[Senate Hearing 111-1106]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1106
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION:
PRODUCT SAFETY IN THE HOLIDAY SEASON
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
DECEMBER 2, 2010
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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71-129 PDF WASHINGTON : 2011
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas,
JOHN F. KERRY, Massachusetts Ranking
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JIM DeMINT, South Carolina
MARIA CANTWELL, Washington JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota DAVID VITTER, Louisiana
TOM UDALL, New Mexico SAM BROWNBACK, Kansas
MARK WARNER, Virginia MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce H. Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian M. Hendricks, Republican General Counsel
Nick Rossi, Republican Chief Counsel
------
SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE
MARK PRYOR, Arkansas, Chairman ROGER F. WICKER, Mississippi,
BYRON L. DORGAN, North Dakota Ranking
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida JIM DeMINT, South Carolina
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota JOHNNY ISAKSON, Georgia
TOM UDALL, New Mexico DAVID VITTER, Louisiana
C O N T E N T S
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Page
Hearing held on December 2, 2010................................. 1
Statement of Senator Pryor....................................... 1
Statement of Senator Wicker...................................... 3
Statement of Senator Udall....................................... 5
Statement of Senator Klobuchar................................... 27
Witnesses
Hon. Inez M. Tenenbaum, Chairman, U.S. Consumer Product Safety
Commission..................................................... 5
Prepared statement........................................... 7
Hon. Anne M. Northup, Commissioner, U.S. Consumer Product Safety
Commission..................................................... 11
Prepared statement........................................... 13
Rachel Weintraub, Director of Product Safety and Senior Counsel,
Consumer Federation of America................................. 32
Prepared statement........................................... 34
Stephen Lamar, Executive Vice President, American Apparel &
Footwear Association........................................... 40
Prepared statement........................................... 41
H. Garry Gardner, MD FAAP, on Behalf of the American Academy of
Pediatrics..................................................... 46
Prepared statement........................................... 48
Jill Chuckas on Behalf of the Handmade Toy Alliance.............. 52
Prepared statement........................................... 54
Appendix
The Printing Industries of America, Book Manufacturers'
Institute, Inc., and the Association of American Publishers,
Inc., prepared statement....................................... 63
Letter dated December 2, 2010 to Hon. Mark Pryor and Hon. Roger
Wicker from Stephanie Lester, Vice President--International
Trade, Retail Industry Leaders Association..................... 65
Richard M. Woldenberg, Chairman, Learning Resources, Inc.,
prepared statement............................................. 67
Paul C. Vitrano, General Counsel, Motorcycle Industry Council,
prepared statement............................................. 71
Response to written questions submitted to Hon. Inez M. Tenenbaum
by:
Hon. Mark Pryor.............................................. 72
Hon. Maria Cantwell.......................................... 77
Hon. Frank R. Lautenberg..................................... 79
Hon. Amy Klobuchar........................................... 80
Hon. Tom Udall............................................... 83
Hon. Kay Bailey Hutchison.................................... 84
Hon. Roger F. Wicker......................................... 85
Hon. Johnny Isakson.......................................... 90
Response to written questions submitted to Hon. Anne M. Northup
by:
Hon. Mark Pryor.............................................. 91
Hon. Kay Bailey Hutchison.................................... 104
Hon. Roger F. Wicker......................................... 105
Hon. Johnny Isakson.......................................... 123
Response to written questions submitted to Rachel Weintraub by:
Hon. Maria Cantwell.......................................... 131
Hon. Tom Udall............................................... 133
Response to written questions submitted by Hon. Roger F. Wicker
to Stephen Lamar............................................... 133
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION:
PRODUCT SAFETY IN THE HOLIDAY SEASON
----------
THURSDAY, DECEMBER 2, 2010
U.S. Senate,
Subcommittee on Consumer Protection, Product
Safety, and Insurance,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m. in
room SR-253, Russell Senate Office Building, Hon. Mark Pryor,
Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS
Senator Pryor. I will go ahead and call our hearing to
order here, in the Consumer Protection, Product Safety, and
Insurance Subcommittee, on the oversight of the Consumer
Product Safety Commission.
I want to join my--I want to thank my fellow Senators for
joining us today--and I want to join all my fellow Senators in
thanking the Commission and the other witnesses for being here
today. We really appreciate your time and your attention to
these very important issues.
This is a timely discussion, in light of the current
holiday shopping season, a time when the safety of products on
store shelves is paramount.
I'd like to express my gratitude to Chairman Rockefeller
for allowing me to hold this hearing, and to his excellent
staff for all the great things that they've done in preparation
of this, and also, of course, of the minority staff, because
they've been great to work with, as well.
Each year, billions of toys are purchased by consumers and
end up in the hands of children. Unfortunately, not all these
toys are safe. Last year, 12 children died as a result of
injuries related to toys, and thousands ended up in emergency
rooms. While it's difficult to prevent all such injuries, it is
the mission of the Consumer Product Safety Commission to
protect the general public against unreasonable risk of injury
and death associated with toys and other consumer products, and
to assist consumers in evaluating the comparative safety of
those products.
Each year, on average, over 28,000 deaths related to
consumer products under the agency's jurisdiction occur.
Researchers estimate the cost of deaths, injuries, and property
damage associated with consumer products totals more than $800
billion annually in the United States. Consequently, the
importance of this agency and the efforts to reduce these
statistics while building safer communities and a safer
marketplace cannot be overstated.
I welcome the new leadership of the Consumer Product Safety
Commission. Chairman Tenenbaum took the helm in June 2009, and,
since then, she's demonstrated impressive initiative and energy
in implementing the law and addressing product safety problems.
I look forward to hearing her testimony and exploring
activities under her direction.
Just last week, the Commission voted to adopt a final rule
establishing the CPSC's publicly available product safety
information database, as mandated by Congress. A repository of
consumer complaints and incident reports, the database is
designed to grant all of us timely access to critical product
safety information, allowing us to scan for trends or patterns
of potentially hazardous product in the marketplace.
As one of the lead authors of the database revision and the
law, I support the Commission's final rule, and I'm pleased
that the Commission has crafted the rule in a manner that will
make this information available widely to the general public.
In particular, I endorse the Commission's effort to empower all
consumers who have verified information regarding a product
safety hazard to report that incident.
I applaud Chairman Tenenbaum's leadership in this area,
which is in keeping with congressional intent behind the
provision to maximize reporting of product safety incidents and
to make this information accessible to the general public as
quickly as possible. And I look forward to its official launch
in March 2011.
Just as a reminder: Before the Congressional overhaul, the
CPSC was an agency in distress. Its staffing levels and funding
levels had been choked, over time. On numerous occasions, it
lacked a full quorum of commissioners, inhibiting its ability
to conduct important official business. Public notification of
public hazards was inadequate. The marketplace was replete with
dangerous and, in many instances, toxic products that were
compromising the safety of American families, not least of all
our children. By 2007, news reports were exposing millions of
defective toys in the stream of commerce: lead-tainted
children's jewelry; tiny magnets posing ingestion hazards;
Aquadots that converted to the date-rape drug, once ingested.
The CPSC was slow to act to protect Americans, and it was only
after newspapers shown a spotlight on infant deaths and
injuries that the Commission chose to take action.
Congress, and in particular this committee, responded to
the crisis in product safety by overhauling the agency,
granting it essential new tools and authorities to enable it to
properly execute its mission and protect members of the public.
The Consumer Product Safety Improvement Act was the first
significant overhaul of the federal Consumer Product Safety
laws since the CPSC's inception.
I'd like to now turn it over to the Ranking Member, my
neighbor and friend from Mississippi, and say that we look
forward to revisiting the CPSIA over the course of this next
Congress. And we always have open doors to listen to industry
and advocacy groups, to talk about some of the--maybe some of
the things we got right and some of the things maybe we didn't
get so right when we passed the legislation.
But, Ranking Member Wicker, thank you for being here. Look
forward to your opening statement.
STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Thank you, Mr. Chairman. And thank you for
that concluding statement, which I think is very valuable and
helpful. And I do look forward to revisiting this issue during
the next Congress, should you and I be allowed to continue in
this capacity. And thank you for holding this hearing.
The CPSC is a small agency with a large but important
mission: to regulate more than 15,000 consumer products,
keeping the public safe from preventable injuries and deaths
caused by unsafe and defective products. As the title of our
hearing suggests, we are especially reminded of the importance
of this charge during the increased consumer buying that comes
with the Christmas season. I thank the Chairman for taking this
opportunity to provide oversight and for his commitment to
consumer safety.
The CPSC is currently involved in many areas that affect
American consumers. From its efforts looking into dangers in
certain types of cribs to the continuing investigation into
tainted drywall that has significantly impacted many of my
constituents, there are many Commission activities which
deserve our attention. However, for the last 2 years nothing
has dominated the Commission more than the implementation of
the CPSIA. The CPSIA was enacted in August 2008, largely in
response to concerns over numerous toy recalls for violations
of existing lead limits in paint. It represents the most
significant changes to the Commission's regulatory environment
since it was first created.
The intention was a noble one that I think we all support
efforts to improve safety. The law attempts to do so by
tightening the regulations over children's products, focused
primarily on reducing the content of lead and phthalates.
Unfortunately, despite the hard work that was put into the law
and the Commission's efforts to implement it, the result has
not been what was intended.
The last 2 years have seen this law increase costs and
create uncertainty for businesses, requiring significantly
increased compliance requirements and unnecessary testing of
``safe'' products. Some affected businesses report that, prior
to the CPSIA, they were responsible for complying with less
than 200 pages of rules, but now that number has grown to
nearly 3,000 pages. From 200 to 3,000. This will continue to
increase as more rules are implemented and rewritten.
For many small businesses, the burden is overwhelming and
the cost of trying to comply is simply too much to bear. During
a time when unemployment, nationally, hovers near 10 percent,
our government should be doing everything possible to promote
job creation along with safety. This law has had the exact
opposite effect, particularly on small business. The CPSIA has
reduced the ability of many businesses to make a profit and
create new jobs.
Our second panel today includes Jill Chuckas, who will
testify on behalf of the Handmade Toys Alliance, the HTA, about
the impact on their members. The HTA provided us with a
document called CPSIA Business Casualties, which lists 24 small
businesses that cited CPSIA as their reason for closing down,
and 11 others that cited the CPSIA as one of the factors in
their decision to close.
We will also hear about the numerous other businesses that
have barely been able to continue operating under the bill's
requirements, many of whom will be forced to close in the next
year as different provisions of the law come into effect.
Further, the CPSIA has reduced the incentive to innovate and
invest in new markets, because it increased the cost of doing
business through burdensome and expensive testing requirements.
Another list, compiled by one business feeling the burden
of this law, shows 22 different small businesses that have
dropped children's product lines because of this Act, limiting
computer--consumer options and eliminating jobs.
Neither of these lists includes every business that has
been affected. They are simply a small representation of the
negative effect of the CPSIA on businesses. These numbers are
particularly troubling because the impact has mostly been felt
by businesses and products that are not, and have never been, a
threat to child safety.
One of the primary concerns with the bill remains its
removal of the Commission's ability to use risk assessment in
their determinations. Even if the Commission determines that a
product is not harmful, no exemption for a product that could
result in the absorption of ``any'' lead, can be used.
I'm concerned with the upcoming end to the stay on third-
party testing and the next reduction and retroactive
application of the lead standard. Both of these will have
significant impacts on small businesses.
I also hope to discuss, with Chairman Tenenbaum and
Commissioner Northup, certain decisions that the Commission has
made in implementing the law. In some places, where the law
actually does allow flexibility to provide needed relief, the
Commission has instead chosen to expand the law's reach and
requirements, further complicating an already confusing set of
rules and regulations. The application of third-party testing
under certain general product safety rules the definition of a
``children's product,'' and last week's implementation of the
database are three such examples.
While concentrating on the Act, it is easy to forget that,
along with these mandates, CPSC must still fulfill the rest of
its charges and address other defective products that appear in
the marketplace. We need to make sure that the Commission's
resources are being used appropriately and are not being forced
to focus solely on implementing this law, to the exclusion or
detriment of the Commission's other important work. I'm very
interested to hear how the CPSC is coping with this challenge.
So, thank you all.
And thanks, to our witnesses, for agreeing to appear today
and sharing their expertise with us.
I look forward to a productive hearing.
Thank you, Mr. Chairman.
Senator Pryor. Thank you.
Senator Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Pryor. And thank you
very much for holding this hearing today, and for your
leadership in consumer protection.
I think all of us remember the notorious ``summer of
recalls'' and all the problems with imported toys. And, thanks
to your efforts, and especially the landmark 2008 Consumer
Product Safety Improvement Act, parents can have more
confidence, this holiday season, that their children's toys are
safe.
While we still had plenty of other recalls this summer, I'm
pleased that there is a new emphasis on consumer protection and
new leadership at the CPSC.
It's good to see CPSC Chairman Tenenbaum here, and
Commissioner Northup, who I served in the House of
Representatives with. I think they're both here for the first
time since Senate confirmation. And it's good to have you here
today with us.
I look forward to hearing about the implementation of the
2008 consumer safety legislation.
There is one issue, though, that I would like to focus on,
and I'll be more indepth on it in my questioning, but I wanted
to raise a pressing safety issue affecting millions of young
athletes. And that's the issue of football helmet safety. It's
an area where I think the CPSC could help improve children's
safety. And I'll get--as I said, I'll get into more detail of
that in my questioning.
But, I want to thank our witnesses today, and thank Senator
Pryor once again for this hearing.
Senator Pryor. Thank you, Senator Udall.
Both of our witnesses on the first panel have long and very
impressive resumes. But, what I'd like to do, with the
Committee's indulgence, is dispense with the reading of those
resumes and just stipulate that they're very well qualified and
we're very honored to have them here today. But, we have
chairman of the Consumer Product Safety Commission, Inez
Tenenbaum; and then we have one of the newer commissioners,
Anne Northup.
So, Chairman Tenenbaum, would you mind leading off?
Thank you.
STATEMENT OF HON. INEZ M. TENENBAUM, CHAIRMAN, CONSUMER PRODUCT
SAFETY COMMISSION
Ms. Tenenbaum. Good morning, Chairman Pryor and Ranking
Member Wicker, members of the Subcommittee on Consumer
Protection, Product Safety, and Insurance.
I'm pleased to have the opportunity to testify before the
Committee and share with you what the CPSC has done over the
past year to make this holiday shopping season safe for
families and safe for children. I will provide more details
later in my remarks, but parents and consumers should know that
there are new safeguards in place that give them more
confidence in the children's products for sale, and that they
have fewer hazards than in the past.
Since becoming the Chairman of the CPSC in June 2009, I
have focused on specific goals that I want to share with you:
The CPSC has focused on fair and effective implementation
of the CPSIA. In less than 2 years, the Commission has
published more than 50 rules and interpretive policy statements
implementing the CPSIA.
Strategic planning. We recently released the Commission's
new 5-year strategic plan, which lays out our goals and
objectives that will allow the CPSC to establish itself as the
global leader in consumer product safety.
The Commission has created a new Office of Education,
Global Outreach, and Small Business Ombudsman to provide
various stakeholders, domestic and international, including
manufacturers, retailers, resellers, small business, and
foreign government, more information. We will have a full- time
small-business ombudsman, who will be dedicated to serving the
nation's many smaller manufacturer, in the area of product
safety.
The Commission's import surveillance division is working
more closely with Customs and Border Protection to keep
dangerous products out of the United States. The CPSC has
increased the number of employees at the ports of entry from 5
to 19, located in 15 different ports.
In addition to these efforts to expand the overall
capabilities of the CPSC, we have also focused substantial
resources on several specific hazards.
One of the most important is addressing hazards in the
infant sleep environment. By the end of this year we will have
a new cribs safety rule that will prohibit dangerous drop-side
cribs from ever being sold again in the United States. The new
standard requires higher quality wood and hardware.
We also have continued our efforts to implement and enforce
the Virginia Graeme Baker Pool and Spa Safety Act. Earlier this
year, the CPSC kicked off its Pool Safely education campaign,
as part of a national effort to reduce child drownings and
entrapment in pools and spas. During this past year alone,
there have been more than 100 million views of broadcasts and
print materials relating to the Pool Safety campaign.
The CPSC is also aggressively continuing efforts to provide
relief to homeowners impacted by contaminated drywall. Since
becoming the chairman, I have personally visited impacted homes
in Florida and Virginia and know the frustration these
homeowners are facing. To deal with this, the Commission has
conducted the most extensive investigation in history. And I
look forward to sharing that with you later on in our question
and answer period.
Finally, we have redoubled our efforts to provide rapid
response to new and emerging hazards; we have taken aggressive
action to police the market for children's products that may
contain harmful levels of cadmium. And we will also be glad to
share that in detail with you later.
IT modernization. In March 2011, we will also unveil our
new public database on the safety of consumer products, which
was mandated by the CPSIA. The database will provide a powerful
source of information for consumers, allowing them to quickly
determine whether the products they already own or are
considering purchasing are associated with safety hazards or
recalls.
In this holiday season, the true measure of our success at
the CPSC is how we can help a young mother or father, who's out
shopping for toys, a crib, or a highchair, find safe, reliable
consumer products. Here's what the CPSC can promise them: that
the toys they buy are now covered by mandatory safety
standards; that the lead content and lead paint limits for toys
and children's products are among the lowest in the world now;
that children's products are now required to be tested for lead
by an independent, third-party laboratory; that the infant bath
seats and baby walkers they buy are now covered by mandatory
safety standards; that the most durable in infant/toddler
products, such as cribs, strollers, and play yards, now have to
have postage-paid registration cards so that the consumers can
fill out and return to be automatically notified for future
recalls involving these products; that all children's products,
to the extent practical, now have to have tracking labels that
make it easier for parents to determine if a product is subject
to a recall, even long after the packaging is thrown away.
And, Mr. Chairman, in the past 18 months, we have made the
CPSC into a regulatory agency that consumers can trust. We are
putting the interest of families first in making sure that the
public knows that the CPSC stands for safety.
Thank you again for allowing me to provide this testimony
today. I now look forward to answering any questions that you
or members of the Subcommittee may have.
[The prepared statement of Ms. Tenenbaum follows:]
Prepared Statement of Hon. Inez M. Tenenbaum, Chairman,
U.S. Consumer Product Safety Commission
Good morning, Chairman Pryor, Ranking Member Wicker, and members of
the Subcommittee on Consumer Protection, Product Safety, and Insurance.
I am pleased to be here today to provide an update to the Subcommittee
on the specific actions the U.S. Consumer Product Safety Commission
(CPSC) has taken over the past 18 months and the progress we have made
to protect American children and families from both existing and
emerging product safety hazards.
In August 2008, Congress passed the Consumer Product Safety
Improvement Act of 2008 (CPSIA) by overwhelming bipartisan majorities.
Passage of the CPSIA sent a strong message to both the Commission and
the consumer product manufacturing community: the old, reactive
approach to consumer product safety was not working. Instead, CPSIA
directed the Commission to pursue a new proactive approach focused on
keeping harmful products out of this country and--most importantly--out
of the hands of infants and children.
Chairman Pryor, I know you and many other members of this
Subcommittee spent untold hours working on this landmark legislation.
Since assuming the Chairmanship of the Commission in July 2009, I have
worked diligently to implement the CPSIA and use that Act's new
authorities in a manner that is both highly protective of consumers and
fair to industry stakeholders. In addition, I have focused on changing
the CPSC's internal business processes, so that the agency is more
assertive and more capable of addressing safety challenges presented by
thousands of types of consumer products imported from all over the
world.
Here are some specific examples of these efforts:
CPSIA Implementation: In less than 2 years, the Commission has
published more than 50 rules and interpretive policy statements
implementing the CPSIA. These rules included the implementation
of several significant provisions of the CPSIA, such as new
durable infant and toddler product standards, new product
registration cards that accompany many juvenile products, and
implementation of new mandatory toy safety standards. As part
of this process, the Commission has also issued several policy
statements designed to provide additional information on CPSIA
requirements to the regulated community, including small
businesses.
New CPSC Strategic Plan: During my confirmation hearing last
summer, I noted that one of my key goals for the Commission was
to align its priorities to the challenges we face in the global
economy. To address this, the CPSC launched a comprehensive
strategic planning initiative earlier this year to update the
Commission's outdated 2003 Strategic Plan. Out of this effort,
we recently released the Commission's new 2011-2016 Strategic
Plan, which lays out five key goals and also details
programmatic objectives that will allow the CPSC to establish
itself as the global leader in consumer product safety.
New Office of Education, Global Outreach and Small Business
Ombudsman: As Chairman, I have heard from many small businesses
and crafters who have asked for additional outreach and support
from the Commission as they work to produce safe products and
comply with the requirements of the CPSIA. I take these
concerns very seriously, and have made providing support and
outreach to small business entities and other industry
stakeholders a key priority.
On September 22, 2010, the Commission voted to create a new
office to coordinate and provide outreach to various domestic
and international stakeholders, including manufacturers,
retailers, resellers, small businesses, and foreign
governments. Within this office, we have a full-time Small
Business Ombudsman who is dedicated to serving the nation's
many smaller manufacturers in the area of product safety. In
particular, special attention will be given to developing
information tailored to small businesses and small batch
manufacturers so that they can understand and comply with new
standards.
Hazards in the Infant Sleep Environment: The overall safety of
cribs and the infant and toddler sleep environment is a
critical concern of the CPSC and a personal priority of mine.
Parents across the country expect cribs to be a sanctuary for
their children, regardless of price or size. Unfortunately,
that is not always the case. In the past 9 years, there have
been at least 32 deaths attributed to drop-side crib failures.
That, in and of itself, is a tragic number. However, the
majority of crib deaths are still directly linked to the use of
soft bedding in the crib.
To address this, I directed Commission staff to embark on a
two-prong action strategy. The first prong was to recall old,
dangerous drop-side cribs in the marketplace and promulgate new
mandatory crib safety rules that will prohibit dangerous drop-
side cribs from ever being sold again in the United States. I
am pleased to say that the Commission is currently in the final
process of reviewing a new mandatory crib safety rule, and it
should be approved by the end of the year. This is a promise I
have made to parents across the country.
The second prong of this initiative is education: teaching
parents and caregivers how to keep the inside of cribs free
from suffocation risks like stuffed animals, comforters, and
pillows. In partnership with the American Academy of Pediatrics
and a child advocacy group called Keeping Babies Safe, we have
a wonderful new Safe Sleep video that we are working to have
shown in maternity wards and pediatrician's offices around the
country. This video is currently available on the CPSC's
website, and I urge Members of the Subcommittee to view the
video and see its powerful message.
Import Surveillance: Traditionally, the Commission has spent
the bulk of its resources investigating harmful products in the
marketplace. This will always form a substantial part of the
CPSC's activities, but I believe the more effective approach is
ensuring that harmful products never even enter the country.
To that end, I have taken a number of steps to add additional
technological and human resources to the Commission's Import
Surveillance Division. This Division works directly with the
Department of Homeland Security (DHS) and Customs and Border
Protection (CBP) to keep dangerous products out of the United
States.
On the technological side, the CPSC recently executed two
interagency Memorandums of Understanding (MOUs) with CBP that
allow us to access additional ``real time'' importer
information, and target the most dangerous incoming shipments.
The first of these MOUs, signed in April, allows CPSC personnel
to work at CBP's Commercial Targeting and Analysis Center
(CTAC) in Washington, D.C., and access manifest entry data
collected by CBP. This, in turn, allows Import Surveillance
Division personnel at the ports to target high-risk shipments
prior to their entry into the domestic stream of commerce.
The second MOU, signed with CBP this past August, gives the
CPSC access to information in the Treasury Enforcement
Communications System (TECS). This will assist CPSC Import
Surveillance staff at the ports by providing them with
additional information to improve local targeting and
interdiction of dangerous products.
The CPSC is also actively involved in supporting the Importer
Self Assessment--Product Safety (ISA-PS) initiative that is
currently being piloted by CBP. The ISA-PS is intended as a
partnership between CBP, CPSC, and importers to ensure product
safety compliance. It is based on a voluntary approach that
provides meaningful benefits for importers who demonstrate
readiness to assume additional responsibility for managing and
monitoring their own product safety compliance.
We have also taken steps to increase CPSC's physical presence
at ports of entry. In Fiscal Year (FY) 2008, the Import
Surveillance Division only had five full-time employees (FTEs),
and of those only three FTEs were actually stationed at ports
of entry. During FY 2010, we expanded staffing in the Division
to 18 FTEs, with 14 FTEs actually stationed at ports of entry.
I am very pleased to announce that, as of November 11, 2010,
the Division now has 25 FTEs, with 19 FTEs collocated at 15
different ports of entry. Subject to appropriations, we hope to
put CPSC staff at even more ports of entry in the future.
Putting more ``cops on the beat'' has already yielded
substantial positive results. In FY 2010, we performed 6,953
screenings at ports, collected 1,776 samples for testing, and
of those found 987 that violated CPSC standards. At the same
time, we have also seen the number of recalls start to drop--
from 563 in FY 2008 to 428 in FY 2010. Maintaining those
positive trends is a key goal for the upcoming year.
Pool and Spa Safety: Earlier this year, the CPSC kicked off its
``Pool Safely'' education campaign as part of a national effort
to reduce child drownings and entrapments in pools and spas. As
part of this campaign, we partnered with families who lost
their children in pool and spa accidents and Members of
Congress at events in Florida, Texas, Minnesota, and
Washington, D.C. to spread the word that simple safety steps
can save lives in and around the water. We also unveiled a new
website, PoolSafely.gov, as well as new public service
announcements to provide the public with information aimed at
preventing child drownings and entrapments, as well as
educating public pool and spa operators about the requirements
of the Virginia Graeme Baker Pool and Spa Safety Act (Pool and
Spa Safety Act). During this past year alone, there were more
than 100 million views of broadcast and print materials related
to the Pool Safely campaign.
In addition to education and outreach, we have also conducted
an extensive series of inspections to verify compliance with
the Pool and Spa Safety Act. In 2010, the CPSC entered into
contracts with local health departments in a number of states,
including Florida, Missouri, Kentucky, and Washington, to
conduct public pool inspections. Under these contracts, 2,440
pools, spas, wading pools, and water activities at 1,557 sites
were inspected. I am pleased to announce that the compliance
rate observed was approximately 89 percent, which is higher
than the rate observed last year. It also demonstrates that the
Commission's outreach, education, and enforcement efforts are
having a meaningful effect in the overall effort to prevent
pool and spa deaths and injuries.
Contaminated Drywall Investigation: The Commission is
aggressively continuing its efforts to provide relief to
homeowners impacted by contaminated drywall. Since becoming
Chairman, I have personally visited impacted homes in Florida
and Virginia and know the frustration that these homeowners are
facing.
To deal with this issue, the Commission has conducted the most
extensive investigation in its history. As a result of the
science produced by this investigation, the Commission, working
in conjunction with the Department of Housing and Urban
Development, released impacted home identification guidelines
in January as well as interim remediation guidance this April.
These guidelines have allowed some of the impacted homeowners
to start repairing their homes and rebuilding their lives.
To assist in those efforts, the Commission worked with the
Internal Revenue Service on a recent Revenue Ruling declaring
that contaminated drywall is eligible for a casualty loss. The
CPSC's scientific data was also used as part of a recent
partial settlement agreement in the Drywall Multi-District
Litigation (MDL) in New Orleans, Louisiana. Under the terms of
the partial settlement, a demonstration remediation program has
been established that will remediate problem drywall for up to
300 homes in Alabama, Florida, Louisiana, and Mississippi that
contain drywall produced solely by Knauf Plasterboard Tianjin.
At the same time, however, I know that these initiatives will
not help all of the impacted homeowners. For that to happen, we
need the foreign manufacturers involved to come to the table
and do the right thing to assist homeowners. On October 26, I
personally discussed this issue with Zhu Shuping, Minister of
China's General Administration of Quality Supervision,
Inspection and Quarantine (AQSIQ) during the Second Triennial
United States--European Union--China Product Safety Summit in
Shanghai, and remain optimistic that Chinese manufacturers will
come to the table to resolve this matter. I also appreciate the
efforts of several members of this Subcommittee, including
Senators Nelson, Warner, Wicker, and Vitter, to provide
assistance on this issue.
Rapid Response to New and Emerging Hazards: The Commission has
increased its efforts to provide a rapid response to new and
emerging hazards. One example of this response is the CPSC's
efforts to stop the use of toxic metals in children's products.
Earlier this year, it came to our attention that some foreign
manufacturers might be using cadmium or other toxic metals as
an effort to get around the lead limits for children's
products. I sent a strong message to Asian manufacturers and
regulators that this was unacceptable and that we would not
allow there to be an influx of products with cadmium like we
saw a few years ago with lead. The Chinese government sent out
a directive a few weeks later on cadmium that used language
similar to mine. It appears that we have stayed ahead of this
issue.
Despite this early success, however, the Commission will remain
vigilant in this area. In response to the possible threat, the
CPSC has taken aggressive action to police the market for
children's products that may contain harmful levels of cadmium.
In addition, Commission staff recently released a guidance
document providing Acceptable Daily Intake (ADI) limits for
cadmium. We also sent this document to several standards
setting bodies--including the Committee that oversees the ASTM
F963 toy safety standard--with instructions to take action on
this issue. In the coming year, we will also look at the use of
other toxic metals such as barium and antimony, and the CPSC
will not hesitate to take further action in this area if
voluntary efforts prove insufficient.
The year 2010 has been extremely busy for the Commission, but we
are not done with our work. As we enter the heart of the holiday
shopping season this year, we will remain vigilant to identify
hazardous products in the marketplace. In December, we also hope to
roll out the first part of our new and improved CPSC.gov home page,
which will make it easier than ever for consumers to find information
on product recalls and common sense tips to keep their families safe.
In March 2011, we will also unveil our new publicly available
database on the safety of consumer products, which was mandated by
section 212 of the CPSIA. This database will provide a powerful source
of information for consumers, allowing them to quickly determine
whether products they already own, or are considering purchasing, are
associated with safety hazards or recalls. It will also allow consumers
to play a critical role in safety by empowering them to report
potential product hazards directly into the database.
I recognize that the rollout of this database has caused concern
among some in the manufacturing community who believe that it will
present ``unfiltered'' information that will be harmful to the business
community. I want to assure this Subcommittee that CPSC staff has
worked tirelessly to address these concerns and to ensure that the
database is fair to all stakeholders while also fulfilling the
intentions of Congress.
First, the database will not include reports of harm submitted
anonymously. Any reports filed must include contact information for the
CPSC's internal use. Second, the CPSC will give the product
manufacturer 10 business days to respond to a report of harm, to
provide comment on the report, and to let the Commission know if the
submission contains confidential or materially inaccurate information.
The rule also requires the Commission to remove or correct information
in the database it has determined to be materially inaccurate within 7
business days. Manufacturers also have the right to comment on the
reports and to have those comments as part of the publicly accessible
record.
At the same time, however, I think it is important to provide a
reminder of just how critical a resource this database will be for
consumers. Rather than use my words, I would like to repeat the words
of Lisa Olney, whose daughter died in a defective portable crib just
after her first birthday in 2002. Ms. Olney posted the following on the
Kids in Danger web blog:
On December 19, 2002, my daughter Elizabeth, just 13 months
old, died in a poorly designed play yard. I live my life often
looking back through ``what ifs'' and ``should haves,'' but
I've learned to give most of that up in order to save myself
from being a horribly miserable individual. Instead, I realize
the importance of focusing on efforts to protect our children
so that no parent has to suffer what I have, along with too
many other victims of unsafe children's products. The CPSC
database is going to protect millions of children, because it
provides a place to go when considering the choices parents
make when purchasing products, especially those products
intended to be beneficial to our children's safety.
This database will prevent injuries and save lives. Congress
recognized this when it added section 212 to the CPSIA, and I look
forward to seeing this important tool implemented next March.
Finally, I realize that a lot of the issues I just discussed are
fairly technical and involve internal Commission operations. In the
end, I know the true measure of success is how each of these items will
help the young mother or father find safe, reliable consumer products
as they are out shopping this holiday season for a crib, high chair, or
toys.
Here's what the CPSC promises them:
the toys they buy are now covered by mandatory safety
standards;
children's products are now required to be tested for lead
by an independent, third-party laboratory;
the infant bath seats and baby walkers they buy are now
covered by mandatory safety standards;
most durable and infant toddler products, such as cribs,
strollers, and play yards, now have postage paid registration
cards that consumers can fill out and return so they can be
automatically notified of any future recall involving these
products;
all children's products, to the extent practicable, now have
tracking labels that make it easier for parents to determine if
a product is subject to a recall--even long after the packaging
is thrown away; and
our inspectors will be hard at work in the ports and at
retailers, looking for hazards like high levels of lead paint
on toys or small parts that can break off and pose a choking
hazard.
Mr. Chairman, thank you again for allowing me to provide this
testimony today. I now look forward to answering any questions you or
other members of the Subcommittee may have.
Senator Pryor. Thank you.
Commissioner Northup.
STATEMENT OF HON. ANNE M. NORTHUP, COMMISSIONER, U.S. CONSUMER
PRODUCT SAFETY COMMISSION
Ms. Northup. Thank you, Mr. Chairman Pryor and Ranking
Member Senator Wicker. I'm delighted to be with you today.
This is, of course, my first visit since I had the
confirmation hearing, about a year and a half ago, and I have
learned a lot and have been very impressed with the work of the
CPSC. It certainly is incredibly important. And our Chair has,
just, managed and juggled a lot of responsibilities, assessing
emerging hazards and setting up a customs program that--Customs
and Border Patrol--that intercepts, before they ever get to our
shelves, products that might be hazardous to families and
children.
But, today I feel like I would be remiss if I didn't focus
most of my comments on what is preoccupying the overwhelming
amount of money and time at the Consumer Product Safety
Commission--and that is the implementation of the Consumer
Product Safety Improvement Act--and to share with you some of
the unintended consequences that we have been asked about, both
by Members of the Senate and by Members of the House, certainly
by the public, and give you an idea of, sort of, the challenges
that we face.
Let me start with the question of lead. We all know that
lead is dangerous if it is absorbed by a child. That means in
paint, that means in dirt that was--that gasoline--lead-based
gasoline got into the dirt, tracked into a house, a child can
absorb that lead. We know that it's dangerous if it is a lead
charm that is small enough that a child can swallow; and, in
fact, it can be fatal.
But, we can't treat all lead alike. And that's the problem
with the CPSIA. It treats every component that contains lead
exactly the same. It is not dangerous for a child to have lead
in their handlebars. It is not dangerous for a child to have
lead in a screw that provides strength and machinability and it
makes that a more secure product. And so, what we have done in
this law, by establishing a lead limit in every single
component of every single child's product, is to equate lead in
paint with lead in things that are not dangerous.
This has caused a huge disruption of the marketplace. First
of all, it has cost jobs. Senator Wicker mentioned some of
those, but I would be happy to submit for the record a list of
businesses that have closed entirely, businesses that have left
the children's product market, and businesses that tell us
that, when we lift the stay, in February, for third-party
testing and tracking, that--and labeling--that they will be
closing their doors.
Senator Pryor. Without objection.
Ms. Northup. Thank you.
The--it has also caused a huge disruption in choice.
Parents cannot go into stores they went into before and see
all the items, many that have been on our shelves for years and
are not--have not been dangerous to children, but have not
either been able to be remade with lead-free components or the
people that make them have just decided to sell them in stores
all around the world, including the EU, which has very high
standards, but just not endure the expense of complying with
our limitations. And let me just say that none of these--many
of these companies that have left, have left because they ever
had a risky product on the market.
When I was confirmed, Mr. Chairman and all the members of
this committee, when I spoke with you, you talked about
flexibility and looking for flexibility in the law. But, I can
tell you that, in many parts of this law, there simply is no
flexibility. And even in the areas where there is some
flexibility, usually by a 3-to-2 vote, the Commission has
chosen not to exercise that flexibility, out of caution. And
so, without changes by the Congress, this law is going to
continue to be--to cost jobs, choice, and raise the cost to
consumers.
When I was confirmed, I promised you that I would work
every day at the Consumer Product Safety Commission as if I
were protecting my own six children. And today I have four
grandchildren that I'm also thinking of every day. And, while
many of the initiatives that our Chairman just delineated for
you will make an important difference in our children's and our
grandchildren's safety, the--many of the provisions in the
CPSIA that are so costly, so complicated, and that are costing
jobs, would not be things that I would have welcomed for the
sake of my children. And if my husband or I had lost our job
because of a business that closed their doors for no--without
any regard to safety, I would be heartsick.
Thank you very much.
[The prepared statement of Ms. Northup follows:]
Prepared Statement of Hon. Anne M. Northup, Commissioner,
U.S. Consumer Product Safety Commission
Chairman Pryor and Ranking Member Wicker, thank you for the
opportunity to provide testimony to this Subcommittee regarding
oversight of the Consumer Product Safety Commission (CPSC). This
Commission has a proud history of assessing risk and providing
leadership in consumer product safety issues across a variety of
industries.
As a Commissioner since August of 2009, I now have a tremendous
appreciation for the work that goes on in an agency, including the time
and effort that agencies expend implementing the laws Congress passes.
It is not a simple task, and my colleague, Chairman Tenenbaum, has put
in countless hours to ensure that the Commission meets its deadlines
and fulfills the difficult tasks it has been given.
Chairman Tenenbaum has been a strong advocate in working with our
partners in China to elevate the priority of product safety and to
ensure that manufacturers can implement safety measures as far back in
the manufacturing process as possible. She has made progress in our
import safety objectives, including an agreement with Customs and
Border Protection to allow our staff to view shipment documents earlier
in the process before potentially hazardous shipments enter the United
States. The Chairman's staff also continues to find creative, useful
ways to use social media outlets to advertise product safety messages
for families and parents. These achievements are impressive.
CPSIA
Despite areas of progress, I would be remiss as a Commissioner if I
failed to mention that the central focus of the agency's time and
resources in both 2009 and 2010 has been on implementing a law that has
almost nothing to do with improving safety--the Consumer Product Safety
Improvement Act of 2008, or CPSIA. Although the Commission is a
relatively small agency (FY 2010 funding of $118 million), its budget
has grown by nearly 48 percent since the law's passage in 2008, with
both old and new resources shifted away from more risk-based priorities
to implement the arbitrary, non risk-based priorities of the CPSIA,
including the leadin-substrate ban, phthalates ban, consumer database,
and third-party testing, certification and labeling requirements.
Today's hearing provides an excellent opportunity to shed light on many
of the unintended consequences of this law, its impact on our agency
and, more importantly, the economy.
As a bit of background, while we know the context in which the
CPSIA was passed in 2008, Members of Congress on both sides of the
aisle today acknowledge the need for the law's reform. Both Democrat
and Republican Members of Congress have introduced bills to fix the
CPSIA. The House Energy and Commerce Committee held a hearing earlier
this year on potential CPSIA amendments, and the Appropriations
Committees of the House and Senate requested a Report from the five
Commissioners back in January on ways to amend the CPSIA to avoid its
many unintended consequences. (See the following link for the Report to
Congress and the Commissioners' five statements: www.cpsc.gov/about/
cpsia/cpsiareport01152010
.pdf). Thus, to say that the law enjoys the broad support it held in
2008 is simply untrue.
The Commission continues to hear from manufacturers, retailers, and
Members of Congress that the CPSIA has impacted products that no one
anticipated would be affected and which this Commission would not
consider unsafe. For example, the law impacts furniture, bikes,
recreational equipment, books, rugs, nuts and bolts used to make these
products, clothing, school equipment and supplies--and a host of other
categories that fall under the rubric of ``children's products.'' The
law has caused companies to have to reengineer products to be lead-free
(with no measurable benefit to safety) to leave the children's market,
or to close altogether. I have brought with me a list of such
businesses which I will submit for the record.
Risks Associated with Lead
It is important to clarify the risks associated with lead. Some
advocates, including witnesses in your second panel today, will say
that ``there is no safe level of lead'' which implies that none of us
can ever spend enough time and money to reduce or eliminate lead
everywhere. However, an important fact to follow up this statement
would be that there exists an unsafe level of lead, which has been
established by our leading scientific agencies, the National Institutes
of Health, the Centers for Disease Control and the Environmental
Protection Agency. The fact is, lead that is ``absorbable'' at greater
than minimal levels is dangerous, especially to children ages five and
under.
In order to determine risk, it is necessary to make a distinction
between lead that is absorbable and lead that is not absorbable, at
least not in meaningful amounts. In many other laws relating to
absorbable lead levels, standards exist to allow for such minimal
absorption. For example, the Food and Drug Administration allows for
0.1 microgram of lead in a one-gram piece of candy.\1\ The Safe
Drinking Water Act declares ``zero lead'' to be the objective for the
amount of lead in water, but the pipes themselves are permitted to be
80,000 parts per million (8 percent) lead--allowing for negligible,
trace amounts to exist in the water we drink.\2\ California Proposition
65 \3\ as well as the European Union \4\ allow for a negligible amount
of absorbable (or soluble) lead in children's products. People often
are surprised to learn that all children are born with a certain blood
lead level, depending on the blood lead level of the mother. Some
additional amount of lead (roughly one microgram per kilogram of body
weight) \5\ is then taken into the body every day through just the food
we eat and the air we breathe.
---------------------------------------------------------------------------
\1\ ``Supporting Document for Recommended Maximum Level for Lead in
Candy Likely To Be Consumed Frequently by Small Children,'' Food and
Drug Administration, November 2006: http://www.fda.gov/Food/FoodSafety/
FoodContaminantsAdulteration/Metals/Lead/ucm172050.htm.
\2\ Environmental Protection Agency, Safe Water Drinking Act, Fact
Sheets: http://www.epa
.gov/safewater/sdwa/basicinformation.html.
\3\ California Office of Environmental Health Hazard Assessment
(OEHHA), Proposition 65--http://www.oehha.org/prop65.html, Children's
Health at OEHHA--http://oehha.ca.gov/public_info/public/kids/
schools041707.html.
\4\ European Committee for Standardization (CEN), EN 71-3 Safety of
Toys--Part 3: Migration of certain elements. CEN, Brussels, Belgium,
1994: http://ec.europa.eu/enterprise/policies/european-standards/
documents/harmonisedstandards-legislation/list-references/toys/.
\5\ Centers for Disease Control, Agency for Toxic Substances and
Disease Registry, Toxic Substances Portal: Lead: http://
www.atsdr.cdc.gov/PHS/PHS.asp?id=92&tid=22.
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So what lead is actually risky? Lead is risky when it is absorbable
into the bloodstream at significant levels. The experts at the CDC and
NIH have found that lead paint in old houses as well as lead in dirt
\6\ near old gas stations can be very dangerous for small children
(http://www.cdc.gov/nceh/lead/.) In other words, the risk of
absorbability with lead paint in an old home that becomes chipped and
may be inhaled or ingested is quite high. In the same vein, a lead-
laden metal charm or piece of jewelry that can be swallowed presents a
danger since such an item could get caught in the stomach and absorbed.
However, none of these agencies, including the CPSC, has ever found
that a child touching a brass musical instrument, touching a vinyl
lunchbox, or riding a bicycle, could ever rub off enough lead, day
after day, year after year, to affect his or her health.
---------------------------------------------------------------------------
\6\ Although lead in dirt is a proven hazard for small children
nearby to old gas stations that used leaded gasoline or certain
pesticides, it is notable that the Environmental Protection Agency
standard for lead in soil is 400 ppm. http://www.epa.gov/lead/ This
standard for safety is less strict than the current lead content
standard provided in the CPSIA for children's products, which is 300
ppm and scheduled to fall to 100 ppm in August of 2011.
---------------------------------------------------------------------------
Now let us look at the CPSIA's lead requirements in comparison to
these known lead hazards in the environment today. The CPSIA's
arbitrary lead content limits (currently 300 ppm, and moving to 100 ppm
by next August) remove the ability of the Commission to assess risk, or
the absorbability that exists for a particular product. In other words,
the law's lead content levels dictate that the metal handle bars of a
bike that pose no health risk to a child be outlawed right alongside
lead paint or a solid-lead charm on a piece of children's jewelry that
is dangerous.
The effect of the CPSIA has been to outlaw children's books
published before 1985 that are likely to have lead in the inks, for
example, which both the Commission and Congress now feel was an
overreach because children are not likely to eat the pages of old books
or ingest more than miniscule amounts of lead after touching their
pages. Likewise, youth ATVs and bicycles are outlawed or must be
reengineered even though the lead that is in the hood, handlebars, or
hubcaps will not become ingested and absorbed at any discernable level
(from hand to mouth touching where miniscule amounts of lead may rub
off--not from actually eating the hood, handlebars or hubcaps). Other
everyday products such as school lockers, the hinges on a child's
dresser, or jackets with zippers and buttons are outlawed if they
contain tiny levels of lead in the substrate. Even ball point pens may
be outlawed if they have a toy or game attached to them and are
marketed to children, due to the brass found on the tip.
Finally, children do not live cooped up inside of their rooms
surrounded only by ``children's products.'' Children live throughout
the house, run around outside, and are exposed to lead in their
everyday environment. In fact, they are surrounded by it: in the car
(adult seat belts, window cranks) and in their homes (pots, pans,
furniture knobs, door handles, appliances, lamps). These products do
not threaten a child's health because the lead in them is not
absorbable. Hence, it makes little sense that the CPSIA bans products
with higher than 300 ppm lead content in such products as children's
furniture, children's rugs, toys and children's clothing--while
children themselves are likely to spend more time outside their room
handling the TV remote (an adult product), playing on their parents'
furniture, or playing with just about anything else.
The Costs to the Economy
While there have been no tangible benefits resulting from the
CPSIA's arbitrary lead limits, the costs to businesses have been
tremendous--and continue to pile up. In March 2009, the Commission
estimated that the economic costs associated with the law would be ``in
the billions of dollars range.'' \7\ Industry associations from
furniture and mattress manufacturers to handmade toy makers have told
us how they will be saddled with enormous costs since every component
of every product they make (down to the screws in the furniture) will
have to be sent to a third-party lab to be tested for lead and all
other applicable standards. We have heard from businesses that have had
to cut jobs to be able to afford the new testing and compliance costs,
reduce product lines, leave the children's market completely, or
close--all of this, when the full effects of the law (and I would
argue, the most costly mandates) have yet to be felt.\8\
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\7\ Letter from Acting CPSC Chairman Nancy Nord to Representative
John Dingell, March 20, 2009.
\8\ Currently, the Commission has put in place a stay on the lead
content testing requirements until February of 2011. A stay was first
enacted in February of 2009 following the confusion that ensued after
the law's passage. The Commission voted 5-0 in December of 2009 to
continue the stay for another year (until February of 2011).
Additionally, the Commission has yet to accredit labs for testing to
the phthalates ban or the toy standard, which will impose even greater
testing burdens. While these three major testing requirements have not
even kicked in, many businesses have been forced to plan ahead for the
new costs and have already determined they cannot maintain their
business and also comply with the CPSIA.
---------------------------------------------------------------------------
The entire process companies must go through to produce a toy or
children's product has drastically changed. Take, for instance, a
child's doll. To be compliant with the law, a company must pay to have
the doll's body, hair, each color of paint on the lips or eyes, and the
doll's clothing tested in an independent lab for lead content--and soon
will have to do the same for phthalates and to every applicable
component of the ASTM F-963 toy standard. According to a brief small
business analysis by our agency, the cost to test one toy could range
from $3,712 to $7,348--not taking into account that the toy will likely
change to stay competitive for the next Christmas season, or sooner,
and every material change triggers a whole new set of tests.\9\ These
costs also do not include the cost to add a tracking label, to certify
to these third-party tests, and to maintain the data and paperwork to
be able to trace each and every component and material back to its
specific test and lot number. All of these steps are required by the
CPSIA without any regard for the actual risk of a product.
---------------------------------------------------------------------------
\9\ Regulatory Flexibility Analysis: Testing and Labeling
Pertaining to Product Certification, 16 CFR Part 1107, Notice of
Proposed Rulemaking, CPSC Docket No. CPSC-2010-0038. May 20, 2010.
---------------------------------------------------------------------------
In fact, while the costs to companies to reengineer products to
meet the lead limits has been steep, many tell us that the ongoing
costs to third party test, label and track every component have been
much higher--and without any measurable benefit. For example, one
furniture manufacturing company informed us they spent upwards of $13
million putting together a testing, tracking, and labeling system for
their children's furniture while discovering that not one of their
components was in violation of the new lead limits and needed to be
replaced. There was clearly no safety benefit, yet they have faced
enormous costs. Large and small companies alike have to hire a lawyer
or other outside expert just to ensure they understand the extent to
which their products may or may not be impacted by various provisions
of the law.\10\ This is what happens when regulations do not have to be
cost-benefit justified.
---------------------------------------------------------------------------
\10\ ``Mattel Finds CPSIA to be a Challenge,'' Product Safety
Letter, November 9, 2009.
---------------------------------------------------------------------------
The CPSIA fails to make any distinction between large and small
businesses, or foreign and domestic manufacturing, thus giving an
obvious competitive advantage to large manufacturers who produce items
overseas, where manufacturing and testing costs are cheaper. As a
result, large toy manufacturers have turned a corner to become
supportive of the new regulations and clearly see the competitive
advantage that the law gives them over their smaller competitors.
Meanwhile, the backbone of our economy, small businesses--from screen
printers to manufacturers of chemistry sets for schools--are being
forced to cut jobs or take other drastic measures due to the cost of
compliance. Given the urgency of our economic situation, this
Commission would benefit today from hearing from Members of this
Committee on whether these results are what you expected.
Role of the Commission
While the Commission has the authority to provide flexibility
regarding the frequency of third-party testing requirements under the
law, it does not have the ability to exempt companies altogether from
burdensome testing requirements that do not improve safety. More
specifically, the Commission lacks the authority to exempt
manufacturers of otherwise safe products from the following: (1) the
initial, third-party test of every product or component to the law's
lead, phthalates and other mandatory standards; (2) a new, third-party
test of any product or component after any ``material change'' in the
product; or (3) the cost to certify, provide tracking labels, and
maintain the data to trace each and every component. Without changes to
the statute, the Commission's hands are tied in addressing these
arduous requirements, the main CPSIA costs burdening small businesses.
When I was confirmed, every Senator with whom I met asked me to
look for flexibility in the CPSIA in order to reduce the impact of the
law where safety was not compromised. I have taken those conversations
to heart. However, given that the majority of Commissioners so far has
interpreted this law in an even more sweeping manner than required, I
now believe that our ability to reduce the law's economic impact has
waned. It is imperative that we inform you of these challenges and
encourage the Congress to alleviate any unnecessary economic impacts on
small businesses and families.
Thus, in this Committee's consideration of reforms to the CPSIA, I
would recommend various ways to give the Commission authority to
provide needed flexibility, including: (1) allowing for de minimis,
absorbable lead in children's products, which, as mentioned previously,
would by itself remove harmless products from most all of the
burdensome requirements of the law (and would allow us to harmonize our
standards with the European standards); (2) allowing small businesses
the option of a ``reasonable testing program'' rather than a third-
party test; (3) providing discretion to the Commission to determine the
need for any third-party testing or tracking label requirements at all
for various product categories; and (4) lower the age range for the
types of products impacted by the law to focus on age groups (e.g.,
under age 6) at risk of meaningful lead exposure. Any of these reforms
would improve the existing law and allow the Commission to focus its
energy where we know the risks lie.
Costs to the Commission
Not only has the implementation of the CPSIA continued to burden
small businesses and derail job growth, but the law clearly has taken
us away from our core mission of safety. As a result, this Commission
is spending millions in limited resources in implementing and enforcing
a law that is not helping consumers--a worrisome situation given the
state of our economy and the need for all of us to find ways to reduce
Federal spending.
A prime example of wasted taxpayer resources--$29 million worth in
fact--will be the consumer database that the Commission is tasked with
implementing early next year. The CPSIA requires that the Commission
establish and maintain a database on the safety of consumer products
that is publicly available and searchable on the Commission's website.
Unfortunately, the majority of the Commission adopted a rule just last
week that will make the database useless or worse. Among other
problems, the rule defines consumers to include just about everyone, so
that reports of harm can be submitted by people with ulterior motives
rather than just the actual consumers who suffered harm and have
firsthand information about the consumer product. In addition, the rule
has interpreted a 10-day deadline in the statute to require agency
staff to post reports of harm even though the agency has received
credible claims of material inaccuracy, even if the staff has not had
time to resolve those claims yet. Finally, since groups with ulterior
motives (trial lawyers, competitors, groups wanting to sell a
``remedial'' product, or an association wanting to lobby Congress for a
new mandate) can submit reports into this database without providing
the consumer's name, it is unlikely that the Commission will be able to
ascertain critical facts related to a product. Such blatant disregard
for accurate data will undermine the whole purpose of the database--to
assist consumers trying to purchase safe products. It will also raise
prices, kill jobs, and damage the reputations of safe and responsible
manufacturers indiscriminately.
Chairman Henry Waxman's Proposal to Add a ``Functional Purpose''
Exemption
It is important to note that Chairman Waxman of the House Energy
and Commerce Committee has proposed a very limited ``fix'' to the
problems of the CPSIA, known as a ``functional purpose'' exemption.
Specifically, the proposal would entail giving the Commission authority
to exempt a company's products from the CPSIA's lead limits if the
company can show that the lead in the product serves a ``functional
purpose.'' Unfortunately, this ``fix'' would do more harm than good.
Adding a ``functional purpose'' exemption to the Commission's
authorities would not provide the kind of broad exclusion flexibility
that the Commission unanimously sought in our January Report to
Congress. The concept is too narrow, expensive, and uncertain to
provide much relief, particularly for small businesses that are
unlikely to have the resources available to determine available lead
substitutes or even to put together as successful petition to a Federal
agency. Most companies will not have the in-house expertise
(metallurgic, etc.) to make the kind of showings that would be required
to meet the burden of proof for an exception. So just as the exorbitant
testing costs of the CPSIA favor large companies (who manufacture
overseas) over small ones, so too will the exemption process favor the
large companies with greater ability to spread their costs.
Furthermore, forcing a component-by-component review of exceptions to
the law does nothing to enhance safety, and it converts the Commission
from a safety oversight agency (like the FAA) into a product approval
agency (like the FDA). That will slow the pace of innovation and
dramatically increase the cost and lead time for bringing new products
to market.
Conclusion
Today, Americans still enjoy a marketplace that is brimming with
new products and a variety of choices in color, cost and complexity--
but we are steadily diminishing these opportunities. As a Commissioner,
I strive to maintain and expand the type of marketplace that Americans
consumers want--vibrancy, choice, and the confidence that consumer
products are safe. All of this is possible in a successful market,
where consumers demand ever more innovative products from a variety of
sources and businesses look for opportunities to meet those demands.
However, the CPSIA has and will continue to drastically reduce the
number of inherently safe products available in our country. I hope the
Congress will restore the responsibility of assessing risk to the
experts at the CPSC and allow us to keep our markets both safe and
dynamic.
Thank you, Mr. Chairman and members of the Committee for calling
this oversight hearing and for inviting me to testify today.
Senator Pryor. Thank you.
Chairman Tenenbaum, let me start with you, if I may. And I
know you've really had your hand full--hands full with the
implementation of the CPSIA, and it's just been more than a
full-time job for you and the Commission and all of your
staffs, and I would say, overall, I think people understand the
effort that you put into this, and you guys have done a great
job. Not that everybody always agrees on everything, but you
guys have worked very, very hard to implement the law.
But, I would like to ask you, Madam Chairman, about your
Safe Sleep campaign. And I'm curious about what prompted that,
and how it's going, and what kind of results you're seeing
around the country.
Ms. Tenenbaum. Thank you, Mr. Chairman.
The Safe Sleep campaign was an effort that we created
because of the numerous cribs that were recalled because of the
drop-sides. And, getting further into the data, it wasn't just
the drop-side cribs where children were being suffocated. The
number-one reason why children are suffocated is because of
soft bedding, not having anything to do with the product.
People fill up a baby bed with comforters, toys, and pillows,
and the child can roll into these items and suffocate.
So, what we wanted to do was to create this Safe Sleep
campaign along with having a new crib standard.
We created a new Safe Sleep team, at the Commission, in the
wake of all of the recalls, because the drop-side problems were
going back years, even before I came into the Commission. And
what this Safe Sleep campaign did was notify the public of 32
deaths reported to the CPSC in the past 10 years attributable
to the drop-side. In less than 9 months we negotiated the crib
manufacturer and retailers to bring about 18 voluntary crib
recalls across all kinds of companies.
So, this month, in December, we will have a new crib
standard. We have not had a new one in 20 years. There will be
no more traditional drop-sides, those are banned now; we will
have new wood strength; mattress support requirements, so the
mattress won't fall down; and stronger hardware requirements.
We also joined with the American Academy of Pediatrics and
Keeping Babies Safe, a nonprofit organization, and we made a
video. Joan Lunden, who used to be on the Good Morning America,
hosted the video. The video discusses how to keep your own
child safe, not only from a defective product, but also safe
bedding. We launched this video last month in New York at one
of the hospitals. We'd like to continue to seek private funding
so we can have this video in physicians' offices,
pediatricians, anyplace--in airports, where you have video
playing constantly--so people will know how to keep their own
baby safe.
Senator Pryor. Commissioner Northup, you mentioned, in your
testimony a few moments ago, that many parts of the law, of
this CPSIA law--many parts of the law have no flexibility in
there. Now, you spent some time on lead. What else, in your
opinion, has no flexibility with it?
Ms. Northup. Well, let me get to, specifically, one of the
questions that I believe you asked me, and also questions that
the other members of the Committee asked. And that is about
absorbability; it goes to lead. But, you provided exclusions in
the law for products that could contain lead. And one of them
was lead that was in products where the--where lead could not
be absorbed. This would be handlebars; this would be ATVs for
example.
Senator Pryor. Right.
Ms. Northup. And what the Commission has decided is that
there's not one single product that would benefit from that
exclusion; that the fact that you could rub your hands on a
handlebar and get one molecule on your--and that one-tenth of a
percent--of 1 percent of that molecule is lead, then you could
put it--your hand in your mouth--that that would be
absorbability. And so, absolutely no component would qualify
for that flexibility.
Now, I guess I presume that, when you write--when you wrote
that exclusion into the law, you meant for it to actually mean
something, that there actually would be components that would
qualify for that exclusion. But, the majority has decided that
not one single component does qualify. And that's why every
snap, every spoke of a bicycle, every hinge on a dresser,
every----
And let me just carry that a little further and point out
that a child doesn't stay in a bubble in--with children's
products. They get in a car and--for millions of dollars, they
refashioned the car seat so that the buckle no longer has lead
in it. It provided strength and protection, so reengineering it
was very expensive. But, the child can reach right down on the
seat and pick up the adult seatbelt and play with it, and it's
loaded with lead. And a child is going to crawl right out of
their room into the--onto the carpet of the house, into the
kitchen, open the drawer, with door handles that have lead on
them. And none of this raises our concern, because when lead,
in very small amounts, is embedded in metal, it's not going to
be absorbable at any measurable level. So, that would be one of
the areas.
Senator Pryor. Right. Well--but, my question was----
Ms. Northup. Yes. Let me give you----
Senator Pryor. You covered lead----
Ms. Northup.--another one.
Senator Pryor. You covered----
Ms. Northup. Definition of a ``child's product''----
Senator Pryor. OK.
Ms. Northup.--would be another one. All of the requirements
of the CPSIA are extremely expensive; not just that you have to
comply with the lead, but also that you have to third-party
test, that you have to certify to those third-party tests, that
you have to provide tracking labels that make sure--that show
every single test that was relevant. So, when it comes to
carpet and all these other things, the question is, are you
going to put a fence around children's products that capture as
many products as you can, including lamps, including, say,
something that spins on the ceiling the child could never
touch, or are you going to put a fence around fewer products
that would be determined to be children's products?
And I guess I felt that we should--if there was no risk
involved, that we should have put that fence around the
definition of a ``children's product'' more narrowly so that
things like--beyond the tests that are required in the CPSIA--
tests for flammability of rugs, tests for other components--now
not only are people that make children's products going to have
to test them to all the lead/phthalate standards--coating
standards--they're now also going to have to do third-party
tests for any other applicable standard, that wasn't really
clearly mandated in the law. And now we have captured as many
of these products as we possibly can in this trap by setting a
very broad fence instead of a more narrow fence that might have
just focused on risky products.
Senator Pryor. All right. Let me ask one more thing about
your testimony. And I'm--I've overstayed my time, here, but I
would like to ask one more question and----
In your written testimony, on page 2, you said that, ``It's
a law that has almost nothing to do with improving safety.''
And, to me, that's an astounding statement, because when we've
added staff there--don't you agree that that has to do with
improving safety?
Ms. Northup. Let me say that I think that the CPSC has done
a fabulous job in----
Senator Pryor. Now, answer----
Ms. Northup.--improving safety.
Senator Pryor.--my question.
Ms. Northup. The CPSIA----
Senator Pryor. Answer--OK, yes.
Ms. Northup.--in particular, what we are working on, which
is--we haven't even gotten to phthalates--which is lead, it has
not been focused on risk. There's no focus on risk.
Senator Pryor. Well, that's not what you said here. You
said, ``a law that has almost nothing to do with improving
safety.'' And my point is that part of the CPSIA was to
increase the staff level so that the Consumer Product Safety
Commission staff could do more research----
Ms. Northup. Yes.
Senator Pryor.--to improve your facilities. I would think
that you would agree with me that that improves safety. To do
all the things that the CPSC is now authorized under the CPSIA
to deal with imports--we were--we've been flooded with imports
in this country, and many of those have not been safe. And the
Commission has taken the lead role in the world to go and make
sure that those products coming into the U.S. are safe. And I
know you may disagree with some of the lead issues, but, still,
those are designed to improve safety. In fact, part of the
CPSIA is the ATV rule, which probably predates you being on the
Commission, I know, but to get some of these cheap imported
ATVs off the market that didn't meet any safety standards that
the other ATVs met. I think all of that has to do with
improving safety. But, in your statement, you said this law has
almost nothing to do with improving safety.
Ms. Northup. I probably should have clarified that. I
agree, that is not a well worded statement.
And let me just say that almost every provision in the law
was meant to address a real risk, and I recognize that. And I
think that the agency has done a good job at addressing risks.
But, when it comes to technically implementing the components
of this law because of some of the very narrow language or the
narrow interpretation, what we're doing has less to do with
safety than complying with very regimented requirements that
gets away from risk, gets away from an agency that is--has such
a proud history. I mean, every night, we get the overnight
incident reports of children that have died. And you do see
trends and you do see ways of spending our resources in
intervening. And the chair, with the Safe Sleep, has been very
creative in this. But, that's not what the CPSIA primarily is
focused on. It's focused on very regimented requirements that--
--
You know, I'll give you one other example with the Safe
Sleep. The drop-side cribs is--has been masterfully handled, in
my opinion. It did risk children's lives. And we did recalls.
It's been a very step-by-step implementation. Unfortunately,
when we did recalls of drop-side cribs, every single daycare
center had to replace, immediately, their cribs that they used
that were drop-side cribs. So, they have brand new cribs. Sixty
days after we pass this new standard, or if we give them an
extension in a year--up to a year, which we possibly might do--
they're going to have to carry those brand new cribs out the
door and throw them in the trash, because--even though there's
no determination that any of them are unsafe--because the bill
has an immediate effect rather than saying ``just what's
purchased in the market or what has been determined to be
risky.'' I sort of wonder if that's what you intended. That is
hundreds of thousands of cribs that will be obsolete the day it
goes into effect.
Senator Pryor. Well, I don't know how that's going to play
out, but what--I've overstayed my time--but, we--the CPSI did
have a--CPSIA did have a mandatory rulemaking on cribs, and I
appreciate you all doing it. But, we need to probably talk
about this, you and I, offline at some point. And I know the
Ranking Member and I have talked about this before, and we
mentioned it a few moments ago, about--we recognize that, you
know, this law on the books probably needs to be looked at
again. And there are probably some areas that, you know, maybe
we should give some more flexibility to CPSC. And the Chairman
and I have talked about that a few times. And I know that she's
had discussions on the House side. And I actually talked to Joe
Barton yesterday about a little bit of this as well, assuming
he's the Chairman over there. It's something that, you know, we
will work through.
But, anyway, I've over-----
Ms. Northup. Thank you.
Senator Pryor.--overstayed my time. So, Senator Wicker.
Senator Wicker. I actually don't mind at all that the Chair
overstayed his time, because I thought it was a very
interesting and informative line of questioning.
I want to talk about the budget, the ``appropriations''
level that you've requested over time, and see what we can do
about that, in light of the federal government's deficit,
during the past fiscal year of $1.3 trillion. In 2 short fiscal
years, this government has added over $3 trillion to the
national debt. There is a hue and cry from the public for us to
do something about that. And I think every agency's going to
have to be involved in that. There was a Debt Commission report
yesterday that should trouble every American and every
policymaker.
During the last 2 years, the appropriation for CPSC has
increased 47 percent. And I know the Chairman and Ms. Northup
talked about personnel; I assume that was a large part of that.
But, the Fiscal Year 2008 appropriation was $80 million. That
increased some $25.4 million, to $105 million, in 2009. The
figure reached $118.2 million Fiscal Year 2010. And there is a
request for another $400,000 more.
With that thought in mind, I'd like to ask both of you what
suggestions you can give us of ways the CPSC can actually
reduce its budget and be a part of the solution of reducing our
federal deficit.
Ms. Tenenbaum. Thank you----
Senator Wicker. Ms. Tenenbaum?
Ms. Tenenbaum.--Senator Wicker. One of the things that was
brought about when the Congress passed the CPSIA was the fact
that the CPSC was cut so many times that it was unable to
fulfill its statutory duties. And so, rather than just have
three commissioners, it was decided that five commissioners
would be funded, and that we would have a higher authorization,
and we would also be encouraged to hire more people.
In fact, our FTE goal this year--and every time I have
testified in front of Congress, people want to know, ``Where
are you?''--was to be at 530. We are now at 520 FTEs and we
have 19 conditional hires. That is because we had the new law,
the CPSIA. Not only were we required to pass all these new
rules, we also are required to enforce them.
We also needed a new laboratory, and we are opening that
new laboratory in April. And we'd love for you and your staff
to come tour the new laboratory.
Senator Wicker. I'll certainly do that.
Ms. Tenenbaum. OK, please. Thank you.
We also need more outreach into China. The FDA has put
people in China because so much of our food is coming from
China. We just opened our office at the U.S. Embassy in China,
and have two staff members working with the Chinese on
products.
We've asked to be held harmless, in terms of budget cuts,
because of the fact that we are just now implementing this very
complex law. And we are now seeing a reduction in the number of
recalls. Our presence in the ports has gone from 5 people at
the ports to 19 people at the ports.
But, all that said and done, we realize that we're a small
agency and that we have to contain our budget. And so, what
we've done is be much more creative in working with other
agencies. Our relationship with Customs and Border Patrol is
closer than ever before. We work with them to stop products
from coming into the United States.
We also are reaching out to colleges and universities. I've
made visits to one university--we're going to another one--to
ask them if they could work with us on research, and providing
professors to train manufacturers in foreign countries so that
they will know what the rules are for products coming into the
United States.
We have identified certain line items that could be cut if
we need to be cut, and we'll be glad to provide that to you--
for you and your staff. We can send it----
Senator Wicker. Could I----
Ms. Tenenbaum.--after----
Senator Wicker.--ask that you provide it for the record?
Ms. Tenenbaum. Sure. We will provide it for the record. We
have already sent it----
Senator Wicker. When----
Ms. Tenenbaum.--to OMB.
[The information referred to follows:]
United States Consumer Product Safety Commission
Bethesda, MD, December 2, 2010
Hon. Roger F. Wicker,
Ranking Member,
Subcommittee on Consumer Protection, Product Safety, and Insurance,
U.S. Senate,
Washington, DC.
Dear Ranking Member Wicker:
Thank you for your questions at today's hearing regarding the U.S.
Consumer Product Safety Commission's (CPSC) budget priorities,
implementation of the Consumer Product Safety Improvement Act of 2008
(CPSIA), and ongoing activities to reduce injuries and deaths caused by
defective or unsafe consumer products. 1 appreciated the opportunity to
discuss these issues with you, and the progress we have made
strengthening the Commission over the past year.
As discussed at the hearing, I believe that any reduction in the
amounts proposed in our Fiscal Year (FY) 2011 budget request would be
detrimental to the agency's mission, and that the CPSC should he ``held
harmless'' in this year's budgetary process. Actual full time employee
(FTE) staffing levels at the Commission dropped from a high of 978 in
1980 to a low of 396 FTE equivalents in 2008. This decline in staffing,
combined with annual funding, was devastating to the agency's overall
effectiveness--as was illustrated by the ``Summer of Recalls'' in 2008.
In the last 2 years, the agency has made great strides rebuilding
and working to ensure that the consumer products used by American
families are safe. We are extremely grateful for the funding increases
provided by the appropriators and have used this funding wisely and
judiciously. While our proposed FY 2011 funding level is still almost
30 percent below the 1980 level (adjusted for inflation), I believe the
current level positions the agency for success in the future.
Although we have exercised fiscal restraint, 1 am keenly aware that
Congress may consider across-the-board cuts for agencies. Therefore,
pursuant to your request. attached please find a list of preliminary FY
2011 budget items that Commission staff have identified should any
across-the-board cuts be implemented by Congress. I would note that
these items were identified by staff, and have not been approved by the
full Commission.
Thank you in advance for your support of the CPSC. Should you or
your staff have any questions, please do not hesitate to contact me or
Christopher Day, Director of Congressional Relations.
Very truly yours,
Inez M. Tenenbaum,
Chairman.
FY 2011 CPSC Budget Request Summary Adjusted to Reflect Potential
Mandatory Across the Board Cuts
[Dollars in Thousands]
2011 Request $118,600
============
Reductions in 2011 Current Services Changes:
Federal Pay Increase with Related Benefits ($937)
Consumer Hotline ($266)
IT Help Desk ($266)
Reductions From Base
Operating Expense ($225)
Total Potential Mandatory Across the Board ($1,694)
Cuts
Total Potential Revised Requirements $116,906
============
Senator Wicker.--do we normally get those, Mr. Chairman?
Senator Pryor. We can hold the record open for as long as
we want. But, if we want to try to get something----
Senator Wicker. How soon could you provide that----
Ms. Tenenbaum. We could----
Senator Wicker.--list, Ms. Tenenbaum?
Ms. Tenenbaum.--this today.
Senator Wicker. OK.
Ms. Tenenbaum. We can provide----
Senator Wicker. Wonderful.
Ms. Tenenbaum.--it today.
Senator Wicker. Ms. Northup, I wonder this: What if every
agency asked to be held harmless? We wouldn't be able to do
anything about the budget deficit, would we?
Ms. Northup. Well, I'm reminded that you and I sat next to
each other on appropriations committees for years, so I'm not
surprised I got this question.
Let me make a creative suggestion. I would--if--here's sort
of an off-the-wall suggestion: Go from five commissioners to
one administrator. I have so much faith in Inez Tenenbaum's
ability to chair this agency. I'm probably the only person who
will come before you and suggest putting me out of a job. But,
each one of us have a staff. And it is--the rulemaking is very,
very complicated. But, what happens is that we find ourselves,
you know, investing greats amount of time and effort and
research, and our staffs are involved in how to research, say,
this rulemaking. On the other side, the Democrats are involved
in the same way. And so, rather than the chair being able to
just work with the general counsel and the professionals that
are at the agency, she is pulled by the Democrat mayor--members
to one side; we pull to the side of flexibility. And so,
there's great polarization.
And I actually think that her ability to balance the
initiatives, all the ones that she has brought up, are probably
the things that have had the--made the most difference in
safety. They are the things that she is able to do
individually, as opposed to the rulemaking. And I think the
rulemaking would go smoother; and, quite honestly, I think it
would have been more balanced, had it not been five
commissioners.
So, I would just say that you have a chance to debate the
pros and cons of every single bill. You have people that--on
both side of the aisle, that have different opinions, and
people that come from different perspectives. Once you write
the bill, I'm not sure it's so helpful to have four more
commissioners that are debating these same things for hours and
hours and hours, hiring their own staff, taking up a lot of
office space, keeping the office of the general counsel and the
professional staff busy answering all of our questions, when
maybe the Administrator should be charged with that
responsibility.
Senator Wicker. How large is your staff, Ms. Northup?
Ms. Northup. I have three people to--one that's paid
$150,000 a year, one that's paid $100,000 a year, and one
that's paid $50,000 a year.
Senator Wicker. Well, I've followed the Chair's example and
overstayed my time. Let me just say this. We hear a lot of talk
about moving the appropriation level back to the 2008 level of
expenditure. What the Chair, Chairman Tenenbaum, has suggested
is that this agency be exempted from that. Ms. Northup has
suggested what I think would probably amount to modest savings.
I just have to say this. If we're going to be serious about
this, and if there are ways that we can provide flexibility,
keep people employed in the private sector, and quit talking
about products that have never been unsafe and toys that have
never caused a problem and lead-containing handlebars that have
never harmed one single human being in the history of their
manufacture, then we need to think about those solutions. And,
if we don't, we're going to have a real problem with doing the
simple things of cutting back on discretionary expenditures,
much less the excruciating and much more difficult issue of the
entitlements.
And I thank you, Mr. Chairman.
I thank these witnesses.
Senator Pryor. Thank you.
Senator Udall, I believe, has to leave here----
Senator Udall. Thank you.
Senator Pryor.--in a few minutes. So----
Senator Udall. Thank you. Well, thank you, Chairman Pryor.
And it was a very good exchange. But, I think one of the
important things, Ranking Member Wicker--when we talk about
safety and talk about budgets at the same time, I think it is
very important that we give the agency the budget they need in
order to protect consumers and to protect safety. And I think
that's what the Chairwoman is talking about.
Let me thank you, Chairman Tenenbaum, for your testimony
today, and CPSC's work to protect consumers from unsafe
products. And I have some additional questions for the record,
but I'd like to focus on the safety issue that I brought up in
my opening statement.
Senator Udall. You know, fall is football time in America.
And every year, more than a million high school kids put on
their gear and take to the gridiron, including about 8,000 in
my home state of New Mexico. This weekend, in fact, teams from
our larger high schools will compete for the State
Championship.
Football is a uniquely American tradition. But, football is
a contact sport, and thousands of student athletes are injured
every year. Many of those injuries are concussions. For young
people between the age of 15 and 24 years old, playing sports
is the second leading cause of traumatic brain injury, second
only to motor vehicle crashes.
New Mexico actually has one of the nation's best school
sports concussion laws. We require athletes--and it was
authored by a fine young state senator, named Senator Michael
Sanchez--we require athletes who suffer a concussion to sit on
the sidelines for one week and until a medical professional
approves their return to play.
But, I'm concerned that our young athletes may not be using
the best safety equipment. Traditional football helmets--I had
a couple here, but I don't want to bring--first, I was just
going to bring one up, and then my staff said, ``Well, you''--
this is our--two-college football----
[Laughter.]
Senator Udall.--and you can imagine, they compete with each
other. And so, they--and I said, ``Well, we just need one.''
And they said, ``No, you can't put up one without putting the
other.'' New Mexico--University of New Mexico and New Mexico
State. So, anyway----
Senator Klobuchar. And where's the Gopher?
Senator Udall.--these helmets----
Senator Klobuchar. The Gopher.
Senator Udall. Where's the----
Senator Klobuchar. Minnesota Gophers.
Senator Udall. Well, these are Lobos. These----
Senator Klobuchar. Yes.
Senator Udall. You got a----
Senator Klobuchar. Yes, I know. But----
Senator Udall.--Lobo and an Aggie----
Senator Klobuchar. Yes, well----
Senator Udall.--right here. So, yes.
Senator Klobuchar.--you know----
Senator Udall. OK.
Senator Klobuchar.--we should expand.
Senator Udall. You can bring your helmets in----
Senator Klobuchar. OK.
Senator Udall.--if you want.
Senator Klobuchar. Thank you.
[Laughter.]
Senator Udall. These helmets are primarily designed to
prevent serious injury from a severe direct blow that can crack
one's head open. However, football helmets are designed to a
safety standard that specifically addresses the dangers from
less severe impacts and indirect hits that can cause a
concussion. More advanced football helmet designs are
available, but the voluntary industry standard has not kept up
with the latest technology. The current helmet standard is also
a one-size-fits-all approach, from kids playing Pop Warner, the
youngest kids, to the pros in the NFL. So, one size fits all.
I believe that the CPSC has a responsibility to ensure that
football helmets meet safety standards that address concussion
hazards and reflect the state-of-the-art helmet technology. And
there's a lot of discussion out there with neurosurgeons and
other experts.
And really my question to you--I guess I have two
questions: Will you review whether the voluntary football
helmet standard and certification practices adequately protect
high school and younger athletes from concussion? And will you
follow up with the football helmet standards organization,
NOCSAE, to make sure they address these safety concerns,
especially complaints that the standard is out of date?
Please, go ahead.
Ms. Tenenbaum. Thank you, Senator Udall. I completely share
your concerns. And I want to provide you and the rest of the
members of this subcommittee with some specifics on what we are
going to do on this issue going forward.
First of all, in keeping with this mission of protecting
consumers from unreasonable risk of serious injury or death
from consumer products, including sports equipment such as
football helmets, CPSC is committed to working within the
standards development community to improve helmet safety
standards and testing. More specifically, I felt that it was
vital for the CPSC staff to establish contact with the
personnel of NOCSAE, the standards-setting body. And we've
already made contact with them, and we will continue working
with them.
So, based on this initial outreach, the CPSC technical
staff will be joining NOCSAE's standards development process in
January in order to monitor and help accelerate their efforts
to update the appropriate standards. So, we have already
started that.
In addition, we continue to consider other avenues to
augment this effort. I will use the bully pulpit as Chairman of
the Consumer Product Safety Commission, and we will do all that
we can to make sure that the standards-making organization is
looking at all the best engineering and science.
Every man in my family played football. I still have
pictures of my father, in high school and college, wearing his
leather football helmet. And we are great football fans. We're
looking forward to University of South Carolina playing Auburn
for the SEC Championship on Saturday.
But, I'm very concerned, as you are, about the safety of
people and the number of concussions. I've followed the news
stories about how many people are hurt, and particularly high
school students who are just learning how to tackle and can get
hurt more seriously. So, we are with you on this and want you
to know that we will keep you updated periodically on our
progress.
Senator Udall. Thank you very much. And I went over, a
little bit, in my time----
Ms. Tenenbaum. I did, too.
Senator Udall.--so, I appreciate the courtesies from the
Chairman.
But, I really appreciate you moving ahead aggressively, and
doing what you've done already, and really look forward to
working with you and all of the people, out there across the
country, that I think have a great concern about these serious
safety issues.
Thank you. Thank you very much.
Ms. Tenenbaum. Thank you.
Senator Pryor. Senator Klobuchar.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you very much.
Thank you, to both of you, for your service.
I just remember, back in the early days, when I got here,
which is not that long ago, and the issues, as I know Chairman
Pryor remembers, with the CPSC, and our frustrations with a lot
of the toys that were coming in from China. We had everything
from the Aquadots, that were making kids go into a coma, to the
little charm that was swallowed by a little boy in Minneapolis;
a 4-year-old boy, whose mom had gotten a pair of tennis shoes,
swallows the charm and dies. And when they tested the charm, it
was 99 percent lead. That kid didn't ask for that charm. The
mom didn't ask for that charm. It was given free with a pair of
tennis shoes.
And so, we realized, at that point, that we need to update
our statutes. And I think, at the same time, with legislation
as detailed and sweeping as the CPSIA, it should come as no
surprise that certain clarifications and adjustments need to be
made, especially as many small manufacturers, retailers,
secondhand stores, as well as ATV/bicycle enthusiasts, have
been trying to comply with the law, and that there are issues
that need to be handled in a pragmatic way.
I know that the Commission granted a one-year stay of
enforcement of the testing requirements, and a two-year stay of
enforcement for the lead-content limits on youth-model ATVs,
snowmobiles, and motorcycles. And so, that is where some of my
questions are.
I guess the first one would just be a general question for
you, Chairman Tenenbaum. How would you compare the safety of
toys today versus in 2007, before the bill was passed? And what
kind of information do you think parents should now have
available as they go into the holiday season?
Ms. Tenenbaum. Well, thank you, Senator Klobuchar.
We have worked very hard to impress upon manufacturers that
they need to get lead out of children's products. And we are
seeing the number of recalls decline; we've seen the number of
recall products with lead decline. And that is why we think
that given the resources and the renewed vigor that you've
provided in the CPSIA, you're going to see even more
improvements over time.
I'll focus on just your question and not the issue of lead
content. In my earlier statement, I said consumers are safer.
One, we have third-party testing. It is onerous for people to
have to third-party test. But, you have products coming in from
China; 80 percent of all the toys that we sell in the United
States are manufactured in China. I have toured factories in
China, with American brand names--and they said, ``We need the
third-party testing because we have a complex supply chain, and
it protects us and removes our risk.''
Two, we now have tracking labels. We didn't have a one-
size-fits-all approach. We took into account small
manufacturers. But, tracking labels will help a consumer, a
parent, know where that product was manufactured, if there are
problems with them.
We also have worked very hard with small businesses, we've
provided seminars, we've had outreach. I have an open-door
policy. The first year of my tenure, I had meeting after
meeting with all kinds of industry to hear their concerns.
Senator Klobuchar. You know, and--could I just follow up on
that a bit? Because, again, I appreciate the work that has been
done is--there were a lot of businesses involved in getting
this law done, including the ATV industry, which is major in my
state. And they actually, as Chairman Pryor mentioned, were
very concerned about some of the imports that were coming in
from other countries that didn't meet our safety standards.
But, what they didn't expect, because of some provisions added
at the last minute, that this bill was going to cover, like,
thinking kids were going to, like, suck on brake pedals or
something. So, I just want to get to some of those concerns----
Ms. Tenenbaum. OK.
Senator Klobuchar.--as well--as you know, I was supportive
of this bill, in general. But, I'll start--maybe I'll start
with some of the ATV issues. And I do appreciate the stay, with
regard to enforcing the CPSIA, against ATVs built for the youth
market, until this April. But, what has happened now is, four
out of eight major manufacturers have, nonetheless, removed
themselves from the youth market. And maybe some people think
that's good, but the problem is that I'm afraid that kids are
going to ride adult ATVs now. And even the CPSC's own studies
show that 90 percent of ATV-related injuries to children occur
while riding the larger ATVs.
And so, what do you think we can do to get a permanent
solution, here? I know the electronics industry got itself
exempted out of this. ATV was supportive of this bill, because
of the import issue, and it's ironic, indeed, that there isn't
some way to resolve this. And do you think we need legislation?
Or what do you think we need to do to fix this?
Ms. Tenenbaum. Well, on a temporary basis, we've asked the
ATV industry to provide us with information, because the stay
for testing does lift in May for ATVs and bicycles. And we
asked them to provide us information on how they intend to
comply. If these manufacturers believe they're not going to be
able to comply with the requirements, then they can submit a
petition to the Commission asking us to extend the stay. But in
meeting several times with the ATV industry, they need a
permanent solution.
And so, what--when we all work together--and Commissioner
Northup and I disagree on this approach, on a functional-
purpose exemption. Under the Federal Hazardous Substance Act,
we had a functional purpose exemption. So, if you came with a
chemistry set, you had to have types of chemicals in the set in
order to make it a functional purpose. So, you were given an
exemption by the CPSC, under the FHSA.
We want a functional-purpose exemption. Instead of just
wholesale gutting the CPSIA, let's do some surgery on it. Under
the functional-purpose exemption, if you came in with an ATV
and said, ``Look, we need lead in this machine to make it
stronger. Children are not going to mouth or swallow any of
these components. And it's not going to pose a risk to the
health of anyone who rides it, in terms of lead exposure.'' We
could give you an exemption, a blanket exemption for the whole
industry, a blanket exemption for bicycles. However, we do not
want--to make it more complicated--and Commissioner Northup has
pointed this out--you don't need regulations on this. If we
have to write rules to have a functional purpose, it will bog
us down, and we'll have to go through all this extensive
rulemaking.
Just let us give the exemption. We don't have to make it
overly burdensome. We don't want people to have to spend
thousands of dollars coming up with this petition and proving
to us that it's too costly to have something else in the
market. Just file the petition, we'll look at it, we'll make a
determination.
And that's how we thought we could get ATVs and bicycles
and products that are not a high risk out of the lead
requirements. But, if you make us do the rulemaking and make it
overly burdensome, it's going to be too expensive for industry
to comply with the CPSIA.
Senator Klobuchar. OK.
I know Ms. Northup wants to respond. And were we going to
have a second round here? Because I have----
Senator Pryor. I wasn't going to----
Senator Klobuchar. OK.
Senator Pryor.--but why don't we let her respond----
Senator Klobuchar. OK. All right. Northup.
Ms. Northup. Let me say that I think our goal is the same
here, some sort of realistic--allowing the lead content to be
whatever it is that's necessary to hold the ATV or the bike or
whatever together. But functional- purposes, as it has been
proposed, any proposal I have seen for it, has said, ``if there
is another--no alternative material that'll provide this same
thing, if there's no harm to the children.''
Well, first of all, I'd just say, if there's no harm to the
child, why would there be any other reason anyway to outlaw
this screw, nut, bolt, whatever. But, it means that big
industries, like ATV--and I respect how important it is to you,
particularly--they can summon the money and the metallurgical
studies to show that there's nothing that meets that standard,
or whatever. But, small businesses or businesses like--that
make school science kits, they don't have the number of
products and the price range in order to spread out the cost of
a petition, and especially for toys or for science kits that
may evolve.
You know, the ATV may get an exemption across the industry,
but, so many other companies, this would be far too
complicated, far too expensive for them to file a petition, to
wait until we can act on it. The petitions we've acted on so
far have taken months, and we've turned every one of them down.
So, I would just say, there are people that believe you
should never give an exemption, if there is any possibility you
don't have to, regardless of risk and--because of the
precedent-setting. And you're going to continue that debate if
it's just a functional-purpose exemption.
Senator Klobuchar. And I know the Chairman wants to
respond, but I am heartened somewhat; you both have the same
intent to try----
Ms. Tenenbaum. We do.
Senator Klobuchar.--to be pragmatic about how to respond to
this. OK.
Ms. Tenenbaum. We do. And Commissioner Northup gets into,
``If it's not a risk, then just exempt it.'' You can also
exempt it. If you want to exempt ATVs out of a piece of
legislation--or bicycles--you have the power to do that. If you
ask the Commission to go back and look at risk of every product
to determine whether or not there's any lead absorbed and
whether it changes the blood lead level, we will be back where
we were before the CPSIA.
You decided, in Congress, that you would go with a content
standard--300 parts per million, it's going to be reduced to
100 parts per million. You did not do a solubility standard,
because there were so many variables and there are no known
safe levels of lead. An article in this morning's Washington
Post, was about the lead pipes here in Washington D.C. There is
no blood lead level that is considerable safe for children. And
so, that's where we are. We go back and forth about, ``Well,
this isn't a risk.'' Well, if it's not a risk, and
manufacturers have to have it in their product, then we will
give them a functional-purpose exemption. We don't have to make
it expensive or complicated.
But, you chose the total lead limit instead of solubility,
for several reasons. One, bioavailability, which Commissioner
Northup talked about, on how much lead you can get by rubbing a
bicycle depends on the child. Every child is different. If
you're a young child, you're going to absorb more lead. If
you're a----
Senator Klobuchar. OK.
Ms. Tenenbaum.--malnutritioned child--I'm sorry, I'm using
your time.
Senator Klobuchar. No----
Ms. Tenenbaum. It also depends on the product. Vinyl
degrades with age and produces more lead, and also the
viability tests are diverse. And so, there----
Senator Klobuchar. OK. Now----
Ms. Tenenbaum.--were so many variables.
Senator Klobuchar. But----
Ms. Tenenbaum. And that's why you stopped at 300----
Senator Klobuchar. So--right--so, is there some degree of,
until we solve this, which approach we want to take here to
address these pragmatic concerns? And is another extension a
possibility, then? And that's what we'll----
Ms. Tenenbaum. It is a number--a strong possibility----
Senator Klobuchar. OK.
Ms. Tenenbaum.--if we can start this conversation in
Congress about making these changes to the law.
Senator Klobuchar. OK----
Ms. Northup. Let me----
Ms. Tenenbaum. It is a strong
Senator Klobuchar. OK----
Ms. Tenenbaum.--possibility.
Senator Klobuchar. Why don't we--do you want to--what I'll
do is put some questions in writing, so that we can continue
this discussion, and maybe in my office as well, because I know
we have another panel waiting. And then I also had some follow-
ups, which I can do in writing, of the--Dan Marshall, from my
state, is the owner of Pea Pods Natural Toys and Baby Care
store, in Saint Paul. They obviously have some concerns with
the third-party testing and how that applies to small
businesses. And I will raise those in writing, as well.
Senator Klobuchar. And then, the last thing that I wanted
to follow up on was, again, to thank the Commission for its
work on the Graeme Baker Pool and Spa Safety Act, something I
worked very hard on, Senator Pryor worked hard on.
And I know that we're seeing some good compliance rates
with the Pool Safety Act, and I wanted to thank you for that,
both of you and the Commission, and the work that's going on.
It's a very important thing. We had a little girl die in
Minnesota, and that bill has meant a lot to the people of our
state and that family.
So, thank you.
Ms. Tenenbaum. Thank you.
Senator Pryor. Thank you, Senator Klobuchar. Thank you for
being here.
And our time for this panel is up, so what we will do is,
we will leave the record open, because I have some follow-up
questions as well, and I know Senator Klobuchar does, and, I
want to say, Senator Wicker and a few others that couldn't be
here because there's a lot going on today in the Senate. They
have the Armed Services Committee hearing, but lots of other
things, as well.
So, we'll leave the record open, and we will send you
written questions and--how long will we leave it open--we'll
leave it open for 2 weeks, but we'd love to get those responses
as quickly as possible.
Senator Pryor. And, as we alluded to before, there'll
probably be some other dialogue that happens here, not just in
the next couple of weeks, but over the next few months, I'm
sure.
But, anyway, thank you all for being here.
I'm going to go ahead and introduce our second panel, but--
--
Ms. Tenenbaum. Thank you, Senator----
Senator Pryor.--thank you both----
Ms. Northup. Thank you----
Senator Pryor.--very much----
Ms. Tenenbaum.--Mr. Chairman.
Senator Pryor.--for your time and your service.
The second panel, I'm going to go ahead and just read their
names and give a super-short introduction for them.
Like the first panel, they all come with great credentials
and a great background. But, what I will do, as the staff is
rearranging here, and as the folks are coming and going here--
--
Our first panelist will be Ms. Rachel Weintraub. She's
Director of Product Safety and Senior Counsel at the Consumer
Federation of America. Second is Mr. Steve Lamar. He's
Executive Vice President of American Apparel and Footwear
Association. Third is Dr. Garry Gardner, American Academy of
Pediatrics Chair, Committee on Injury Violence and Poison
Prevention. And, fourth, Ms. Jill Chuckas, Board Member,
Handmade Toy Alliance and, I believe, the Owner of Crafty Baby,
LLC.
So, what I'd like to do is just do a 5-minute introduction
for each one of you all. Then we'll have questions.
So, Ms. Weintraub, you want to lead off, here?
Thank you.
STATEMENT OF RACHEL WEINTRAUB,
DIRECTOR OF PRODUCT SAFETY AND SENIOR COUNSEL,
CONSUMER FEDERATION OF AMERICA
Ms. Weintraub. OK. Thank you.
Thank you, Chairman Pryor.
I'm Rachel Weintraub, Director of Product Safety and Senior
Counsel with Consumer Federation of America. CFA is an
association of nearly 300 nonprofit consumer organizations that
was established in 1968 to advance the consumer interests
through research, advocacy, and education.
I offer this testimony on behalf of CFA as well as
Consumers Union, Kids in Danger, and the U.S. Public Interest
Research Group.
Thank you very much for inviting me to testify before you
today.
Today is the first day of Chanukah, Christmas is just 23
days away, and the holiday buying season has officially begun.
Our country's tradition of gift-giving provides a useful
perspective through which to comment on the Consumer Product
Safety Improvement Act in particular, and the Consumer Product
Safety Commission in general.
While consumers should think about how the child interacts
with the product, if there are other children in the house, or
whether the product has been previously recalled, before a
product is purchased, there are some issues that no amount of
planning or thought can detect. It is this realm of hidden
hazards that the CPSIA and the CPSC have sought to detect and
to prevent.
Before passage of the CPSIA, Congress undertook a year-long
process to consider the implications of this Act, and the
leadership of this subcommittee was an essential and important
part of that process. The CPSIA's passage followed a period of
a record number of recalls of hazardous products that injured,
sickened, or killed vulnerable consumers and sought to repair a
weakened oversight agency that failed in its meager efforts to
protect public health and safety.
In response, Congress passed the CPSIA, which makes
consumer products safer by banning lead and phthalates in toys,
creating a publicly accessible consumer incident database,
giving the CPSC more resources, increasing civil penalties, and
requiring that toys and infant products be tested for safety to
strong standards before they are sold and in our children's
hands. This proactive approach will benefit the public as well
as manufacturers by avoiding costly recalls.
There have been numerous successes in implementing the
CPSIA. The mandatory crib standard, close to being finalized,
that's required by Section 104, is an important example. We
applaud the CPSC for prioritizing the safety of infant sleep
environments, in light of the deaths of many children due to
poorly designed cribs, bassinets, and cradles, which have led
to the recall of more than 7 million cribs over the past 2
years. Only since passage of the CPSA--CPSIA--has an effort
been made to strengthen crib standards.
Another success of the CPSIA is last week's passage of the
final rule implementing the Consumer Product Safety Information
Database. As a result of the CPSC staff's leadership and
commitment, consumers will have access to lifesaving
information. And the agency will more nimbly be able to
identify and act upon safety hazards. The final rule is
consistent with Congressional intent, responsive to the public-
interest need for disclosure, and protective of a
manufacturer's effort to protect their brand and confidential
business information.
When consumers purchase toys for children online this year,
the same choking-hazard warnings that appear on toy packaging
will also appear online. That's an important consumer
protection, considering today's shopping trends. The CPSIA
requires that infant-durable products, such as cribs,
strollers, and highchairs, include a product registration card
in their packaging and provide an opportunity to register
online. This will give manufacturers information necessary to
directly communicate with consumers, the consumers who bought
the product, in the event of a recall or other product safety.
And this will greatly increase recall effectiveness.
Since passage of the CPSIA there have been challenges: a
CPSC that initially moved slowly and gave out confusing
information, an economic downturn that has affected businesses,
the realization that lead and other heavy metals, such as
cadmium, are more pervasive in consumer products than had been
expected, as well as concern about the laws implementation
consistently raised by manufacturers, small businesses,
crafters, and thrift stores.
CPSC has been managing these challenges. They've held
numerous public meetings and hearings. CPSC has provided clear
information to stakeholders, through numerous publications. In
addition, CPSC is establishing a new Office of Education Global
Outreach and Small Business Ombudsman to carryout education/
outreach activities to stakeholders. The CPSC also issued an
interim enforcement policy, related to component testing, that
should be finalized soon.
But, some efforts in response to these challenges go too
far and would open a series of gaping loopholes in the CPSIA
that would allow more lead into a host of children's products.
First, some have argued, or some will argue, that the
CPSIA's scope should be limited to children under 6, from what
it--it's now 12 years and younger. The reality is that children
of younger ages play with their older siblings' toys all the
time, and the voluntary standard goes up to 14. Many companies
are already applying with those voluntary safety standards.
Second, some have proposed that risk analysis be applied
for regulating lead in products. Requiring a piecemeal approach
for lead, which is a known toxin, would be wasteful of taxpayer
money and government resources. It would reverse the
presumption for safety of products and allow all products to be
sold and be exempt from testing for lead unless CPSC finds
otherwise. This would be a return to the state of the law
before CPSIA was passed. CPSC would not act until a child had
been harmed by a lead-laden product. This would result in an
unreasonable risk to children.
Cadmium has been another challenge. And there is now a
voluntary standard that is moving, that hopefully will be
proactive. And if that is not proactive enough, CPSC should
move on a mandatory standard for cadmium.
We thank you, Chairman Pryor, for your important leadership
on product safety issues. We look forward to working together
to protect the public from harms posed by hazardous products.
And I wish everyone a happy and safe holiday season.
[The prepared statement of Ms. Weintraub follows:]
Prepared Statement of Rachel Weintraub, Director of Product Safety and
Senior Counsel, Consumer Federation of America
Chairman Pryor and members of the Subcommittee on Consumer
Protection, Product Safety and Insurance, I am Rachel Weintraub,
Director of Product Safety and Senior Counsel at Consumer Federation of
America (CFA). CFA is an association of nearly 300 nonprofit consumer
organizations that was established in 1968 to advance the consumer
interest through research, advocacy and education. I offer this
testimony on behalf of Consumer Federation of America as well as
Consumers Union, Kids in Danger, and the U.S. Public Interest Research
Group. Thank you for inviting me to testify before you today.
Today is the first day of Chanukah, Christmas is just 23 days away,
and the holiday buying season officially began last Friday. The holiday
season, with our country's tradition of gift giving, provides a useful
perspective through which to observe and comment on the Consumer
Product Safety Improvement Act of 2008 (CPSIA) in particular and the
Consumer Product Safety Commission in general. Whenever we make a
purchase for our family and friends, most people assume that the
product they are considering is safe. While purchasers think about what
the person would like, what they want or need or what they requested,
an underlying assumption is that the product we are choosing will not
cause harm. While consumers do need to think about how the child
interacts with the product, if there are other children in the house
who may play with the product, or whether the product has been
previously recalled, there are some issues that no amount of thought or
planning can detect. It is the realm of hidden hazards that the CPSIA
and CPSC have sought to detect and prevent.
The bipartisan Consumer Product Safety Improvement Act passed
overwhelmingly in the House on July 30, 2008 by a vote of 424-1, in the
Senate on July 31, 2008, by a vote of 89-3 and was signed into law by
President Bush on August 14, 2008. Before this law passed, Congress
undertook a year-long 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
once each chamber passed its version of the bill, there was a
conference in regular order between both Houses of Congress. The
leadership of this subcommittee was significant and much needed as this
law was moving through Congress. This law institutes the most
significant improvements to the Consumer Product Safety Commission
(CPSC) since the agency was established in the 1970s.
CPSIA's Significance, New Requirements and Implementation
The CPSIA's passage followed a period of a record number of recalls
of hazardous products from the market that injured, sickened, or killed
vulnerable consumers. The bill's passage was also in response to a
weakened Federal oversight agency that failed in its meager efforts to
protect the public's health and safety.
Before the CPSIA was passed, CPSC's past as well as its future was
bleak. In 1972, when CPSC was created, the agency was appropriated
$34.7 million and 786 full time employees (FTEs). Before the CPSIA
passed, the agency's budget had not kept up with inflation, had not
kept up with its deteriorating infrastructure, had not kept up with
increasing data collection needs, had not kept up with the fast-paced
changes occurring in consumer product development, and had not kept
pace with the vast increase in the number of different types of
consumer products on the market. CPSC's staff had suffered severe and
repeated cuts during the last two decades, falling from a high of 978
employees in 1980 to just 401 in 2007--a loss of almost 60 percent.
For example, CPSC's 2008 Performance Budget document painted a grim
picture of the CPSC's future work. The budget document was full of
statements such as, ``while the CPSC has thus far been successful at
facing these new and evolving challenges with diminishing resources,
the 2008 funding level will challenge the Commission's ability to
maintain its existing level of standards development, enforcement,
public information, and international activities.'' \1\ The 2008
Performance Budget document was replete with staffing cuts, limitations
to programmatic goals and the absence of previous goals and projects.
CPSC's efforts to reduce product hazards to children and families were
hindered by the forced reductions in FTEs.
---------------------------------------------------------------------------
\1\&& U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page vii. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
In response to this dismal picture, Congress infused the CPSC with
new authority and more resources. It has been over 2 years since the
CPSIA was passed. This relatively new law will make consumer products
safer by requiring that toys and infant products be tested for safety
before they are sold, and by banning lead and phthalates in toys
(although implementation of the testing requirement has been twice
delayed by the CPSC). The law also authorizes the first comprehensive
publicly accessible consumer complaint database due to be launched next
March; gives the CPSC the resources it needs to protect the public,
such as enabling it to hire additional staff; increases civil penalties
that the CPSC can assess against violators of consumer product safety
laws; and protects whistleblowers who report product safety defects.
Many consumers believed that products were tested before they were
sold--that some entity issued stamps of approval for products before
they were sold in the store. However, that was never true. Before
passage of the CPSIA, the CPSC for the most part had authority only
over products after they were sold. If a problem was identified as
posing a risk of harm to consumers, the CPSC could recall the product,
but that was only after the hazardous product was already in consumers'
homes and in their children's hands. 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. A proactive safety system should benefit the public as well as
manufacturers by avoiding costly recalls.
CPSC and CPSIA Successes
Mandatory Crib Standard
While there have been challenges there have also been successes in
implementing the CPSIA. One of the most notable examples is the
mandatory crib standard that is required by section 104 of the CPSIA.
The CPSC is close to finalizing the final rule for cribs. We applaud
the CPSC for prioritizing the safety of infant sleep environments in
light of the deaths of many children due to poorly designed cribs,
bassinets, and play yards. Pervasive design flaws have lead to the
recall of more than 7 million cribs over the past 2 years. It was
essential that the CPSC place safe sleep environments at the top of
their mandatory standards-setting list as part of that initiative.
Recalls and corrective actions for cribs have been issued for non-
compliance with safety standards; strangulation hazards; risk of head
entrapment when side rails, spindles, and slats in side rails become
loose; risk of suffocation; choking hazards; risk of falling; and
danger of laceration when fingers become trapped in folding drop
gates.\2\
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\2\ Kids in Danger, http://www.kidsindanger.org/prodhazards/
recalls/cribs.asp.
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While the current voluntary crib standards ban the drop-side design
in new cribs, only since passage of the CPSIA has there been an effort
made to strengthen the voluntary and mandatory standards and require
testing and verification of new cribs. The final CPSC crib standard
incorporates many provisions that consumer advocates have been
supporting for years that replicate the real world use of cribs, such
as durability tests, mattress support tests, and tests for the
effectiveness of hardware. The resulting proposed CPSC standard is a
strong one and is a successful consequence of the CPSIA. In addition,
Chairman Tenenbaum and her staff have been successfully reaching out to
consumers through the Safe Sleep Campaign and have made it clear to all
stakeholders that creating safe cribs and sleep environments is an
imperative.
Section 104(c) of the CPSIA seeks to address hazards posed by older
model cribs by removing them from the market. This section applies to
cribs sold new and used, cribs used in child care facilities, and cribs
used in public accommodations such as hotels and motels. The
application of this provision means that older cribs that pose
significant risks to children will be taken out of the stream of
commerce. This provision is based upon laws already in existence in
numerous states including: Arizona, Arkansas, California, Colorado,
Illinois, Louisiana, Michigan, Minnesota, Oregon, Pennsylvania, Vermont
and Washington. This provision extends the protections previously
offered in just these states to the entire nation to ensure that
children sleep in cribs that meet the most recent and most protective
crib safety standards.
We support the CPSC's current language in its proposed crib rule
\3\ regarding a six-month effective date as it applies to
manufacturers. The customary 6 months gives manufacturers adequate time
to comply with the new crib standards. In addition, we will support an
additional 6-month compliance period for child care facilities,
allowing them to phase in replacement of non-compliant cribs over the
course of 1 year following the publication of the final rule.
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\3\ Safety Standards for Full-Size Baby Cribs and Non-Full-Size
Baby Cribs; Notice of Proposed Rulemaking; Proposed Rule,'' Federal
Register Vol. 75, No. 141, July 23, 2010.
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Database
Another success of the CPSIA is last week's passage of the final
rule implementing the consumer product safety information database.
CPSC is required by Section 212 of the CPSIA to establish the database.
As a result of the CPSC staff's leadership and commitment to the
effectiveness of the database, consumers will have access to lifesaving
information and the agency will more nimbly be able to identify and act
upon safety hazards. CPSC staff worked hard to formulate CPSC's final
rule in a manner that is consistent with Congress' intent, responsive
to the public interest need for disclosure, and protective of a
manufacturer's effort to protect their brand and confidential business
information. The database includes more checks on the information and
more opportunities for a manufacturer to comment than other similar
databases.
Consumers have been in the dark about the dangers of products
regulated by CPSC. CPSC currently collects incident data from consumers
in a manner similar to how it will be collected as part of the new
database. However, the difference is that now, when consumers go to
CPSC's website to look for information, it is not available. All that
they can usually find relates to a previous recall. If the Commission
has been alerted to the dangers of a product but has not conducted a
recall, the product's hazard may never be known to the public.
The database will help change that. Public access to information is
vital to safety. Simply allowing consumers access to the safety record
of products will increase safety and encourage the speedy removal or
redesign of unsafe products. Making it simple for consumers to report
into a single database the problems they encounter with products will
also help the Commission to do its job of protecting the public from
unsafe products more efficiently, which can help save Commission
resources.
Online Toy Hazard Warnings
When consumers purchase toys for children online this year, because
of the CPSIA, the same choking hazard warnings that appear on the toy
packaging will also appear online. This is an important consumer
protection considering today's shopping trends. For years, consumers
who purchased toys online were at a safety disadvantage because they
did not receive all the information they would have received, had they
made the purchase in a store. This concern has been solved by the
CPSIA.
Product Registration
The CPSIA requires that infant durable products, such as cribs,
strollers and high chairs, include a product registration card in their
packaging and provide an opportunity to register online. This will give
manufacturers information necessary to directly contact consumers in
the event of a recall or other product safety issue.
The requirements for the product registration cards and an online
registration program are contained in Section 104 of the CPSIA, which
incorporates the Danny Keysar Child Safety Notification Act. Danny,
whose parents founded Kids In Danger, died in 1998 when the portable
crib he slept in at a child care center collapsed and strangled him.
The crib had been recalled 5 years earlier, but no one at the child
care center, including the mom who donated the crib, had heard of the
recall. Too many consumers never hear about a recall of a product that
they have in their home. Registering products is an important step that
will increase the number of consumers who hear about a recall.
7Mandatory Toy Standards
Despite the fact that many conformity assessment bodies have not
yet received accreditation to conduct full-scale testing, with the
expectation of tighter enforcement down the road, many manufacturers
are already adopting robust testing procedures and the safety of toys
has been enhanced. The CPSC continues to work on ways to help small
manufacturers who have raised concerns about the costs associated with
such testing ensure that their toys are just as safe.
Reviewing Past Data
CPSC has also been reviewing old records and taking long-overdue
action. Earlier this year, CPSC announced the recall of two million
Graco strollers: the Quattro TM and MetroLite TM
because of entrapment and strangulation risks. CPSC and Graco had
``received four reports of infant strangulations that occurred in these
strollers between 2003 and 2005. In addition, CPSC was aware of five
reports of infants becoming entrapped, resulting in cuts and bruises,
and one report of an infant having difficulty breathing.'' \4\ While
these strollers should have been recalled years ago, we applaud CPSC
for taking the right action now to remove these potentially hazardous
products from the market.
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\4\ U.S. Consumer Product Safety Commission Press Release, ``Graco
Recalls Quattro TM and MetroLite TM Strollers Due
to Risk of Entrapment and Strangulation, Four Infant Strangulation
Deaths Reported,'' October 20, 2010, available on the web at http://
www.cpsc.gov/cpscpub/prerel/prhtml11/11015.html.
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CPSC and CPSIA Challenges
Since passage of the CPSIA, there have been many challenges to
implementation: a CPSC that initially moved slowly and gave out
confusing information; an economic downturn that has affected
businesses; the realization that lead and other heavy metals such as
cadmium are more pervasive in consumer products than had been expected;
and concerns about the law's implementation consistently raised by
manufacturers, small businesses, crafters and thrift stores.
The current CPSC has been managing these challenges. The CPSC has
held numerous public meetings and hearings about issues such as the
consumer product safety information database and product testing. CPSC
has sought to provide clear information to various stakeholders through
publications such as the Guide to the CPSIA for Small Businesses,
Resellers, Crafters and Charities and the Handbook for Resale Stores
and Product Resellers. In addition, CPSC is establishing a new Office
of Education, Global Outreach, and Small Business Ombudsman to
``coordinate and carry out education and outreach activities to
domestic and international stakeholders, including manufacturers,
retailers, resellers, small businesses, foreign governments, and
consumers.'' \5\
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\5\ CPSC Press Release, ``CPSC Creates New Office of Education,
Global Outreach, and Small Business Ombudsman,'' September 23, 2010,
available on the web at http://www.cpsc.gov/CPSCPUB/PREREL/prhtml10/
10352.html.
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The CPSC also issued an Interim Enforcement Policy related to
component testing for lead content and lead in paint last December and
is working on finalizing the ``component part'' rule as part of the
Testing and Certification Rule that should be finalized next year. The
components part rule would especially benefit small manufacturers by
allowing the use of certified component parts. In Chairman Tenenbaum's
statement on the Proposed Rules for Testing and Labeling Pertaining to
Product Certification and Component Part Testing, she stated that ``the
Commission is unanimous in its desire to see this rule provide
significant relief from testing requirements for both small and large
manufacturers while simultaneously moving safety upstream in the
manufacturing process. By allowing testing to be performed by component
part suppliers and designating component part certificates as
certificates issued under section 14 of the CPSA, the Commission has
provided great incentive for manufacturers to start utilizing component
part testing. At the same time, the Commission has established
safeguards such as requiring all component parts to be traceable to
their original manufacturers and expressly requiring that manufacturers
exercise due care when relying on component part testing
certificates.'' \6\
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\6\ Statement of Chairman Inez M. Tenenbaum on the Proposed Rules
for Testing and Labeling Pertaining to Product Certification and
Component Part Testing, May 5, 2010, available on the web at http://
www.cpsc.gov/PR/tenenbaum05052010.pdf.
---------------------------------------------------------------------------
The CPSC has been responding to the concerns raised by
stakeholders.
Responses to CPSIA Challenges
Some responses to these challenges, however, go much too far and
include two proposals that if implemented, would serve to considerably
weaken public health. They would open a series of gaping loopholes in
the CPSIA that would allow more lead into a host of toys and other
products meant for children. We reject these efforts to weaken the
CPSIA.
Protections Must Remain for Children 12 and Younger
First, some have argued that the CPSIA should not apply to
children's products for children 12 years and younger but rather should
cover only those products for children 6 and younger. This approach was
rejected by Congress when it passed the CPSIA. Congress embraced the
belief that there is a ``shared toy box'' in many families' homes. We
agree with this view, as it reflects the reality of what we know to be
true in many homes across the United States. Children of younger ages
play with the toys of their older siblings. Younger children mouth
their older siblings' toys with frequency. Further, the voluntary
standard for toys--ASTM F 963--includes an even broader scope to cover
toys intended for children 14 and younger. This means that many
companies are already complying with voluntary safety standards that
encompass toys intended for children 14 and younger. 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 a higher age standard, requires the scope of the CPSIA
to remain as it is.
No Known Safe Level of Lead
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. In this era of criticism over
``government waste,'' requiring a piecemeal risk analysis for lead, a
known toxin, would be a wasteful and inefficient use of taxpayer money
and government resources.
Significantly, a risk analysis would reverse the presumption for
the safety of products and allow all products to be sold and be exempt
from testing for lead unless the CPSC finds otherwise. This would mean
a return to the state of the law before the CPSIA was passed--i.e.,
CPSC wouldn't act until a child had been harmed by a lead-laden
product. As we witnessed in the years before the CPSIA, the record
number of lead-laden products that were recalled from the market proves
that this approach resulted in an unreasonable risk of injury to
consumers. It will amount to a waste of Commission resources, has been
rejected by Congress previously as not being sufficiently protective of
public health, and far exceeds the flexibility that the CPSC requested
to regulate lead.
The American public demands that children's products not pose risks
for the children who will play with or sleep in those products. 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. There is no known safe level of exposure. As a society, we have
spent years trying to reduce lead levels in our air, soil and homes. We
must continue to work to reduce lead in other products where it is not
necessary. While some might argue that we should seek to remove lead
from all household products, Congress in the CPSIA focused on the
products most likely to be in contact with children. Nearly all toys
and infant durable products do not require lead, should not contain
lead and can be made effectively without lead. In the rare instance
that children's products require lead, the CPSIA provides for a
targeted exemption for functional purpose. This exemption is drafted
tightly to ensure that children remain protected from harms of lead
exposure. We would have grave concerns if any of the limiting factors
were removed.
Cadmium
Cadmium has been recently identified in numerous children's
products beginning in January 2010. CPSC has issued five recalls and
one warning about six products that contained high levels of
cadmium.\7\ Five of these recalls/warnings involved children's jewelry
while one involved a drinking glass.
---------------------------------------------------------------------------
\7\ See, CPSC Press Releases announcing recalls of products with
excessive levels of cadmium: http://www.cpsc.gov/CPSCPUB/PREREL/
prhtml10/10162.html; http://www.cpsc.gov/CPSC
PUB/PREREL/prhtml10/10297.html; http://www.cpsc.gov/CPSCPUB/PREREL/
prhtml10/10
287.html; http://www.cpsc.gov/CPSCPUB/PREREL/prhtml10/10227.html;
http://www.cpsc
.gov/CPSCPUB/PREREL/prhtml10/10257.html; and http://www.cpsc.gov/
CPSCPUB/PRE
REL/prhtml10/10127.html.
---------------------------------------------------------------------------
According to the Agency for Toxic Substances and Disease Registry,
cadmium affects the following organ systems: Cardiovascular (Heart and
Blood Vessels), Developmental (effects during periods when organs are
developing), Gastrointestinal (Digestive), Neurological (Nervous
System), Renal (Urinary System or Kidneys), Reproductive (Producing
Children), and Respiratory (From the Nose to the Lungs).\8\
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\8\ Agency for Toxic Substances and Disease Registry, toxic
substances--cadmium, available on the web at http://www.atsdr.cdc.gov/
substances/toxsubstance.asp?toxid=15.
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Toxic materials like cadmium should not be present in children's
products and children should not be exposed to dangerous heavy metals
when they play with toys, drink from a glass or engage in dress up
play.
Earlier this year, CPSC issued a guidance report on cadmium and
urged ASTM to issue a voluntary standard for cadmium beyond paints and
surface coating. By relying on ASTM to develop appropriate standards to
address cadmium hazards in toys and children's jewelry, it allows many
stakeholders to participate in the standards-development process.
CPSC should be involved in the voluntary standard-setting process
and should issue a mandatory standard limiting the cadmium content in
children's products if the voluntary standard fails to be adequately
protective of children's health. A mandatory standard enables CPSC to
use enforcement tools to ensure compliance with the standard. Finally,
mandatory standards provide clear rules for industry to follow as they
seek to comply with CPSC rules.
The scope of CPSC's efforts to ban the use of cadmium should be
focused on children's products as defined in the CPSIA. Initially, as
CPSC begins to limit cadmium in consumer products, CPSC should focus on
product categories that are known to be of risk to children: children's
jewelry, children's dinnerware, and children's toys.
In addition, the ban on cadmium should be based upon a total
cadmium level (not solubility), which, similar to the lead regulations,
offers clarity and consistency to manufacturers, CPSC, and testing
bodies and offers public health protections to consumers.
CPSC should examine efforts in states such as California,
Washington, Connecticut, Illinois, and Minnesota that have restricted
cadmium in children's jewelry. While these laws tend to focus on
solubility standards rather than total cadmium content and also focus
on children's jewelry rather than children's products, they serve as a
useful guide. Since laws have passed in five states and with bills
pending in at least five other states, it is clear that consumers are
asking for mandatory rules to limit cadmium in children's products.
Finally, we urge CPSC to utilize the work it is undertaking to ban
cadmium to address bans of other toxic heavy metals in children's
products. We hope CPSC efforts effectively stem the tide of
substituting one heavy metal for another and curb the use of heavy
metals in the manufacturing of children's products.
Congress Must Support CPSC's Mission
CPSC plays an incredibly crucial role in ensuring that consumer
products are safe and is responsible for implementing the critical
protections of the CPSIA. It is imperative that the agency be
appropriately funded at all times to do its job properly. Diminishing
CPSC's budget or its authority at this time would hamper the agency
from carrying out its primary mission to protect consumers from
unreasonable risk of injury caused by hazardous products.
We thank Chairman Pryor for the important leadership role he has
played on product safety issues and we look forward to continuing to
work together to protect the public from harms posed by hazardous
products.
I wish everyone a happy and safe holiday season.
Senator Pryor. Thank you.
Mr. Lamar.
STATEMENT OF STEPHEN LAMAR, EXECUTIVE VICE PRESIDENT, AMERICAN
APPAREL & FOOTWEAR ASSOCIATION
Mr. Lamar. Hi. Good morning.
My name is Steve Lamar. I'm Executive Vice President of the
American Apparel & Footwear Association. We're the national
trade association of the apparel and footwear industry and its
suppliers.
Thank you, Chairman Pryor, for providing us this
opportunity to appear before you on this important topic.
At the outset, let me state our very strong support for a
product safety regulatory system that ensures that only safe
and compliant products are designed, produced, marketed, and
sold. At AAFA, we take our role in product safety education and
advocacy efforts seriously. We view this obligation as key to
the success of the industry, not only because such an approach
is the right thing to do, but because we're also consumers and
parents and grandparents ourselves.
I'd like to focus my remarks on the Consumer Product Safety
Improvement Act and offer several recommendations for the
Subcommittee to consider in the weeks and months ahead.
The CPSIA was a dramatic overhaul to the nation's product
safety regulatory regime. While this had a positive impact
through increased funding and awareness, it has also led to
many unintended consequences that have caused confusion,
created compliance burdens, and adversely impacted the business
community. Tight deadlines, rigid definitions, retroactively
applied standards, requirements that do not reflect risk, and a
one-size-fits-all approach are among the many problems that
have made CPSIA implementation challenging.
AAFA, as with others in the regulated community, has
actively worked the regulatory process to make sure the rules
can be understood and implemented. We've had some success in
working with the CPSC to use the limited regulatory flexibility
that the CPSIA does permit to make some important
determinations. In my written testimony, I detailed one such
example--the determination that there is no lead in textiles--
but, I also pointed out how the fix is still incomplete, and it
came at considerable expense to prove what everybody already
knew.
The more common experience is that relief is either denied
or that the regulatory process proves too burdensome to achieve
a truly commonsense result. The stays of enforcement on testing
and certification have provided some relief. And we would
strongly encourage that they be continued while the rules and a
path forward are still being worked out. But, it is becoming
clearer every day that Congress needs to step in and make some
legislative fixes to address the many concerns that have been
raised from all across the private sector. And, because the
timetables mandated by the CPSIA are unforgiving, Congressional
action is needed immediately.
A number of legislative fixes have been proposed over the
past 2 years by stakeholders across the business community, by
Members of Congress from both parties and both chambers, and
even by commissioners and CPSC staff alike. They include
changes to the lead and phthalate rules, the definition of
``children's product,'' more flexible testing and certification
provisions, stronger preemption to prevent proliferation of
contradictory rules at the state level, and clearer mandates
for the public database. I could go on. It's our hope that
Congress can immediately begin work with all stakeholders to
fully identify and implement these fixes.
With a nod toward Chanukah, which began last night, I would
like to make eight recommendations for the Subcommittee to
consider going forward:
Number one, ensure that all product safety decisions are
based on risk and supported by data.
Number two, give the CPSC more flexibility to interpret the
CPSIA.
Number three, ensure that new regulations do not contradict
existing ones.
Number four, ensure prospective application of all rules.
Number five, establish deadlines that permit and encourage
compliance.
Number six, publicize all pending regulatory developments.
Number seven, avoid one-size-fits-all approaches.
And, finally, number eight, remember that there is more to
the CPSC than CPSIA.
The most effective product safety system we can have is one
that recognizes that the regulated companies are active
partners of the CPSC. But, if these companies are constantly
subjected to burdensome, costly, and, in some cases, silly
requirements, that partnership is severely strained and the
public's interests are not served. Ultimately, product safety
takes a blackeye.
Mr. Chairman, the CPSC and the regulated community have
come a long way since Congress passed the CPSIA. Thanks to your
leadership, we now have five commissioners and an agency that
is more fully funded. The CPSIA was, indeed, a wake-up call for
the agency and for many in the business community to tighten
their own product safety regimes. But, the CPSIA also created
extraordinary problems for companies who were already doing the
right thing in ensuring product safety. In many cases, those
problems came with little gain for public safety.
With an eye to maximizing public health and safety, it is
our hope that, with a legislative amendment, continued
Congressional oversight, and continued dialogue between the
agency, industry and other product safety stakeholders, we can
create a stable, predictable, risk-based regulatory
environment.
Thank you again for providing us this opportunity to
testify. I'm available to take any questions.
[The prepared statement of Mr. Lamar follows:]
Prepared Statement of Stephen Lamar, Executive Vice President,
American Apparel & Footwear Association
Good morning.
My name is Steve Lamar and I'm Executive Vice President of American
Apparel & Footwear Association (AAFA)--the national trade association
of the apparel and footwear industry, and its suppliers. Thank you for
providing us this opportunity to appear before you this morning on this
important topic.
At the outset, let me state our very strong support for a product
safety regulatory system that ensures that only safe and compliant
products are designed, produced, marketed, and sold. At AAFA, we take
our role in product safety education and advocacy efforts seriously. We
view this obligation as key to the success of the industry, not only
because such an approach is the right thing to do, but because we are
also consumers, parents, and grandparents ourselves. We believe very
strongly that we should only wear safe and compliant clothes, shoes,
and other products. At the end of my testimony I included additional
information about AAFA and some of our product safety initiatives,
including our extensive global education efforts.
Although product safety is a year-round job, it is appropriate to
have this oversight hearing as we enter the holiday season. The focus
on consumer spending during the holidays is a natural time to reflect
on product safety and compliance. Furthermore, as Congress begins to
think through its agenda for the next 2 years, this is a good
opportunity to identify what changes can be made to ensure that our
Nation's product safety regulatory system is operating effectively. As
this is the first oversight Subcommittee hearing on the Consumer Safety
Product Commission (CPSC) since passage of the Consumer Product Safety
Improvement Act (CPSIA) in 2008--and with more than 2 years of industry
experience with implementation of this important law--I'd like to focus
my remarks on the CPSIA and offer several recommendations for the
Subcommittee to consider in the weeks and months ahead.
The CPSIA was a dramatic overhaul of the Nation's product safety
regulatory regime. Its passage put a spotlight on product safety
concerns, propelling consumers, regulators and businesses to refocus on
making product safety a top priority. Among other things, the
legislation provided the CPSC--long an underfunded agency--with much-
needed resources to carry out product safety enforcement and
educational efforts. It mandated the CPSC to work with other agencies
like Customs and Border Protection (CBP) to develop risk assessment
methodologies to efficiently target and block potentially unsafe
imports. It also ensured that all five CPSC leadership positions were
filled--for the first time in years--in an effort to secure a renewed
dialogue and healthy debate on how to effectively and efficiently
approach and enforce safety regulations. Finally, new content and
testing requirements have helped companies better understand the
chemicals used in children's products and evaluate and improve their
quality control processes to ensure that only safe products are sold.
It goes without saying that industry, consumer advocacy groups,
bloggers, the media, and various other stakeholders across the spectrum
have become more engaged than ever in product safety.
Regrettably, the legislation also mandated a series of
controversial changes to the Nation's product safety rules that have
created endless confusion, extensive burdens, huge costs, job losses,
and irreparable damage to the business community. In many cases, these
adverse consequences have come without improvements in product safety
or public health. Among other things, the law mandated very strict lead
and phthalate content restrictions. It required certifications of
compliance for all consumer products for all safety standards,
mandating third-party testing for those standards involving children's
products (defined as 12 and under). It created a public database of
product safety incidents. It authorized enforcement by state attorneys
general and created whistleblower provisions. While many of these
provisions reflect good intentions, the language of the CPSIA makes
many of them difficult, if not impossible, to implement and enforce.
Tight deadlines, rigid definitions, retroactively applied standards,
requirements that do not reflect risk, and a ``one-size-fits-all
approach'' are all among the many problems that have made CPSIA
implementation challenging.
AAFA, as with others in the regulated community, have actively
worked the regulatory process to make sure the rules can be understood
and implemented. We have had some success in working with the CPSC to
use the limited regulatory flexibility that the CPSIA does permit to
make some important determinations and offer some clarifying opinions.
And while we commend the Commissioners and the staff who have worked
tirelessly for more than 28 months to craft regulations that reflect
``common sense,'' many problems either have not or cannot be fixed
through the regulatory process. The surrogate for some of these fixes
has come in the form of a series of stays of enforcement. And while
these stays have provided welcome relief, and should remain in force,
they cannot provide a long term solution.
Let me offer one experience--related to the lead substrate
standard--to illustrate these points.
Per the CPSIA, the lead restriction applies equally to any
component of a children's product. Initially, this was interpreted to
include all the fabrics, yarns, threads, accessories, and trimmings
even though it was commonly understood, and has been known for decades,
that there is no lead in textiles and only isolated occurrences of lead
in other components, such as buttons, snaps, and zippers. Eventually,
and after input from the industry and other stakeholders, the CPSC
issued a determination that indeed there is no lead in textiles,
regardless of whether the fabric is dyed. And while we were pleased
with this determination, please consider the following:
The determination required the submission of thousands of
test results costing hundreds of thousands of dollars.
Including the tests that were not submitted, but which
companies had to perform because their customers were insisting
upon them as a result of their understanding of the CPSIA, the
cost rises into the millions.
The determination was not made until more than 6 months
after the initial retroactive lead standard took effect and
several weeks after the second (and current) lead standard took
effect.
Since most garments are not made entirely of just fabric,
most garments still have to undergo testing for possible lead
in most trimmings, even though tests from pre-CPSIA inventories
showed that lead occurred in these components in only 3-5
percent of the time. Moreover, in many of these cases, the
positive lead tests occurred with components that present no
risk, but which are nonetheless covered. The example often
cited is the zipper stop at the bottom of the fly in a child's
pair of trousers.
The determination is not complete. Even though the
determination applies to dyed fabrics, it does not apply to
certain kinds of after treatment processes, such as prints. Yet
some of the print processes excluded by this determination have
the same non risk of lead as dyes.
The determination depends on a component part testing rule
to operate effectively. That rule, while proposed, has not yet
been finalized.
Testing relief that companies are currently using to
navigate through these rules goes away once the stay of testing
and certification has been lifted because a company's own
reasonable testing efforts--such as the use of XRF style
machines--will be insufficient to meet third party
requirements.
These requirements exist along side other rules that were
created by the CPSIA or which were strengthened by the CPSIA.
So while the fabric in a child's pajama may not have to meet
lead testing rules for fabric, it does have to meet
requirements for flammability, lead substrate testing in
zippers, lead in paint testing for any coatings, and possibly
phthalate testing for the non-stick surfaces on the pads of the
feet.
State rules impose a myriad of additional, and
contradictory, requirements that are not preempted by these
determinations.
It is for this reason that we have been strong supporters of
Congressional initiatives to amend the CPSIA and to ensure the proper
implementation of the CPSIA. And because the timetables mandated by the
CPSIA are unforgiving, Congressional action is needed immediately.
Many throughout the stakeholder community have identified a number
of provisions in the CPSIA that need to be amended through either a
``tweaking'' or through ``major surgery.'' It would appear that many in
Congress, the Commissioners, and the CPSC professional staff also share
this view to different degrees. During the 111th Congress, several
hundred Senators and Representatives from both parties and both
Chambers have written letters or sponsored legislation that seek
amendments to the CPSIA. A provision in last year's omnibus spending
bill asked the Commission for its advice on legislative changes.
Commissioner Nord, during her tenure as Acting Chair, forwarded to
Congress a list of professional CPSC staff recommendations for CPSIA
changes.
Some proposed changes have focused on specific industries--such as
books or ATVs or small batch manufacturers. Others have sought to
provide broader industry relief, such as provisions that would apply
next year's tighter lead restriction in a prospective manner or which
would permit inaccessible components to be exempt from phthalate
limits. An incomplete list of other changes needed involve revisiting
the definition of children's product, more flexible testing and
certification provisions, stronger preemption to prevent proliferation
of contradictory rules at the state level, and clearer mandates for the
public database.
This is not an exhaustive list. But it is important to note that,
with more than 2 years of CPSIA implementation and experience, the
regulated community and the regulators have both found significant
problems with the law. There appears to be a growing consensus that the
CPSIA created many unintended consequences that, if left unaddressed,
will continue to do damage to the very entities that bear the burden
for compliance. Our hope is that Congress can immediately begin work
with all stakeholders to fully identify and implement these fixes.
Going forward, I would like to make 8 recommendations. Many of
these will require specific legislative changes or clear direction from
Congress that the CPSC shall interpret the CPSIA, using its existing
authorities, with more flexibility. All these suggestions are intended
to strengthen product safety and public health.
1. Ensure that all product safety decisions are based on risk and
supported by data
The CPSIA makes a number of product safety mandates that simply do
not reflect risk. Prohibitions against lead in the spokes of a child's
bicycle is just one obvious example. Not only does this contradict
common sense but it undermines an effective product safety regime and
creates confusion among the regulated community and consumers alike. If
all products, regardless of the risk, are deemed equally hazardous,
valuable resources and time will be spent validating and regulating
already safe products. Businesses will not understand which hazards
they are trying to prevent if the regulations appear arbitrary, as they
currently do under the CPSIA. Moreover, consumers will become so
overwhelmed by product safety warnings that they will tune out when
real and legitimate concerns do appear. A better approach would be to
focus time and energy on those products, components, and materials that
do present risk of injury, harm, or death. Then, based on the fact
pattern behind that risk, we can construct a regulatory regime to erase
or mitigate the hazard. In this vein, the public database scheduled to
go live in only a few months raises significant problems because it
will inundate the public with erroneous and unsubstantiated claims
instead of legitimate product safety problems.
2. Give the CPSC more flexibility to interpret CPSIA
At numerous points during the past 2 years, the regulated community
has heard that the CPSIA ties the Cask's hands. In these cases, the
professional staff, and even Commissioners, agreed that a particular
outcome is not correct but pointed to the law as the source of their
helplessness to address the issue. In some cases, the agency has
resorted to contorted opinions or guidance that, although well
intended, have often complicated the business community's understanding
of the law. The CPSC should be able to respond, quickly, to imminent
threats and respond smartly and appropriately to longer term and fact
based concerns. In all cases, the rules should be easy to understand so
they can be effortlessly implemented and communicated up and down the
supply chain. Currently, CPSIA, as interpreted by many at the CPSC and
others, does not allow this flexibility.
3. Ensure that new regulations do not contradict existing ones
The CPSIA mandates new testing and certification requirements that
alter existing regulations that pre-date the CPSIA, that have worked
extremely well and which the industry understands. For many of these
standards (including those addressing flammability, small parts, and
sharp points and edges), pre-existing quality control programs and
regulations were crafted in such a way that they did not hinder the
ability of companies to make safe and compliant products. But because
the new CPSIA mandates do not efficiently plug into the existing
regulatory requirements, considerable confusion has been created with
regard to these regulations. This will only be exacerbated as the now
delayed 15-month rule and the new third-party testing requirements
begin to take effect. On a similar note, incomplete preemption language
in the CPSIA means that Federal rules and state rules often work at
cross purposes.
4. Ensure prospective application of all rules
The CPSIA imposed new lead and phthalate requirements in a
retroactive manner. This caused untold chaos, confusion, and costs as
companies were forced to cancel orders, reformulate products, and
destroy inventory. Regrettably, the CPSIA's retroactive mandates
continue to create chaos. For example, some products lawfully produced
today under the CPSIA 300 ppm standard will become banned hazardous
substances if they are sold after August 14, 2011, when the standard
drops to 100 ppm (and is applied retroactively). Regulations should
take effect prospectively, and implemented only after the Commission
publishes clear and comprehensive regulatory guidance. The retroactive
application of regulations unfairly punishes businesses for making
products in good faith, especially when they were made in compliance
with a previous product safety standard. It also goes against sound
business practices which build product safety requirements into the
design at the beginning of the production process rather than treat
them as an afterthought at the end.
5. Establish deadlines that permit and encourage compliance
The CPSIA's mandate to the CPSC to undertake dozens of rulemakings
in a short period of time has been challenging for both the agency and
industry. In many cases, the changes were tied to specific deadlines
that have proved hopelessly unrealistic. A proposed 15-month rule,
which was supposed to provide some relief in the form of component part
testing, is now more than a year late and has been delayed
indefinitely. Other deadlines have had to be delayed or stayed. Rather
than rely on strict deadlines, the CPSIA should recognize that well
thought out and implementable product safety rules take time. A single
garment can take nearly a year to travel down the supply chain. New
regulations must give industry enough time to adapt these long supply
chains so all parties can understand and clearly communicate changes to
all their partners involved in production. Furthermore, time is
necessary so the regulatory agency can work with the affected industry
to properly develop and implement the regulations.
6. Publicize all pending regulatory developments
The regulated community continues to have a difficult time
understanding when various rules and regulations are due to be
developed under the CPSIA. The agency is currently in the process of
lifting of the stay of enforcement of testing and certification for the
children's product safety standards. Yet this is being done in a manner
that is catching many by surprise. Product safety standards that work
best are those that are created through a transparent and predictable
process, especially when they involved technical testing and
certification protocols. The product safety community involves a range
of stakeholders, all of whom need to participate. If one group appears
shut out, the final result may not be credible or accepted by all.
This, in the long run, leads to a product safety regime that is not
sustainable.
7. Avoid ``One-Size-Fits-All Approaches''
One major problem is that the CPSIA treats all products,
components, and companies equally, even though there are different
risks involved. Product safety rules that were in effect before the
CPSIA recognized these differences by tailoring the rules to those
products and consumers where the risk of injury or death are greatest.
Similarly, while all companies, regardless of size, should be subject
to product safety rules, different sized companies can demonstrate
compliance using different methods. Not recognizing these differences
continues to be one of the major flaws of the CPSIA.
8. There is more to the CPSC than CPSIA
The CPSC should be commended for the enormous amount of work they
are doing in implementing the CPSIA. But we are concerned that the
resources and time spent on implementing the CPSIA has detracted from
other important product safety initiatives, including enforcement of
existing standards. Giving the CPSC flexibility to properly implement
product safety priorities in the CPSIA will inevitably free up time for
the agency to focus resources on the rest of its product safety
mission.
Conclusion
Over the past 2 years, AAFA and others have worked closely with the
CPSC to implement the CPSIA and we applaud the agency's efforts to work
with and educate industry during the rulemaking process.
The most effective product safety system we can have is one that
recognizes that the regulated companies are active partners of the
CPSC. But if these companies are constantly subjected to burdensome,
costly, and, in some cases, silly requirements, that partnership is
severely strained and the public's interests are not served.
Ultimately, product safety takes a black eye.
Mr. Chairman, the CPSC and the regulated community have come a long
way since Congress passed the CPSIA. Thanks to your leadership we now
have five Commissioners and an agency that is more fully funded. The
CPSIA was indeed a ``wake-up'' call for the agency and for many in the
business community to tighten their own product safety regimes. But the
CPSIA also created extraordinary problems for companies who were
already doing the right thing in ensuring product safety. In many
cases, those problems came with little gain for public safety.
With an eye to maximizing public health and safety, it is our hope
that with a legislative amendment, Congressional oversight and
continued dialogue between the agency, industry and other product
safety stakeholders, we can create a stable, predictable, risk-based
regulatory environment.
Thank you again for providing us this opportunity to testify. I am
available to take questions.
Appendix
Background on AAFA Product Safety Initiatives
AAFA is the national trade association for the apparel and footwear
industries, and their suppliers. Our members own, produce for, or
market hundreds and hundreds of brands of clothing and footwear. AAFA
has about 400 member companies who own, produce for, or market more
than 700 brands of clothing, footwear, and other fashion products.
Nearly all stakeholders in the industry supply chain are represented in
our membership, including large, medium, small, and micro businesses;
retailers of all sizes; designers; manufacturers; importers;
wholesalers; private label; brand owners; and suppliers of inputs and
services. AAFA members produce and sell in virtually every country in
the world.
Educating the apparel and footwear industry supply chain on product
safety compliance initiatives has been a top priority for AAFA for
decades. The AAFA Product Safety Council, which addresses specifically
with product safety issues, is one of our more active Committees. It
now boasts over 400 members. AAFA uses the Product Safety Council to
distribute information, develop industry positions, create best
practices, and keep members up to date on the ever changing product
safety landscape.
AAFA is an active participant in legislative and regulatory
initiatives involving product safety. Since the passage of the CPSIA,
AAFA has participated in numerous regulatory proceedings focused on the
apparel and footwear industries, or affecting the broader regulated
community.
Over the past 2 years alone, AAFA has conducted nearly a hundred
webinars, briefings, conferences and trainings, throughout the United
States and on four continents on the CPSIA, restricted substances, and
other product safety topics. Just last month, AAFA conducted a CPSIA
training session with over 200 factory and compliance personnel in Ho
Chi Minh City, Vietnam. AAFA will be returning to China in April of
2011 for our 6th compliance program in that country.
Since 2007 AAFA has published a free, publicly available, peer-
reviewed, industry-wide Restricted Substances List (RSL) that helps
companies understand international product safety standards and
implement a chemical management program. The RSL is updated once every
6 months to ensure the most current information is available for
companies in a manner that is digestible and easy to implement. The 7th
release of the RSL was most recently published in Vietnamese to
coincide with the recent product safety seminar held in Vietnam. Future
editions will be published in other languages, including Spanish and
Chinese. The RSL is available on the AAFA website--
www.apparelandfootwear.org--where AAFA staff also post extensive
product safety compliance information on the CPSIA and other product
safety initiatives, such as REACH and individual state laws, including
California Proposition 65. Keeping this information updated is a never
ending challenge, particularly in the past several years in light of
the rapidly changing regulatory environment.
Senator Pryor. Thank you.
Mr. Lamar. Thanks.
Senator Pryor. Dr. Gardner.
STATEMENT OF H. GARRY GARDNER, MD FAAP, ON BEHALF OF THE
AMERICAN ACADEMY OF PEDIATRICS
Dr. Gardner. Good morning.
My name is Dr. Garry Gardner, and I am proud to represent
the American Academy of Pediatrics at this hearing today.
The AAP was pleased to work closely with members and staff
of this committee and subcommittee over the course of the
development and passage of the Consumer Product Safety
Improvement Act. Over a period of close to 2 years, the AAP
provided expertise and input on a range of child health and
safety issues, including the proposed limitations on lead
content and the definition of a children's product. As passed,
the CPSIA ultimately rejuvenated a flagging CPSC, gave it
additional tools and authority to achieve its mission, and
helped improve the safety of consumer products for children.
Let us take a moment to reflect back upon the state of
product safety and the CPSC during the 2007 holiday season. Our
nation had just experienced a flood of product recalls,
including several involving some of the best known and most
loved brands and toys. Many Americans were shocked to learn
that the majority of toy safety standards were voluntary and
not mandatory, with few or no consequences for violations of
those voluntary standards. The CPSC was struggling to perform
its mission with limited statutory authority and atrophied
staff and a budget of only $62 million-- less than one-quarter
of what Congress had allocated for the Hubble Space Telescope,
and slightly less than what was spent on Pacific coastal salmon
habitat restoration.
Three years later, the state of consumer product safety is
very different. The CPSIA has already created a range of new
safety standards for toys and other children's products,
including strict limits on lead content in all materials. The
CPSC has increased its staff, and its budget has almost
doubled. Manufacturers will soon be required to test for, and
document compliance with, a range of safety standards, giving
retailers and consumers a high degree of confidence in the
safety of these products. Unsafe cribs have been recalled and
dangerous drop-side cribs will soon be banned.
These new safety standards are having a meaningful impact
on the lives of children and families, though sometimes in all
but invisible ways. We cannot readily see that a toy is now
lead-free or that a dangerous feature on a stroller has been
reengineered to be safe. It may seem, perhaps, that these are
unimportant changes that cause only minor or incremental
improvements in safety, but it would be a mistake to fall into
the trap of believing that these small changes cannot also be
significant. These changes save lives and prevent life-altering
injuries. The loss of a few IQ points across the child
population has marked impacts on educational spending and
future potential.
Over my 37 years in practice, I have seen a dramatic change
in the injuries suffered by my patients due to unsafe products.
Many of the injuries that used to be relatively common simply
do not occur anymore. As a pediatrician, I am grateful to
Congress and the CPSC for your ongoing work to make products
safer for our children.
I'd like to offer some very brief comments on the subjects
of lead, Safe Sleep, cadmium, and emerging hazards.
The AAP has been supportive of CPSC's efforts to implement
Section 101 of the CPSIA, which set the first-ever
comprehensive limits on lead in children's products. The new
lead limits are being phased in over 3 years to allow
manufacturers and retailers sufficient time to ensure that
their products comply with the new rules. The AAP looks forward
to the completion of the standard's implementation when the
total lead limit drops to 100 parts per million in August 2011.
The CPSIA, and Section 101 in particular, is truly a
significant step in protecting children from the real hazards
of lead.
Safe Sleep. The AAP is pleased to have partnered with
Chairman Tenenbaum and the CPSC on its Safe Sleep initiative, a
multifaceted campaign aimed at reducing deaths and injuries
associated with unsafe sleep environments. As part of this
campaign, the CPSC collaborated with the AAP, Keeping Babies
Safe, and journalist Joan Lunden to produce a video, to be
aired in hospital and physician waiting rooms, providing
recommendations and information to parents and families on safe
sleep practices. AAP supports and has submitted extensive
comments on rulemaking processes to establish new mandatory
safety standards for bunkbeds, cradles, bassinets, and full-
size and non-full-size cribs.
Finally, the AAP has consistently recommended that parents
not use sleep positioners. And we fully support CPSC and FDA's
recent warning to parents about the dangers of these products.
Cadmium. Recent press reports have brought to light the
potential danger of another heavy metal in consumer products:
cadmium. It appears that some manufacturers have begun adding
cadmium to children's products because the CPSIA limited the
use of lead. This is clearly a case of abiding by the letter,
but not the spirit, of the law. Congress hardly intended for
companies to substitute one poison for another.
The AAP urges the establishment of a systematic,
transparent process by which CPSC should review the literature
and data, consult with experts, and update each of the heavy-
metal standards found in the ASTM F 963 toy standard. This
process should not be delegated to nongovernmental entities or
be inaccessible to the public or stakeholders. Moreover, the
standards established should apply to all children's products,
and not just toys. The AAP looks forward to engaging with the
CPSC throughout such a process and making our members'
expertise available to the agency.
And finally, emerging product safety hazards. Ensuring the
safety of consumer products requires constant vigilance as the
marketplace changes and new products, and sometimes new
hazards, are created. Small powerful magnets continue to be a
concern, as they can cause serious injuries if more than one is
swallowed. The AAP's Committee on Injury is also learning of
increasing numbers of reported injuries caused by children's
ingestion of so-called ``button batteries.'' The AAP is
interested in working with the CPSC and industry to require
secure closures on devices that require button batteries, as
well as appropriate packaging.
In conclusion, the AAP appreciates the opportunity to offer
testimony today. We commend you, Chairman Pryor and the
subcommittee, for your leadership on consumer product safety
issues. And we look forward to working with you to ensure the
health and safety for all children. I'll be pleased to answer
any questions you may have.
[The prepared statement of Dr. Gardner follows:]
Prepared Statement of H. Garry Gardner, MD FAAP, on Behalf of the
American Academy of Pediatrics
Good morning. I appreciate this opportunity to testify today before
the Commerce, Science, and Transportation Subcommittee on Consumer
Protection, Product Safety, and Insurance at this hearing, ``Oversight
of the Consumer Product Safety Commission: Product Safety in the
Holiday Season.'' My name is H. Garry Gardner, MD, FAAP, and I am proud
to represent the American Academy of Pediatrics (AAP), a non-profit
professional organization of more than 60,000 primary care
pediatricians, pediatric medical sub-specialists, and pediatric
surgical specialists dedicated to the health, safety, and well-being of
infants, children, adolescents, and young adults. I chair the AAP's
Committee on Injury, Violence and Poison Prevention, which is
responsible for advising the Academy and drafting its policies on a
wide range of injury prevention issues, including consumer product
safety. I have been in private pediatric practice since 1973 and am a
Professor of Clinical Pediatrics at Northwestern University Feinberg
School of Medicine.
Creating Safe, Healthy Products for Children
The AAP was pleased to work closely with the Members and staff of
this committee and subcommittee over the course of the development and
passage of the Consumer Product Safety Improvement Act of 2008 (CPSIA).
Over a period of close to 2 years, the AAP provided expertise and input
on a range of child health and safety issues, including the proposed
limitations on lead content and the definition of a children's product.
As passed, the CPSIA ultimately rejuvenated a flagging Consumer Product
Safety Commission (CPSC), gave it additional tools and authority to
achieve its mission, and helped improve the safety of consumer products
for children.
Today's hearing provides a valuable opportunity to discuss the
CPSIA 2 years after its signature into law. Many of the directives
under the law have already been implemented, either in whole or in
part, while others remain to come. The AAP appreciates this opportunity
to reflect on the successes of the CPSIA to date and opportunities for
improvements in the coming months and years.
Let us take a moment to reflect back upon the state of product
safety and the CPSC during the 2007 holiday season. Our nation had just
experienced a flood of product recalls, including several involving
some of the best-known and most-loved brands and toys. Many Americans
were shocked to learn that the majority of toy safety standards were
voluntary, not mandatory, with few or no consequences for violation of
those voluntary standards. Even for a highly toxic substance like lead,
the Federal limit was an unacceptably high 600 parts per million, and
applied only to paint on children's products. The CPSC was struggling
to perform its mission with limited statutory authority, an atrophied
staff, and a budget of $62 million--less one-quarter of what Congress
allocated for the Hubble Space Telescope that year, and slightly less
than was spent on Pacific coastal salmon habitat restoration.
Three years later, the state of consumer product safety is very
different. The CPSIA has already created a range of new safety
standards for toys and other children's products, including strict
limits on lead content in all materials. The CPSC has increased its
staff, and its budget has almost doubled. Manufacturers will soon be
required both to test for and document compliance with a range of
safety standards, giving retailers and consumers a high degree of
confidence in the safety of these products. Unsafe cribs have been
recalled, and dangerous drop-side cribs will soon be banned.
These new safety standards are having a meaningful impact on the
lives of children and families, though sometimes in all-but-invisible
ways. We cannot readily see that a toy is lead-free, or that a
dangerous feature on a stroller has been re-engineered to be safe. It
may seem perhaps that these are unimportant changes that cause only
minor or incremental improvements in safety. But it would be a mistake
to fall into the trap of believing that small changes cannot also be
significant. These changes save lives and prevent life-altering
injuries. The loss of a few IQ points or a small increase in the
proportion of children with behavioral problems in the population of
U.S. children has marked impacts on educational spending and future
potential.\1\ Over my 37 years in practice, I have seen a dramatic
change in the injuries suffered by my patients due to unsafe products.
Many of the injuries that used to be relatively common simply do not
occur any more. As a pediatrician, I am grateful to Congress and the
CPSC for your ongoing work to make products safer for our children.
---------------------------------------------------------------------------
\1\ Bellinger DC. What is an adverse effect? A possible resolution
of clinical and epidemiological perspectives on neurobehavioral
toxicity. Environ Res. 2004; 95(3):394-405.
---------------------------------------------------------------------------
The CPSIA has allowed the CPSC to make strides in two particular
areas I would like to highlight: lead and Safe Sleep. Additional work
remains to be done with regard to cadmium and other heavy metals, as
well as emerging hazards. The American Academy of Pediatrics would like
offer the following comments on each of these subjects.
Limiting Children's Exposure to Lead
Lead is well-established as a potent neurotoxin and a particular
threat to the developing brain of the fetus, infant, and young child,
with documented negative effects on behavior and permanent loss of IQ
points. Studies have shown that lead has no normal function in the
human body, and that a ``normal'' blood lead level is zero. There is no
``safe'' level of lead exposure; no threshold for the toxic effects of
lead has been identified. When lead accumulates in the body, it is
tightly bound to bones and then released slowly over years or decades.
Therefore, exposures that may be separated by significant gaps in time
have an additive effect on the body's burden of lead.
Damage done by small amounts of lead may be hard to measure and
even harder to understand. Children who accumulate lead in their body
may not have any physical symptoms, but low lead levels cause a wide
array of negative effects, including cognitive, motor, behavioral, and
physical harm.\2\ The vulnerability of children to lead poisoning
during development of their brain and nervous system has been amply
demonstrated, and the literature is very consistent. On average,
children whose blood lead levels (BLLs) rise from 10 to 20 micrograms
per deciliter (mcg/dL) lose two to three IQ points. More recent studies
have shown an even greater impact on IQ of BLLs under 10 mcg/dL. The
effects of lead on health do not stop once the child's brain and
nervous system mature or the BLL falls. A recent study found that in a
group of 7-year-old children exposed to lead before the age of 3 years,
IQ continued to fall even after the BLL had declined.\3\
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\2\ Bellinger D. Lead. Pediatrics. 2004; 113(4 (Supplement)):1016-
1022.
\3\ Chen A, Dietrich KN, Ware JH, Radcliffe J, Rogan WJ. IQ and
blood lead from 2 to 7 years of age: are the effects in older children
the residual of high blood lead concentrations in 2-year-olds? Environ
Health Perspect. 2005; 113(5):597-601.
---------------------------------------------------------------------------
The AAP has been supportive of CPSC's efforts to implement Section
101 of the CPSIA, which set the first-ever comprehensive limits on lead
in children's products. The new lead limits are being phased in over 3
years to allow manufacturers and retailers sufficient time to ensure
that their products comply with the new rules. As of February 2009,
products designed or intended primarily for children age 12 years and
younger could contain no more than 600 parts per million (ppm) of lead.
This standard was then lowered to 300 ppm in August 2009. The AAP looks
forward to the completion of the standard's implementation when the
total lead limit drops to 100 ppm in August 2011. Any children's
product on the market that does not comply with the new lead standards
will be considered a banned hazardous substance. The CPSIA, and Section
101 in particular, is a truly significant step forward in protecting
children from the hazard of lead in toys and other products designed
for children.
Creating Safe Sleep Environments for Infants and Children
Cribs, cradles, bassinets, and other infant sleep environments are
designed for a parent or caregiver to leave a baby unattended safely
for hours at a time. Unfortunately some sleep environments may pose a
serious threat to a child's health and safety, thereby negating their
intended purpose. Between November 2007 and April 2010, almost 150
fatalities and 1,675 injuries associated with full-size cribs and 6
fatalities and 28 injuries associated with non-full-size cribs were
reported to CPSC. Since 2007, CPSC has issued 40 separate crib recalls
involving more than 11 million products. Parents deserve the confidence
of knowing the crib they purchase is held to the highest safety
standards possible. The AAP has worked strenuously to reduce injuries
and deaths from unsafe sleep environments by establishing guidelines
for parents to use in evaluating these products and we fully support
CPSC's efforts to establish strong, mandatory safety standards for
cribs.
The AAP is pleased to have partnered with Chairman Tenenbaum and
the CPSC on its Safe Sleep Initiative, a multi-faceted campaign aimed
at reducing deaths and injuries associated with unsafe sleep
environments. As part of this campaign, CPSC collaborated with AAP,
Keeping Babies Safe, and journalist Joan Lunden to produce a video to
be aired in hospital and physician waiting rooms providing
recommendations and information to parents and families on safe sleep
practices. In the video, AAP President O. Marion Burton, MD FAAP shared
AAP's strong recommendation that all babies be put to sleep on their
backs, which has helped reduce the rate of Sudden Infant Death Syndrome
(SIDS) by 50 percent over the last 20 years. In addition, Dr. Burton
highlighted the importance of never placing pillows, bumpers, sleep
positioners, blankets or other fluffy items in cribs, and the need for
cribs to have firm mattresses with tightly fitted sheets.\4\
---------------------------------------------------------------------------
\4\ Video available online at http://www.healthychildren.org/
English/news/pages/A-Safe-Sleep-for-Babies.aspx.
---------------------------------------------------------------------------
Over the past year, CPSC has undertaken rulemaking processes to
establish new mandatory safety standards for bunk beds, cradles,
bassinets, full-size and non-full-size cribs, among many other
categories of children's products as part of the Safe Sleep Initiative
and as directed by Section 104(b) of the CPSIA. AAP strongly supports
CPSC's efforts to establish mandatory safety standards for infant and
children's sleep environments and has submitted extensive comments on
each of these proposed rules.
The AAP has encouraged CSPC to make mandatory the new voluntary
ASTM standard for full-size and non-full size cribs, which includes a
requirement that sides of a crib be fixed in place, effectively banning
drop-side cribs, (a crib design where the side of the crib can be
raised and lowered). The AAP is extremely pleased that CPSC has
proposed adopting this standard, as failures in this product design
have resulted in numerous infant injuries and fatalities. If this
proposed rule is made final, it will be unlawful to sell, lease, or
otherwise provide a full-size or non-full-size crib that does not meet
mandatory CPSC standards. As a result, many establishments will be
required to purchase new cribs and/or eliminate their inventory of
noncompliant cribs, including child care centers (including family
child care homes), hotels, motels and inns, resale and consignment
shops, and crib retailers. While the AAP recognizes the demands the new
safety standards may place on child care centers, retailers, and
others, these considerations must be balanced against the cost to
children, families, and society when preventable injuries and deaths
occur in these cribs. The AAP supports CPSC in implementing the new
mandatory safety standards in an expeditious, but sensible, timeframe.
Finally, the AAP was pleased that CPSC and the Food and Drug
Administration (FDA) recently issued a warning to consumers urging
parents not to use infant sleep positioners.\5\ Infant sleep
positioners are flat mats with side bolsters or inclined (wedge) mats
with side bolsters used to prevent an infant from rolling or turning
while asleep. Over the past 13 years, CPSC and FDA received 12 reports
of infants who died when they suffocated in sleep positioners or became
trapped between a sleep positioner and the side of a crib or bassinet.
These products represent a serious risk to the health and safety of
sleeping babies. Sleep positioners do not prevent SIDS and in fact can
increase the risk of infant suffocation. Manufacturers typically claim
these products aid in food digestion to ease colic or the symptoms of
gastroesphageal reflux disease and prevent flat head syndrome; however,
these claims have not been reviewed and approved by the FDA. AAP has
consistently recommended parents not to use these products and we fully
support CPSC and FDA's efforts to prevent further deaths or injuries as
a result of using infant sleep positioners.
---------------------------------------------------------------------------
\5\ Announcement available online at http://www.cpsc.gov/cpscpub/
prerel/prhtml10/10358
.html.
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Limiting Cadmium and Other Heavy Metals
Recent press reports have brought to light the potential danger of
another heavy metal in consumer products: cadmium. Cadmium is a soft
heavy metal used in a variety of industrial and consumer applications.
Like lead, with which it shares certain properties, cadmium causes a
range of well-documented adverse human health effects. Oral exposure to
cadmium is associated with effects on the kidney, liver, bones, immune
system, blood and nervous system. Acute cadmium exposure can lead to
vomiting, diarrhea and other effects. Long-term exposure to cadmium can
cause kidney disease, developmental and neurological deficits, and bone
fragility. Cadmium is a known carcinogen.
It appears that some manufacturers have begun adding cadmium to
children's products because the CPSIA limited the use of lead. The
presence of cadmium at high levels has been found in a range of
children's products, most notably toy jewelry and drinking glasses.
This is clearly a case of abiding by the letter but not the spirit of
the law--Congress hardly intended for companies to substitute one
poison for another.
The ASTM's F-963 toy safety standard currently contains voluntary
standards for eight heavy metals known to be highly toxic: antimony,
arsenic, barium, cadmium, chromium, lead, mercury and selenium. As part
of the CPSC's review of the adoption of the F-963 standard as a
mandatory standard, each of these standards * should undergo
rigorous review, along with the associated testing protocols. The AAP
urges the establishment of a systematic, transparent process by which
the agency should review the literature and data, consult with experts,
and update each of the heavy metal standards. This process should not
be delegated to non-governmental entities or be inaccessible to the
public or stakeholders. Moreover, the standards established should
apply to all children's products, not solely toys. The AAP looks
forward to engaging with the CPSC throughout such a process and making
our members' expertise available to the agency.
---------------------------------------------------------------------------
\*\ Not including lead, which is already covered by the CPSIA.
---------------------------------------------------------------------------
Emerging Product Safety Hazards
As Americans prepare to exchange gifts this holiday season, we
should all be able to have confidence in the safety of toys and
children's products. As a pediatrician and injury expert, however, I
also find myself anxiously awaiting the next emerging product safety
hazard. Ensuring the safety of consumer products requires our constant
vigilance as the marketplace changes and new products--and sometimes,
new hazards--are created.
Small, powerful magnets continue to be a concern, as they can cause
serious injuries if more than one is swallowed. These abdominal
injuries tend to mimic stomach ailments or other minor illnesses, and
can be difficult to properly diagnose. The CPSC is aware of this hazard
and has recalled numerous sets of magnetic toys. Given that these
magnets are being used in increasing numbers of children's products,
however, continued attention to this problem is necessary.
AAP's Committee on Injury is also learning of increasing numbers of
reported injuries caused by children's ingestion of so-called ``button
batteries.'' Roughly the size of a dime or nickel, these batteries
closely resemble a coin when seen on scans. Unlike a swallowed coin,
however, a battery must be removed from the body immediately to prevent
serious harm. If lodged in the esophagus, severe tissue damage can
occur in as little as 2 hours. Button batteries have been identified as
the cause of 13 deaths. Between 1990 and 2008, 8,648 battery ingestion
cases were reported, of which 62 percent were button batteries
swallowed by children under the age of 6 years. Among children in this
age group, 12 percent of those who ingest a 20 to 25mm battery can be
expected to experience serious complications or death.\6\ The AAP is
interested in working with the CPSC and industry to require secure
closures for devices that require button batteries as well as
appropriate packaging.
---------------------------------------------------------------------------
\6\ Litovitz, et al. ``Preventing Battery Ingestions: An Analysis
of 8648 Cases.'' Pediatrics 2010; 125:1178-1183.
---------------------------------------------------------------------------
In conclusion, the AAP deeply appreciates the opportunity to offer
testimony today on the implementation of the Consumer Product Safety
Improvement Act of 2008. We commend you, Chairman Pryor, and the
subcommittee for your leadership on consumer product safety issues, and
we look forward to working with you to ensure the health and safety of
all children.
Senator Pryor. Thank you.
Ms. Chuckas.
STATEMENT OF JILL CHUCKAS ON BEHALF OF THE HANDMADE TOY
ALLIANCE
Ms. Chuckas. Good morning.
Thank you, Chairman Pryor, for having me before this
committee today. It's an honor.
My name is Jill Chuckas, and I own a small handcrafted
children's accessory business, located in Stamford,
Connecticut, called Crafty Baby.
For the last 12 years, I've been crafting children's
products from my home-based studio. When Congress first spoke
of toy safety legislation, I applauded your efforts. In
December 2008, though, I began to read the fine print. I became
acutely aware that this law, meant to regulate large multi-
billion dollar companies that had betrayed the country's trust,
could effectively put me out of business. Not because my
products are unsafe, but because I simply cannot afford the
mandatory third-party testing and labeling requirements, which
disproportionately affect small-batch manufacturers and
specialty retailers. I quickly joined a rising grassroots
effort to amend the CPSIA and took on a leadership role within
the newly formed Handmade Toy Alliance.
So, today I come before you to speak, not just for myself,
but as a board member of the Handmade Toy Alliance, an
organization that owes its very existence to the CPSIA. The HTA
now represents 592 member businesses, including specialty
retail stores, toymakers, and children's product manufacturers
from across the country. I'm here today with fellow board
members Kate Glynn of a Child's Garden and Impish, in
Massachusetts, and Randy Hertzler of euroSource, in
Pennsylvania.
The deadline for third-party testing is February 10, 2011,
just 10 weeks from now. 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. Throughout the last 2 years,
we have slowly witnessed many of our members close their
businesses or change their business models as to not include
children's products.
I have with me today a few examples of these businesses:
First, you see a wooden toy airplane. This toy, made by our
member, John Greco, in New Jersey, is made solely from wood.
The coming requirement for ASTM testing, in the CPSIA, makes it
economically impossible to produce items like this in small
batches. Rather than continue to make children's products, Mr.
Greco decided to close that aspect of his business this past
September. As he shared with me, ``I was never looking to get
rich making wooden toys. I did it because I enjoyed making toys
that made kids happy.''
Second, you see an award-winning, custom-designed fabric
toy monster created by Stephanie and Michael Estrin, owners of
Curly Q Cuties, in Texas. Children and their parents can go
online and design their own personal monster. After much
research, Curly Q Cuties found that they could never afford to
test each unique design to ASTM standards, and decided to close
their business at the end of this year. Ms. Estrin cites the
reason for the company's closing due, ``a law that does not
address our particular manufacturing scenario.'' Put simply,
the CPSIA makes no allowances for one-of-a-kind items.
Third, my fellow board member, Randy Hertzler's family
business focuses on often hard to find toys, primarily imported
from the European Union. These toys, that represented 44
percent of his sales in 2006 to 2007, have disappeared from the
U.S. market altogether, because of the CPSIA's lack of
alignment with European standards. Many quality European toy
companies will no longer sell to companies--to American
retailers, like Randy. He fears that he will have to liquidate
and close in 2011.
We find it hard to believe that it was Congress's intent,
with the CPSIA, to remove products and businesses like these
from the marketplace.
While the HTA has worked closely with the CPSC, submitting
comments on pending rules, attending CPSC-sponsored workshops,
regular e-mail and phone contact with CPSC staff, we feel
strongly that the current legislation does not grant the CPSC
the flexibility to address our members' needs.
We have offered a number of suggestions that we feel will
ensure the safety of children's products, yet amend the CPSIA
to be more workable for the businesses we represent. We are
more than happy to further discuss these suggestions throughout
the day, today.
Two needed changes I'd like to bring up at this time
include granting the CPSC the authority to use risk analysis to
allow enforcement flexibility of third-party testing and
hazardous content limits. High-risk items, like paint or metal
jewelry, should be held to higher verification standards than
low-risk products, like bike valve stems and brass zippers on
children's garments. And, just as the Senate included language
in the new food safety bill to exempt small farmers making
under 500,000 per year, we ask that Congress make similar
allowances for manufacturers who produce in small batches,
exempting them from the third-party testing requirements. It's
important to point out that these manufacturers would not be
exempted from the standards themselves, only from the third-
party testing protocol.
Over the last 2 years, we've been told countless times that
the CPSIA was never meant to adversely affect our businesses.
We have worked tirelessly, along with many others, to enact
commonsense changes within this legislation, always holding
onto the fact that the products we create are safe.
On behalf of our members, I thank this committee for
addressing this important issue, and urge you to quickly pass
meaningful reform of the CPSIA, correcting these unintended
consequences.
Thank you.
[The prepared statement of Ms. Chuckas follows:]
Prepared Statement of Jill Chuckas on Behalf of the
Handmade Toy Alliance
Hello. My name is Jill Chuckas and I own a small hand crafted
children's accessories business called Crafty Baby. For the last 12
years, I have been crafting children's products from my home based
studio in Stamford, CT. When Congress first spoke of toy safety
legislation, I applauded your efforts. In December of 2008, though, I
began to read the fine print. I became acutely aware that this law,
meant to regulate large, multi billion dollar companies that had
betrayed the countries trust, could effectively put me out of business.
Not because my products are unsafe, but because I simply could not
afford the mandatory third-party testing and labeling requirements,
which disproportionately affect small batch manufacturers and specialty
retailers. I quickly joined a rising grass roots effort to amend the
CPSIA and took on a leadership role within the newly formed Handmade
Toy Alliance.
So today I come before you to speak, not just for myself, but as a
Board member of the Handmade Toy Alliance, an organization that owes it
very existence to the CPSIA. The HTA now represents 592 member
businesses, including specialty retail stores, toymakers and children's
product manufacturers from across the United States. I am here today
with fellow Board members Kate Glynn of A Child's Garden and Impish in
Massachusetts and Randy Hertzler of euroSource in Pennsylvania.
The deadline for third-party testing is February 10 of next year--
just 10 weeks from now. 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. Throughout the last 2 years, we have slowly
witnessed many of our members who manufacture products close their
businesses, or change their business models as to not include
children's products. These equate to lost jobs, not because the company
couldn't make safe product, but because the companies couldn't navigate
the costly and burdensome regulations the CPSIA puts forth to prove
that their products are safe. I have brought with me today a few
examples of these businesses.
First, you see before you a wooden toy airplane. This toy, made by
our member John Greco in New Jersey, sold for $110 and is made from
Cedar, Oak, Poplar, Birch, and Maple. It is unfinished, so it doesn't
need to be tested for lead, but quotes from labs to perform ASTM F963
Use & Abuse testing makes it too costly to continue making. Just one
round of testing requires 12 toys to be sent to the lab for destructive
testing, resulting in $1,320 in lost gross sales--and this does not
include shipping and lab fees. Rather than continue to make children's
products, Mr. Greco decided to close that aspect of his business this
past September. As he shared with me, ``I was never looking to get rich
making wooden toys--I did it because I enjoyed making toys that made
kids happy.''
Second, you see before you an award winning custom designed fabric
toy monster created by Stephanie and Michael Estrin, owners of Curly Q
Cuties in Texas. Children and their parents can go on line and design
their own personal monster. After much research, Curly Q Cuties found
that they could never afford to test each unique design to ASTM
standards and decided to close their business at the end of this year.
Mrs. Estrin cites the reason for the company's closing due to ``a law
that does not address our particular manufacturing scenario.'' Put
simply, the fact that this is a one of a kind item, makes it impossible
to adhere to all the stipulations within the CPSIA.
Third, my fellow board member Randy Hertzler's family business
focuses on often hard to find toys, primarily imported from the
European Union. These toys, that represented 44 percent of his sales in
2006-2007, have disappeared from the U.S. market because of the CPSIA's
lack of alignment with European standards. Many quality European toy
companies will no longer sell to American retailers like Randy. He
fears that he will have to liquidate and close in 2011.
While the HTA has worked closely with the CPSC--submitting comments
on pending rules, attending CPSC sponsored workshops, regular e-mail
and phone contact with CPSC staff--we feel strongly that the current
legislation does not grant the CPSC the flexibility to address our
members' specific needs. This was most recently shown by the CPSC
definition of a children's product. The final rule was issued in 63
pages of text that we now understand to mean ``if it can be construed
as a children's product, it is.'' Our view was that the CPSC could have
offered relief to countless small businesses, but the ambiguity of
their definition, rather than exempting product categories and
providing guidance, has only served to create additional market
confusion.
We have offered a number of suggestions that we feel will ensure
the safety of children's products, yet amend the CPSIA to be more
workable for the businesses we represent. The majority of these ideas
were outlined in our January 2010 letter to the CPSC. We are more than
happy to further discuss these suggestions throughout this hearing.
Most importantly, Congress should grant the CPSC the authority to
use risk analysis to allow flexibility of third-party testing
requirements and hazardous content limits. High risk items like paint
or metal jewelry should be held to higher verification standards than
low-risk products like bicycle valve stems and brass zippers on
children's garments.
Second, the definition of what is a children's product should be
changed to items intended for children 6 years or younger, except where
the CPSC identifies a product requiring a higher age limit based on
risk analysis.
Third, educational products intended for use in a classroom
environment should be excluded from the definition of a children's
product.
Fourth, harmonize CPSIA standards with the European Union's EN-71
standards to remove the regulatory trade barrier which the CPSIA
created between the U.S. and the EU. This would include changing the
lead content standard from an untenable total lead standard to an
absorbable lead standard.
Fifth, exempt manufacturers who make less than 10,000 units per
year from all third-party testing requirements and allow them to comply
instead with the `reasonable testing program' requirements which apply
to manufacturers of non-children's products under the CPSA. This would
protect small batch manufacturers and specialty product manufacturers,
including companies that make adaptive products for children with
disabilities. These manufacturers would not be exempted from the
standards themselves, only from the third party verification
requirements.
Sixth, tracking labels should be voluntary except for durable
nursery items and products which are most likely to be passed down to
younger siblings or resold where the CPSC's risk analysis determines
that tracking labels would be most likely to prevent harm.
Manufacturers who choose to implement tracking labels would benefit
from a lesser burden in the event of a recall.
Seventh, instruct the CPSC to not lower the lead content limit from
300 parts per million to 100 parts per million, a standard so low that
it multiplies the difficulties of compliance.
Over the last 2 years, we have been told countless times that the
CPSIA was never meant to adversely affect my business or the member
businesses the HTA represents. We have worked tirelessly, along with
many others, to enact common sense change within this legislation,
always holding on to the fact that the products we create are safe. On
behalf of our members, I thank this committee for addressing this
important issue and urge you to quickly pass meaningful reform of the
CPSIA, correcting these unintended consequences. Thank you.
A full list of our 592 member businesses can be found at http://
www.hand
madetoyalliance.org.
Senator Pryor. Thank you.
Ms. Weintraub, let me start with you, if I may.
On our first panel, we had some discussion about budgets.
And folks pointed out some of the concerns with the CPSIA and,
you know, some of the bumps in the road on how we drafted it or
how it's trying to be implemented. But, you know, one thing, I
think, that was missing from that discussion was a context of
what life was like before two things happened: before we passed
the CPSIA and before Chairman Tenenbaum came on board.
Could--do you mind, sort of, painting--just very briefly,
kind of painting a landscape for us of what it looked like
before those two things happened?
Ms. Weintraub. Sure, I'd be happy to.
I described what CPSC had suffered as ``death by a thousand
cuts.'' The CPSC's budget had been decimated and had never been
restored. In 1972, when the CPSC was first created, the agency
was appropriated $34.7 million; they had a staff of 786 full-
time employees. The agency's budget, since that time, did not
keep up with inflation, did not keep up with its deteriorating
infrastructure, did not keep up with the changes in consumer
products, and did not keep up with the increasing data-
collection needs. The agency suffered repeated and severe cuts
during the last 2 decades, falling from a high of 970
employees, in 1980, to just 401, in 2007, a loss of almost 60
percent.
So, what we were all faced with as we were looking to make
CPSC more robust was a beleaguered agency that was starved of
resources, of legislative authority, and appropriate resources
to do what it needed to do to protect the American public. And
it's only with CPSIA that the Commission has been given a boost
of all of these things.
Senator Pryor. Let me ask about one of the things, in the
CPSIA, that they're still in the process of doing. They're
getting closer on it. But, it's the database. What is your
perception of how that has gone? And what the--how useful the
database might be, come, what is it, March of next year?
Ms. Weintraub. Yes. The database, thanks to your leadership
and the leadership of your staff and this committee--
subcommittee and full Committee--will be implemented in March
2011. It is a very important resource for consumers, because--
again, looking at the state of the product safety world before
CPSIA passed, consumers were, and right now are, in the dark.
Because of Section 6(b) of the Consumer Product Safety Act,
which is still in effect, CPSC, unlike any other government
agency, has to basically ask permission from the manufacturer
of a particular product before they can disclose information
about that product to the public. That has hampered the agency.
That has kept critical safety information, that affects life
and death, out of the hands of consumers. And it has really put
consumers under a veil of ignorance.
What this database will do, because it is out of Section
6(b), will provide a very useful resource that--consumers, when
they have a problem, they can report it, as they do now.
However, they can report it online, and it will be public.
Importantly, as was prescribed by this committee and by
Congress generally, there's very specific criteria that is
required before a posting can be made. So, the concerns that
have been raised about the definition of a ``consumer'' being
broad, all of that is narrowed very much by the fact that, if
there is not essential information about the product, about the
harm, then the posting will not be available.
So, I think that the impact of this database will be
profound.
Senator Pryor. I must say that yesterday I went on the
NHTSA website to look up--I have a 19--I mean--excuse me--I
have a 2003 Ford Taurus. And I had looked it up on the NHTSA
database, on their website, because I was having a problem with
it, and I wanted to see if others were having the same problem,
and if they could give me some direction. So, I found that very
helpful.
Dr. Gardner, let me ask you something that--follow up on
something that you said in your testimony. You talk about how,
you know, you've been a physician, I think you said, for 37
years----
Dr. Gardner. Yes.
Senator Pryor.--Correct?--and that you're seeing different
types of injuries today. Or, I guess what you're saying is,
there were injuries that you used to see in children that you
just don't see much anymore. Could you elaborate on that?
Dr. Gardner. Yes, let me give you a specific example, and
that's the issue of walkers. A while back, walkers had wheels,
they were small in size, they were mobile. Children loved them,
because it made them mobile. Parents loved them, because it was
hands-free--they could turn their back on the kids for a
minute. The problem was that toddlers are drawn like magnets to
stairs. An open stairway is a magnet and pulls them forward.
And, unfortunately, when they're in a walker, they'll just go
down the stairs in their walker, and often land on their head.
It was very common for me to see significant head injuries,
not just concussions, but skull fractures, intracranial bleeds.
And the most common cause of head injuries in toddlers--this
was several years ago--was, clearly, walkers. And we were
forever warning parents that the walkers were dangerous and
that they should always supervise, and preferably just never
have their child in a walker.
So, that's one example where now walkers are no longer
either mobile. They're a stationary object that the child can
bounce and play in, but it's not going to move anywhere, or
they're so wide that they won't fit through a doorway and allow
them to go down the stairs. We still would prefer children not
to be in walkers, but they don't create the risk of head injury
that they did several years ago.
Senator Pryor. Right. So, based on, you know, your area of
practice, are you seeing fewer injuries to children, based on
children's products? Or, can you say that?
Dr. Gardner. It keeps changing. And I referred to that, a
little bit, with emerging hazards. I think we see new risks,
and we need to be aware of that. For example, the button
battery. There's this new generation of lithium button
batteries----
Senator Pryor. Right.
Dr. Gardner.--that children perceive as toys or--they
swallow coins, and they are very easy to confuse on an X-ray,
with a coin. If this lithium button battery is entrapped in the
esophagus for a minimum of 2 hours, it causes irreversible
damage to the esophagus, can perforate the esophagus or cause
bleeding, and that's difficult to recognize. The leading source
of those batteries is the TV remote. The TV remote is dropped,
pops open, and the battery falls out. That's the leading source
of ingestion for children. That's an injury I never saw before.
And that's just an example of a new emerging hazard.
Senator Pryor. Thank you.
Ms. Chuckas, I'm really interested in what you said a few
moments ago. And it may be hard to believe, but we did try to,
you know, draft legislation in a way that--we were trying to
find the balance of--just because a small company, a craftsman,
maybe one person, maybe makes one toy at time and just sells
them at, you know, crafts fairs, et cetera, or maybe they sell
them in retail stores--but, just because it has made by one
person in a--his or her shop, doesn't mean that it's
automatically safe. I mean, that toy can injure a kid, just
like something made by, you know, one of the big companies.
So, we're trying to find that balance of, you know, How do
we provide a safe marketplace and children's safety, but also
understand that--you know, we try not to make this too
burdensome on smaller companies. And I'm not sure that we got
that balance exactly right, but we have tried to do that. And
your testimony has been very important.
Also, I was going to ask you--and you may not know, there
may not be any way to answer this question--but, I understand,
in this very difficult recession, some of these small companies
are going to go out of business anyway. Do you have a sense of
how many are going out of business because of the economy,
versus the changes in the consumer protection laws? Can you
gauge that?
Ms. Chuckas. It is a hard thing to gauge, because certainly
the economy of everything has been a factor within these
businesses, as well. But, I think what has happened is that the
drive to continue to try to do what one loves has left, because
the overwhelming sense of this legislation is something people
can't get past. So, it becomes the ``straw that broke the
camel's back'' kind of thing.
Senator Pryor. Yes.
Ms. Chuckas. It was just one more thing they couldn't deal
with.
Senator Pryor. Now, the CPSC has a list of, you know,
products that say--they know don't contain lead. And it's--my
understanding is that you don't have to do any third-party
testing. And wood, I think, is one of those. You--am I wrong on
that?
Ms. Chuckas. For the lead content, you're correct.
Senator Pryor. OK.
Ms. Chuckas. The issue with the toy is the ASTM safety
standards. I submitted, within my written testimony, some
quotes from--this wooden toy, for example, sells for $110. When
John contacted a CPSC-approved lab, which--it was difficult for
him to find a lab, actually, that he could work with, to begin
with, in the United States. He found one. He had to send 12 of
this toy. He made 20 of them. So, 12 of them had to be sent, in
order to comply with the toy safety standard aspect. And so,
that was roughly around $1,300 worth of inventory he wasn't
going to get back, in addition to the shipping, in addition to
the lab fees, which--he didn't even get that far with them,
what the actual lab costs would be for the multitude of tests
that would have to be done on this wooden toy airplane.
Senator Pryor. When you and your members contact the CPSC
about this issue, is it your perception that they're listening,
that they're trying to work with you? Or, maybe do they give
you a sense that their hands are tied because of the law? I
mean, how's the--how responsive has the----
Ms. Chuckas. Extremely responsive. We've spoken directly
with four out of five of the commissioners. Chair Tenenbaum,
Commissioner Northup, Commissioner Nord, and Commissioner Adler
have made them all--have made themselves readily available.
Their staffs have been readily available. And, within a week
after they appointed the new small business ombudsman, we had a
conference call with him. Very readily available. They've been
great working with us.
Senator Pryor. Has it translated into action, though? Or
relief?
Ms. Chuckas. To some extent. We're waiting, still, on the
component safety certification rules to come down. We had
really hoped that that would have been done a long time ago,
but we recognize the massive rulemaking undertaking that is.
So, we feel that they are listening to our concerns. It
hasn't always articulated itself into a ruling that was going
to be helpful. But, we do feel that they're listening. They're
trying.
Senator Pryor. Yes. OK, good.
Mr. Lamar, let me ask you, if I may--kind of follow up on
that same question. I know that your industry has had a lot of
contact with the CPSC. And I'm curious about, you know, if your
perception is that they've been receptive and willing to
listen. And, even if they have, do they, kind of, come back and
say that their hands are tied? So, it's the same question.
Mr. Lamar. I think they've been extraordinarily responsive.
I would agree with Jill, we've had conversations--multiple
conversations with commissioners or staff. Several of the
commissioners have come and presented at training workshops
that we've held throughout the United States and around the
world. They've been very eager to help out when they can. Many
times the reaction we get is, ``You raise some good points, we
don't know if we can go that far,'' or, ``You've raised some
good points, the legislation doesn't allow us to accommodate it
the way you might request so you have to recalculate your
proposal.''
Sometimes, even when they want to be responsive, they're
not able to be as responsive, because there are a lot of other
industries asking the same question. Behind me, there are a ton
of industry representatives, representing everybody from books
to ATVs to science kits to, you name it, and they're all asking
the exact same questions; many times, on the same kinds of
issues. And there are only so many people at the agency, and I
think their ability to respond to all of these questions coming
in makes it difficult for them to be as responsive to everybody
as quickly as they probably could be.
Senator Pryor. Right.
Let me ask--you said--one reason I wanted to ask you that
question is, you said--in your written testimony, you said,
``Product safety standards that work best are those that are
created through a transparent and predictable process. If one
group appears shut out, the final result may not be credible or
accepted by all.'' And, from that, I guess I was inferring that
you guys felt like you'd been shut out or had not been listened
to.
Mr. Lamar. No. I think what I'm trying to describe there is
sort of their Nirvana. I think that you want to have a
situation where everybody has an opportunity to comment. I
think Chair Tenenbaum mentioned, when she was discussing the
cadmium approach--is that they were going to work with the
voluntary standards-setting community, so that everybody would
have an opportunity to participate, that would focus on the
products and the specific risk, rather than trying to create
something that's out there. I think that kind of goes back to
the comments I made before in some of those eight points.
Senator Pryor. And one of the things I think you've talked
about is zipper testing. Have there been problems with zippers
having high lead content? Has that been an issue, either now or
in the past?
Mr. Lamar. Yes. I'm glad you asked that question. There's a
lot of confusion. We presented a lot of data to the agency--5-
or 6,000 test results, I think it was--it came out to. This was
when we did our determination that there was no--or, were
seeking the determination that there was no lead in textiles.
And, in addition to proving that there was no lead in textiles,
we found--and this was pre-CPSIA inventory, so this was
inventory that had been produced before people knew what the
new lead rules were going to be, even before they even knew
that they were being discussed--and the incidents of lead in
things like zippers, buttons, snaps, other kinds of accessories
on clothing, was about 3 to 5 percent. So, what we found was
that it's not in textiles. It may be, in a very, very small,
isolated, rare set of circumstances, in some kinds of
components. Moreover, what we found is, if it were, like, in a
zipper, it might be in the stop at the bottom of the zipper; it
wasn't in the pull, the slider, the teeth, all these other
aspects of the zipper machinery or equipment. So, you found
these very isolated, rare circumstances.
The problem is, this translated, as implementation began--
is that the zipper stop, for example--and I brought a pair of
pants that illustrates it--might be violative. If that was
above the 600 parts per million, then that meant the entire
zipper was above 600 parts per million, which meant the entire
pair of pants was above 600 parts per million, which meant a
whole shipment might be above it. So, it's kind of in a--in a
reference to the old children's parable, you know, ``For want
of a nail, the kingdom was lost''--for want of the zipper stop
that was compliant, the entire shipment and the order was lost.
And so, a lot of inventory had to get destroyed, because you
might find that, in one zipper stop, there was a problem. And
that was a significant problem that we had in our industry.
I think, as people knew these rules, they've now started to
produce zippers that are compliant. They're going through
making sure that the metal used, the processes used, in the
future and for future shipments, is going to be compliant with
that limit--with the 100 parts per million now, because you're
looking down the road.
Senator Pryor. We actually saw that as we were working on
the CPSIA through the process. Some of the companies--
manufacturers, retailers--were already making changes, in
anticipation of the--you know, the law taking effect. And, you
know, hopefully what it does is--in Dr. Gardner's world, it
helps create a safer place for everybody.
But, Dr. Gardner, let me ask you about something that was
touched on more in the previous panel, but a little bit here,
about lead. There was a lot of discussion, in the first panel,
about lead. And I assume that you would say that there is no
safe level of lead. I mean, we've kind of talked about that
before. But, is the real issue with lead solubility or, you
know, what--if we're looking at some modification of the
existing CPSIA, when it comes to lead, and maybe giving a
little more flexibility or a little more direction on this--you
know, I guess I--from your standpoint, what are the two, three
things we need to know about lead?
Dr. Gardner. Yes. I think the most important thing for
people to realize about lead, in very simple terms, is that
it's a neurotoxin that, in simple language, causes brain damage
that's permanent and irreversible. The other important medical
aspect of lead is that it's accumulative.
Senator Pryor. It's--does that mean children are more
susceptible to it?
Dr. Gardner. Yes. Particularly younger children, as their
brain is developing and they're acquiring their skills, and
early brain development. There's a long-lasting impact on their
subsequent development and behavior and IQ and function.
Senator Pryor. Right. So, tell us about the cumulative
aspect of----
Dr. Gardner. Part of the issue is that lead stays in your
body for many years, if not decades. And it accumulates. So,
one of the difficult issues is that an exposure to a small
amount of lead, in and of itself, may not be harmful, but as
that adds on, and it's additive, and it continues over a period
of time, you can easily reach levels that are harmful, even
though those individual exposures are small.
The other thing that's hard to monitor and measure is the
starting point of a child's lead exposure. If they're starting
with a blood lead level of 8, and they're exposed to small
amounts that, over a period of time, take them over 10--as
opposed to the child that starts with a blood lead level of 1
and goes to 3. Bioavailability or the absorption is a moving
target, in terms of how much is being absorbed and stored over
time, and what the vulnerability is of that child or
adolescent, or even adult, absorbing that lead.
Lead is a poison. And it's very difficult to talk about
safe levels when there, essentially, isn't one.
Senator Pryor. Right. It has been a difficult topic within
the CPSIA and the CPSC, trying to implement this, because, you
know, there's a lot of lead in products out there. And, you
know, some products, it's just a necessary ingredient, and it's
been used for different things at different times. And, you
know, some of these parts are not accessible at all. And the
CPSC has really been struggling with this and working through a
lot of these issues, over time. So, we'll continue that
discussion with all of you all----
Dr. Gardner. There's background lead----
Senator Pryor. Yes.
Dr. Gardner.--as well.
Senator Pryor. Right.
Dr. Gardner. And you can't eliminate all of the background
lead----
Senator Pryor. Right.
Dr. Gardner.--so that's adding just the ``lead load,'' if
you will.
Senator Pryor. But, I guess the idea would be, if you can
lessen the load, especially in children's products----
Dr. Gardner. Yes.
Senator Pryor.--that's a good thing to do, because they do
have this other----
Dr. Gardner. It's essential.
Senator Pryor. Yes.
Well, listen, you guys have been great. I want to thank all
the panelists.
We're going to leave the record open for 2 weeks. We, I'm
sure, will have lots of follow-up questions, because I have
several more pages. I just don't want to keep you all day. But,
I'm sure we'll have some follow-up questions and other
questions from the Committee members who couldn't be here
today.
So, I want to thank all of you all for everything that you
do. And, like we said before, as we go through 2011, we will
continue this dialogue, whether it be here in the Subcommittee
or in, you know, our offices or just informally, or whatever.
But, your input is very important.
We appreciate all of you for being here, and thank you. And
have a great holiday season.
[Whereupon, at 12 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of The Printing Industries of America, Book
Manufacturers' Institute, Inc., and the Association of American
Publishers, Inc.
Petition
December 16, 2010
Office of the Secretary,
U.S. Consumer Product Safety Commission,
Bethesda, MD.
Re: Request to Extend the Current Stay of Enforcement for Certain CPSIA
Testing and Certification Requirements for Books and Other
Printed Material Children's Products
Dear Mr. Stevenson:
The Printing Industries of America,\1\ the Book Manufacturers'
Institute, Inc.,\2\ and the Association of American Publishers \3\
(hereinafter ``Joint Requesters'') hereby request the Consumer Product
Safety Commission to extend its current stay of enforcement for certain
provisions of Subsection 14(a) of the Consumer Product Safety
Improvement Act (``CPSIA'') for books and other printed material
children's products for an additional 12 months from the February 10,
2011 expiration date of the current stay.
---------------------------------------------------------------------------
\1\ Printing Industries of America (PIA) is the world's largest
graphic arts trade association, representing an industry with
approximately one million employees. It serves the interests of more
than 10,000 member companies involved in every stage of the printing
industry from materials to equipment to production to fulfillment. Over
80 percent of the printing operations in Printing Industries of
America's membership have less than 20 employees, which makes printing
a prime example of small business involved in manufacturing.
\2\ The Book Manufacturers' Institute, Inc. (BMI) is the leading
nationally recognized trade association of the book manufacturing
industry. Our membership is comprised of 80 companies ranging in size
of those with less than a hundred employees to those employing
thousands. BMI member companies annually produce the great majority of
books ordered by the U.S. and Canadian book publishing industries.
While our members produce the majority of books used in all publishing
markets, our members do manufacture over 95 percent of the books used
in the elementary school market.
\3\ The Association of American Publishers (AAP) is the principal
national trade association for the U.S. book industry, representing
some 300 member companies and organizations that include most major
commercial book and journal publishers in the United States, as well as
many small and non-profit publishers, university presses and scholarly
societies. AAP members include large and small publishers of children's
books in the consumer marketplace, as well as publishers of
instructional and assessment materials for students at all levels of
education.
---------------------------------------------------------------------------
An extended stay is necessary because the Commission to date has
not completed several pending rulemaking proceedings, specifically the
Testing and Labeling Pertaining to Product Certification (75 FR 28336)
and Conditions and Requirements for Testing Component Parts of Consumer
Products (75 FR 28208) rules, that are required for implementation of
and compliance with Sections 101, 102, and 108 of the Consumer Product
Safety Improvement Act of 2008 (``CPSIA'') before the current stay
expires. Even if the Commission were to publish the final rules today,
the effective dates of the rules would not allow for sufficient time
for companies to implement these provisions properly.
Over the course of the prior and current stays, the Commission has
worked in a determined manner to implement CPSIA, including the
publication of more than 50 rules and interpretive policy statements
implementing the law. The Commission has also issued several policy
statements designed to provide guidance to industry. However, serious
implementation problems still exist, particularly in the application of
CPSIA to books and other printed children's material, even as the clock
ticks down to the current stay's expiration date.
For more than 2 years, the Joint Requesters have been engaged in
meetings, discussions and other communications with the Commission and
its staff in an effort to clarify the applicability of the requirements
in the various sections of CPSIA to books and other printed material
children's products. These efforts have involved the exchange of
letters, development and provision of online access to a test results
database, and multiple in-person meetings with the Commission's
technical, legal, and enforcement staff.
The Joint Responders' interaction with the Commission has been
productive in a number of ways, including an August 26, 2009 final rule
announcing determinations (74 FR 43031) that certain component
materials, such as paper, animal-based glues, and any product printed
with four color process inks (CMYK) and others, used in books and other
printed material children's products are not required to be tested for
lead content under Subsection 102 of the CPSIA.
However, to date many other component materials included in the
initial request for determinations made by the Joint Requesters have
not received determinations for exclusion by the Commission. These
include spot inks, saddle stitching wires, and laminates, among other
components.
The Joint Requesters understand the significance of such
determinations and deeply appreciate the efforts of the Commission
staff to work with us on our additional exclusion determination
requests. However, since the typical components of most books and other
printed material children's products are comprised of the materials
that did not receive exclusion determinations from the Commission, the
practical result is that any of these children's products that includes
a component of non-excluded material will have to be tested for
certification under the statutory requirements. As a result, the needed
relief from the accredited third-party laboratory testing requirement
is unavailable for virtually all such products.
Other aspects of CPSIA, such as the stringent conditions that must
be met in order to demonstrate the ``non-accessibility'' of certain
component materials as a basis for their exclusion from the Section 102
testing requirement, as described by the Commission in its final rule
issued on August 7, 2009 (74 FR 39535) have proven too restrictive for
virtually any books with covers to avoid the testing requirement and
remain problematic.
Yet another example of the practical limitation of the current
exclusion determinations for component materials involves textbooks.
Almost every textbook cover is laminated to maintain product quality
and longevity. Since laminates are not included in the list of
component materials determined to not have lead contents that could
ever exceed the statutory limit, every textbook must be tested for lead
content to support the required certification. Considering the millions
of textbooks printed each year and the lead-time required to test and
deliver them to students in a timely manner, this presents an
unrealistic situation for the companies represented by the Joint
Requesters. In addition, a large percentage of soft-cover books, which
includes the testing books that are required under the No Child Left
Behind Act, are printed with spot inks. All of these would also require
testing to support the required certification.
Certainly, all stakeholders are aware of these and other examples
that have proven challenging in the implementation of CPSIA. In its
January 2010 ``Report to Congress,'' the Commission stated it believed
it could ``more effectively fulfill its mandate under section 101(a) if
it were allowed greater flexibility in granting exclusions from the
section 101(a) lead limits,'' particularly as the regulation related to
``ordinary books.'' The report also highlighted the Congressional
statement of managers attached to the FY 2010 omnibus bill, in which
the Conferees noted their belief that CPSIA may not have been intended
to subject ordinary children's books to certain provisions of the law.
Congress has also taken action to address the implementation and
compliance challenges surrounding CPSIA. In the 110th Congress,
legislation to amend CPSIA was introduced by both Democrat and
Republican Members of Congress. The House Energy & Commerce Committee
held a hearing on potential revisions to CPSIA April 29, 2010 and the
Appropriation Committees of the House and Senate requested the ``Report
to Congress'' referenced above, which was designed to solicit
suggestions from Commissioners on possible ways to amend CPSIA to avoid
unintended consequences and make the law work in a practical way.
The most recent Congressional examination of CPSIA was on December
2 in a Senate hearing held by the Committee on Commerce, Science, and
Transportation. At this hearing, Chairman Rockefeller acknowledged that
the Commission ``continues to grapple with a few outstanding issues''
and stated that the Senate is ``taking a hard look at those concerns
and recommendations.'' The Joint Responders are encouraged by this
statement, but realize that such action is not reasonably likely to
occur until after the 112th Congress convenes next month.
Industry, too, continues to develop for submission additional
information supporting further exclusion determinations for component
materials used in books and other printed material children's products.
For those component materials that will ultimately require testing,
extension of the stay would allow the necessary time to develop and
implement a sampling and testing program, based on the yet to be issued
final regulations, that would minimize product delays and burdensome
costs.
With this in mind, we are asking the Commission to extend the stay
on enforcement of the testing and certification provisions for books
and other printed material children's products, until February 10,
2012. Taking such an action now will provide the Commission, Congress,
and industry time to work together to develop additional revisions,
policies, and interpretations that maximize the prospects for a useful
and cost-effective solution for all stakeholders. During the period of
the extended stay, the prohibition against commerce in children's
products containing total lead content exceeding the prescribed
statutory limits will, of course, remain fully in force. Extending the
stay with respect to ordinary paper-based children's books and other
printed material children's products will in no way endanger the health
and safety of children, as the total lead content of such children's
products currently is well below the most stringent statutory limits
and publishers and printers will continue to ensure that it remains so.
During the extended stay of enforcement, the book printing,
manufacturing, and publishing industries--represented by the Joint
Requesters--will continue to work with the Commission and its technical
staff on additional exclusion determinations for certain component
materials that are used to manufacture books and other printed material
children's products, and with Congress as it seeks to remedy unintended
consequences of CPSIA.
We would be happy to respond to any questions that the Commission
or its staff may have about this request.
Respectfully submitted,
Lisbeth A. Lyons,
Vice President of Government Affairs,
Printing Industries of America.
Daniel N. Bach,
Executive Vice President,
Book Manufacturers' Institute, Inc.
Allan Robert Adler,
Vice President for Legal and Government Affairs,
Association of American Publishers.
______
Retail Industry Leaders Association,
Arlington, VA, December 2, 2010
Hon. Mark Pryor, Chairman,
Hon. Roger Wicker, Ranking Member,
Senate Commerce Committee,
Subcommittee on Consumer Protection, Product Safety, and Insurance,
Washington, DC.
Dear Chairman Pryor and Senator Wicker:
The Retail Industry Leaders Association (RILA) welcomes the
Committee's hearing on oversight of the Consumer Product Safety
Commission (CPSC) and product safety in the holiday season, and we
appreciate this opportunity to showcase the steps that our members are
taking to ensure product safety and integrity all along the supply
chain--during the holiday season and throughout the year. RILA members
place the highest priority on the safety and quality of the products
they sell to their customers, particularly toys and other children's
products. RILA also supported the sweeping Consumer Product Safety
Improvement Act (CPSIA) when it was enacted in 2008, and our members
have worked aggressively to implement the law's many new requirements.
While implementing the CPSIA, it has become apparent that there are
some provisions in the law which that do not coincide with best
practices and have resulted in unintended consequences. As Congress
begins to consider its agenda for 2011, RILA hopes the Senate Commerce
Committee will make it a priority to advance legislation to facilitate
better implementation of the CPSIA.
By way of background, RILA promotes consumer choice and economic
freedom through public policy and industry operational excellence. Our
members include the largest and fastest growing companies in the retail
industry which together provide millions of jobs and operate more than
100,000 stores, manufacturing facilities and distribution centers
domestically and abroad.
RILA/British Retail Consortium Consumer Product Standard
Retailers have vigorous quality assurance programs and enforcement
mechanisms for their suppliers. In addition to these efforts and
implementation of the CPSIA, RILA is seeking to advance product safety
efforts by partnering with the British Retail Consortium (BRC) to
implement a factory capability assessment of suppliers of consumer
products sold in North America. This effort will create a harmonized
standard that will be consistently evaluated by a third party-assessed
scored audit. RILA believes the RILA/BRC standard will effectively
promote global product safety by seeking to ensure that suppliers
receive a detailed measurement of their quality management systems.
Improvements to the CPSIA
While RILA recognizes that the CPSIA has had a profound impact in
reinvigorating the Consumer Product Safety Commission (CPSC) and
enhancing consumer product safety, RILA also believes the 2008 law
could be improved. Most importantly, RILA strongly supports the
unanimous preference of the CPSC Commissioners to prospectively apply
the August 2011 100 ppm lead limit. As currently interpreted by the
CPSC, the CPSIA will make it unlawful to sell products that exceed a
100 ppm limit after August 2011, regardless of when the products were
manufactured, unless the CPSC determines that the lower limit is not
technologically feasible. The retroactive application of this provision
creates substantial problems for manufacturers and retailers with large
inventories of children's products, as well as for resellers such as
charitable thrift stores, and leads to wasteful destruction of safe
products because confirmation of compliance for products already on
retail shelves often cannot be done in a cost effective manner.
Retailers will incorporate new safety standards into their guidance to
suppliers so as to ensure compliant products, but it is very difficult
to implement new standards on the basis of a sell-by date, particularly
when there is uncertainty on whether the CPSC could make a
determination that 100 ppm is not technologically feasible. There is
significant historical precedent to implement new safety standards on a
prospective basis, and RILA has urged the CPSC to implement the August
2011 lead limit on a prospective basis. Nevertheless, Congressional
action to clarify its intent for a prospective application would be
very helpful for smooth implementation of the law.
RILA also believes the CPSIA should be modified to clarify that
inaccessible component parts are excluded from the law's phthalate
restrictions. Section 101(b)(2)(A) of the CPSIA clarifies that the lead
limits do not apply to any component part of a children's product that
is not accessible to a child through normal and reasonably foreseeable
use and abuse of such product. Section 108 of the CPSIA does not
currently make a similar exception for inaccessibility for phthalates,
and RILA understands this omission was inadvertent. RILA believes the
prohibition on phthalates should only apply to accessible parts similar
to the lead policy. As an example of the problem, phthalates are used
in the plasticized coating of internal wiring in electronic toys, such
as remote controlled helicopters. The phthalates help to keep the
plastic coating soft and pliable to better encase and protect the
wires, but does not present a risk of exposure to a child playing with
the helicopter because the wires are inaccessible. An clarification
that inaccessible component parts are excluded from the phthalates
limits would prevent the need for costly and unnecessary testing, and
confirm that the remote-controlled helicopter would be CPSIA compliant.
RILA also believes the CPSC should be granted expanded authority to
except certain products or materials from the CPSIA's lead limits based
on functional purpose of the lead in the product or component whenever
the CPSC can also determine that the presence of lead will not affect
public health and safety.
In conclusion, retailers work tirelessly to ensure the safety and
quality of the products they sell, and to fully implement all the new
requirements under the CPSIA. We also hope the Congress will advance
legislation in early 2011 to improve the effectiveness of the CPSIA and
reduce unnecessary costs for businesses that do not provide additional
product safety benefits. We look forward to continuing to work with you
on this and other important product safety issues. If you have any
questions or concerns, please contact Stephanie Lester, Vice President,
International Trade.
Sincerely,
Stephanie Lester,
Vice President, International Trade.
______
Prepared Statement of Richard M. Woldenberg,
Chairman, Learning Resources, Inc.
As an operator of a small business making educational products and
educational toys, I have had a front row seat for the implementation of
the Consumer Product Safety Improvement Act of 2008 (CPSIA) by the
Consumer Product Safety Commission (CPSC). On the occasion of your CPSC
oversight hearing, I want to highlight the economic damage wrought by
the CPSIA without achieving any material improvement in safety
statistics. I also want to bring to your attention the open hostility
of the CPSC toward the corporate community in the implementation and
enforcement of the CPSIA, and conclude with my recommendations for
legal reforms to restore common sense to safety administration without
reducing children's safety.
Children are our business. As educators, as parents and as members
of our community, we have always placed the highest priority on safety.
We would not be in the business of helping children learn if we didn't
care deeply about children and their safety. The CPSIA has dramatically
impacted our business model, reduced our ability to make a profit and
create jobs, pared our incentive to invest in new products and new
markets, and generally made it difficult to grow our business. We would
gladly accept these burdens if the law made our products safer, but the
fact is that it hasn't. Our company, Learning Resources, Inc., has
recalled a grand total of 130 pieces since our founding in June 1984
(all recovered from the market). Our management of safety risks was
highly effective long before the government intervened in our safety
processes in 2008.
The precautionary approach of the CPSIA attempted to fill perceived
``gaps'' in regulation by making it illegal to sell children's products
unless proven safe prior to sale. Yet the law has yielded few
quantifiable safety benefits other than a reduction in recent recall
rates for lead-in-paint (already illegal in children's products for
decades). Ironically, this progress in reducing recalls has taken place
in a 27-month period in which, like the time before the CPSIA, testing
of children's products prior to sale was not mandatory. Consumer
confidence wasn't dented by the lack of mandatory testing. The
justifications for the over-arching and excessively expensive CPSIA
regulatory scheme just don't hold water.
In any event, the reduction in recall rates is only a minor triumph
and was not due to mandatory testing or harsh new lead standards, but
most likely a (hyper) energized regulator and a great deal of
publicity. Recall statistics can be highly misleading because the rate
and number of recalls depend on many factors and do not generally
correlate to injuries to children. In other words, product recalls are
not tantamount to childhood injuries. The purpose of the CPSIA is to
reduce injuries, not product recalls--yet CPSC recall statistics show
that there have been almost no reported injuries from lead or
phthalates in children's products in the last decade (one death and
three unverified injuries from 1999-2010, all from lead or lead-in-
paint). The billions of dollars now being spent by the corporate
community annually on testing and other compliance activities have not
reduced injuries--there weren't any to reduce. Whatever peace of mind
has been generated by lower recall rates comes at a very high price.
The CPSIA significantly broadened the reach of Federal safety
regulation well beyond what was needed to deal with the lead-in-paint
toy violations of 2007 and 2008. Under the CPSIA, the definition of a
``Children's Product'' subject to regulation now encompasses ALL
products designed or intended primarily for a child 12 years of age or
younger (15 U.S.C. 2052(a)(2)). This definition ensures that
virtually anything marketed to children will be subject to the
restrictions of the Consumer Product Safety Act (CPSA), irrespective of
known or quantifiable risk of injury. Put another way, this definition
ensures that many product categories with a long tradition of safety
are now subject to the withering requirements of this law for the first
time simply because they fall within the overly broad definition of a
Children's Product. The affected safe products span the U.S. economy
books, t-shirts and shoes, ATVs, bicycles, donated or resale goods,
musical instruments, pens and educational products. The CPSC declined
to use its discretion to narrow this definition in its recent ``final
rule'' interpreting ``Children's Product,'' thus ensuring continued
market chaos and economic waste.
The consequences of the change in the consumer safety laws to a
precautionary posture has had notable negative impacts and promises to
create further problems, namely:
a. Increased Costs. The new law creates a heavy burden for
testing costs. From 2006 to 2009, our company's testing costs
alone jumped more than eight-fold. We estimate that our testing
costs will triple again after the CPSC (as anticipated) lifts
its testing stay in 2011, and could multiply again if the CPSC
enacts (as anticipated) its draft ``15 Month Rule'' on testing
frequency and ``reasonable testing programs.'' Testing costs
are often thousands of dollars per product. Having employed one
person to manage safety testing and quality control for many
years, we now have a department of five, including me, plus an
outside lawyer on retainer. These jobs are funded by
discontinuing sales, marketing and product development jobs--
the CPSIA is NOT an ersatz stimulus program. Personnel, legal
and other out-of-pocket safety expenses (besides testing) have
more than quadrupled in the last 3 years--all without any
change in our super-low recall rates or injury statistics.
b. Increased Administrative Expenses. The CPSIA requires that
all products include tracking labels on both the packaging and
the product itself. Rationalized as ``analogous'' to date
labels on cartons of milk, tracking labels are in reality
nothing but pure economic waste as applied to the vast array of
``Children's Products'' under the CPSIA. As noted, our company
has a virtually unblemished 26-year track record of safety so
tracking labels promise to add little value in the event of
recalls that are unlikely to occur. Ironically, with the strict
new rules governing product safety, we believe the already low
chance of a product recall has been reduced further. As noted
above, the money to pay for all this administrative busy work
comes from foregone business opportunities. We are being forced
to shrink our company to apply tracking labels that no one will
use.
An equally frustrating bureaucracy has sprung up around
recordkeeping under this law. Burdensome requirements spawned
by the government's new involvement in our quality control
processes forced us to make large new investments in
information technology with no return on our investment. In
addition, the pending CPSC draft policy on component testing
promises to convert the simple task of obtaining a complete
suite of safety test reports into a major recordkeeping chore.
We will now be forced to manage each component separately,
tracking test reports on each component one-by-one. This
promises to multiply our recordkeeping responsibilities--and
the related risk of liability for failing to comply--by more
than an order of magnitude.
c. Reduced Incentive to Innovate. The increased cost to bring a
product to market under the CPSIA will make many viable--and
valuable--products uneconomic. To cover the cost of developing,
testing and safety-managing new products, the prospective sales
of any new item (``hurdle rate'') is now much higher than under
prior law. This means that low volume ``specialty market''
items are less likely to come to market and many new small
business entrants may find themselves priced out of the market.
The CPSIA makes it much harder to start a new business serving
the children's market because the rules so heavily favor big
business. Because of CPSIA transactional costs, high volume
items now have a huge cost advantage over low volume items.
This will hurt many small but important markets like
educational products for disabled children. Our company, with
its 1,500 catalog items, is probably now a dinosaur under the
CPSIA -the law provides a strong economic incentive to
restructure our business around 50-150 items and to focus on
high volume markets only. Schools would suffer from the loss of
niche educational products.
d. Crippled by Regulatory Complexity. Our problems don't end
with testing costs or increased staffing. We are being crippled
by regulatory complexity. Almost 28 months after passage of the
CPSIA, we still don't have a comprehensive set of regulations.
Please consider how mindboggling the rules have become. There
were fewer than 200 pages of safety law and CPSC rules that
pertained to our business until 2008. These rules clearly
defined our responsibilities and could be taught to our staff
(in fact, many were rarely applicable to us). Today, the
applicable laws, rules and interpretative documents exceed
3,000 pages. As a practical matter, it is simply not possible
to master all of these documents--and yet it's potentially a
felony to break any of these rules. Sadly for us, the rules and
CPSC staff commentary keep changing, are still being written
and are rarely if ever conformed. How can we master and re-
master these rules and teach them to our staff while still
doing the full-time job of running our business? 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 an unmanageable fifteen-fold increase
in rules. No small business ``ombudsman'' can make that problem
go away.
e. Small Business Will Certainly Suffer. The CPSIA was written
in response to failings of big companies, but hammers small and
medium-sized companies with particular vengeance. Our small
business has already lost customers for our entire category on
the grounds that selling toys is too confusing or too much of a
``hassle.'' This is our new reality. The highly-technical rules
and requirements are beyond the capability of all but the most
highly-trained quality managers or lawyers to comprehend. Small
businesses simply don't have the skills, resources or business
scale to manage compliance with the CPSIA. For this reason,
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 our market.
In implementing and administering the CPSIA, the CPSC created a
harsh regulatory environment for the business community over
the past 28 months. Consider the following:
1. Unjustified Recalls. In June, in response to an
inquiry by a Congressman and followed up by media
inquiries, the CPSC pressed McDonalds to recall 12
million Shrek glasses for ``high'' cadmium content,
despite the agency's admission on Twitter that the
glasses were not toxic. The recall effort was justified
as being done ``out of an abundance of caution'', a
frightening regulatory standard when applied to
products acknowledged to be safe by the regulator
itself. McDonalds lost millions of dollars as a result,
not to mention suffering from widespread and persistent
bad publicity.
2. Unjustified Penalties and Coercive Tactics. The CPSC
assessed a $2.05 million penalty against a hapless
Japanese dollar store chain (Daiso) for five separate
tiny recalls involving 698 units and 19 items. These
items sold for between $1 and $4 each. There were no
reported injuries from sales of the Daiso trinkets. Ms.
Tenenbaum bragged about this extraordinarily excessive
prosecution in a speech in March 2010 to the Consumer
Federation of America: ``We secured an injunction that
completely stops Daiso from importing children's
products into the country. . . . Daiso has a very high
hurdle to jump over to ever get back in the import
business again.'' Regulated companies take stunning
examples like Daiso as a warning that outsized and
disproportionate force may be used by this agency with
little provocation. The regulated community has also
expressed alarm over the threatened use by the agency
of unilateral press releases ``to warn the public''
about alleged dangers in specific products as a way to
coerce ``voluntary'' recalls. Such threats have been
used where facts may be in dispute to justify a recall.
Under the law, the CPSC may only implement mandatory
recalls subject to a court order, a slow process
perhaps but also expensive and labor-intensive.
``Voluntary'' recalls can be much quicker and cheaper,
only requiring ``agreement'' between the agency and the
subject company. In more than one case, CPSC has
threatened unilateral releases to try to ``convince'' a
firm to undertake a ``voluntary'' recall but after the
firm took the risk of standing up to the staff and the
staff conducted further investigation, the CPSC decided
that recalls were not even necessary. Not all firms can
bear the expense of such a process or take the risk of
calling the staff's bluff because issuance of a release
would likely damage the firm and their brand, possibly
irrevocably. Many supposedly ``voluntary'' recalls have
resulted. Abusive tactics of this nature have severely
damaged trust between the CPSC and the regulated
community.
3. Disregard of Public Comments. The agency has
garnered considerable criticism for overlooking or
disregarding comments from the corporate community
solicited in its public rulemaking processes. Ignoring
or disregarding inconvenient public comments contrary
to the agenda of the controlling party makes a mockery
of the legally-mandated public comment process. Notable
instances include the recent approval of interpretative
rule on ``Children's Products'' and the rules
implementing the public database of safety incidents.
The database debate was so fouled by the majority's
refusal to entertain the legitimate concerns of
industry that the two minority Commissioners proposed
their own draft rule--which the CPSC at first refused
to post on its website.
4. Unjustified Hostile Rulemakings. The CPSC has
implemented rules governing the public database that
adversely affect the Constitutionally-guaranteed due
process rights of our businesses. There is no adequate
public policy justification for the erosion of the
remarkable civil rights that distinguish the American
legal system among all international legal systems--yet
the Commission voted 3-2 to allow falsehoods to be
posted without recourse in a database the CPSC will
maintain. In other cases, the agency has published
draft rules (yet to be acted on) which could force
companies like ours to spend as much as $10,000 per
item per year to meet arbitrary rules on testing
frequency or ``reasonable testing programs''--
notwithstanding strong evidence that these rules are
wasteful, unnecessary and financially irresponsible.
The pendency of rules like this creates destabilizing
market uncertainty and forces business decisions that
have no basis other than fear of future regulation. For
instance, Wal-Mart has already instituted a 100 ppm
lead standard months ahead of the possible
implementation of the standard by the CPSC--simply
because the CPSC has been so slow to act.
The CPSIA went off track by taking away the CPSC's
authority to assess risk. If the CPSC were again
required to regulate based on risk, safety rules could
focus on those few risks with the real potential to
cause harm to children. All risks were not created
equal.
I recommend several steps to reduce cost, liability
risk and complexity all without sacrificing children's
product safety:
A. Mandate that the CPSC base its safety decisions, resource
allocation and rules on risk assessment. Restore to the
Commission the discretion to set age and product definition
criteria for the 300 ppm lead standard and phthalate ban.
Freeze the lead standard and lead-in-paint standard at their
current levels unless the CPSC determines that a change is
necessary to preserve public health and safety.
B. The definition of ``Children's Product'' should not include
anything primarily sold into or intended for use in schools or
which is used primarily under the supervision of adults. Other
explicit exceptions should include apparel, shoes, pens, ATVs,
bicycles, rhinestones, books and other print materials, brass
and connectors. Exclusions from the definition should take
these products entirely outside the coverage of the CPSIA
(including mandatory tracking labels).
C. 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. Resellers
should be entitled by rule to rely on the representations of
manufacturers. Phthalate testing requirements should explicitly
exempt inaccessible components, metals, minerals, hard
plastics, natural fibers and wood.
D. Definition of ``Children's Product'' should be limited to
children 6 years old or younger and should eliminate the
difficult-to-apply ``common recognition'' factor of Section
3(a)(2)(c) of the CPSA. Definition of ``Toy'' (for phthalates
purposes) should be limited to children 3 years old or younger
and should explicitly refer only to products in the form used
in play.
E. Eliminate CPSC certification of laboratories (rely on the
market to provide good resources). Fraud has only very rarely
been a problem with test labs and is already illegal.
F. Impose procedural limits to insure fairness in penalty
assessment by the CPSC under the CPSIA. Completely reformulate
penalties to restrict them to egregious conduct (including
patterns of violations), reckless endangerment or conduct
resulting in serious injury.
G. Rewrite the penalty provision applicable to resale of used
product so that violations are only subject to penalty if
intentional (actual knowledge or reckless endangerment) and
only if the violation led to an actual injury. Eliminate the
``knowing'' standard with its imputed knowledge of a reasonable
man exercising due care.
H. Mandatory tracking labels should be explicitly limited to
cribs, bassinets, play pens, all long-life ``heirloom''
products with a known history of injuring the most vulnerable
children (babies or toddlers).
I. Public injury/incident database should be restricted to
recalls or properly investigated incidents only. Manufacturers
must be given full access to all posted incident data,
including contact information. The ``due process'' civil
liberty interests of the corporate community must be protected.
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 on this important topic.
______
Prepared Statement of Paul C. Vitrano, General Counsel,
Motorcycle Industry Council
Chairman Pryor, Ranking Member Wicker and distinguished members of
the Subcommittee on Consumer Protection, Product Safety and Insurance,
thank you for the opportunity to submit this testimony on the need for
amendments to the Consumer Product Safety Improvement Act (CPSIA). My
name is Paul Vitrano. I am the General Counsel of the Motorcycle
Industry Council. MIC is a not-for-profit, national industry
association representing nearly 300 manufacturers and distributors of
motorcycles and all-terrain vehicles; motorcycle, ATV and recreational
off-highway vehicle parts and accessories; and members of allied trades
such as insurance, finance and investment companies, media companies
and consultants.
The CPSIA was intended to protect children from ingesting lead from
toys. However, the lead provision has had unintended consequences and
we are pleased to submit testimony about one of those unintended
consequences. The CPSIA has effectively banned the sale of many age-
appropriate youth ATVs and motorcycles because of the lead content of
certain components. As a result of its broad reach, the Act has
inadvertently crippled an industry unrelated to the toy manufacturers
that were the intended target of the lead provision. In addition, the
unintended ban has resulted in unsafe situations for youth off-highway
enthusiasts.
It is estimated that over 13.7 million Americans enjoy riding off-
highway motorcycles and over 35 million enjoy riding ATVs. Safety of
our riders--particularly our youngest riders--is a top priority of the
powersports industry. Vehicles, helmets and other gear and accessories
are specially designed for youth riders to allow them to safely enjoy
this family-friendly form of outdoor recreation.
In February 2009, however, ATVs and motorcycles designed and
primarily intended for youth riders aged 6 to 12 became banned
hazardous substances under the CPSIA because small amounts of lead--
that pose no risk to youth--that arc imbedded in metal parts of those
vehicles to enhance the functionality of those components.
As you know, the CPSC concluded that the language of the CPSIA
prevented it from making common-sense decisions and resulted in the
CPSC denying the powersports industry's petitions for exclusion from
the lead content provision. The exclusion was denied despite the fact
that the CPSC's own staff acknowledged that there was no measurable
risk to children resulting from lead exposure from these products.
The CPSC tried to temporarily address the ban by issuing a stay of
enforcement of the CPSIA's new lead content limits in May 2009.
Unfortunately, this stay of enforcement has proven unworkable. Due to
the risks of selling under the stay, many manufacturers and dealers are
no longer selling youth model off-highway vehicles, and there is now a
limited availability of these products for consumers. Half of the major
ATV manufacturers are no longer selling youth models despite the stay.
The CPSC has acknowledged that the ban on youth off-highway
vehicles creates a compelling safety issue because it likely will
result in children 12 years of age and younger riding larger and faster
adult-size vehicles. For example, CPSC studies show almost 90 percent
of youth ATV injuries and fatalities occur on adult-size ATVs. Again,
the CPSC's staff scientists acknowledge that the presence of lead in
metal alloys in these youth models--needed for functionality,
durability and other reasons that are safety critical to the
components--does not present a health hazard to children. The
Commission also acknowledges that children riding these vehicles only
interact with a limited number of metal component parts that might
contain small amounts of lead, like brake and clutch levers, throttle
controls, and tire valve stems.
As a result, for over 18 months, MIC, its members, their dealers
and many of the millions of Americans who safely and responsibly ride
their off-highway motorcycles and ATVs with their children have urged
Congress to amend the CPSIA to stop this unintended ban on youth
motorized recreational vehicles. Off-highway vehicle stakeholders have
sent over one million electronic messages and thousands of hand signed
letters and made numerous calls and personal visits to Capitol Hill to
advocate for a legislative solution to the ban.
Since the CPSIA ban took effect on February 10, 2009, we
collectively have urged Congress to act for three important reasons:
First, the lead content in metal parts of ATVs and motorcycles
poses no risk to kids. Experts estimate that the lead intake
from kids' interaction with metal parts is less than the lead
intake from drinking a glass of water.
Second, everyone agrees that the key to keeping youth safe on
ATVs and motorcycles is having them ride the right sized
vehicle. The CPSIA has unintentionally put kids at risk because
youth ATV and motorcycle availability is limited.
Unavailability of youth models results in what CPSC has
described as a ``more serious and immediate risk of injury or
death'' than any risk from lead exposure from these products--
youth riders operating larger and faster vehicles designed for
adults.
Finally, the CPSIA is unnecessarily hurting the economy and
jobs when everyone should be trying to grow the economy and
create jobs. MIC estimates that a complete ban on youth model
vehicles would result in about $1 billion in lost economic
value in the retail marketplace every year.
In recognition of the need to end the unintended ban on youth ATVs
and motorcycles, CPSC Chairman Tenenbaum and the other Commissioners
unanimously asked Congress to provide the Commission with flexibility
to grant exclusions from the CPSIA lead content provisions,
specifically noting the need to address youth ATVs and motorcycles.
As a bipartisan group of 15 Senators wrote to the CPSC in 2009,
``[CPSIA] has created a well-documented safety hazard for children,
severe and unwarranted disruption to families who recreate together,
and a deleterious effect on youth amateur racing. Additionally, the
inclusion of OHVs has created an economic disaster for an industry
which is already reeling from the recession, is facing countless lay-
offs and is estimated to be losing three million dollars per day due to
the Act.''
Senator Jon Tester introduced the ``Common Sense in Consumer
Product Safety Act'' (S. 608) in 2009 that would end the ban by
amending the CPSIA so that vehicles designed or intended primarily for
children 7 years of age or older are not considered children's products
for purposes of the lead content provisions.
We believe that Congress never intended to ban youth model
motorized recreational vehicles when it passed the CPSIA. MIC urges the
Committee to stop this unintended ban by either granting a categorical
exemption for ATVs and youth motorcycles; or passing legislation to
limit the parts of the vehicle deemed ``accessible'' and thus subject
to the lead content provision of the CPSIA. In either case, we also
urge the Committee to provide as much clarity as possible so that the
CPSC is left with no doubt about Congress' intent to ensure the
continued availability of these youth model motorized recreational
vehicles.
Thank you.
______
Response to Written Questions Submitted by Hon. Mark Pryor to
Hon. Inez M. Tenenbaum
Question 1. Is the marketplace safe for shoppers this holiday
season?
Answer. Overall, I believe the consumer product marketplace was
safer for consumers this holiday season. This is the second holiday
shopping season that manufacturers, importers, and retailers of
children's products have had to comply with some of the most stringent
lead and phthalates limits in the world and mandatory toy standards.
Thanks to you and your fellow Members of Congress who crafted and
passed the Consumer Product Safety Improvement Act of 2008 (CPSIA),
CPSC has more authorities and influence in overseas markets, at the
ports, and in the U.S. marketplace. The effect has been increased
confidence for parents as they shop for their children.
Question 2. Has the agency seen a dramatic decline in toy recalls
since 2008?
Answer. The number of toy recalls has dropped over 70 percent from
a high of 172 in FY 2008 to 44 in FY 2010. Toys accounted for 31
percent of all recalls in FY 2008 but only 10 percent of all recalls in
FY 2010. The number of toy units recalled declined by over 3.8 million
from FY 2008 to FY 2010.
Question 3. Has the agency seen a decline in the number of deaths
of children under the age of 15?
Answer. Yes. The numbers of consumer product related deaths for
ages 0 to 15 have dropped by over 17 percent, from 3,225 to 2,658, over
the period 1985 to 2007 (the latest year of complete death date).
Adjusting for changes in the population count, the rate of death for
this age group, per 100,000 resident population, has dropped from 6.3
deaths per 100,000 to 4.4 deaths per 100,000.
Question 4. What advice can the CPSC offer to parents to help keep
their kids safe from any potential product hazards this holiday season?
Answer. During the 2010 holiday shopping season CPSC issued
guidance to parents noting that while recalls and deaths have declined,
toy-related injuries are increasing. In 2009, there were an estimated
186,000 emergency room-treated injuries related to toys with children
younger than 15, which is up from 152,000 injuries in 2005. Frequently
these injuries involved lacerations, contusions, and abrasions that
most often occurred to a child's face and head. Importantly many of the
incidents were associated with, but not necessarily caused by, a toy.
To help keep the holiday season happy, safe, and incident-free,
CPSC encouraged consumers to adopt a three-pronged safety approach:
1. Which Toy for Which Child?--Always choose age appropriate
toys.
2. Gear Up for Safety--Include safety gear whenever shopping
for sports-related gifts or ride-on toys, including bicycles,
skates, and scooters.
3. Location, Location, Location--Be aware of your child's
surroundings during play. Young children should avoid playing
with ride-on toys near automobile traffic, pools or ponds. They
also should avoid playing in indoor areas associated with
hazards such as kitchens and bathrooms and in rooms with corded
window blinds.
Some additional safety steps that CPSC advised consumers to follow
include:
Scooters and Other Riding Toys--Riding toys, skateboards,
and in-line skates go fast, and falls could be deadly. Helmets
and safety gear should be worn properly at all times and be
sized to fit.
Small Balls and Other Toys with Small Parts--For children
younger than age three, avoid toys with small parts, which can
cause choking.
Balloons--Children can choke or suffocate on deflated or
broken balloons. Keep deflated balloons away from children
younger than 8 years old. Discard broken balloons at once.
Magnets--For children under age six, avoid building or play
sets with small magnets. If magnets or pieces with magnets are
swallowed, serious injuries and/or death can occur.
Once the gifts are opened, CPSC always advised parents to:
Immediately discard plastic wrappings or other packaging on
toys before they become dangerous play things.
Keep toys appropriate for older children away from younger
siblings.
Supervise children while charging batteries. Chargers and
adapters can pose thermal burn hazards to young children. Pay
attention to instructions and warnings on battery chargers.
Some chargers lack any mechanism to prevent overcharging.
Question 5. Would you describe to the Committee what spurred this
campaign in the first place, progress made to protect children from
unsafe cribs, and a status update on the Commission's efforts?
Answer. Between November 2007 and April 2010 there were 36 deaths
reported to the Commission associated with crib structural problems. Of
those, 25 occurred when crib components (often associated with the
drop-side hardware portion of the crib) detached, disengaged, or broke
ending in the strangulation death of the infant in the crib.
In the wake of these and other tragic incidents involving
children's sleep environments, I directed and the Commission supported
the creation of the Safe Sleep Team. This team has worked diligently to
prevent consumers from being harmed by cribs and infant sleep products
and has also contributed to the creation of new standards and
regulations for these types of products. Pursuant to the direction
contained in section 104 of the CPSIA, I also announced early in 2010
that the Commission would adopt new, mandatory crib safety standards by
the end of that year. On December 15, 2010, the full Commission voted
unanimously to adopt new crib safety standards that, among other
things, prohibit the use of traditional drop-sides in newly
manufactured cribs.
Under the rules, the sale, resale, lease or other placement in the
U.S. stream of commerce of old cribs that do not meet the new safety
standard will be prohibited effective June 28, 2011. The rules will
also prohibit the use of old, noncompliant cribs ``by child care
facilities, family child care homes, and places of accommodation
affecting commerce.'' The Commission, however, recognized that child
care facilities and places of public accommodation would require a
period of time to purchase new, compliant cribs for use in their
facilities. Accordingly the rule gives child care providers and places
of public accommodation that use cribs until December 28, 2012, to
purchase and start using new compliant cribs in those facilities.
Question 6. When do you expect the Commission will issue a final
rule on crib safety?
Answer. As noted above the Commission voted unanimously to adopt
the new crib safety rules on December 15, 2010. The rules were
published in the Federal Register on December 28, 2010. (See Consumer
Product Safety Commission, ``Safety Standards for Full-Size Baby Cribs
and Non-Full-Size Baby Cribs: Final Rule,'' 75 Fed. Reg. 81,766 (Dec.
28, 2010)).
Question 7. I'm certain you and your staff spent countless hours
working on the final rule that the Commission recently adopted
establishing the Publicly Available Product Information Database. Do
you believe the publicly searchable database is a victory for American
consumers?
Answer. Yes, I believe the rollout of the Database will be one of
the most significant steps to advance consumer product safety awareness
taken in the history of this agency. First and foremost, the Database
will function as an early warning system for dangerous and potentially
dangerous products by allowing members of the public to share
information about product hazards as quickly as that information
becomes known. This is a very positive change from the current system
(generally referred to as ``section 6(b) procedure''), where the
Commission is required to consult with manufacturers and seek their
advance approval before warning the public of potentially dangerous
items.
The Database will also allow the Commission to use the most modern
and effective technology to collect information from consumers and
better manage that information internally. This will allow the
Commission to monitor the safety of products out in the marketplace in
``real time,'' and also accelerate the issuance of recalls and other
corrective actions where necessary. In the end, I think this is a
``win-win'' for both manufacturers and consumers, because it will alert
manufacturers of potential defects much faster than under the current
system and get potentially dangerous products out of the hands of
consumers as soon as possible.
Question 8. How will this Database serve to protect the public from
dangerous products in the stream of commerce?
Answer. As noted above, the Database will serve as an early warning
system for consumers. Product safety incident reports will be available
on SaferProducts.gov soon after they are filed by consumers who have
learned of a dangerous or potentially dangerous product. This
represents a very substantial change from current procedure where
consumer complaints are often withheld from public access for months or
even years due to the ``section 6(b) process.''
The Database will also use the most modern IT technology to ``data
mine'' the reports for new and emerging patterns of product defect.
This should allow Commission staff to react faster to new and emerging
hazards--and reduce injuries or deaths that may be caused by those
product hazards.
Question 9. Do you think the CPSC's recent final rule establishing
the publicly searchable database properly balances timely disclosure of
important consumer protection information with the need to address
legitimate business concerns?
Answer. Yes, I do. Our implementation of the Database has built-in
protections and procedures that will allow a manufacturer to have its
perspective included in the Database record. In cases where a
manufacturer believes a report is either materially inaccurate or
contains confidential information, the company can ask that we correct
the record or redact the confidential information.
In addition to providing manufacturers with the right to comment on
reports, the Database also requires all reports to carry the following
disclaimer: ``The Commission does not guarantee the accuracy,
completeness, or adequacy of the contents of the Consumer Product
Safety Information Database, particularly with respect to the accuracy,
completeness, or adequacy of information submitted by persons outside
of CPSC.''
The result of this is a balanced approach that will allow for the
correction of faulty information without requiring the Commission to
withhold reports from the public until they are endlessly vetted by
outside parties.
Question 10. Is the Database on track to be launched in March 2011?
Answer. Yes, the Database is currently on schedule for a fully
functional launch on March 11, 2011.
Question 11. Does the Commission intend to consider extending the
stay of enforcement for the third-party testing requirement? Do you
think it is necessary to extend the stay of enforcement?
Answer. The Commission is currently considering several petitions
and requests, including one from the Handmade Toy Alliance (HTA), for a
continuation of the stay of enforcement for third-party testing of lead
content. In considering these requests, the Commission will carefully
consider the views and concerns of all impacted stakeholders.
Question 12. Within the third-party testing regime, where is the
Commission in its efforts to promulgate rules outlining appropriate
testing protocols?
Answer. On December 28, 2009, the Commission issued an interim
enforcement policy, ``Interim Enforcement Policy on Component Testing
and Certification of Children's Products and Other Consumer Products to
the August 14, 2009 Lead Limits,'' regarding component testing and
certification of children's products and other consumer products to the
90 parts per million (ppm) lead in paint limit and to the 300 ppm lead
limit for children's products established in section 101 of the CPSIA.
This interim enforcement policy permits, as part of a domestic
manufacturer's or importer's certification of a children's product as
being in compliance with the 300 ppm lead content limit, the domestic
manufacturer or importer to rely on a test report showing passing test
results for one or more components used on the product, based on
testing either of them has commissioned from a recognized third-party
test lab. The domestic manufacturer or importer may also rely on a
certificate from another person certifying that a component complies
with the 300 ppm lead limit, provided the component certificate is
based on testing of a representative sample of the component(s) by a
recognized third-party test lab.
On May 20, 2010, the Commission published a notice of proposed
rulemaking, ``Conditions and Requirements for Testing Component Parts
of Consumer Products,'' 16 CFR Part 1109. This proposed rule set forth,
for Commission consideration, the conditions and requirements under
which the Commission will require or accept the results of testing of
component parts of consumer products, instead of the entire consumer
product, to meet, in whole or in part, the testing requirements of
sections 14(a), 14(b), and 14(d) of the CPSA.
On May 20, 2010, the CPSC also issued a proposed rule that would
establish requirements for a reasonable testing program and for
compliance and continuing testing for children's products. The proposal
would also address labeling of consumer products to show that the
product complies with certification requirements under a reasonable
testing program for nonchildren's products or under compliance and
continuing testing for children's products. The proposed rule would
implement section 14(a) and (d) of the Consumer Product Safety Act
(CPSA), as amended by section 102(b) of the Consumer Product Safety
Improvement Act of 2008 (CPSIA).
CPSC staff are currently reviewing and drafting responses to the
over 300 comments received on these two proposed rules. Based on the
comments and further staff analyses, the proposed rules will be updated
and draft final rules submitted to the Commission for consideration in
the first half of calendar 2011.
Question 13. Has the Commission proposed a rule allowing for
component part testing?
Answer. Yes. On May 20, 2010, the Commission published a notice of
proposed rulemaking, ``Conditions and Requirements for Testing
Component Parts of Consumer Products,'' 16 CFR Part 1109. This proposed
rule set forth, for Commission consideration, the conditions and
requirements under which the Commission will require or accept the
results of testing of component parts of consumer products, instead of
the entire consumer product, to meet, in whole or in part, the testing
requirements of sections 14(a), 14(b), and 14(d) of the CPSA.
In advance of the propose rule for component part testing, the
Commission issued an interim enforcement policy, ``Interim Enforcement
Policy on Component Testing and Certification of Children's Products
and Other Consumer Products to the August 14, 2009 Lead Limits,''
regarding component testing and certification of children's products
and other consumer products to the 90 parts per million (ppm) lead in
paint limit and to the 300 ppm lead limit for children's products
established in section 101 of the Consumer Product Safety Improvement
Act of 2008 (``CPSIA'').
This interim enforcement policy, issued on December 28, 2009,
permits, as part of a domestic manufacturer's or importer's
certification of a children's product as being in compliance with the
300 ppm lead content limit, the domestic manufacturer or importer to
rely on a test report showing passing test results for one or more
components used on the product, based on testing either of them has
commissioned from a recognized third-party test lab. The domestic
manufacturer or importer may also rely on a certificate from another
person certifying that a component complies with the 300 ppm lead
limit, provided the component certificate is based on testing of a
representative sample of the component(s) by a recognized third-party
test lab.
Question 14. As you know, this year's reports of cadmium in
children's products are very troubling. The CPSC has the authority to
respond to emerging hazards in the marketplace. Has the Commission
reached a final determination as to whether the toxicity of cadmium is
sufficient to be considered toxic under the FHSA?
Answer. CPSC staff have concluded that the data concerning the
toxicity of cadmium are sufficient for cadmium to be considered toxic
under the FHSA due to effects on multiple organ systems and toxic
endpoints, including kidney dysfunction. The conclusion that a
substance is toxic is only the first step in the Commission's
assessment under the FHSA.
The FHSA is risk-based. To be considered a ``hazardous substance''
under the FHSA, a consumer product must satisfy a two-part definition.
(See 15 U.S.C. 1262 (f)(1)(A)). First, it must be toxic under the
FHSA or present one of the other hazards enumerated in the statute (see
statement above). Second, it must have the potential to cause
``substantial illness or injury during or as a result of reasonably
foreseeable handling or use.'' Therefore, exposure and risk must be
considered in addition to toxicity when assessing potential hazards
under the FHSA.
Question 15. You noted in a letter you sent to me earlier this year
that you were working with ``standards determining organizations'' to
figure out whether ``current standards governing the use of toxic
metals in surface coatings or the substrate of toys [were] sufficiently
protective of children's health and safety.'' What has been the outcome
of those deliberations?
Answer. The evaluation of the current ASTM F963 toy safety
standard, made mandatory by the Consumer Product Safety Improvement Act
of 2008, is an ongoing, multifaceted effort by CPSC technical staff,
including toxicologists and chemists. Staff has completed toxicity and
dose-response analysis of the chemicals regulated by the standard. An
external peer review of the analysis is also currently being prepared.
In addition, staff is evaluating test methods specified in the standard
for their suitability in accurately identifying potentially hazardous
products.
Recently the ASTM toy safety subcommittee established a work group
to consider aligning the current standard with international standards
for accessible soluble heavy metals in toys. The proposed changes in
the ASTM standard would expand the requirements for toys, including the
scope of the standard, with respect to chemical substances, including
cadmium. CPSC staff is actively involved in the discussions and
generally supports the expansion of requirements for metals in toys.
Question 16. I was the lead author of the Virginia Graeme Baker
Pool and Spa Safety Act here in the Senate, a law that established
strict pool safety standards as a response to too many tragic accidents
and insufficient safety standards. I understand the CPSC has launched a
robust pool safety campaign. Could you update us on the Commission's
efforts to protect the public from pool and spa hazards?
Answer. In 2010, CPSC launched the most expansive information and
education campaign in its history, which was aimed at preventing child
drownings and drain entrapments. Below is a summary of our Pool Safely:
Simple Steps Save Lives multi-media campaign:
CPSC awarded a contract to Widmeyer Communications to
develop and implement an information and education campaign to
fulfill the requirements of Section 1407 of the Virginia Graeme
Baker Pool and Spa Safety Act (VGB Act). The comprehensive Pool
Safely campaign teaches pool and spa safety steps that stress
prevention of drowning and entrapment by engaging stakeholders
as partners at the national and grassroots levels. Child safety
experts work on public and residential drowning prevention
programs for parents and children, and industry organizations
share VGB Act compliance information with pool and spa owners
and operators.
The Pool Safely campaign messages totaled more than 250
million views, which were generated from print articles, online
stories, local television broadcasts, and epublications through
the CPSC's website. This goal was exceeded due to the
exceptional exposure generated by Widmeyer Communications
through the production and dissemination of a high-value TV
PSA. In addition, numerous print articles, radio stories, and
online stories were generated in 2010, which reached millions
of readers and listeners. Significant additional views were
made via Twitter, Flickr, and YouTube. Metro transit stations
in the District of Columbia displayed five illuminated posters,
which generated 1.7 million views in September 2010. Billboards
with Pool Safely campaign messages were placed on streets and
highways in Arizona, California, and several other states.
CPSC staff worked with a contractor on events targeting
minorities and high-risk families. These events included focus
groups, program announcement press conferences, and events in
minority communities in Houston, TX, and Washington, D.C. At
these events participating groups included organizations such
as Safe Kids, American Red Cross, the YMCA, and local
organizations like Bria's House, which provides swimming
lessons to underprivileged children.
A professional Web design services company was contracted to
redesign and expand PoolSafety.gov into a state-of-the-art,
interactive Web resource using the campaign name
www.PoolSafely.gov. The new site was launched on September 27,
2010. This site has interactive links to all content developed
as part of the Information and Education campaign with special
sections for families, industry, state and local officials, and
the media.
Finally, CPSC staff developed and awarded six contracts to
leading organizations to create and deliver educational and
training programs nationally. Contractors representing top
national industry experts were retained to execute training
materials for pool owners and operators, manufacturers, and
retail outlets, and local and state regulatory entities. Using
a combination of live events, webinars, and prepared
educational training video programs, each contractor will
address issues related to drowning and entrapment prevention
for their specified audiences.
Question 17. Could you discuss the issue of the additional layer of
protection for pools with only a single main drain?
Answer. CPSC supports the use of layers of protection in and around
pools and spas. From fences to door alarms to safer drain covers to
suction detection devices, CPSC believes that a system of safety is
needed to protect children from drowning and entrapment hazards in and
around public and private pools and spas.
As required by Section 1404 of the VGB Act, all public pools and
spas that have a blockable drain operating on a single main drain
system must install a secondary layer of protection. Pool and spa
operators can use one of five options to meet this requirement: a
safety vacuum release system, an automatic pump shut off system, a
suction-limiting vent system, a gravity drain system, or no drains.
The Commission voted three to two in 2010 to allow for the use of
unblockable drain covers to be placed over blockable sized drains on
single main drain systems to exempt public pools and spas from having
to comply with the secondary protection system requirement. I voted
against this decision because I believed that a secondary system was
contemplated by the statute for pools with a single main drain and to
provide the highest level of protection possible in such pools.
Question 18. Many months ago, an ABC news article reported a pool
drain cover safety risk and suggested that despite discontinued
manufacturing of certain models of drain covers, consumers were not
notified of potentially dangerous drain covers already purchased and
installed in pools across the country. Is the Commission aware of this
concern?
Answer. Yes, the Commission is aware of this concern.
After learning of possible anomalies in the testing of certain pool
drain covers, the Commission took several steps to investigate. On
September 3, 2010, the Commission issued subpoenas requesting test data
from three independent labs involved in drain cover testing, rating,
and certification. This request produced over 17,000 pages of technical
documents for staff review, which is currently underway.
CPSC also contracted with a third-party testing laboratory to have
the identified suction outlet covers tested (CPSC Contract # S-10-
0108). CPSC laboratory staff witnessed the testing to observe the test
facility, the test procedures, and the methodology of different
technical staff conducting the tests. The results of testing have been
reported by the contractor and staff is reviewing the report.
These results will be used to discuss any ratings issues with
manufacturers of the identified product whose rating is questionable.
In the event that testing results for certain covers indicate any
substantial product safety hazards, the Commission may pursue a recall
or other corrective action against the manufacturer of the specific
cover.
In addition, the CPSC laboratory is also conducting its own
independent testing of the identified suction outlet covers and will
compare results with those obtained by the contractor as well as those
obtained by the original third-party certifying laboratories. These
results and review of the procedures will also be used to develop
guidance for future testing and rating of suction outlet covers by
third-party certifying laboratories.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Inez M. Tenenbaum
Question 1. The Food and Drug Administration (FDA) has three
different product classifications for toothbrushes: (1) toothbrush,
ionic, battery-powered; (2) toothbrush, manual; and (3) toothbrush,
powered. The FDA classifies all toothbrushes as Class I medical
(dental) devices. My understanding is that such Class I devices are
regulated by the FDA. Under current law, does the Consumer Product
Safety Commission (CPSC) have any authority to ensure the safety of
toothbrushes, even those that are clearly marketed to children?
Answer. Section 3(a)(5) of the Consumer Product Safety Act
(``CPSA'') defines ``consumer product'' as ``any article, or component
part thereof, produced or distributed: (i) for sale to a consumer for
use in or around a permanent or temporary household or residence, a
school, in recreation, or otherwise, or (ii) for the personal use,
consumption or enjoyment of a consumer in or around a permanent or
temporary household residence, a school, in recreation, or otherwise. .
.'' However, section 3(a)(5)(H) of the CPSA expressly excludes, from
the definition of ``consumer product,'' ``drugs, devices, or cosmetics
(as such terms are defined in sections 201(g), (h), and (i) of the
Federal Food, Drug, and Cosmetic Act)'' (``FFDCA'').
Thus, a toothbrush, as a ``device'' under section 201(h) of the
FFDCA, cannot be a ``consumer product'' and, therefore, is not subject
to regulation under the CPSA.
However, the Federal Hazardous Substances Act (``FHSA'') does not
contain an exception for devices. (It expressly excludes ``foods,
drugs, and cosmetics subject to the Federal Food, Drug, and Cosmetic
Act.'') Consequently, CPSC could use its authority under the FHSA to
address hazardous substances in devices.
Question 1a. Do you believe that all toothbrushes should be
classified as medical devices or should some be classified as a
consumer product?
Answer. Because the FHSA permits us to exercise jurisdiction over
toothbrushes under the FHSA regardless of their classification as a
medical device, they receive coverage under both FDA's jurisdiction and
the CPSC's with regard to their chemical content.
However, toothbrushes are not subject to the CPSIA's new testing
and certification requirements for children's products since they fall
outside the definition of ``children's product'' as described above. As
a medical device, toothbrushes may be subject to the FDA's regulations
known as current good manufacturing practices. However, we defer to FDA
on whether such regulations would apply to toothbrushes.
Question 2. There are a number of battery-powered toothbrushes in
the market that have children's cartoon or live-action characters
painted on to the body of toothbrush or attached to the body of the
toothbrush (i.e., the on-off switch in the shape of the cartoon
character), and are marketed to children. Does the CPSC consider such
toothbrushes to be a ``children's product''? Should the CPSC classify
these toothbrushes to be a children's product as they are marketed to
children 12 years of age and younger?
Answer. As noted in the response to question 1, a ``device'' cannot
be a ``consumer product'' under the CPSA. Section 3(a)(2) of the CPSA
defines ``children's product,'' in relevant part, as ``a consumer
product designed or intended primarily for children 12 years of age or
younger.'' (Emphasis added.) Thus, because a device cannot be a
``consumer product'' under section 3(a)(5) of the CPSA, neither can it
be a ``children's product'' under section 3(a)(2) of the CPSA.
However, if CPSC staff age grades a toothbrush for use by children,
we could assert jurisdiction to regulate the toothbrushes under the
FHSA and take appropriate action should they contain a hazardous level
of heavy metals in either the surface coating or the substrate.
Question 2a. Does the FDA have any standards for the levels of
heavy metals allowed in toothbrushes?
Answer. This question involves interpreting FDA rules and policies,
and we must respectfully refer you to that agency for a response to
this question.
Question 2b. Hypothetically, if it is reported that lead was found
in the colored bristles of a toothbrush with a cartoon character
painted on the body of the toothbrush, how would the CPSC respond?
Would the FDA have absolute jurisdiction? If the FDA chooses not to
investigate the report, does the CPSC have any authority to investigate
such a claim independently?
Answer. Under current laws the toothbrush would not be subject to
the lead limits in section 101 of the CPSIA because, as stated earlier,
the product would be excluded from the definition of ``children's
product.'' CPSC might be able to assert authority under the FHSA if the
product met the definition of a ``hazardous substance.'' CPSC has the
authority to investigate and, if after investigation, including the
analysis of testing of the toothbrush, the Commission determined the
toothbrush contained a ``hazardous substance'' it could pursue the
remedies set forth in the FHSA and take the appropriate action.
______
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
Hon. Inez M. Tenenbaum
Question 1. The Consumer Product Safety Commission approved a new
mandatory crib safety rule on December 15, 2010. Although the new rule
acknowledges that ``extra bedding in cribs accounted for the majority
of infant deaths in cribs or other sleeping products,'' it claims
``there are no performance requirements for cribs that can address this
issue.'' What are your plans for expanding existing education efforts
to address the hazards of extra bedding and sleep positioners?
Answer. CPSC is focusing on the influence of video to inform to new
parents and change behaviors when it comes to preventing suffocation
risks in a baby's sleep environment. In the aftermath of a joint press
announcement with FDA in late September urging parents to stop using
sleep positioners, CPSC produced an educational video on the dangers
associated with these products, which is now posted on the agency's
YouTube site, and available at the following link: www.you
tube.com/USCPSC#p/f/0/3xvdPpKJoMc.
Although the dangers associated with drop-sides have garnered most
of the media attention related to cribs in recent years, soft bedding,
including pillows, blankets and comforters, cause the most child
fatalities. To educate new parents in the recovery room at the hospital
or in the waiting room at their pediatrician's office, CPSC teamed up
with the American Academy of Pediatrics, Keeping Babies Safe, and
renowned journalist Joan Lunden to produce a special Safe Sleep for
Babies video. This video demonstrates visually and informs orally that
a crib should be as bare as possible due to the suffocation risk that
soft bedding poses to newborns and infants. This video can be viewed at
the following site: www.cpsc.gov/CPSCPUB/PREREL/prhtml11/11021.html.
Shorter versions of the video directed at minority and other
underserved populations are posted on our YouTube channel. All of these
videos are being disseminated through our Safe Sleep partners and are
being highlighted by the agency when conducting media interviews.
Question 2. Although the crib safety rule will be effective 6
months after publication, child care providers will have a total of 24
months to replace non-compliant, potentially dangerous cribs. What are
your plans for protecting the safety of children in child care until
dangerous cribs are removed from these facilities in 2 years?
Answer. The safety of cribs used in child care facilities will
continue to be carefully monitored by CPSC and state child care
licensors. First and foremost, it is important to clarify that child
care facilities are prohibited by law from using ``recalled'' cribs
unless a repair (provided by the manufacturer as part of the recall
remedy) has been installed. CPSC staff monitors all incoming crib
incident reports, including incidents which may have occurred at child
care facilities and assigns investigators to conduct in depth
investigations of such incidents. In addition, CPSC maintains a
comprehensive contact list with state child care licensing departments.
CPSC will be providing its state partners with information about the
new Federal crib rule, recalls, safety alerts, and other crib safety
information.
Question 3. You have indicated that the Consumer Product Safety
Commission will work with the National Operating Committee on Standards
for Athletic Equipment (NOCSAE) on developing new standards for
football helmets. NOCSAE has not made significant changes to its helmet
standard in 37 years. What is the timeline for the development of a new
standard and what steps will you take to ensure the standard
incorporates the latest science on concussion prevention for youth and
adults?
Answer. I take the issue of helmet safety very seriously,
particularly with regard to helmets used in school and youth athletics.
To that end, CPSC staff has fully engaged NOCSAE in furtherance of our
monitoring of their voluntary standards process. As part of this
effort, I directed one of our CPSC staff engineers with significant
experience in helmets standards, as well as a senior counsel from my
staff, to attend the publicly-available portions of the January 20-22,
2010, NOCSAE board meeting. Overall, I believe CPSC's oversight has
already begun to bear fruit. In particular, I was encouraged by two
developments that relate directly to the important issues you raised.
First, Dr. Robert Cantu, NOCSAE's vice president, presented to its
board seven recommendations recently made by a group of medical experts
(including Dr. Cantu) that met late last year at the request of NOCSAE.
Three of the medical experts' recommendations addressed areas of
research these experts believe are vital to identifying ways to
potentially improve the standard for new football helmets in a
meaningful way. An additional recommendation touched on the need for
research related to a youth football helmet standard. We not only agree
with the need for the research these experts identified, but also
believe all seven of their recommendations should be acted on by NOCSAE
in a timely fashion. Ensuring NOCSAE moves forward on these fronts is
incorporated into our larger oversight effort.
Second, NOCSAE announced at its board meeting that it will be
creating a standing scientific advisory committee to direct its
concussion-related research. Moreover, NOCSAE invited CPSC to
participate in the work of this committee. We are in the process of
determining how, and in what way, CPSC can be involved with the
Committee in a manner that would further our oversight function of
NOCSAE and allow the Commission to be certain that NOCSAE is committed
to ensuring the key research occurs as quickly and efficiently as
possible.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Hon. Inez M. Tenenbaum
Question 1. Does the CPSC support adoption of the product standards
for carbon monoxide alarms and detectors as mandatory consumer product
safety rules, as reflected in S. 1216/H.R. 1796?
Answer. CPSC staff supports the goals of the bills to encourage the
use of CO alarms in residences. CO alarms save lives. They do that by
warning consumers of the presence of CO before the onset of
debilitating effects.
Question 1a. What additional resources, if any, would be required
by CPSC to implement the legislation if it were enacted?
Answer. CPSC staff believes that the current edition of UL 2034 is
an effective standard. Making UL 2034 a mandatory standard will level
the playing field for manufacturers and give CPSC greater authority to
enforce compliance with the standard. Staff believes it will also make
it easier for states to adopt installation requirements.
The July 29, 2010, revision of H.R. 1796 (from the 111th Congress)
would make mandatory both UL 2034 and UL 2075. Thus, the scope of the
House bill goes beyond CO alarms intended for residential dwellings. UL
2075 detectors or monitoring devices may be appropriate for locations
outside of residential dwellings, such as indoor parking garages,
commercial buildings, testing facilities, or furnace rooms. In
addition, because the scope of UL 2075 includes gases other than CO,
CPSC staff would need to review the performance requirements for each
gas within the scope of UL 2075 to ensure that it adequately addresses
hazards to consumers. CPSC resources would be required to thoroughly
review the scope and technical provisions of ANSI/UL 2075 related to
applicable consumer products. In addition, CPSC staff would need to
compare the standards to ensure the CO alarms test conditions and
performance requirements in ANSI/UL 2034 preside and coincide with
those in ANSI/UL 2075.
That version of H.R. 1796 also states that both ANSI/UL 2075 and
2034 be published in the Federal Register as mandatory consumer product
safety standards and take effect 180 days after Federal Register
publication. CPSC staff suggest that first, the ANSI/UL 2034 be
reviewed and implemented as the mandatory consumer product safety
standards in the Federal Register with the associated timelines. Staff
suggests that after the ANSI/UL 2034 FR time frames, staff can begin
the work associated with ANSI/UL 2075, as the effort to evaluate and
define the scope of relevant consumer product safety portions of ANSI/
UL 2075 may require a significant commitment of resources.
S. 1216/HR 1796 includes provisions for a grant program for states
that adopt CO alarm installation requirements. Additional resources
would be required to administer and support such a grant program.
Question 2. Are you aware of any residential CO alarm products
being sold on the market that do not comply with UL 2034? Are you aware
of any manufacturers of CO detectors who manufacturer CO alarm products
that may exceed UL 2034?
Answer. CPSC staff is aware that there are low levels CO monitoring
devices on the market that claim to exceed the ANSI/UL 2034 alarm
criteria and aim to protect the population most sensitive to the lowest
levels of CO. As designed, these low-level monitors do meet the ``do
not alarm'' requirements in ANSI/UL 2034 that protect against spurious
low-level alarms. The ANSI/UL 2075 standard or registration as a
medical device may be appropriate for these low level CO monitors.
However, CPSC staff is not aware of these devices being certified to
any standards.
Question 3. In previous years, CPSC has identified ``Carbon
Monoxide'' as a strategic initiative. In its 2011-2016 Strategic Plan,
carbon monoxide is no longer identified as its own initiative. How do
you see CPSC's efforts to raise awareness of carbon monoxide dangers
and to promote carbon monoxide detection fitting into the five key
goals identified in the Commission's 2011-2016 Strategic Plan?
Answer. While carbon monoxide (CO) is no longer identified as its
own initiative, it is still very much a part CPSC's new Strategic Plan
through CPSC's work on safety standards, improved consumer information
and hazard identification. In fact, CPSC's activities to reduce CO
dangers and to promote CO detection are found for three of the five
goals in the Strategic Plan.
CPSC's strategic goal, ``Commitment to Prevention'' focusing on
engaging public and private sector stakeholders to build safety into
consumer products, we drive forward our commitment to the prevention of
CO-related incidents. The CPSC will work to protect consumers from the
dangers of CO poisoning by promoting the production of safe products
and the development and implementation of safety standards. This will
enable industry compliance with safety standards at various stages of
consumer product development and distribution. By encouraging industry
leaders and foreign safety agencies to focus on safety early in the
global supply chain, the CPSC will help prevent hazards from entering
consumer markets.
CPSC's strategic goal, ``Raising Awareness'' promotes a public
understanding of product risks and CPSC capabilities. Under this goal,
we seek to gain the attention of consumers through increased awareness
of the hazards associated with CO and gas-fired appliances and engine-
driven tools and generators. Consumers, advocates, industry, and
partner government agencies each desire useful and timely information
about consumer product safety issues in order to make informed choices.
However, these audiences have different information needs, and each
responds best to different methods of communicating information. With
the rapid increase in the use of social media and Web-based
communications, the options for conveying consumer product safety
information continue to grow.
The CPSC will use a wide array of communication channels and
strategies to provide the public with timely and targeted information
about CO-related safety issues. This information will empower consumers
to make informed choices about the products they purchase and how to
safely use them, to be aware of hazardous products in the market, and
to act quickly if they own a recalled product. Additionally, the
information will make industry aware of the hazards they must address
to maintain safe products.
Finally, CPSC's strategic goal ``Rigorous Hazard Identification''
focuses on accurate and timely determination of all hazards posing the
greatest risk to consumers, including CO-related deaths and injuries.
Staff completes two annual reports, one on CO fatalities and one on
incidents associated with associated with generators and engine-driven
tools. Both reports help identify new or emerging issues within those
sub-areas.
Question 4. Please describe the CPSC's experience in managing
Federal grant programs.
Answer. The CPSC has not awarded grants in the last 10 years, and
currently does not have the staff and resources available to
independently award Federal grants. In 2008, however, Congress passed
the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act). The VGB
Act authorized CPSC to award grants to states and was funded in the
Fiscal Year (FY) 2009 Omnibus Appropriations Bill.
In order to comply with the requirements of the VGB Act, CPSC
contracted with the Centers for Disease Control (CDC) to develop the
required funding announcement, issue the announcement, make the awards,
monitor the award performance and finally report on the results, all
following Federal grant regulations. The cost of this service by CDC is
estimated at 20 percent of the total grant amount.
Question 4a. To date no grants have been awarded because no states
meet the statutory requirements the VGB Act grant program. What unique
challenges would S. 1216 pose to the Commission, if any, in
administering the proposed grant program under this legislation?
Answer. First, the Commission still does not have grant expertise
so we would likely contract again with another Federal agency like CDC.
Thus, the funding for the 20 percent contract costs must be obtained by
reducing the grant amounts ($2 million annually) or from specific
appropriation.
Second, while we are aware that approximately 25 states have CO
alarm legislation, we do not know whether the requirements of that
legislation match the requirements of S. 1216. Therefore, it is not
whether any state will be immediately eligible to apply for a grant.
Accordingly, it may be necessary to spend funds initially in conducting
outreach to the states about the grant program's specific eligibility
requirements, and then awarding grants in the latter years of the
program.
Third, under the VGB grant program, we learned that if the
appropriations language funding the grants does not always mirror the
authorization language regarding the return of unexpended and
unobligated funds. Additional harmonization between the authorization
and appropriations language would be helpful in the future.
Question 5. I understand that implementing effective third-party
testing and tracking processes may be difficult, and that after 2 years
many companies are still trying to figure out workable solutions. I
have talked to very small businesses from Minnesota. They are very
concerned about implementing the specific third-party testing and
certification requirements. Have you given any thought as to whether it
is really workable to begin enforcing these requirements against very
small businesses when the stay ends this February?
Answer. The third-party testing requirements of the CPSIA have been
communicated to the business community. Since August 2008, CPSC staff
have met with various industry associations numerous times and provided
multiple training seminars and webinars on the new requirements of the
CPSIA in an attempt to help industry prepare for the changes brought
about by the CPSIA. As one example, on December 10 -11, 2009, the
Commission held a two-day workshop to discuss issues relating to the
testing, certification, and labeling of certain consumer products
pursuant to section 14 of the CPSA (see 74 Fed. Reg. 58611 (November
13, 2009)).
As both Ms. Jill Chuckas and Mr. Steve Lamar stated in response to
questioning from Senator Pryor at the December 2, 2010 hearing, CPSC
Commissioners and staff have been fully engaged with industry,
providing training workshops around the U.S. and the world, and being
responsive to the issues and concerns facing industry as they move
forward with meeting the requirements of the CPSIA. The Commission is
committed to continuing to meet with and educate manufacturers and
importers as the remaining CPSIA regulations are developed and
implemented.
Having said that, the Commission continues to be very sensitive to
the concerns of the small business community and is currently
considering several requests, including one from the Handmade Toy
Alliance (HTA) for a further continuation of the stay of enforcement.
Question 5a. Have you considered the possibility of another
extension for these businesses?
Answer. As noted above, the Commission is currently considering
several requests, including one from the HTA for a continuation of the
current stay. The Commission is carefully considering the views of all
stakeholders and will rule on the petitions and requests as soon as
possible.
Question 5b. Have you considered ways to make it easier for very
small businesses to comply with the CPSIA?
Answer. The Commission has always maintained an open door policy to
listen to the concerns of industry and small businesses, and the
establishment of the new full-time Small Business Ombudsman is the
latest way that the Commission has sought to listen to and address the
concerns of small businesses. As CPSIA does not distinguish between the
sizes of businesses that must comply with the law, the Commission does
not have plenary power to take actions that may alleviate the burdens
of compliance on small businesses specifically.
Nevertheless, the Commission is required to conduct regulatory
flexibility analyses on each significant rule, which assess the
potential impacts of the rules on small businesses. The Commission has,
and will continue, to look at areas like the limited lead exemptions
and the component part enforcement policy rule noted above to assist
small businesses and others where possible and discretion allows.
Question 6. There are certain fibers in apparel that are exempted
from flammability testing, including polyester and nylon. Spandex was
not in widespread use when the flammability regulations were
promulgated, but today it is found in innumerable apparel products.
Many have claimed that Spandex has the same flammability properties as
fibers that are already exempted. Does it not make sense for the CPSC
to investigate adding spandex to the list of fibers that are exempt
from flammability testing?
Answer. The Commission issued the Standard for the Flammability of
Clothing Textiles (16 CFR part 1610) in 1975 under the authority of the
Flammable Fabrics Act (FFA), which prohibited the importation,
manufacture for sale, or sale in commerce of any article of wearing
apparel, which is ``so highly flammable as to be dangerous when worn by
individuals.'' The Standard, as originally written, did not include
exemptions for any fibers or fabrics.
In 1984, the Commission issued a rule amending the Standard to
include exemptions based on weight and fiber content. The Commission
based these exemptions on years of previous industry and government
testing (See 40 Fed. Reg. 48,568; Dec. 14, 1984). The exemptions are as
follows:
(1) plain surface fabrics, regardless of fiber content,
weighing 2.6 ounces per square yard or more; and
(2) all fabrics, both plain surface and raised-fiber surface
textiles, regardless of weight, made entirely from any of the
following fibers or entirely from combination of the following
fibers: acrylic, modacrylic, nylon, olefin, polyester, wool.
Many plain surface fabrics containing spandex fiber are already
exempted from testing due to fabric weight.
In apparel fabric, spandex fiber usually appears as a small
percentage of total fiber and it is typically used in combination with
other fibers to add ``ease'' or form-fitting properties. The extent to
which spandex fiber may affect the flammability performance of garments
constructed of otherwise-exempt-fiber fabrics is unknown; the industry
has not provided sufficient data from their own flammability testing to
justify amending the Standard to include spandex in a fiber exemption.
The Commission does not have evidence to support the inclusion of
spandex as an ``exempt fiber'' and would welcome new data if the
industry can provide it. If the Commission were to determine that there
was a need for a study on the flammability of spandex fiber in
combination with the other exempt fibers, it could direct the staff to
proceed with such an investigation.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Inez M. Tenenbaum
Question 1. Ms. Tenenbaum, given that CPSC has fewer than 500
employees and that the agency is charged with ensuring the safety of
over 15,000 types of consumer products, I would like to know your
thoughts on how CPSC can leverage its resources. You note in your
testimony that the CPSC is working with other agencies such as the
Customs and Border Protection on ensuring the safety of imported goods.
As a former attorney general, I would like to ask how you are working
with state attorneys general to help ensure compliance with consumer
product safety rules. One idea that Commissioner Robert Adler mentioned
during his Senate confirmation process was having CPSC potentially host
regional conferences of state attorneys general to raise awareness
about product safety issues. Are any such conferences or regional
meetings planned?
Answer. Shortly after both Commissioner Adler and I joined the
Commission, the CPSC hosted in October of 2009 a conference of
representatives of the state attorneys general responsible for consumer
protection of product safety issues. At that meeting we agreed to hold
a monthly conference call to share information and raise awareness
regarding Commission product safety priorities. Those conference calls
have been successful and will continue in FY 2011. We also recently
held a training session for interested state AG offices on
investigating children's products for lead and cadmium hazards. There
is a second in person follow-up meeting planned for early Spring 2011.
Question 2. Do you have other ideas about cooperating in other
areas to ensure consumer safety?
Answer. In September 2010, the Commission voted to create the
Office of Education, Global Outreach, and Small Business Ombudsman, an
office I envisioned in my first year as Chairman. The office will make
the CPSC more accessible to stakeholders and will play a vital role in
helping the CPSC fulfill its mission of protecting the public from
unnecessary risks of death and injury from consumer products. The
principal function of the office will be to coordinate and provide
education and outreach activities to various domestic and international
stakeholders, including foreign governments, manufacturers, retailers,
small businesses, and consumers. To carry out this mission, the new
office will invite partnerships with colleges and universities, state
and local governments, nonprofit organizations, standards making
organizations, and others to enhance the CPSC's ability to provide
research and training for stakeholders on regulatory and safety
standards and best practices, which in turn will result in safer
products.
The CPSC has been working with the states and others to come up
with creative ways to raise awareness about product safety issues. For
example, we have worked collaboratively with the American Academy of
Pediatrics to produce a video on crib safety for use with new parents
in hospitals and pediatricians offices. I would also like to work with
the states to ensure that day care licensing codes are revised to
require recall checks to ensure products used in those facilities have
not been recalled.
Question 3. Chairman Tenenbaum, since passage of the landmark CPSIA
legislation, does the CPSC now have the resources, authority, and
cooperation from other agencies that it needs to protect our children
from harmful and tainted products imported from foreign countries?
Answer. In the last couple of years the CPSC has received a
substantial increase in appropriations, and I am extremely grateful for
these additional resources. Since my arrival at the Commission these
resources have been put to work of a number of critical initiatives,
including increasing CPSC Import Surveillance Division staff at ports
of entry, a new CPSC testing facility, and investigating several new
and emerging areas of potential consumer product safety hazards.
Having said that, it is important to note that the CPSC is still
only has half the staffing that is possessed at its peak in 1980. We
have made great strides since passage of the CPSIA, but additional
resources would be welcomed.
Question 4. Chairman Tenenbaum, thank you for your assurance that
the CPSC will carefully review the issue of football helmet safety,
particularly for young children and high school athletes.
In addition to the fact that no football helmet standards exist for
youth helmets and for addressing concussion risks, I am concerned that
some safety warning labels for helmets are not clearly visible and
legible. For example, new and used football helmets are sold with
warning labels placed underneath padding inside the helmet where they
are not fully visible. My understanding is that the CPSC has provided
clear guidelines about the content, legibility, and visibility of
safety warning labels for other children's products and consumer
products. Will you include a review of the adequacy of current warning
labels as you look into the issue of football helmet safety?
Answer. As indicated during my oral testimony, CPSC has fully
engaged NOCSAE in furtherance of our monitoring of their voluntary
standards process. Labeling is certainly included in the areas we are
exploring. We share the desire that labels, both in terms of substance
and location, provide meaningful and effective warnings.
______
Response to Written Questions Submitted by Hon. Kay Bailey Hutchison to
Hon. Inez M. Tenenbaum
Question 1. As you know, Section 103(a) of the CPSIA requires the
placement of tracking labels on all children's products and their
packaging, to the extent practicable. In its July 2009 Statement of
Policy regarding enforcement of this provision, CPSC staff indicated
that products sold through bulk vending machines would not need to be
individually marked, though the package or carton the products are
shipped in would. The Statement of Policy further noted that ``the
Conference Report [accompanying the CPSIA] recognized that marking each
individual product in such circumstances may not be practical. See H.R.
Rep. No 787, 110th Cong., 2d Sess. 67 (2008).'' However, the Commission
has not provided any explicit regulatory exclusion from Section 103(a)
for bulk vended products. Will the CPSC pursue enforcement actions
against bulk vendor suppliers, operators or retail establishments for
the absence of tracking labels on bulk vended products? Further, can
you please assure the Committee that the CPSC will maintain this
position should any state attorney general or other entity seek to
enforce Section 103(a) against bulk vended products?
Answer. In the July 2009 Statement of Policy, CPSC staff stated
that bulk vended products would not have to be individually marked. The
Office of Compliance is following this policy as stated. Staff will
consider enforcement action, however, if outer containers were not
appropriately marked with the required information.
Question 2. According to an August 2010 ABC news report, the
American National Standards Institute (ANSI) found that earlier test
results for 4 pool drain covers by 3 brands--Aquastar, Paramount, and
AFRAS--were unreliable and that use of the covers could result in
serious injury or death to consumers. In the article, the CPSC
commented that it was investigating the matter. Please provide an
update on the investigation and what the Commission has found to date.
Answer. After learning of possible anomalies in the testing of
certain pool drain covers, the Commission took several steps to
investigate. On September 3, 2010, the Commission issued subpoenas
requesting test data from three independent labs involved in drain
cover testing, rating, and certification. This request produced over
17,000 pages of technical documents for staff review, which is
currently underway.
CPSC also contracted with a third-party testing laboratory to have
the identified suction outlet covers tested (CPSC Contract # S-10-
0108). CPSC laboratory staff witnessed the testing to observe the test
facility, the test procedures, and the methodology of different
technical staff conducting the tests. The results of testing have been
reported by the contractor and staff is reviewing the report.
These results will be used to discuss any ratings issues with
manufacturers of the identified product whose rating is questionable.
In the event that testing results for certain covers indicate any
substantial product safety hazards, the Commission may pursue a recall
or other corrective action against the manufacturer of the specific
cover.
In addition, the CPSC laboratory is also conducting its own
independent testing of the identified suction outlet covers and will
compare results with those obtained by the contractor as well as those
obtained by the original third-party certifying laboratories. These
results and review of the procedures will also be used to develop
guidance for future testing and rating of suction outlet covers by
third-party certifying laboratories.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Hon. Inez M. Tenenbaum
Question 1. What can you tell us about the impact of the CPSIA on
small businesses? Even though the CPSIA did not require the Commission
to perform cost-benefit analyses of the rules it promulgates, many of
the concerns raised from small businesses and from Members of Congress
since the law passed have been based on the need for this very
information--specifically, the law's economic impact and unintended
consequences. Does the Commission have quantitative data to determine
what the impact has been, and what the impact will be in the future as
more requirements under the law come into effect?
Answer. While it is true that CPSIA does not contain a separate
cost-benefit analysis provision, the Commission is still required to
perform a regulatory impact analysis (pursuant to the Regulatory
Flexibility Act) of each significant new CPSIA rule presented for the
Commission's consideration. In some cases, the staff has concluded that
the rules could have significant adverse impacts on substantial numbers
of small businesses. In fact, CPSC quantitative data on the use of
cribs in child care facilities and public accommodations (many of which
are small businesses) was recently utilized by the Commission to decide
how to best apply the new rule on mandatory crib standards to child
care facilities and places of public accommodation as required by the
CPSIA. Assisted by this data, the Commission gave child care facilities
and places of public accommodation 18 months after the effective date
of the new crib safety rules to come into compliance with these new
standards. This 18 month compliance period will help to ensure that
children benefit from safer cribs, while at the same time preventing a
serious impact on these kinds of small businesses and causing a
potential shortage in available child care for working families.
The Commission is certainly cognizant of and sensitive to the
impact of the CPSIA on testing and compliance costs for small
businesses. To that end, the Commission has sought to ameliorate the
financial burdens through the exercise of sound discretion where the
Commission believed that Congress had provided the Commission with that
ability and where such accommodations could be shown not to have an
impact on product safety.
One example of these efforts is the Commission's regulation
exempting certain types of products from mandatory lead testing. In
this case, the Commission met with the business community, examined
their specific claims that certain categories of pure products--like
certain woods, textiles, and inks--would never contain violative levels
of lead in them, and granted exemptions for those categories after
independent CPSC analysis. Another example is the Commission's
enforcement policy concerning lead in surface coatings and lead content
that allows for the use of properly tested and certified component
parts in lieu of final product testing. Both of these examples have
provided some relief for small businesses in their sourcing and
manufacturing of products.
Question 2. Does the Commission have any plans to assess the
negative impacts of the law, and to take necessary actions to alleviate
these burdens before they eliminate any more jobs?
Answer. The Commission has always maintained an open door policy to
listen to the concerns of industry and small businesses--and the
establishment of the new full-time Small Business Ombudsman is the
latest way that the Commission has sought to listen to and address the
concerns of small businesses. As CPSIA does not distinguish between the
sizes of businesses that must comply with the law, the Commission does
not have plenary power to take actions that may alleviate the burdens
of compliance on small businesses specifically.
Nevertheless, as noted above, the Commission is required to conduct
regulatory flexibility analyses on each significant rule, which assess
the potential impacts of the rules on small businesses. The Commission
has, and will continue, to look at areas, like the limited lead
exemptions and the component part enforcement policy rule noted above,
to assist small businesses and others, where possible and discretion
allows.
Question 3. You mentioned at the hearing the creation of a full-
time Small Business Ombudsman to serve the Nation's small manufacturers
in the area of product safety. How will this new position address the
concerns of small businesses? Do you believe that this will be enough
to alleviate their expressed concerns?
Answer. The full-time Small Business Ombudsman is addressing the
needs and concerns of small businesses in many ways. As you heard on
December 2, 2010, from Ms. Jill Chuckas of the Handmade Toy Alliance,
the Small Business Ombudsman has already been working very closely with
small businesses and representatives of small business.
The Ombudsman will serve small businesses through the provision of
regulatory and technical guidance to small business inquiries in a
timely manner. Furthermore, the Ombudsman will develop educational
materials to provide plain English explanations of Federal consumer
product safety requirements. The Ombudsman has already fielded many
inquiries where he has been able to provide concise, clear guidance as
to the regulatory requirements and the response from those businesses,
and the business community in general, has been very positive.
The Ombudsman has also made himself accessible for small businesses
and their representatives to raise their concerns with the knowledge
that the Ombudsman will follow up with the appropriate agency employees
to seek a solution. We believe that the creation of the Ombudsman
position will be helpful for the Commission to be kept current of small
business issues and to find new ways of partnering with the small
business community to develop creative and effective solutions within
the confines of the law.
Question 4. The Commission's stay on third-party testing for lead
content is scheduled to lift in February. Is the Commission prepared to
move forward with lifting this stay of enforcement?
Answer. The Commission is currently considering several petitions
and requests, including one from the Handmade Toy Alliance (HTA), for a
continuation of the stay of enforcement for third-party testing of lead
content. In considering these requests, the Commission will carefully
consider the views and concerns of all impacted stakeholders.
Question 4a. Do you believe that the health of children has been at
greater risk because of this stay of the third-party testing
requirements?
Answer. Commission staff has no data at this time to suggest that
the risk to the health of children has changed either positively or
negatively as a result of the stay of the third-party testing
requirements.
Question 5. Do you believe that businesses have been given the
information necessary to comply with this requirement? Have they been
given enough time to incorporate necessary changes to comply with the
requirement by the February deadline?
Answer. The third-party testing requirements of the CPSIA have been
communicated to the business community. Since August 2008, CPSC staff
have met with various industry associations numerous times and provided
multiple training seminars and webinars on the new requirements of the
CPSIA in an attempt to help industry prepare for the changes brought
about by the CPSIA. As one example, on December 10-11, 2009, the
Commission held a two-day workshop to discuss issues relating to the
testing, certification, and labeling of certain consumer products
pursuant to section 14 of the CPSA (see 74 Fed. Reg. 58611 (November
13, 2009)).
As both Ms. Jill Chuckas and Mr. Steve Lamar stated in response to
questioning from Senator Pryor at the December 2, 2010, hearing, CPSC
Commissioners and staff have been fully engaged with industry,
providing training workshops around the U.S. and the world and being
responsive to the issues and concerns facing industry as they move
forward with meeting the requirements of the CPSIA. The Commission is
committed to continuing to meet with and educate manufacturers and
importers as the remaining CPSIA regulations are developed and
implemented.
With regard to industry being given enough time to incorporate
necessary changes to comply with the lifting of the stay in February,
it should be noted that the initial stay of enforcement was issued on
February 9, 2009, to allow industry time to make the necessary changes.
For those products that have been covered by CPSC's stay of
enforcement, there has always been a requirement that the products be
in full compliance with all applicable product safety rules.
Furthermore, the only way to know that a product complies is to
test the product or the components of the product. Many manufacturers
and importers have been testing children's products, at the request of
their customers, for many months. A full 24 months will have passed
when the Commission takes up the matter of lifting the stay in February
2011.
Question 6. Is the Commission going to consider extending the stay
in order to ensure that the affected businesses are adequately prepared
and that there are enough resources to prevent a negative impact on the
businesses affected? If so, when do you plan on doing so?
Answer. As noted above, the Commission is currently considering
several requests, including one from the Handmade Toy Alliance (HTA)
for a continuation of the current stay. The Commission is carefully
considering the views of all stakeholders and will rule on the
petitions and requests as soon as possible.
Question 7. The CPSIA draws a clear distinction between general
product safety rules and children's product safety rules. Yet the
Commission has chosen to apply the requirement of third-party testing
to all children's products under the general product flammability
rules. Can you tell us why this decision was made?
Answer. The Commission has been consistent in its application of
third-party testing requirements to children's products subject to
consumer product safety rules. The phrase ``children's product safety
rule'' is clearly defined by Congress and has been consistently
interpreted by the Commission to include rules of general applicability
as well as those rules that specifically address hazards unique to
children. Substituting the actual definition of ``children's product
safety rule'' into the language of section 14(a)(2) of the Consumer
Product Safety Act (CPSA) best demonstrates the statute's direction to
the Commission.
When read with the definition of ``children's product safety rule''
inserted, section 14(a)(2) reads:
[B]efore importing for consumption or warehousing or
distributing in commerce any children's product that is subject
to ``a consumer product safety rule under this Act or similar
rule, regulation, standard, or ban under any other Act enforced
by the Commission, including a rule declaring a consumer
product to be a banned hazardous product or substance,'' every
manufacturer of such children's product . . . shall submit
sufficient samples of the children's product . . . to a third-
party conformity assessment body . . . to be tested.
This explicit definition of ``children's product safety rule''
referenced in section 14(a)(2) of the CPSA is plain and unambiguous in
that third-party testing is required for any children's products
covered by a consumer product safety rule, including standards of
general applicability. This is consistent with the Commission's
unanimous decisions to require third-party testing of children's all-
terrain vehicles, bicycles, and bicycle helmets. These three
regulations are also rules of general applicability, and the Commission
has voted unanimously to require third-party testing for children's
versions of these products. Thus, in addition to the clear definition
of the statutory term ``children's product safety rule,'' it is also
inconsistent with the Commission's unanimous votes requiring third-
party testing for general standards pertaining to youth all-terrain
vehicles, bicycles, and bicycle helmets to not also require third-party
testing for children's products subject to the general standards
pertaining to flammability.
Question 8. The flammability standards have been in place with
testing protocols for adult and children's products for some time. Yet
the Commission has chosen to apply this additional third-party testing
requirement to children's products under those rules. Is there any
evidence that the products affected by this ruling, such as carpets or
vinyl plastic, were unsafe under the prior testing regime and needed to
be subjected to third-party tests to protect children?
Answer. CPSC's 2005-2007 Residential Fire Loss Estimates, dated
August 2010, presents estimates of consumer product-related fire losses
that occurred in U.S. residential structure fires attended by the fire
service. The estimates were derived from data for 2005 through 2007
provided by the U.S. Fire Administration's (USFA) National Fire
Incident Reporting System (NFIRS) and the National Fire Protection
Association's (NFPA) Survey of Fire Departments for U.S. Fire
Experience.
The estimated residential structure fires attributed to floor
coverings (as item first ignited) such as carpets and rugs, averaged
4,700 from 2005 through 2007. The estimated residential structure fire
deaths attributed to floor coverings (as item first ignited) for this
period averaged 100, with injuries averaging 280. The estimated
residential structure fire property loss attributed to floor coverings
(as item first ignited) for this period averaged $151.4 million. It
should be noted that the Commission's residential fire data do not
differentiate children's product vs. non-children's products for
carpets and rugs, mattresses and mattress pads, or apparel. A special
study would be needed to try to obtain information on the involvement
of adult versus children's versions of these regulated products as the
first item ignited.
Question 8a. Is there any evidence that children's versions of rugs
or other affected products are in more danger than adult versions of
those products to necessitate this additional testing standard?
Answer. The Commission's residential fire data do not differentiate
between children's product and non-children's products for carpets and
rugs, mattresses and mattress pads, or apparel. A special study would
be needed to try to obtain information on the involvement of adult
versus children's versions of these regulated products as the first
item ignited.
Question 8b. Isn't an adult version of an affected product more
likely to be subjected to a cigarette or some other igniting source?
Answer. The Commission does not have data to support this
assertion.
Question 9. As I noted in my opening statement, I have many
constituents who continue to suffer from the effects of tainted drywall
that was installed after Hurricane Katrina. Mississippi has the third
highest number of reported cases in the Nation. I know the Commission
has been involved in the research into the health impact of this
drywall. Can you update us on the status of the Commission's health
investigations, and what determinations you have been able to make to
this point?
Answer. The most frequently reported symptoms are irritated and
itchy eyes and skin, difficulty in breathing, persistent cough, bloody
noses, runny noses, recurrent headaches, sinus infection, and asthma
attacks. Since many consumers report that their symptoms lessen or go
away when they are away from their home, but return upon re-entry, it
appears that these symptoms are short-term and related to something
within the home.
The staff of the CPSC and the Centers for Disease Control and
Prevention (CDC) agree that the levels of sulfur gases detected in the
affected homes in the CPSC's fifty-one home study were at
concentrations below the known irritant levels in the available
scientific literature. It is possible, however, that the additive or
synergistic effects of these and other compounds in the subject homes
could potentially cause irritant effects to consumers. It is also
possible that other exposures exist in these homes that could be
causing these complaints independent of the drywall.
Our own investigation into deaths of consumers associated with
homes that were reported to contain problem drywall found no evidence,
based on the limited data available, to support a connection between
drywall and the deaths. CDC also conducted an independent review of
this limited data, which consisted of available medical records. We
have received a report from CDC on their review, and will release it as
soon as CPSC staff have reviewed the report. We have also requested the
CDC to undertake a comprehensive study of any possible long-term health
effects resulting from exposure to problem drywall. I would refer you
to CDC for any questions regarding any further work by that agency in
this area.
Question 10. What are the Commission's plans for future involvement
with tainted drywall and the affected homeowners?
Answer. The Commission is continuing to engage with the Chinese
government and Chinese manufacturers to reach a fair and equitable
settlement for American consumers that have been impacted by
contaminated drywall produced by Chinese manufacturers. On October 25,
2010, I met personally with my Chinese counterpart, Mr. Zhu Shuping,
Minister, General Administration of Quality Supervision, Inspection and
Quarantine (AQSIQ) in Shanghai and spoke with him about the need for
further dialogue and movement in this area. On January 10, 2011, I had
another follow-up meeting with the AQSIQ Minister in Beijing, and again
restated my call for a fair and just resolution of the issue by the
responsible Chinese manufacturers.
We are also continuing to engage with private parties involved in
the Chinese drywall multidistrict litigation (MDL) in New Orleans,
Louisiana. I was pleased that the Federal court and the parties relied
on our scientific findings to help develop a demonstration program paid
for by the responsible manufacturer to remediate at least 300 homes in
the Southeast. This demonstration program was part of a partial
settlement agreement reached on October 14, 2010, and I am hopeful that
it will be expanded in the near future to cover other impacted
homeowners.
As the lead Federal agency in this investigation, we will also
continue to work with our sister agencies as they examine any possible
long-term health effects of the problem drywall and as our sister
agencies and other interested stakeholders work with the private sector
to develop more commercialized remediation methods.
Finally, we are working with ASTM International, a voluntary
standards development organization, on development of standards to
address the corrosive emissions from drywall and on affixing tracking
labels to ensure that drywall is more easily identifiable. We believe
that both standards will help to protect against future occurrences of
this type and, if they were to occur, to quickly address any issues in
a targeted and expeditious manner.
Question 11. At the end of November the Commission passed the final
implementing rule for the public database required under the CPSIA.
While the law specified who can submit reports of harm, the
Commission's rule expands this list by defining consumers and public
safety entities as essentially anyone who wants to submit a report--
even if the submitter does not know who was harmed, the particular
product involved, and did not see the incident occur. Therefore, as
opposed to the list created by the statute, submitters are no longer
limited to people who could have first-hand knowledge of the incident.
Why was this expansion done?
Answer. In section 212 of the CPSIA, Congress gave the Commission
the ability, in implementing the Database, to fill the gaps in defining
statutory terms such as ``consumer'' and ``public safety entity.''
Based on how the CPSIA amended the CPSA, I believe that Congress
intended the public to have access through this Database to as much
information as possible concerning the safety of consumer products.
To have narrowly defined those categories in the final rule,
particularly in the way stated in the alternative proposal offered by
Commissioners Nord and Northup, would have been contrary to the statute
and the overall goal of consumer access. For example, the alternate
proposal would have disallowed groups such as the National Association
of State Fire Marshalls from reporting incidents in the database. These
groups are often technical experts in public safety matters, and often
gather extremely valuable information concerning product safety
incidents. It also would have prohibited anyone, including the parents
of Danny Keysar (who was strangled in a defective portable crib in
2008) and the child care facility workers where he tragically died from
reporting his tragic death through the Database. I strongly believe
that this type of valuable data, from these kinds of reliable sources,
should be available to the public through the Database.
Question 11a. How will allowing individuals who do not have first-
hand knowledge of the incident improve public safety and increase the
reliability of information in the database?
Answer. As stated above, the alternate proposal put forward by
Commissioners Nord and Northup would have disallowed many public safety
groups with years of technical experience in public safety reports from
making reports. In addition, the proposal may have also restricted the
ability of parents whose children are injured by consumer products in
environments outside of the home (such as schools and child care
facilities) from making reports just because they did not directly
observe the specific incident leading to the injury. Additionally, it
would render the ability of physician and first responders, from whom
we currently receive much reliable data, and who fall under certain of
the categories of submitters Congress expressly included in section
212, from making a report because they did not directly observe the
specific incident leading to the injury. I do not believe such a result
was intended by Congress or contributes to overall public safety.
Question 12. The intention of the database is to provide useful
information to consumers. Commissioner Northup's substitute amendment
included provisions to improve the accuracy of the data submitted by
requiring the inclusion of additional information. This amendment was
rejected by a majority vote of the Commissioners. Can you explain your
opposition to adding more required fields to the database in order to
improve the data's accuracy and usefulness?
Answer. The information requirements for submissions to the
Database were carefully crafted to ensure the accuracy of Database
submissions without creating barriers that are unduly burdensome to
consumers. Overall, I believe the Commission struck the correct balance
in requiring the information fields that were detailed in the final
rule.
Question 13. A central concern with the CPSIA remains that it takes
away the Commission's ability to assess the risk presented by a
product. The law focuses on the content of lead in a product, not the
risk of negative health effects from even limited exposure to that
lead. Do you believe that there is a risk posed to the health of
children from exposure to many of the products that are affected by the
lead limits in the law, such as ATVs, books, pens, school desks,
furniture, or furniture hardware (i.e., the nuts and bolts that hold
the furniture together)?
Answer. Lead is a potent neurotoxin that can cause permanent and
irreversible brain damage in children. The scientific and pediatric
community has thoroughly studied the issue of children's exposure to
lead and is near unanimous in the opinion that there is ``no known safe
level of lead.'' Even low-level lead exposure has been shown to affect
brain function, lower intelligence, and cause behavior problems and
poor school performance.
Throughout my tenure as Chairman of the CPSC, I have urged
manufacturer's of children's products to ``get the lead out.'' The
presence of lead in children's products is controllable and where lead
is not necessary, it should not be included in a children's product.
Question 14. You voiced support for a functional purpose exemption
to the lead standard at the hearing, yet you also pointed to literature
that says there is no safe level of lead. How do you reconcile these
conflicting viewpoints?
Answer. As stated above, I believe--based on all available
scientific and pediatric literature--that there is no safe level of
lead for children. At the same time, however, I have learned that there
are some circumstances where the exclusion of lead below the levels
permitted by section 101 of the CPSIA is problematic. Accordingly, I
have stated that it would be helpful for Congress to create a new
exclusion to the section 101(a) lead limits that would allow some
flexibility in cases where lead is required for a functional purpose
and the elimination of lead in a specific component is not practicable
or possible.
The fundamental tenet underlying a ``functional purpose'' type
exclusion is very simple: where lead serves no purpose and can be
practicably removed or made inaccessible in children's products, the
lead should be removed or made inaccessible to children.
Question 14a. Do you believe a legislative fix is needed to allow
exemptions from the lead content standard for all products that do not
pose a health risk for children?
Answer. As stated in my above response, I believe a functional
purpose exception to the current section 101(a) lead content limits
would be helpful.
Question 15. The crib rule was mentioned briefly during the
hearing. Can you please elaborate on the impact of the crib rule on
child care centers due to the retroactive effects of the law?
Answer. On December 15, 2010, the Commission adopted mandatory
safety rules for full-size and non-full-size cribs. Between November
2007 and April 2010, there were 36 deaths associated with crib
structural problems, and I am confident that these new rules will stop
further tragedies from occurring in the future.
At the same time, however, the Commission was very cognizant of the
impact that adoption of these rules might have on child care facilities
and other places of public accommodation. During consideration of the
rules, I urged building enough time into rule enforcement milestones
not only to allow new crib inventory to reach the market but also to
allow affected entities sufficient time to purchase new cribs.
Under the final rule cribs sold in commerce must comply with the
new requirements by June 28, 2011. Child care facilities and other
places of public accommodation required to comply with the rule will
have an additional 18 months to come into compliance--or until December
28, 2012. In the unanimous Commission decision adopting these rules and
compliance dates, I believe the Commission struck the right balance to
ensure that children will benefit from safer cribs, while at the same
time working to prevent a serious impact on smaller entities and a
potential shortage in available child care for working families.
______
Response to Written Question Submitted by Hon. Johnny Isakson to
Hon. Inez M. Tenenbaum
Question. Under your stewardship and that of Commissioner Nord, you
have both put forward stays to the so-called third-party testing and
certification requirement under the CPSIA. It is now due to take effect
in February of 2011. The final rules for testing and certification are
still not published, but I am hearing from my constituents that there
is confusion in the industry how to implement these requirements. This
level of confusion, combined with the 2/11 date, will in my opinion add
major new costs to manufacturers in the United States and this will
likely lead them to move their operations overseas or even close, at a
time when we are at near 10 percent unemployment. Wouldn't it make
sense to adopt another one year stay of this requirement and work with
Congress and the stakeholders to develop a workable testing regimen
that the impacted industries can effectively work with that would NOT
drive manufacturers out of business or overseas?
Answer. As noted in my above response to Senator Wicker, the
Commission is currently considering several requests, including one
from the Handmade Toy Alliance (HTA) for a continuation of the current
stay. The Commission is carefully considering the views of all
stakeholders and will rule on the petitions and requests as soon as
possible.
______
Response to Written Questions Submitted by Hon. Mark Pryor to
Hon. Anne M. Northup
Question 1. Is the marketplace safe for shoppers this holiday
season?
Answer. The safety of every product on the market at any given time
is unknowable, and the complete elimination of all unsafe products for
all time is unachievable. The CPSC's mission is to spend its resources
as efficiently and effectively as possible to identify and remove from
the marketplace consumer products that present a demonstrable risk of
injury. Data available to the CPSC to identify unsafe products and to
measure changes in product safety over time can help it gauge the
success of its efforts, and to reallocate its resources when necessary.
But the utility of such data is limited. One reason is that many
injuries that occur while using a product are unrelated to a product's
safety. Another reason is that it takes years to gather data, and
comparisons over time periods can therefore only support tentative
conclusions. Certainly the available data does not support the
conclusion that the CPSIA has made products safer. Rather, directing
greater resources toward identifying and removing actual risks, rather
than regulating to fixed standards unrelated to actual risk, would be
more effective.
Toy-Related Deaths and Injuries
The Commission touted its annual report on toy fatalities and
injuries as evidence that toys are safer this holiday season.\1\
Unfortunately, this press release was quite misleading. Data on toy-
related deaths and injuries illustrates the difficulty in drawing
conclusions regarding changes in relative risk.
---------------------------------------------------------------------------
\1\ http://www.cpsc.gov/cpscpub/prerel/prhtml11/11042.html.
---------------------------------------------------------------------------
First, the Commission's data on deaths related to toys is not
complete, and always lags by several years. As you can see in the first
set of footnotes on page four of ``Toy-Related Deaths and Injuries,
Calendar Year 2009'' (http://www.cpsc.gov/library/toymemo09.pdf), the
death certificate data for 2009 was only 37 percent complete. For that
matter, the death certificate data for 2007 was only 85 percent
complete, as of 2009. The number of deaths has always increased in the
out years as further data is collected. Thus, it is simply too early to
tell what the number of deaths related to toys will be for 2009, or how
it will compare to previous years.
Second, it is important to remember that the incident data reflects
toy injuries and deaths that are ``associated with, but not necessarily
caused by'' toys. In other words, the hazard may have nothing to do
with a consumer product. For example, in the tables on pages four and
five of the 2009 report, the data on deaths related to toys show that a
number of deaths for children age 15 and under involved drowning
related to tricycles or powered riding toys. These deaths likely
occurred around a pool or other body of water while the child was using
the toy, but it is unlikely that the toy was defective and caused the
accident. Thus, while such incident data may point to the broader
hazard of drowning, it does not establish that tricycles and motorized
toys are unsafe. So while the data collected on these broad areas of
concern are important for the Commission to understand as we direct
resources toward public relations campaigns and enforcement efforts, it
is much less relevant in judging whether toys are safer.
Third, this 2009 report shows that there were an estimated 250,100
toy-related injuries treated in U.S. hospital emergency departments
that year, which is significantly higher than the annual average of
228,200. So while the incomplete, preliminary data for deaths shows a
decrease, the number of reported injuries associated with toys has
actually gone up. The estimated number of emergency department injuries
for 2008 is 235,300. Additionally, the statistics indicate that the
injuries in 2008 and 2009 may be slightly more serious. Ninety-six
percent of the injury victims were treated and released in both the
2009 and 2008 reports, whereas in 2007, slightly more (97 percent) were
treated and released.\2\ Thus, the changes in injury data from 2007
through 2009 do not support the theory that toys are safer today than a
few years ago.
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\2\ Risana Chowdhury. ``Toy Related Deaths and Injuries, Calendar
Year 2007,'' Consumer Product Safety Commission. Pg. 6: http://
www.cpsc.gov/library/toymemo07.pdf.
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CPSIA
There is no evidence that the CPSIA will significantly contribute
to increased product safety. This is because the major requirements of
this law are not related to risk. Recent modifications to products due
to the CPSIA may have made the products more expensive, but have not
necessarily made them safer. For example, while lead-free zippers may
be more readily available in the marketplace today than a few years ago
due to the current 300 ppm lead content standard, there is still no
evidence that touching or mouthing the stay of a zipper with a lead
content higher than 300 ppm poses a lead risk to a child.
The interim ban on certain phthalates ( 108(a)(1)), which are used
to make plastics soft, is another requirement that is unrelated to
risk. The Commission has already determined that the phthalates most
commonly used in toys today (those included under the interim
prohibition) did not pose a danger to children and, therefore, should
not be federally regulated. Nonetheless, the CPSIA requires yet another
Chronic Hazard Advisory Panel (CHAP) to study the issue de novo. And
pending this new study--which could well obtain the same results as
prior tests--the law bans them both prospectively and retroactively.
Thus, a chemical that the Commission has studied and determined not to
pose a risk, and that will now be studied again, is already banned from
all toys and child care articles--a step clearly mandated without
regard to risk.
It is premature to gauge the safety impact of the CPSIA's
requirement, effective early 2009, that the toy standard (ASTM-F963)
become mandatory. The full scope of this requirement has yet to be
implemented, because the Commission has not issued a Notice of
Requirements to accredit labs that will test to this standard. Once the
requirement is implemented, toy manufacturers will be obligated to send
each component of each toy to a third-party lab to be tested to all
applicable parts of the toy standard, potentially requiring numerous
extra tests beyond lead and phthalates. But it also appears that the
delay in implementation of these third-party testing requirements has
not caused toys to be more unsafe than in previous years. So it may be
preferable to forgo these costly testing requirements for toy
manufacturers unless or until the Commission can actually show that
they are beneficial in addressing a known risk.
Changing the CPSC's Mission
As a Commissioner, I am concerned that we are spending so much time
developing regulations unrelated to risk under the CPSIA that our
attention will be diverted from focusing on genuine safety hazards. Our
agency is charged with ``protecting the public from unreasonable risks
of serious injury or death'' from consumer products--but we cannot
fulfill this mission if our time is spent primarily enforcing the
CPSIA, including its complex, non-risk-based, testing and certification
requirements.
Because the CPSIA's new requirements are not risk-based,
manufacturers are spending time and money simply on ``compliance,''
rather than on improving their products to the benefit of consumers. In
fact, many of these requirements amount to massive new paperwork and
tracking systems, rather than actual modifications to the products
themselves. The American Home Furnishings Alliance writes in a letter
to Commissioners:
``. . . there has not been a corresponding benefit in the
improved safety of children's furniture for children. All the
representatives told you that their respective companies have
not had to change a single material they use in the
manufacturing of their children's product lines since they
began testing to CPSIA in 2008. . . . The testing is simply
being done to attempt to prove a negative.'' \3\
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\3\ Letter to Commissioners from the American Home Furnishings
Alliance. November 8, 2010.
Similarly, some industry associations have had very few, if any,
safety violations and yet have to comply with onerous third-party
testing, certification, tracking and labeling requirements that will
not improve safety. The American Apparel and Footwear Association
---------------------------------------------------------------------------
writes in their public comments on the Component Parts rule:
``As the CPSC continues to issue specific compliance
requirements, manufacturers become increasingly wrapped up in
ensuring compliance over ensuring product safety. All AAFA
members have had long-standing quality control programs in
place that have developed based on the product's, production of
the product's and the manufacturer's unique circumstances.
These programs are effective and do not need to be changed. To
demonstrate, only .0084 percent of all apparel and footwear
sold in the U.S. in 2008 were involved in a recall. Moreover,
most apparel and footwear recalls have been drawstring
violations--a compliance issue that results from lack of
information not lack of testing.'' \4\
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\4\ American Apparel and Footwear Association. Request for
Comments. Docket No. CPSC-2010-0037 & CPSC-2010-0038. August 3, 2010.
Given the Executive Order \5\ issued by President Obama on January
18, 2011, directing agencies to roll back onerous regulations that have
no safety benefit, I hope the Majority at least will consider
approaching Congress to remove the law's third-party testing,
certification and labeling requirements that are entirely unrelated to
risk. The Commission always maintains the authority to impose in the
future new testing requirements on any products where a true risk
arises.
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\5\ http://www.whitehouse.gov/the-press-office/2011/01/18/
improving-regulation-and-regulato
ry-review-executive-order.
Question 2. Has the agency seen a dramatic decline in toy recalls
since 2008?
Answer.
------------------------------------------------------------------------
Toy Recalls by Fiscal Year
-------------------------------------------------------------------------
Number of
FY Recalls QTY
------------------------------------------------------------------------
10 44 8,389,276
------------------------------------------------------------------------
09 50 1,785,626
------------------------------------------------------------------------
08 172 12,246,170
------------------------------------------------------------------------
07 63 26,375,370
------------------------------------------------------------------------
------------------------------------------------------------------------
TOTAL Recalls by Fiscal Year
-------------------------------------------------------------------------
Number of
FY Recalls QTY
------------------------------------------------------------------------
10 428 124,700,000
------------------------------------------------------------------------
09 465 229,500,000
------------------------------------------------------------------------
08 563 60,700,000
------------------------------------------------------------------------
07 472 102,200,000
------------------------------------------------------------------------
A perennial question for this Commission has been whether it is
good or bad to have fewer recalls. A 2004 report by Kids in Danger
asserts that a decline in recall activity between 2000 and 2003 did not
indicate that products were becoming safer. Rather, the consumer
advocacy organization surmised that the decrease was due to changes in
enforcement policy under then CPSC Chairman Hal Stratton. According to
Kids in Danger, the decrease in recalls resulted from lax CPSC
enforcement that ``increase[ed] hazards as the dangerous products stay
on the shelves, and in homes.'' \6\
---------------------------------------------------------------------------
\6\ Safety Shortcuts: Children's Product Recalls in 2003. Kids in
Danger, February 2004. Pgs. 2, 11. http://www.kidsindanger.org/
publications/reports/2003_recallreport.pdf.
---------------------------------------------------------------------------
But today, a decline in recall activity is suddenly a good sign--
and much better than the increase in recall activity that took place
under Acting Chairman Nancy Nord prior to the passage of the CPSIA.
Thus, it would appear that the significance of the agency's number of
recalls is entirely subject to interpretation.
In reality, recall data alone cannot conclusively establish whether
products are safer or less safe than in previous years. On the
contrary, one of the main reasons that the Commission's toy recall data
was so high in Fiscal Year 2008 was the media attention surrounding
several high-profile recalls. As a result, both industry and the
Commission were aggressively testing every toy within their reach. As a
result, more violative products were discovered and recalled.
Today, our activities related to enforcement are focused much more
broadly. Thus, the difference in recall numbers between FY 2008 and
today prove only the obvious fact that the more resources the
Commission expends searching for non-compliant products, the more such
products it will find. The same is true for any law enforcement
activity, whether it is the number of hours a policeman watches for
speeders or the number of tax returns audited by the Internal Revenue
Service; the more resources allocated, the more violations will be
discovered.
Increased Activity at the Ports
The Commission's new enforcement initiative at ports may be
contributing to a decrease in recalls. Starting in Fiscal Year 2008,
the Commission launched its Import Surveillance Division, which placed
staff at U.S. ports to work closely with U.S. Customs and Border
Protection (CBP) to identify and examine imported shipments of consumer
products. Also, the Commission has embarked on several steps to improve
our coordination with the CBP and to combine resources. Since that
time, the number of imported products barred from entering the United
States has increased. This does not necessarily mean that the decrease
in recalls is due to an increase in the quantity of harmful products
stopped at the ports, but increased vigilance on our part can only have
a positive impact. I therefore applaud Chairman Tenenbaum for the
oversight and direction she has provided in the Commission's efforts to
better secure our ports against the importation of unsafe products. It
is more effective and drastically more efficient for consumers,
industry, and the government, for the CPSC to stop harmful products
before they enter the country.
Question 3. Has the agency seen a decline in the number of deaths
of children under the age of 15?
Answer. Regarding the recent data on toy-related deaths, it is too
early to tell what the number of deaths related to toys will be for
2009 and whether this number will be significantly different from
previous years. As mentioned in the first answer, the Commission's 2009
data on deaths related to toys is only approximately 37 percent
complete.
However, according to our staff's National Center for Health
Statistics data, the number of consumer product-related deaths for ages
0 to 15 dropped by over 17 percent, from 3,225 to 2,658, between 1985
and 2007. Adjusting for changes in population, the death rate for this
age group has dropped from 6.3 to 4.4 deaths per 100,000.
Question 4. What advice can the CPSC offer to parents to help keep
their kids safe from any potential product hazards this holiday season?
Answer. Based on my experience as a CPSC Commissioner and as a
mother of six, I am keenly aware of the dangers children can face from
consumer products. One of the saddest parts of this job is the
overnight incident reports that we receive on injuries and deaths of
children.
I would advise parents to be aware of the Commission's
www.recalls.gov website or to sign up for recall updates through e-
mail. It is also important to provide age-appropriate gifts to toddlers
and young children, to supervise their play, and to remember that most
incidents can happen in a split second.
Some of our most common incident data include drowning, which can
happen not only in pools, but in bathtubs, hot tubs, toilets and even
buckets of water. Drowning prevention is an important focus of the
Commission, and I am proud to have participated in one of the
Chairman's Pool Safely Campaign events in Washington, D.C. I hope that
the Commission's education campaign on drowning prevention may extend
to settings beyond just swimming pools.
There are a number of other common hazards reported to the
Commission and of which I would advise parents to be aware, such as
choking hazards for children, including coins and batteries.
Additionally, the Chairman launched a ``Safe Sleep Campaign'' to help
educate more parents on crib safety, which I strongly support. Soft
bedding placed inside of a crib is a significant hazard, because
infants' neck muscles are not strong enough to adjust and they can
suffocate. I have supported the Chairman's efforts to focus not only
the safety of the structure of cribs but also the other, common hazards
related to infant sleep.
Finally, a database limited to first-hand accounts of verifiable
incidents involving consumer products would provide an additional,
valuable resource for parents. Unfortunately, as I explain in the
answers that follow regarding the database, the rule passed by the
Majority goes in the opposite direction and will instead make the
public database mandated by the CPSIA of little use to consumers.
Question 5. Do you support the Commission's safe sleep campaign?
Answer. Yes. I support the Chairman's efforts to increase the
Commission's focus on crib safety and to use our communications
resources to educate the public about safe sleep for infants. In
particular, I have been supportive of the Chairman's efforts to broaden
the campaign to include not only education on the structure of cribs
and dangers of drop-sides, but also the more general, unforeseen
hazards not related directly to the crib's structure and hardware, such
as soft bedding. As we reach new audiences with information about our
recalls and the dangers of drop-side cribs, it makes sense to raise
awareness of ALL the common dangers related to infant sleep.
Question 6. If so, what role have you played in supporting the
Chairman's initiative?
Answer. I have often urged the Commission to do more to educate the
public on broad-based safety hazards and through social media. One of
my first suggestions as a Commissioner was to broaden our messaging by
using posters in other languages, such as Spanish, and working through
non-traditional groups, like churches, to increase our outreach to
minorities and harder-to-reach populations. The Chairman's staff has
done an excellent job using social media (online videos, text
messaging, twitter, etc.) and other creative ways to broadcast the
Commission's many safety messages, including the Safe Sleep Campaign. I
continue to support these efforts.
Question 7. When do you expect the Commission will issue a final
rule on crib safety?
Answer. The Commission, with my support, passed a final rule on
full-size and non-full-size cribs on December 15, 2010.
Question 8. Do you think it is important for safety advocacy groups
or day care centers to be able to submit to the CPSC for inclusion in
the database product safety complaints or incident reports?
Answer. It is important for individuals with first-hand knowledge
of incidents involving consumer products to be able to submit reports
of harm to the new database. Groups or individuals with no direct
knowledge of the incident, did not see it happen or do not even know
the person that was harmed, should not be permitted or encouraged to
submit incident reports to the database. There are several reasons why
first-hand knowledge is essential, but the primary reason is accuracy.
A database full of inaccurate reports from individuals who have second
or third-hand information is not remotely helpful to consumers using
the database to determine which consumer product they should purchase.
Day care centers at which an incident of harm has occurred
certainly should be permitted to report to the database. Day care
centers and other child service providers also would have been
permitted to submit reports under the alternative database rule that I
introduced. Additionally, consumers of the product in question, health
care professionals who treat the injured person, or emergency first
responders at the scene should all be permitted to submit reports of
harm to the database--and the statute requires all of these categories
of submitters.
However, advocacy groups and other second and third person
reporters are not listed in the law as allowable submitters to the
database, nor should they be. If they are not themselves consumers of
the product that caused the incident of harm, or otherwise a first-hand
witness (per the list of submitters in the statute), advocacy groups
have no business inputting to a public database information that is
intended to be a resource for consumers. Not only is adding advocacy
groups as submitters contrary to the statute, but it invites dishonest,
agenda-driven use of the database--diluting its usefulness for
consumers. Advocacy groups, trial lawyers, other nongovernmental
organizations and trade associations, all of which the Majority has
added as allowable submitters, must serve their own agendas and lack an
incentive to prioritize product accuracy in their reports of harm. By
inviting such groups to input reports of harm (none of which have to be
verified for accuracy), this Commission has all but guaranteed that the
database will be a tool for policy agendas, lawsuits and trade
complaints that will drown out information about product safety that is
useful to parents. Why even have a taxpayer-funded database (at a price
tag of $29 million, so far) that will be no more useful than an
``Amazon.com'' or any of the other hundreds of websites where anyone
can submit comments on a product?
There are many advocacy groups and associations that serve a role
in public policy, but may have no incentive to provide accurate
information on a public database. For example, the National Fire
Protection Association (NFPA) supports government-mandated sprinklers
in new homes, a controversial policy. One cause of house fires is the
use of cigarette lighters, which are consumer products. Thus, the NFPA
has a strong incentive to add all reports of house fires caused by
lighters to the Commission's public database. The more incidents in our
database, the better case they can make that new fire prevention
technology--which their members sell--should be mandated in homes.
But what incentive does NFPA have to ensure that it correctly
identifies the brand of lighter in an incident report: A lighter may
appear to be the branded product of a particular manufacturer, but
instead be a cheap counterfeit. The NFPA is interested solely in
reporting house fire incidents; the particular cause is not relevant to
its goal of promoting sprinklers. Meanwhile, the company identified in
the report as the manufacturer of the cigarette lighter must defend
countless inaccurate (or at least unverifiable) claims about its
product. Such inaccurate and unverifiable information is of no value to
a consumer seeking information on the safest type of lighter.
I explained in my November 24 and April 22, 2010 statements that
the Majority's interpretation of the statute is flawed because it has
greatly expanded the list of allowable submitters to the database. This
expansion goes against the statutory purpose that the database be
``useful'' for consumers, and does not comport with Congress's
discussion on the purpose of the law prior to its passage.\7\ Indeed,
the Majority has expanded the list of submitters to such an extent that
anyone can submit reports of harm--thereby rendering meaningless the
statutory language listing permitted submitters.
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\7\ On the Senate floor, during consideration of the CPSIA on March
5, 2008, Senator Pryor stated: ``We have tried to find something that
is balanced, that provides information, but also has some filtering so
we make sure erroneous information is not disseminated. But the goal of
this provision is that the public has the right to know when products
are dangerous.''
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The problems caused by the overly expansive list of submitters
could have been reduced if reports of harm had to be verified, or
simply verifiable, before being published. But unfortunately, the
Majority rejected the proposals contained in my alternative database
rule that would have made these reports more verifiable.
One of my unadopted proposals would have required reporters of harm
to include the victim's identity and contact information with a report
(to be held confidential, as is current practice). Commission staff
could then at least follow up with the victim in response to a
manufacturer's claim of a material inaccuracy, in order to verify the
report.
In my alternative rule, I also included such additional required
fields as the approximate date of purchase of the product and whether
the product was purchased ``new'' or ``used.'' This information would
have allowed consumers using the database to gauge the age of the
products and know whether the product in question was the one currently
in stores or is similar to the model they own. These proposals were not
adopted by the Majority.
Finally, while submitters to the database must check a ``self-
verification'' box to assert accuracy, this will do little to
discourage or prevent inaccurate reports of harm. The final database
rule merely asks the submitter of a report of harm to check a box
stating that the report they are submitting is accurate ``to the best
of their knowledge.'' The ``best'' knowledge of someone with no first-
hand knowledge is of little value. An individual or group without
first-hand knowledge will likely not have the full story of what
happened--including the exact type of product, the recent history of
the product, or even the precise cause of the incident.
Question 9. Do you think it is important for consumers to be able
to scan for trends and patterns of potentially hazardous products in
the marketplace by accessing this database so they can protect
themselves and their families?
Answer. It is important for Commission staff to be able to scan for
trends and patterns of hazards, as they do today through our internal
databases and other sources of information. After all, Commission staff
is tasked with enforcing existing Federal standards and determining the
need for new standards. What is important for consumers is to have
access to accurate information. Consumers already have a variety of
resources available to them on the Internet with all types of
information on products for sale. More importantly, scanning for
hazards will not be possible with this new database given that the
Majority's database rule ensures that the database will not be an
accurate source of information.
There are a number of ways in which the new database could be
unhelpful or misleading for consumers. Consider this scenario: Company
A sells five million high chairs and Company B sells 5,000 high chairs.
Company A has six incident reports on the database and the other has
one incident report (all of which are unverifiable). Thus, a consumer
could falsely conclude that Company A's high chair is less safe, even
though simply due to the number of units it sold, it is more likely
that people own that high chair--and more likely that reports on that
high chair would make it into our database. Or, it is also possible
that some of the reports about Company A's high chair actually
pertained to older models of the high chair that are no longer for
sale, which means the information may be entirely irrelevant for people
using the database to look for safety information about current
products on the market.
As a consumer and a grandmother, I do virtually all of my research
on baby products (e.g., regarding safety, quality and price) at the
point of sale--usually on the website from which I am ordering, such as
an ``Amazon.com.'' The hundreds of comments on these websites cover a
broad array of useful information. But for most products, I would not
slow down my research to look onto a government website for additional,
equally unverifiable, information--particularly when I can see safety
information right alongside all of the other information I am looking
for (wear and tear, usefulness, and warranty information) at the point
of sale or the retailer's website. All of these factors are useful to a
purchaser.
Trial lawyers or other groups with self-serving motives will use
the Commission's database to look for potential trends and patterns of
hazards. Under the Majority's database rule, these same groups may also
submit to the database false and unverifiable reports to fuel a
lawsuit. It is no coincidence that these groups are strongly in favor
of this public database and of the Majority's interpretation of the
statute, which expressly allows them to submit reports of harm.
Because the Majority's database rule all but guarantees that the
database will be flooded with inaccurate reports of harm, it will be
less useful for Commission staff in determining hazard patterns than
are the current, internal databases we have today. Frankly, this is one
of my greatest fears--that Commission staff will be overwhelmed by
inaccurate reports (or the reports that get picked up by the media) and
unable to use their expertise to search objectively for genuine
hazards. As the database is swamped with misleading or inaccurate
reports, they will drown out the accurate ones.
Question 10. Did you advocate for limitations on the information
that could be included in the database? If so, why?
Answer. As discussed above, I sought to limit the sources of
information to those likely to be reliable; and, I sought to increase
the scope of information that could be provided, in order to facilitate
verification of the incident reports. The only area where I advocated
temporarily withholding information received from an appropriate
submitter concerned claims of confidential or inaccurate information.
In the latter regard, I supported a valid and more useful
interpretation of the statutory 10-day time-frame for evaluating claims
of material inaccuracy. Under my interpretation, the brief 10-day
window presents a strong incentive for manufacturers to submit any
claims of material inaccuracy quickly, and for the information to go up
on the database as soon as possible--that is, following the 10th day as
long as there has been no claim of inaccuracy. However, if a
manufacturer submits by the 10th day an adequately supported claim of
inaccuracy, the Commission can and should withhold that incident until
the claim is resolved. Under this interpretation, data is not limited
in the database but better verified before it is posted. I refer you to
my November 24, 2010 statement for further details.
Notably, the Commission's Notice of Proposed Rulemaking on the
database originally included an interpretation similar to mine. For
example, 1102.26 of the NPR states: ``If a request for determination
of materially inaccurate information is submitted prior to publication
in the database, the Commission may withhold a report of harm from
publication in the Database until it makes a determination.'' \8\ 75 FR
29180. That language could not have been included in the NPR without a
legal opinion supporting the permissibility of the policy choice. That
the agency apparently believed at one time that this approach is
legally permissible reflects, at a minimum, statutory ambiguity
regarding the point.
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\8\ The preamble of the NPR contains analogous language: ``If a
request for determination of materially inaccurate information is
submitted prior to publication in the database, the Commission may
withhold a report of harm from publication in the database until it
makes a determination.'' 75 FR 99, at 29161. And this: ``We propose
that in cases where a claim of materially inaccurate or confidential
information is under review, the Commission, in its discretion, may
withhold a report of harm in part or in full until such a determination
is made.'' 75 FR 99, at 29170 (Response to summary 26)(emphasis added).
---------------------------------------------------------------------------
Not surprisingly given the NPR, many if not most of the commenters
assumed that incidents would not go into the Database pending the
determination of a material inaccuracy claim. Although at least one
commenter expressed the policy view that reports of harm should go up
on the 10th day even when such claims are unresolved, no one--not even
consumer groups--argued that the statute legally prohibits the agency
from withholding reports from publication for the duration of its
investigation. To the contrary, several commenters proposed a more
detailed protocol for addressing claims of material inaccuracy, based
on their understanding that reports would be withheld from publication
while under review for accuracy. And yet the Majority's final rule now
forbids delaying publication in those circumstances, and fails to
establish any specific protocol for handling requests for
determinations.
Finally, it is helpful to remember that the Commission obtains
information in addition to that which will be submitted to the public
database, such as emergency room data, death certificates, etc. It is
acceptable (and probably preferable) for the Commission to continue to
absorb as much information on consumer products as it can--and this
includes reports from advocacy groups, trial lawyers and trade
associations. However, it is not necessary nor is it statutorily
required that such information, particularly that which is neither
accurate nor verifiable, also be posted on the public database. This is
one area where my position on the database differs starkly from that of
the Majority. I believe inaccurate information in a public database
(with the official backing of ``.gov'') is not safety information; on
the contrary, it is simply misinformation--and a waste of taxpayer
resources.
Question 11. Within the third-party testing regime, where is the
Commission in its efforts to promulgate rules outlining appropriate
testing protocols?
Answer. On May 20, 2010, the Commission issued Notices of Proposed
Rulemaking on (1) Testing and Labeling Pertaining to Product
Certification (75 FR 28366), and (2) Conditions and Requirements for
Testing Component Parts of Consumer Products (75 FR 28208). These
proposed rules--referred to by the CPSC as the ``15-month rule'' and
the ``component testing rule''--address, inter alia, the protocols that
will govern third-party testing of children's products, including
random sampling methods and the availability of component parts testing
as a means to encourage compliance further up the supply chain and to
provide manufacturers with more options. The Commission is just
beginning to consider the final versions of these rules.
The delay in finalizing these rules is of concern, because the
Commission's previous stays on lead content testing were implemented
principally based on the recognition that manufacturers would be unable
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a
reasonable period of time. If the stay is lifted prematurely, many
small manufacturers, in particular, will be unable to afford to comply
independently with the third-party testing requirement, and will stop
making certain products or go out of business entirely.
This link between finalization of the 15-month and component
testing rules and the lifting of the stay was recognized by
Commissioners of both parties. As explained in the Commission's
February 2009 Federal Register notice, the stay on third-party testing
of children's products for lead content was first implemented in
response to ``confusion as to . . . whether testing to demonstrate
compliance must be conducted on the final product rather than on its
parts prior to assembly or manufacture . . . and what sort of
certificate must be issued and by whom.'' 74 FR 6396 (February 9,
2009). The stay was thus intended to provide the Commission time to
promulgate new rules addressing, inter alia, ``production testing of
children's products subject to third-party testing and certification .
. . including random sampling protocols,'' so that ``the right tests
are run on the right products without unnecessary and expensive
testing.''
During the December 2009 public briefings to consider whether to
lift the stay, CPSC staff reported that the apparel component
manufacturing sector was reluctant to initiate component testing while
the breadth of the requirement remains unsettled, and that smaller
manufacturers were unable to obtain component parts testing because
suppliers were reluctant to undertake the tests until the final rules
for component testing and certification are in place. In the face of
this evidence, Chairman Tenenbaum acknowledged that she ``would never
agree to lift the stay'' until the 15-month and component parts rules
are in place. She voted to extend the stay ``in order to allow
component testing adequate time to develop and to give our stakeholders
adequate notice of new requirements.'' Commissioner Moore also
recognized the need to ``give the small manufacturers, who often buy
their supplies in small amounts at retail outlets rather than through
bulk purchases from wholesale distributors, sufficient time to find
sources of lead compliant materials.'' During the December 16, 2009
public briefing on the stay, Commissioner Adler also conceded that the
15-month rule should be in effect before the stay is lifted. Although
he retracted that view the following day in his written statement
explaining his vote to extend the stay, Commissioner Adler predicated
his changed position on his belief that ``[n]ow that companies know
they can rely on component suppliers for compliance with the law, they
should be able to plan production and control costs in a reasonable
manner.''
Consistent with the views of all five Commissioners, the Commission
``determined that testing of children's products for lead content by a
recognized third-party testing laboratory and certification based upon
that testing should begin on the products manufactured after February
10, 2011, to allow component testing to form the basis for
certifications for lead content . . .'' 74 FR 68588 (December 28,
2009).
A year has now passed, but in the absence of final 15-month and
component testing rules, component testing still cannot form the basis
for certifications for lead content. Rather, small manufacturers
continue to report to the CPSC that component suppliers are refusing to
test altogether or are refusing to supply certifications, and that
certifications are unavailable from the retail outlets where many small
manufacturers obtain component parts. Under these circumstances, a
continuation of the stay would be consistent with the stated views of
all five Commissioners. Commissioners Northup and Nord, and Chairman
Tenenbaum all expressly linked the lifting of the stay to at least the
finalization of the 15-month and component testing rules. Commissioner
Moore supported extending the stay to give small manufacturers
``sufficient time to find sources of lead compliant materials,'' and
Commissioner Adler predicated his willingness to delink finalization of
the 15-month rule from the stay on his expectation that small
manufacturers would be able to ``rely on component suppliers for
compliance with the law.'' Given that component part suppliers remain
unwilling or unable to provide component part certifications in the
absence of final rules, there is no factual predicate for the
Commission to support lifting the stay.
It is also important to emphasize that publication of the proposed
rules has not provided the regulated community with any certainty
regarding the content of the final rules. Indeed, the CPSC's record of
rulemaking over the past year demonstrates that a final rule can change
materially from its proposed version and can impose more onerous
requirements. It is therefore not surprising that component parts
suppliers remain unwilling to incur the expense of providing
certifications under a proposed regime that may change substantially
before it is finalized.
I therefore intend once again to urge the Commission to vote to
continue the stay of enforcement on third-party testing and
certification of lead content in children's products until one year
after publication of final 15-month and component testing rules.
Considering the lead time necessary for manufacturers between design
and production, allowing one year after the two testing rules are
finalized is necessary for manufacturers to benefit from the rule.
Doing so would comport with the expectation created among regulated
industries through the Commissioners' and the Commission's public
statements that the stay would not earlier be lifted.
Moreover, lifting the stay before the final 15-month and component
testing rules are published would place manufacturers in the untenable
position of trying to comply with the proposed rule, while anticipating
a potentially much different final rule. This would provide
manufacturers with insufficient time within which to modify their
compliance management processes once the final rule was issued, and
would cause needless disruption to business planning, supply chain
management, test lab contracting, and other aspects of product
manufacturing, due to the rapidly changing requirements.
Finally, a reasonable time after publication of the final rules is
necessary in order to afford the regulated community time to come into
compliance. Otherwise, it may be too late for many small manufacturers
to benefit from the component testing rule. In this regard, it is
essential that the Commission retain in the final component parts rule
the proposed provision, 1109.5(g)(1), affording component parts
certifications ``currency'' to allow them to be reasonably relied upon
by downstream manufacturers without the need for duplicative testing.
Question 12. Has the Commission proposed a rule allowing for
component part testing?
Answer. As explained above, the Commission has proposed a rule on
component testing (75 FR 28208). If this rule is finalized as it is
written today, it will allow for compliance with the CPSIA by some
manufacturers that otherwise may have had no chance to survive under
the law's onerous, unnecessary testing and certification requirements.
This is because component testing has the potential to allow
considerable flexibility under the CPSIA's testing regime for both
small and large manufacturers. But it will not offset all of the
unintended costs nor eliminate all of the negative consequences of the
CPSIA. It may not even be available soon enough to benefit some small
manufacturers.
I have been a strong supporter of the policy, and therefore hope
that absent a full repeal of the CPSIA's testing and certification
requirements, the Commission promulgates a final component testing
rule. Until the rule is finalized and has the force of law, however, it
is highly unlikely that any suppliers of components like zippers,
buttons, or even raw materials will make the investment to become
component suppliers. In other words, it is incorrect to assume that a
proposed rule (or our previous enforcement guidance allowing component
testing) is sufficient to lay the groundwork for component testing to
take hold.
Component testing can successfully increase efficiencies and safety
up the supply chain, only if children's product manufacturers have
absolute certainty that they can rely on the certificates received from
component part certifiers. If a component part certifier (e.g., a
button manufacturer) third-party tests, certifies, and fulfills all
continued testing requirements for its buttons, but the doll-maker that
receives that certificated component is still held fully liable for the
compliance of the component, the doll-maker will always have to re-test
every component just to be sure. This creates layers of unnecessary,
duplicative testing.
That is why in 1109.5(g)(1) of the proposed component testing
rule, the Commission allows component part certificates to have
``currency'' to be passed through the supply chain. Specifically, this
provision allows component part certificates to be treated the same as
final certifications issued in accordance with section 14(a) of the
Consumer Product Safety Act. While finished product manufacturers
relying on component parts certificates still could be liable for a
recall, for example, if any component is found non-compliant, they
would not be held liable for a civil penalty for a violative component
if they relied, with due care, on a component part certificate.
The question of liability is central to the ability of component
testing to work. Manufacturers already have a strong incentive to work
with reliable suppliers in order to prevent unnecessary reputational
damage or a costly recall should any unsafe product make its way onto
the market. However, if a manufacturer is also liable for a civil
penalty associated with a certified component part found still to be
non-compliant--they simply have no incentive to demand certified
components at all. Today, they would still have to re-test any
components they receive because 1109.5(g)(1) of the proposed
component testing rule has not been finalized. Moreover, give the
Commission's recent history of changing the direction of its rules
between the proposal stage and final stage, there is even more
uncertainty surrounding component testing.
For all of these reasons, I strongly support finalizing all of our
testing rules prior to lifting the stay of enforcement on lead content
testing or issuing any more Notices of Requirements to accredit labs
for future CPSIA standards.
Question 13. How does Europe handle cadmium content in children's
products? Are the E.U.'s safety standards governing cadmium content in
children's products more stringent than our own?
Answer. International toy safety standards, including the European
standard EN 71-3, cover cadmium in toys. Like the ASTM F963 toy safety
standard in the U.S., EN 71-3 limits migration of cadmium from paints
and surface coatings. The European standard also includes limits for
migration of cadmium from materials other than paints and surface
coatings. Additionally, the E.U. restricts the amount of cadmium in
parts of vehicles, and electronic and electrical products (with
exemptions). It has also announced that it will consider
recommendations to restrict the cadmium content of jewelry.
An important distinction between our requirements and Europe's is
that Europe does not have the third-party testing and certification
requirements that American manufacturers now have in the United States
due to the CPSIA. Because the law's mandates (almost none of which are
based on risk) make the cost to manufacture children's products much
higher for manufacturers selling in the U.S., the law gives a strong
competitive advantage to foreign firms over U.S.-based firms. Also,
similar to Europe's lead content standards, enforcement of cadmium
limits varies significantly country to country--with some countries
enforcing the limits more than others. This uneven enforcement of the
EU's mandatory limits also makes it quite difficult to compare our
standards in the United States to those in the EU.
Imposition of the CPSIA's testing costs on products manufactured
for sale in the U.S. also disadvantages American consumers. Major
European toymakers have decided to stop selling in the U.S., to avoid
the CPSIA's testing costs. But their products are still available to
consumers in Europe and other countries.\9\ The absence of these
European children's products in the American market is not because
their products are unsafe, but because these companies choose not to
pay for the law's unnecessary costs to reengineer, third-party test and
certify all of their products.
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\9\ http://www.zrecommends.com/detail/breaking-news-selecta-to-
cease-us-distribution-due-to-cspia/.
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We tend to focus more on the costs of the CPSIA to businesses,
rather than to consumers. But as a mother of six, I have an
appreciation for the impact on the consumer. Parents have certain
expectations when they shop for their children, including that: (1)
products they purchase are safe; (2) at least some products are
affordable; and (3) a vibrant market exists with new and different toys
and children's products throughout the year. When I shopped for my
children, I did not want the same dolls and games in the same colors
that I purchased the year before. Unfortunately, the high cost of
compliance with the CPSIA, without regard to safety, has meant reduced
choices for consumers (including reduced product lines and ``de-
spec'ing'' of products to reduce colors and accessories)--and the
effects are likely to become worse as the Commission continues
implementing the law's testing requirements.
Harmonization
Recently, the ASTM toy safety subcommittee established a work group
to consider aligning the U.S. and international standards for
accessible soluble heavy metals in toys. If adopted by the ASTM toy
subcommittee, the new standards would then need to be approved by
Commission vote, because the CPSIA made the ATSM F-963 standard
mandatory, effective 2009.
That the Commission could be an impediment to the ATSM's efforts to
harmonize its standards with international norms illustrates how
mandatory, government imposed, standards can inhibit the harmonization
of international product safety standards. ASTM F963 had been a
voluntary standard before the CPSIA made it mandatory in early 2009,
and it is quite complex. In theory, the greater efficiencies achieved
through harmonization should benefit manufacturers and consumers. When
I was in China last summer visiting factories and American companies, I
saw that they perform three or four different ``small parts'' tests,
all from different heights, simply because of the requirements of
different countries. Harmonization would reduce that burden, but the
CPSIA's requirement that toys sold in the United States satisfy ASTM
F963 has tied the Commission's hands in its negotiations to
``harmonize'' with the Europeans. Overall, locking in the ATSM F-963
standard has severely limited the potential for improvements to safety
and efficacy that would otherwise be achievable by learning from and
adopting where appropriate the toy safety standards of other countries.
Unlike the mandatory toy standard, there is no Federal standard for
jewelry at this time in the United States. American companies that
serve on the ASTM jewelry standards Committee can therefore negotiate
freely with our international counterparts. Harmonization for this
product category is still possible.
Question 14. Are children more susceptible than adults to the
adverse health effects of cadmium exposure?
Answer. Our staff has found little information that children are
more susceptible than adults to the effects of cadmium, although few
studies have focused specifically on health effects in children.
However, CPSC staff has focused on children in its risk
assessments, because children engage in behaviors more likely to expose
them to any cadmium found in consumer products. In particular, children
tend to have significant mouthing behaviors, and occasionally may
swallow--accidentally or intentionally--small objects. Children also
tend to place their fingers in their mouths after touching objects. All
of these behaviors increase the chance of migratable material being
introduced into the mouth, where it can be swallowed and absorbed by
the body.
Question 15. Do you believe cadmium should be declared toxic by the
Commission under the Federal Hazardous Substances Act? If not, why not?
Answer. The Commission staff's conclusion is that the data
concerning the toxicity of cadmium is sufficient for cadmium to be
considered toxic under the FHSA due to effects on multiple organ
systems and toxic endpoints, including kidney dysfunction. However, the
conclusion that a substance is toxic is only the first step in the
Commission's assessment under the FHSA.
The FHSA is risk-based. To be considered a ``hazardous substance''
under the FHSA, a consumer product must satisfy a two-part definition.
15 U.S.C. 1261(f)(1)(A). First, it must be toxic under the FHSA, or
present one of the other hazards enumerated in the statute. Second, it
must have the potential to cause ``substantial personal injury or
substantial illness during or as a proximate result of any customary or
reasonably foreseeable handling or use, including reasonably
foreseeable ingestion by children.'' Therefore, exposure and risk must
be considered in addition to toxicity, when assessing potential hazards
under the FHSA.
It is important that the Commission's assessments be risk-based and
that the Commission explain and clarify the genuine risks associated
with metals like cadmium, particularly when talking to the media.
Unfortunately, some articles on children's products have reported that
cadmium is a carcinogen, inferring that it could be a carcinogen when
present in children's products. However, the route of exposure of a
substance is as important as the type of substance when determining its
health effects. If cadmium is inhaled, as in a mine or similar
workplace environment for adults, it is a known carcinogen. For this
reason, OSHA has strict standards on cadmium inhalation in industrial
workplace settings. However, touching, mouthing, or swallowing an
object with a high level of cadmium content is an entirely unique route
of exposure with unique health effects. As such, cadmium in the
substrate of toys, in drinking glasses, or in jewelry is not a known
carcinogen.
Question 16. Could you discuss the issue of the additional layer of
protection for pools with only a single main drain?
Answer. The additional layer of protection for pools and spas
provided by the Virginia Grahame Baker Pool and Spa Safety Act (VGBA)
is an important issue, and I was proud to support the bipartisan
interpretive rule that this Commission promulgated to implement the
VGBA.
Under the VGBA, all public pools and spas must be equipped with
anti-entrapment devices or systems. VGBA 1404(c)(1)(A)(i). To further
reduce the risk of entrapment, the VGBA also requires public pools and
hot tubs with a single main drain to have either an ``unblockable
drain'' or a ``system[] designed to prevent entrapment.'' VBGA
1404(c)(1)(A)(ii). Thus, one question before the Commission was how to
define an ``unblockable drain.''
The Commission's interpretive rule determines that a drain fitted
with an unblockable drain cover is an ``unblockable drain'' within the
meaning of the VGBA. I supported the majority's interpretation for the
following reasons: (1) I believe that a drain made unblockable via an
unblockable drain cover reasonably satisfies the plain meaning of the
statutory term ``unblockable drain''; (2) I believe an unblockable
drain system is equally if not more effective than other ``systems
designed to prevent entrapment'' and; (3) I am convinced that the
staff's recommendation to accept unblockable drain covers will save the
most lives and prevent the most injuries.
It makes sense to treat drains fitted with unblockable drain covers
as unblockable drains under the statute. Drains made unblockable
through their design or through use of an unblockable drain cover
function equally well to maintain the suction flow of water at a safe
level when blocked by a person's body, so we should treat them the
same. In either case (e.g., an unblockable drain or a drain with an
unblockable drain cover), if the drain cover is removed, the drain
ceases to be unblockable--so the issue of an unblockable drain cover
dislodging is irrelevant. If unblockable drains do not require back-up
systems, then neither should drains fitted with unblockable drain
covers.
Even if I were not convinced that the term ``unblockable drain''
includes drains fitted with unblockable drain covers,
1404(c)(1)(A)(ii)(VI) of the statute authorizes the Commission to
determine whether other systems are ``equally effective as, or better
than, the systems described . . . at preventing or eliminating the risk
of injury or death associated with pool drainage systems.'' Based on
the Commission's public hearing and briefing by staff--and for the
reasons discussed below--I would determine that unblockable drain
covers are at least equally as effective in preventing or eliminating
injury or death from drain entrapments as the other systems described
in the statute.
Finally, it appears to me that unblockable drain covers promise to
save more lives and prevent more injuries than other anti-entrapment
systems. An unblockable drain cover with the appropriate flow rating is
the only solution that prevents all five types of entrapments
identified by the staff (limb, hair, body, evisceration, and
mechanical-related). The back-up systems mentioned in the Act only
address some of the potential scenarios. For example, some of the back-
up systems deal with suction body entrapment and some limb entrapments,
but would not release hair, mechanical, or evisceration entrapments.
Given the prevalence in the mortality data of hair entrapments, that
failing poses a real danger. Moreover, preventing entrapments in the
first place is the best solution to the threat of entrapment drowning.
Back-up systems require an entrapment incident to begin to occur before
they respond, and they may not prevent the entrapment depending on what
kind it is and what type of drain system is involved.
I would like to add a few words about the apparent conflict of
interest of certain advocacy groups lobbying this issue. Just as health
insurance companies lobby Congress and Federal agencies for healthcare
solutions that benefit their bottom line, it is not surprising that
people who develop and sell back-up systems created an association to
promote the use of their product. In fact, the founder of the Pool
Safety Council, a group that has lobbied Congress and other
organizations to require that all pools have back-up system technology,
was the President of a back-up system manufacturer until only this past
February.\10\
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The Pool Safety Council promoted their petition by claiming the
CPSC ``reversed their guidance of the [VGBA], removing important
entrapment prevention requirements.'' However, as noted previously,
unblockable drain covers are the safest form of protection against
entrapments. They are the only safeguard against all five types of
entrapment and the only choice that prevents entrapment from occurring
in the first place.
The Council's petition goes on to say, ``The reversal brings into
question the influence representatives from the pool industry have in
CPSC's decision-making process.'' In fact, no group has pressured CPSC
more than the Pool Safety Council. Speaking for myself, I have had no
communication from any pool representative except for those that have a
financial interest in requiring back-up systems. The Pool Safety
Council lobbies for a tighter definition of unblockable drain because
pools with unblockable drains are not required to buy their product. I
consider it a triumph of safety over special interests that, despite
all the pressure from those who have a financial interest in requiring
back-up systems, the CPSC decided to adopt a new, safer technology.
Question 17. The Commission recently voted on rules to implement
the public database mandated in the Consumer Product Safety Improvement
Act of 2008. The Commission issued a notice of proposed rulemaking
(NPRM) regarding the database on May 24, 2010, with a comment deadline
of July 23, 2010. After the comment deadline but before the Commission
voted on the database rule, you and Commissioner Nord released an
``Alternative Database Rule Proposal'' and requested comment from the
public. Such action is highly unusual with respect to a rulemaking. Is
there precedent for members of an independent regulatory agency to
issue alternative rule proposals and seek public comment separate from
an agency released NPRM?
Answer. Although I am unaware of another alternative rule being
publicly vetted during a rulemaking process, it is certainly not
uncommon for members of rulemaking bodies to express publicly their
views on pending regulation. In fact, the Chair routinely expresses her
view on pending regulation and is often quoted in the press.
Question 18. How does the release of the alternative proposal and
the submission of comment impact the rulemaking proceeding? Did the
release of the alternative proposal potentially create grounds for a
legal challenge to the rule adopted by the Commission?
Answer. The release of the alternative proposal and the
solicitation of ``feedback'' from the public did not create grounds for
a legal challenge to the rule adopted by the Commission.
With respect to the publication of an alternative rule, the APA
does not require that agency decisionmakers shield from the public
their deliberative processes, including the consideration of
alternative language. Moreover, the public interest is arguably better
served when an agency's decisionmaking is made more transparent by such
action. The fact that the Majority reposted my alternative on the CPSC
website following a thorough legal review confirms that its publication
was deemed to be lawful.
The request for public feedback on the alternative rule also did
not make the final rule adopted by the Commission vulnerable to legal
challenge. So long as all comments considered by an agency in its
rulemaking process are made public, the inspiration for a comment,
whether it is a formal Federal Register notice, or otherwise, is not
material. Indeed, we routinely receive comments outside of a notice
period and publish them on our website. For instance, unrelated to my
alternative rule posting, a comment in response to the database NPR was
received after the official deadline for submitting comments, and was
posted at CPSC.gov.
Ex parte communications that form the basis of agency action and
are not made a part of the public record can jeopardize a rule's
enforceability. But my request for feedback was public, and it was
always my intent that, like any late filed comment, responses would be
posted on CPSC's website. As it turns out, my alternative rule was not
considered by the majority commissioners, and the majority
commissioners did not review the letters I received in response to the
alternative rule. They thus did not form the basis for CPSC action and
have not been made public.
Question 19. Do you anticipate releasing more alternative rule
proposals in the future?
Answer. I promoted an alternative database rule, because I believe
the rule supported by the majority--and ultimately promulgated--is
irredeemably flawed. It is my hope and expectation that in the future,
the Commission will be better able to work toward compromises that will
obviate the need for the formulation of comprehensive alternative
rules. I am unwilling, however, to commit to never publicizing during
the rulemaking process policy views that differ from those of the
majority. Doing so helps the regulated community better understand the
Commission's policy choices.
Question 20. On numerous occasions, you have posted comments,
artwork, and pictures on your blog questioning legislative proposals by
Members of Congress and urging the public to reach out to Congress
about the CPSIA. Your comments are often questionable in tone and
tenor. Do you believe that a post with a picture of individuals
drowning next to a ship called the ``S.S. Waxman'' befits the office of
a Commissioner of the Consumer Product Safety Commission?
Answer. I believe that as a Commissioner and citizen, I have the
right and duty to articulate my public policy views in whatever manner
I deem most effective. And I am troubled by the tone of your question,
which appears designed to silence criticism of competing policy views.
I published the ``SS Waxman'' graphic to illustrate the point
explained in the accompanying text posted with it on my blog. This was
that Senator Waxman's proposed legislation to provide relief from the
burdensome costs of complying with the CPSIA was too narrowly drafted.
As graphically illustrated, it was designed to provide relief only to
the ATV industry, thrift stores, and very small manufacturers. The
costs associated with obtaining a ``functional purpose'' exemption
would have been prohibitively excessive for all but the largest
manufacturers. In addition, the exemption for low-volume manufacturers
had the potential to provide relief to only a small slice of the
manufacturing community.
These are legitimate criticisms of the proposed legislation that
contributed to the public debate. My role as a Commissioner in no way
limits my right to make such observations. Indeed, I would be negligent
not to contribute the perspective gained through my position to advance
the cause of CPSIA reform.
More generally, I believe that my blog serves an important purpose.
It provides a venue for the exchange of information and opinions
relevant to the fulfillment of the CPSC's mission. Commissioners often
receive letters from the regulated community expressing general
concerns about the CPSIA. In addition to citing the obvious financial
burden of compliance, manufacturers of children's products have
reported that the third-party testing requirement is likely to result
in reduced product variety. Most importantly, they explain that these
consequences are not born of any improvement in safety. These companies
are already making safe products; the CPSIA merely requires them to
prove it before continuing to sell the same products or introducing
product variation. But notwithstanding this input, we lack sufficient
specific examples and hard data to allow us to fully understand or to
quantify the problem. I therefore use my blog to solicit input from
both the regulated community and consumers, in order to better
understand the issues facing them, so that I can be a more effective
and responsive public servant.
My blog also allows me to communicate my views to consumers and
industry. When I was a Member of Congress, I was struck by the degree
to which the CPSC and other Executive Branch agencies appeared to
regulate without regard for its impact on the regulated community. I
often heard from businesses who were frustrated that their voice was
not being heard or considered in the regulatory process. My blog allows
me to reassure consumers and the businesses subject to CPSC regulation
that I understand the issues facing them and am working to find and
promote the regulatory flexibility necessary to ensure product safety
without unnecessarily stifling economic growth and consumer choice.
Question 21. Given your comments regarding the CPSIA, are you able
to implement the law in a fair and impartial manner, even with respect
to a provision of the law with which you disagree?
Answer. Agreement with a law is not a prerequisite to the
recognition of a statutory duty to carry it out. Indeed, if every
executive agency board and commission member was required as a
condition of office to agree with every policy choice reflected in all
of the statutes they administer, few, if any, would be left to serve. I
swore an oath to uphold the law and that is what I have always done and
will always do. I will also continue to help the Commission identify
flexibility in the law that can alleviate its devastating impact on
American business, and to focus on the CPSC's core mission of assessing
and reducing risks to consumer safety.
______
Response to Written Question Submitted by Hon. Kay Bailey Hutchison to
Hon. Anne M. Northup
Question. As you know, Section 103(a) of the CPSIA requires the
placement of tracking labels on all children's products and their
packaging, to the extent practicable. In its July 2009 Statement of
Policy regarding enforcement of this provision, CPSC staff indicated
that products sold through bulk vending machines would not need to be
individually marked, though the package or carton the products are
shipped in would. The Statement of Policy further noted that ``the
Conference Report [accompanying the CPSIA] recognized that marking each
individual product in such circumstances may not be practical. See H.R.
Rep. No 787, 110th Cong., 2d Sess. 67 (2008).'' However, the Commission
has not provided any explicit regulatory exclusion from Section 103(a)
for bulk vended products. Will the CPSC pursue enforcement actions
against bulk vendor suppliers, operators or retail establishments for
the absence of tracking labels on bulk vended products? Further, can
you please assure the Committee that the CPSC will maintain this
position should any state attorney general or other entity seek to
enforce Section 103(a) against bulk vended products?
Answer. As you know, the Commission's July 2009 Statement of Policy
on Tracking Labels states the following:
``If a product is sold through a bulk vending machine, the item
does not need to be individually marked but the package or
carton in which such products are shipped to the retailer
should be marked. The Conference Report recognized that marking
each individual product in such circumstances may not be
practical. See H.R. Rep. No. 787, 110th Cong., 2d Sess. 67
(2008).''
The Office of Compliance is following this policy as stated. Staff
will consider enforcement action if the package or carton in which such
products are shipped is not appropriately marked with the required
information.
A State Attorney General technically may still pursue companies for
violating any part of the CPSIA, in spite of enforcement guidance
published by the Commission. Providing absolute certainty for bulk
vendors or any other manufacturers in this regard would require an act
of Congress amending the CPSIA.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Hon. Anne M. Northup
Question 1. What can you tell us about the impact of the CPSIA on
small businesses? Even though the CPSIA did not require the Commission
to perform cost-benefit analyses of the rules it promulgates, many of
the concerns raised from small businesses and from Members of Congress
since the law passed have been based on the need for this very
information--specifically, the law's economic impact and unintended
consequences. Does the Commission have quantitative data to determine
what the impact has been, and what the impact will be in the future as
more requirements under the law come into effect?
Answer. The CPSIA has been devastating for many small businesses,
and it has increased costs for large businesses. Product Safety Letter
reported the following on a November 2009 public meeting with Mattel:
[a] lawyer for Mattel with the law firm Jones Day in Washington
D.C., said his client is finding the CPSIA difficult to
decipher. The law, he said, is unclear on what products the
company needs to test, how often it needs to test them, and how
many samples need to be tested. ``It's a lot of work. I don't
know how smaller companies do it,'' Biersteker told
Commissioner Robert Adler.
Despite Mattel's large team of in-house lawyers, he said, the
company needed to hire outside lawyers to help understand the
CPSIA. He said Mattel holds weekly conference calls on the
issue, discussing how to comply with the act while remaining
``cost competitive.'' \1\
---------------------------------------------------------------------------
\1\ ``Mattel Finds CPSIA to be a Challenge,'' Product Safety
Letter, November 9, 2009.
Small businesses have by far borne the greatest impacts of the law.
Attached, you will find some examples of businesses that have closed
their doors, reduced product lines, or abandoned the children's product
market due to the CPSIA. I submitted this information for the record
during my opening statement.
This Commission has received a considerable amount of anecdotal
evidence from companies and trade associations regarding the costs to
test at independent labs, as well as the cost of certification,
tracking labels, continued testing, record keeping, testing to product
standards, and the potential reputational and litigation costs due to
the upcoming public database. Our staff has compiled some sample
testing costs for toys and bikes, as part of a Regulatory Flexibility
Analysis for our Testing and Labeling Rule. For example, our staff
estimated that the cost to test a toy with a moderate number of colors
and interesting accessories could range between $3,712 and $7,348. The
cost to test a bike under our proposed testing rule could be between
$7,350 and $18,600.\2\ As a result of much of this anecdotal data and
the pressure on the Commission from industry, the Chairman elected to
create a full-time Small Business Ombudsman position at the agency--
something that I do not believe will address industry's concerns, but
nonetheless represents an acknowledgement of the pressures and concerns
we have felt from the small business community.
---------------------------------------------------------------------------
\2\ Regulatory Flexibility Analysis of the Commission's proposed
Testing rule, pg. 103-108. (Proposed Rule: Testing and Labeling
Pertaining to Product Certification--Draft Federal Register Notice--
April 1, 2010 (Part 1) http://www.cpsc.gov/library/foia/foia10/brief/
prodcert1.pdf.
---------------------------------------------------------------------------
However, you have asked whether we have quantitative data regarding
the costs of this law, and unfortunately, we do not. So far, we have
continued without fully studying or trying to reduce the impact of the
regulations we are promulgating. With the anecdotal data we have from
manufacturers and trade associations, and requests from Congress asking
the Commission to try to mitigate the law's unintended consequences,
both Commissioner Nord and myself have requested that we allocate
funding to do a full cost-benefit analysis of the rules we are
promulgating.
Given the disruption in the marketplace and the current state of
our economy, it has been disappointing that the majority of the
Commissioners have not agreed to focus more heavily on providing
Congress with quantitative data on the economic effects. Even
Representative Jo Ann Emerson, currently the Chairman of the House
Financial Services Appropriations Subcommittee, has requested that the
Commission initiate a cost-benefit analysis of the rules we promulgate
and quantify the effects on small businesses. Unfortunately, this
Commission has not produced any cost-benefit analyses to date.\3\
---------------------------------------------------------------------------
\3\ The CPSIA does not direct that rulemakings (even ``major
rules'') be promulgated under Section 9 of the CPSA, which requires a
cost-benefit analysis and would normally preclude the Commission from
promulgating rules whose benefits are not expected to bear a reasonable
relationship to their costs. However, the Commission is not prohibited
from doing such studies. So far, the only analysis that many
rulemakings have received has been a perfunctory, small business
regulatory flexibility analysis, as required by the Regulatory
Flexibility Act. The reg-flex analysis to accompany the Testing rule
(see footnote 2) provides hypothetical examples of testing costs, but
no quantitative data.
---------------------------------------------------------------------------
Furthermore, this anecdotal data does not reflect the full breadth
of the law's requirements, because the most onerous requirements have
yet to go into effect. The widest reaching mandate in the law--
requiring third-party testing of all children's products for lead
content--has been stayed since February of 2009. Currently, the
Commission is considering whether to extend the stay further. We have
not implemented the requirement to third-party test for lead,
phthalates, or to the toy standard--which alone may require a
considerable number of new tests and certifications for toymakers.\4\
---------------------------------------------------------------------------
\4\ Jill Chuckas testified for the Handmade Toy Alliance on the
second panel of the December 2, 2010 oversight hearing before the
Senate Commerce Subcommittee on Consumer Protection regarding the high
costs of testing to the toy standard (ASTM F963): http://commerce.
senate.gov/public/index.cfm?p=Hearings&ContentRecord_id=799a2c9d-f48a-
4284-add2-1a9099
961431&Statement_id=fb4d696e-c471-4bd1-be39-
d9fb7f34f56a&ContentType_id=14f995b9-dfa5
-407a-9d35-56cc7152a7ed&Group_id=b06c39af-e033-4cba-9221-
de668ca1978a&MonthDisplay=
12&YearDisplay=2010.
---------------------------------------------------------------------------
The categories of children's products impacted by this law seem
endless. But let me illustrate the cost versus benefit impact by
considering two examples: furniture and toys.
A company making furniture for children's rooms would need to: (1)
determine if its product is ``primarily intended'' for children 12 and
under--which they may not know for sure, and for which the Commission
has provided ambiguous guidance; (2) submit for testing to a third-
party lab every part of every piece of furniture that may be used on a
children's product, including nuts, bolts, and varnishes (one piece of
furniture may have fourteen different coats of finish); (3) certify
each component based on each of these tests; (4) add tracking labels to
each piece of children's furniture with a lot number that can trace
each component to its specific certification and test; (5) maintain
records for all tests and certifications for all parts of each
children's product; and (6) start this process all over again, if they
decide to change a color or varnish, or some other part of the
product--or if there is any other material change. One furniture
company reported to us that they have already spent $13 million on
tests, new systems and tracking processes, despite the fact that every
single component they were using on children's furniture already
complied with the current lead standard. So in this case, the cost was
$13 million and the benefit (i.e., improvement in safety) was zero.
All toys must be tested for lead and phthalates at third-party
labs, and all are subject to the toy standard, ASTM F963, which the
CPSIA made mandatory. As a result, a doll maker will be required to
send to a third-party lab to be tested for lead, phthalates and any
applicable rules under the toy standard, every component part,
including each paint color used on the eyes, each button, the hair, and
all of the accessories. Companies tell us that these requirements
stifle innovation and product variety by erecting significant cost
barriers to adding to dolls new accessories, new colors, or other
variations. For example, a large toy manufacturer told us that his
company has had to ``de-spec'' certain toys in order to afford the
law's new costs, which means removing accessories, moveable pieces or
other parts--or, in the manufacturer's words, ``taking the fun out of
toys.''
Also, the scope of the toy standard is quite broad, as seen in the
list of sections below. Not all toys must be tested to all parts of the
toy standard, but any one toy may be subject to numerous requirements,
and satisfying each requirement involves one or more separate tests:
\5\
---------------------------------------------------------------------------
\5\ http://www.astm.org/Standards/F963.htm.
------------------------------------------------------------------------
Title Section
------------------------------------------------------------------------
Scope 1
Referenced Documents 2
Terminology 3
Safety Requirements 4
Material Quality 4.1
Flammability 4.2
Toxicology 4.3
Electrical/Thermal Energy 4.4
Sound Producing Toys 4.5
Small Objects 4.6
Accessible Edges 4.7
Projections 4.8
Accessible Points 4.9
Wires or Rods 4.10
Nails and Fasteners 4.11
Packaging Film 4.12
Folding Mechanisms and Hinges 4.13
Cords and Elastics in Toys 4.14
Stability and Over-Load Requirements 4.15
Confined Spaces 4.16
Wheels, Tires, and Axles 4.17
Holes, Clearance, and Accessibility of Mechanisms 4.18
Simulated Protective Devices 4.19
Pacifiers 4.20
Projectile Toys 4.21
Teethers and Teething Toys 4.22
Rattles 4.23
Squeeze Toys 4.24
Battery-Operated Toys 4.25
Toys Intended to be Attached to a Crib or Playpen 4.26
Stuffed and Beanbag-Type Toys 4.27
Stroller and Carriage Toys 4.28
Art Materials 4.29
Toy Gun Marking 4.30
Balloons 4.31
Certain Toys with Spherical Ends 4.32
Marbles 4.33
Balls 4.34
Pompoms 4.35
Hemispheric-Shaped Objects 4.36
Yo Yo Elastic Tether Toys 4.37
Magnets 4.38
Jaw Entrapment in Handles and Steering Wheels 4.39
Safety Labeling Requirements 5
Instructional Literature 6
Producer's Markings 7
Test Methods 8
General 8.1
Testing for Hazardous Substance Content 8.2
Method to Dissolve Soluble Matter 8.3
Tests for Cleanliness and Preservative Effectiveness 8.4
Normal Use Testing 8.5
Abuse Testing 8.6
Impact Tests 8.7
Torque Tests for Removal of Components 8.8
Tension Test for Removal of Components 8.9
Compression Test 8.10
Tests for Tire Removal and Snap-in Wheel and Axle 8.11
Assembly Removal
Flexure Test 8.12
Test for Mouth-Actuated Toys 8.13
Projectiles 8.14
Test for Stability of Ride-On Toys 8.15
Stalled Motor Test for Battery-Operated Toys 8.17
Tests for Battery-Powered Ride-On Toys 8.18
Tests for Toys which Produce Noise 8.19
Dynamic Strength Test for Wheeled Ride-On Toys 8.20
Packaging Film Thickness 8.21
Test for Loops and Cords 8.22
Yo Yo Elastic Tether Toy Test Methods 8.23
Magnet Test Methods 8.24
Test Methods for Locking Mechanisms or Other Means 8.25
Identification 9
Age Grading Guidelines Annex A1
Packaging and Shipping Annex A2
Design Guidelines for Toys Attached to Cribs or Playpens Annex A3
Flammability Testing Procedure for Solids and Soft Toys Annex A4
Flammability Testing Procedure for Fabrics Annex A5
Rationale for 2007 Revisions Annex A6
Rationale for 2008 Revisions Annex A7
------------------------------------------------------------------------
Your question focuses on cost-benefit analyses. The law imposes
onerous requirements on small businesses that are hurting the economy,
without any evidence of a safety benefit. The CPSIA's lead content
standard, interim-ban of phthalates, and all third-party testing
requirements are not based on risk. The CPSC has the authority to
impose these types of requirements on any product or industry, if it
determines that a risk exists and these costs are necessary to reduce
or eliminate the risk.
This Commission never concluded that the components of children's
products containing either 300 ppm lead content or the interim-banned
phthalates pose a safety risk to children. And until directed to do so
by Congress in the CPSIA, the Commission saw no reason to make ASTM
F963 a federal standard, or to require all toy manufacturers to send
their products to third-party labs to test to this standard. Regarding
lead, 2007 data indicates that one percent of children tested
nationally showed a dangerous blood lead level as established by the
Centers for Disease Control (CDC). This number was down from nearly 8
percent in 1997,\6\ and is likely attributable to the elimination of
lead in gasoline, as well as lead paint education and abatement. The
CDC and the Environmental Protection Agency have issued guidance for
reducing children's exposure to lead, and its focus is not on
children's products. It has never been suggested that this new law,
with all of its costs, will lower the number of children reaching the
``tipping point'' of having an elevated blood lead level. For further
information on the risks associated with lead, I refer you to my answer
under the ``Lead Standard'' questions below.
---------------------------------------------------------------------------
\6\ http://www.cdc.gov/nceh/lead/data/national.htm.
---------------------------------------------------------------------------
Finally, there is a cost to consumers--not only in the loss of jobs
in a struggling economy, but the loss of choice. Many manufacturers can
afford the costly mandates of the law only by reducing their product
lines, leaving the children's product market, or ``de-specing'' their
toys--with no offsetting improvement in safety. As a mother of six
children, I remember Christmas shopping for new and different products
at affordable prices, and I expected a creative and vibrant market all
year-round. Parents expect the products they buy to be safe. But they
also expect them to be creative, and they are entitled to a marketplace
that encourages new ideas and the next ``must have'' toy of the season.
Instead, the costs of complying with the CPSIA will discourage
newcomers to the market and choice will be reduced, even as prices
increase. Some international toy makers have even decided to leave the
American market due to the costs imposed by the CPSIA, although they
are still offering their products to European consumers.\7\
---------------------------------------------------------------------------
\7\ One American importer of toys lists on its website the European
brands that it no longer offers for sale in the United States due to
the CPSIA: http://www.eurotoyshop.com/getEndangeredToys.asp.
---------------------------------------------------------------------------
Given our economic situation and the mandate from the American
people to shrink the size of government and reduce the numbers of
unnecessary regulations, I believe some of the CPSIA's requirements
could easily be scaled back. Job growth in the United States comes
through the growth of small businesses--and the CPSIA's regulations
directly hamper that growth.
Question 2. Does the Commission have any plans to assess the
negative impacts of the law, and to take necessary actions to alleviate
these burdens before they eliminate any more jobs?
Answer. To my knowledge, there are no plans to assess fully the
impact of the CPSIA or even the regulations we are scheduled to
promulgate.
Regarding action by the Commission to alleviate the law's
unnecessary burdens, I no longer believe that this is likely. Before my
Senate confirmation hearing, I was asked by both Democrat and
Republican Senators to ``find flexibility'' in the law wherever
possible, because the law had resulted in many unintended or unforeseen
consequences. Once confirmed as a Commissioner, I took this request
seriously.
However, the flexibility that I have found in the following rules
was rejected by a majority of Commissioners:
a. Absorption exclusion--I argued that the absorption exclusion
under Section 101 was actually intended to exclude certain
products from the lead limits (rather than be meaningless), and
therefore that the term ``any lead'' in that section may be
interpreted to mean a de minimis, harmless amount of lead in a
children's product. If the Commission had accepted my
interpretation, lead in the substrate of ATVs, bicycles, and
brass axles on toys would be legal--since lead in the substrate
of these products is not harmful (See answers under ``Lead
Standard'' below). Because the Commission rejected this
interpretation, it voted to reject the petition of a
manufacturer of toy cars, even though the car's brass fitting
contained less absorbable lead than the Food and Drug
Administration deems to be acceptable in a piece of candy.\8\
---------------------------------------------------------------------------
\8\ http://www.cpsc.gov/pr/northup110409.pdf.
b. Civil Penalties Factors--In the Commission's interpretive
rule on Civil Penalties Factors, I proposed a number of changes
to provide more certainty for the regulated community and to
ensure that, while the overall civil penalty ceiling was
raised, ``technical'' violations, such as incorrect paperwork,
would not be treated the same way as more serious violations,
such as failures to meet safety standards. This is one area of
the statute that was not too prescriptive, and a middle-ground
could have been reached.\9\ Unfortunately, a majority of the
commissioners did not want to provide that leeway.
---------------------------------------------------------------------------
\9\ http://www.cpsc.gov/pr/northup03102010.pdf.
c. Definition of Children's Product--The CPSIA applies to all
``children's products'', statutorily defined as products
``primarily intended for a child 12 years of age or younger.''
The comments that the Commission received following the
proposed rule made clear that the parameters we had tried to
set in the proposed definition were not helpful to most
manufacturers that produce children's products intended for the
10-12 or pre-teen age groups, or that straddle the age limit of
the statute. The entire reason for defining the term was to
provide guidance to these types of manufactures, who need
certainty to know how to determine if their products fall under
the purview of the CPSIA. After receiving these comments, the
Commission had a chance to put a much narrower ``fence'' around
the scope of covered products--or to at least define clearer
boundaries. Unfortunately, the Majority chose to leave the
definition vague whenever possible, which helps neither the
CPSC staff,\10\ nor the regulated community.\11\
---------------------------------------------------------------------------
\10\ Justin Pritchard, ``Feds dismiss need to recall lead drinking
glasses,''Associated Press. December 11, 2010. http://news.yahoo.com/s/
ap/20101211/ap_on_he_me/us_cadmium_lead
_glassware.
\11\ http://www.cpsc.gov/pr/northup09292010.pdf.
d. ``Children's product safety rules''--I offered a valid,
alternative interpretation of the statute with regard to the
requirement to impose third-party testing on all ``children's
product safety rules.'' A clear distinction can be made between
``children's product safety rules'' and more general ``consumer
product safety rules'' promulgated well before the passage of
the CPSIA. Unfortunately, because the Majority chose to view
all consumer product safety rules of the Commission as
potential ``children's product safety rules,'' it imposed an
unnecessary, additional layer of testing (at third-party labs)
on manufacturers of carpets and rugs, vinyl, clothing textiles
and mattresses--all of which are subject to consumer product
safety rules. The Commission did not have to take this step--
and there is no risk associated with these products that
necessitates new third-party testing requirements.\12\
---------------------------------------------------------------------------
\12\ http://www.cpsc.gov/pr/northup07122010.pdf.
e. Database--As described below in the questions on the
database, I proposed an alternative database rule that would
have responded to a number of manufacturer concerns and made
the database a more accurate source of information for
consumers. Unfortunately, the Commission's Majority passed a
rule that went well beyond the statute's requirements, allowing
``anyone'' to submit reports of harm--even advocacy groups,
attorneys and random bystanders that may not have firsthand
knowledge of the incident. In total, the Commission Majority's
database rule ensures that the database will be filled with
inaccurate reports of harm that will be useful only to advocacy
groups and trial attorneys, and will be time consuming and
costly to manufacturers--particularly small businesses. Due to
the inaccuracy of reports on the database, it will be a waste
of taxpayer resources and will not be useful to the consumers
it was intended to help.
Finally, regarding the upcoming rule on Testing and Labeling
Pertaining to Product Certification (``15 month rule''), it is
important to keep in mind that the statute does not permit the agency
to exempt any manufacturer from the law's testing requirements.
Exemption from the testing requirement is the main change sought by
small manufacturers. Because we cannot exempt companies from the
initial third-party test that every manufacturer must do to every
component of their product--even if the product poses no risk--I hope
that the Commission will at least alleviate the burden through the
``continued testing'' requirements of the statute and the testing
protocols, where we do have some flexibility. However, removing the
costly requirements of third-party testing and certification will
require an act of Congress amending the CPSIA.
Question 3. Chairman Tenenbaum mentioned the new Small Business
Ombudsman. Do you believe that this Ombudsman will alleviate the
expressed concerns of small businesses?
Answer. Although I appreciate the underlying objective of
increasing Commission outreach to stakeholders such as small
businesses, I do not believe that creating a brand new office for this
purpose will address such stakeholders' ongoing frustrations with
Commission actions, add value to our core mission of product safety, or
represent a wise use of taxpayer dollars.
In particular, I disagree with the implication that the new
outreach to small businesses will help those who are struggling with
the CPSIA. Small businesses are not clamoring simply for more
information from the Commission about how to comply with this law--they
are asking for relief from this law because it is killing them. Also,
as the witnesses in the Second Panel of the December 2 hearing
indicated, while the Commission has been open to listening to their
concerns, this openness has not translated into more helpful
rulemaking.
The solution for small businesses is not more government; it is
repealing the portions of the CPSIA that impose tremendous costs
without increasing safety. Furthermore, no matter how successful this
new office may be, small businesses will still have to hire their own
lawyers to fully grasp their particular obligations under the complex,
far-reaching new regulations being promulgated by the Commission. In
that respect, creating this office is like offering a Band-Aid
TM for a problem that requires major surgery.
If we really wanted to help small businesses, this Commission would
do everything in its power to mitigate the unintended consequences of
the CPSIA through its rulemaking--something I have continued to argue
for with limited success. It would add clarity and factor risk into our
policies as much as the statute allows. Even better, we would
unanimously approach Congress and ask that the law be reformed or
repealed in a meaningful way so that only risky products are impacted--
since the CPSIA has clearly taken us away from our core mission of
product safety. Anything short of these steps will not help the small
business community or a floundering economy.
Finally, I am concerned that creating a new office to govern the
``education and outreach'' responsibilities to industry stakeholders
may complicate or even overtake the outreach we already perform under
other offices such as our Office of Compliance. Right now, if a small
company needs to know if its product falls under the purview of a
particular regulation, it can call the Office of Compliance for advice.
It is a key function of that office to assess products every day in the
course of its enforcement responsibilities. By creating a new office in
charge of ``outreach'' duties, we create unnecessary complications and
risks in our communications with the public, including: (1) having two
offices that could answer the same question differently; and/or (2)
moving the agency away from its pure enforcement responsibilities and
instead providing something akin to product pre-approval services. The
latter course could potentially turn a relatively small CPSC into a
behemoth more like the Food and Drug Administration. It is depressing
to think it is even remotely possible we could have a government office
dedicated to ``pre-approving'' all consumer products before they go to
market.
Question 4. The Commission's stay on third-party testing for lead
content is scheduled to lift in February. Is the Commission prepared to
move forward with lifting this stay of enforcement? Do you believe that
businesses have been given the information necessary to comply with
this requirement? Have they been given enough time to incorporate
necessary changes to comply with the requirement by the February
deadline?
Answer. On May 20, 2010, the Commission issued Notices of Proposed
Rulemaking on (1) Testing and Labeling Pertaining to Product
Certification (75 FR 28366), and (2) Conditions and Requirements for
Testing Component Parts of Consumer Products (75 FR 28208). These
proposed rules--referred to by the CPSC as the ``15-month rule'' and
the ``component testing rule''--address, inter alia, the protocols that
will govern third-party testing of children's products, including
random sampling methods and the availability of component parts testing
as a means to encourage compliance further up the supply chain and to
provide manufacturers with more options to come into compliance. The
Commission is just beginning consideration of the final versions of
these rules.
The delay in finalizing these rules is of concern, because the
Commission's previous stays on lead content testing were implemented
principally based on the recognition that manufacturers would be unable
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a
reasonable period of time. If the stay is lifted prematurely, many
small manufacturers, in particular, will be unable to afford to comply
independently with the third-party testing requirement, and will stop
making certain products or go out of business entirely.
This link between finalization of the 15-month and component
testing rules and the lifting of the stay was recognized by
Commissioners of both parties. As explained in the Commission's
February 2009 Federal Register notice, the stay on third-party testing
of children's products for lead content was first implemented in
response to ``confusion as to . . . whether testing to demonstrate
compliance must be conducted on the final product rather than on its
parts prior to assembly or manufacture . . . and what sort of
certificate must be issued and by whom.'' 74 FR 6396 (February 9,
2009). The stay was thus intended to provide the Commission time to
promulgate new rules addressing, inter alia, ``production testing of
children's products subject to third-party testing and certification .
. . including random sampling protocols,'' so that ``the right tests
are run on the right products without unnecessary and expensive
testing.''
During the December 2009 public briefings to consider whether to
lift the stay, CPSC career staff reported that the apparel component
manufacturing sector was reluctant to initiate component testing while
the breadth of the requirement remains unsettled, and that smaller
manufacturers were unable to obtain component parts testing because
suppliers were reluctant to undertake the tests until the final rules
for component testing and certification are in place. In the face of
this evidence, Chairman Tenenbaum acknowledged that she ``would never
agree to lift the stay'' until the 15-month and component parts rules
are in place. She voted to extend the stay ``in order to allow
component testing adequate time to develop and to give our stakeholders
adequate notice of new requirements.'' Commissioner Moore also
recognized the need to ``give the small manufacturers, who often buy
their supplies in small amounts at retail outlets rather than through
bulk purchases from wholesale distributors, sufficient time to find
sources of lead compliant materials.'' During the December 16, 2009
public briefing on the stay, Commissioner Adler also conceded that the
15-month rule should be in effect before the stay is lifted. Although
he retracted that view the following day in his written statement
explaining his vote to extend the stay, Commissioner Adler predicated
his changed position on his belief that ``[n]ow that companies know
they can rely on component suppliers for compliance with the law, they
should be able to plan production and control costs in a reasonable
manner.''
Consistent with the views of all five Commissioners, the Commission
``determined that testing of children's products for lead content by a
recognized third-party testing laboratory and certification based upon
that testing should begin on the products manufactured after February
10, 2011 to allow component testing to form the basis for
certifications for lead content . . .'' 74 FR 68588 (December 28,
2009).
A year has now passed, but in the absence of final 15-month and
component testing rules, component testing still cannot form the basis
for certifications for lead content. Rather, small manufacturers
continue to report to the CPSC that component suppliers are refusing to
test altogether or are refusing to supply certifications, and that
certifications are unavailable from the retail outlets where many small
manufacturers obtain component parts. Under these circumstances, a
continuation of the stay would be consistent with the stated views of
all five Commissioners. Commissioners Northup and Nord, and Chairman
Tenenbaum all expressly linked the lifting of the stay to at least the
finalization of the 15-month and component testing rules. Commissioner
Moore supported extending the stay to give small manufacturers
``sufficient time to find sources of lead compliant materials'', and
Commissioner Adler predicated his willingness to delink finalization of
the 15-month rule from the stay on his expectation that small
manufacturers would be able to ``rely on component suppliers for
compliance with the law.'' Given that component part suppliers remain
unwilling or unable to provide component part certifications in the
absence of final rules, there is no factual predicate for any of the
Commissioners to support lifting the stay.
It is also important to emphasize that publication of the proposed
rules has not provided the regulated community with the any certainty
regarding the content of the final rules. Indeed, the CPSC's record of
rulemaking over the past year demonstrates that a final rule can change
materially from its proposed version and can impose more onerous
requirements. It is therefore not surprising that component parts
suppliers remain unwilling to incur the expense of providing
certifications under a proposed regime that may change substantially
before it is finalized.
I therefore intend once again to urge the Commission to vote to
continue the stay of enforcement on third-party testing and
certification of lead content in children's products until one year
after publication of final 15-month and component testing rules.
Considering the lead time necessary for manufacturers between design
and production, allowing one year after the two testing rules are
finalized is necessary for manufacturers to benefit from the rule.
Doing so would comport with the expectation created among regulated
industries through the Commissioners' and the Commission's public
statements that the stay would not earlier be lifted.
Moreover, lifting the stay before the final 15-month and component
testing rules are published would place manufacturers in the untenable
position of trying to comply with the proposed rule, while anticipating
a potentially much different final rule. This would provide
manufacturers with insufficient time within which to modify their
compliance management processes once the final rule was issued, and
would cause needless disruption to business planning, supply chain
management, test lab contracting, and other aspects of product
manufacturing, due to the rapidly changing requirements.
Finally, a reasonable time after publication of the final rules is
necessary in order to afford the regulated community time to come into
compliance. Otherwise, it may be too late for many small manufacturers
to benefit from the component testing rule. In this regard, it is
essential that the Commission retain in the final component parts rule
the proposed provision, 1109.5(g)(1), affording component parts
certifications ``currency'' to allow them to be reasonably relied upon
by downstream manufacturers without the need for duplicative testing.
Question 4a. Do you believe that the health of children has been at
greater risk because of this stay of the third-party testing
requirements?
Answer. No. Neither the lead standard(s) of the CPSIA nor the
third-party testing requirements of the law are based on risk, so the
absence of either of these requirements also does not create or denote
a risk. I refer you to my answer under the ``Lead Standard'' questions
for more information on the risks associated with lead.
Question 5. Is the Commission going to consider extending the stay
in order to ensure that the affected businesses are adequately prepared
and that there are enough resources to prevent a negative impact on the
businesses affected? If so, when do you plan on doing so?
Answer. Because the Commission has yet to finalize the rules we
intended to publish before passage of the original stay in February
2009, which provide the ``instructions'' regarding what manufacturers
need to test, how often, and other details, I would vote to extend this
stay to a future date, pending the finalization of these rules.
However, the decision rests entirely with the Majority, since it would
take three votes for the date of lifting of the stay to be changed and
for such a change to be conditioned on the completion of the
Commission's testing rules.
Question 6. The CPSIA draws a clear distinction between general
product safety rules and children's product safety rules. Yet the
Commission has chosen to apply the requirement of third-party testing
to all children's products under the general product flammability
rules. Can you tell us why this decision was made?
Answer. The Commission, by a 3-2 vote along party lines, decided to
ignore the distinction between children's product safety rules and
consumer product safety rules, and to require third-party testing of
children's products to all the rules. Thus, general ``consumer product
safety rules,'' such as our flammability regulations for carpets and
rugs, are now also ``children's product safety rules'' under the CPSIA.
Manufacturers of carpets and rugs (as well as vinyl, wearing apparel
and mattresses) already must adhere to a strict testing protocol for
their products. This decision means that whenever they create a
children's version of a product, they will have to do additional third-
party tests to certify the agency's flammability standards. I opposed
this decision, because these new third-party testing requirements were
never part of the original standards promulgated by the Commission, and
will not address a known risk. In fact, this was another area of the
statute that allowed the Commission flexibility to prevent unnecessary
new testing requirements and costs in a struggling economy. The
Commission easily could have distinguished between ``children's product
safety rules'' and more general consumer product rules of the
Commission, and thereby avoided additional third-party testing
requirements, where they are neither required by the statute nor risk-
based.
Of all of the votes we have taken at the Commission, I had hoped
that this would be an easy one. After all, it is unlikely that Members
of Congress were anticipating adding third-party testing requirements
to the 2007 mattress standard, the 1970 standard for carpets and rugs,
and others when the CPSIA was passed. Unfortunately, I believe it will
now take an act of Congress to reverse these requirements and to
prevent future ``consumer product safety rules'' from being caught up
in the CPSIA's third-party testing regime.
I would also note that due to the Commission's vague ``children's
product'' definition, it is likely to be difficult for manufacturers to
distinguish between a ``children's rug'' or ``children's carpet'' and a
general-use carpet or rug. This difficult distinction also illustrates
the absurdity of requiring carpets and rugs with children's decorations
to be sent to a third-party, CPSC-accredited lab for testing (beyond
the normal testing requirements of the standard), when the carpet and
rugs in the hallway or in the living room of a home, where children
also play, are no less safe without these added third-party testing
requirements.
Question 7. The flammability standards have been in place with
testing protocols for adult and children's products for some time. Yet
the Commission has chosen to apply this additional third-party testing
requirement to children's products under those rules. Is there any
evidence that the products affected by this ruling, such as carpets or
vinyl plastic, were unsafe under the prior testing regime and needed to
be subjected to third party tests to protect children?
Answer. No. And the Commission did not even consider whether these
products presented a risk when it decided to require additional third-
party testing to the flammability standards.
Question 7a. Is there any evidence that children's versions of rugs
or other affected products are in more danger than adult versions of
those products to necessitate this additional testing standard?
Answer. No. The original flammability standard did not contemplate
a difference between adult and child rugs, and the Commission does not
even collect flammability data distinguishing between adult and child
carpets and rugs.
Question 7b. Isn't an adult version of an affected product more
likely to be subjected to a cigarette or some other igniting source?
Answer. The Commission does not collect data on this question.
However, I believe parents who smoke are more likely to do so in common
areas of the house than in their child's room. I would also presume
that candles are more likely to be found in common rooms or adult rooms
than in a child's bedroom or playroom. Moreover, the kitchen is
traditionally the room with the greatest risk of fire, and is an
unlikely location for a children's rug or other product. So it hardly
makes sense to require more rigorous and costly testing for a child's
room.
As I said in my opening statement with regard to lead, children do
not live cooped up inside of their rooms surrounded only by
``children's products.'' Children live throughout the house, run around
outside, and are exposed to lead in their everyday environment. In
fact, they are surrounded by it: in the car (adult seat belts, window
cranks) and in their homes (pots, pans, furniture knobs, door handles,
appliances, lamps). These products do not threaten a child's health
because the lead in them is not absorbable. Hence, it makes little
sense that the CPSIA bans materials with higher than 300 ppm lead
content in such products as children's furniture, children's rugs,
children's lamps, etc.--while children are likely to spend more time
outside their room handling the TV remote (an adult product), playing
on their parents' furniture, or playing with just about anything else.
The same can be said for the flammability of ``adult'' vs.
``children's'' carpets and rugs. The fact is, these additional testing
requirements (or lead content requirements) have nothing to do with
improving safety.
Question 8. At the end of November, the Commission passed the final
implementing rule for the public database required under the CPSIA.
While the law specified who can submit reports of harm, the
Commission's rule expands this list by defining consumers and public
safety entities as essentially anyone who wants to submit a report--
even if the submitter does not know who was harmed, the particular
product involved, and did not see the incident occur. Therefore, as
opposed to the list created by the statute, submitters are no longer
limited to people who could have first-hand knowledge of the incident.
What are your concerns with this expanded list of submitters?
Answer. The statute provides a list of submitters to the database,
all of which are groups likely to have first-hand knowledge of the
incident. Day care centers at which an incident of harm has occurred,
for example, should be permitted to report to the database.
Additionally, consumers of the product in question, health care
professionals who treat the injured person, or emergency first
responders at the scene should all be permitted to submit reports of
harm to the database--and the statute requires all of these categories
of submitters.
However, as I explained in my November 24, 2010 and April 22, 2010
statements, the Majority's interpretation of the statute is flawed
because it has greatly expanded the list of allowable submitters to the
database. This expansion goes against the statutory purpose that the
database be ``useful'' for consumers, and does not comport with
Congress's discussion on the purpose of the law prior to its
passage.\13\ Indeed, the Majority has expanded the list of submitters
to such an extent that anyone can submit reports of harm--thereby
rendering meaningless the statutory language listing permitted
submitters.
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\13\ On the Senate floor, during consideration of the CPSIA on
March 5, 2008, Senator Pryor stated: ``We have tried to find something
that is balanced, that provides information, but also has some
filtering so we make sure erroneous information is not disseminated.
But the goal of this provision is that the public has the right to know
when products are dangerous.''
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It is important for individuals with first-hand knowledge of
incidents of harm involving consumer products to be able to submit
reports to the new database. However, groups or individuals with no
direct knowledge of the incident, did not see it happen or do not even
know the person that was harmed, should not be permitted or encouraged
to submit incident reports to the database. There are several reasons
why first-hand knowledge is essential, but the primary reason is
accuracy. A database full of inaccurate reports from individuals who
have second or third-hand information is not remotely helpful to
consumers using the database to determine which consumer product they
should purchase.
Advocacy groups, attorneys and other second and third person
reporters added by the Majority's database rule are not listed in the
law as allowable submitters to the database, nor should they be. If
they are not themselves consumers of the product that caused the
incident of harm, or otherwise a first-hand witness (per the list of
submitters in the statute), advocacy groups have no business inputting
to a public database information that is intended to be a resource for
consumers. Not only is adding advocacy groups as submitters contrary to
the statute, but it invites dishonest, agenda-driven use of the
database--diluting its usefulness for consumers. Advocacy groups, trial
lawyers, other nongovernmental organizations and trade associations,
all of which the Majority has added as allowable submitters, must serve
their own agendas and lack an incentive to prioritize accuracy in their
reports of harm. By inviting such groups to input reports of harm (none
of which have to be verified for accuracy), this Commission has all but
guaranteed that the database will be a tool for policy agendas,
lawsuits and trade complaints rather than a place where parents can
search for useful information about product safety. Why even have a
taxpayer-funded database (at a price tag of $29 million, so far) that
will be no more useful than an ``Amazon.com'' or any of the other
hundreds of websites where anyone can submit comments on a product?
There are many advocacy groups and associations that serve a role
in public policy, but may not have the incentive or ability to provide
specific and accurate product identification information to the
Commission's database. For example, the National Fire Protection
Association (NFPA) supports government-mandated sprinklers in new
homes, a controversial policy. One cause of house fires is the use of
cigarette lighters, which are consumer products. Thus, the NFPA has a
strong incentive to add all reports of house fires caused by lighters
to the Commission's public database. The more incidents in our
database, the better case they can make that new fire prevention
technology--which their members sell--should be mandated in homes.
But what incentive does NFPA have to ensure that it correctly
identifies the brand of lighter in an incident report: A lighter may
appear to be the branded product of a particular manufacturer, but
instead be a cheap counterfeit. The NFPA is interested solely in
reporting house fire incidents; the particular cause is not relevant to
its goal of promoting sprinklers. Meanwhile, the company identified in
the report as the manufacturer of the cigarette lighter must defend
countless inaccurate (or at least unverifiable) claims about its
product. Such inaccurate and unverifiable information is of no value to
a consumer seeking information on the safest type of lighter.
The problems caused by the overly expansive list of submitters in
the Majority's database rule could have been reduced if reports of harm
had to be verified, or simply verifiable, before being published.
Unfortunately, the Majority also rejected the proposals contained in my
alternative database rule that would have made these reports more
verifiable.
One of my unadopted proposals would have required reporters of harm
to include the victim's identity and contact information with a report
(to be held confidential, as is current practice). Commission staff
could then at least follow up with the victim in response to a
manufacturer's claim of a material inaccuracy, in order to verify the
report.
In my alternative rule, I also included such additional required
fields as the approximate date of purchase of the product and whether
the product was purchased ``new'' or ``used.'' This information would
have allowed consumers using the database to gauge the age of the
products and know whether the product in question was the one currently
in stores or is similar to the model they own. These proposals were not
adopted by the Majority.
Finally, while submitters to the database must check a ``self-
verification'' box to assert accuracy, this will do little to
discourage or prevent inaccurate reports of harm. The final database
rule merely asks the submitter of a report of harm to check a box
stating that the report they are submitting is accurate ``to the best
of their knowledge.'' The ``best'' knowledge of someone with no first-
hand knowledge is of little value. An individual or group without
first-hand knowledge will likely not have the full story of what
happened--including the exact type of product, the recent history of
the product, or even the precise cause of the incident.
Question 9. The intention of the database is to provide useful
information to consumers. A substitute amendment included provisions to
improve the accuracy of the data submitted by requiring the inclusion
of additional information. These suggestions were rejected by a
majority vote of the Commissioners. How would the substitute have
improved the database for consumers?
Answer. In addition to limiting submitters to only those enumerated
in the statute, and adding required fields to improve the reliability
of reports, my alternative proposal also acknowledged the Commission's
discretion to withhold reports of harm from publication where a valid
claim of material inaccuracy is pending.
In the latter regard, I supported a valid and more useful
interpretation of the statutory 10-day time frame for evaluating claims
of material inaccuracy. Under my interpretation, the brief 10-day
window presents a strong incentive for manufacturers to submit any
claims of material inaccuracy quickly, and for the information to go up
on the database as soon as possible--that is, following the 10th day as
long as there has been no claim of inaccuracy. However, if a
manufacturer submits by the 10th day an adequately supported claim of
inaccuracy, the Commission can and should withhold that incident until
the claim is resolved. Under this interpretation, data is not limited
in the database but better verified before it is posted. I refer you to
my November 24, 2010 statement for further details.
Notably, the Commission's Notice of Proposed Rulemaking on the
database originally included an interpretation similar to mine. For
example, 1102.26 of the NPR states: ``If a request for determination
of materially inaccurate information is submitted prior to publication
in the database, the Commission may withhold a report of harm from
publication in the Database until it makes a determination.'' \14\ 75
FR 29180. That language could not have been included in the NPR without
a legal opinion supporting the permissibility of the policy choice.
That the agency apparently believed at one time that this approach is
legally permissible reflects, at a minimum, statutory ambiguity
regarding the point.
---------------------------------------------------------------------------
\14\ The preamble of the NPR contains analogous language: ``If a
request for determination of materially inaccurate information is
submitted prior to publication in the database, the Commission may
withhold a report of harm from publication in the database until it
makes a determination.'' 75 FR 99, at 29161. And this: ``We propose
that in cases where a claim of materially inaccurate or confidential
information is under review, the Commission, in its discretion, may
withhold a report of harm in part or in full until such a determination
is made.'' 75 FR 99, at 29170 (Response to summary 26)(emphasis added).
---------------------------------------------------------------------------
Not surprisingly given the NPR, many if not most of the commenters
assumed that incidents would not go into the Database pending the
determination of a material inaccuracy claim. Although at least one
commenter expressed the policy view that reports of harm should go up
on the 10th day even when such claims are unresolved, no one--not even
consumer groups--argued that the statute legally prohibits the agency
from withholding reports from publication for the duration of its
investigation. To the contrary, several commenters proposed a more
detailed protocol for addressing claims of material inaccuracy, based
on their understanding that reports would be withheld from publication
while under review for accuracy. And yet the Majority's final rule now
forbids delaying publication in those circumstances, and fails to
establish any specific protocol for handling requests for
determinations.
Finally, it is helpful to remember that the Commission obtains
information in addition to that which will be submitted to the public
database, such as emergency room data, death certificates, etc. It is
acceptable (and probably preferable) for the Commission to continue to
absorb as much information on consumer products as it can--and this
includes reports from advocacy groups, trial lawyers and trade
associations. However, it is not necessary nor is it statutorily
required that such information, particularly that which is neither
accurate nor verifiable, also be posted on the public database. This is
one area where my position on the database differs starkly from that of
the Majority. I believe inaccurate information in a public database
(with the official backing of ``.gov'') is not safety information; on
the contrary, it is simply misinformation--and a waste of taxpayer
resources.
Question 10. What are your concerns about the accuracy and
reliability of the information that will be provided?
Answer. As stated in the previous questions, I have many concerns
with the accuracy and reliability of the new public database, and I
proposed an alternative database rule to try and address these central
concerns.
Because the Majority's database rule all but guarantees that the
database will be flooded with inaccurate reports of harm, it will be
less useful for Commission staff in determining hazard patterns than
are the current, internal databases we have today. Frankly, this is one
of my greatest fears--that the Commission staff will be overwhelmed by
inaccurate reports (or the reports that get picked up by the media) and
unable to use their expertise to search objectively for genuine
hazards. As the database is swamped with misleading or inaccurate
reports, they will drown out the accurate ones.
There are a number of ways in which the new database could be
unhelpful or misleading for consumers. Consider this scenario: Company
A sells five million high chairs and Company B sells 5,000 high chairs.
Company A has six incident reports on the database and the other has
one incident report (all of which are unverifiable). Thus, a consumer
could falsely conclude that Company A's high chair is less safe, even
though simply due to the number of units it sold, it is more likely
that people own that high chair--and more likely that reports on that
high chair would make it into our database. Or, it is also possible
that some of the reports about Company A's high chair actually
pertained to older models of the high chair that are no longer for
sale, which means the information may be entirely irrelevant for people
using the database to look for safety information about current
products on the market.
As a consumer and a grandmother, I do virtually all of my research
on baby products (e.g., regarding safety, quality and price) at the
point of sale--usually on the website from which I am ordering, such as
an ``Amazon.com.'' The hundreds of comments on these websites cover a
broad array of useful information. But for most products, I would not
slow down my research to look onto a government website for additional,
equally unverifiable, information--particularly when I can see safety
information right alongside all of the other information I am looking
for (wear and tear, usefulness, and warranty information) at the point
of sale or the retailer's website. All of these factors are useful to a
purchaser.
Trial lawyers or other groups with self-serving motives will use
the Commission's database to look for potential trends and patterns of
hazards.. Under the Majority's database rule, these same groups may
also submit to the database false and unverifiable reports to fuel a
lawsuit. It is no coincidence that these groups are strongly in favor
of this public database and of the Majority's interpretation of the
statute, which expressly allows them to submit reports of harm.
Question 11. A central concern with the CPSIA remains that it takes
away the Commission's ability to assess the risk presented by a
product. The law focuses on the content of lead in a product, not the
risk of negative health effects from even limited exposure to that
lead. Do you believe that there is a risk posed to the health of
children from exposure to many of the products that are affected by the
lead limits in the law, such as ATVs, books, pens, school desks,
furniture, or furniture hardware (i.e., the nuts and bolts that hold
the furniture together)?
Answer. No.
Regarding the risks associated with lead, I included much of this
information in my opening statement. I believe it is important to
clarify the risks associated with lead. Some advocates say that ``there
is no safe level of lead,'' implying that none of us can ever spend
enough time and money to reduce or eliminate lead everywhere. But there
is, in fact, an unsafe level of lead that has been established by our
leading scientific agencies, the National Institutes of Health, the
Centers for Disease Control and the Environmental Protection Agency.
Only lead that is ``absorbable'' at greater than minimal levels is
dangerous, especially to children ages five and under.
In order to determine risk, it is necessary to make a distinction
between lead that is absorbable and lead that is not absorbable in
meaningful amounts. In many other laws relating to absorbable lead
levels, standards exist to allow for such minimal absorption. For
example, the Food and Drug Administration allows for 0.1 microgram of
lead in a one-gram piece of candy.\15\ The Safe Drinking Water Act
declares ``zero lead'' to be the objective for the amount of lead in
water, but pipes carrying the water are permitted to be 80,000 parts
per million (8 percent) lead--allowing for negligible, trace amounts to
exist in the water we drink.\16\ California Proposition 65 \17\ as well
as the European Union \18\ allow for a negligible amount of absorbable
(or soluble) lead in children's products. People often are surprised to
learn that all children are born with a certain blood lead level,
depending on the blood lead level of the mother. Some additional amount
of lead (roughly one microgram per kilogram of body weight) \19\ is
then taken into the body every day through the food we eat and the air
we breathe.
---------------------------------------------------------------------------
\15\ ``Supporting Document for Recommended Maximum Level for Lead
in Candy Likely To Be Consumed Frequently by Small Children,'' Food and
Drug Administration, November 2006: http://www.fda.gov/Food/FoodSafety/
FoodContaminantsAdulteration/Metals/Lead/ucm17205
0.htm.
\16\ Environmental Protection Agency, Safe Water Drinking Act, Fact
Sheets: http://www.epa
.gov/safewater/sdwa/basicinformation.html.
\17\ California Office of Environmental Health Hazard Assessment
(OEHHA), Proposition 65--http://www.oehha.org/prop65.html, Children's
Health at OEHHA--http://oehha.ca.gov/public
_info/public/kids/schools041707.html.
\18\ European Committee for Standardization (CEN), EN 71-3 Safety
of Toys--Part 3: Migration of certain elements. CEN, Brussels, Belgium,
1994: http://ec.europa.eu/enterprise/policies/european-standards/
documents/harmonised-standards-legislation/list-references/toys/.
\19\ Centers for Disease Control, Agency for Toxic Substances and
Disease Registry, Toxic Substances Portal: Lead: http://
www.atsdr.cdc.gov/PHS/PHS.asp?id=92&tid=22.
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So what lead is actually risky? Lead is risky when it is absorbable
into the bloodstream at greater than minimal levels. The experts at the
CDC and NIH have found that lead paint in old houses and lead in dirt
\20\ near old gas stations are the main source of environmental lead
presenting a danger to small children (http://www.cdc.gov/nceh/lead/).
In other words, the risk of absorbability from lead paint in an old
home that becomes chipped and may be inhaled or ingested is quite high.
---------------------------------------------------------------------------
\20\ Although lead in dirt is a proven hazard for small children
nearby to old gas stations that used leaded gasoline or certain
pesticides, it is notable that the Environmental Protection Agency
standard for lead in soil is 400 ppm. http://www.epa.gov/lead/ This
standard for safety is less strict than the current lead content
standard provided in the CPSIA for children's products, which is 300
ppm and scheduled to fall to 100 ppm in August of 2011.
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In the same vein, a heavily lead-laden metal charm or piece of
jewelry that can be swallowed presents a danger, because such an item
could get caught in the stomach and absorbed. However, none of these
agencies, including the CPSC, has ever found that a child touching a
brass musical instrument or a vinyl lunchbox, or riding a bicycle,
could ever rub off enough lead, day after day, year after year, to
affect his or her health.
Consider the CPSIA's lead requirements in comparison to these known
lead hazards in the environment today. The CPSIA's arbitrary lead
content limits (currently 300 ppm, and moving this August to 100 ppm or
the lowest achievable level between 100 ppm and 300 ppm) remove the
ability of the Commission to assess risk, or the absorbability that
exists for a particular product. Thus, the law's lead content levels
dictate that the metal handle bars of a bike that pose no health risk
to a child be outlawed right alongside lead paint or a solid-lead charm
on a piece of children's jewelry that actually is dangerous.
The CPSIA has led to a ban on children's books published before
1985, because the ink in them is likely to contain lead above the
allowable level. Some at the Commission and many Members of Congress
have expressed dismay that books have been affected, because children
are not likely to eat the pages of old books or ingest more than
miniscule amounts of lead after touching their pages. Likewise, youth
ATVs and bicycles are outlawed or must be reengineered even though the
lead that is in the hood, handlebars, or hubcaps will not become
ingested and absorbed at any discernable level (from hand to mouth
touching where miniscule amounts of lead may rub off--not from actually
eating the hood, handlebars or hubcaps). Other everyday products such
as school lockers, the hinges on a child's dresser, or jackets with
zippers and buttons are outlawed if they contain tiny levels of lead in
the substrate. Even ball point pens are outlawed if they have a toy or
game attached to them and are marketed to children, due to the brass
found on the tip.
Finally, as mentioned earlier, children do not live cooped up
inside of their rooms surrounded only by ``children's products.''
Children live throughout the house, run around outside, and play with
adult products such as pots, pans, furniture knobs, door handles,
appliances and TV remotes. For example, the new costs associated with
this law will affect a young child's lamp (usually turned off and on by
the parent) but not the lamp in the den or the living room that a child
is as likely to turn off and on. These products do not threaten a
child's health due to their lead content, because the lead in them is
not absorbable. This further illustrates the absurdity of the CPSIA's
requiring the unnecessary reengineering of children's products with
lead, while children are just as likely (if not, more likely) to play
with everything else in the house.
Question 12. The idea of a ``functional purpose exemption'' was
discussed at the hearing. Can you please explain in greater detail your
objections to such an idea?
Answer. The primary proposal put forth by the Commission's Majority
and by Ranking Member Henry Waxman to amend the CPSIA has been to
create a new ``exclusion'' from the lead limits in the law for products
that need lead in the substrate to serve a ``functional purpose.'' This
exemption is too complicated and costly, and would result in subjective
exemptions and be of little use to the smaller manufacturers that need
it the most. Under the proposed exemption, a manufacturer would need to
petition for a product-by-product (or component by component)
determination by the Commission prior to selling their product.
This exemption does not provide the broad exclusion flexibility
that the CPSC unanimously sought in its January 2010 Report to
Congress, and presents endless uncertainties and a number of
unnecessary elements of proof. For example, one criterion for the
exclusion was that the product ``will have no measurable adverse effect
on public health or safety.'' But if a product, component part, or
material will have no measurable adverse effect on health or safety,
then what reason does a government safety agency have to regulate it?
Why must a company also then show that the item ``requires the
inclusion of lead''? Why show that it is ``not practicable or
technologically feasible to manufacture'' with lower amounts of lead
when the current level already poses no safety risk? Why demonstrate
that ``making the lead inaccessible'' is not practicable or
technologically feasible? Isn't the mere fact that an item will pose no
lead risk to children sufficient to allow its use?
Requiring such costly and complicated petitions would result in the
continued prohibition of many products that pose no risk to children.
The goal of the exemption to reduce the burdens imposed by the CPSIA's
non-risk based proscriptions, could not be met under these
circumstances. Piling on such criteria makes it more difficult to apply
for exclusions, and raises the question whether deterring petitions for
safe products is precisely the point. The usefulness of the proposal is
further reduced by the cost of petitioning a Federal agency, which is
high even without these exacting requirements. And large businesses,
with their in-house legal staffs, have an obvious advantage over small
manufacturers, who would likely be unable even to afford to petition
for relief under the exemption. Finally, even a manufacturer with the
resources to pursue such a petition could not bring a product to market
until CPSC staff analyzed the petition, the Commission took the time to
consider it, and the majority granted it. Considering the substantial
time it has historically taken the Commission to rule on pending
petitions, this amendment was completely unhelpful.
Instead of creating an exemption from the law that requires pre-
approval by the agency, the CPSIA should be amended so that products
not posing a lead risk do not have to come before the agency at all.
The Commission will still retain the right to recall and/or regulate
any product that is unsafe, including those containing unsafe levels of
absorbable lead. And manufacturers remain obligated to report to the
agency any products that do not meet agency standards or which pose a
risk.
Question 13. Can you elaborate on and further explain the following
statement in your testimony: ``. . . the central focus of the agency's
time and resources in both 2009 and 2010 has been on implementing a law
that has almost nothing to do with improving safety--the Consumer
Product Safety Improvement Act of 2008, or CPSIA.''
Answer. As Chairman Pryor pointed out during the hearing, some
provisions of the CPSIA, such as the ATV Standard, may effectively
address known risks. Also, making it unlawful to sell a voluntarily
recalled product enhances the agency's enforcement powers and promotes
consumer safety.
However, the bulk of the law's requirements and their attendant
costs to the regulated community are not risk-based and will have a
negligible impact on consumer product safety. Moreover, an overwhelming
proportion of the Commission's time and energy since passage of the
CPSIA has been spent implementing the new law. Numerous rules have been
promulgated and many more are still to come. And with each rulemaking,
the Commissioners must debate the same questions regarding the meaning
of the new statutory language and the scope of the new requirements.
Lost in all of these debates and rulemaking is the agency's mission to
protect consumers, and especially children, from unsafe products.
Instead, the agency's discretion to allocate resources and focus
enforcement efforts to address risk has been replaced by a mandate to
regulate to fixed and largely arbitrary standards that bear little
relationship to risk.
A sample of CPSIA requirements and the CPSC's recent rulemaking
illustrates these points.
Lead content limits: The CPSIA sets limits for lead content
in all consumer products, without regard for the absorbability
of the lead in any particular product. But lead in a product's
substrate that is not absorbable in meaningful amounts does not
create a safety risk. For instance, lead in paint or in a solid
lead charm is hazardous, because in each case the lead can be
ingested and absorbed into the system. The lead in bicycle
handlebars or the brass spokes of a toy wheel, in contrast, is
part of the metal's substrate, is not absorbable, and therefore
presents no safety risk. Moreover, lead is an important element
that adds strength, machineability, weight and other traits
that can be difficult to replace. As a result, companies have
been required to spend millions reengineering products to
eliminate lead from components that contain little to no
absorbable lead, and were therefore never harmful in the first
place. The CPSIA third-party testing, certification and record
keeping requirements similarly create a substantial financial
burden with no commensurate improvement in safety.
The Commission is now beginning to consider lowering the
permissible lead limit in children's products to 100 ppm, as
the CPSIA requires. The limit must be so lowered ``unless the
Commission determines that a limit of 100 parts per million is
not technologically feasible for a product category.'' CPSIA
101(a)(2)(C). In any event, the Commission must set the limit
at the lowest level between 300 ppm and 100 ppm that the
Commission determines to be ``technologically feasible.'' CPSIA
101(a)(2)(D). But the law does not require or even allow the
Commission to first consider whether a lower lead limit better
protects children's health. This is a radical departure from
the CPSC's traditional role of using its expertise to first
assess a safety risk and then regulate it to the extent
required to protect the public. There is no scientific basis
for reducing the lead limit in a product's substrate to 100 ppm
as a means to promote safety. The Commission should be
empowered to make that determination before American businesses
are crippled by unnecessary costs.
Phthalates ban/interim ban: The law properly bans certain
phthalates that are known hazards. But it overreaches by
banning additional phthalates for which the CPSC has already
concluded there is insufficient scientific evidence of risk.
The law called for a new Chronic Hazard Advisory Panel (CHAP)
to re-study these additional phthalates, but bans them in the
interim. This has required manufacturers to reengineer products
and third-party test to the interim phthalates ban when the
CHAP may determine once again that a risk does not exist.
Database: This agency has already spent $29 million through
FY 2011 developing a new public database for consumers. The
agency's recent database rule ensures that the database will be
populated with unverifiable and likely inaccurate information.
It will be no more helpful than a website with consumer reviews
or complaints, such as Amazon.com or yelp.com, yet more
misleading, because it is implicitly endorsed by the Federal
Government. Inaccurate information in a database for consumers
is not ``safety information''--it is simply misinformation. See
the questions above on the database for more information.
Drafting the rule for the database put enormous pressure on staff
resources. Now, the costs will balloon as the agency fulfills
its obligations to convey every single incident report to the
manufacturer within 5 days, process responses from those
manufacturers, and then post the incident after 10 days.
Considering only the decision to allow ``data dumps'' into the
database, the database could swamp the Commission's resources
very quickly. One conservative estimate is that it will take
twenty-two new FTEs to handle the case work generated by these
requirements, and that does not include complicated cases
requiring the investigation and resolution of a material
inaccuracy charge by a manufacturer.
Third party testing and certification requirements--Section
102 of the law requires third-party testing to all children's
product safety standards, including lead paint, lead content,
phthalates and ASTM F963. The Commission majority has extended
this requirement to previously passed ``consumer product safety
standards,'' including flammability standards for carpets and
rugs, mattresses, and vinyl. However, none of these third-party
testing requirements are necessary to address a risk. These
requirements simply add burdensome costs to manufacturers, who
will either pass the costs on to consumers, or reduce product
lines or close, because they cannot afford them. The Commission
maintains the authority to pose mandatory testing requirements
on manufacturers where necessary to address a risk, but the
CPSIA's testing requirements by and large are unnecessary,
wasteful and crippling to small manufacturers.
The Commission has already spent days discussing the rules that
will govern the implementation of a certification system that
will be effective and efficient. The hours dedicated by the
staff over the past 18 months to draft these rules are
incalculable.
Tracking labels: All children's products, regardless of the
risk they pose, must include a tracking label. After the
current stay is lifted, these labels will become much more
complicated because they will have to correctly reflect the
finished product's unique lot number and that of each tested
component of the product. If so little as one component part's
certification is changed, the finished product label will also
need to be changed. Similar to Section 102, this provision adds
unnecessary costs to small and large manufacturers, without
regard to whether their products pose a risk.
Increase in the maximum civil penalty levels: The CPSIA
increased the maximum civil penalty for a violation of a
Commission standard from $1.25 million to $15 million, an
unprecedented increase for any agency. While this provision was
driven primarily by the toy recalls of 2007, which involved one
of the largest toy companies, the bar has been raised for all
manufacturers. This increased exposure to large fines
accompanies the CPSIA's new, complex regulations that already
significantly raise the cost to bring a new product to market.
Again, this new burden has nothing to do with increased risk
and threatens businesses and jobs by its very existence. The
Commission could have reduced this burden by providing in its
guidance that technical violations (such as a compliant product
with a paper work violation) would be penalized at lower
levels. But the majority of the Commissioners declined to write
that reassurance into their guidance document.
Enforcement by state attorneys general: Section 218 of the
CPSIA authorizes state attorneys general to bring lawsuits
against a manufacturers for violating the CPSIA--a law whose
standards are, again, not based on risk. This provision invites
lawsuits from state attorneys general and thereby exposes large
and small manufacturers to a needless, increased risk of
liability. It may also require manufacturers to incur
additional costs to protect against the application of
conflicting standards. For instance, a manufacturer can avoid
any risk of a CPSC enforcement action for lead content by
administering the lead content test recommended by the CPSC.
But this would not insulate the manufacturer from a claim by a
state attorney general based on the results obtained using a
different test. A manufacturer could protect against this risk
only by testing the same products repeatedly using different
methodology, a large, unjustified expense. In other cases, the
mere fact that a state attorney general could enforce a
particular standard imposes a burden that the CPSC has judged
to be unreasonable. Specifically, the Commission occasionally
exercises its discretion to stay enforcement of standards that
it deems cannot reasonably be met, based on the availability of
laboratory resources or other factors. Yet a CPSC stay is not
binding on a state attorney general, who could nonetheless
bring an action based on the failure to adhere to the same
standard. These sorts of inconsistent and conflicting burdens
and risks are precisely why many Federal regulatory standards
and enforcement mechanisms preempt state action. The same
should have been done here.
Question 14. You stated that one example of cutting the
Commission's budget would be to put the agency under one Administrator,
rather than 5 Commissioners. Can you please elaborate on the benefits
of this proposal?
Answer. I believe the CPSC could be run more efficiently by one
Administrator, rather than a Commission of five or even three. Managing
a small agency simply does not require more than an Administrator.
Additionally, I have confidence that Chairman Tenenbaum (or a future
Administrator) would be able to run the agency much more efficiently
without the pressures from her Democrat and Republican colleagues, who
wish constantly to influence her actions in one direction or another.
Reducing from five Commissioners to an administrator would save the
substantial costs of office space, Commissioner and staff salaries, and
any travel for all five Commissioners.
The Chairman is already solely accountable for all of the agency's
core functions, including setting the rulemaking agenda, public
relations, human resources duties, and budgeting. The other four
Commissioners may be asked to sign off on these things from time to
time as a formality or to provide input, but ultimately all
accountability lies with the Chair.
Rulemaking involves the participation of five Commissioners.
However, I would argue that this ``participation'' rarely involves more
than duplicative analytical efforts--all of which usually result in a
3-2, party-line vote. This also means five different Commissioners, all
their staffs (12 people), plus dozens of technical staff and lawyers
are reviewing, editing and analyzing the exact same rule-making
document.
Despite my efforts, I have been unable to meaningfully influence
the rulemakings we have considered. In fact, divided along party lines,
the Chair is often pushed to align her position with the other two
Democrat Commissioners. For example, the Commission issued a Notice of
Proposed Rulemaking on the Definition of Children's Product that was so
ambiguous we might just as well have not defined the term at all. In
response, the Commission received many excellent comments from
manufacturers and retailers illustrating how the parameters of the
definition provided very little, if any, certainty for products that
fell around the outer edges of the law's age limit. Then, after weeks
of review by technical staff, the Office of General Counsel, and all
Commissioners' staffs, the final rule approved by the Majority was
worse than the proposed rule, in that it unjustifiably broadened the
parameters so that even more products fell under the purview of the
CPSIA. Without four other Commissioners pulling her in opposite
directions, one Administrator would be solely responsible for fair,
well-thought-out rulemaking decisions.
Having five Commissioners also means that many day-to-day
activities of the Commission must happen five different times, which
can drain staff time. Moreover, each Commissioner needs his/her weekly
briefings on rulemakings and other issues with professional staff.
Unfortunately, it is not useful to combine most meetings with other
Commissioners, who may have alternative agendas. Nor is it even legal
under the Sunshine Act for more than two Commissioners to meet
privately to discuss substantive matters. As a result, professional
staff spend most of their weeks in repetitive meetings and away from
other core duties. They also spend five times more time than necessary
answering Commissioner and Commissioner staff questions, when they
could be doing so for one Administrator.
The CPSC still remains a relatively small agency, despite the new
rules it has promulgated and its responsibility to enforce those rules.
Other independent commissions, such as the FTC and FCC, might need five
Commissioners, but those agencies' budgets are more than double ours.
I am not aware of another independent commission that is under one
Administrator. However, other regulatory agencies, such as NHTSA and
FDA are run by Administrators that are accountable to Cabinet
secretaries and the White House. I could imagine a similar arrangement
for the CPSC.
Question 15. Do you have any other budget-reduction recommendations
that should be considered?
Answer. I have two recommendations on how to reduce the budget and
at the same time, increase the Commission's ability to fulfill its
safety mission:
1. Defund the public database: The first budget-cutting measure
I recommend is not to publicize the Commission's new database.
I understand that the agency's internal IT improvements have
been beneficial, particularly combining our separate internal
databases of information. However, there is simply no safety
need to make all of our incident reports public, particularly
those that are likely to be inaccurate. If this Commission is
to have a public database funded by taxpayers, it should be
different and better than any source of information that
already exists in the public domain, such as websites like
Amazon.com or Yelp.com. Unfortunately, our public database will
be no more useful than similar sites that are already available
to the public today, and will, in fact, be more misleading to
the public, given the likelihood of inaccurate reports and the
lack of ability for anyone to verify them.
Further, the Commission has limited resources for enforcement,
and the public database will divert resources from addressing
genuine risks to monitoring and processing the likely increase
in reports to the agency. Additionally, because inaccurate
incident reports will be indistinguishable from accurate ones,
the media's attention may focus on inaccurate reports,
pressuring the agency to prioritize its efforts based on
publicity rather than risk level. The agency has yet to
estimate the number of new FTEs we may need, year after year,
to administer the public database. However, as stated above,
one conservative estimate is that it will take twenty-two new
FTEs to handle the case work generated by these requirements,
and that does not include complicated cases requiring the
investigation and resolution of a material inaccuracy charge by
a manufacturer.
As it is currently designed, and given the Commission's
database rule, taxpayer dollars will be supporting a public
database with inaccurate and unverifiable information that
unnecessarily harms manufacturers, and is not useful to
consumers. Many believe the public database, if left unchanged,
will be useful only to trial lawyers or advocacy groups that
will be able to populate it with unverifiable, second-hand
information for their own purposes.
2. Reform the CPSIA to allow the agency to focus on risk: The
best way to allow the agency to perform its core functions--to
assess and reduce risk--would be to reform the CPSIA's non-risk
based mandates, such as the lead content standard and third-
party testing and labeling requirements. There are many ways
the law could be reformed to provide the agency with
flexibility not to impose all of the law's requirements on
products that do not pose any risk. Such reforms would free up
agency resources to focus on known hazards and to better
prioritize our regulatory agenda. It would also free up
business resources to expand, build new products and stay
competitive with what the marketplace is demanding in the
future. Many of these reforms have been discussed in my
statement to accompany the agency's Report to Congress in
January of 2010.\21\ I would be happy to follow up with further
detail, as necessary.
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\21\ http://www.cpsc.gov/pr/northup01152010.pdf.
Question 16. The crib rule was mentioned briefly during the
hearing. Can you please elaborate on the impact of the crib rule on
child care centers due to the retroactive effects of the law?
Answer. I supported the Final Rule on Full-Sized and Non-Full-Sized
Cribs, which was passed by a vote of 5-0 on December 15, 2010. I was
also pleased that the Commission provided needed flexibility for child
care centers and places of public accommodation to allow extra time, a
full 2 years, to come into compliance with the regulation's
requirements.
However, when the rule takes effect, the law's retroactivity
provisions will still cause tremendous, needless waste for all child
care centers nationwide--something that this agency does not have the
ability to prevent. In fact, with the passage of this regulation, every
crib in this country has become obsolete overnight and unable to be
sold--regardless of whether that crib was ever subject to a recall or
ever considered unsafe. Although most articles since the rule's passage
have focused on the fact that drop-side cribs can no longer be sold or
used in child care centers, they fail to mention that the agency's new
standards also impact all other types of cribs.
The consequences of the retroactivity of the crib rule are immense.
First, any young family who invested in a new crib over the past year
or who will buy one in the next six months before the new ones are on
the market, will not be able to sell it or donate it to a thrift store
after it has been used, even if the crib has fixed sides and is safe.
Also, retail stores and thrift stores can no longer sell safe, fixed-
side cribs currently in their inventories. Families often invest in
second-hand cribs or hand them down to another family member, due to
the high cost of new cribs. While the Commission advises consumers not
to use any crib that is over 10 years old, the fact remains that the
safest place for a baby to sleep is in a crib. It is tragic that the
unjustified destruction of the second-hand crib market may compel some
families to opt for an alternative, unsafe sleeping arrangement for
their infants.
Furthermore, the law goes far beyond prohibiting the sale of cribs.
It expressly forbids cribs that met the previous standards but do not
meet the new standards from being offered for use by places of public
accommodation or child care centers. Day care centers and hotels across
the country are required to throw out their current cribs and purchase
new ones, even if they bought a crib earlier this year that met the
previous ASTM standard (less than a year old) and is completely safe.
This will be a tremendous waste of money for families, day care
centers, and the public fisc, which funds many day care centers.
The law's retroactivity provision also mandates that these
standards become retroactive every time they are updated in the future.
In other words, once the mandatory standards are modified in the future
to respond to changes in the market, new innovations, or new hazards,
all the new cribs that meet the Commission standard this year will
become obsolete once again, cannot be resold, and day care centers once
again will be forced to buy another set of new cribs. This situation
will be disastrous for families and day care centers that depend on the
availability of affordable cribs. I am not convinced that Congress
intended such a drastic result.
Of course, crib companies are thrilled by the law's retroactive
effects. While companies certainly will lose current inventory that
does not meet the new standard, they will also reap tremendous
financial rewards, because every family and day care center will be
forced in the near future to purchase a brand-new crib. They will not
have access to any safe, used cribs in the resale market. Even if they
have recently disposed of their drop-side cribs, as this Commission has
advised for many months, the new, fixed-side cribs they just bought
will also be obsolete and unable to be resold. In fact, American
families may not ever have access to much of a resale market if the
mandatory standards for cribs continue to be modified periodically.
Each time the standard is modified in the future, yesterday's crib will
become outmoded, unable to be resold by families, and unable even to be
used by such places as day care centers and hotels. (This alone
provides quite an incentive for crib companies to continue proposing
changes to the mandatory standard!)
The most economically vulnerable sectors of the market bear the
brunt of overregulation. In this case, young families, those of
moderate resources and many day care centers will be negatively
impacted by this crib rule. I supported this rule because it was
required by the CPSIA and it provided at least some time for day care
centers and families to prepare. I believe the Commissioners should
share the consequences with Congress and give its Members time to
change the law to avoid unnecessary costs. I am hopeful that Congress
would be open to amending the law to address these unforeseen
consequences.
______
Response to Written Questions Submitted by Hon. Johnny Isakson to
Hon. Anne M. Northup
Question 1. In your written testimony you outlined many problems
that businesses are having in complying with the third-party testing
and certification requirements of CPSIA. Given the state of the
economy, the lack of detailed CPSC regulations and the fact that the
stay on the third-party testing and certification requirements expires
on February 10, 2011, wouldn't it be best to extend this stay another
year?
Answer. Given that the Commission has not finalized its testing
rules so that manufacturers will know what is required of them, I
believe it is premature to lift the stay of enforcement on lead content
testing. The delay in finalizing these rules is of concern, because the
Commission's previous stays on lead content testing were implemented
principally based on the recognition that manufacturers would be unable
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a
reasonable period of time. If the stay is lifted prematurely, many
small manufacturers, in particular, will be unable to afford to comply
independently with the third-party testing requirement, and will stop
making certain products or go out of business entirely
As you may know, on May 20, 2010, the Commission issued Notices of
Proposed Rulemaking on (1) Testing and Labeling Pertaining to Product
Certification (75 FR 28366), and (2) Conditions and Requirements for
Testing Component Parts of Consumer Products (75 FR 28208). These
proposed rules--referred to by the CPSC as the ``15-month rule'' and
the ``component testing rule''--address, inter alia, the protocols that
will govern third-party testing of children's products, including
random sampling methods and the availability of component parts testing
as a means to encourage compliance further up the supply chain and to
provide manufacturers with more options to come into compliance. The
Commission is just beginning to consider the final versions of these
rules.
A year has now passed since the stay was first extended, but in the
absence of final 15-month and component testing rules, component
testing still cannot form the basis for certifications for lead
content. Rather, small manufacturers continue to report to the CPSC
that component suppliers are refusing to test altogether or are
refusing to supply certifications, and that certifications are
unavailable from the retail outlets where many small manufacturers
obtain component parts. Under these circumstances, a continuation of
the stay would be consistent with the stated views of all five
Commissioners. Commissioners Northup and Nord, and Chairman Tenenbaum
all expressly linked the lifting of the stay to at least the
finalization of the 15-month and component testing rules. Commissioner
Moore supported extending the stay to give small manufacturers
``sufficient time to find sources of lead compliant materials,'' and
Commissioner Adler predicated his willingness to delink finalization of
the 15-month rule from the stay on his expectation that small
manufacturers would be able to ``rely on component suppliers for
compliance with the law.'' Given that component part suppliers remain
unwilling or unable to provide component part certifications in the
absence of final rules, there is no factual predicate for the
Commissioners to support lifting the stay.
It is also important to emphasize that publication of the proposed
rules has not provided the regulated community with the any certainty
regarding the content of the final rules. Indeed, the CPSC's record of
rulemaking over the past year demonstrates that a final rule can change
materially from its proposed version and can impose more onerous
requirements. It is therefore not surprising that component parts
suppliers remain unwilling to incur the expense of providing
certifications under a proposed regime that may change substantially
before it is finalized.
I therefore intend once again to urge the Commission to vote to
continue the stay of enforcement on third-party testing and
certification of lead content in children's products until one year
after publication of final 15-month and component testing rules.
Considering the lead time necessary for manufacturers between design
and production, allowing one year after the two testing rules are
finalized is necessary for manufacturers to benefit from the rule.
Doing so would comport with the expectation created among regulated
industries through the Commissioners' and the Commission's public
statements that the stay would not earlier be lifted.
Moreover, lifting the stay before the final 15-month and component
testing rules are published would place manufacturers in the untenable
position of trying to comply with the proposed rule, while anticipating
a potentially much different final rule. This would provide
manufacturers with insufficient time within which to modify their
compliance management processes once the final rule was issued, and
would cause needless disruption to business planning, supply chain
management, test lab contracting, and other aspects of product
manufacturing due to the rapidly changing requirements.
Finally, a reasonable time after publication of the final rules is
necessary in order to afford the regulated community time to come into
compliance. Otherwise, it may be too late for many small manufacturers
to benefit from the component testing rule. In this regard, it is
essential that the Commission retain in the final component parts rule
the proposed provision, 1109.5(g)(1), affording component parts
certifications ``currency'' to allow them to be reasonably relied upon
by downstream manufacturers without the need for duplicative testing.
Question 2. If another stay is granted, what could Congress, the
Commission, and industry do together during that year to help the CPSIA
fulfill its mission without driving responsible manufacturers out of
business?
Answer.
Congressional Action
The best opportunity manufacturers and consumers will have to be
rid of the non-risk-based, costly testing and certification
requirements of the CPSIA and to allow the Commission to refocus its
enforcement efforts on genuine risks, is for Congress to amend the law.
There are many ways the law could be reformed to provide true
flexibility to the agency so as not to impose unnecessary reengineering
and testing requirements on products that do not pose any risk,
including: (1) exempting products with de minimis absorbable lead from
the law's requirements; (2) reducing the age range of the law to focus
on children in the years when they are most likely to be exposed to
harmful levels of lead; and (3) eliminating the costly third-party
testing, certification and labeling requirements of the law, except
where the Commission finds such requirements are necessary to address
an actual risk. You may find more information on some of these
proposals in my statement to accompany the Commission's Report to
Congress in January of 2010: http://www.cpsc.gov/pr/northup01152010.pdf
Such reforms would free up agency resources to focus on known hazards
and to better prioritize our regulatory agenda--and bring us back to
our core mission of safety.
It is also helpful to keep in mind that the statute does not permit
the agency to exempt any manufacturer from the law's onerous testing
and certification requirements. Exemption from the testing requirement
is the main change sought by small manufacturers. Because we cannot
exempt companies from the initial third-party test that every
manufacturer must do to every component of their product--even if the
product poses no risk--I hope that the Commission will at least
alleviate the burden through the ``continued testing'' requirements of
the statute and the testing protocols, where we do have some
flexibility. However, removing the costly requirements of third-party
testing and certification will require an act of Congress amending the
CPSIA.
Commission Action
Regarding action by the Commission to alleviate the law's
unnecessary burdens (absent reforms to the law by Congress), I no
longer believe this to be likely. Before my Senate confirmation
hearing, I was asked by both Democrat and Republican Senators to ``find
flexibility'' wherever it is possible in the law, because the law had
resulted in many unintended or unforeseen consequences. Once confirmed
as a Commissioner, I took this request seriously.
However, the flexibility that I have found in the following rules
or decisions was rejected by a majority of Commissioners:
a. Absorption exclusion--I argued that the absorption exclusion
under Section 101 was actually intended to exclude certain
products from the lead limits (rather than be meaningless), and
therefore that the term ``any lead'' in that section may be
interpreted to mean a de minimis, harmless amount of lead in a
children's product. If the Commission had accepted my
interpretation, lead in the substrate of ATVs, bicycles, and
brass axles on toys would be legal--since lead in the substrate
of these products is not harmful. Because the Commission
rejected this interpretation, it voted to reject the petition
of a manufacturer of toy cars, even though the car's brass
fitting contained less absorbable lead than the Food and Drug
Administration deems to be acceptable in a piece of candy.\1\
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\1\ http://www.cpsc.gov/pr/northup110409.pdf.
b. Civil Penalties Factors--In the Commission's interpretive
rule on Civil Penalties Factors, I proposed a number of changes
to provide more certainty for the regulated community and to
ensure that while the overall civil penalty ceiling was raised,
``technical'' violations, such as incorrect paperwork, would
not be treated the same way as more serious violations, such as
failures to meet safety standards. This is one area of the
statute that was not too prescriptive, and a middle-ground
could have been reached.\2\ Unfortunately, a majority of the
commissioners did not want to provide that leeway.
---------------------------------------------------------------------------
\2\ http://www.cpsc.gov/pr/northup03102010.pdf.
c. Definition of Children's Product--The CPSIA applies to all
``children's products,'' statutorily defined as products
``primarily intended for a child 12 years of age or younger.''
The comments that the Commission received following the
proposed rule made clear that the parameters we had tried to
set in the proposed definition were not helpful to most
manufacturers that produce children's products intended for the
10-12 or pre-teen age groups, or that straddle the age limit of
the statute. The entire reason for defining the term was to
provide guidance to these types of manufactures, who need
certainty to know how to determine if their products fall under
the purview of the CPSIA. After receiving these comments, the
Commission had a chance to put a much narrower ``fence'' around
the scope of covered products--or to at least define clearer
boundaries. Unfortunately, the Majority chose to leave the
definition vague whenever possible, which helps neither the
CPSC staff,\3\ nor the regulated community.\4\
---------------------------------------------------------------------------
\3\ Justin Pritchard, ``Feds dismiss need to recall lead drinking
glasses,'' Associated Press. December 11, 2010. http://news.yahoo.com/
s/ap/20101211/ap_on_he_me/us_cadmium_lead
_glassware.
\4\ http://www.cpsc.gov/pr/northup09292010.pdf.
d. ``Children's product safety rules''--I offered a valid,
alternative interpretation of the statute with regard to the
requirement to impose third-party testing on all ``children's
product safety rules.'' A clear distinction can be made between
``children's product safety rules'' and more general ``consumer
product safety rules'' promulgated well before the passage of
the CPSIA. Unfortunately, because the Majority chose to view
all consumer product safety rules of the Commission as
potential ``children's product safety rules,'' it imposed an
unnecessary, additional layer of testing (at third-party labs)
on manufacturers of carpets and rugs, vinyl, clothing textiles
and mattresses--all of which are subject to consumer product
safety rules. The Commission did not have to take this step--
and there is no risk associated with these products that
necessitates new third-party testing requirements.\5\
---------------------------------------------------------------------------
\5\ http://www.cpsc.gov/pr/northup07122010.pdf.
e. Database--I proposed an alternative database rule that would
have responded to a number of manufacturer concerns and made
the database a more accurate source of information for
consumers. Unfortunately, the Commission's Majority passed a
rule that went well beyond the statute's requirements, allowing
``anyone'' to submit reports of harm--even advocacy groups,
attorneys and random bystanders that may not have firsthand
knowledge of the incident. In total, the Commission Majority's
database rule ensures that the database will be filled with
inaccurate reports of harm that will be useful only to advocacy
groups and trial attorneys, and will be time consuming and
costly to manufacturers--particularly small businesses. Due to
the inaccuracy of reports on the database, it will be a waste
of taxpayer resources and will not be useful to the consumers
---------------------------------------------------------------------------
it was intended to help.
Because the Commission's majority has largely refused to find
flexibility where it is possible under the statute, I am no longer
optimistic that, without Congressional action, the situation will
improve.
Attachment
Economic Impact of the CPSIA--Examples
2009 and 2010
Costs Associated with the CPSIA
1. In a letter from the CPSC to Representative Dingell in March
2009, the Commission indicated that the overall economic impact of the
CPSIA would be in the ``billions of dollars range.'' The Commission
also acknowledged that the testing and certification costs will fall
disproportionately on small-volume businesses. (Letter from Acting
Chairman Nancy Nord to Representative Dingell, March 20, 2009)
2. ``Major Rule''--CPSC acknowledges in its FY 2011 Regulatory
Agenda that its main rule pertaining to the CPSIA's testing
requirements (CPSC Docket No. CPSC-2010-0038) is a ``major rule'' under
the Congressional Review Act, resulting in, or likely to result in: (1)
an annual effect on the economy of $100,000,000 or more; (2) a major
increase in costs or prices for consumers, individual industries,
government agencies or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
3. In an article entitled ``Makers Are Pushing Back on Toxic-Toy
Law'' (Wall Street Journal, March 5, 2009 http://online.wsj.com/
article/SB12362135762983
5121.html), Joe Periera reported the following loss statistics:
Goodwill Industries to destroy $170 million in merchandise.
Salvation Army expects to lose $100 million in sales and
disposal costs.
The Toy Industry Association estimates inventory losses at
$600 million.
Members of the Coalition for Safe and Affordable
Childrenswear lost $500 million.
The California Fashion Association estimates troubled
inventory at $200 million.
The Motorcycle Industry Council expects to lose 50,000
motorized bikes and four-wheelers worth at least $125 million.
4. On March 11, 2009, Playthings Magazine reported updated data
from the Toy Industry of America (see http://www.playthings.com/
article/CA6643505.html), including:
From a pool of nearly 400 manufacturers and 220 retailers,
the TIA estimates losses of $2 billion in retail value.
More than $1 billion in already shipped merchandise has been
returned or is being withheld for return.
More than $800 million in compliant merchandise is at risk
of return.
40 percent of all respondents plan to eliminate jobs to pay
for the CPSIA, with more than 1200 jobs reported to be in
jeopardy.
``TIA: Safety Act puts $2B crimp in toy biz'' 3/11/2009
5. Separately, the Motorcycle Industry Council advised that total
losses from disruptions in its members' businesses could total $1
billion. See: http://www.1st5ive.com/harley-davidson/motorcycles/2009/
02/2452/new-lead-rule-could-cost-motorcycle-industry-1-billion-
annually.
Examples of Businesses Closed Due to CPSIA
Most names provided by the Handmade Toy Alliance
1. Whimsical Walney, Inc.--Santa Clara, CA
2. Fish River Crafts--Fort Kent, ME
3. Kungfubambini.com--Portland, OR
4. Baby Sprout Naturals--Fair Oaks, CA http://
www.babysproutnaturals.com/about/
5. Gem Valley Toys--Jenks, OK
6. Angel Dry Diapers--Michigan
7. Abracadabra Educational Craft Kits for Kids--Bend, OR
8. Hailina's Closet--Ellensburg, WA (thrift store)
9. Eleven 11 Kids
10. Perfect Circle Consignment--Bremerton, WA
11. JenLynnDesigns--http://waytobow.blogspot.com/
12. A Kidd's Dream--Conway, AK
13. Storyblox--New Vienna, OH
14. Phebe Phillips, Inc.--Dallas, TX
http://www.phebephillips.com/shopnow.htm
15. Pops Toy Shop--mountains of Tennessee, Virginia, North &
South Carolinas
Businesses That Have Stopped Production of Children's Lines Due to
CPSIA
Most names provided by the Handmade Toy Alliance
1. Creative Artworks--Greenwood, AK
2. Craftsbury Kids--Montepeliar, VT
3. ``Pockets of Learning'' Special Needs Products Being Driven
from Market By Testing Costs--Rhode Island
4. Creative Learning Connection
5. Giverny, Inc/Mini Me Geology
6. HABA
7. Challenge & Fun, Inc.--http://online.wsj.com/article/
SB10001424052748703
478704574612573263963560.html
8. Hands and Hearts Far East History Discovery Kit--Greenwood,
SC
9. Moon Fly Kids--Las Vegas, NV
Businesses That Closed and List the CPSIA as One of the Factors
Most names provided by the Handmade Toy Alliance
1. Due Maternity--San Francisco, CA
2. Frog Kiss Designs--Fairfield, CT
3. Waddle and Swaddle--Berkley, CA
4. Lora's Closet--Berkley, CA
5. Baby and Kids Company--Danville, CA
6. Baby and Beyond--Albany, CA
7. Obabybaby--Berkley, CA
8. Bellies N Babies--Oakland, CA
9. Oopsie Dazie--http://www.oopsiedazie.com/
10. Bears on Patrol--not a business, but program by police
departments to hand out stuffed animals to scared children--
http://learningresourcesinc.blog
spot.com/2009/10/cpsia-cpsia-casualty-of-week-for.html
11. Simple Treasures
Other Companies Hurt by Retroactivity of the CPSIA's Lead Content Ban:
1. Gymboree--``change in safety requirements related to levels
of phthalates rendered about 1.7 million of its inventory
obsolete''
i. http://www.reuters.com/article/idUSBNG44760220090305
2. Constructive Playthings, Inc--` ``We have millions of
dollars worth of merchandise sitting in 30 40-foot-long
trailers waiting to be hauled out to a landfill somewhere,''
says Michael Klein, president of Constructive Playthings Inc. .
. . The banned products include beach balls, inflatable toy
guitars and blow-up palm trees.'
i. http://online.wsj.com/article/
SB123621357629835121.html
Businesses No Longer Exporting to the U.S. Due to the CPSIA
Most names provided by the Handmade Toy Alliance
1. Hess--Germany
2. Selecta--Germany http://www.zrecommends.com/detail/breaking-
news-selec
ta-to-cease-us-distribution-due-to-cspia/
3. Finkbeiner--Germany
4. Saling--Germany
5. Simba--Germany
6. Bartl GmbH dba Wooden Ideas--Germany
7. Woodland Magic Imports--France
8. Brio
9. Helga Kreft--Germany
10. Eichorn--Germany
11. Kapla
12. Kallisto Stuffed Animals
EuroToyShop--On this company's homepage, you will find links at the
bottom with a list of ``endangered toys'' or ``extinct toys'' that are
still sold to children in Europe but which the company will no longer
be able to sell in the U.S. due to the CPSIA.
Endangered Toys The CPSIA (Consumer Product Safety Improvement
Act) has unintended consequences. Now, some European toys are
no longer available in the USA. http://www.eurotoyshop.com/
Associations That Have Voiced Concerns to the Commission Regarding
CPSIA's Costs (list is not exhaustive):
Association of Home Appliance Manufacturers
International Sleep Products Association
Retail Industry Leaders Association
Specialty Graphic Image Association
American Coatings Association
The Carpet and Rug Institute
National Retail Federation
Association of American Publishers
Consumer Healthcare Products Association
Toy Industry Association
Glass Association of North America
American Honda Motor Company, Inc.
Society of the Plastics Industry, Inc
American Home Furnishings Alliance
Sporting Goods Manufacturers Association
Handmade Toy Alliance
Consumer Specialty Products Association
Footwear Distributors and Retailers
Fashion Jewelry Association
Craft and Hobby Association
National Association of Manufacturers
Halloween Industry Association
American Apparel and Footwear Association
Juvenile Products Manufacturers Association
National School Supply and Equipment Association
National Federation of Independent Business
Promotional Products Association International
Bicycle Product Suppliers Association
______
Killing Small Businesses:
CPSIA in the News, Letters and Public Comments
Higher Costs for Schools:
January 11, 2010
``NSSEA members sell educational supplies, equipment and
instructional materials to schools, parents, and teachers . . .
. . . the costs to schools, municipalities, libraries, and
others of identifying and replacing such books would be
extremely high and there is no reason to impose such costs
given the lack of identifiable risk.
. . . While we applaud the efforts the CPSC has made to find
solutions for small businesses . . . we believe the CPSC could
do more if given more discretion by Congress. The alternative
is the elimination of many valuable educational toys and
products, some manufactured in low volume for niche markets
(such as the deaf, blind, or otherwise differently-abled
children) and typically not supplied by the huge multi-national
toy manufacturers.''
Letter from the NSSEA (National School Supply and
Equipment Association) to Commissioner Northup, January
11, 2010
Higher Costs for Products with No Lead Risk:
October 13, 2010
``The government wants to regulate Hannah Montana CDs and DVDs.
The bureaucrats at the Consumer Product Safety Commission
(CPSC) insist that the discs marketed to children be tested for
lead, but when the same young starlet churns out raunchier
material under her real name, Miley Cyrus, they will escape
scrutiny. Never mind that the same 10-year-olds will likely end
up buying both products.
``. . . Never mind that Hannah Montana's fans aren't likely to
eat their DVDs, the latest red tape makes no distinction
between products where lead is likely to be consumed and those
where it isn't.''
http://www.washingtontimes.com/news/2010/oct/13/
bureaucrats-way-out-of-tune/ ``Bureaucrats way out of
tune,'' Washington Times, October 13, 2010.
Punishing Small Businesses, While Mattel and the Big Guys Squeeze out
the Competition:
June 17, 2010
``Now Mattel is testing and making toys without any trouble at
all, and those of us who were never the problem are in danger
of losing our businesses,'' says Hertzler, who runs EuroSource,
based in Lancaster, Pa., with his wife and two sons . . .
``Nearly 2 years after the safety law was enacted, Congress and
the Consumer Product Safety Commission are still struggling to
reduce its burden on small businesses while eliminating the
risk of lead and phthalates in children's products.''
http://www.usatoday.com/money/industries/retail/2010-
06-17-productsafety17--ST--N.htm ``Lead testing can be
costly for mom and pop toy shops,'' USA Today, June 17,
2010
Bordering on Ridiculous:
June 17, 2010
. . . ``What the law should be about is ensuring safe
products,'' says Edward Krenik, a spokesman for the children's
product alliance. ``We've crossed over into ridiculousness.''
http://www.usatoday.com/money/industries/retail/2010-
06-17-productsafety17_st_n.htm ``Lead testing can be
costly for mom and pop toy shops,'' USA Today, June 17,
2010
Regulation for Regulations' Sake
November 8, 2010
``Regulation for regulations' sake, where there is no inherent
change to a bill of materials, a process or a product indicated
after extensive, statistically significant testing across
multiple points of input and verification, is simply
wasteful.''
American Home Furnishings Alliance
November 8, 2010--Letter to Commissioners
Mattel Finds CPSIA a Challenge--How Much More for Small Businesses?
November 9, 2009
``Officials of the toy manufacturer, Mattel, met separately
with two CPSC commissioners November 3 to talk about how
challenging it was for Mattel to comply with the CPSIA . . .
Peter Biersteker, a lawyer for Mattel with the law firm Jones
Day in Washington, D.C., said his client is finding the CPSIA
difficult to decipher. The law, he said, is unclear on what
products the company needs to test, how often it needs to test
them, and how many samples need to be tested. ``It's a lot of
work. I don't know how smaller companies do it,'' Biersteker
told Commissioner Robert Adler.
Despite Mattel's large team of in-house lawyers, he said, the
company needed to hire outside lawyers to help understand the
CPSIA. He said Mattel holds weekly conference calls on the
issue, discussing how to comply with the act while remaining
``cost competitive.''
``Mattel Finds CPSIA to be a Challenge,'' Product
Safety Letter,
November 9, 2009.
Commission Action Adds to CPSIA's Problems:
August 16, 2010
``The latest dictates from the Consumer Product Safety
Commission (CPSC) will drive up the cost of manufacturing
products intended for children. The agency adopted a pair of
new rules in July and August implementing the Consumer Product
Safety Improvement Act of 2008, but as drafted, these
regulations will force companies to waste time and money on
redundant testing programs solely for the entertainment of
bureaucratic busybodies.
. . . The redundant examinations, mostly checking flammability,
can be prohibitively expensive. For instance, the regulations
could require a manufacturer to build a queen-sized-bed
prototype of a baby's crib just so it can be tested in an
independent lab. Yet each of the component parts--the crib-
sized mattresses, blankets and all other component parts--
already are individually tested for the same hazards when
manufactured.''
Editorial: ``The Red Tape Stimulus,'' Washington Times,
August 16, 2010 http://www.washingtontimes.com/news/
2010/aug/16/the-red-tape-stimulus/
Even the New York Times Spotlights the Unintended Consequences of the
CPSIA:
September 28, 2010
``. . . a new federal crackdown on dangerous toys has left some
in the industry crying foul and not wanting to play.''
``. . . Critics point to provisions in the law that they deem
ludicrous. For instance, a paper clip that is included in a
science kit for schoolchildren would have to be tested for
lead. But a teacher can walk into any drug store and buy a box
of paper clips that would not be subject to the same testing.
Similarly, a lamp that is festooned with cartoon characters
would have to be tested, but a lamp without the characters
would not.''
http://www.nytimes.com/2010/09/29/business/29toys.html
``Toy Makers Fight for Exemption From Rules,'' New York
Times, September 28, 2010
Science Kits Are ``Not Banned''--but the Tools Used Inside Them Are!
October 1, 2010
``The science kit makers had asked for a testing exemption for
the paper clips and some other materials. On Wednesday, in a
close 3-2 vote, the commission declined to give them the waiver
they sought.''
``. . . After the science kit vote, CPSC Chairman Inez
Tenenbaum sought to reassure people that, ``There is nothing in
this rule that bans science kits.''
Right. But while the commission vote doesn't ban the kits,
manufacturers say it may crimp the supply of kits for
elementary school children.''
http://www.lvrj.com/opinion/goodbye-to-chemistry-sets-
104139059.html ``Goodbye to chemistry sets,'' Las Vegas
Review Journal, October 1, 2010. Editorial.
Furniture Manufacturers Faced with Added Costs, Zero Safety Benefit to
Children:
November 8, 2010
``. . . there has not been a corresponding benefit in the
improved safety of children's furniture for children. All the
representatives told you that their respective companies have
not had to change a single material they use in the
manufacturing of their children's product lines since they
began testing to CPSIA in 2008. . . . The testing is simply
being done to attempt to prove a negative.''
American Home Furnishings Alliance
November 8, 2010--Letter to Commissioners
Furniture Manufacturers Faced with Added Costs, Forced to Cut Jobs:
November 8, 2010
``The majority of the annual costs will be in the record
keeping requirements because none of the companies have the
requisite IT infrastructure to handle the tracking of test
reports per batch . . . Hooker estimates that it will cost them
from $350,000 to $400,000 per year. Furniture Brands
International said this will cost them over $4.5 million per
year which is more than the profits from their best quarter in
the last 2.5 years. In addition, this company must invest an
additional $2 million in startup costs for setting up the
production testing, programming computer systems to work with
existing systems, and hiring and training employees for the
administration of the CPSIA.''
To offset these new costs, the company is forced to consider
these choices: (1) shut down a small domestic plant which will
mean the loss of 64 full time and 30 temporary U.S. jobs; (2)
shut down a larger domestic plant which will mean the loss of
384 U.S. jobs; (3) significantly increase prices to offset the
loss in revenue making them less competitive; (4) offer a lower
quality product . . . or (5) shut down all domestic production
which incorporates any finishing processes, which will mean the
loss of approximately 460 U.S. jobs.''
American Home Furnishings Alliance
November 8, 2010--Letter to Commissioners
No More Mom and Pop Toy Sales:
July 7, 2010
``The second program involves making wooden toys that are given
to the church and other charitable organizations in the county
for distribution to needy children throughout the year
especially at Christmas. Last year we created over 700 toys.
The idea that we now are required to have these handcrafted
toys certified will bring the program to a halt.''
Dupage Woodworkers, Downers Grove, IL (July 7, 2010,
Public Comment, Testing rule)
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Rachel Weintraub
Question 1. The Food and Drug Administration (FDA) has three
different product classifications for toothbrushes: (1) toothbrush,
ionic, battery-powered; (2) toothbrush, manual; and (3) toothbrush,
powered. The FDA classifies all toothbrushes as Class I medical
(dental) devices. My understanding is that such Class I devices are
regulated by the FDA. Under current law, does the Consumer Product
Safety Commission (CPSC) have any authority to ensure the safety of
toothbrushes, even those that are clearly marketed to children?
Answer. Under current law, the Consumer Product Safety Commission
(CPSC) has jurisdiction over consumer products. In 15 U.S.C.
2052(a)(5), a consumer product is defined as, ``any article, or
component part thereof, produced or distributed (i) for sale to a
consumer for use in or around a permanent or temporary household or
residence, a school, in recreation, or otherwise, or (ii) for the
personal use, consumption or enjoyment of a consumer in or around a
permanent or temporary household or residence, a school, in recreation,
or otherwise;'' The term specifically excludes a number of products
including, (H) drugs, devices, or cosmetics (as such terms are defined
in sections 201(g), (h), and (i) of the Federal Food, Drug, and
Cosmetic Act [21 U.S.C. 321 (g), (h), and (i)]).'' Thus, medical
devices are explicitly excluded from CPSC's jurisdiction.
Further, the Food and Drug Administration (FDA) has jurisdiction
over tooth brushes as medical devices. The FDA classifies toothbrushes
as Class I devices in different product classifications, as you
suggested. For example, FDA classifies manual toothbrushes under
section 872.6855 and powered toothbrushes under section 872.6865.
Thus, since medical devices are explicitly carved out of CPSC's
authority over consumer products and FDA has authority over medical
devices which include toothbrushes, under current law CPSC does not
have authority over toothbrushes, while FDA does have authority over
these products. This remains the case whether the toothbrushes are
designed for children or adults.
Question 1a. Do you believe that all toothbrushes should be
classified as medical devices or should some be classified as a
consumer product?
Answer. I believe that toothbrushes should be considered a medical
device and that FDA should retain jurisdiction over these products. I
have not been made aware of information or claims from consumers
indicating that toothbrushes should not be considered medical devices.
IF CPSC or any other government agency has knowledge or information
that would be helpful to FDA in exercising jurisdiction over
toothbrushes, we would urge FDA to work with that entity.
Question 2. There are a number of battery-powered toothbrushes in
the market that have children's cartoon or live-action characters
painted on to the body of toothbrush or attached to the body of the
toothbrush (i.e., the on-off switch in the shape of the cartoon
character), and are marketed to children. Does the CPSC consider such
toothbrushes to be a ``children's product''? Should the CPSC classify
these toothbrushes to be a children's product as they are marketed to
children 12 years of age and younger?
Answer. In an advisory opinion written by CPSC General Counsel,
Cheryl A. Falvey on November 5, 2008,\1\ the General Counsel states in
a response to a manufacturer of preventative dental caries that,
``Products that are medical devices do not fall within the definition
of ``consumer product'' and, therefore, the definition of ``children's
product'' does not include medical devices.'' \2\ Based upon this
advisory opinion, I conclude that CPSC does not consider these types of
toothbrushes to be children's products. I agree with this determination
and do not believe that CPSC should have jurisdiction of these medical
devices even when marketed and sold to children. FDA has expertise in
regulating these and other medical devices and should retain this
jurisdiction.
---------------------------------------------------------------------------
\1\ The advisory opinion can be found on CPSC's web page at http://
www.cpsc.gov/library/foia/advisory/319.pdf.
\2\ Advisory Opinion of Cheryl A. Falvey, General Counsel, U.S.
Consumer Product Safety Commission, November 5, 2008, available on the
web at http://www.cpsc.gov/library/foia/advisory/319.pdf.
Question 2a. Does the FDA have any standards for the levels of
heavy metals allowed in toothbrushes and other dental devices? If not,
should the FDA develop such standards?
Answer. To the best of my knowledge, FDA does have standards for
the levels of heavy metals allowed in toothbrushes and other dental
devices but these standards are not in the form of a bright line total
lead content limit. Rather, FDA requests complete material composition
data from medical device manufacturers and if the presence of heavy
metals is indicated, FDA requests further data about the heavy metal.
In addition, FDA focuses on whether the heavy metal contained in the
device can leach into the bloodstream.
Question 2b. Hypothetically, if it is reported that lead was found
in the colored bristles of a toothbrush with a cartoon character
painted on the body of the toothbrush, how would the CPSC respond?
Would the FDA have absolute jurisdiction? If the FDA chooses not to
investigate the report, does the CPSC have any authority to investigate
such a claim independently?
Answer. If it is reported that lead was found in the colored
bristles of a toothbrush with a cartoon character painted on the body
of the toothbrush, CPSC would not respond. Rather, FDA would have
jurisdiction. I would hope that FDA would consult with CPSC if CPSC's
knowledge and familiarity with lead exposure from consumer products
would be helpful to FDA. If the FDA chooses not to investigate the
report, we would hope that FDA based its review and determination upon
an extensive review of the facts of the particular case and would urge
FDA in any case involving lead exposure to make determinations based
upon the extensive body of research indicating that lead is a known
neuro-toxin and that there are no safe levels of lead exposure. Since,
CPSC does not have jurisdiction over medical devices; CPSC would not
have authority to investigate such a claim independently.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Rachel Weintraub
Question 1. Could you give us your thoughts on how this database
can improve consumer awareness of product recalls?
Answer. This database will improve consumer awareness about product
recalls because consumers will see information about recalls as they
are looking up product information on the database. For a consumer who
went to the database to look up a specific product, and was not even
thinking about the potential of a product recall, recall information
would be available and visible and enrich the person's knowledge about
the product by including applicable recall information.
In addition to the database, the CPSIA is improving consumer
awareness of product recalls by requiring that infant durable products
be accompanied by a product registration card and a means to register
the product on line. This is important because with this information,
consumers will be directly notified by the manufacture if a product
they own has been recalled. Direct consumer notification of product
recalls is one of the most effective ways to increase consumer
awareness of product recalls.
Question 2. I am concerned that consumers who have already
purchased harmful, recalled products may still not know whether their
consumer product has been recalled. How can the database and other
computer or online tools help with that?
Answer. Consumers who have already purchased a potentially harmful
product all too often do not find out that the product that they own
has been recalled. It is problematic. The database will help consumers
who own a previously recalled product if they go to the database and
search for the product. Even if the consumer is not specifically
looking for recall information, recall information will be accessible
and visible to the consumer.
In addition, CPSC has a list serve announcing the most recent
product safety recalls that it sends out to consumers and others who
sign up. Consumers can sign up to receive information about specific
types of products. We urge consumers to sign up for this list serve. To
sign up, a consumer should go to: https://www.cpsc.gov/cpsclist.aspx.
Another tool that will help consumers find out about whether an
infant durable product they own has been recalled is product
registration. This is required for infant durable products. Critically,
a consumer must fill out the card accompanying the product or fill out
the information online.
Once the consumer communicates the information to the manufacturer,
if there is a recall, the manufacturer will directly notify the
consumer of the recall. This is a hugely positive step that will
improve consumer knowledge about recalls of products they own.
______
Response to Written Questions Submitted by Hon. Roger F. Wicker to
Stephen Lamar
Question 1. In your testimony, you stated that companies are
required to comply with ``silly'' requirements. Please elaborate on
what you mean by this and provide examples.
Answer. The CPSC has been very strict in interpreting the CPSIA's
requirements and as a result, businesses have had to comply with
various regulations that have been extremely burdensome but have
amounted to zero improvements in consumer product safety. For example,
the CPSC initially interpreted the General Conformity Certification
(GCC) requirement to be a paper certification that would physically
accompany each shipment of products. Not only would this have been a
logistical nightmare for companies, but the certifications would be
useless to regulators who would have had to search shipments to find
them. Only on November 10, 2008 (two days before the GCC requirement
went into effect) did the CPSC issue final GCC regulations clarifying
that the certification could be in electronic format. In another
example, the CPSC initially interpreted the third-party testing
requirement to be product-based. This meant that if a company chose to
use the same button on five different styles of pants, the company
would have to send in each different fully assembled style of pant of
to test the button five times.
While many (not all) of these issues have been addressed, companies
are still dealing with duplicative testing, unnecessary paperwork,
burdensome and confusing regulations, and conflicting interpretations
on what the regulations mean. For example, retailers often still
require third-party testing be done with specific testing labs
resulting in duplicative testing for manufacturers. The most recent
draft of the so-called ``15 month rule'' requires that GCCs, which are
often created abroad by lab technicians be in English and stored in the
United States. And the definition of ``component'' has been broken down
to the sub-component level meaning components like zippers are now
subject to seven tests.
Because the CPSIA is so rigidly written, the ``solutions'' we are
able to develop sometimes end up creating more problems.
Question 2. The CPSC is currently working on third-party
flammability testing for products such as fabrics and sleepwear. Please
describe your industry's experiences with this requirement.
Answer. On August 9, 2010, the CPSC issued a Federal Register
notice entitled, ``Third Party Testing for Certain Children's Products;
Clothing Textiles: Requirements for Accreditation of Third Party
Conformity Assessment Bodies, August 9, 2010.'' We have experienced
several issues with this provision.
First, we disagreed with the CPSC's assessment that this standard--
a general product safety standard that applies to all products--is even
covered by the third-party testing requirement. We submitted comments
to the CPSC and have yet to receive a reply.
Second, we raised significant concerns--that are still unanswered--
on the fact that this new third-party testing requirement was being
imposed on a regulation that was working properly and which had been
subject to full dress rulemaking. In fact, about a year ago, the CPSC
published technical changes and updates to that rule following years of
industry consultation and comment. We find it inappropriate that a rule
that was developed in such a manner can be significantly altered
outside the proper regulatory process that is laid out in the
underlying Flammable Fabrics Act (FFA) with no stakeholder input. We
are closely monitoring to identify any problems that emerge as the new
CPSIA reasonable testing protocols intersect with the FFA testing
protocols that have worked well during the 50 year life of this safety
standard.
Third, the manner that the CPSC has used to lift the stay for
products governed by the FFA has been confusing, non transparent, and
subject to apparent ad hoc consideration. For example, the CPSC used
the Augusts 9 Federal Register notice to announce it was lifting the
stay. However, the title of that notice (see above) made no mention of
the stay being lifted and seemed to only address technical issues
relating to third-party testing certification. Moreover, the actual
phrase lifting the stay was buried deep within the notice itself. the
CPSC stated, ``As the factor preventing the stay from being lifted in
the December 28, 2009, notice with regard to testing and certifications
of clothing textiles was the absence of a notice of requirements,
publication of this notice has the effect of lifting the stay with
regard to 16 CFR part 1610.'' As a result, many children's apparel
manufacturers did not realize that the stay of testing and
certification had been lifted for children's products subject to the
flammability standard for textiles. We would note that the extension of
the stay of testing and certification was announced with great fanfare.
Many companies mistakenly thought the CPSC would announce the lifting
of the stays with similar public statements.
Fourth, moreover, many were extremely confused as to whether the
stay of certification lifted for adult's products as well. In fact, the
CPSC was similarly confused and were not able to clarify when asked. In
response to our inquiries, the Commission only just announced the
status of certification for adult's products subject to the
flammability standard on December 28.
Fifth, AAFA petitioned for an additional 60 days because we felt
there was insufficient diversity to ensure no capacity problems. In
fact, when the stay for children's clothing was lifted, there were no
third-party testing facilities certified for Vietnam, the second
largest source of apparel (and a major source of kids clothing). As of
the end of 2010, we have not yet received an answer to this request.
Sixth, with respect to sleepwear, AAFA and several stakeholders
have been providing information to the CPSC on seemingly non compliant
sleepwear that is being sold. Many of those complaints appear to go
unanswered since the non compliant sleepwear continues to be sold year
after year. Requiring additional testing, when the CPSC does not appear
to be enforcing the existing rules, is not only frustrating to those
companies who are in compliance with testing requirements and
underlying standards, but also acts as a deterrent to ensure compliance
by those companies who are ignoring the current law. The third-party
testing regime doesn't address the main (and only) problem that exists
with respect to this standard--the apparent lack of enforcement.
CPSC officials have explained that the move to third-party testing
for FFA seemed logical since much of the industry is already using
third-party facilities to test for compliance. We would note however
that there is a significant difference between third-party accredited
facilities and third-party facilities. Many companies naturally assume
their labs are accredited with the CSPC without realizing that that
accreditation may still be pending. Similarly, the flammability
standards reflect detailed product safety regimes that are not easily
amended. We remain very wary of unintended consequences yet to
materialize as the CPSIA requirements are layered on top of existing
programs. At a minimum, we are concerned that we will see duplicative
testing and paperwork burdens.
Question 3. In your testimony you said the retroactive nature of
many of the rules in CPSIA creates huge problems for industry, with no
discernible benefit to improving product safety. Why do you believe
there is no benefit to safety?
Answer. The retroactive nature of the CPSIA forced many companies
to spend considerable resources to test inventory and to dispose
inventory that was perfectly safe to children. Before February 10, 2009
(the date the lead standard went into effect), the apparel and footwear
industry had to test all products on the shelves to determine and show
compliance. These tests were done prior to the issuance of the CPSC's
``Children's Products Containing Lead; Determinations Regarding Lead
Content Limits on Certain Materials or Products'' rulemaking that
stated components like fabrics would not exceed the 100 ppm lead
standard. As a result, companies had to spend money testing components
that were of little to no risk of exceeding the lead standard just to
prove product compliance. Moreover, as noted in my testimony, only
about 5 percent of the hard components (like buttons, zippers and
embellishments) were found to be not compliant with the lead standard.
Most of these non compliant components were items such as the zipper
stopper in the fly of children's pants that do not present any risk to
children's health and safety.
As a result, we ended up with weird outcomes. Clothing that did not
meet the lead standard, could be not be sold on February 10, 2009 since
it was a banned hazardous substance. However that same clothing could
be sold on February 9, 2009. Moreover, the CPSC did not force a recall
of any clothing sold on February 9 or before. Clearly if it were
dangerous it would be recalled. Furthermore, the CPSIA currently
permits a company to make a product with a component that contains 250
ppm. However, on August 15, when the new retroactive lead limit takes
effect, that exact same product becomes a banned hazardous substance.
Once again, while it can't be sold after August 15, it is not subject
to a recall. The safety of a product doesn't depend on the date when
the product is sold.
Question 4. Could you please elaborate on what you think the impact
will be on your members this February when the stay on third-party
testing for lead content lifts? Have your members been provided with
the information they will need to comply with these requirements?
Answer. When the Commission granted the stay a year ago, Chairman
Tenenbaum wrote ``The extension of the stay was needed in order to give
the agency more time to promulgate rules important to the continued
implementation of the CPSIA and for the agency to educate our
stakeholders on the requirements of those new rules.'' That continues
to be the case. The ``15 month rule'' has yet to be finalized, and
there remain serious questions with the draft rules that need to be
resolved. Moreover, with a year's worth of reasonable testing under our
belts, it is becoming increasingly clear that the third-party testing
environment is an unnecessary burden on businesses. Continuing the stay
gives all stakeholders more time to create a stable, logically
consistent, well thought-out, and well understood regulatory system. It
also avoids a damaging job killing cost that will be imposed on
businesses with zero gain in public safety. One of our members recently
reported this to me with respect to the lifting of the stay.
Currently we use an XRF machine that we bought to do our lead
substrate testing for our products. We deliberately buy
components from trusted suppliers that are lead free. They rely
upon process controls and XRF testing as well. There is some
third-party testing done but most is done in house under XRF.
Once the stay is lifted all that testing moves outside--either
by us or by our suppliers. We have about 1,000 styles that have
components that need testing--an average of about 7 components
in each style (since zippers can be as many as 3 components).
Many of those components are unique to each style so we can be
looking at 7,000 tests at $50 a test for $350,000 of third-
party testing. When you add in third-party testing for lead
coatings--screen print--and flammable fabrics you push us well
over $1 million. These extra lab costs are occurring as
everything else--including cotton which is at near record
levels--are climbing. The XRF machine still has some use for
screening but it mostly becomes a $25,000 paperweight.
Question 5. You identified the CPSIA mandated public database as
one area where your industry has concerns. Please explain what your
concerns are with this database.
Answer. Above all, we believe the database must be a reliable
source of credible information that appropriately reflects its ``dot
gov'' web address. As Chairman Tenenbaum stated in her February 17,
2010 ICPHSO address, ``. . . Don't believe everything you read on the
Internet, except what you read on websites that end in dot gov.'' By
this statement, Chairman Tenenbaum is pointing out that government
websites are held to the highest standards as public resources. People
expect government websites to provide credible information and the
database should be no different--even with a disclaimer. Materially
inaccurate information serves no one, can be detrimental to businesses,
will ultimately damage both the credibility and overall success of the
database and damage the credibility of the agency itself. The final
rulemaking does not go far enough to ensure the credibility of the
information posted to the database and the CPSC must take steps to
guarantee that the posts are both reliable and in the public interest.
Question 5a. Would you please tell us more about the resources that
you believe your members will be forced to devote to following the
database in order to address potential reports?
Answer. Members will have to devote time and resources to tracking
information and allegations that are made on the website. Since the
CPSC is under no requirement to actually remove materially inaccurate
information, and yet is vested with the sole authority of determining
what is materially inaccurate, companies are so far unsure if their
efforts to correct the record (such as providing information that a
particular product is a counterfeit) will even result in removal of
offending entries. Especially with the advent of the CPSIA, product
safety professionals have found even more demands on their time.
Requiring them to also track a public database--especially one with the
imprimatur of the Federal Government--to respond to ill informed and
inaccurate allegations will result in even less time to devote toward
actual product safety management.
Question 6. Where do you believe the CPSC can act to alleviate
these concerns, and where do you think a legislative fix is necessary?
Answer. The CPSC has limited flexibility to alleviate our concerns
with the database without a legislative fix. Most significantly, the
CPSIA's database provision does not do enough to ensure the material
accuracy of the reports of harm. While timely dissemination of
information is important, materially inaccurate information is
extremely damaging to businesses and will never benefit consumers. The
legislation puts into place a very strict timeline for the CPSC to
transmit the report of harm to a manufacturer within 5 days and then
post the information onto the website within 10 days of transmission--
regardless of whether an investigation for material inaccuracy is
pending. The database provision must be amended to require the
Commission to not post information should the report of harm
potentially contain materially inaccurate information.
However, the agency can take some regulatory actions as well since
the CPSC's database rulemaking created several additional concerns for
businesses. For example, the CPSC expanded the list of those who can
post to the database well beyond the scope of the CPSIA's finite list.
Including these additional categories of submitters will dilute the
effectiveness of the database as more materially inaccurate information
will likely be posted. Many of these categories of submitters will not
have first hand knowledge of the incident, have access to the consumer
product involved, and may have ulterior motives in posting information
on the database.
Limiting the scope of the database as much as possible upon
implementation will be fundamental in the database's success. This
approach will limit mistakes, minimize the impact of the mistakes, and
give the CPSC more flexibility to make changes to the database as it
develops.
Question 7. Chairman Tenenbaum and Commissioner Northup discussed
budgetary issues related to the CPSC. What impact do you believe that
the CPSIA has on the effective utilization of resources by the CPSC?
Answer. The CPSIA has directed many of the CPSC's resources away
from important safety regulatory activities and focused the agency's
limited resources on burdensome rulemaking activity. These rulemakings,
while important to industry's compliance efforts and understandings,
have had little impact on improvement of consumer product safety. The
predominant problem with the CPSIA is that the agency is not allowed to
prioritize based on actual product safety regulatory need and is forced
to issue dozens of rulemakings on a very short, rigid timeline.
Moreover, finding solutions for CPSIA compliance issues has been an
extremely onerous process as the CPSIA leaves the agency little
flexibility to provide necessary relief to businesses. For example, in
order to determine a component or material compliant with the lead
standard, the agency has had to spend months of time and significant
resources analyzing products and materials that are of little to no
risk to consumers and children. As noted in my oral comments, starting
in 2008, AAFA worked closely with the CPSC to show there is no lead in
textiles. AAFA and several retailers sent in thousands of test reports
showing that lead would never appear in fabric. The textile
determination was not finalized until August of 2009. While the
determination has been very helpful for industry as now manufacturers
do not have to test textiles for lead, we believe Congress should
revisit the CPSIA to enable the CPSC to make these determinations more
quickly. We further believe that Congress needs to give the agency more
flexibility to consider risk so the CPSC can appropriate their funds to
real product safety concerns.
Question 8. You expressed concerns with the CPSIA's lack of clear
preemption with regard to state and local laws in your opening
statement. Please clarify what your concerns are with regard to
preemption. Do you have any specific examples?
Answer. A common-sense product safety regulatory approach is to
have a strong Federal regime that preempts state regulations. Logic
tells us that a product crossing state lines does not make it safe or
unsafe. It follows that product safety regulations should be uniform
throughout the United States. Complying with various labeling
requirements and chemical content standards is confusing and burdensome
for companies.
California Proposition 65, which is specifically exempted from
preemption under the CPSIA, presents a whole range of challenges. Among
other things, it relies on different compliance and enforcement
mechanisms that often mean companies have to work toward separate CPSIA
and Proposition 65 compliance targets.
Even the CPSC battles with these issues. Just recently, the news
reported about a mother in Georgia finding a product with a California
toxic substances warning label on it (see http://www.wsbtv.com/news/
26334677/detail.html). CPSC spokesperson Scott Wolfson responded to the
mother's concerns with, ``We respect California law, but parents should
know that the safety of their children is not necessarily at risk if
they see that label.''
Question 9. Chairman Tenenbaum discussed the idea of a ``functional
purpose'' exemption to the lead standard. What are your thoughts on
that proposal?
Answer. While we agree that the CPSIA exemption standard is too
strict, a ``functional purpose'' test is not an appropriate solution.
The CPSC's job is to assess the safety of products--not to determine
whether lead is a necessary component of the product or material.
Adding the additional ``functional purpose'' test would result in the
CPSC wasting too much time and resources on an evaluation that does not
help answer the real, relevant question: is the product safe? We should
grant the CPSC the authority to make simple determinations based on
their assessments of whether a product or a class of products presents
a risk of lead absorption. We recommend Congress look at Commissioner
Northup's statement accompanying the Commission Report to Congress
Pursuant to P.L. 111-117, Conference Report 111-366 on Recommendations
to Amend the CPSIA. She suggested Congress look at amending the lead
exemption standard to allow for a ``de minimis'' amount of bioavailable
lead in products. In her words:
The point of a de minimis bioavailability or absorption
exception is to concentrate the enforcement resources on the
real problems as well as to avoid obtaining negligible benefits
at enormous cost . . . A particular virtue of the de minimis
approach is that it would not require product-by-product
approval by the agency, because manufacturers could determine
for themselves whether their products meet the standard
(subject to penalty and liability for errors) without having to
petition the agency for an exclusion.
Question 10. In your testimony, you identified eight
recommendations for changes to the CPSIA and CPSC. Your eighth point
was that ``there is more to the CPSC than CPSIA.'' Please explain what
you meant by that statement.
Answer. Overall, it seems as though the CPSC has spent the majority
of their resources in the past two and a half years on CPSIA-related
activity. Be it writing interpretive rulemakings, explaining to
businesses how the regulations will apply to them, hosting workshops or
simply carrying out the mandates of the legislation--implementing the
CPSIA has been the priority of the agency to a point where other
equally important functions have languished. The agency has not been
able to keep up with the press of work from the CPSIA, and in so doing
may have not spent adequate attention on other key enforcement and
regulatory priorities.
Moreover, the legislation forces the CPSC to spend extraordinary
amount of time rehashing old issues. In my oral statement we discussed
our effort to show that there is no lead in textiles--a fact well known
to all. In another example, the legislation requires the agency study
the toxicity of phthalates--a study the CPSC conducted many years ago
already. The CPSC determined that phthalates were not a risk to
children and so to require the CPSC to conduct the same study is an
inefficient use of resources. Giving the agency the flexibility to
allocate their resources to address real safety and public health needs
is crucial so the agency can deal with new chemical and product
concerns as they arise.