[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
         H.R. ___, THE CONSUMER PRODUCT SAFETY ENHANCEMENT ACT

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON COMMERCE, TRADE,
                        AND CONSUMER PROTECTION

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 29, 2010

                               __________

                           Serial No. 111-116


      0Printed for the use of the Committee on Energy and Commerce

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                    COMMITTEE ON ENERGY AND COMMERCE

                 HENRY A. WAXMAN, California, Chairman
JOHN D. DINGELL, Michigan            JOE BARTON, Texas
  Chairman Emeritus                    Ranking Member
EDWARD J. MARKEY, Massachusetts      RALPH M. HALL, Texas
RICK BOUCHER, Virginia               FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey       CLIFF STEARNS, Florida
BART GORDON, Tennessee               NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois              ED WHITFIELD, Kentucky
ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
BART STUPAK, Michigan                JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York             ROY BLUNT, Missouri
GENE GREEN, Texas                    STEVE BUYER, Indiana
DIANA DeGETTE, Colorado              GEORGE RADANOVICH, California
  Vice Chairman                      JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California               MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania       GREG WALDEN, Oregon
JANE HARMAN, California              LEE TERRY, Nebraska
TOM ALLEN, Maine                     MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois       SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas           JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington               TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin             MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas                  MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York          PHIL GINGREY, Georgia
JIM MATHESON, Utah                   STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA M. CHRISTENSEN, Virgin 
    Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE L. BRALEY, Iowa
PETER WELCH, Vermont
        Subcommittee on Commerce, Trade, and Consumer Protection

                        BOBBY L. RUSH, Illinois
                                  Chairman
JANICE D. SCHAKOWSKY, Illinois       CLIFF STEARNS, Florida
    Vice Chair                            Ranking Member
JOHN SARBANES, Maryland              RALPH M. HALL, Texas
BETTY SUTTON, Ohio                   ED WHITFIELD, Kentucky
FRANK PALLONE, Jr., New Jersey       GEORGE RADANOVICH, California
BART GORDON, Tennessee               JOSEPH R. PITTS, Pennsylvania
BART STUPAK, Michigan                MARY BONO MACK, California
GENE GREEN, Texas                    LEE TERRY, Nebraska
CHARLES A. GONZALEZ, Texas           MIKE ROGERS, Michigan
ANTHONY D. WEINER, New York          SUE WILKINS MYRICK, North Carolina
JIM MATHESON, Utah                   MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina
JOHN BARROW, Georgia
DORIS O. MATSUI, California
KATHY CASTOR, Florida
ZACHARY T. SPACE, Ohio
BRUCE L. BRALEY, Iowa
DIANA DeGETTE, Colorado
JOHN D. DINGELL, Michigan (ex 
    officio)
  


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Bobby L. Rush, a Representative in Congress from the State 
  of Illinois, opening statement.................................     1
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................     2
    Prepared statement...........................................     4
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     7
Hon. Lee Terry, a Representative in Congress from the State of 
  Nebraska, opening statement....................................     8
Hon. Janice D. Schakowsky, a Representative in Congress from the 
  State of Illinois, opening statement...........................     9
Hon. Robert E. Latta, a Representative in Congress from the State 
  of Ohio, opening statement.....................................     9
    Prepared statement...........................................    11
Hon. Betty Sutton, a Representative in Congress from the State of 
  Ohio, opening statement........................................    13
Hon. Joseph R. Pitts, a Representative in Congress from the 
  Commonwealth of Pennsylvania, opening statement................    13
    Prepared statement...........................................    15
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan....................................................    17
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................    18
    Prepared statement...........................................    20
Hon. Bruce L. Braley, a Representative in Congress from the State 
  of Iowa, opening statement.....................................    23
Hon. Phil Gingrey, a Representative in Congress from the State of 
  Georgia, opening statement.....................................    23
Hon. Steve Scalise, a Representative in Congress from the State 
  of Louisiana...................................................    24
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, prepared statement......................................   115
Hon. Cliff Stearns, a Representative in Congress from the State 
  of Florida, prepared statement.................................   117

                               Witnesses

Rosario Palmieri, Vice President, Infrastructure, Legal and 
  Regulatory Policy, National Association of Manufacturers.......    26
    Prepared statement...........................................    28
Paul Vitrano, General Counsel, Motorcycle Industry Council.......    36
    Prepared statement...........................................    38
Jim Gibbons, President and CEO, Goodwill Industries International    41
    Prepared statement...........................................    43
Dan Marshall, Handmade Toy Alliance..............................    49
    Prepared statement...........................................    51
Rachel Weintraub, Director of Product Safety and Senior Counsel, 
  Consumer Federation of America.................................    71
    Prepared statement...........................................    73
Steve Levy, American Apparel and Footwear Association............    78
    Prepared statement...........................................    80
Richard Woldenberg, Chairman, Learning Resources, Inc............    84
    Prepared statement...........................................    86

                   Submitted Materials for the Record

Letter of April 27, 2010, from EuroSource LLC to the 
  Subcommittee, submitted by Mr. Pitts...........................   119
List of businesses closed due to CPSIA, submitted by Mr. 
  Radanovich.....................................................   121
Statement of Hon. Denny Rehberg, a Representative in Congress 
  from the State of Montana......................................   123


       H.R. --------, THE CONSUMER PRODUCT SAFETY ENHANCEMENT ACT

                              ----------                              


                        THURSDAY, APRIL 29, 2010

              House of Representatives,    
           Subcommittee on Commerce, Trade,
                           and Consumer Protection,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:10 a.m., in 
Room 2322 of the Rayburn House Office Building, Hon. Bobby L. 
Rush [Chairman of the Subcommittee] presiding.
    Members present: Representatives Rush, Schakowsky, Sutton, 
Stupak, Gonzalez, Matheson, Braley, Dingell, Waxman (ex 
officio), Whitfield, Radanovich, Pitts, Terry, Myrick, Gingrey, 
Scalise, Latta and Barton.
    Staff present: Phil Barnett, Staff Director, Bruce Wolpe, 
Senior Advisor; Michelle Ash, Chief Counsel; Robin Appleberry, 
Counsel; Felipe Mendoza, Counsel; Timothy Robinson, Counsel; 
Lindsay Vidal, Press Secretary; Karen Lightfoot, Communications 
Director; Will Cusey, Special Assistant; Daniel Hekier, Intern; 
Brian McCullough, Minority Senior Professional Staff; Will 
Carty, Minority Professional Staff; Shannon Weinberg, Minority 
Counsel; Jerry Couri, Minority Professional Staff; Samuel 
Costello, Minority Legislative Analyst; and Robert Frisbee, 
Minority FTC Detailee.

 OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Rush. The subcommittee will now come to order.
    The purpose of today's subcommittee hearing is on the 
Consumer Product Safety Commission Enhancement Act, and with 
that said, the Chair wants to welcome all the witnesses and all 
those who are participating here in the audience and I 
certainly want to apologize to those who are forced to stand. 
And with that said, the Chair will recognize himself for 5 
minutes for the purposes of an opening statement.
    I want to thank again all the witnesses for taking the time 
out to offer the Congress your views on the legislation that we 
are shaping. Known as the Consumer Product Safety Enhancement 
Act, the draft law would give the Consumer Product Safety 
Commission new regulatory flexibility to exempt certain 
products, components and materials from lead limits contained 
in the Consumer Product Safety Improvement Act of 2008. The 
draft text affords relief for thrift stores and other retailers 
through an exclusion for certain used children's products from 
the lead limits. It also extends relief to small manufacturers 
and other businesses by allowing the Commission to approve 
alternative test requirements for certain small batch 
manufacturers. And it would require the Consumer Product Safety 
Commission to provide outreach and assistance to small 
businesses and restrict the Commissioner from applying the 2008 
laws to inaccessible component parts.
    The Chair really wants to thank the staff, both the 
majority and the minority staff. Staff had worked hard, 
tirelessly with affected stakeholders to understand better 
their business model, supply chains and special needs. Staff, 
your efforts have been invaluable in enabling us to put 
together the draft that we will be working from today and 
hearing testimony on.
    With that, I look forward to hearing from all the 
witnesses, and I yield back the balance of my time and 
recognize the ranking member, Mr. Whitfield, for 5 minutes.

  OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

    Mr. Whitfield. Well, Chairman Rush, thank you very much, 
and I certainly want to thank all the witnesses for being here 
today to help us make the best decision that we can relating to 
this legislation.
    I am delighted that we are having this hearing because this 
legislation is so important and we know from passing the 
Consumer Product Safety Enhancement Act last year that there 
have been a lot of problems with this legislation. It is 
important that we try to balance the protection of children 
versus also allowing small businesses and others to stay in 
business as long as they are not endangering the lives of our 
children.
    Many of us have received letters and e-mails from 
constituents who have been affected in a very bad way regarding 
this legislation, and there was a young gentleman named Ray 
Curren that lives in my district and he sent an e-mail to me, 
and it was totally unsolicited, but he says, ``The Consumer 
Product Safety Enhancement Act has just about destroyed me and 
my business. As you know, I hand make small lots of historic 
and folk art toys. These are the types of things that your 
grandfather and great-grandfather made for their kids and 
grandkids. I make anywhere from a couple of hundred to 300 or 
400 a year. I can no longer make these items. The cost of 
testing raises the cost of the items beyond the reach of most 
people. I have to give up my craft and my wholesale shows, 
which were the majority of my income. I always use American-
made paint, stains and finishes, which are lead-free, and 
natural finishes such as beeswax and mineral spirits, which are 
food-grade finishes. Now these must be tested and I cannot 
afford it.'' We have had lots of e-mails and letters like that, 
and the reason that I am particularly interested in today's 
hearing is that there are so many issues like the cost of the 
decisional memos, like the lack of exemption authority for the 
consumer protection agency, and hopefully you can provide us 
additional information about the functional purpose petition 
and the absorption exclusion that is in the current law, and 
whether or not we should be looking at the economic impact of 
this legislation on businesses, particularly at this time when 
we are focused on trying to create jobs.
    There is no question that we need to take some action, and 
we do need to make sure that children are not exposed to 
unusually large amounts of lead, and I am convinced that we can 
do so in a balanced way that will protect children and at the 
same time allow small businessmen and women who are making 
products that are not a danger to children to stay in business. 
So I really look forward to this hearing and I look forward to 
working with Chairman Waxman and Chairman Rush and the other 
members of the committee as we take up this legislation and try 
to make it even better, and I yield back the balance of my 
time.
    [The prepared statement of Mr. Whitfield follows:]

    [GRAPHIC] [TIFF OMITTED] T6571A.001
    
    [GRAPHIC] [TIFF OMITTED] T6571A.002
    
    [GRAPHIC] [TIFF OMITTED] T6571A.003
    
    Mr. Rush. The Chair now recognizes the chairman of the full 
committee, the gentleman from California, Mr. Waxman, for 5 
minutes.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman.
    Over 4 years ago, we were getting reports about children 
who were dying of lead poisoning. One boy in particular, 
Darnell Brown, swallowed a metal charm that came with a pair of 
kids' shoes. A year later, two children became comatose and had 
to be hospitalized because of a children's toy that turned out 
to have a toxic drug in it. That same year, millions of cribs 
were recalled for a simple defect that had caused multiple 
infant deaths. The bottom line was clear: Our system for 
keeping children safe was broken. In fact, the entire agency 
charged with policing these products, the Consumer Product 
Safety Commission, was broken and in need of comprehensive 
reform.
    In 2007 and 2008, Congress reviewed the reasons for these 
terrible tragedies and crafted a response. In August of 2008, 
after months of hearings, markets and an extended House-Senate 
conference, the Consumer Product Safety Improvement Act was 
enacted on a broad bipartisan basis. That law was a victory for 
consumers and contained provisions that will enable the CPSC to 
protect children for decades to come. The provisions were 
essential not only to protecting children but also to restoring 
consumer confidence in the toy industry itself.
    Since enactment, the Commission has made strides in 
carrying out the law but some areas of implementation have not 
been smooth. We have heard from a number of stakeholders that 
certain provisions of the law need adjustment. We have taken 
these concerns seriously, and over the past year met repeatedly 
with stakeholders affected by the new law to understand their 
concerns and to craft an appropriate legislative response. 
These stakeholders have included small and large manufacturers, 
small and large retailers, thrift stores and other used-good 
sellers, trade associations, consumer advocates and the CPSC 
itself.
    The draft text that we are here to discuss today is the 
result of this process. It is not a perfect solution and it 
does not represent complete fulfillment of anyone's wish list. 
As our witnesses will testify, however, it is a fair and 
reasoned measure that would grant significant and meaningful 
relief to many stakeholders while still protecting our children 
from dangerous products.
    The text of this draft is not set in stone, and we look 
forward to any and all constructive input that will be offered 
today but the draft does reflect the hard work of months of 
negotiation with stakeholders and a delicately struck balance 
between the need for targeted changes to the law and the need 
to preserve the most important public health accomplishments of 
that law.
    It also reflects a compromise both industry stakeholders 
and consumer and public health groups are willing to support. I 
think this level of consensus is remarkable and I expect that 
today's testimony will go a long way in making clear how 
important these changes are and how important it is that they 
be narrowly crafted.
    I hope that my colleagues will review the draft carefully 
and consider supporting its passage through this committee. Toy 
safety is not now and has never been a partisan issue and it is 
my sincere hope that this committee can unite in supporting 
fair, meaningful relief for businesses while still protecting 
our children.
    Thank you, Mr. Chairman.
    Mr. Rush. The Chair wants to thank the full committee 
chairman.
    The Chair now recognizes the gentleman from Nebraska, Mr. 
Terry, for 2 minutes.

   OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEBRASKA

    Mr. Terry. Thank you.
    After looking over this enhancement bill, I remain 
concerned that we are not adequately addressing any of the 
problems associated with the CPSIA that have been expressed to 
me since its enactment. Don't get me wrong, the bill does 
include some good things like making the 100 PPM lead substrate 
standard prospective when it becomes effective August 14, 2011. 
As we know, under the existing law, that standard would be 
retroactive. I am glad to see that the bill would exclude from 
the phthalate standard inaccessible component parts of 
children's toys and childcare articles. Currently, the law 
excludes inaccessible component parts from the lead substrate 
standard but not from the phthalate standards.
    However, I also have some serious concerns about the CPSC's 
ability to evaluate risk and reasonableness. It is my 
understanding that this bill was ostensibly intended to give 
the CPSC greater flexibility in granting exceptions in 
situations where it is impractical to comply and there is no 
significant risk of injury. As we know, consumer product safety 
commissioners are on record requesting such flexibility. 
Section 2 of this enhancement bill attempts to allow the CPSC 
to grant exceptions but the hurdles are impossibly high. As 
drafted, in order to grant an exception, the CPSC would have to 
find, one, that it is not practical or feasible to manufacture 
the components without lead, two, that the component is not 
likely to be placed in the mouth, taking into account 
foreseeable use and abuse, and three, that there will be no 
reasonable measurable adverse effect on public health or 
safety. The CPSIA currently permits the CPSC to grant 
exceptions if it finds, one, that it won't result in any 
absorption of lead in the human body, and two, that there won't 
be any other adverse impact on health or safety. I don't 
believe that there is a material difference between no 
measurable adverse effect and won't result in any absorption. 
Both are a zero-tolerance threshold. Plus when coupled with not 
likely to be placed in the mouth, taking into account 
feasibility use and abuse, the bill does not give the CPSC the 
flexibility it needs to grant reasonable exceptions, so I would 
like to see a threshold that permits the CPSC to evaluate risk 
and reasonableness.
    I thank the chairman for holding this hearing, and I don't 
have any more time to yield back.
    Mr. Rush. The Chair recognizes the gentlelady from 
Illinois, Ms. Schakowsky, the vice chair of the subcommittee, 
for 2 minutes.

       OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Ms. Schakowsky. Thank you, Mr. Chairman.
    The Consumer Product Safety Improvement Act was a landmark 
piece of consumer protection legislation that has already 
improved the safety of products on the shelves, particularly 
those made for children. The new law is the most significant 
reform of the Consumer Product Safety Commission and its 
responsibilities in decades. It authorized additional resources 
for CPSC so that they will finally have the tools and personnel 
to protect our children from dangerous toys and products. The 
safety net was broken and we fixed it. Implementation of the 
new law, however, was not without a few bumps in the road and 
the industries represented by our witnesses have requested some 
changes to the CPSIA.
    I want to commend Chairman Waxman, Chairman Rush and their 
staffs for crafting a bill that would make the sought-after 
fixes without undermining the important public health mandates 
that we included in the original legislation. For example, the 
CPSC will be allowed to exclude specific products or materials 
from the lead limits but only if such an exemption will have 
``no measurable adverse effect on public health or safety.''
    I am also pleased that the bill does not allow changes to 
provisions I authored that require safety testing for durable 
infant or toddler products for which the CPSIA created strong 
mandatory standards and that can cause considerable harm, as we 
have seen most recently with a high number of crib recalls. I 
want to use that point to reiterate how important the CPSIA was 
to overhauling a system that wasn't protecting our families and 
how important it is to maintain the strength of the law.
    I yield back the balance of my time.
    Mr. Rush. The Chair now recognizes the gentleman from Ohio, 
Mr. Latta, for 2 minutes.

OPENING STATEMENT OF HON. ROBERT E. LATTA, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Mr. Latta. Thank you, Mr. Chairman, Ranking Member 
Whitfield. Thank you for holding this important hearing today 
to discuss the Consumer Product Safety Enhancement Act.
    While this hearing is on revising previously passed 
legislation, I have heard from many of my small businesses, 
manufacturers, employers and employees who feel that many of 
the suggested changes will do more harm than good. It is very 
important to protect our children and maintain strong safety 
regulations. However, we must not craft legislation that 
creates more regulatory burdens. I am concerned that there is 
the strong potential for direct negative effects such as job 
loss, budgetary constraints and business closures in an already 
difficult economic environment.
    At a time of economic hardship and an average unemployment 
rate in my Congressional district of over 13 percent 
unemployment, and in the State of Ohio of 11 percent, we cannot 
pass legislation that will further hinder business. According 
to the National Association of Manufacturers, 2 years ago I had 
the ninth largest manufacturing district in Congress, and today 
my district stands at 20th. Currently, I represent the largest 
manufacturing and the largest agricultural district in the 
State, and I have concerns that any legislation that forces 
more bureaucratic mandates on businesses further hinders and 
hampers economic growth.
    Mr. Chairman, I appreciate you holding a hearing regarding 
a legislation fix on this issue. I look forward to working with 
you and the ranking member on this legislation, and I yield 
back.
    [The prepared statement of Mr. Latta follows:]

    [GRAPHIC] [TIFF OMITTED] T6571A.004
    
    [GRAPHIC] [TIFF OMITTED] T6571A.005
    
    Mr. Rush. The Chair now recognizes the gentlelady from 
Ohio, Ms. Sutton, for 2 minutes.

  OPENING STATEMENT OF HON. BETTY SUTTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Ms. Sutton. Thank you, Mr. Chairman.
    Consumer product safety is not an area we can afford to 
ignore. In the last Congress, I was proud when we passed on a 
bipartisan basis the Consumer Product Safety Improvement Act. 
For far too long, we read story upon story about dangerous 
toys. The Consumer Product Safety Improvement Act has 
strengthened the CPSC and has begun to ensure American families 
are protected from dangerous toys and products.
    Children must be protected from dangerous levels of lead. 
Toys and children's products should be safe before they reach 
the store shelves. Recalling a product after a child is 
poisoned, or even worse, killed, is far too little, far too 
late.
    Now, I understand that there are some products that have 
inaccessible components that include lead such as recreational 
vehicles, and we must use common sense as we make our policies 
to effectively work to protect our children and consumers. The 
Consumer Product Safety Enhancement Act will provide the 
flexibility for the Commission to address such products and 
utilize common sense. Parents do not want their children 
exposed to lead.
    As imports continue to grow, and we should note that 80 
percent of all toys sold in the United States are imported from 
China alone, we have seen some manufacturers show a remarkable 
failure to adhere to basic safety standards. It is a national 
shame and embarrassment when companies and importers pay more 
attention to their costs than our safety and the safety of our 
children and families. That is why I introduced the Foreign 
Manufacturers Legal Accountability Act to protect American 
consumers and businesses from defective products manufactured 
abroad. I look forward to taking that up in this committee.
    The American people deserve and demand that the products 
they are sold are safe and the American people expect that we 
make necessary improvements and clarifications to legislation 
to achieve our goals, in this case, our goal to protect 
children from defective products and lead.
    Thank you, and yield back.
    Mr. Rush. The Chair now recognizes the gentleman from 
Pennsylvania, Mr. Pitts, for 2 minutes.

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN 
         CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

    Mr. Pitts. Thank you, Mr. Chairman. Thank you for holding 
this hearing on the committee print of the Consumer Product 
Safety Enhancement Act.
    I think we all agree that protecting consumers, especially 
children, from unsafe products is a worthy goal of government 
regulation. However, the implementation of the Consumer Product 
Safety Improvement Act has given many cause for concern. We 
have observed a number of unforeseen and negative consequences 
arise that are now putting undue pressure on businesses and 
manufacturers here in the United States and throughout the 
world.
    I received countless e-mails, phone calls and letters from 
businesses in my district and across the United States 
expressing the difficult and damaging effects this law is 
having on them. While this committee print may address some of 
the issues that have been brought to my attention, the language 
is still vague and issues are still left unaddressed. The bill 
needs to be improved. I am still greatly concerned that small 
businesses in particular will not receive the relief they 
deserve.
    Mr. Chairman, I ask unanimous consent to enter into the 
record a letter I received from my constituent, Randy Hertzler, 
who is here today, which expresses his concerns about the 
inconsistencies between the CPSIA and EN71, the European 
standard. He asserts the committee print before us today may be 
helpful but the wording is ambiguous and does not give full 
assurance that his concerns and that of many others will be 
satisfied.
    I do have grandchildren, and I want to be sure their toys 
are safe, but we need to do this in a way that is realistic, 
clear and fair.
    I look forward to hearing from our witnesses today, and I 
appreciate all of them before using, and I ask unanimous 
consent to enter into the record the letter.
    [The prepared statement of Mr. Pitts follows:]

    [GRAPHIC] [TIFF OMITTED] T6571A.006
    
    [GRAPHIC] [TIFF OMITTED] T6571A.007
    
    Mr. Rush. Hearing no objections, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Rush. The Chair now recognizes the chairman emeritus of 
the full committee, my friend from Michigan, Mr. Dingell, for 5 
minutes.

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Dingell. Mr. Chairman, I thank you, and I commend you 
for holding today's hearing. It is a very important matter, and 
I think this will ensure that the committee's work to ensure a 
sound and practicable regulatory system for consumer products 
proceeds according to the regular order.
    As an author of the original Product Safety Act back in 
1972 with my good friend, Mr. Moss of California, I am pleased 
with what the statute has done and I am a longstanding advocate 
for better protections to our Nation's consumers. I 
wholeheartedly support a stronger regulatory framework to 
ensure the safety of consumer products distributed in commerce 
in the United States, particularly those meant for use by 
children. When Chairman Rush, Chairman Waxman, Ranking Member 
Barton, Ranking Member Whitfield and I wrote the Consumer 
Product Safety Improvement Act in 2008, we did so in 
furtherance of this goal. That was a bipartisan piece of 
legislation, and it was a good one, and it came out of this 
committee unanimously, as my colleagues will remember, and 
passed the House unanimously. It then went to the United States 
Senate, and at that point unintended consequences arose and 
they have been exaggerated, exacerbated by the fact that the 
Senate resisted intelligent and necessary changes during the 
discussions in the conference, and this has created severe 
imposition of unnecessary, onerous regulatory burdens on 
businesses, particularly small business, with little 
appreciable positive impact on consumer safety and health. And 
indeed, the Consumer Product Safety Commission has had the 
misfortune to have to toe dance around and to try and write 
regulations that would make sense after the Senate imposed 
changes.
    The legislation we consider today, namely the Consumer 
Product Safety Enhancement Act, seeks to address the 
shortcomings of CPSIA while maintaining the strong protections 
that it affords consumers. CPSEA provides the Commission with 
much-needed regulatory authority, relief for thrift stores, 
assistance for small businesses. I commend you and your fine 
work in crafting a bill to accomplish these goals, and I note 
that CPSEA has support in the form of letters of endorsement 
from the National Association of Manufacturers and the 
Motorcycle Industry Council, the Bicycle Product Suppliers 
Association, Goodwill and the Handmade Toy Alliance.
    Finally, while I will not be seeking amendments to CPSEA, I 
will be seeking the assistance of you and Chairman Waxman and 
your strong assurances for the record that language clarifying 
the meaning of certain terms and provisions in the bill will be 
included in the committee's report. I find a real danger of 
ambiguity in these areas and hope that we can clarify those 
problems.
    I look forward to a productive discussion this morning 
about CPSEA, and yield back the balance of my time.
    Mr. Rush. The gentleman is assured that we will take in 
consideration his request, and staff will work together on 
these matters and other matters that might be of concern to 
you.
    The Chair recognizes the ranking member of the full 
committee, Mr. Barton of Texas, for 5 minutes.

   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Barton. Thank you, Mr. Chairman. I want to thank you 
and Chairman Waxman and Chairman Dingell for agreeing to this 
hearing. I also want to say that normally I don't read my 
opening statement, I speak extemporaneously, but because this 
hearing actually is an action item hearing that is probably 
hopefully going to lead to real legislation, I am going to read 
my statement, which again is something I don't normally do.
    I do want to express my strongest appreciation for agreeing 
to this legislation hearing. I have been asking for this for a 
long time. In fact, I requested a hearing almost as soon as the 
problems with the implementation with CPSIA became apparent. We 
sent letters in January and March of 2009, and then again when 
the subcommittee held a hearing in September with the then 
newly appointed Chairman Tenenbaum. Hearing Chairman 
Tenenbaum's views about the future of the CPSC was an important 
oversight task, but I believe then and still believe today that 
we need the facts about the implementation and the real-world 
effects of CPSIA if we are going to understand what the 
problems are and how to fix them.
    I am very glad that we have an array of stakeholders before 
us today, Mr. Chairman, who can finally have their voices 
heard. Their stories about how the 2008 CPSIA law impact their 
lives and their businesses and their ideas more importantly 
about how to remedy the unintended consequences of this law are 
vital to a real reform effort. I want to thank each of the 
witnesses for being here.
    I would like to highlight, however, that it would also be 
helpful if we could have had the CPSC commission before us 
today. The CPSC is the agency that is charged with enforcing 
the law that we pass. I believe it is necessary to hear the 
regulatory impact from their point of view. Specifically, there 
are provisions in the proposed legislation that were requested 
by the CPSC but which have never been examined during a 
legislative hearing. The witnesses today are not in a position 
to explain why the CPSC requested those provisions.
    We began this journey, Mr. Chairman, back in 2007 in 
response to a spate of calls for recalls for toys with lead 
paint. The law that was passed in response to those requests 
expanded into something that none of us really imagined, or at 
least I didn't. It has turned, in my opinion, in some cases 
into a regulatory and compliance nightmare. Products like 
Native American ceremonial regalia that were never intended to 
be covered have been ensnared by the law. There are now over 
2,500 additional pages and that grow almost every day of rules 
and regulations. Golf clubs, bicycles, leather riding saddles 
as well as educational equipment like children's brass band 
instruments and microscopes, believe it or not, are banned 
hazardous substances under this law. Let me repeat that: a 
brass trumpet and a microscope are banned hazardous substances 
and may not legally be sold for children's use.
    Other objects that are not banned hazardous materials may 
still not be legally sold because they cannot be tested in 
accordance with the law today. For example, an object like a 
child's saddle made of real leather poses no risk of lead 
poisoning, contains no plastic parts, has no phthalates, yet 
the law requires it to be tested for both. As I understand the 
problem, these items are one of a kind and these tests are 
destructive. Once you prove that a saddle isn't made of lead or 
phthalate, the saddle is valueless because you have destroyed 
the saddle. That is ridiculous. Even if an object can be made 
in batches, these tests are cost prohibitive for many small 
businesses.
    I appreciate and support the chairman's willingness to 
provide small businesses with testing cost relief but I am 
concerned about whether the so-called alternative testing 
methods consistent with the CPSIA really exist, and the CPSC 
isn't here to answer that question. If such testing does exist, 
we do not know how long it will take for the CPSC to bless 
these methods by regulation. Further, those companies will 
always have the uncertainty of wondering whether someone might 
challenge the CPSC determination in court.
    To the witnesses before us today, I understand that most of 
you support this bill. I do too generally because it does move 
the ball forward in terms of child safety. I also understand 
that you have ideas that would make the bill even better. I 
want to emphasize to you today this is the chance to let your 
voice be heard. You rarely get a second bite at the apple in 
terms of Congressional hearings and you never get a third. My 
interest here is not to be obstructionist. In fact, Chairman 
Dingell, Chairman Waxman and myself met last week or the week 
before just to discuss this very hearing. We want each of your 
businesses to thrive. We want homemade product makers to go 
back to work. We want to save consumers unnecessary cost. We 
want companies that were forced by this law to lay off 
employees to rehire those laid-off workers. We want our 
children to have a childhood that is filled with children's 
saddles, golf clubs, leather footballs, bikes, brass 
instruments, books, microscopes and telescopes. We want to make 
sure that this fix is done right.
    Mr. Chairman, when we began the children's products back in 
2007 and when we delivered the bill to the President's desk, 
the Democrats and Republicans alike on this committee felt that 
we had done a good thing and we had worked together with the 
stakeholders. From fact-finding letters to oversight hearings 
to drafting sessions to legislative hearings and markups, the 
process under the leadership of Chairman Dingell and yourself, 
Mr. Chairman, was open, transparent, cooperative and 
bipartisan. I hope as we move forward that that same spirit of 
2007 will prevail in 2010.
    With that, Mr. Chairman, I yield back, and I sincerely 
appreciate this legislative hearing and I appreciate the extra 
time to read my statement.
    [The prepared statement of Mr. Barton follows:]

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    Mr. Rush. The Chair thanks the gentleman. You would have 
done a much better job had you spoken extemporaneously. You 
would have been more convincing.
    Mr. Barton. That is probably true, Mr. Chairman.
    Mr. Rush. The Chair recognizes the gentleman from Iowa, Mr. 
Braley, for 2 minutes.

OPENING STATEMENT OF HON. BRUCE L. BRALEY, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IOWA

    Mr. Braley. Thank you, Mr. Chairman, and thank you for 
holding this hearing on product safety, which is one of the 
most important responsibilities that this committee has.
    I just want to echo some of the comments made by the 
chairman emeritus because despite our best efforts, 535 people 
strive valiantly to create perfect legislation and it rarely 
ever happens, and yet that doesn't mean that we give up and 
stop focusing on the problems that real people, real 
businesses, real consumers have in dealing with the impact of 
those bills that we work on every day, and that is why this 
hearing is so significant because it is a reflection of a 
realization that there were continuing problems after we passed 
the last law, and the fact that real Americans are impacted by 
those decisions and we need to work together in a bipartisan 
way to address those ongoing concerns.
    If you look at the organizations supporting the text of 
this legislation, I think you will develop an appreciation of 
why this is such an important achievement: the National 
Association of Manufacturers, Retail Industry Leaders 
Association, Motorcycle Industry Council, Handmade Toy Alliance 
and Goodwill Industries. Like many things we work on, you 
sometimes see people coming together working for the public 
good who don't always line up on the same side of issues. That 
is why it is important for us to listen and learn and continue 
to refine and reflect legislation in that ever-growing pursuit 
of perfection, and that is why I am glad we are having this 
hearing and look forward to the comments of our witnesses, and 
I yield back.
    Mr. Rush. That concludes the opening statements.
    Mr. Gingrey. Mr. Chairman.
    Mr. Rush. Oh, I am sorry. Please forgive me. The Chair 
recognizes the gentleman from Georgia, Dr. Gingrey, for 2 
minutes for the purposes of opening statement.

  OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF GEORGIA

    Mr. Gingrey. Chairman Rush, thank you. I want to thank you 
for calling today's hearing on the committee print of the 
Consumer Product Safety Enhancement Act of 2010.
    As we begin today's hearing, I would also like to thank you 
for postponing last week's subcommittee markup on this bill so 
we could have this opportunity to move the legislation through 
regular order.
    Ultimately, I believe that we all agree on the goal of 
ensuring that the products purchased by consumers can be used 
safely. That is why after concerns arose in 2007 this 
subcommittee and Congress as a whole acted swiftly to enact the 
Consumer Product Safety Improvement Act of 2008. However, since 
the law was enacted, we have been faced with a number of 
unintended consequences due to the law's implementation. From 
legislation that was only 63 pages long, the Consumer Product 
Safety Commission now has a set of regulations that are 2,500 
pages long. Clearly, some of the products that will be 
subjected to the regulation under this bill pose no threat to 
children. Due to the testing methods that will be adopted, 
children will not have the ability to purchase a baseball mitt, 
a brass musical equipment or even a microscope to be used in a 
classroom, as the ranking member just testified.
    If our end goal is to eradicate lead from the products that 
parents buy for their children, then we may also be sacrificing 
at the same time the promotion of exercise, appreciation of the 
arts and STEM education in the process. That was not the 
intention of the bill that was signed into law back in 2008, 
and we need to work to correct it to keep the safety of our 
children in mind but to do in a practical way.
    Throughout the 111th Congress, my Republican colleagues on 
the subcommittee have consistently urged that we make 
substantive improvements to CPSIA in order to provide relief to 
the small businesses--thank goodness some of them are here 
today as witnesses--who are being negatively affected by this 
law. However, I fear in the same way that we created a number 
of unintended consequences through CPSIA, we will be making 
some of the errors through this current legislation. While I 
believe that this bill that we will be discussing today does 
make some needed improvements that are long overdue, we are 
missing the opportunity to be able to do more to rectify the 
unintended consequences presented by this law.
    I look forward to hearing the testimony from each of you 
today so we can work to improve upon this law, and I yield 
back. I see I have gone a little bit over my time, and I thank 
you for your indulgence, Mr. Chairman.
    Mr. Rush. The Chair now recognizes the gentleman from 
Louisiana, Mr. Scalise, for 2 minutes.

 OPENING STATEMENT OF HON. STEVE SCALISE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Scalise. Thank you, Mr. Chairman. I am glad that our 
subcommittee is finally having a hearing on the Consumer 
Product Safety Enhancement Act passed last Congress and the 
legislation before us today.
    It is important that we continue to examine the safety of 
children's products. We have an obligation to ensure that all 
consumers are properly protected. At the same time, we also 
have an obligation to debate and pass smart, effective 
legislation. To do this, we must find the appropriate balance 
between protecting consumers and protecting small businesses 
and manufacturers and the people who work for them.
    Mr. Chairman, I was not a Member of Congress when our 
subcommittee first took up the Consumer Product Safety 
Improvement Act in 2007, which is one reason I am glad that the 
subcommittee has decided to pursue regular order by having this 
hearing before we hold the markup. I am sure we have all heard 
the horror stories and the complaints that have surfaced as 
this law has been implemented. We have all been made well aware 
of the severe unintended consequences and the significant 
burdens that this law has placed on manufacturers and small 
businesses, not just from national associations or corporations 
but from small businesses and mom-and-pop stores in our 
district that are struggling under the burdens and regulations 
of this law including some that have closed as a result of 
those unintended consequences. The testing requirements and 
compliance and administrative costs are having devastating 
effects on the businesses that produce the wide variety of 
products that now fall under the jurisdiction of CPSIA, many of 
which pose no risk or injury to a child and were never intended 
for children in the first place.
    Unfortunately, the problems don't end there. The complex 
regulations being implemented are further adding to the plight 
of manufacturers and businesses. A 63-page law has produced 
almost 2,500 pages of rules and regulations and the CPSC is not 
even done writing all those yet. Not only am I troubled by the 
effects that CPSIA is having on small businesses, but I am also 
concerned about its effect on the CPSC. The regulations, 
testing and compliance procedures that CPSC is now responsible 
for are substantial. I hope that we have not forced the CPSC to 
sacrifice its obligations in other areas of product safety or 
prevented the Commission from properly doing its job. This is a 
particular concern for me and my constituents because the CPSC 
is currently involved in an ongoing investigation of toxic 
Chinese drywall. I hope that CPSIA is not keeping CPSC from 
providing answers to the thousands of homeowners across the 
country that have fall victim to toxic Chinese drywall.
    I would like to ask the CPSC these questions but their 
absence at today's hearing is conspicuous. How can we fully 
understand the implications of CPSIA and the bill before us 
today if we cannot question the agency that is in charge of 
implementing the law? I hope that we will have the opportunity 
to pose these questions to the CPSC.
    I do look forward to hearing from the panelists that are 
here before us today. I am particularly interested to hear if 
they fully support the provisions in this bill or if they are 
just going along in hopes that they will not be hurt by the 
final version.
    Thank you, and I yield back.
    Mr. Rush. That concludes the opening statements of the 
members of the subcommittee, and now it is my pleasure to 
introduce to you the witnesses who are at the table this 
morning. Seated at my left is Mr. Rosario Palmieri. He is the 
vice president of infrastructure, legal and regulatory policy 
for the National Association of Manufacturers. Next to Mr. 
Palmieri is Mr. Paul Vitrano. He is the general counsel of the 
Motorcycle Industry Council. Seated next to Mr. Vitrano is Mr. 
Jim Gibbons. He is the president and CEO of Goodwill Industries 
International. Seated next to Mr. Gibbons is Mr. Dan Marshall, 
who is representing the Handmade Toy Alliance. And next to Mr. 
Marshall is one Ms. Rachel Weintraub, who is the director of 
product safety and is the senior counsel for the Consumer 
Federation of America. And next to Ms. Weintraub is Mr. Steve 
Levy. Mr. Levy is representing the American Apparel and 
Footwear Association. And lastly, seated next to Mr. Levy is 
Mr. Rich Woldenberg. He is the chairman of Learning Resources 
Incorporated.
    The Chair wants to thank you again for coming. It is the 
policy and practice of this committee to swear in the 
witnesses, so would you please stand and raise your right hand?
    [Witnesses sworn.]
    Mr. Rush. Now we will allow the witnesses to have 5 minutes 
for opening statements and we will begin with Mr. Palmieri.

TESTIMONY OF ROSARIO PALMIERI, VICE PRESIDENT, INFRASTRUCTURE, 
     LEGAL AND REGULATORY POLICY, NATIONAL ASSOCIATION OF 
   MANUFACTURERS; PAUL VITRANO, GENERAL COUNSEL, MOTORCYCLE 
  INDUSTRY COUNCIL; JIM GIBBONS, PRESIDENT AND CEO, GOODWILL 
INDUSTRIES INTERNATIONAL; DAN MARSHALL, HANDMADE TOY ALLIANCE; 
    RACHEL WEINTRAUB, DIRECTOR OF PRODUCT SAFETY AND SENIOR 
 COUNSEL, CONSUMER FEDERATION OF AMERICA; STEVE LEVY, AMERICAN 
   APPAREL AND FOOTWEAR ASSOCIATION; AND RICHARD WOLDENBERG, 
               CHAIRMAN, LEARNING RESOURCES, INC.

                 TESTIMONY OF ROSARIO PALMIERI

    Mr. Palmieri. Thank you, Chairman Rush, Ranking Member 
Whitfield and members of the subcommittee, I appreciate the 
opportunity to testify today about the Consumer Product Safety 
Enhancement Act on behalf of the National Association of 
Manufacturers, or NAM.
    We are the Nation's largest industrial trade association 
representing manufacturers in every industrial sector in all 50 
States. We have a presence in every Congressional district, 
providing good high-paying jobs. The United States is the 
world's largest manufacturing economy, produces $1.6 trillion 
of value, or 11-1/2 percent of GDP, and employs nearly 12 
million Americans working directly in manufacturing.
    On behalf of the NAM, I wish to express support for the 
Consumer Product Safety Enhancement Act, or CPSEA. 
Manufacturers of consumer products and their component parts 
are committed to producing safe products. In 2008, in the wake 
of intolerance lapses in children's product safety, the 
Consumer Product Safety Improvement Act was passed. The NAM 
supported provisions in that law that would give the CPSC staff 
more staff and financial resources to deal with the dramatic 
rise in imported consumer products and globalized supply 
chains.
    The implementation of that law, however, has not been 
smooth, and significant unintended consequences have cost 
manufacturing jobs in industries producing safe products. The 
CPSEA that we are here to discuss will begin to eliminate 
several of those unintended consequences. Currently, products 
that present no risk to children from lead content like 
bicycles, motorcycles, ATVs and snowmobiles have been 
effectively banned for sale. This legislation would amend the 
exclusion process to allow these products to once again be sold 
and be affordable. The NAM and its member appreciate your 
agreement to further define critical words in the legislation 
such as ``practicable'' and ``measurable adverse impact'' and 
committee report language to give the CPSC the clear direction 
to apply reason, common sense and sound analysis to decisions 
about granting exclusions. The CPSC must be able to review 
petitions for exclusion immediately upon passage of this bill. 
Any delay or necessity for the CPSC to write new rules to 
govern this process could put more manufacturing jobs at risk. 
It took the CPSC 6 months to produce the rule for the exclusion 
process the first time. We cannot wait that long for relief 
after passage of this bill. Words matter and definitions matter 
in legislation.
    Recently the CPSC staff has presented extremely problematic 
interpretations of words from the original Act that were not 
intended by Congress. In a first draft of rules meant to 
interpret the definition of children's products, they took the 
plain language of the CPSC of ``designed or primarily intended 
for children'' and turned it into ``designed and commonly 
recognized as intended for a group of users constituted by a 
significant proportion of children.'' This could have resulted 
in items intended for general use to be inappropriately 
considered as children's products and created new, unnecessary 
testing burdens, and also with the so-called 15-month rule they 
have turned the phrase ``reasonable testing program'' into 
anything but reasonable and are proposing to dramatically 
increase the testing burden for manufacturers. We encourage you 
to give clear direction and definition to what the CPSC must do 
to the amended exclusion process.
    This bill is also helpful in a number of other areas. It 
recognizes that a component part can present no risk to a child 
if it is inaccessible. It would extend similar treatment to 
inaccessible phthalates, as the original Act did for 
inaccessible lead and relieve those parts from the content and 
testing requirements. The legislation also recognizes dramatic 
disruptions to the supply chain from retroactive application of 
lead content limits and applies future reductions prospectively 
as recommended by the CPSC. It will also allow manufacturers 
and retailers to continue to donate safe products to charities, 
and you will hear from Goodwill Industries shortly.
    Also, the CPSEA does not attempt to expand the CPSC's 
authority unnecessarily, regulate undefined new threats or 
reopen debates from the enactment of the 2008 legislation. This 
bill is urgently needed, and delays associated with such 
controversial provisions could prevent needed relief from 
coming in time to preserve manufacturing jobs that have been 
hard hit in this recession.
    Thank you for your efforts to correct these and other 
unintended consequences of the Consumer Product Safety 
Improvement Act. I urge swift passage of the CPSEA to begin 
those corrections and to preserve critical manufacturing jobs.
    Thank you, and I will be happy to answer any questions.
    [The prepared statement of Mr. Palmieri follows:]

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    Mr. Rush. Thank you.
    Mr. Vitrano, you are recognized for 5 minutes.

                   TESTIMONY OF PAUL VITRANO

    Mr. Vitrano. Chairman Rush and distinguished members of the 
subcommittee, thank you for the opportunity to testify this 
morning on the need for amendments to the Consumer Product 
Safety Improvement Act. I am Paul Vitrano, general counsel of 
the Motorcycle Industry Council. MIC is a not-for-profit 
national industry association representing nearly 3,000 
manufacturers and distributors of motorcycles and all-terrain 
vehicles, motorcycle, ATV and recreational off-highway vehicle 
parts and accessories and members of allied trades.
    The lead provisions of the CPSIA were primarily intended to 
protect children from ingesting lead from toys. However, it has 
had unintended consequences and has created an unsafe situation 
for youth ATV and motorcycle riders. The Act has effectively 
banned the sale of age-appropriate youth vehicles because of 
small amounts of lead that are critical to the functionality of 
certain components such as engine casings and suspension 
systems. These smaller, lighter, speed-restricted models have 
been specifically designed for youth riders with the goal of 
keeping them off of larger, faster, adult-sized units.
    CPSC has acknowledged that the ban on these youth models 
creates a compelling safety issue because it likely will result 
in younger children riding larger and faster adult-sized 
vehicles. CPSC's studies show almost 90 percent of youth 
injuries and fatalities occur on adult-sized ATVs. On the other 
hand, CPSC's scientists acknowledge that the presence of small 
amounts of lead in metal alloys used in these youth models does 
not present a health hazard to children.
    For more than a year, MIC, its members, their dealers and 
many of the millions of Americans who safety and responsibly 
ride their off-highway vehicles with their children have urged 
Congress to amend the Act to stop this unintended ban on youth 
models. Together, these constituents have sent over 1 million 
e-mails and letters and made hundreds of calls and personal 
visits to Capitol Hill seeking a legislative solution for three 
commonsense reasons.
    First, the lead content in metal parts of ATVs and 
motorcycles poses no risk to kids. Second, everyone agrees that 
the key to keeping youth safe on ATVs and motorcycles is having 
them ride the right size vehicles. The ban has resulted in what 
CPSC correctly describes as ``a more serious and immediate risk 
of injury or death'' than any theoretical risk of lead exposure 
from these products. Finally, the unintended ban is 
significantly harming the economy and costing jobs, and if not 
corrected will result in about $1 billion in lost economic 
value in the retail marketplace every year.
    Congress never intended to ban youth-model vehicles when it 
passed the CPSIA. Moreover, CPSC Chairman Tenenbaum and the 
other commissioners have asked Congress to provide the 
Commission with flexibility to grant exceptions from the lead 
content provisions, specifically noting the need to address 
youth ATVs and motorcycles.
    We appreciate the efforts that this committee is taking to 
deal with the unintended consequences of this Act. We already 
have submitted evidence to CPSC that we believe is sufficient 
to obtain exceptions for youth ATVs and motorcycles under 
section 2 of the proposed bill. Ultimately, however, CPSC will 
have to interpret that language to determine whether to grant 
an exception for our products. That is why we strongly urge the 
committee to provide as much clarity as possible in developing 
a legislative solution so CPSC will have no doubt that Congress 
intends to assure the continued availability of youth vehicles.
    Throughout our discussions, we have encouraged the 
committee to include statutory language to provide CPSC with 
explicit guidance. In the absence of such language, however, it 
is critical that there be report language accompanying the bill 
that defines the terms ``practicable'' and ``no measurable 
adverse effect'' in section 2.
    In closing, MIC and its members support section 2 of the 
CPSEA with the accompanying report language that has been 
proposed. We also would welcome additional explicit guidance to 
CPSC to grant exceptions for youth ATVs and motorcycles. We 
urge Congress to complete its work, pass this bill and help 
solve the unintended consequences of the CPSIA. Thank you.
    [The prepared statement of Mr. Vitrano follows:]

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    Mr. Rush. The Chair now recognizes Mr. Gibbons for 5 
minutes.

                    TESTIMONY OF JIM GIBBONS

    Mr. Gibbons. Good morning, Chairman Rush and Ranking Member 
Whitfield and all the members of the subcommittee. I want to 
thank you for giving Goodwill Industries International an 
opportunity to talk with you this morning. My name is Jim 
Gibbons. I am the president and CEO of Goodwill Industries 
International, and we really do appreciate what you are doing 
and how you are listening to your constituents and specifically 
your constituents from your local Goodwills that are in your 
community that make up a workforce that has grown through 2009 
by almost 3,000 people even in this trying time, and that 
workforce and the Goodwill system served nearly 2 million 
people in your communities and mine.
    Goodwill is made up of 159 local community-based 
organizations throughout the United States, and many of you are 
familiar with Goodwill and our 2,400 stores. Our unique 
business model that leverages a donated good retail model to 
create employment employees for those 90,000-plus people and to 
serve those two million people throughout America is a unique 
model that really relies on the generosity of individuals to 
donate to Goodwill and each unique donation is a unique product 
that then enters into the retail space and provides and is 
transformed into both employment and resources to fund 
employment, training and other social services at the very 
local level. But the uniqueness of our model and that of other 
human service organizations that use donated goods retail model 
to fulfill their mission such as the Salvation Army, and 
Goodwill and the Salvation Army are the two largest human 
service providers that use a donated goods retail model, are 
totally tied to this one-at-a-time contribution, and for 
Goodwill, that is 60 million donation drop-offs a year, and 
because of that uniqueness and the uniqueness of every 
donation, we support section 3 of the Consumer Product Safety 
Enhancement Act because we think it truly drives the clarity in 
the legislation to allow us and other organizations like us to 
work with the CPSC in a very effective and meaningful way for 
implementation.
    We have worked closely with CPSC over the years, and even 
before the requirements were placed on us legislatively for the 
recall process, we worked hand in hand with CPSC for them to 
train our people, to work with our people on compliance so that 
we build a recall capability strongly throughout our network, 
and to demonstrate and to really act on our values of 
protecting the families that shop at our stores and the people 
that we serve. That commitment to safety along with section 3 
of the Consumer Product Safety Enhancement Act together we 
believe will allow the proper clarity for us to provide safety, 
to work with the Consumer Product Safety Commission in a very 
effective way, and to serve a growing need in communities 
because of today's economy where more and more people are 
knocking on our doors in your communities and communities 
around the country for services, whether that is due to 
dislocation or an industry leaving their neighborhood or for 
the young woman who is a mother of three with a high school 
education that needs those services so she can skill up to be a 
producing member of our communities.
    So we support section 3 of the draft legislation and we 
believe it will drive the necessary clarity for us to full the 
intent of safety and still provide the excellent human services 
that are needed in a pretty tough economy.
    So thank you very much and I will gladly answer any 
questions.
    [The prepared statement of Mr. Gibbons follows:]

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    Mr. Rush. The Chair now recognizes Mr. Marshall for 5 
minutes.

                   TESTIMONY OF DAN MARSHALL

    Mr. Marshall. Hello. My name is Dan Marshall. I am the 
founder and vice president of the Handmade Toy Alliance. The 
HTA represents 435 small businesses affected by the unintended 
consequences of the CPSIA. Thank you for the opportunity to 
speak today.
    My wife Millie Adelshime and I own Peapods Natural Toy 
Store in St. Paul, Minnesota. For the past 12 years, we have 
supported our family selling cloth diapers, baby carriers and 
wood toys, many of which are handcrafted by artisans in the 
United States. I am here today with fellow HTA board members 
Jolie Fay of Skipping Hippos in Oregon and Randy Hertzler of 
euroSource in Pennsylvania.
    When Congress first spoke of toy safety legislation, we all 
applauded your efforts. As we learned the details of the actual 
law, however, we realized that it applied not just to companies 
like Mattel that had betrayed the public's trust but would 
apply broadly to all children's products and effectively outlaw 
many small family businesses, not because our products were 
unsafe but because we simply could not afford the mandatory 
third-party testing and labeling requirements which 
disproportionately affect small batch manufacturers and 
specialty retailers.
    The deadline for third-party testing is February 10th of 
next year. After that point, our member businesses face 
extinction. Although many of us have already paid for XRF 
testing of our products, we simply cannot afford to pay for the 
services of a CPSC-certified lab. For that reason, the HTA has 
endorsed the Consumer Product Safety Enhancement Act. The 
provisions of this bill, which allow alternative testing 
methods for small batch manufacturers, are imperative to the 
survival of our members. We hope that it can proceed through 
this committee, the House and the Senate as quickly as 
possible.
    However, we have made it clear that we have two primary 
concerns regarding the language of this bill. First, we desire 
clarity and simplicity in the definition of ``alternative 
testing method.'' We believe the standard for small batch 
manufacturers should be the same reasonable testing methods 
applicable to non-children's consumer products under the CPSIA. 
Leaving ``alternative testing method'' ambiguous places new 
rulemaking burdens on the CPSC and extends the uncertainty 
about compliance for HTA businesses.
    We are willing and able to work with the CPSC through this 
additional rulemaking process and appreciate the opportunity we 
have had already to work with them but we feel that more 
flexible language would greatly simplify the standard. In 
particular, we would like the committee report language, or 
preferably the bill itself, to stipulate, one, that small batch 
toy makers be exempted from third-party testing for ASTM 
compliance. These destructive tests cost $200 to $350 per toy, 
which is a significant impediment to small batch toy makers; 
two, that the CPSC allow the use of XRF testing as an 
alternative testing method for lead in paint, lead in substrate 
and other mineral content standards; three, that EN-71 testing 
certification qualify as an alternative testing method. This 
provision is critical for preserving access to quality European 
children's goods and removing the regulatory trade barrier 
created by the CPSIA. And four, that small batch manufacturers 
be fully exempted from batch labeling requirements. Even with 
these stipulations, we do fear that non-business hobbyists and 
crafters will lack the resources and understanding to fully 
comply with the law.
    Our second primary concern with the bill pertains to the 
definition of small batch manufacturer. In particular, we are 
concerned about the $1 million company revenue cap. We feel 
that this limit should either be removed altogether or should 
be based only on income generated by the manufacturer or 
importer of children's products without including other 
unrelated business income. If this limit is not changed or 
removed, we fear that this committee will continue to hear from 
constituents wondering why specialty products like adaptive 
toys for children with disabilities are no longer available.
    Finally, we have long argued that meaningful reform of the 
CPSIA should grant the CPSC the authority to make adjustments 
to the law based on risk analysis. In particular, we would like 
the CPSC to be given the flexibility to adjust certification 
requirements based on the age of a product's intended user and 
the risk of injury that that product poses.
    In conclusion, on behalf of our members, I would like to 
thank this committee for addressing this important issue and 
urge you to quickly pass the CPSEA and meaningful reform of the 
CPSIA. Thank you very much.
    [The prepared statement of Mr. Marshall follows:]

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    Mr. Rush. Ms. Weintraub, welcome back to the subcommittee, 
and you are recognized now for 5 minutes.

                 TESTIMONY OF RACHEL WEINTRAUB

    Ms. Weintraub. Thank you very much. Chairman Dingell, 
Chairman Rush, Representatives Barton and Whitfield, thank you 
and other members of the committee. Thank you very much for 
inviting me here today. I am Rachel Weintraub, director of 
product safety and senior counsel with the Consumer Federation 
of America. CFA is a nonprofit association composed of over 300 
State and local pro-consumer groups that was founded to advance 
the consumer interest through education and advocacy. I offer 
this testimony on behalf of CFA as well as Consumers Union, 
Kids in Danger, the National Research Center for Women and 
Families, Public Citizen and the U.S. Public Interest Research 
Group.
    In 2008, the bipartisan Consumer Product Safety Improvement 
Act passed overwhelmingly in both the House and Senate. Before 
this law passed, Congress undertook at least a yearlong 
deliberative process to consider the implications of this Act. 
There were approximately 15 hearings and markups in the House 
and Senate covering issues and products related to the CPSIA 
and a conference in regular order between both chambers of 
Congress. The resulting law, the CPSIA, will make consumer 
products safer by requiring that toys and infant products be 
tested before they are sold and by practically banning lead and 
phthalates in children's products. This law also authorizes the 
first comprehensive publicly accessible consumer complaint 
database, gives the CPSC the resources it needs to protect the 
public such as enabling it to hire additional staff who do the 
work at the agency and increase civil penalties. The CPSIA's 
passage came in the wake of a record number of recalls of 
hazardous products from the market that injured and killed 
vulnerable consumers and a weakened federal oversight agency 
that failed in its meager efforts to protect the public's 
health and safety.
    Consumers believe that the products they buy for their 
children should be safe. Many consumers believed that some 
entity issued stamps of approval for products before they were 
sold in a store. However, that was never true. The CPSIA 
significantly changes the reactive nature of the CPSC by 
requiring that children's products subject to mandatory 
standards be tested for safety before they are sold.
    The Consumer Product Safety Enhancement Act was drafted in 
response to requests for flexibility and exemptions from some 
of CPSIA's provisions raised by various entities. The consumer 
community, which has strongly supported the CPSIA, believes 
that any changes made to the CPSIA must not weaken product 
safety standards and must not weaken public health protections. 
The current draft of the CPSEA grants CPSC more flexibility in 
decision making and provides additional assistance to 
manufacturers. However, overall, it does not appear that the 
public health will be harmed. We do not oppose the current text 
of the CPSEA.
    The functional-purpose exemption in section 2 contains a 
three-part test for manufacturers to seek exemptions from lead 
requirements. Each of these prongs is necessary to protect the 
public health. These criteria should not be weakened in any 
way.
    Section 3 of the bill includes exemptions for thrift stores 
and other retailers. While this goes quite far in exempting 
these products from the lead limits of the CPSIA, the provision 
includes necessary limitations that does not allow exemptions 
for certain high-risk products. We could not support any 
weakening of this provision, either.
    The special provisions for small businesses include 
allowing certain businesses to be exempt from third-party 
testing when the Commission finds that reasonable testing 
methods assure compliance with relative safety standards. We 
also could not accept any weakening of this provision.
    Despite the delicate balance that the CPSEA achieves, 
however, there have been two proposals offered by others that 
if implemented would serve to considerably weaken public 
health. They would open a series of gaping loopholes in the 
CPSIA that allow more lead into a host of toys and other 
products. These proposals are not included in the bill and we 
would oppose any inclusion of them in any legislation.
    First, some have argued that the CPSIA should not apply to 
children's products for children 12 years and younger but 
rather should cover those only intended for children six and 
younger. This approach was rejected by Congress when it passed 
the CPSIA. Congress embraced the belief that there is in fact a 
shared toy box, and as a mother of three children, I see it 
every single day. Thus, the reality that children's toys and 
products are often shared by children within a family plus the 
fact that many within the industry are already complying with 
the higher age standards requires the scope of the CPSIA to 
remain as is. And second, some have proposed that a risk 
analysis be applied for regulating lead in products. Requiring 
the CPSC to conduct risk analysis for lead is not acceptable. 
It would reverse the presumption for safety. It would mean a 
return to the state of the law before CPSIA was passed, and 
this has been rejected by Congress and by consumers previously 
as not being sufficiently protective of public health and far 
exceeds the flexibility that the CPSC requested to regulate 
lead.
    Lead is a well-documented neurotoxin that has a wide range 
of effects on a child's development including delayed growth 
and permanent brain damage. In the rare instance that 
children's products require lead, the CPSEA provides for a 
targeted exemption for functional purpose. This exemption is 
tightly drafted to ensure that children remain protected from 
harms of lead exposure.
    The proposed CPSEA appears to carefully balance two 
distinct schools: to uphold the safety protections provided in 
the CPSIA while seeking to accommodate the adamant request by 
some stakeholders to alter certain provisions. This fine 
balance can easily be destroyed if the limited public health 
protections in the bill are removed or narrowed.
    OK. I have one final sentence. Thank you. Our organizations 
would oppose any alteration of this legislation that would 
loosen product safety standards and once again leave consumers 
and their families vulnerable to unsafe products. Thank you.
    [The prepared statement of Ms. Weintraub follows:]

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    Mr. Rush. The Chair recognizes Mr. Levy for 5 minutes.

                    TESTIMONY OF STEVE LEVY

    Mr. Levy. Good morning, Chairman Rush, Ranking Member 
Barton, Ranking Member Whitfield, Vice Chair Schakowsky. My 
name is Steve Levy. I am the director of operations for Star 
Ride Kids. We are a children's wholesaler based on New York. 
Today I am speaking on behalf of the American Apparel and 
Footwear Association, the AAFA. I would like to ask the 
committee's permission to enter my full statement into the 
record. In the written comments we have laid out specific 
recommendations for the proposed amendments. Right now I am 
just going to take a little bit of a broader look.
    Our association, the AAFA, represents over 600 apparel and 
footwear manufacturers and wholesalers. The majority of 
children's clothing and footwear sold in this country each year 
comes from companies in our association. Although we have 
several large companies in our group, many of our members are 
what the Small Business Administration identifies as small 
businesses, enterprises with an average of 50 or less 
employees. We have many family-run businesses as well, many 
being run by second generation and in some cases third and 
fourth generations. We make safe children's wear. Safety has 
been and always will be a priority for us.
    To give you a little bit of background on apparel, footwear 
and lead, in general apparel and footwear are inherently lead-
free. Lead is not an ingredient when manufacturing apparel. 
Lead does not show up in the fabric itself that is used to make 
apparel. In the 40,000 lab test reports that the AAFA, our 
group, provided to CPSC last year, there was no lead in any of 
the fabric. In less than 5 percent of the reports, lead did 
show up in certain embellishments and accessories.
    So where might lead come to play in children's apparel? 
There may be trace elements of lead in the metals used 
sometimes to make zippers and grommets. In addition, fake 
rhinestones and crystals, what we call ``bling'' in our 
industry, that are used to embellish garments may also have 
lead. There may be trace elements of lead in certain pigments 
used to achieve color depth in buttons. But more often than 
not, like the fabric, embellishments and accessories don't have 
lead in them.
    Are we an industry taking steps to eliminate these sources 
of lead? Absolutely. Is the amount of lead we are talking about 
a threat to public health and safety? Absolutely not. I can say 
this with confidence because the committee through its proposal 
to permanently exempt used clothing stores and the CPSC through 
its findings have confirmed this. The CPSC has not advised 
parents to go to their closets and remove all pre-CPSIA 
clothing if they were not able to verify that the lead levels 
of their clothing didn't meet the new standards in the CPSIA. 
So we do have and will continue to have apparel manufactured 
before the CPSIA being worn and being sold and exchanged 
through used clothing stores for many years to come. So the 
threat of lead in apparel is nonexistent. Just as an overview, 
the total children's wear children's industry recalls for 2008 
was .0082 of more than 6 billion items of clothing and pairs of 
shoes sold in 2008.
    So if lead in children's clothing and footwear is not a 
threat, then what is the solution? The ideal solution would be 
to include in this proposed amendment the exemption for new 
apparel and new footwear just as you have proposed for used 
clothing. In any event, the CPSC must be empowered to use 
science and risk assessment in determining exemptions and 
promulgating regulations. As an example, they recently reviewed 
rhinestones, the bling we were talking about, the rhinestones, 
and they found that the lead did not leach out into the body 
when tested through the acid digestive method, so although the 
absolute levels of lead were higher than the CPSIA, they did 
not go into the body.
    Additionally, federal preemption of State safety 
regulations including proposition 65 in California, which had a 
special carve-out in the CPSIA, must be included in this 
amendment because there is a great deal of confusion and fear 
in the marketplace due to conflicting and overlapping 
regulations and requirements.
    Keep in mind, the CPSC of today is a very different agency 
from what it was in 2008. Today it is fully funded. There is a 
new commissioner. All five of the commissioner seats are there. 
So Congress should have the faith in the agency and its 
competent leadership that they can execute the will of Congress 
and the intent of safety and product safety. So please allow 
them to ensure that the regulations promote product safety and 
don't get in the way of product safety. Thank you.
    [The prepared statement of Mr. Levy follows:]

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    Mr. Rush. The Chair now recognizes Mr. Woldenberg for 5 
minutes for the purposes of opening statement.

                TESTIMONY OF RICHARD WOLDENBERG

    Mr. Woldenberg. Thank you. Mr. Chairman, Ranking Member 
Whitfield and distinguished members of the subcommittee, thank 
you for the opportunity to testify this morning. My name is 
Richard Woldenberg. I am chairman of Learning Resources Inc., a 
Vernon Hills, Illinois-based manufacturer of educational 
materials and educational toys.
    I have administered or supervised our company's safety and 
regulatory compliance activities since 1990. We are very proud 
of our safe products. Having devoted considerable resources to 
safety over the years, Learning Resources suffered only one 
recall of 130 pieces in its 25-year history. To put this minor 
event in perspective, I estimate that we have sold about 1 
billion pieces of our products over the years.
    Despite our exemplary safety record, the CPSIA made us feel 
like public enemy number one. The challenges of the new law 
have been enormous. While I favor efforts to make children's 
products safer, this new law has had little impact on safety. 
Instead, this law has increased manufacturing costs, eliminated 
jobs and killed off safe products simply because they are no 
longer economic to produce.
    The CPSIA makes the cost of compliance unbearable. From 
2006 to 2008, our testing costs have increased more than eight 
fold. We estimate that these costs will triple again after the 
CPSC lifts its testing stay in 2011. Testing costs are often 
thousands of dollars per product. Our quality team has grown 
from one person to four, including me, plus an outside lawyer 
on retainer. This staff is likely to increase just to manage 
more paperwork. Despite these heavy costs, our safety record is 
unlikely to improve. Our products were already proven safe.
    Our problems don't end with testing costs or increased 
staffing. We are being crippled by regulatory complexity. More 
than 20 months after the passage of the CPSIA, we still don't 
have a comprehensive set of regulations. Please consider how 
mind boggling these rules have become. Here are the CPSC rules 
that governed our company until 2008. At only 186 pages, these 
rules clearly defined our responsibilities and could be taught 
to our staff. Compliance with the law was a focused, manageable 
task. Today, the rules total almost 2,500 pages, and these are 
not all the rules, just the ones that pertain to my business. 
And the rules keep changing and they are not finished. We are 
acutely aware that each word in every rule is a potential 
source of liability now up to and including jail time. This 
three-inch wedge, 608 pages, is what the CPSC has published in 
the last month alone that pertain to my business. Can you 
imagine trying to master these rules and teach them to your 
staff while still doing your full-time job? Ironically, the 
recalls of 2007 and 2008 were never a rules problem. Those 
famous recalls were clearly a compliance problem. Imagine what 
will happen now with a 12-fold increase in rules.
    The confusion from this tangle of rules and regulations 
hurts us every day. We spend an inordinate amount of time 
arguing with customers over the rules, often having to call 
lawyers to resolve disputes. It makes doing business slow, 
tedious and very expensive, not to mention unpleasant.
    Many companies are tiring of the continual fighting and are 
dropping products and vendors. Who will be served by the end of 
commerce in these safe products? Small businesses are 
particularly ill suited to managing these challenges. They lack 
the skills, resources and the business scale to absorb these 
responsibilities. It is no longer a level playing field for 
small businesses making children's products. Consequently, 
small businesses bear the greatest risk of liability under the 
law, despite being responsible for almost no injuries from lead 
in the last decade. The double whammy of massive new regulatory 
obligations and the prospect of devastating liability are 
driving small businesses out of the market today. The CPSIA 
went off track by taking away the CPSC's authority to assess 
risk. If the CPSC could again regulate based on risk, safety 
rules could focus on those risks with the real potential to 
cause harm to children.
    I recommend several steps to reduce complexity and cost 
without sacrificing children's product safety. First, restore 
risk assessment to the CPSC. Second, reduce the age limit in 
the definition of children's products to six years of age. 
Third, restrict tracking labels to durable products with the 
proven potential to do harm and with long product life. And 
fourth, impose procedural limits to ensure fairness in penalty 
assessment under the CPSIA.
    In conclusion, I urge your committee to address the 
fundamental flaws in the CPSIA to restore order to the 
children's product market and to protect small businesses from 
further damage.
    I appreciate the opportunity to share my views here today 
and I am happy to answer your questions.
    [The prepared statement of Mr. Woldenberg follows:]

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    Mr. Rush. The Chair thanks all the witnesses and now the 
Chair recognizes himself for 5 minutes for the purposes of 
questioning the witnesses.
    I want to begin with Mr. Vitrano. Mr. Vitrano, I understand 
from your testimony that in an ideal world you would like to 
see an explicit, complete exemption from the law for 
recreational vehicles, but I also heard you say that you 
support this legislation. I would like to ask you to clarify on 
that point. What impact would this legislation have for the ATV 
and motorbike industry, and would it provide you with 
significant relief from the problems you have highlighted in 
your testimony?
    Mr. Vitrano. Thank you, Mr. Chairman. Our singular focus is 
to make sure that youth vehicles are available so kids can 
safety ride our products with their family. As I said in my 
testimony, we believe we have already submitted sufficient 
evidence to obtain an exception under the language that is 
proposed in the bill but we are not going to be the ones to 
make that decision. That is why it is absolutely critical that 
this committee provide as much guidance as possible to the CPSC 
to make it clear that the terms that are set forth in the bill 
are designed to grant us relief. We support many explicit 
instruction in the statutory language. We also support the 
committee report proposal that has been circulated which would 
provide clarity and more greatly ensure that we would obtain 
relief. Again, our goal is to make sure our products are 
available and we think there are any number of ways to 
accomplish that including the bill.
    Mr. Rush. So in order to be perfectly clear, you support 
the legislation and report language as written without any 
further changes because it provides you with a way to get to 
the relief you need from the Commission. Is that correct?
    Mr. Vitrano. That is correct.
    Mr. Rush. Thank you so very much.
    Now let me move on to Mr. Marshall. In your testimony, you 
stated that this legislation will offer much to your membership 
``significant relief.'' Can you tell us more about that? What 
relief does this legislation provide for your members and what 
proportion of your members will get that relief?
    Mr. Marshall. Thank you. I think the analogy I have in my 
head of our 435 member businesses as well as all the small 
crafters across the country who might not even know about this 
law yet that we wouldn't even recognize as businesses but are 
merely crafting things in their own homes and selling them at 
craft fairs, of which there are thousands upon thousands. The 
image I have is of us in a river drifting downstream toward a 
waterfall, which is February 10, 2011, and this bill is the 
only branch we see to grab onto to get us out of that river. We 
have not ever believed that the perfect should be the enemy of 
the good, and even though there are things in here that we 
think long term would be improvements to the Consumer Product 
Safety Improvement Act, we feel that this bill as written would 
save a substantial number of those businesses that are heading 
toward destruction, and for that reason we emphatically endorse 
this bill and we do urge the committee to think thoughtfully 
about what this bill does and to move it through Congress as 
quickly as possible.
    Mr. Rush. In your testimony, you expressed concern about 
the effects of this CPSIA and point out that the Handmade Toy 
Alliance endorses the Consumer Product Safety Enhancement Act. 
You suggest several modifications to the draft that would make 
it even better for your members, but you also testified that 
you support the draft in its current form and you hope the 
legislation can proceed through this committee and the House 
and the Senate as quickly as possible. In your opinion, how 
does the bill improve the CPSIA?
    Mr. Marshall. Well, frankly, I mean, we are up against this 
testing deadline, which the CPSC has told us they are not going 
to extend further beyond February 10th of next year, and having 
alternative methods in place and in the hope that the CPSC will 
agree with us about what the definition of alternative testing 
method is will allow our members to document the safety of 
their products without having to pay the often-exorbitant costs 
of third-party lab testing.
    Our businesses range a lot in size but we all have in 
common the fact that we are making toys and other children's 
products in very small batches. We are not importing 20,000 
items at a time from China. We are working with very small 
manufacturers in the United States and in Europe, and the 
challenges in complying with this law are so much greater when 
you are making products in such small batches, and for that 
reason we believe that the alternative testing method protocol 
if we can come to agreement with the CPSC and hopefully the 
report language, which I haven't had the opportunity to see 
yet, will enhance our understanding of that, will make it 
possible for these small businesses to document compliance 
without having to pay for third-party lab testing.
    Mr. Rush. That concludes my time. Mr. Whitfield, you are 
recognized for 5 minutes.
    Mr. Whitfield. Thank you very much, and thank you all for 
your testimony.
    Mr. Vitrano, in your testimony you talked about some report 
language that I assume that you have seen. Have you been given 
some report language that you feel comfortable with and if that 
language is there you would support this legislation?
    Mr. Vitrano. That is correct.
    Mr. Whitfield. Now, let me ask you a question. Of course, I 
have got this report language and it says the committee expects 
the Commission to consider and so forth and so forth and so 
forth, so it is using the word ``expect.'' It certainly doesn't 
direct them the way this legislation directs a lot of things. 
It seems to me that it would be very easy to put this language 
in the bill instead of using it as report language, and if I 
were in your shoes, I would feel much more comfortable if this 
specific language was in the bill relating to this 
Manufacturers Association versus State Farm Insurance case. So 
you would support it being in the bill, wouldn't you?
    Mr. Vitrano. Absolutely. As I had testified, we have urged 
repeatedly that explicit guidance be provided in the statute. 
At this point the bill does not include that but we do 
appreciate and support if it is not going to be in the statute 
that the report language as proposed be included. Again, our 
singular focus is to make sure these vehicles are available. We 
believe that it is the intent of this committee to make sure 
that happens. Whatever can be done to make sure that happens is 
what we are supporting. Statutory language would be better. The 
report language could get us there as long as it is clear to 
the CPSC.
    Mr. Whitfield. Well, you know, I believe there are a lot of 
other products other than just yours that would benefit from 
this as well. I have heard a lot about these zippers in 
children's clothing and so forth and it is my understanding 
they have lead in them. Is that right, Mr. Levy?
    Mr. Levy. If I could just clarify the problem with lead and 
zippers, it is interesting. A zipper is actually made up of 
about five to seven different components, and what we have been 
finding or what we found in a few of the items is that one of 
the components--as an example, this is a failed garment. I 
can't reach the piece. There is a small piece inside of the 
garment that had lead levels higher than the 600 parts per 
million. So we have a garment here. It is not accessible to my 
fingers to get at it that now failed. There were thousands and 
thousands of garments involved. And under the--the way the 
agency is interpreting it, it is above the absolute level, and 
even though it's not common sense. We keep using that term. I 
can't access it. The CPSC has said that fabric is not a barrier 
to access and it devised a very small probe which they could 
stick in and touch and oh, that is lead, it failed.
    Mr. Whitfield. So you cannot sell that and meet the 
requirements of this----
    Mr. Levy. This garment would not be saleable. However, if 
it was in someone's closet or it is at a Goodwill store, no 
problem with it.
    Mr. Whitfield. Now, Ms. Weintraub, in your testimony you 
made it very clear that you want to protect children and you 
have children. Would you object to that item being sold, what 
he has in his hand right there?
    Mr. Weintraub. The problem is unfortunately that children 
mouth zippers all the time. I have three young children. My 
oldest child, who is almost six, he mouths zippers as well. So 
the problem is----
    Mr. Whitfield. They get zippers and they mouth them. Is 
that what you are saying?
    Ms. Weintraub. Yes. So the problem is that children 
interact with clothing in dynamic ways, and though in this one 
instance the part that contains lead may appear to be 
inaccessible by the fabric, in another product it may not be. 
So the problem is the complexity of drafting a rule for huge 
variability in product types.
    Mr. Whitfield. Well, you know what? The Food and Drug 
Administration permits up to .1 microgram of lead for each 1 
gram of a piece of candy, and yet the Commission under this law 
rejected a petition from a toy company that wanted to have a 
brass axle on a toy car that had less absorbable lead than the 
FDA allows in a piece of candy. Now, I mean, how ludicrous is 
that? I mean, I think we all want to protect children but I 
think we want to use some common sense, and to me, we are 
appropriating a lot of money to the Consumer Product Safety 
Commission, and I see nothing wrong with giving them 
flexibility to exempt on their own looking at their risk 
assessments and science and so forth. I guess my time is 
expired.
    Mr. Rush. The Chair now recognizes the chairman emeritus of 
the full committee, Mr. Dingell, for 5 minutes for the purposes 
of questioning the witnesses.
    Mr. Dingell. Thank you, Mr. Chairman.
    This question to Messrs. Palmieri, Vitrano, Marshall and 
Levy. Section 2 of the Consumer Product Safety Enhancement Act 
amends the Consumer Product Safety Improvement Act to include a 
so-called functional-purpose exemption test for certain 
materials, products and components from the Act's lead limits. 
To be granted an exemption, a manufacturer must first satisfy a 
three-part test, the first condition of which stipulates the 
product, material or component part requires the inclusion of 
lead because it is not practicable or technologically feasible 
to manufacture such product, component part or material in 
accordance with subsection A by removing the excessive lead or 
by making the lead inaccessible. I believe the statute leaves 
some ambiguity as to the meaning of the term ``practicable'' 
and should be modified or clarified via report language. Do you 
agree, yes or no, gentlemen?
    Mr. Palmieri. Yes, sir.
    Mr. Vitrano. Yes.
    Mr. Dingell. Then Mr. Marshall and Mr. Levy?
    Mr. Marshall. In this case, I don't think----
    Mr. Dingell. Yes or no?
    Mr. Marshall. Yes. This particular section I don't think 
will apply to our members. We don't have the capability to go 
through this process.
    Mr. Dingell. Next witness. Mr. Levy, yes or no?
    Mr. Levy. I would have to--I am not sure.
    Mr. Dingell. Now, to Messrs. Palmieri, Vitrano, Marshall 
and Levy, should any report language on this point define 
``practicable'' as relating to the cost of compliance to the 
expected safety benefit of the compliance, yes or no?
    Mr. Palmieri. Yes, sir.
    Mr. Vitrano. Yes.
    Mr. Vitrano. Sure, that sounds reasonable.
    Mr. Dingell. I am sorry?
    Mr. Vitrano. Yes.
    Mr. Dingell. Mr. Levy?
    Mr. Levy. Yes.
    Mr. Dingell. Thank you, gentlemen. Next question, the 
question to the same three witnesses. The third condition of 
the functional-purpose exclusion in section 2 of the bill 
requires that a product, component part or material will have 
no measurable adverse effect on public health or safety, taking 
into account normal and foreseeable use and abuse. Do you 
believe the phrase ``measurable adverse effect on public health 
or safety'' requires clarification in report language, yes or 
no?
    Mr. Palmieri. Yes, sir.
    Mr. Vitrano. Yes.
    Mr. Marshall. I am sorry. Our member businesses have no 
real opportunity to gather the evidence needed to follow that.
    Mr. Dingell. Thank you. Mr. Levy?
    Mr. Levy. No.
    Mr. Dingell. No?
    Mr. Levy. Yes.
    Mr. Dingell. Did you say yes or no? If you are content to 
leave the record ambiguous, I am content to do so too.
    Now, this question to the same panel of witnesses. I fully 
support the intention of section 4 of the bill, which provides 
regulatory assistance and relief for small manufacturers and 
other businesses. I am concerned that this section may not make 
clear the committee's intention for the Consumer Product Safety 
Commission to create or approve alternative product testing 
methods to ease the regulatory burdens on small businesses. Do 
you believe that the committee's report on this bill should 
include language to that effect, yes or no?
    Mr. Palmieri. Yes, sir.
    Mr. Vitrano. Yes.
    Mr. Marshall. Yes.
    Mr. Dingell. And you, Mr. Levy?
    Mr. Levy. Yes.
    Mr. Dingell. Now again to the same four witnesses, if you 
please. Likewise, should the committee make it clear in its 
report that it intends for the Commission to allow the use of 
XRF testing as an alternative testing method for lead in paint 
and lead in substrate, yes or no?
    Mr. Palmieri. Yes, sir.
    Mr. Vitrano. Yes.
    Mr. Marshall. Most emphatically, yes.
    Mr. Levy. Yes.
    Mr. Dingell. Thank you, gentlemen.
    Thank you, Mr. Chairman. My time is just about expired.
    Mr. Rush. The Chair recognizes the ranking member of the 
full committee, Mr. Barton, for 5 minutes.
    Mr. Barton. Well, thank you, Mr. Chairman. I have got a 
number of questions.
    First question is something that I don't believe anybody 
addressed in your testimony, and that is the issue of the 
requirement of tracking labels on products that are so 
inexpensive and small that it is almost impossible to comply 
with that. Does anybody have a comment about some exemption 
relief in terms of tracking labels?
    Mr. Woldenberg. Tracking labels are very burdensome in our 
business. We have 1,500 products and we manufacture a number of 
those products several times a year. We would like tracking 
labels to be optional except in the case of high-value items 
that are durable like cribs and bassinets with demonstrated 
potential to harm. In our case, since we have an almost zero 
recall rate over 25 years, we would like it to be our choice as 
to whether or not we make that investment to future recall 
expenses.
    Mr. Barton. Ms. Weintraub, do you have a comment on that?
    Ms. Weintraub. I disagree. Tracking labels are important 
for consumers as well as for the agency to be able to know 
where the product is from. It can enable consumers to identify 
whether they in fact have----
    Mr. Barton. Even if it is a product that costs less than $5 
and comes out of a vending machine?
    Ms. Weintraub. That product could be deadly if there are 
excessive levels of lead. It shouldn't matter what the cost is. 
Any consumer product could pose a risk of harm, and the 
consumer should be able to identify whether a hazardous 
product----
    Mr. Barton. Do you really expect something that comes off 
an assembly line 100,000 a day to require a tracking label for 
each and every one of those? I mean, that is not just not 
practicable, in my opinion.
    Ms. Weintraub. I think that----
    Mr. Barton. You would just ban that product? You would just 
basically take it off the marketplace?
    Ms. Weintraub. I think there are ways that we could come up 
with it. I think the CPSC has been working on it as well and 
has articulated that would be a reasonable way to identify 
products so that it is both practicable and useful for 
consumers so they have reliability that the products that are 
in their homes are safe.
    Mr. Barton. OK. My second question deals with the language 
on phthalates. Myself and Congressman Waxman had a compromise 
in the bill that was endorsed by Chairman Dingell that made a 
phthalate ban prospective. The CPSC agreed with that language 
but a court case in New York overturned it. Does anybody care 
to comment on whether we should try to address that issue 
again? Anybody? We don't have anybody from the chemical 
industry here so that may not be something that you all care to 
address. Anybody?
    OK. Next question deals with the exemption relief. As the 
current draft is written, there is a three-part test. Chairman 
Dingell alluded to this test. I don't think that as currently 
drafted that is a workable test. I don't think you need the 
first two parts of it. I think the third part is the relevant 
part, and the word ``measurable'' makes it almost meaningless 
because you can measure lead down to zero. I would suggest the 
removal of the word ``measurable'' and just leave the test as a 
one-part test. If it doesn't have an adverse health effect that 
the CPSC could, not should but could give an exemption. Does 
anybody want to comment on that?
    Mr. Woldenberg. For us as a small business, the exemption 
process is closed, as Mr. Marshall has said. It is really not 
feasible. Take, for example, my business. We have 1,500 
products, and let us just say for the sake of argument that I 
have 10 components per product. I have to prove that each 
component in each product deserves the exemption. That means 
that I have to mount 15,000 exemption requests to get my entire 
product line cleared one by one. The chairman of the CPSC sent 
in a letter today emphasizing that it is a one-by-one analysis. 
It almost doesn't matter what the tests are. The door is 
closed. I can't pay for it. I can't afford the consultants and 
I can't hire the lawyers.
    Mr. Barton. Mr. Palmieri, do you have a comment on that?
    Mr. Palmieri. I think that we believe that ``measurable'' 
is a helpful word in the definition as well as the report 
language so that it is an actual impact on public health as 
opposed to a theoretical one.
    Mr. Barton. I am not sure I understand what you just told 
me.
    Mr. Palmieri. What I am saying is that your suggestion was 
that lead in itself can be measured, but again, we are not 
talking about the lead content of the product but whether or 
not it can actually have an impact on a child's health.
    Mr. Barton. Well, I agree with the last part.
    Mr. Palmieri. And I am just saying that is why we think the 
word ``measurable'' is helpful.
    Mr. Barton. But if you leave ``measurable'' in there, the 
test--there can never be an exemption, because I am told if you 
have any lead at all, you can measure it to the infinite 
decimal point, so there needs to be some practical definition 
and not an automatic exclusion but you could give the CPSC 
reasonable authority to make an exclusion if the advocate for 
the exclusion is able to prove that it should be given. That is 
all I am trying to get at.
    Mr. Palmieri. And it is our understanding both with that 
phrase and with the report language that this is completely 
different test than the ``any absorption'' standard which was 
in the original Act, which ended up being a zero tolerance for 
any leachable lead and that this is a different test and so we 
agree, strong report language clarifying what that means so 
that the Commission knows exactly how to act on it immediately 
is critical to this functioning.
    Mr. Barton. My time is expired but Mr. Levy wants to make a 
comment, and I would assume that Mrs. Weintraub also wanted to 
make a comment, so----
    Mr. Levy. I just wanted to say to Mr. Woldenberg's point 
here, if we take the approach, and I think this should be the 
approach now that the CPSC has been reconstituted, I think we 
have to say let us empower them with strong language to look 
out for product safety in regard to children's products and let 
them identify as opposed to us taking 15,000 items. We have 16 
billion pairs of jeans and shoes in the marketplace, which is 
constantly changing, the fashion business, as opposed to us 
constantly going and looking for exemption, exemption. If I am 
in the motorcycle industry, my product line is not changing 
that much, my components are not changing. I can afford to 
invest in the testing and so forth. But our products are not 
dangerous. Our products are safe. Give the agency the ability 
that they were founded on to find if there is a problem, let 
them come out and find it, as opposed to us having to go 
petition SKU style by style by style.
    Mr. Barton. Ms. Weintraub.
    Ms. Weintraub. Yes, sir. Thank you. We believe that these 
three prongs are all necessary and important. The first prong, 
is the lead in fact necessary. Why should there be lead in a 
children's product? Consumers don't want lead in their 
products. If it doesn't have to be there, it shouldn't be, and 
if it could move the market to reduce lead in consumer 
products, it should. So that is the first prong, is the lead 
necessary essentially. The second prong, is the product one 
that would likely to be mouthed or ingested, that is the most 
common route of exposure and the most dire types of 
consequences occur from mouthing and ingesting products. 
Unfortunately, the story of Darnell Brown that Chairman Waxman 
mentioned, the child died because he swallowed a trinket from a 
shoe that contained--it was almost 100 percent lead and the 
child died. What we want to do here, and I know what everyone 
agrees is the goal here is to protect children from unsafe 
products, and that is our collective desire. And the third 
prong, measurable adverse impact on public health, I think that 
and all of these is a good compromise in terms of having a 
system, a test that is workable as well as one that will 
protect the public health.
    Mr. Barton. Thank you, Mr. Chairman.
    Mr. Rush. Ms. Schakowsky, you are recognized for 5 minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman. I wanted to ask 
Mr. Gibbons a question, not just because no one has asked him a 
question, but because I actually have a question.
    I wanted just to get on the--first of all, in this economic 
downturn, I think it is particularly important that you be able 
to serve the market that you do, but I wanted to ask if you 
feel that the Consumer Product Safety Enhancement Act does 
provide the relief that your organization needs?
    Mr. Gibbons. I certainly do. I think the clarity that is in 
section 3 helps us work real closely with CPSC, which we have 
done in the past, but it really does work so that we can 
continue along a path that is safe. It works with us to 
identify, you know, unsafe products and areas, and we are 
confident that we can work with the CPSC. If there are things 
we haven't even though of yet, you know, we identify, we will 
work them in a very proactive way so we think it works very 
effectively.
    Ms. Schakowsky. And I realize you are speaking for Goodwill 
but you did bring up the Salvation Army. I am wondering if 
within your business community, within your industry, if you 
will, do you feel that your remarks and your support are 
reflected in those other organizations?
    Mr. Gibbons. Yes, I do.
    Ms. Schakowsky. Thank you.
    Ms. Weintraub, I want to--there has been consistent 
testimony here, and you as the only one really here who was 
involved in the original bill and defending the language, and I 
realize that you are not necessarily supporting the changes but 
you are not opposing the changes. There has been this talk 
about going back to what was risk assessment, and I wondered if 
you could just elaborate a bit more on why we have been there, 
done that and in my view and I think the reason that we passed 
the bill it didn't work. I think you would do a much better job 
articulating that.
    Ms. Weintraub. Well, I don't know if that is true but I 
will try. Thank you. Yes, the big problem that risk assessment 
causes is the reason why we ended up in the place that we were 
before passage of the CPSIA, that is, CPSC could have used the 
authority, had authority, could have used it but didn't use it 
effectively, and the problem, because it was broad and not 
specific, was that actions weren't taken and there were 
loopholes in existing--in the practice of the CPSC that left 
our Nation, our children, our families at risk and they were in 
fact at risk, and they were posed, they were put in danger 
because of that. A risk analysis has numerous problems in and 
of itself as well. There are many ways to interpret it, and it 
was clear that we needed a more narrowed, clear test that 
limited the amount of lead in a very concrete fashion. As is 
clear from scientists, and I think everyone at the table would 
agree, there is no known safe level of lead. When you are 
working in that environment, consumers need to be able to trust 
that products will not pose harm to their children, and risk 
assessment in this and other contexts does not do the job.
    Ms. Schakowsky. I just wanted to point out that on the 
issue of tracking labels, that the language in the bill as 
passed that required as practicable and also said that bulk-
vended products actually are totally exempt from the tracking 
labels.
    Yes, you wanted to comment on that, Mr. Levy?
    Mr. Levy. Yes, just in terms of the tracking labels, in the 
apparel industry we are already required to put an RN number, 
which tracks back who the manufacturer is, and we feel that 
that is sufficient to satisfy--anyone can go to Google, put an 
RN number and find the manufacturer. But what has happened as 
with much of the CPSIA is, our retail customers have issued, 
not as high as this but a nice stack of individual requirements 
on tracking labels and so forth. So and the same thing is going 
to happen with the preemption of the State laws. So because it 
is where practicable in that case, our retailers are saying no, 
we don't want any chance, and you have to sew our label in, and 
the next retailer has a different interpretation of what should 
be on the label. So we feel in terms of tracking labels, the RN 
number for apparel is sufficient and we would like to see an 
exemption or at least an understanding by the agency that that 
would satisfy the requirements.
    Ms. Schakowsky. Let me just ask you a question on that, 
though. If you have the RN number----
    Mr. Rush. Let me just warn all the members that we have a 
pending vote on the floor at 12:15 and so I want to really be 
pretty tight in regards to limiting the members' questions to 5 
minutes. With that said, Ms. Schakowsky, I want to move on to 
Mr. Pitts.
    Mr. Pitts. Thank you, Mr. Chairman.
    Mr. Marshall, as I understand it, the CPSIA standard and 
the European EN-71 standard are incompatible, making it nearly 
impossible for small toy distributors to carry out their 
business now. First of all, can you explain a little bit on how 
they are incompatible?
    Mr. Marshall. Yes, and this is a significant factor. My 
store as well as dozens of others of our members made a niche 
business out of importing small batch goods from Europe. 
Speaking personally, at this point we have all but ceased 
importing toys and other goods from Europe because of the CPSIA 
and also a great number of companies that have already tested 
the European standards simply cannot afford to retest to CPSIA 
standards and have withdrawn from the market including some of 
our most important suppliers. There are some differences 
between the EN-71 standard, and I am not an expert in it. The 
most substantial, though, is the definition of lead content 
limits. EN-71 has an absorbable standard which more closely 
reflects the effect of lead content on a child's health 
whereas, as you know, the CPSIA is a total lead standard, but 
more to the point, labs that are testing for EN-71 aren't 
necessarily certified by the CPSC to be testing for CPSIA, and 
small batch manufacturers in Europe have exactly the same 
problem as small batch manufacturers in America in terms of 
paying for those tests. And so that is creating the same 
problem.
    But I want to remind the committee what the definition 
under the CPSIA of a manufacturer is, and my store under the 
CPSIA, as well as many other of our members, is considered a 
manufacturer when we import a specialty German toy to this 
country unless it goes through an importer that is based in the 
United States, we are importing directly and so we are the 
manufacturer. We are the ones responsible for----
    Mr. Pitts. Let me ask you then, do you think American toy 
distributors should be able to sell European toys that are 
compliant with the European standard?
    Mr. Marshall. Yes. I don't think anyone here is going to 
argue that a toy that has been tested to EN-71 standards is not 
safe for the American market.
    Mr. Pitts. Does anyone disagree with that? Ms. Weintraub.
    Ms. Weintraub. This is a complex issue, one of trade issues 
and harmonization of standards, and I am not an expert on those 
issues, but there are reasons why the absorbability concept of 
lead has been rejected, and for those reasons, I could get into 
them, but for those reasons the United States has rejected 
looking at lead from that perspective.
    Mr. Pitts. So you do not think the E.U. adequately protects 
their children?
    Ms. Weintraub. No, I am not saying that, but in terms of 
looking at how the test is conducted, it is very different than 
how the CPSC does it.
    Mr. Pitts. OK. This is a slightly different question. Do 
you think American toymakers should be able to sell toys in 
other countries, even if they are not compliant with the U.S. 
standards but as long as they are compliant with the safety 
regulations of their destination country?
    Ms. Weintraub. Are you asking me?
    Mr. Pitts. Mr. Marshall first.
    Mr. Marshall. As far as I know, none of our members 
actually manufacture any products that are not in compliance 
with those standards of the CPSIA. It isn't really the testing 
costs that causes problems. Manufacturers that are selling to, 
for example, Europe from the United States and which we have a 
couple of members that do that, they do have this dual testing 
requirement that they----
    Mr. Pitts. Mr. Woldenberg.
    Mr. Woldenberg. We have an office in the U.K. and testing 
EN-71 for at least 20 years. We have never seen any issues of 
safety relating to our reliance on EN-71 testing in any part of 
our business. It is essential for our business to be able to 
enter other markets. We sell in 80 other countries. We can't 
afford to be closed out of those markets. That is how we keep 
our business going.
    Mr. Pitts. You testified that your costs have increased 
eight times, you expect three times more. Clearly, you are 
testing more. Are these increasing testing levels and costs 
making your products safer than they were before?
    Mr. Woldenberg. Not in my opinion, because we only had 
recall of 130 pieces in 25 years. We would prefer to spend our 
money on supply-chain management.
    Mr. Pitts. And how can be sure that products are safe if 
they are not tested before going to market?
    Mr. Woldenberg. Well, testing has always been part of our 
strategy. The problem with the testing regime here is we have 
to test and test and test again and again things that we know 
are safe. What we want to do is to be able to spend our money 
on testing in ways that inform us about problems we may have in 
our supply chain. Because of the efforts we put in controlling 
our supply chain, the risks of problems with our products is 
not random, so we don't need to test every single batch of 
every single thing. That is how we manage our business.
    Mr. Pitts. Thank you. My time is up.
    Ms. Schakowsky [presiding]. Thank you.
    Mr. Braley.
    Mr. Braley. Thank you.
    Mr. Woldenberg, I am very sympathetic to the earlier 
positions you expressed regarding the volume of regulations 
that you are dealing with in this particular area. In the last 
two Congresses, my Plain Language in Government Communications 
Act has passed the House overwhelmingly on two occasions. I am 
a firm believer that we need to write not just the government 
documents that you interact with but also the regulations and 
statutory language in language that the intended recipients of 
that information can understand and act on, and I am convinced 
if we did, that stack of piles in front would be substantially 
smaller.
    You also made some comments in your statement that I want 
to follow up on. You said the CPSI has killed off safe 
products. Do you remember saying that?
    Mr. Woldenberg. Yes.
    Mr. Braley. Can you give us examples of safe products that 
have been killed off because of CPSI?
    Mr. Woldenberg. Well, I am in the education industry, and 
we cater to a lot of small niche businesses. They are small 
businesses that cater to highly disabled children. A lot of 
those items have a very low volume. Many of those companies are 
discontinuing those items but that is just a very slow 
background degeneration.
    Mr. Braley. Can you give us examples of some companies that 
are being--their products are being killed off because of CPSI?
    Mr. Woldenberg. I was contacted by a company in Colorado 
that serves the education industry that informed me that they 
have thousands of products that are under $1,000 in sales a 
year. They cannot afford to test those items and intend to 
discontinue many of them when testing becomes mandatory.
    Mr. Braley. And what company is that?
    Mr. Woldenberg. The company is called American Educational 
Products.
    Mr. Braley. OK. Are there other products that you can 
identify that CPSI has killed off that are safe products?
    Mr. Woldenberg. Well, we make decisions on product 
development in our company all the time, and the hurdle rate 
for volumes in our company has gone up because of expenses, and 
so now for us to introduce a new item, if we don't expect sales 
of over a higher bar, that item never comes to market.
    Mr. Braley. No, but I am getting back to your statement 
that CPSI, the bill that we passed previously, has killed off 
safe products. This is your opportunity to share with us those 
products that have been killed off, to use your words.
    Mr. Woldenberg. We have dropped telescopes. We are moving 
out of microscopes. There have been items like a potato clock, 
which is an educational item you may be familiar with that has 
been recalled and dropped because of trivial non-safety-related 
violations with this law.
    Mr. Braley. Now, Ms. Weintraub, I don't know if you have 
had a chance to look at some of the recommendations submitted 
by Mr. Woldenberg but I want to ask you about a few of them and 
get your feedback. One is that the definition of children's 
product should not include anything primarily sold to or 
intended for use in schools. Do you agree with that 
recommendation?
    Ms. Weintraub. We don't agree.
    Mr. Braley. Why is that?
    Ms. Weintraub. Children interact with products in schools 
just as they do at home, and unfortunately, there have been 
numerous recalls of educational-based products for high levels 
of lead.
    Mr. Braley. The third recommendation was that in lead in 
substrate and phthalate testing should be based on a reasonable 
testing program not mandated outside testing, the tenets of a 
reasonable testing program should be set by the reasonable 
business judgment of the manufacturer. Do you agree with that 
recommendation?
    Ms. Weintraub. I disagree.
    Mr. Braley. Why not?
    Ms. Weintraub. You know, that moves us even further back 
than other ideas. We need a standard that not only that 
consumers can rely upon but also one that government and 
industry can rely upon to set a bright-line level of lead that 
is not acceptable.
    Mr. Braley. The fourth recommendation was definition of 
``children's product'' should be limited to children six years 
old or younger. Do you agree with that recommendation?
    Ms. Weintraub. I disagree.
    Mr. Braley. Why?
    Ms. Weintraub. Children play with products that are in the 
household. As I mentioned, I have three children. I have an 
almost six-, almost four- and one-year-old. My children are 
very aware of what choking hazards are. They have toys that 
stay in their room. But there is an important difference 
between a choking hazard and lead, and that is, not only can I 
not identify whether the product has lead, they certainly can't 
either, so we need to have laws that protect children in 
concrete, reasonable ways that reflect how children actually 
interact with toys.
    Mr. Braley. One of the other recommendations as part of 
recommendation number 4 is that the definition of ``toy'' for 
lead-based purposes should be limited to children three years 
old or younger. Do you agree with that recommendation?
    Ms. Weintraub. I do not.
    Mr. Braley. Why is that?
    Ms. Weintraub. For similar reasons, that children of 
broader ages use those toys and that would be less protective 
of public health.
    Mr. Braley. Thank you. My time is expired. I yield back.
    Ms. Schakowsky. Mr. Radanovich.
    Mr. Radanovich. Thank you, Madam Chair.
    Ms. Weintraub, you had mentioned in that unfortunate 
incident about the child swallowing a bead and dying from lead 
poisoning. Is it true, at least it was my understanding that 
that bead was 99.1 percent lead and was already in violation of 
existing laws at the time?
    Ms. Weintraub. I believe that it was--I will have to check 
that. It is my understanding. My understanding that the lead, 
it was almost lead itself and previous law was that there was a 
prohibition on lead in paint, not in the substrate. So I will 
have to check, but that is my understanding.
    Mr. Radanovich. It is my understanding that there were laws 
already in the books that would have prevented that.
    Madam Chair, if I can ask for a UC consent, I have got a 
list of companies that are either going out of business or 
stopping products as a result from kind of an answer to Mr. 
Braley's question to Mr. Woldenberg. I would ask unanimous 
consent that that and also a statement by Mr. Pitts be entered 
into the record.
    [The information appears at the conclusion of the hearing.]
    Ms. Schakowsky. Without objection, so ordered.
    Mr. Radanovich. Thank you, Madam Chair.
    I am sorry, I don't have a lot of time, so I am going to 
fire through a lot of questions here. Mr. Woldenberg, you 
talked about having to file a petition for each of your 
hundreds or thousands of products. Is there really any frame of 
reference here? And we have heard all kinds of estimates about 
how much it costs to file an exception petition supported by 
all the relevant scientific data. How much does it cost on 
average to file a petition for an exception? And I would open 
that to anybody here who can answer the question for me.
    Mr. Woldenberg. Well, some of the people at this table have 
filed them. All I can tell you is that I have to hire a human 
factors expert, I have to hire a toxicological expert, I have 
to hire a lawyer and I have to see it through several months of 
processing including a hearing. That is a lot of money.
    Mr. Radanovich. Can you put a price tag on it?
    Mr. Woldenberg. I would estimate $25,000 to $50,000 per.
    Mr. Radanovich. Per?
    Mr. Woldenberg. Per, and that is probably on the low end. I 
am sure that some of the people at this table spent way more.
    Mr. Radanovich. For you, Mr. Woldenberg again, if another 
microscope manufacturer is successful in getting an exception, 
does that mean that you can also sell your microscopes or must 
you also file for an exemption?
    Mr. Woldenberg. I believe that I have to file for my 
products. My products are not identical to anyone else's.
    Mr. Radanovich. All right. Ms. Weintraub, I understand that 
Legos is--and you had mentioned choking as an issue. But from 
what I understand, according to CPSC's report, toy-related 
deaths and injuries in 2006 through 2008, the causes most 
common of injury and death were drowning, motor vehicle 
involvement, falls, airway obstruction, aspiration, 
suffocation, choking, drowning, strangulation and blunt force. 
Lead exposure was not among them. And under your theory, aren't 
the small pieces like those in Legos here that are found in 
common toy boxes far more dangerous than the item made with 
either .03 percent or .01 percent lead?
    Ms. Weintraub. I can't say----
    Mr. Radanovich. This is the definition for anything that is 
small enough to be choking on.
    Ms. Weintraub. Yes.
    Mr. Radanovich. I would like your response to that.
    Ms. Weintraub. Yes. Sure. Unfortunately, I can't say that 
lead is not as hazardous. Yes, it is much easier to see what a 
choking hazard is, and the types of harm are more quantifiable. 
But with harms with lead, they are not always acute. It is 
rare, in fact, that they are acute. However, health economists 
have estimated that every time an average blood lead level by 
increases by a small amount across children born in any given 
year, there is $7.5 billion lost in potential earnings for 
those children. So even low levels of lead can cause decreases 
in IQ points, and while it doesn't come out in CPSC's annual 
toy death and injury data, the harms are there and they do 
cause incredible large costs.
    Mr. Radanovich. And I agree with you. I think we all agree 
that lead in the presence of humans and children is not a good 
thing but I guess the question is, are you taking it too far? 
Because it is necessary, for example, in the steering column of 
bicycles, and I have to ask you, how many times do you have to 
lick a handlebar before you are going to get lead poisoning on 
a bicycle? I mean, how far is far enough or until you take it 
too far to where it just doesn't make any sense at all?
    Ms. Weintraub. Well, you know, I think the Consumer Product 
Safety Enhancement Act is a reasonable compromise, very--you 
know, the drafters of it very carefully listened to all 
stakeholders, and the desire is to deal with the types of 
concerns you raised, to take the interactive use of a product 
and whether there is a health impact, so I think the----
    Mr. Radanovich. If I may just ask quickly, Mr. Woldenberg, 
would you agree with that?
    Mr. Woldenberg. I think that there is a lot of 
environmental sources of lead that children take in. I found a 
study that said that children under three eat a half a gram of 
dirt a day, which contains 40 parts per million lead. So the 
massive lead that a child would be exposed to from broadly 
defined children's products, this is not a toy bill. This is a 
children's products bill, that the massive lead that we get in 
our air, in our water, in our food, in the dirt that is on our 
hands and the other things that we contact is substantially 
greater than what is absorbed into our body than what comes out 
of the products that we make except for soluble lead, which has 
always been on the books for years as being against the law, 
soluble lead being lead in paint and pure lead. That is where 
the problem is.
    Mr. Radanovich. Thank you, Madam Chair.
    Ms. Schakowsky. Mr. Stupak.
    Mr. Stupak. Thank you.
    Let me follow up a little bit with what Mr. Radanovich is 
asking. Mr. Vitrano, you indicated in your testimony that the 
motorcycle industry submitted evidence to the CPSC to obtain 
exclusions for youth ATVs and motorcycles under the Act, but 
ultimately the decision is up to the CPSC to grant the 
exclusion. What clarifying language do you believe the 
committee must include to ensure that the CPSC interprets the 
language to grant exclusion for metal parts for ATVs, 
motorcycles, bicycles under the Act?
    Mr. Vitrano. Thank you. We feel it is absolutely critical 
that the terms ``practicable'' and ``no measurable adverse 
effect'' be defined. We have urged throughout the process that 
those definitions be included in the statutory language. The 
bill does not include them but we have been presented with 
draft report language that does include those definitions and 
are providing the additional clarity that is absolutely 
necessary so that it is perfectly clear that this committee 
intends the CPSC to exclude our products from the lead content 
limits.
    Mr. Stupak. OK. Have you been asked to comment on those 
proposed regulations then, or rules on lead?
    Mr. Vitrano. Throughout the process of development of this 
bill, we have been in discussion with staff and have provided 
extensive input into how we feel the definitions should read.
    Mr. Stupak. Do you feel your concerns have been taken into 
consideration?
    Mr. Vitrano. As I said, our preference would be statutory 
language, but we are comfortable with the report language that 
has been proposed and our support of section 2 is with the 
exception that report language will be included.
    Mr. Stupak. OK. I wanted to get that clarified.
    Mr. Marshall, let me ask you this. I had a couple e-mails 
from some of my constituents. Let me just read one. ``My family 
is dependent solely on the income we generate from 
manufacturing homemade knit items for newborns all the way to 
adults. We sell them through our own store, on the Internet all 
over the United States as well as nine other countries. We need 
our items exempted from the testing requirements underneath 
this new act. Duplication of testing should not be required of 
the materials we use for manufacturing our products have 
already been tested. I have no problem with the labeling now 
required and will begin doing so as soon as possible but I 
cannot afford to pay an average of $500 per item for each of 
the 70 items I create and sell all over the world, and every 
time I purchase yarn, the dye lot will be different and the 
item will have to be tested again. Please help us out.'' You 
are sort of testifying about the same items you are having with 
your toy. Is this a common practice? I mean, you are getting 
things manufactured in the United States that have already been 
tested, but when you folks come to assemble them, then they 
have to be retested?
    Mr. Marshall. Well, there are a couple things going on 
here, depending on the type of product, and one of the issues 
has been communication to the general crafting community and 
small business community exactly where the legislation and 
rulemaking now stands. For example, yarn and other fabrics have 
been exempted from lead testing by the CPSC. However, if you 
are making a toy, another thing that hasn't--let us say they 
are making that yarn and making it into a small doll, that is 
now a toy, that needs to be tested to ASTM standards unless we 
get this bill passed, and that is a whole other set of tests 
which are also very expensive. So, yes, that is exactly the 
concern that the testing requirements, to prove that a product 
is compliant are enormous, and component testing is another 
thing that the CPSC has been moving forward on. However, we do 
feel it is going to take years for that really to come to 
fruition where we develop a marketplace where there are CPSC 
lab-certified zippers and CPSC lab-certified buttons available 
to the small business community to make their products.
    Mr. Stupak. I have no further questions. Thank you.
    Ms. Schakowsky. Mr. Scalise to conclude.
    Mr. Scalise. Thank you, Madam Chair.
    And if I could just ask to everybody on the panel yes or 
no, and we have got limited time. I have a few questions I want 
to hit on. But we have heard from at least two commissioners 
and Commission staff that the scope of the law is too broad. Do 
you agree, yes or no, that the scope of the law is too broad?
    Mr. Palmieri. We are supportive of the improvements that 
this legislation makes.
    Mr. Scalise. Still more improvements may be to limit the 
scope or are you comfortable?
    Mr. Palmieri. If the exclusion process works, then it 
removes products that are safe from being included.
    Mr. Vitrano. We feel very strongly that ATVs and 
motorcycles should be excluded from the lead content 
provisions.
    Mr. Scalise. So too broad.
    Mr. Gibbons.
    Mr. Gibbons. I think the section 3 of the draft legislation 
helps to narrow things appropriately.
    Mr. Scalise. OK.
    Mr. Marshall. We are talking about the original Consumer 
Product Safety Improvement Act?
    Mr. Scalise. And the bill before us.
    Mr. Marshall. OK. Yes, the CPSIA we believe has been too 
broad and we do feel that we would get significant relief under 
the bill pending before this committee.
    Ms. Weintraub. We can--we do not oppose the CPSEA. We can 
live with it. If it is weakened, I don't know if that would 
be----
    Mr. Scalise. Do you think it is too broad?
    Ms. Weintraub. We can live with the language as it is now 
but it can't be made weaker and consumer protections can't be 
weakened.
    Mr. Levy. Congressman Scalise, I believe it is too broad. 
What started as the toy bill now includes books, clothing, 
ATVs. I think it is much too broad.
    Mr. Woldenberg. Definitely too broad.
    Mr. Scalise. Thank you. Is there any reason why the 
Commission itself shouldn't have the discretion to determine 
the age that would be appropriate for restrictions on lead 
limits? Would you support--yes or no, would you support giving 
the Commission that discretion to determine appropriate ages 
for lead?
    Mr. Palmieri. I think that is one of the recommendations 
that the staff had a number of years ago, but again, we support 
the improvements that are in this draft legislation.
    Mr. Vitrano. Our sole objective here is to make sure youth 
ATVs and motorcycles are available for young riders and we 
believe we could get there with the CPSEA.
    Mr. Gibbons. In the context of your earlier question, the 
broadness of the law, you know, there are certain elements that 
apply to Goodwill and other human service-providing 
organizations so, you know, I don't know that our opinion is as 
important for that question but we do think that the ongoing 
enhancement really is valuable for communities.
    Mr. Marshall. Yes, we do believe that the CPSC should be 
given the flexibility to adjust requirements for both content 
and testing certification based on age. Thank you.
    Ms. Weintraub. We adamantly disagree.
    Mr. Levy. I think the reconstituted CPSC and fully funded 
CPSC is more than capable today, so I think giving that 
discretion much different than 2 years ago, I think I would 
agree.
    Mr. Woldenberg. The CPSC should have the discretion to make 
that judgment.
    Mr. Scalise. Thank you.
    Ms. Weintraub, kind of following up a little bit on Mr. 
Radanovich's question on, you know, the toy box theory and how 
far you go when you are talking about products in treating a 
six-year-old the same as a 12-year-old or higher. If you just 
go to the example of like not just toys, a mother's purse or 
lead limits in keys, you know, I have got a one-year-old son, 
the first thing he goes for is the cell phone or the remote 
controls, and those aren't children's products but that is what 
they go for. So would you be supportive if you are trying to 
have the same apply to something like this which a child can 
get as easy access to as a Lego.
    Ms. Weintraub. The scope of this law has been children's 
products. There is many other sources of lead in our 
environment, in our homes, and I think lead should be reduced 
as much as possible in all of them.
    Mr. Scalise. So even a cell phone you would want to have 
that same limit applied like keys in a mother's purse or the 
purse itself or the cell phone?
    Ms. Weintraub. Ideally, yes.
    Mr. Scalise. For everybody else, it will probably be the 
last one I have time for. But if a less costly alternative 
testing requirement would be adequate for small batch 
manufacturers, then why not apply that to all businesses 
subject to the same testing requirements, would you all support 
subjecting that same approach for all manufacturers?
    Mr. Palmieri. It is not a provision we have thought through 
or talked with our members to see if it is important or how it 
would advantage or disadvantage some, so I would want to get 
back to you on that.
    Mr. Scalise. I appreciate that.
    Mr. Vitrano. It is not an issue that we are addressing 
through the bill.
    Mr. Scalise. Thank you.
    Mr. Gibbons. Ditto.
    Mr. Marshall. Obviously we have been negotiating this 
carefully so it applies to our member businesses. We are hoping 
that we can set an example as alternative testing methods and 
other ways of certifying products, a fair approach that may 
well be extended to other types of products.
    Ms. Weintraub. I was still contemplating my answer to your 
previous question, so can you repeat it, please?
    Mr. Scalise. The previous question, would you want those 
same lead standards to apply to the cell phone that applies to 
the other children's products?
    Ms. Weintraub. That is what your question was to everyone?
    Mr. Scalise. That was the last question. This one relates 
to small batch processors having the same--if that works for 
them and addresses some of the cost issues that become 
prohibitive, would you support having that apply if it is safe 
for a small batch to apply to all manufacturers?
    Ms. Weintraub. I would not.
    Mr. Levy. I would say the same rules should apply, it is 
safe or it is not safe, to new clothes, to used clothes, and 
small business or big business, it should be the same rules.
    Mr. Woldenberg. I agree that effective rules should be 
available to all members of the regulated community, and I 
would point out since the CPSC has stayed the testing 
requirements until 2011, we have seen a sharp drop in recall 
rates notwithstanding the testing has not been mandatory, so 
clearly there is something else at play here that is explaining 
the improvement.
    Mr. Scalise. I appreciate your candor.
    Mr. Rush. Ms. Myrick, you are recognized for 5 minutes.
    Mrs. Myrick. Thank you, Mr. Chairman, and I am sorry that I 
wasn't able to be here for your testimony but I did have a 
couple of questions to ask, please.
    Mr. Levy, there is language included in CPSI that preempts 
State laws. Has this provision worked, in your opinion?
    Mr. Levy. It has not worked, in our opinion, because 
Proposition 65 had a special carve-out and we are also seeing 
Wisconsin, New York have drawstring laws, and although the 
agency has ability to do preemption in those cases, they 
haven't. So it is very confusing. People are very worried. We 
would like to see one standard applied and applied nationally.
    Mrs. Myrick. Thank you.
    Mr. Woldenberg, how much have the costs of CPSI impacted 
your business, your product line, your payroll, et cetera?
    Mr. Woldenberg. I estimate that our costs have increased in 
the last, since 2006 to 2009, about $450,000.
    Mr. Myrick. That is a lot.
    Mr. Woldenberg. I agree with that.
    Mrs. Myrick. How do you feel that it is unfair to small 
business other than the cost factor? What else is affecting 
you?
    Mr. Woldenberg. Well, I have to tell you, it is extremely 
disruptive because there is so much disagreement out in the 
marketplace. I won't necessarily tell you that it is confusion. 
There is just a lot of disagreement as to what are the 
applicable rules. This is a lot to master. A lot of people 
don't read it.
    Mrs. Myrick. I know.
    Mr. Woldenberg. How many people do you think have actually 
read this.
    Mrs. Myrick. Right.
    Mr. Woldenberg. And so we spend all the time arguing with 
our customers, which is terrible. We argue among ourselves. We 
don't even know what we should do. There might be two people 
who think we should do it this way, two people that think you 
have to do it that way, and you are always calling your lawyer. 
We don't know how to maintain our records. The very fact that 
the CPSC continues to issue rules upon rules upon rules without 
conforming them means that we are continually learning, 
relearning, resetting up, tearing down, because the rules are 
not static. It is just a terrible burden and it is not 
productive.
    Mrs. Myrick. And along the same line, you said it does not 
make children safer. How can you expand on that?
    Mr. Woldenberg. Our efforts to make children safe rely on 
careful management of our supply chain. We very often find 
ourselves doing business with family businesses like our own 
where we know the mom, the dad, the brother, the sister, we 
have known them for years. Getting aligned with them on our 
practices, understanding how they operate their business, that 
is the best way for us to control quality, and we like to use 
inspections as well as testing to provide the controls so that 
we can assure the quality of a large stream of product.
    Mrs. Myrick. Relative to this bill, what is the appropriate 
definition for a small business in this bill, in your opinion?
    Mr. Woldenberg. I think the federal definition of 500 
employees or $500 million makes sense because you have to have 
enough people with the skills to understand these kinds of 
rules to implement them. It is completely ridiculous to think 
that a million-dollar business can manage this, just completely 
ridiculous. A million-dollar business is more like a lemonade 
stand than it is like Mattel, and so we can't hold them to the 
Mattel standard. You are just condemning them to business 
death.
    Mrs. Myrick. Very good point.
    Yes, sir, you wanted to add to that?
    Mr. Marshall. Yes. I would like to say if I could, the HTA 
would like to submit a list of businesses that have closed or 
withdrawn from the market.
    Mrs. Myrick. I would appreciate that very much. I was going 
to ask the chairman if I could submit this economic impact 
report on businesses that had been hurt by this, to put it in 
the record.
    [The information appears at the conclusion of the hearing.]
    Mr. Rush. Hearing no objection, so ordered.
    Mrs. Myrick. Thank you, Mr. Chairman. That is all the 
questions I have. I yield my time.
    Mr. Rush. The Chair thanks the witnesses for your 
testimony. There is a vote pending and so now the committee 
stands adjourned.
    [Whereupon, at 12:32 p.m., the Subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

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