
start.
And so, what we did in Arkansas is we actually started a
website called childproductsafety.com, and all we did is take
the information that the CPSC was releasing on their website
and NHTSA and maybe one or two other agencies. And basically,
we just put a new face on it and tried to promote it in
Arkansas so that people would have one place where they could
go. And it was kind of a seamless deal; wherever the
information was coming from, it was really easy to access.
I mean, that's how we tried to do it. And I'm not saying it
was perfect, but, we were trying and we promoted it and we got
good feedback on it. But it really is hard to get that
information out.
And the other thing I was just going to say about the
Attorneys General, is, having been one and I'll admit a little
bias here because I really saw the value in 4 years in that
office, I saw the value of what states can do when they all
work together. But when we sat with the Consumer Product Safety
Commission several months ago as we were starting this process
on this legislation, they told us that, I believe at that
point, the number one action that they had out there was on
lighters.
Did we get the number on this?
And from 1997 to 2005, there were 352 incident reports
related to lighter failure. Sixty-five percent of these lighter
failures resulted in fires, and that led to four deaths and
then a number of serious injuries. And so the CPSC is really
focused on these lighters and as it turns out, the lighters
that they're most focused on, the lighters that have the
problem are imported from China.
And, so we talked about that and I remember, in listening
to Chairwoman Nord and the CPSC staff talking about that, I was
just thinking, wouldn't it be good--instead of having one
agency here in Washington trying to deal with lighters all over
the country, being sold in convenience stores and grocery
stores and other places all over the country--wouldn't it be
good to have 50 district offices, so to speak, State offices
for the CPSC to go out after some of these incidents that are
happening in their states and happening in their communities?
So, I think that, it's almost like putting more cops on the
street, in that if we build the right framework around it, I
think that the public would really be served if Attorneys
General had the authority to enforce this law. I think that
would help in the Federal-State collaboration, but I also think
that these Attorneys General around the country have a lot of
background and expertise that they can offer in this area.
Almost every AG, out of 50, probably 44, 46, something like
that, have some sort of consumer authority right now. We had
what we called the Deceptive Trade Practices Act. And so, we
had a Consumer Protection Division and many, many other states
had something very similar. So, it just seems that you have a
ready resource there, that's willing and able to step in and
help with this challenge that we see around the country.
So, just before we move on, does anybody have any comments
on the State Attorneys General issue? Because the previous
panel did.
Mr. Plunkett. Senator, there is just a great deal of
evidence in the last decade that what you say is absolutely
true. We have Federal agencies and Federal law. The resources
of those agencies are limited. Where we have states involved in
enforcing those laws, we have better enforcement and better
consumer protection. When it comes to telemarketing, when it
comes to securities, in many cases--over a wide variety of
agencies and products and services, it's as close to received
wisdom as I have, given my experience in Washington. I think
you're absolutely correct.
Mr. Mierzwinski. Senator, I would add, I'd be happy to try
to put the data together, but there are a number of existing
Federal laws where Attorneys General already have this
authority. And so, this is not a new idea, it's an important
idea. But I will say that in the last couple of years in my
advocacy, that the industry lobbies have been trying to remove
Attorney General authority in places where it currently exists
to enforce Federal law. So I'm not surprised that they're
trying to prevent Attorney General authority from being added
to Federal laws.
It's a tremendous benefit, as Travis pointed out, to have
51 consumer cops on the beat instead of one. And Attorney
General enforcement is strongly supported by every single
consumer organization.
Mr. Plunkett. And there are several very good examples of
Federal agencies working closely with--as you well know,
Senator--with State Attorneys General, such as the Federal
Trade Commission on a number of other statutes.
Mr. McGuire. Senator, I already spoke a little bit on this
and I realized I have two former prosecutors up there, so I'll
be careful. But we are not in any way----
Senator Klobuchar. We don't have jurisdiction over you.
[Laughter.]
Mr. McGuire. OK, well then let me really--we are not trying
to remove any existing authorities from State Attorneys General
and we're all for having more cops on the beat. We're all for
more resources.
Our concern is over different interpretations and different
enforcement actions and that's a different thing. So, I think
we're with you quite a bit in your desire to make the agency
more effective and have more resources put in. And I think
there are a lot of things that technology can do in the areas
of recalls and notification and education.
Senator Pryor. Thank you.
Did you have any other questions?
Senator Klobuchar. Just to finish up, I wanted to go back
to the reason that we put this lead standard in, and I know
there's some debate on where it should be set. And I don't
quite want to go in there for the trace levels. We can talk
about that later. But I mostly was focused on the reason that
we tried to do this as opposed to a line for rulemaking, which
some of the earlier bills had done.
And it was my impression, based on my discussions with
Commissioner Nord, as well as people who've practiced in this
area, that putting this in the rulemaking process could be
untenable. At the same time, we wanted to allow for rulemaking
if, for certain products, or a change in science, it was
determined that the trace lead level at which we set it was too
high.
So, what we ended up doing in this bill was to set it at
the .04, I think its parts per million, and the .02 for
jewelry, and then allow for rulemakings if the CPSC would like
to go beneath that level for certain products.
And I'll tell you where I came down on this. I felt that if
we didn't do that, even though it was a little risky to go out
there with a trace level, we would be just stuck waiting and
waiting and the consumers would be waiting, in terms of having
a standard. And mostly the CPSC, with its limited resources,
would be waiting to be able to enforce it.
So I mostly wanted to hear from the consumer advocates
about your feelings about the idea of, regardless of where the
trace level is set, about putting an actual Federal standard
into law.
Mr. Korn?
Mr. Korn. I think it's certainly the prerogative of
Congress and you can do that instead of going through the
rulemaking process at the CPSC. Just like you can control the
jurisdiction of the CPSC by declaring something a consumer
product or not, so that the CPSC can work toward making it a
safe product. You can also declare something banned and lead in
toys is something that you'd certainly have the prerogative to
do, and we're supportive of that.
And I don't think there's very much disagreement amongst
anybody, as to whether or not that's the way to go now. I mean,
I think almost everybody is in agreement there. So, I think
you've crafted a good piece of legislation there.
Senator Pryor. Thank you.
Mr. Korn. I'll mention one other thing. While sitting here,
I got an e-mail notice from the Consumer Product Safety
Commission about eight additional recalls today, about lead in
products.
Senator Klobuchar. And now you're going to go home and
look?
Mr. Korn. Yes, you have to. But you can sign up. Senator--
Chairman Pryor, you were mentioning how does the parent know?
You can sign up for this recall alert and get them right away,
you know, if you have the computer access. That's an issue
there, but it's a good way to get information.
Senator Klobuchar. Mr. Plunkett?
Mr. Plunkett. I would just add one thing. We agree that
your approach is a good way to start here. Regarding the
inevitable question of enforcement, it's come up in terms of
lead paint, where we have a standard already and poor
enforcement track record.
Let me point out that two of the measures in your proposal
will help there. The civil fine provision that we've already
spoken about, and the third party testing provision that we're,
that has already been mentioned at length.
So, you all are not only setting a better standard, you are
improving the chances that those standards will be well
enforced.
Mr. Mierzwinski. Senator, I just want to echo that your--
your approach is absolutely the better approach, than to give
this to rulemaking. And we strongly support that. And, as Alan
pointed out, there is precedent for Congress banning--banning
certain products that are hazardous on face. And by avoiding
the long, drawn out rulemaking, it's the right way to go.
Everybody agrees that getting lead out of the environment is
the way to go. And if Congress does it, you do it cleanly.
The second problem, of course, is that CPSC rulemaking,
they don't have the resources as you've heard and as you know,
and a rulemaking takes forever. So, it's--it's absolutely the
right way to go. And I, we believe that it's, was worth
pointing out to the Committee that there are groups that are
suggesting higher or better trace levels, and we hope to work
with you on that. But we absolutely like what you guys have
done.
Senator Klobuchar. OK. Thank you.
And I, again, wanted to thank these retailers and
manufacturers who have been willing to work with us on this.
Mattel testifying at the last hearing we had. Toys `R' Us
appearing there from the retail standpoint. It was very
helpful, gave us information, and it's helped us as we craft
this bill to make sure that it's smart from a consumer
standpoint but also practical to implement.
And thank you again, Chairman Pryor, for your work.
Senator Pryor. Thank you.
I'm finished with my questions. And I want to thank Senator
Klobuchar for being here and participating and helping draft
this legislation.
But I do want to make four points in closing. One is, that
we've talked about the State Attorneys General and the CPSC.
And again, we're trying to find the balance. We've talked about
that a lot today. And under our language that we've drafted
into the bill, the states would have to give the CPSC 60 days
notice before they proceed. And also, the CPSC has the right to
intervene in the litigation. So again, we feel like that's a
Federal-State balance there and there's a little check and
balance, which we think is the right balance. We hope it is.
The second thing I was going to say is, I know there's a
concern about information sharing and too much information
going out, especially proprietary information. Well, Section
6(a)(3) of existing law, covers that. And we don't change that.
Basically it says, in summary, not to read the whole thing, but
basically, manufacturers, you know, are protected from the
release of confidential information.
And again, you all can look at that. We don't change that.
We do change some of the things around that--that you may want
to look at, but again, we're trying to find the protection
that--we're trying to be sensitive to proprietary sensitive
information.
And the third point I'd make is, what I said in the very
beginning. Now's the time to come in and talk about these
things and try to shape this because we would like to move this
legislation. I've talked to Senator Inouye today, and he told
me that he's prioritizing this and he wants to try to get it
out as quickly as he can. So, don't wait, and don't think that
this is going to take weeks or months to get going. I mean,
we're starting right now. We've been working on this for a good
while, but we are moving. The train's leaving the station. So,
we encourage everybody to come in and weigh in and sit down and
talk through this, with us.
And the last point is, I just want to say thank you.
Because you all have been great. The fact that you've spent so
much time here with us today and so much time in preparing. And
like I said in the beginning, industry has really responded to
a lot of these recalls in a very positive, proactive way, and
we appreciate that. That's not been lost on this Subcommittee
or the Committee. There are a lot of great companies out there
that are really trying to address this in their own way. But I
still think there's a need for comprehensive reform. I think
most Senators and Congressmen would agree with that as well and
would try to reauthorize CPSC in a way that prepares it to meet
the challenges that we face today.
Again, I want to thank you all for being here today and
participating. We're going to leave the record open for 2 weeks
to allow Senators to provide written questions. We appreciate
you all getting back with us as quickly as you can on those.
And if there are documents or studies or whatever you all
have--someone mentioned that before--if you want to submit
those for the record, we'll be glad to accept those.
So with that, we're going to adjourn the hearing and just
say thank you very much.
[Whereupon, at 6 p.m., the hearing was adjourned.]
A P P E N D I X

Prepared Statement of Hon. Barbara Boxer, U.S. Senator from California
Chairman Pryor, I want to thank you for all of your hard work on
this bill that is so important to our children and families.
As both a parent and a grandparent, I have been incredibly
distressed by the seemingly endless stream of reports about defective
and dangerous children's toys and products.
Forty percent of all consumer products, nearly $250 billion, were
imported into the United States last year from China.
The Consumer Product Safety Commission currently employs only 420
full time employees responsible for ensuring the safety of well over
15,000 products totaling $614 billion.
The products CPSC monitors range in diversity from baby products to
playground equipment to cell phones. Given that range of responsibility
for protecting consumers and a budget of only $63 million annually, I
worry that we simply have not done enough to ensure the safety of
products coming in through our borders.
As foreign imports soar, now is the time for us to step up our
efforts to ensure that the food we consume and the products we use are
as safe as possible.
I am pleased to see this bill significantly increases the
authorized funding amount for the CPSC each year through 2015 and
provides for penalties for violations of this Act.
While I am glad to see this bill gives the CPSC authority to ban
the export of dangerous products that are unfit for sale in the United
States, I believe we must do more to ensure that no children anywhere
are exposed to dangerous toys.
I also favor strengthening the recall provisions of this bill so
consumers are given the proper information necessary to ensure the
safety of their families.
I again want to thank Senators Pryor and Inouye for all of their
efforts on this important bill.
Thank you, Mr. Chairman.
______

Prepared Statement of American Council on Electrical Safety (ACES)
The American Council on Electrical Safety (ACES) would like to
insert, for the record, information on an existing program,
administered by the U.S. Department of Labor, OSHA, titled Part 29,
Section 1910.7, Definition and requirements for a Nationally Recognized
Testing Laboratory. The fundamentals of this program could offer
assurance that consumer electrical products in the United States will
provide a significant amount of safety to persons and property.
The American Council on Electrical Safety (ACES) is an organization
of individuals, organizations and Government officials responsible of
assuring the safety of electrical products in the United States. Our
members include accredited certification and testing laboratories that
test all types of electrical products to assure they comply with U.S.
safety standards. Additional members include inspectors and authorities
having jurisdiction. Once a product is determined to comply with an
applicable standard it is critical that we assure that the product
continues to comply. This is done by regular follow up visits at the
factory and market surveillance in the various distribution outlets.
All of the test laboratories are accredited by the Department of
Labor (OSHA) under the Nationally Recognized Testing Laboratory (NRTL)
program.
Although the OSHA-NRTL program is an excellent and effective
program, authority is only granted for workplace products. Consumer
products are excluded. Under the proposed bill for the CPSC to
establish testing laboratories, much of what they do will duplicate
what already exists in the U.S. However the most important ingredient
of assuring continuous safety is market surveillance and factory follow
up visits. This is the only way to assure that products continue to
comply. Under the system presently in place there are over 10,000
electrical inspectors; full time to assure that U.S. safety standards
on work place electrical products, is continually assured.
The use of the existing inspection agencies, accredited testing
laboratories and certification bodies will greatly improve the success
of the Act you are proposing.
______

Press Release of Consumers Union--Nonprofit Publisher of
Consumer Reports
For Immediate Release, Thursday, October 4, 2007
Consumers Union Urges Reforms for CPSC; Supports Provisions in ``The
Consumer Product Safety Reform Act of 2007''
Washington, D.C.--Consumers Union, nonprofit publisher of Consumer
Reports magazine, commended the Senate Commerce Subcommittee for
Consumer Affairs, Insurance, and Automotive Safety for holding a
hearing on comprehensive legislation to strengthen the Consumer Product
Safety Commission.
According to CU, this legislation, S. 2045, recently introduced by
Subcommittee Chairman, Mark Pryor, and cosponsored by Senators Durbin,
Klobuchar, Inouye and Nelson, takes important steps in correcting the
current shortcomings of the CPSC and recognizes the need for
fundamental reform of the agency.
In a letter to the Subcommittee, CU outlined their support for the
bill. Janell Duncan, Senior Counsel for CU noted that, ``The bill puts
in place important protections for consumers against unsafe and
dangerous products.''
``The recent onslaught of unsafe products imported into the United
States has brought into focus the challenges faced by the Consumer
Product Safety Commission. These events have clearly illustrated that
the Commission lacks the staff, resources and legal authority to keep
unsafe products out of the marketplace,'' co-wrote Donald Mays, Senior
Director of Product Safety Planning and Technical Administration for
CU.
Some of the provisions CU praised include those providing for more
tools and resources for the CPSC, creating a third-party certification
of children's products to ensure that products comply with safety
standard or Commission rules (CU urged this be extended to all
products), and a ban on children's products containing more than
``trace amounts'' of lead.
A copy of the letter follows:
Consumers Union
October 3, 2007
Dear Chairman Pryor:

Consumers Union (CU), publisher of Consumer Reports commends you
for your introduction of ``The CPSC Reform Act of 2007'' (S. 2045).
This legislation is designed to strengthen the power and authority of
the Consumer Product Safety Commission, a critically important Federal
agency charged with ensuring the safety of over 15,000 products.
The recent onslaught of unsafe products imported into the United
States has brought into focus the challenges faced by the CPSC. These
events have clearly illustrated that the Commission lacks the staff,
resources and legal authority to keep unsafe products out of the
marketplace. Although U.S. imports from foreign countries have doubled
in the past year, the CPSC budget for Fiscal Year 2007 culminates a
two-year reduction of full-time employees from 471 to 420. In 2008, the
number of full-time employees is expected to reach a low of 401. This
agency--starved for resources--has been unable to do its job. Your
legislation would reduce this trend, by authorizing the appropriation
of an infusion of funds to the Commission, beginning with a budget of
$80,000,000 in FY 2008 and increasing yearly to a level of $141,725,000
in FY 2015.
As shown by recent violations of U.S. product safety laws, and
repeated violations by some well-known companies, large manufacturers
and retailers may look at penalties as simply a cost of doing business.
Current civil penalties for companies that fail to comply are
inadequate to serve as an effective deterrent. Your legislation would
increase civil penalty caps for certain individual violations to
$250,000, and raise the maximum civil penalty to $100,000,000. Although
we believe the cap should be eliminated to provide maximum deterrence,
this increase should cause companies, large and small alike, to think
twice before selling unreasonably dangerous products, or failing to
report possible product risks to the CPSC.
Transparency is very important when products are suspected of
posing unreasonable risks of harm. We therefore strongly support the
provisions of this legislation that would eliminate Section 6(b) of the
Consumer Product Safety Act (CPSA) that has served as a serious barrier
to the release and timely disclosure of information that could warn the
public about safety concerns relating to products.
Parents and caregivers alike have been very concerned with the
repeated recalls of dangerous children's products and toys due to
product defects or excessive amounts of lead in the paint, We commend
you for specific provisions of the legislation that would address
hazards relating to toys, including:

Third-party certification of children's products to ensure
that products comply with safety standards or Commission rules
(we strongly support this measure, and encourage you to expand
this requirement to all products, especially all-terrain
vehicles and gasoline powered outdoor equipment);

Tracking labels for children's products to enable easier
identification of products subject to a recall; and

A ban on children's products containing more than ``trace
amounts'' of lead, which S. 2045 would define as limiting
amounts in children's jewelry to 0.02 percent, and amounts in
other children's products to 0.04 percent. The American Academy
of Pediatrics has stated that there is no safe level for which
a child can be exposed to lead, and recently has called for
limiting amounts in products intended for use by children under
12 to 0.004 percent. We also agree that current limits are too
high, and believe that Federal regulations should be changed to
reduce the allowable limit for all consumer products to the
lowest possible threshold.

Other important consumer protection provisions include:

Requiring importers to pay a bond to ensure that they have
the financial ability to conduct a recall, if necessary;

Strengthening CPSC recall authority, and powers under
Section 15 of the CPSA to better ensure that product recalls
are appropriate in scope and effectiveness;

Authorizing the CPSC to refer repeat offenders to U.S.
Customs for possible termination of their import license;

Authorizing enforcement of the CPSA by State Attorneys
General;

Whistleblower protection for employees of manufacturers;

Clarifying that, after the date of enactment, product safety
rules promulgated by the CPSC will not preempt state or local
laws to any greater extent than already permitted under Section
26 of the CPSA. This provision also makes clear that the recent
attempts by the Commission to cause the Mattress Flammability
Rules to preempt state law will not do so in ways beyond what
is allowed under Sections 26(a) and (c) of the CPSA.

Once again, we thank you for crafting this important bill, designed
to put into place important protections for consumers against unsafe
and dangerous products. We appreciate your efforts to restore both
resources and authority to the CPSC to enable it to better serve the
public interest. We look forward to working with you on this measure as
it moves through the legislative process.
Sincerely,

Janell Mayo Duncan,
Senior Counsel,
Washington, D.C.

Don Mays,
enior Director of Product Safety,
Planning and Technical Administration, Yonkers, New York.
cc: Members of the Senate Commerce Subcommittee on Consumer Affairs
______

Friends of the Earth
Washington, DC, October 23, 2007
On behalf of Friends of the Earth, MOMS (Making Our Milk Safe),
Sierra Club, Clean Water Action, Environmental Working Group,
Firefighters Burn Institute, Trauma Foundation, San Francisco
Firefighters Cancer Prevention Foundation, Institute for Agriculture
and Trade Policy, Citizens' Environmental Coalition, Indiana Toxics
Action, Kentucky Environmental Foundation, California Communities
Against Toxics, Clean New York, Global Community Monitor, Vermont PIRG,
CA Product Stewardship Council, Blue Voice

Hon. Daniel K. Inouye,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.

Re: Senate Bill 2045: The Consumer Product Safety Commission Reform
Act of 2007

Dear Senator Inouye,

Thank you for your excellent work on Senate Bill 2045, the Consumer
Product Safety Commission Reform Act of 2007, which is an important
piece of legislation for reducing the very real threats of lead
contamination in children.
However, we, the undersigned, are writing to request that Section
25 be deleted from the bill. This provision mandates the Consumer
Product Safety Commission (CPSC) to issue a final rule for furniture
flammability by June 1, 2008, which could result in exposing the
American people and the environment to potentially dangerous toxic fire
retardant chemicals. We strongly urge you to delete this section for
reasons outlined in more detail below.
1. Based upon historical experience in the State of California, we
believe that flame retardant chemicals would be used to meet CPSC's
proposed standards. Unfortunately, in hundreds of peer-reviewed
scientific studies, a sample list of which we have provided with this
letter, flame retardants used in furniture have been found to persist,
accumulate and be potentially toxic. Fire retardant chemicals are
accumulating in humans, wildlife, and the environment at alarming
rates. U.S. women have some of the highest levels of fire retardants in
their breast milk in the world. The Polyurethane Foam Association,
which produces the foam for the Nation's furniture manufacturers,
estimates that 17 to 70 million additional pounds of these chemicals
would be used annually to meet CPSC's current draft standard.
2. Adequate toxicity testing has not been conducted on the serious
health impacts of these flame retardant chemicals. Health impacts
include the potential for bioaccumulation and persistence, especially
in children, as well as endocrine disruption, carcinogenicity, and
reproductive and neurological toxicity. Recent U.S. EPA studies
indicate areas of concern, as well as large data gaps for human health
and environmental safety for all of the fire retardant chemicals
currently used in furniture.
3. Dozens of scientific studies are now underway examining the
relationship between previously used PBDE fire retardant chemicals and
birth defects, autism, hyperactivity, reduced fertility including
lowered sperm counts, and other reproductive and neurological
conditions. This August, a study conducted by U.S. EPA scientists
linked fire retardant chemicals to the current epidemic of hyperthyroid
disease in domestic cats. Further studies will not be completed within
the timeline of this legislation.
4. Studies have not been conducted on the fate and transport of
fire retardant chemicals used in furniture. Alarmingly, some fire
retardants such as PBDEs and PCBs have been found in extremely remote
areas including the Arctic Circle, with the highest levels found in
Killer Whales, The entire lifecycle of products containing fire
retardant chemicals must be considered including occupational exposure
during manufacture, chemical exposure during use, and end of life
disposal problems when products are combusted, land-filled, composted,
littered, or recycled.
5. Even though California is the only state in the country with
furniture flammability standards (California Technical Bulletin 117),
leading to the use of millions of pounds of chemical fire retardants,
California has failed to achieve greater fire safety than other states.
According to a study by the National Fire Protection Association, the
rate of reduction of fire deaths in California over the last 20 years
is statistically identical to other states that do not have furniture
flammability standards. A general decrease in smoking, the increased
use of sprinkler systems and smoke alarms, fire-safe cigarettes, and
improved building codes have had a significant impact on increasing
fire safety across the U.S.
6. A dangerous fire retardant known as chlorinated tris, or TDCP,
which was removed from children's sleepwear 30 years ago by CPSC, is
the second most common fire retardant used in California furniture
today. Tris is both a mutagen and a probable human carcinogen. CPSC
studies predict that 300 cases of cancer per million are likely due to
current human exposure to this chemical in furniture. If tris were used
more broadly across the Nation as a result of new fire retardant
standards, CPSC projects an additional 1,200 cases of cancer annually.
7. When furniture treated with fire retardant chemicals burns,
dioxins and furans--some of the most carcinogenic chemicals known--are
produced. According to a recent study by the Journal of Occupational
and Environmental Medicine, firefighters have significantly elevated
rates of four types of cancer: multiple myeloma, non-Hodgkin's
lymphoma, prostate, and testicular cancer. Experts believe that these
cancers may be related to firefighters' exposure to the toxic by-
products created when furniture treated with fire retardant chemicals
burn. Primarily for this reason, The International Association of
Firefighters, which represents hundreds of thousands of firefighters
nationwide, supports efforts to phase-out the use of toxic and unsafe
fire retardants.
8. California is currently considering legislation in the Senate
mandating the phase-out of the most toxic fire retardant chemicals (AB
706). A new study finds private residences in California have three to
ten times higher levels of fire retardant chemicals than homes
elsewhere in the U.S. For this and other reasons, AB 706 has the strong
support of national environmental and public health organizations, burn
institutes, organized labor organizations, as well as the largest
firefighter organizations in California.
9. A Federal flammability standard set by CPSC may lead to a pre-
emption of state laws to phase-out toxic fire retardants. Eleven U.S.
states have already banned pentaBDE and octaBDE, and two states have
banned decaBDE. If CPSC establishes a national furniture standard which
in practice leads to the use of chemicals which have been banned by any
state, this will likely lead to litigation between states and the
Federal Government.
10. Early estimates from New York State suggest that fire-safe
cigarettes will cause a 50 to 67 percent reduction in fire deaths.
Public health officials acknowledge that this is a much safer and more
effective means of reducing fire hazard. Laws in 22 U.S. states and
Canada currently require cigarettes to be constructed so that they will
self-extinguish if left unattended. Other states are actively
considering such regulations. Compared to adding chemicals to foam,
which has not resulted in a measurable decline in fire deaths in
California over 20 years, fire safe cigarettes will appreciably reduce
fire hazard without dangerously adverse public health and environmental
impacts.
We urge you to strike Section 25 and to allow California,
Washington, Maine, New York and other states to take the lead on
efforts to limit the use of the most dangerous fire retardants.
We applaud your efforts to improve fire safety, but it must not
come at the expense of increasing human and environmental exposure to
potentially toxic chemicals for which there is inadequate health and
safety information.
Thank you,

Brent Blackwelder, Ph.D. Mary Brune
President Executive Director
Friends of the Earth MOMS (Making Our Milk Safe)

Ed Hopkins Carol Misseldine
Director of Environmental Quality Executive Director
Sierra Club California Product Stewardship
Council

Patty Neifer Charity Carbine
Executive Director Environmental Health Advocate
Firefighters Burn Institute Vermont PIRG

Marie Zellar Hardy Jones
Midwest Regional Director Executive Director
Clean Water Action Blue Voice

Andrew McGuire Jane Williams
Executive Director Executive Director
Trauma Foundation California Communities Against
Toxics

Tony Stefani Denny Larson
Chairman of the Board Executive Director
San Francisco Firefighters Cancer Global Community Monitor
Prevention Foundation

Richard Wiles Bobbi Chase Wilding
Executive Director Associate Director
Environmental Working Group Clean New York

Steve Breyman, Ph.D. Kathleen Schuler, M.P.H.
Executive Director Senior Policy Analyst
Citizens' Environmental Coalition Institute for Agriculture and Trade
Policy

Lin Kaatz Chary, Ph.D, M.P.H. Elizabeth Crowe
Indiana Toxics Action Program Director
Kentucky Environmental Foundation

______

Prepared Statement of the American Academy of Pediatrics
The American Academy of Pediatrics (AAP), a nonprofit professional
organization of 60,000 primary care pediatricians, pediatric medical
sub-specialists, and pediatric surgical specialists dedicated to the
health, safety, and well-being of infants, children, adolescents, and
young adults, appreciates this opportunity to submit testimony for the
record of the October 4 hearing on S. 2045, the CPSC Reform Act of
2007.
The American Academy of Pediatrics commends the sponsors of S. 2045
for this effort to pay long-overdue attention to the Consumer Product
Safety Commission (CPSC), its authorities, and the marketplace in which
it operates. The AAP supports initiatives to increase the CPSC's staff
and funding, give it more tools to police the consumer marketplace, and
require manufacturers and sellers of consumer products to pursue safety
more zealously.
The AAP would like to offer testimony directed to the portions of
S. 2045 dealing with children's products and regulation of lead. In
particular, the AAP applauds S. 2045 for reducing the lead standard for
paint to 90 parts per million (ppm). The AAP recommends that S. 2045 be
improved as follows:

Lead should be banned in children's products above the level
of 40 ppm. Further, no compelling rationale exists for
differentiating toy jewelry from other types of children's
products.

Children's product should be defined as those intended for
use by or with children age 12 and under.

Legislation or regulations should limit the overall lead
content of an item, rather than only limiting lead content of
its components. A single product may contain numerous
components that could cumulatively contain a dangerous level of
lead.
Lead is Ubiquitous in Our Environment
Lead is a soft, heavy and malleable metal that occurs naturally in
trace amounts throughout the environment. Due to its abundance and easy
workability, it has been used for thousands of years in plumbing,
production of glass and crystal, and manufacture of ammunition.\1\ Its
toxicity was recognized by the Romans \2\ and documented during the
twentieth century, as its increasingly widespread use led to
unprecedented levels of occupational and environmental lead
poisoning.\3\ By 1970, science had demonstrated conclusively that lead
could cause both acute poisoning as well as a wide range of long-term
human health consequences.\3\ \4\ Since then, hundreds of studies have
shown that the body has no use for lead, and that a ``normal'' blood
lead level is zero.
Because of its widespread use, lead has been concentrated in the
environment where it poses a serious threat to children's health.
Furthermore, because it cannot be identified easily, even when present
in high amounts in paint, dust, or dirt, children can be exposed in
their homes and schools and at play without our knowledge. It is an
``invisible'' poison.
Low Levels of Lead Can Cause Serious Effects
Damage done by small amounts of lead may be hard to measure and
even harder to understand. Most children who accumulate lead in their
body do not have any physical symptoms, but low lead levels cause a
wide array of negative effects, including cognitive, motor, behavioral,
and physical harm.\5\
There is no ``safe'' level of lead exposure. The developing embryo,
fetus, and child grow and change rapidly. If, during this period of
change, the fetus or child is exposed to a poison of some kind,
development can be impacted negatively. These ``critical windows of
exposure'' are specific periods of development during which the embryo
or fetus is undergoing some process (such as the development of arms
and legs between days 22 and 36 of pregnancy, when thalidomide damages
their development.\6\ \7\) There are many other examples of this
effect, including tobacco smoke and behavioral effects, and alcohol and
fetal alcohol syndrome. The critical period associated with harm from
lead poisoning is brain and nervous system development, which begins in
early pregnancy and continues until at least age 3 years.\8\
The vulnerability of children to lead poisoning during development
of their brain and nervous system has been amply demonstrated, and the
literature is very consistent. On average, children whose blood lead
levels (BLLs) rise from 10 to 20 mcg/dL lose two to three IQ points.
More recent studies have shown an even greater impact on IQ of BLLs
under 10 mcg/dL. Key studies reported a loss of 4 to 7 IQ points in
children whose lead levels rose from 1 mcg/dL to 10 mcg/dL.\9\ \10\
These studies suggest that ``low'' levels of exposure--meaning BLLs
less than 10 mcg/dL--cause proportionately greater harm than higher
levels. The effects of lead on health do not stop once the child
reaches age 6 years. A recent study found that in a group of 7-year old
children exposed to lead before the age of 3 years, IQ was more closely
related to blood lead at age 7 years than past blood lead at age 5 or
peak blood lead at approximately age 2 years.\11\
Another important lasting effect of lead exposure is on behavior,
with higher rates of behavioral problems reported in teens and adults
exposed to lead during childhood. Children with elevated lead are more
likely to have problems with attention deficit, reading disabilities,
and to fail to graduate from high school.\12\ Investigators have
identified associations between lead exposure and increased aggression,
commission of crime and antisocial or delinquent
behaviors.\13\^-\16\ Studies have suggested that several
nations which began reducing lead exposure aggressively in the 1970s
experienced corresponding decreases in crime rates two to three decades
later.\16\ Other effects include abnormal balance, poor eye-hand
coordination, longer reaction times, and sleep disturbances.\12\ \17\
\18\
The loss of a few IQ points or a small increase in the proportion
of children with behavioral problems in the population of U.S. children
has marked impacts on educational needs and future potential.\19\ Since
lead exposure is a population-wide risk, even relatively low levels of
exposure can affect large numbers of children. This means that more
children need special education, there are fewer gifted children, and
over time, the average IQ of the entire population falls.\19\
Lead Poses a Serious Health Hazard to Children At Every Level of
Exposure and Every Stage of Development
Lead is easily absorbed by ingestion or inhalation. The most common
route of exposure of children is through ingestion, usually by putting
hands and other objects in their mouth. Both hand-to-mouth exploration
and playing on floors are typical behaviors for children, especially
younger children. Studies using videos to record oral behaviors of
young children report hand or object in mouth activities 20 or more
times per hour.\20\ \21\ If the dirt on their hands or the dust on the
floor contains lead, every one of those activities delivers a dose of
lead.
Another significant difference between children and adults is in
the rate of their metabolisms. Children have significantly faster
metabolisms, which means that they breathe faster and ingest
proportionately more food and water.\22\ This difference means that in
similar environments, children are exposed to a greater extent to
contaminants than adults. Since children absorb 5 to 50 percent of any
lead they ingest (compared to adults, who absorb 10-15 percent),\23\
they are at high risk of lead poisoning every time they are exposed.
Once lead enters the body it remains there for years. Lead is
similar to calcium from the elemental perspective. This means that our
bodies ``see'' lead as calcium, absorb it into blood and then store it
in bone. These stores of lead can be released years later, when bone
changes occur or demands on calcium stores are made.\24\ Another
consequence of storing lead in bone is that exposures separated by
months or years have an additive effect on the body's burden of lead
and can exert effects over decades. Acquisition of lead in the body
even in small amounts (i.e., amounts that result in BLLs less than 10
mcg/dL) contribute to this accumulation of lead. This means that
commonly encountered blood lead concentrations have lasting negative
effects.
Another consequence of this accumulation of lead in bone is the
exposure of the fetus to lead by the mothers. Women exposed to lead
during childhood may have significant stores of lead in their bones. If
they do not consume adequate calcium during pregnancy, their bones
release calcium as the fetus grows. As the calcium is released, lead is
released as well, This lead can be transferred to the fetus--exposing
the fetus' developing brain and nervous system at a critical time.
Fetal exposure from this route has been demonstrated to cause
measurable decreases in IQ.\25\
Sources of Children's Exposure to Lead
The most common source of lead exposure today is lead paint, found
in older housing stock. As paint wears off, it contaminates the dust
that clings to surfaces, toys and the fingers of children. Other
sources of lead exposure include contaminated soil, traditional or folk
medicines, and certain types of dishes. In recent years, however,
parents have found a new source of anxiety regarding lead exposure:
children's toys and other products, particularly those imported from
China.
These concerns are justified. Since July 2006, the CPSC has issued
at least 11 recalls affecting more than 6.7 million units of children's
toy jewelry due to excessive lead content. Since 1998, CPSC has issued
at least 29 recalls involving 157,962,000 pieces of toy jewelry due to
high lead levels. Other products recalled during that time due to lead
contamination include game pieces, candles, sidewalk chalk, and art
kits. Consumers are acutely aware of recent recalls of popular toys
found to contain lead paint, including Thomas the Tank Engine, Mattel's
Barbie, and Fisher-Price's Dora the Explorer toys. The risk of harm to
children from these toys is real: in 2006, a 4-year-old Minnesota boy
died after ingesting a small Reebok shoe charm that was later found to
be 99.1 percent lead.\26\ The charm he ingested dissolved in his
stomach, releasing the lead into his bloodstream.
Lead Must Be Removed from Toys and Other Children's Products
The American Academy of Pediatrics has consistently urged the
Consumer Product Safety Commission (CPSC), the Environmental Protection
Agency (EPA), and other agencies to take aggressive, proactive steps to
minimize children's exposure to lead. The addition of lead to jewelry
or toys is not in any way central or even necessary to the function or
purpose of the product. For example, manufacturers add lead to jewelry
to give it more weight or heft, rather than using a more expensive but
safer metal. None of these factors represent a compelling rationale for
including a poisonous substance in a product specifically designed for
use by children.
The range of products covered by a ban on lead content must also be
considered carefully. ``Children's product'' must be defined broadly
enough to cover the full range of items capable of causing a serious
hazards--not just toys or ``toy'' jewelry but also durable products
such as furniture (cribs, strollers, high chairs, etc.) and products
meant for the care of children (bath seats, gates, etc.). One of the
first pediatric deaths attributed to lead paint was a child who chewed
on the railing of his crib--in 1913.\4\
Finally, legislation should cover products meant or designed for
use by or with children at least up through the age of 12. Children are
susceptible to neurological damage from lead exposure throughout the
development of their brain and nervous system. Their long ``shelf
life,'' or the period of time over which they can be exposed to and
accumulate lead in their bodies, means that every exposure should be
eliminated or minimized to prevent future harms. Finally, toys meant
for older children often find their way into the hands of younger
siblings and other small children, posing a hazard to these children
outside the object's target audience.
Federal Lead Standards
Federal agencies use a variety of standards for unacceptable lead
content. This issue is complicated by the fact that lead uptake varies
depending upon the route of exposure (ingestion, inhalation, skin
contact, etc.) In considering existing guidelines, it is critical to
bear in mind that many were set before research demonstrated the
harmful effects of lead at low levels. There is no known safe level of
lead exposure; as a result, exposure to lead below these levels should
not be considered ``safe.''

In 1978, the Consumer Product Safety Commission banned the
manufacture of paint containing more than 0.06 percent lead by
weight on interior and exterior residential surfaces, toys, and
furniture.

Based on that standard for lead paint, the CPSC's current
voluntary standard prohibits toy jewelry to contain more than
0.06 percent lead by weight. The standard further requires
manufacturers to test for the ``accessibility'' of lead,
although surface accessibility may be irrelevant if an item is
small enough to be ingested.

The EPA requires water provided by public utilities to
contain no more than 15 parts per billion of lead. The 1986
Safe Drinking Water Act Amendments banned the use of lead in
public drinking water distribution systems and limited the lead
content of brass used for plumbing to 8 percent.

The EPA set guidelines for lead contamination of dust,
limiting levels called ``safe'' to below 40 mcg/ft\2\ for
floors.\27\ It is important to note that this is not a health-
based standard; an estimated 20 percent of children exposed to
floor dust lead levels at 40 mcg/ft\2\ will have a blood lead
level above 10 mcg/dL.\28\

In response to reports of lead contamination in candies
likely to be consumed frequently by small children, the Food
and Drug Administration (FDA) set a maximum lead level of 0.1
ppm. FDA has set different levels for other products; for
example, dairy product solids may contain lead at no more than
0.5 ppm.\29\

The FDA recommends a limit on children's lead intake in food
to no more than 6 mcg/day. It is important to note that this is
not a health-based standard; this limit is roughly equivalent
to the amount of lead that would be expected to lower IQ by 1
point.

FDA regulates lead content in cosmetics; for example, the
colorant manganese violet may contain lead at no more than 20
ppm.\30\

Airborne lead is regulated by EPA as a ``criteria
pollutant'' under the Clean Air Act. The National Ambient Air
Quality Standard for lead is 1.5 mcg/m\3\, maximum arithmetic
mean averaged over a calendar quarter.

Both the National Institute for Occupational Safety and
Health and the Occupational Safety and Health Administration
set permissible limits for lead exposure in the workplace, but
these guidelines are designed for adults and not appropriate
for children.
Recommendations
To protect the health of our Nation's children, the CPSC must be
given the tools it needs to fulfill its mission. In particular,
nonessential uses of lead, especially in products to which children may
be exposed, must be prohibited. The American Academy of Pediatrics
recommends the following:

The CPSC should require all products intended for use by or
in connection with children to contain no more than trace
amounts of lead.

The Academy recommends defining a ``trace'' amount of lead
as no more than 40 ppm, which is the upper range of lead in
uncontaminated soil.\31\ This standard would recognize that
contamination with minute amounts of lead in the environment
may occur but can be minimized through good manufacturing
practices.

The limit on lead content must apply to all components of
the item or jewelry or other small parts that could be
swallowed, not just the surface covering.

The CPSC must be funded adequately. The President requested
a budget of $63.2 million for CPSC in Fiscal Year 2008, which
would require the agency to cut an additional 19 employees.
This budget is insufficient to even allow the agency to
continue current programs, much less expand its efforts. At its
founding, the CPSC budget was $39 million. If the budget had
kept pace with inflation, it would be $138.2 million today,
more than double its requested allocation.

An appropriately qualified CPSC chair must be nominated and
approved in a timely fashion. The CPSC has been without a
voting quorum of Commissioners since January 2007, meaning it
cannot take many regulatory, enforcement and other actions. The
President's recent nominee to chair the Commission withdrew
from consideration after a public outcry regarding his
qualifications.

The authority of the agency to issue mandatory recalls and
provide full information to consumers must be strengthened.

Finally, it is important to note that, while limiting lead is an
important aspect of guaranteeing the safety of children's products,
numerous other aspects of this issue should also be considered. Other
key children's product safety issues including choking hazards,
flammability, dangerous magnets, and safe product design.
Conclusion
There is no known ``safe'' level of lead for children.\32\ \33\ No
study has determined a blood lead level that does not impair child
cognition. Since any measurable lead level causes lasting harm,
prevention of exposure is the only treatment.\34\ Lead exposure is an
important, unnecessary, and preventable poisoning.
The American Academy of Pediatrics appreciates this opportunity to
submit testimony for the record of this hearing on S. 2045, the CPSC
Reform Act of 2007. If the AAP may be of further assistance, please
contact Cindy Pellegrini in our Washington, D.C. office.
References
\1\ Chemistry: WebElements Periodic Table. http://
www.webelements.com/webelements/elements/text/Pb/key.html. Accessed
March 31, 2004.
\2\ Lead Poisoning and Rome. http://itsa.ucsf.edu/snlrc/
encyclopaedia_romana/wine/leadpoisoning.html. Accessed March 31, 2004.
\3\ Markowitz G., Rosner D. ``Cater to the children'': the role of
the lead industry in a public health tragedy, 1900-1955. Am J Public
Health. 2000;90(1):36-46.
\4\ Warren C. Brush With Death: A Social History of Lead Poisoning.
Baltimore, MD: Johns Hopkins University Press; 2000.
\5\ Bellinger D. Lead. Pediatrics. 2004;113 (4 (Supplement)):1016-
1022.
\6\ Brent R. Environmental causes of human congenital
malformations: the pediatrician's role in dealing with these complex
clinical problems caused by a multiplicity of environmental and genetic
factors. Pediatrics. 2004;113 (4 (Supplement)):957-968.
\7\ Sadler T.W. Langman's Medical Embryology. 6th ed. Baltimore,
MD: Williams & Wilkins; 1990.
\8\ Mendola P., Selevan S.G., Gutter S., Rice D. Environmental
factors associated with a spectrum of neurodevelopmental deficits. Ment
Retard Dev Disabil Res Rev. 2002;8(3):188-197.
\9\ Canfield R.L., Henderson C.R., Jr., Cory-Slechta D.A., Cox C.,
Jusko T.A., Lanphear B.P.. Intellectual impairment in children with
blood lead concentrations below 10 microg per deciliter. N Engl J Med.
2003;348(16):1517-1526.
\10\ Lanphear B.P., Hornung R., Khoury J., et al. Low-level
environmental lead exposure and children's intellectual function: an
international pooled analysis. Environ Health Perspect. Jul.
2005;113(7):894-899.
\11\ Chen A., Dietrich K.N., Ware J.H., Radcliffe J., Rogan W.I. IQ
and blood lead from 2 to 7 years of age: are the effects in older
children the residual of high blood lead concentrations in 2-year-olds?
Environ Health Perspect. 2005;113(5):597-601.
\12\ Centers for Disease Control and Prevention. Managing Elevated
Blood Lead Levels Among Young Children: Recommendations from the
Advisory Committee on Childhood Lead Poisoning Prevention. Atlanta, GA:
Centers for Disease Control and Prevention.; 2002.
\13\ Dietrich K.N., Ris M.D., Succop P.A., Berger O.G., Bornschein
R.L.. Early exposure to lead and juvenile delinquency. Neurotoxicol
Teratol. Nov-Dec 2001;23(6):511-518.
\14\ Ris M.D., Dietrich K.N., Succop P.A., Berger O.G., Bornschein
R.L. Early exposure to lead and neuropsychological outcome in
adolescence. J Int Neuropsychol Soc. Feb. 2004:261-270.
\15\ Burns J.M., Baghurst P.A., Sawyer M.G., McMichael A.J., Tong
S.L. Lifetime low-level exposure to environmental lead and children's
emotional and behavioral development at ages 11-13 years. The Port
Pirie Cohort Study. Am J Epidemiol. Apr. 15 1999;149(8):740-749.
\16\ Nevin R. Understanding international crime trends: the legacy
of preschool lead exposure. Environ Res. 2007;104(3):315-336.
\17\ Bhattacharya A., Shukla R., Dietrich K.N., Bornschein R.L.
Effect of early lead exposure on the maturation of children's postural
balance: a longitudinal study. Neurotoxicol Teratol. 2006;28(3):376-
385.
\18\ Chiodo L.M., Covington C., Sokol R.J., et al., Blood lead
levels and specific attention effects in young children. Neurotoxicol
Teratol. Apr. 21 2007.
\19\ Bellinger D.C. What is an adverse effect? A possible
resolution of clinical and epidemiological perspectives on
neurobehavioral toxicity. Environ Res. 2004;95(3):394-405.
\20\ Reed K.J., Jimenez M., Freeman N.C., Lioy Quantification of
children's hand and mouthing activities through a videotaping
methodology. J Expo Anal Environ Epidemiol. 1999:9(5):513-520.
\21\ Ko S., Schaefer P.D., Vicario C.M., Binns H.J. Relationships
of video assessments of touching and mouthing behaviors during outdoor
play in urban residential yards to parental perceptions of child
behaviors and blood lead levels. J Expo Sci Environ Epidemiol.
2007:17(1):47-57.
\22\ Plunkett L.M. T.D., Rodrieks J.V. Differences between adults
and children affecting exposure assessment. In: Guzelian P.S. H.C.,
Olin SS, ed. Similarities and Differences Between Children and Adults:
Implications for Risk Assessment. Washington, D.C.: ILSI Press;
1992:79-94.
\23\ United States Environmental Protection Agency. Review of the
National Ambient Air Quality Standards for Lead: Exposure Analysis
Methodology and Validation. Washington, D.C.: Air Quality Management
Division, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency: 1989.
\24\ O'Flaherty E.J.. A physiologically based kinetic model for
lead in children and adults. Environ Health Perspect. 1998;106 Suppl.
6:1495-1503.
\25\ Schnaas L., Rothenberg S.J., Flores M.F., et al., Reduced
intellectual development in children with prenatal lead exposure.
Environ Health Perspect. 2006; 114(5):791-797.
\26\ Centers for Disease Control and Prevention. Death of a child
after ingestion of a metallic charm--Minnesota. 2006. MMWR.
2006;55(12):340-341.
\27\ Federal Register. Part III, Environmental Protection Agency.
Lead: Identification of Dangerous Levels of Lead: Final Rule.
2001;66:1206-1240.
\28\ Lanphear B.P., Weitzman M., Winter N.L., et al. Lead-
contaminated house dust and urban children's blood lead levels. Am J
Public Health. 1996;86(10):1416-1421.
\29\ Food and Drug Administration. GRAS affirmation petition GRP
1G0371. http://www.cfsan.fda.gov/rdb/opa-g037.html.
\30\ U.S. Food and Drug Administration. 21 CFR 73.2775. http://
www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfefr/
CFRSearch.cfm?fr=73.2775.
\31\ Friedland A., Johnson A. Lead distribution and fluxes in a
high-elevation forest in northern Vermont. J Environ. Qual.
1985:14:332-336.
\32\ American Academy of Pediatrics Committee on Environmental
Health. Lead exposure in children: prevention, detection, and
management. Pediatrics. 2005:116(4):1036-1046.
\33\ Centers for Disease Control and Prevention. Preventing Lead
Poisoning in Young Children. Atlanta: CDC: 2005.
\34\ Centers for Disease Control and Prevention. Preventing Lead
Exposure in Young Children: A Housing-Based Approach to Primary
Prevention of Lead Poisoning. Atlanta: CDC; 2004.
______

Prepared Statement of Charles Jeffrey Duke, General Counsel,
Zippo Manufacturing Company
Chairman Pryor, Ranking Member Sununu, and other distinguished
Subcommittee Members. My name is Charles Jeffrey Duke, General Counsel
of Zippo Manufacturing Corporation. I want to thank you for giving me
the opportunity to submit my views on the Consumer Product Safety
Reform Act, S. 2045.
In general, Zippo supports the reauthorization of the U.S. Consumer
Product Safety Commission with substantially increased authorization
and staff levels. I believe that S. 2045 embraces a healthy increase of
both of these resources and I support those objectives. Zippo supports
a number of the needed reforms in S. 2045; for example, providing the
authority to expand the Commission to five Commissioners; streamlining
the submission of documents and reports to Congress; streamlining
rulemaking procedures; and providing a system for more accurate
identification of manufacturers by importers, retailers and
distributors.
Zippo also supports expanding the list of certain prohibited acts--
such as prohibiting the resale of recalled products; increasing
penalties for repeat offenders; and increased penalties for
misrepresenting information in investigations; and more efficient
sharing of information with Federal, State, local and foreign law
enforcement agencies.
There are, however, other provisions in the bill that would impose
unreasonable burdens on small and medium sized enterprises (SMEs) like
Zippo. The elimination of section 6(b) of the Consumer Product Safety
Act could expose Zippo and other SMEs to breaches of confidential and
proprietary information. Zippo also is very concerned about Section 21
of the bill that would authorize lawsuits by state attorneys general.
This has the potential of exposing Zippo and other SME's to expensive
and unnecessary litigation in a myriad of legal systems. SMEs are much
less able to expend resources on litigation than multinationals are.
Every dollar spent on litigation comes at the expense of spending to
protect intellectual property, developing new and innovative products
and continuing to employ Americans in good paying jobs with
comprehensive employee benefits.
Zippo is also concerned about Section 18 of the bill that would
have the effect of narrowing Federal preemption. This tends to create
confusion in the marketplace due to the absence of a clear national
standard. In this era of globalization, when SMEs are being required to
compete in dozens if not hundreds of countries, as Zippo does, just to
survive, a clear national safety standard enforced federally, as
compared to numerous state variations created by state enforcement, to
provide the consistency both manufacturers and consumers need. Zippo
would like to work with the Committee to improve this legislation
making the provisions more fair and equitable for consumers and SMEs
alike.
I would like to point to one specific provision of the bill--
section 25--that establishes a model for helping Zippo and other
lighter companies, along with many other industries, to make a
substantial contribution to safety. Section 25 requires the Commission
to issue a final rule by no later than June 1, 2008 on a proposed rule
on ``Ignition of Upholstered Furniture by Small Open Flame and/or
Smoldering Cigarettes'' This proposed rule has been pending before the
Commission for over 10 years without a successful outcome. It is time
for the Commission to act on this proposed rule and the Congress is
justified in encouraging the Commission to ensure action.
Zippo urges the Committee to adopt language similar to Section 25
to create a mandatory rule for the existing voluntary standard for
cigarette lighters, ASTM F-400. For years, the Commission has been
considering a pending rulemaking (Federal Register/Vol. 70, No. 68/
Monday, April 11, 2005/Proposed Rules) to create a mandatory safety
standard for cigarette lighters, yet it appears that the Commission is
not prepared to act on this rulemaking, which is stuck at the ANPR
stage. In the interim, one to two persons die each year due to faulty
lighters entering the U.S. market.
The history of this rulemaking is revealing of the Commission's
inability to take action. In November 2001, the Lighter Association,
Inc. petitioned the Commission to adopt a voluntary standard--ASTM F-
400--as a mandatory standard under the Consumer Product Safety Act
(CPSA). This voluntary standard meets the requirements to address the
risk of death, and injury associated with the mechanical malfunction of
lighters. Zippo believes that a mandatory rule is necessary to address
an unreasonable risk of injury created by the widespread non-
conformance of the voluntary standard by imported lighters.
Nearly 3 years ago on November 30, 2004, the Commission voted to
grant the petition and published an advanced notice of proposed
rulemaking (ANPR) in the Federal Register on April 11, 2005. According
to the CPSC staff, available market data indicates that imported and
domestic lighter production totals approximately 1 billion units
annually. Imports account for more than 75 percent of the U.S. market
for lighters. China accounts for 58 percent of lighter imports--or 435
million lighters imported into our country every year. Chinese
compliance with the voluntary standard on tests conducted by the CPSC
is less than 30 percent thus assuming these samples are indicative of
the market, at least 304 million of all lighters imported into the
United States from China annually are not in compliance with the
voluntary lighter standards with which American manufacturers comply. A
voluntary standard loses its value to the consuming public if millions
of products are potentially non-conforming.
According to the National Fire Incident Reporting System (NFIRS)
for the period 1999-2002, there were an estimated 290 residential
structure fires that appear to have been caused by malfunctioning
lighters. According to CPSC data from the National Electronic Injury
Surveillance System (NEISS) from 1997-2005, there were an estimated
4,145 emergency department treated injuries resulting from
malfunctioning lighters; mostly burns to the face, hands, and fingers.
From 1997-2005, 362 incident reports related to lighter failures were
received; 65 percent of these lighter failures resulted in fires,
leading to 4 deaths and some serious injuries. The information in these
reports showed that malfunctioning lighters mostly resulted in fire and
explosion hazards. This updated incident data includes four deaths and
additional serious injuries.
In testimony before the Commission on September 14, 2004, Rohit
Khanna, the Project Leader for the lighter rulemaking, testified that
there were an estimated 2.2 deaths per billion lighters sold from
malfunctioning lighters and an estimated 1.1 injuries per million
lighters sold from malfunctioning lighters. With the billion lighters
sold each year, this equates to about 2 deaths each year and about
1,000 injuries each year.
Once the ANPR was voted out, the CPSC staff conducted a study to
estimate the level of conformance of lighters to ASTM F-400 and
revealed that inexpensive and disposable lighters had conformance rates
at or below 40 percent (approximately 91 percent of all lighters in the
market are disposable and 9 percent are refillable). Among countries,
lighters from China had the lowest conformance rate at less than 30
percent. This is consistent with testing conducted by BIC Corporation
in 2002 which revealed a conformance rate of less than 10 percent for
disposable lighters from China and testing conducted by the Lighter
Association in 2004 which revealed a conformance rate of less than 20
percent for disposable lighters from China. Zippo's conformance with
the ASTM F-400 voluntary standard is 100 percent.
It is clear from this data that China and other countries that
export disposable lighters to the United States are simply ignoring
ASTM F-400. One of the problems is the fact that an industry standard
is voluntary and the Chinese have stated that if it is voluntary, they
do not think they have to comply with it. A mandatory standard would
provide the Commission staff with the tools to enforce the provisions
of the standard and compel a high rate of conformance.
There are at least three reasons for a mandatory standard:

A mandatory standard would reduce fires, injuries and death;

If we want consistently high consumer safety standards it
seems reasonable to require importers to adhere to the same
high standards American producers already adhere to,
particularly when they have an extraordinarily large share of
the market and their products are more or less indiscernible to
the consumer from lighters produced by American companies; and

The EU and Canada have both adopted F-400 (ISO 9994) as a
mandatory standard. If the Commission does not adopt F-400, the
U.S. will become a dumping ground for lighters that cannot be
imported into the EU or Canada.

Adoption of this standard as mandatory by the Commission would
enhance consumer safety and greatly decrease the possibility of
exposure to unsafe imported lighters. Zippo urges the Committee to
adopt the Consumer Product Safety Commission Reform Act, S. 2045, with
appropriate amendments.
I thank the Committee again for considering my views.
______

Response to Written Questions Submitted by Hon. Mark Pryor to
Hon. Thomas H. Moore
Civil Penalties
Question 1. One of the complaints about an increased level of civil
penalties is that many entities would hire more attorneys to become
more litigious, and thus less cooperative, with the CPSC. What is your
response to this position?
Answer. We have already had companies hire some of the most
expensive attorneys in Washington to fight us under our current civil
penalty cap. No company wanted to be the first one to draw a million
dollar fine. Once that psychological barrier was broken, companies went
back to their normal way of dealing with us (or ignoring us, as the
case may be). I do not foresee an increase in the cap, even a
substantial one, as having any significant, lasting impact on
companies' willingness to fight us, once they and our staff adjust to
the new regime. I would hope that, if anything, a penalty structure
that shows that Congress means business when it comes to protecting
consumers will make companies more cooperative, not less. I think some
of the bigger companies currently view us as more of a nuisance than a
real check on their corporate behavior. That needs to change.

Question 2. Do you believe this will enable the agency to make
distinctions in the assessment of penalties?
Answer. Yes, most definitely. It will also give us the room to
start assessing penalties for violations of multiple subsections of
section 19 and not fall back, as we have almost exclusively, on failure
to report as the only violation that we pursue. We would be able to
review cases from top to bottom and start enforcing the other
prohibitions in our statutes that we presently have little reason to
pursue because they would not increase the penalty amount that we could
assess. Now, given the low overall penalty amount, if we were to assess
a penalty for multiple violations of section 19, it would have the
effect of lessening the amount of the penalty for the reporting
violation.

Question 3. Some have expressed a concern that these penalties
could be assessed with little more discretion than the current
sentiment of the Commission. This bill requires the CPSC to establish a
rulemaking establishing criteria for their imposition. How would you
foresee this criteria being set?
Answer. We already have an open rulemaking proceeding, spurred by
industry, to formally add criteria to those currently listed in our
statute. I took issue with some of the new criteria that were being
proposed. A copy of the statement that I issued on the draft proposals
can be found at http://www.cpsc.gov/pr/statements.html, under ``Civil
Penalty Factors.'' We could use that proceeding, which is still open,
to flesh out any additional criteria Congress may wish to add to the
statute.

Question 4. Do you believe this should alleviate some concerns?
Answer. I have always thought these concerns were a bit of a red
herring. Industry will not be completely satisfied until it has a
``price list'' showing what we will assess for a particular violation
with a precise list of mitigating circumstances. Then they can really
factor in the cost of compliance versus the benefit of not complying.
The violations we see are as unique as the company, the product, the
hazard, and the people who made the judgments that led us to seek a
penalty. Precision is not possible. But I do welcome Congress's input
on any additional factors it wants us to consider.
Criminal Penalties
Question 1a. In your testimony you describe the requirement of
notice as an impediment to the Justice Department pursuing criminal
sanctions. Would you mind describing how many, if any, actions have
been pursued by the Justice Department and the nature of those actions?
Answer. As best I can determine, there have been only three
criminal cases that stemmed from violations of the Consumer Product
Safety Act since the agency's inception. The first criminal penalty
under this statute was not assessed until 1997, when two men pleaded
guilty to criminal charges stemming from their distribution of volatile
alkyl nitrites. Both men had continued to sell the products after the
Commission had first notified them that the product they were selling
was banned under the CPSA. One man was sentenced to 5 years' probation,
with home detention for 6 months and the other was sentenced to 2
years' probation, 150 hours of community service and fined $2,500.
In 2000, a man was sentenced on charges arising from his removal of
the child safety mechanisms from child-resistant disposable cigarette
lighters. While this violated the CPSA, the criminal charges that were
brought against him were for obstruction of justice and making false
statements to CPSC. This is a tactic that the Department of Justice's
Office of Consumer Litigation must sometimes resort to in order to
obtain criminal convictions for violations of the CPSA. He was
ultimately sentenced on the false statement charge and sentenced to 2
years in prison.
In January of 2002, a man pled guilty to charges stemming from his
importation of counterfeit and substandard electrical products. Once
again the Justice Department proceeded on the basis of false statement
made by the defendant to a CPSC investigator as well as false
statements made on Customs importation forms. He was sentenced to 14
months in prison, with 3 years of supervised release and fined $30,000.
Copies of the relevant press releases can also be found at:

http://www.cpsc.gov/cpscpub/prerel/prhtml97/97167.html

http://www.cpsc.gov/cpscpub/prerel/prhtml00/00101.html

and

http://www.cpsc.gov/cpscpub/prerel/prhtml02/02091.html.

Question 1b. Does the agency initiate these actions?
Answer. The Department of Justice pursues them at our request.

Question 2. In your opinion, are criminal penalties reserved for
the most egregious ``bad actors''?
Answer. Yes. Certainly the requirement that we have to tell someone
they've violated our statute and then catch them at the same violation
again, tends to make it that way for violations of the CPSA. The
criminal violations that we pursue under the Federal Hazardous
Substances Act tend to be situations where we have recalled a product
and the company subsequently resells the recalled product to another
company or where we have seen repeated violations of the same mandatory
requirement by the same company. Since our statutes currently only
provide for misdemeanor charges--criminal fines and no more than 1 year
in jail--the really bad actors currently do not face much in the way of
punishment unless we can find non-CPSC statutory violations, as in two
of the three cases above.

Question 3. You note in your written testimony that the Justice
Department has recommended a two-tiered system. How would you foresee
the Agency utilizing a new two-tiered system?
Answer. I think we would consult informally with the Justice
Department prior to their seeking an indictment and decide in
conjunction with them how to proceed given the evidence and the gravity
of the violations. Because we do not prosecute these cases, we would
necessarily depend on Justice's expertise in similar types of cases.

Question 4. Some have expressed this would have negative effects on
attracting board members and company executives. How would you respond?
Answer. I would hope that prospective Board Members and company
executives would not factor into their employment decision the
probability as to whether they might knowingly or willfully break the
law and what the penalties for such a violation might be. But to the
extent they do, we are all better off if the penalties in our statutes
are strong enough to make such people seek other employment.
Preemption
Question 1. You have noted that the Mattress Flammability Standard
offered new preemptive interpretation. Would you describe your concerns
with this interpretation?
Answer. On January 13, 2005, the proposed rule for the Flammability
(Open Flame) of Mattresses and Mattress/Foundation Sets was published.
The language in the preamble on preemption tracked the language that
had been used in rulemakings under the FFA since the issuance of the
Executive Order in 1996, merely stating the statutory provision without
attempting to interpret it.
A year later, in January of 2006, the Commission released the draft
final mattress rule to the public. Specifically omitted from the public
document was the preemption section of the preamble. All that appeared
in the public document is the title of the section ``N. Executive Order
12988 (Preemption)'' and the words ``[TO BE INSERTED].'' This was the
first public notice from the Commission that there could be a change in
the preemption language. New proposed preemption language (without any
input from my office) was circulated to the Commissioners' offices, but
was not released to the public. On February 1, 2006, I asked my
colleagues to release the proposed preemption language so that the
public would have an opportunity to comment on it. They agreed and it
was put on our website, but not prominently, as I had requested. To the
extent they were aware of it, the public had 2 weeks to comment on this
language before the Commission vote. I had also requested that the
General Counsel's memo on the language be made public, as it was the
underpinning for this new interpretation. This was not agreed to, so
the rationale for the new interpretation was not available to the
public, other than what they could glean from the proposed preemption
language itself.
I believe that the majority's interpretation that the preemption
section of the Flammable Fabrics Act preempted not only non-identical
state regulations (a proposition with which I have no problem) but that
it also preempted many state civil court actions by people seeking to
redress injuries stemming from fires involving complying mattresses,
was unfounded. I saw no evidence that this was what Congress had
intended and saw absolutely no reason to attempt to make this strained
argument after 10 years of silence by the Commission on this point. My
statement on the preemption issue can be found at http://www.cpsc.gov/
pr/statements.html under ``Mattresses.''
It has been said that the preamble is not part of the regulation
and will not appear in the Code of Federal Regulations and thus has no
force or effect. A court may or may not decide to give weight to an
agency's interpretation of such a prevision. I liken a preamble of a
regulation to the legislative history of a statute. It explains, often
in great detail, why the Commission took the action it did in any
particular instance. The Commissioners pay as much attention to the
drafting of the preamble as they do to the language of the regulation
itself. The preamble is the foundation upon which the regulation rests
and a bad foundation can undermine the validity of the regulation. The
preamble is referenced by stakeholders. I often go back to look at
earlier Commission precedents as expressed in the preamble of a
regulation to find the basis for a Commission action. Clearly if the
majority did not feel the preamble carried any weight they would not
have used it to put interpretive gloss on the preemption provisions of
the FFA. What would have been the point?

Question 2. Do you believe the language is S. 2045 adequately
reaffirms the codified preemption language in the CPSA?
Answer. It does not affirmatively state what the Congress's
intention is with regard to the preemptive effect of our statutes on
state civil court actions, except in the case of the CPSA, where
Congress's intent has always been clear. While the language does
prevent further interpretation of the current preemption provisions by
the Commission and the Executive Branch, I am puzzled why it does not
simply state what the preemptive effect of standards or rules under the
FFA, the FHSA and the PPPA are with regard to state court actions. If
the intent is to leave it up to the courts to try to figure out what
the congressional intent is, it does appear to do that. Currently there
are situations where a children's product is regulated under the FHSA,
for example, but the adult version of the product is regulated under
the CPSA. There should be no difference in the preemptive effect of the
regulations affecting those two products, yet that could be the case if
courts attempt to extend a preemption interpretation, similar to that
given the FFA in the mattress rulemaking, to our other statutes.

Question 3. How would you respond to entities worried that this
bill would erase all assumption of preemption under product safety
rules and standards?
Answer. I do not think it does that, but to be honest, I am not
entirely sure what the Clarification subsection does.

Question 4. Do you believe the current preemption gives companies
some assurance of a national protocol?
Answer. Yes with regard to state regulatory actions. What it does
not do is make it clear whether or not a Federal standard is the
ceiling for redress of personal injury cases (and therefore potentially
preventing people who are injured by products that meet that standard
from being able to sue for damages for their personal injuries) or
whether a Federal standard is a minimum safety requirement, or a floor,
thus allowing such lawsuits.
Disclosure
Question 1. Commissioner Moore, some claim that keeping information
secret from the public encourages fuller disclosure by companies. Some
also contend that this legislation would discourage this disclosure.
How would you respond to these contentions?
Answer. I know some argue that being able to provide information to
CPSC and having it kept secret from the public somehow encourages
``fuller disclosure'' by companies than there would be otherwise. Some
point to our Retailer Reporting Model, now being followed by four
companies, as an example of where there is a ``fuller disclosure'' of
information which might discontinue if the 6(b) protections, as they
currently exist, were modified. However, I do not accept these
arguments because the fact is the reporting model was developed to
assist the retailers in complying with their lawful obligation to
report to us and thereby avoid the repercussions that follow a failure
to report.
Under circumstances provided in the statute, companies are
required, by law, to report certain information to the Commission and
to respond truthfully and completely to our information requests.
Companies can keep certain information out of the public eye by
appropriately identifying information such as trade secrets, which they
want kept confidential and the Commission can use the law enforcement
exception to the Freedom of Information Act, if it feels withholding
certain information is necessary. What more assurance companies need
for them to provide the information they are required to provide, I do
not know.
Public safety is our concern, not protecting companies from public
scrutiny, and when there is a chance that there is a product in the
stream of commerce that could hurt or injure someone we must have the
ability to compel companies to tell us about that product and we must
have the ability to quickly inform the public so that the product does
not cause harm. Quick and accurate dissemination of information about
potentially harmful products is essential to protecting the public from
the risk of harm posed by those products. Given the often very
difficult time we have obtaining information from some companies now, I
doubt seriously that the current provisions of 6(b) play much of a role
in encouraging disclosure. Consumers want timely, accurate warnings
about products that may cause harm to their families. We should be able
to provide that information to them in an accurate and expeditious
manner.

Question 2. What, if any, relationship has the CPSC had with
Attorneys General?
Answer. The most common ways in which the CPSC relates with State
Attorneys General is through our Office of Compliance and our Office of
the General Counsel. Interactions with State Attorney General Offices
often involve addressing inquiries related to assistance in prosecuting
state criminal cases, jurisdictional questions, and information
exchange.
Commons sorts of inquiries include:

Requests for assistance in state prosecution of criminal
cases involving alleged arson, child abuse, poisoning, etc.,
where a consumer product might be involved, including requests
to provide CPSC employees as witnesses.

Inquiries on the regulatory authorities of the Commission
versus the police powers of states, particularly with respect
to state laws requiring licensing and insurance for use of low
speed electric bicycles versus the Commission's regulations
concerning the design/performance specifications for these
products.

Inquiries concerning sharing of CPSC accident and
investigation reports with states under authority of section
29(e) of the CPSA and the interplay between that authority and
the requirements of the Freedom of Information Act.

The Commission has also, on occasion, been petitioned by a State
Attorney General's Office to begin a rulemaking and State Attorney
General's Offices often comment on pending rulemaking proceedings. In
the past, these Offices have also joined us in distributing safety
information, alerted us to hazards which have led to recalls, shared
information on a State's safety testing of potentially hazardous
products, jointly announced recalls with us and cooperated with us in
issuing consumer products safety warnings.
______

Response to Written Questions Submitted by Hon. Mark Pryor to
Travis Plunkett and Edmund Mierzwinski
Fast Track Authority
Question 1. Chairman Nord supports giving the CPSC ``fast track''
authority to make voluntary consensus standards into mandatory
standards. Since voluntary standards tend to reflect the lowest common
denominator safety standard, do you support this proposal?
Answer. We have concerns about this proposal because we fear that
manufacturers may ``game the system'' for a variety of reasons:
manufacturers and others representing a specific industry may push
through an intentionally weak voluntary standard that they would want
CPSC to ``rely upon'' to preempt stronger CPSC action that CPSC may be
considering in a rulemaking proceeding; to preempt a stronger state
law; and/or to serve their economic interest by thwarting foreign
competition.

Question 2. What would the effect of adopting an industry standard
be on more restrictive state standards?
Answer. Section 26 of the Consumer Product Safety Act (15 U.S.C.
2075), ``Effect on State Remedies'' provides that when a consumer
product safety standard is in effect and applies to a risk of injury
associated with a consumer product, a State does not have the authority
``to establish or continue to effect any provision of a safety standard
or regulation . . . which are designed to deal with the same risk of
injury associated with such consumer product, unless such requirements
are identical to the requirements of the Federal standard.'' The
provision further provides, however, that a State may establish or
continue in effect a safety requirement that ``provides a higher degree
of protection from such risk of injury'' after the State files a waiver
with the Commission. After notice and comment, and a finding by the
CPSC that the State regulation provides a significantly higher degree
of safety than the Federal regulation and the State regulation does not
unduly burden interstate commerce, CPSC may grant the State a waiver
for a stronger regulation.
Thus, the likely impact of CPSC's reliance upon a weak voluntary
standard would be the preemption of a stronger, more consumer
protective state law. We know of no incidence of a State filing for a
waiver under section 26 of the CPSA.
Corrective Action Plans
Question 1. Currently, corrective action plans (recall procedures)
are determined by a manufacturer. This bill would give the CPSC
authority to approve a corrective action plan it believes to be in the
public interest. What concerns should we have about the current
structure for corrective action plans?
Answer. Virtually all recalls CPSC administers are voluntary
recalls. As such, CPSC negotiates the terms of the recalls with the
recalling entity, most likely the manufacturer. Currently, recalling
entities have vast leverage when negotiating a recall because they have
the ability to sue CPSC over the disclosure of information and because
they can elect the corrective action.
The recent example of the Simplicity Crib recall is a case in
point. CPSC and Simplicity announced the recall of certain models of
simplicity cribs on September 21, 2007, after publicly acknowledging 3
deaths. The recall was conducted because ``drop-side failures result
from both the hardware and crib design, which allow consumers to
unintentionally install the drop-side upside down. When the drop-side
detaches, it creates a gap in which infants can become entrapped.'' \1\
However, at that time, while the recall warned of a severe entrapment
hazard, no corrective action was in place. Unfortunately, the press
release indicated that a repair kit was available, when it was not. An
October 25, 2007 statement from the Commission indicated that the
repair kit ``was now available.'' \2\ Further, we believe that a repair
kit is inadequate and a refund to consumers should have been available
immediately.
---------------------------------------------------------------------------
\1\ CPSC Press Release, ``About 1 Million Simplicity Cribs Recalled
Due To Failures Resulting in Infant Deaths,'' September 21, 2007,
available on the web at http://www.cpsc.gov/cpscpub/prerel/prhtml07/
07307.html.
\2\ CPSC Press Release, ``Repair Kits Ready To Be Sent To Parents
and Caregivers With Recalled Simplicity Cribs,'' October 25, 2007,
available on the web at http://www.cpsc.gov/cpscpub/prerel/prhtml08/
08043.html.
---------------------------------------------------------------------------
This Subcommittee should be concerned that industry has too much
leverage and discretion in selecting and offering corrective action
plans which may not exist or may be entirely inadequate to protect
consumers from harms caused by the recalled product.

Question 2. How should we address these concerns?
Answer. We believe that the most effective way to address these
concerns is to significantly alter the imbalance caused by section 6(b)
of the CPSA and to give CPSC the authority to approve corrective action
plans before they are implemented. We believe that S. 2045 goes a long
way to ameliorating these concerns by the changes made to the CPSA by
the inclusion of sections 7 and 13 within S. 2045. By eliminating a
manufacturer or other entity's ability to sue the agency over the
disclosure of information, this bill vastly decreases the leverage a
recalling entity has over the Commission. Further, by providing that
the Commission must approve a corrective action plan and can deem an
approved action plan ineffective, S. 2045 includes an important
additional step that will seek to ensure that corrective action plans
are adequate and protective of consumers.
Disclosure
Question 1. The current disclosure regime under 6(b) of the
Consumer Product Safety Act provides almost unlimited safeguards for
industry. Many of the consumer groups I have met with have expressed
concern about this structure. Would you mind elaborating about your
concerns for this structure?
Answer. We have one primary concern about 6(b): critically
important safety information is not being disclosed by CPSC to the
American public. This lack of disclosure results in many more people
being seriously injured or even killed by known and preventable
hazards.
For many years, Consumer Federation of America, U.S. PIRG and other
consumer groups have urged Congress to eliminate section 6(b) of the
CPSA. This section of the Act restricts CPSC's ability to communicate
safety information to the public. This secrecy provision is unique to
the CPSC and it prevents the timely release of information about
serious hazards relating to children's and other consumer products.
Under this provision, the CPSC is required to give a company an
opportunity to comment on a proposed disclosure of information. If the
company has concerns about the wording or the substance of the
disclosure, they can object. CPSC must accommodate the company's
concerns or inform them that they plan to disclose the information over
their objections. The company can then sue the Commission seeking to
enjoin them from disclosing the information. Thus, this provision
creates a time-consuming process between CPSC and the affected company,
often serving to delay or deny the release of important consumer safety
information.
Two recent examples highlight the anti-consumer impact of this
provision. First, on October 22, 2007, CPSC staff announced its results
of a special evaluation of consumer lead kits. CPSC staff tested
samples of commonly available test kits on a variety of products
containing different levels of lead. CPSC found that, ``many of the
tests performed using the kits did not detect lead when it was there
(false negatives); some indicated lead was present when it was not
(false positives). Of 104 total test results, more than half (56) were
false negatives, and two were false positives. None of the kits
consistently detected lead in products if the lead was covered with a
non-leaded coating. Based on the study, consumers should not use lead
test kits to evaluate consumer products for potential lead hazards.''
\3\
---------------------------------------------------------------------------
\3\ CPSC Press Release, ``CPSC Staff Study: Home Lead Test Kits
Unreliable,'' October 22, 2007, available on the web at http://
www.cpsc.gov/cpscpub/prerel/prhtml08/08038.html.
---------------------------------------------------------------------------
However, this study fails to mention which lead kits the CPSC
actually tested--a critically important piece of information for
consumers seeking to evaluate which kits to use or avoid and an example
of the absurd limits placed on the agency by Section 6(b). In addition,
the study fails to disclose the threshold lead level that was used as
the reference point for determining false negative test results. This
is critical information for others to assess the technical basis upon
which the CPSC drew their conclusions.
Contrast that process to that of Consumer Reports testing of lead
kits. In the magazine's December 2007 edition, it has information about
results from its recent testing of five home lead-testing kits and
concluded that three of the five kits were useful though limited
screening tools for consumers concerned about lead levels in the
products in their homes. Importantly, the magazine disclosed the names
of all five kits. Such information is vital for parents and families to
have. The CPSC does a disservice to consumers when it fails to make
this important information available to the public.
Second, and even more troubling, is the CPSC's knowledge of
numerous, serious and well documented harms caused by Stand `n Seal, a
spray-on waterproofing sealant for tile grout. According to an October
8, 2007 article in The New York Times, after a new ingredient was added
to Stand `n Seal in the spring of 2005, ``calls from customers,
emergency rooms and doctors started to pour into poison control centers
and, initially in smaller numbers, to the Consumer Product Safety
Commission's own hot line.'' \4\ One child stopping to talk to his
father who was using the sealer, suffered damage to 80 percent of the
surface area of his lungs.\5\ With complaints mounting, the
manufacturer's chief executive told staff answering the company's
consumer hotline not to tell customers that others had reported similar
complaints because doing so ``may cause unnecessary public concern.''
\6\ ``Nearly 3 months passed between the time [the manufacturer] first
received a report of an illness and the official recall by the Consumer
Product Safety Commission, a period during which dozens were
sickened.'' \7\
---------------------------------------------------------------------------
\4\ Lipton, Eric, ``Dangerous Sealer Stayed on Shelves After
Recall,'' New York Times, October 8, 2007.
\5\ Ibid.
\6\ Ibid.
\7\ Ibid.
---------------------------------------------------------------------------
The CPSC officially recalled the product on August 31, 2005. In the
press release, CPSC acknowledged, ``88 reports from consumers who have
had adverse reactions after using the aerosol product, including 28
confirmed reports of overexposure resulting in respiratory symptoms for
which medical attention was sought for coughing, irritation, difficulty
breathing, dizziness and disorientation. Thirteen individuals required
medical treatment, including overnight hospitalization.'' \8\ The
Commission did not disclose critical safety information to the public
and used 6(b) as a shield to maintain the secrecy of these severe
health effects. However, even after the official recall, a hazardous
product remained on the shelves because the replaced product contained
the same hazardous chemicals and many people were severely injured.
---------------------------------------------------------------------------
\8\ CPSC Press Release, ``CPSC, Tile Perfect Inc. Announce Recall
of Stand `n Seal Grout Sealer Due to Respiratory Problems,'' August 10,
2005, available on the web at http://www.cpsc.gov/CPSCPUB/PREREL/
prhtml05/05253.html.
---------------------------------------------------------------------------
We conceptualize our concerns with 6(b) in three ways: (1) Section
6(b) creates a dynamic between CPSC and the industries it regulates
that requires the Commission to request permission from them to
disclose critical product safety information to the public; (2) This
process takes a long time and ultimately delays or denies such
disclosure; and (3) Manufacturers and others have the ability to sue
CPSC over information disclosure, which grants these entities vast
leverage over CPSC.

Question 2. Do you believe this bill strikes a balance to address
those concerns yet protects the economic concerns?
Answer. We view section 7 of S. 2045 as a reasonable compromise.
This section retains section 6(b) and thus provides manufacturers and
others the ability to verify the accuracy of such information. The
timeline for 6(b) is cut in half and the industry's ability to sue the
agency is eliminated. In addition, such information disclosures are
already protected by the Freedom of Information Act (FOIA) which
protects trade secrets and other proprietary information from public
disclosure. S. 2045, as amended and passed by the Senate Commerce
Committee, also includes an internal review process that allows an
entity not desiring disclosure to appeal to the CPSC's General Counsel
and then to the full Commission. We believe, however, that these time
frames should be shortened significantly to allow for more immediate
review and potential disclosure.

Question 3. How would you envision an appropriate disclosure
regime?
Answer. Consumer groups have advocated for years that section 6(b)
should be eliminated entirely. We view this provision as the ultimate
secrecy provision that thwarts the public disclosure of important
information. Further, we believe that existing protections within FOIA
protect manufacturer's economic interests. However, we have conceded
that we would support retaining section 6(b) if the timeframes were
shortened considerably and if the ability of manufacturers and others
to sue CPSC were eliminated. In addition to these elements, we support
a significant exception allowing for the disclosure of information to
protect the public health, as well as requirement that the CPSC create
a searchable adverse event database. This database should contain
consumer complaints and industry reports of safety concerns relating to
toys and other children's products, as well as other consumer products.
______

Response to Written Questions Submitted by Hon. Mark Pryor to
Alan Korn, J.D.
Civil and Criminal Penalties
Question 1. Commissioner Moore stated in his testimony that the
Department of Justice supports a two-tiered criminal penalty system, as
outlined in the CPSC Reform Act, and since the Department of Justice is
responsible for criminally prosecuting the Commission's criminal cases,
Commissioner Moore is in support of this harmonization. What are your
thoughts on the changes to criminal penalties proposed in S. 2045 and
how do you anticipate that this would affect manufacturers' actions?
Answer. Safe Kids did not provide an opinion on this provision in
the bill. We do not feel we have the necessary expertise on criminal
sanctions to be helpful.

Question 2. Some companies have suggested that an increase in
penalties will create a more litigious atmosphere between manufacturers
and the CPSC. The companies claim that as a result voluntary
disclosures will be harmed and more CPSC resources will need to be
dedicated to enforcement activities. Do you believe that increasing
penalties will be detrimental to public safety?
Answer. No, to the contrary. Ultimately, the increased civil
penalties, we believe, will not be detrimental to public safety. Safe
Kids USA believes that increasing the civil penalties will provide an
excellent economic deterrent to bad behavior (or in the alternative,
the increased civil penalties will provide an economic incentive for
companies to do the right thing by not engaging in the prohibited acts
listed in Section 19 of the Consumer Product Safety Act).
In some cases, and in particular when larger companies are
involved, the current $1.8 million cap may not be enough of an economic
deterrent to prevent the company from engaging in an unlawful act. For
example, a company that has $50 million worth of product in the
marketplace may be willing to incur the civil penalty instead of
reporting a defect or injury as required under Section 15 in hopes of
avoiding a recall (failing to report any information required by
Section 15(b) is a prohibited act under Section 19 and is subject to a
civil penalty). Safe Kids has long advocated for an increase in the
civil cap to an amount that better represents a deterrent. We support
the provision in the CPSC Reform Act of 2007 that would increase civil
fines (for all statutes under the CPSC's jurisdiction) up to $250,000
per violation with a cap at $100 million.
______

Response to Written Questions Submitted by Hon. Mark Pryor to
Joseph M. McGuire
Attorneys General
Question 1. Mr. McGuire, I recently received a letter from your
association's president regarding this Act. I very much appreciate this
input. However, I do have a question regarding some positions of the
positions expressed. In Mr. Timmons comments, he expressed that greater
AG enforcement would require manufacturers to expend resources on
litigation instead of advancing product safety. However, he soon after
states that increased penalties would force companies to become more
litigious rather than cooperate for public safety. These positions seem
counter to one another when one advocates a concentration more on
consumer safety than litigation while the other proposes a response of
litigation rather than focusing on consumer safety. How would you
respond to this supposition?
Answer. AHAM and the NAM CPSC Coalition support reauthorization and
many provisions in S. 2045. Unfortunately, several major provisions in
your legislation divert attention and resources from product safety and
toward litigation. The Attorneys General provision eviscerates the
uniformity and application of Federal law and undermines CPSC
procedures. It will result in unnecessary litigation based on
individual Attorneys General interpretation of law and require CPSC
intervention and litigation. We support instead a system in which the
Attorneys General participate in cooperation with and after the
approval of the CPSC when a final determination has been made of
violation of a law. Then, the CPSC may seek or agree to use the
resources and geographical reach of the states.
Similarly, increasing the penalties by hundred fold to a maximum of
$100 million means that many penalty cases now will be of such high
value that companies will be incentivized to litigate them. Under the
present system, penalties, coming after the true penalties of the
costs, burdens, and loss of good will and bad publicity of a recall,
virtually always are settled voluntarily and constitute not only a
financial detriment but a new round of bad publicity. Once the stakes
are raised as high as S. 2045 makes them, firms will find it in their
interest to litigate these penalties.
Question 2. Your testimony recognizes that there is a crisis of
confidence in the safety of consumer products in the United States
marketplace. The testimony also recognizes that this perception has an
adverse effect on U.S. manufacturers. Yet, you oppose attorney general
enforcement of consumer product safety laws, which would help alleviate
the strain on Commission resources and provide consumers with more
confidence in the products they purchase. It seems to me that the
American consumer wants more ``Cops on the beat.'' Why deny the
consumers of this added protection?
Answer. As stated in answer to the previous question, we do support
``more cops on the beat'' through extended use of Attorneys General in
cooperation with, under the guidance of and with the approval of the
CPSC. Creating 50 new mini, CPSCs, however, is a bad policy decision
and will significantly adversely impact U.S. manufacturers and
retailers and divert attention from protecting consumers.
Criminal Penalties
Question. If the Commission is not inclined to aggressively
prosecute criminal violations of its statutes through the Department of
Justice, why would this provision present a problem for any
manufacturer, importer, or retailer, except in the most flagrant and
egregious cases of violations of Federal consumer product safety laws
under Commission jurisdiction?
Answer. We do not oppose increased criminal penalties for egregious
behavior. Your legislation, however, unfortunately lowers the scienter
requirement by eliminating the need for the government to show for
criminal penalties a willful act that occurred after notification by
the Commission. Instead, the much less heightened ``knowing''
requirement applies which is essentially the same as for civil
penalties. This raises serious constitutional issues and potentially
threatens to add within the scope of criminal sanctions a wide variety
of U.S. management and board members who will have very little actual
knowledge and absolutely no criminal intent. It is a misuse,
misapplication and unnecessary extension of the criminal laws which
will not enhance, for example, the need for companies to use safety
circles and other pre-market and post-market mechanisms to evaluate
safety-related complaints.
______

Response to Written Questions Submitted by Hon. Mark Pryor to
Al Thompson
Resource Priority-Recall Effectiveness
Question 1. Mr. Thompson, in your submitted testimony you speak of
the need to speed up recall timelines and create better dissemination
of recall information to the public. Would you mind addressing why this
is a priority for your organization and its members?
Answer. Reducing the timeline for the CPSC to implement a recall is
important to retailers because the safety of consumers is our highest
priority. Once a company and the CPSC have gathered sufficient evidence
to demonstrate that a recall is necessary, we believe the public should
be made aware as quickly as possible. While retailers remove products
from store shelves when potential problems have been identified, the
CPSC actually issues a recall. If a retailer's testing program detects
a problem with a product and notifies the CPSC that a recall is
necessary, it should not take weeks or even months for a recall
announcement to be made by the CPSC.

Question 2. Do you have any ideas on how we might achieve this goal
in the bill?
Answer. S. 2045 will already go a long way to resolve this problem
because it significantly increases resources for the CPSC. In addition
the legislation could be enhanced by requiring CPSC to review its
recall procedures and processes for corrective action plans and report
back to Congress within 6 months of the date of enactment.
Third Party Labs
Question 1. Mr. Thompson, you have also mentioned the need for the
credentialing of labs by the CPSC or an independent third party. You
continue, however, that you are hesitant to support the mandate to use
independent labs. Would you mind discussing the current lab structure
of some of your members' labs?
Answer. A significant number of RILA companies use independent
third-party labs as part of their product safety programs. One retailer
has invested the resources to establish three worldwide testing
facilities, which issue more than 20,000 test reports per year. These
testing facilities include a state-of-the-art lab based in the United
States that employees 27 permanent staff members, many of whom hold
advanced professional degrees. We believe these facilities should be
able to remain part of that company's product safety efforts, and we
welcome the modification in the manager's amendment to create a process
to approve proprietary laboratories. This is particularly important
because increased testing efforts have stretched the capacity of
independent laboratories.

Question 2. How can the American public feel confident in the trust
of a non-independent lab?
Answer. The goal of retailers who invest in proprietary labs is to
provide more assurance of product safety, not to circumvent safety
requirements. We believe the manager's amendment creates sufficient
requirements to demonstrate that a proprietary lab will provide an
equal or greater level of consumer safety as an independent lab. RILA
members have increased their due diligence and safety protocols to
assure product safety and the American public should feel confident
about the products they purchase in stores.
Criminal Penalties
Question 1. Mr. Thompson, you have mentioned that the proposed
criminal penalties would create a less collaborative effort between
your members and the CPSC. However the current law already mandates
some criminal penalties. How does the current law affect business
planning and the collaborative effort with the CPSC?

Question 2. Why would the proposed law be any different?

Question 3. To my knowledge, only one case has been prosecuted
under the criminal statute. This case was a severe case by an extremely
bad actor. Does this historical precedent of the CPSC only taking
action in the most extreme cases provide the comfort under current law?

Question 4. Why would the industry think this criteria would change
under the proposed law?
Answers 1-4. RILA is concerned with the dramatically increased
civil penalties and the reduction in due process for criminal penalties
in the bill. On criminal penalties, current law requires that a person
has knowingly and willfully violated provisions of the Consumer Product
Safety Act, after having received notice of such violation from the
CPSC. S. 2045 would eliminate the willful standard and the requirement
of prior notice, which would expose retailers to criminal prosecution
even though they may not have been aware they were selling a defective
product. It is not uncommon that a retailer is not part of the
information chain between the manufacturer and the CPSC regarding an
unsafe product, and the retailer may not learn of the problem until a
product is officially recalled. Current law would protect the retailer
in this example because the product was not knowingly and willfully
sold. At a minimum, the scienter standard in current law of a knowing
and willful violation should remain, as well as a requirement that a
public notice be made for a recalled product.
Correction Action Plans
Question 1. Currently, corrective action plans (recall procedures)
are determined by a manufacturer. This bill would give the CPSC
authority to approve a corrective action plan it believes to be in the
public interest. Would you mind describing to me the process for how
corrective plans are currently determined?

Question 2. How do we know the public interest is placed before a
company's bottom line?
Answers 1-2. Consumer confidence in products is paramount, and RILA
members work with their suppliers to assure that products are safe.
When a recall is announced, RILA's members promptly remove the product
from the shelf and activate a block on cash registers to prevent the
product from inadvertently being sold.
Brand reputation is critical to a retailer's success and serving
the public interest is a component of brand reputation. Retailers take
many steps to ensure that the products sold are safe for public use,
including detailed contract specifications with suppliers, product
testing, factory audits, and register blocks to prevent a recalled
product from being sold.