[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





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       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:]

       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 
ection (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 
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 
oblem: 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 
 
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.

    ``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-
 
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:
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    \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.

    ``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.

   ``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.

   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
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encyclopaedia_romana/wine/leadpoisoning.html. Accessed March 31, 2004.
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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.
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MD: Williams & Wilkins; 1990.
    \8\ Mendola P., Selevan S.G., Gutter S., Rice D. Environmental 
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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. 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 
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.

                                  
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