[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
                  A REVIEW OF CPSIA AND CPSC RESOURCES

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

                                HEARING

                               BEFORE THE

           SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND TRADE

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 17, 2011

                               __________

                           Serial No. 112-10


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov



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                    COMMITTEE ON ENERGY AND COMMERCE

       FRED UPTON, Michigan          HENRY A. WAXMAN, California
              Chairman                 Ranking Member
JOE BARTON, Texas                    JOHN D. DINGELL, Michigan
  Chairman Emeritus                  EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               EDOLPHUS TOWNS, New York
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
MARY BONO MACK, California           ELIOT L. ENGEL, New York
GREG WALDEN, Oregon                  GENE GREEN, Texas
LEE TERRY, Nebraska                  DIANA DeGETTE, Colorado
MIKE ROGERS, Michigan                LOIS CAPPS, California
SUE WILKINS MYRICK, North Carolina   JANE HARMAN, California
  Vice Chair                         MICHAEL F. DOYLE, Pennsylvania
JOHN SULLIVAN, Oklahoma              JANICE D. SCHAKOWSKY, Illinois
TIM MURPHY, Pennsylvania             CHARLES A. GONZALEZ, Texas
MICHAEL C. BURGESS, Texas            JAY INSLEE, Washington
MARSHA BLACKBURN, Tennessee          TAMMY BALDWIN, Wisconsin
BRIAN P. BILBRAY, California         MIKE ROSS, Arkansas
CHARLES F. BASS, New Hampshire       ANTHONY D. WEINER, New York
PHIL GINGREY, Georgia                JIM MATHESON, Utah
STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio                JOHN BARROW, Georgia
CATHY McMORRIS RODGERS, Washington   DORIS O. MATSUI, California
GREGG HARPER, Mississippi            DONNA M. CHRISTENSEN, Virgin 
LEONARD LANCE, New Jersey                Islands                       
BILL CASSIDY, Louisiana              
BRETT GUTHRIE, Kentucky              
PETE OLSON, Texas                    
DAVID B. McKINLEY, West Virginia     
CORY GARDNER, Colorado               
MIKE POMPEO, Kansas                  
ADAM KINZINGER, Illinois             
H. MORGAN GRIFFITH, Virginia         
                                     

                                  (ii)
           Subcommittee on Commerce, Manufacturing and Trade

                       MARY BONO MACK, California
                                 Chairman
MARSHA BLACKBURN, Tennessee          G.K. BUTTERFIELD, North Carolina
  Vice Chair                           Ranking Member
CLIFF STEARNS, Florida               CHARLES A. GONZALEZ, Texas
CHARLES F. BASS, New Hampshire       JOHN D. DINGELL, Michigan
GREGG HARPER, Mississippi            EDOLPHUS TOWNS, New York
LEONARD LANCE, New Jersey            BOBBY L. RUSH, Illinois
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
BRETT GUTHRIE, Kentucky              MIKE ROSS, Arkansas
PETE OLSON, Texas                    HENRY A. WAXMAN, California, ex 
DAVE B. McKINLEY, West Virginia          officio
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
JOE BARTON, Texas
FRED UPTON, Michigan, ex officio
  


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Mary Bono Mack, a Representative in Congress from the State 
  of California, opening statement...............................     1
    Prepared statement...........................................     3
Hon. G.K. Butterfield, a Representative in Congress from the 
  State of North Carolina, opening statement.....................     4
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     7
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................   119
Hon. Edolphus Towns, a Representative in Congress from the State 
  of New York, prepared statement................................   119

                               Witnesses

Inez Tenenbaum, Chairman, Consumer Product Safety Commission.....     8
    Prepared statement...........................................    10
    Answers to submitted questions...............................   167
Anne Northup, Commissioner, Consumer Product Safety Commission...    18
    Prepared statement...........................................    20
    Answers to submitted questions...............................   205
Jolie Fay, Founder, Skipping Hippos, and Secretary, Handmade Toy 
  Alliance.......................................................    60
    Prepared statement...........................................    63
Wayne Morris, Vice President, Division Services, Association of 
  Home Appliance Manufacturers...................................    71
    Prepared statement...........................................    73
    Answers to submitted questions...............................   248
Rick Woldenberg, Chairman, Learning Resources, Inc...............    83
    Prepared statement...........................................    85
    Answers to submitted questions...............................   250
Nancy A. Cowles, Executive Director, Kids in Danger..............    95
    Prepared statement...........................................    97
    Answers to submitted questions...............................   254

                           Submitted Material

Letter of March 4, 2009, from Mr. Dingell to the United States 
  Consumer Product Safety Commission.............................   121
    CPSC response................................................   126
Prepared statements of the American Motorcyclist Association, 
  Motorcycle Industry Council, Goodwill Industries International, 
  Retail Industry Leaders Association, and Representative Denny 
  Rehberg of Montana, submitted by Mrs. Bono Mack................   152


                  A REVIEW OF CPSIA AND CPSC RESOURCES

                              ----------                              


                      THURSDAY, FEBRUARY 17, 2011

                  House of Representatives,
 Subcommittee on Commerce, Manufacturing and Trade,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 11:30 a.m., in 
room 2322 of the Rayburn House Office Building, Hon. Mary Bono 
Mack (chairwoman of the subcommittee) presiding.
    Members present: Representatives Bono Mack, Blackburn, 
Harper, Lance, Cassidy, Guthrie, Olson, Pompeo, Kinzinger, 
Barton, Upton, Butterfield, Dingell, Towns, Schakowsky, and 
Waxman (ex officio).
    Staff present: Gary Andres, Staff Director; Jim Barnette, 
General Counsel; Mike Bloomquist, Deputy General Counsel; Paul 
Cancienne, Policy Coordinator, CMT; Andy Duberstein, Special 
Assistant to Chairman Upton; Robert Frisby, Detailee, CMT; 
Brian McCullough, Senior Professional Staff Member, CMT; Jeff 
Mortier, Professional Staff Member; Gib Mullan, Chief Counsel, 
CMT; Katie Novaria, Legislative Clerk; Michelle Ash, Chief 
Counsel; Felipe Mendoza, Counsel; and Will Wallace, Policy 
Analyst.
    Mrs. Bono Mack. The subcommittee will come to order. I 
would ask members to take their seats.
    As we begin to work this year, I would like to thank all of 
the members on the Subcommittee on Commerce, Manufacturing and 
Trade for your participation, especially the new ranking 
member, Mr. Butterfield. I would also like to congratulate Mr. 
Upton on his chairmanship of the full committee and to thank 
him for entrusting me with the chairmanship of this very 
important subcommittee.
    As you know, the Energy and Commerce Committee is the 
oldest standing committee in the House of Representatives, 
dating back to 1795. Its original name was the Commerce and 
Manufactures Committee and our subcommittee continues to focus 
on the core of our original jurisdiction. The chair now 
recognizes herself for an opening statement.

 OPENING STATEMENT OF HON. MARY BONO MACK, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mrs. Bono Mack. This is the first hearing of our 
subcommittee for the 112th Congress. Over the months ahead I 
plan to look at a wide range of issues that deeply affect 
Americans in their daily lives. One of the most important as 
well as one of the most vexing issues we face today is how do 
we get our economy back on track? How do we create new jobs? 
How do we bring jobs which have been lost to foreign countries 
back home and how do we make ``Made in America'' matter again? 
I believe it is part of our job to take a close look at what is 
working and what is not working and then see how we can work 
together to make a real difference in peoples lives.
    Today's hearing is about the Consumer Product Safety 
Improvement Act, affectionately known as CPSIA. This 
legislation was truly a landmark in efforts to improve consumer 
product safety. It was the first reauthorization of the CPSC in 
17 years and it modernized and strengthened the agency in many 
different and meaningful ways. While CPSIA has many virtues, 
there are some unintended consequences of the law as well. We 
have a responsibility to the American public to review those 
specific provisions of the law that have proven to be 
problematic and to fix them. Admittedly, it is a careful 
balancing act and we have to be certain as the old saying goes, 
``not to throw the baby out with the bathwater.''
    For thousands of businesses who strive to be responsible 
let us do what is best for consumers. CPSIA has consumed and 
inordinate amount of their time trying to understand how each 
new regulation and standard will affect them. Unfortunately, 
many have gone out of business, attributing their demise to 
some of the burdens of compliance with the many provisions of 
the new law. We need to strike a careful balance. As a Nation, 
we simply cannot afford to lose jobs or to stifle innovation 
because of unnecessary regulations. Frankly, many businesses 
never even heard about this law until well-after it was 
enacted. Most were shocked to learn of the onerous requirements 
it would impose on them if they manufactured or sold any 
children's product even though they had never done anything 
wrong and never had a single product recall.
    It began with the best of intentions. In 2007, the widely 
publicized toy recalls for violations of existing lead paint 
standard gave way to new prohibition on lead content in 
children's products. As interpreted by the Commission, this 
category goes far beyond just toys to cover sporting goods, 
library books, ATVs, educational products, CDs, clothing and 
many other items. The goal was a noble one, making products 
safer for our kids but within just months of passage both the 
Commission and the Congress realized that problems with the new 
law would need to be addressed.
    The Commission recently announced yet another stay of 
enforcement, at least five now by my count that it deems 
necessary to avert potentially disastrous results. What is 
more, during the last Congress numerous bills and legislative 
drafts were introduced including one by Mr. Barton to remedy 
some of the problems we already know about. I hope our new 
members can quickly get up to speed on these issues and working 
together we can come up with a commonsense solution that is a 
win-win for everyone.
    Today the Commission has jurisdiction over literally 
thousands of different types of products. It is critically 
important that they should be able to prioritize their 
resources to address the products that pose the greatest risks 
to consumers. As a mother, I have very strong, passionate 
feelings about protecting all children but as a former small 
business owner I know all too well how unnecessary regulations, 
even well-intentioned ones can destroy lives too. This is a 
rare opportunity to put aside the differences that often divide 
this great body and put our heads together to make a good law 
even better. It is up to us now and as we begin this important 
debate, I am going to encourage everyone to remember what we 
all tell our kids growing up, keep your eye on the ball.
    [The prepared statement of Ms. Bono Mack follows:]

               Prepared Statement of Hon. Mary Bono Mack

    This is the first hearing of our Subcommittee for the 112th 
Congress. Over the months ahead, I plan to look at a wide range 
of issues that deeply affect Americans in their daily lives. 
One of the most important--as well as one of the most vexing 
issues we face today--is how to get our economy back on track. 
How do we create new jobs? How do we bring jobs which have been 
lost to foreign countries back home? How do we make ``Made in 
America'' matter again? I believe it's part of ``our job'' to 
take a close look at what's working and what's not working, and 
then see how we can ``work'' together to make a real difference 
in peoples' lives.
    Today's hearing is about the Consumer Product Safety 
Improvement Act or ``CPSIA.'' This legislation was truly a 
landmark in efforts to improve consumer product safety. It was 
the first reauthorization of the CPSC in 17 years, and it 
modernized and strengthened the agency in many different and 
meaningful ways.
    While CPSIA has many virtues, there are some unintended 
consequences of the law, as well. We have a responsibility to 
the American public to review those specific provisions of the 
law that have proven to be problematic and to fix them. 
Admittedly, it's a careful balancing act, and we have to be 
certain--as the old saying goes--not to throw the baby out with 
the bath water.
    For thousands of businesses, who strive to be responsible, 
``let's do what's best for consumers''--CPSIA has consumed an 
inordinate amount of their time trying to understand how each 
new regulation and standard will affect them. Unfortunately, 
many have gone out of business, attributing their demise to 
some of the burdens of compliance with the many provisions of 
the new law. We need to strike a careful balance. As a nation, 
we simply cannot afford to lose jobs or stifle innovation 
because of unnecessary regulations.
    Frankly, many businesses never even heard about this law 
until well after it was enacted. Most were shocked to learn of 
the onerous requirements it would impose on them if they 
manufactured or sold any ``children's product''--even though 
they had never done anything wrong and never had a single 
product recall.
    It began with the best of intentions. In 2007, the widely 
publicized toy recalls for violations of the existing lead 
paint standard gave way to a new prohibition on lead content in 
children's products. As interpreted by the Commission, this 
category goes far beyond just toys to cover sporting goods, 
library books, all-terrain vehicles, educational products, CDs, 
clothing, and many other items.
    The goal was a noble one: making products safer for our 
kids. But within just months of passage, both the Commission 
and the Congress realized that problems with the new law would 
need to be addressed. The Commission recently announced yet 
another stay of enforcement--at least five now by my count--
that it deems necessary to avert potentially disastrous 
results. What's more, during the last Congress, numerous bills 
and legislative drafts were introduced--including one by Mr. 
Barton--to remedy some of the problems we already know about. I 
hope that our new members can quickly get up to speed on these 
issues, and--working together --we can come up with a common 
sense solution that's a win-win for everyone.
    Today, the Commission has jurisdiction over literally 
thousands of different types of products. It's critically 
important that they should be able to prioritize their 
resources to address the products that pose the greatest risk 
to consumers.
    As a mother, I have very strong, passionate feelings about 
protecting all children. But as a former small business owner, 
I know all too well how unnecessary regulations--even well 
intentioned ones--can destroy lives, too. This is a rare 
opportunity to put aside the differences that often divide this 
great body and put our heads together to make a good law even 
better.
    It's up to us now. And, as we begin this important debate, 
I'm going to encourage everyone to remember what we all tell 
our own kids growing up: Keep your eye on the ball.
    Mr. Butterfield, you are now up to bat.

    Mrs. Bono Mack. Mr. Butterfield, you are now up to bat and 
the gentleman from North Carolina, the ranking member, Mr. 
Butterfield is now recognized for 5 minutes for his opening 
statement.

OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE STATE OF NORTH CAROLINA

    Mr. Butterfield. Let me thank the chairman for convening 
this very important hearing today and I certainly thank the 
witnesses for their anticipated testimony. We received a copy 
of your advanced testimony and I read most of it last evening 
but though I did not read all of it and so I look forward to 
your testimony today.
    Today marks our first hearing and I want to thank the 
chairman of this subcommittee for calling this hearing and for 
her friendship and for her anticipated leadership on this very 
important committee. I reached out to the chairman and she has 
reached out to me and we have created a friendship and I look 
forward to working with her as we go forward. I can certainly 
say that the early signs are encouraging.
    As today's hearing demonstrates, the issues before this 
subcommittee often have a real and direct impact on the daily 
lives of the American people. From the toaster they use at 
breakfast, to the dishwasher they load as they head out the 
door, to the dolls and the toy trucks their kids play with, 
people reasonably expect the consumer products they bring into 
their homes will be safe. Unlike many of the issues we deal 
with, consumer product safety is nonpartisan or at least it 
should be. In fact, a poll released just yesterday by the 
publisher of Consumer Reports found that 98 percent of American 
consumers agree that the Federal Government should play a 
prominent role in improving product safety. I am hopeful that 
we will be able to find common ground and move forward in a 
bipartisan manner on consumer product safety. It is clearly 
what the American people want and expect.
    This is an obvious choice as our first hearing. We all 
understand the challenges that the Consumer Product Safety 
Commission has faced in implementing the CPSIA, the law that we 
all know so much about. I also understand that we are likely to 
see some legislation on this issue in the coming weeks. While 
no complete agency overhaul is likely to be perfect, the CPSIA 
has provided some crucial changes to strengthen and modernize 
the consumer product safety system, particularly with respect 
to children's products. The law established basic safety 
standards for limiting the amount of lead and phthalates in 
children's products. It also introduced a product testing 
system designed to ensure that all children's products and 
other products subject to mandatory safety rules are safe, and 
it gives the Commission new resources and authority, and 
reestablished a five-member commission, two of whom are sitting 
in front of us, allowing it to proceed in an unfettered way 
with its decision and rulemaking authority.
    Consumers had long believed that if a product made it to 
the store shelf that it must be safe. Unfortunately, that was 
not the case and is not the case and the millions of toys 
recalled in the summer of 2007, illustrated this frightening 
trend and these weren't just recalls because of high lead 
levels. Many were due to design-related safety defects that 
could have led to burns and choking and strangulation among 
other potentially fatal dangers.
    Parents were concerned and outraged, as were the members of 
this committee. As a result, we resolved that our children 
would no longer be the frontline for measuring the risk to 
their health and safety from toys and other products they use. 
These manufacturers would have to prove their products were 
safe before they made their way into the hands of our children.
    I understand that implementation has been a challenge for 
the Commission and for the small and large manufacturers 
working to comply with the new law. Today I hope to hear about 
how the law is working as well as the new challenges and as 
some say the unintended consequences that may have been 
created. I also hope to learn how the Commission allocates its 
resources between implementing this law and its many other 
important responsibilities. I also look forward to hearing why 
key provisions of the law still aren't being enforced. That is 
very important and why some congressionally mandated rules 
still have yet to be finalized.
    I look forward to the hearing from all of the witnesses and 
as I said earlier, I thank you for coming today with your 
testimony.
    Mr. Butterfield. I am going to yield my last minute that I 
have to any member who would like to consume. Ms. Schakowsky, 
you have my remaining time.
    Ms. Schakowsky. I thank the gentleman very much.
    I want to congratulate Chairman Tenenbaum for restoring the 
Consumer Product Safety Commission to its proper role of 
protecting consumers. And consumers do believe when they go and 
pick items off the shelf, they already think that somebody 
somewhere is protecting them, and thank goodness the CPSC is 
doing that just now. Before this landmark bill passed, there 
were 170 items of children's jewelry containing lead at high 
and dangerous levels. This legislation did something about that 
and finally, when we did our annual toy safety bill there were 
fewer items that we said were dangerous on the shelf.
    The Commission has already shown its flexibility in dealing 
with some of the problems of implementation. But the bottom 
line issue of protecting consumers and particularly children, 
that is the proper role of government and that is our proper 
role that we will exert today. We are going to protect our 
consumers and our children.
    Mrs. Bono Mack. Chairman Upton yielded his 5 minutes for 
his opening statement to me in accordance with committee rules. 
As his designee, I now recognize Mr. Barton, chairman emeritus 
of the committee and conferee on CPSIA for 1 minute.
    Mr. Barton. Thank you, Madam Chairwoman, and it is good to 
see you in the chair. I look forward to participating with you 
and the other members of this subcommittee as we have a very 
profitable next 2 years.
    It is good to see our two witnesses, the honorable 
chairwoman and of course Commissioner Northup who I actually 
remember as congresswoman. Anne Northup, it is good to see you.
    I was a conferee on the consumer product safety, whatever 
it was, information act 3 or 4 years ago. Mr. Dingell was the 
chairman of that conference. Ms. Schakowsky was on it and Mr. 
Waxman was on it, and I think Mr. Whitfield and Mr. Stearns on 
our side. Senator Boxer I remember and Senator Inouye on the 
Senate side. We had a good conference. We reported a good bill. 
Unfortunately, we put some language in at the very end of the 
conference that has turned out to be very difficult because it 
doesn't really give the CPSC the flexibility that they need to 
show some discretion for some of our smaller manufacturers and 
in some cases, individual producers of some of these products. 
We introduced a reform bill in the last Congress. We were never 
able to get consensus on it and I hope that under the 
leadership of Chairwoman Bono Mack that we can get that 
consensus in this Congress.
    And with that I would yield back and say I again look 
forward to working on this issue.
    Mrs. Bono Mack. I thank the gentleman.
    Now, I would like to yield a minute to Mr. Pompeo, one of 
our newest members, 1 minute.
    Mr. Pompeo. Thank you, Madam Chairwoman. Thanks to the 
witnesses for coming out this morning. I look forward to the 
hearing.
    A little later today on the floor or perhaps it will be 
early tomorrow morning I will offer an amendment of having to 
do with the public accessible database information. CPSC is set 
to roll this database out in early March as called for in CPSIA 
in 2008, but unfortunately the database's final role in my view 
has created and will create far more harm then good that it 
will do. The statute in my view has been interpreted to mandate 
the posting of materially inaccurate information and the agency 
has created a database that will both direct consumers away 
from safe products to relatively less safe ones and damage the 
reputation of very safety-conscious manufacturers.
    I hope this amendment will pass this afternoon and we will 
get the time to reflect and review and give this committee the 
chance to do oversight so that we can get a better role, a 
better database that will more effectively accomplish the 
important objectives of the statute. Thank you.
    Mrs. Bono Mack. And I have one more speaker but at this 
point she is not here. I would like to yield to Mr. Waxman for 
his opening statement for 5 minutes.

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

    Mr. Waxman. Thank you very much. I want to thank Chairman 
Bono Mack for holding this hearing and congratulate her on her 
new chairmanship of this important subcommittee.
    Until recently, our product safety system and especially 
our toy safety system was terribly broken. In 2007 and 2008, we 
saw record recalls and a total loss of consumer confidence in 
the safety of all products. Children were killed and horribly 
injured by defective and dangerous products. The Consumer 
Product Safety Commission had limited statutory authority. Only 
two of the three commissioner slots were filled and its staff 
numbers and resources had thoroughly atrophied. This situation 
alarmed families across the nation and Congress responded. In 
2008, Congress enacted truly historic product safety 
legislation that vastly improved our children's health and 
safety. Now that we are a few years away from the recalls and 
the most dramatic stories have left the front pages some 
suggest that we didn't really need to enact such a strong law 
but I believe that is wishful thinking. The fact remains that 
the system we had in place was a failure. This law was 
necessary to protect kids and families across the country.
    Let me just mention a few of the law's successes. Today toy 
recalls have dropped from 172 in 2008, to 44 in 2010. Today we 
have strong mandatory standards for cribs and CPSC has finished 
creating a publicly accessible consumer incident database which 
as far as I know is a very useful database and we ought to get 
a chance to review it.
    Today CPSC has increased its staff and resources. It 
increased surveillance at ports, five commissioners as well as 
a new IT system and laboratory. To retreat now from the proven 
consumer protections achieved under this law would be a huge 
mistake.
    This morning an important new study was published. It shows 
that between 1990 and 2008, nearly 200,000 infants and young 
children went to emergency rooms for injuries related to cribs 
and playpens. And a new poll for the Consumers' Union documents 
Americans want a strong federal regulator to protect children 
from these dangers.
    As legislators we know that legislation is not flawless. 
Although the Commission has made great strides in carrying out 
this law, we have heard from a number of stakeholders that 
certain provisions of the law may need adjustment and we need 
to take these concerns seriously. Over the past 2 years we have 
met repeatedly with stakeholders affected by the new law to 
understand their concerns and to craft an appropriate 
legislative response. I see that some of these stakeholders are 
represented on the second panel of this hearing and I welcome 
them. As I have stated to them in the past and I will repeat 
today, I am committed to working with them, the Commission and 
members of this committee to strike a delicate balance between 
the need for targeted changes to the law and the need to 
preserve the most important public health accomplishments of 
the law. Product safety should not and has not been a partisan 
issue and it is my sincere hope that this committee will work 
quickly to resolve these issues once and for all.
    I look forward to hearing the testimony. I look forward to 
working with the new subcommittee and committee leadership as 
we continue our commitment to protect all consumers, especially 
children.
    And I yield back the balance of my time.
    Mrs. Bono Mack. I thank the gentleman.
    Today we have two panels before us. Each of the witnesses 
has prepared an opening statement that will be placed in the 
record. Each of you will have 5 minutes to summarize that 
statement in your remarks.
    On the first panel we have and we welcome the Honorable 
Inez Tenenbaum, Chairman of the Consumer Product Safety 
Commission. Joining her on the first panel is Commissioner Anne 
Northup and our former colleague. Thank you both for being here 
today.
    Chairman Tenenbaum, you are recognized for 5 minutes.

STATEMENTS OF INEZ TENENBAUM, CHAIRMAN, CONSUMER PRODUCT SAFETY 
 COMMISSION; AND ANNE NORTHUP, COMMISSIONER, CONSUMER PRODUCT 
                       SAFETY COMMISSION

                  STATEMENT OF INEZ TENENBAUM

    Ms. Tenenbaum. Thank you and good morning, Madam Chairman, 
Ranking Member Butterfield and members of the Subcommittee on 
Commerce, Manufacturing and Trade.
    Since assuming the chairmanship of the Commission in July, 
2009, I have focused on three key objectives. First, I have 
worked diligently to implement the Consumer Product Safety 
Improvement Act and use that Act's new authorities in a manner 
that is both highly protective of consumers and fair to 
industry stakeholders. I recognize that some of these rules 
have caused concern in the regulated community and I have 
worked to provide appropriate relief whenever possible. 
However, it is also important to point out that the vast 
majority of the CPSIA rules and requirements had been adopted 
unanimously by the Commission and widely accepted by the 
industry consumer groups and families across the country.
    I am pleased to report to the subcommittee, we are on time 
and on budget to launch the public database on the safety of 
consumers' products mandated by Section 212 of the CPSIA and 
this launch is on March the 11th. This database will empower 
consumers with information allowing them to quickly determine 
whether products they already own or are considering purchasing 
are associated with safety hazards or recalls. I want to assure 
this subcommittee that CPSC staff has worked to ensure that the 
database is fair to all stakeholders while also fulfilling the 
intentions of Congress. Overall, I strongly believe that we 
have reached the right balance of addressing the manufacturers' 
legitimate concerns while also ensuring that the public has 
access to critical consumer product safety information. This 
database will prevent injuries and it will save lives. Congress 
recognized this when it added Section 212 to the CPSIA and I 
look forward to seeing this important to fully implemented in 
just 3 weeks from now.
    Second, I have focused on changing the CPSC's internal 
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. In the 
last year the Commission has released a strategic plan that 
establishes a plan to make the CPSC the global leader in 
consumer product safety. We have established a new office of 
education global outreach and small business ombudsman that has 
already begun to provide outreach to small businesses and 
crafters. We have embarked on a substantial upgrade of our 
information technology system which has formed the backbone of 
the database and our new CPSC.gov homepage.
    Third, I have focused on proactive prevention of consumer 
harms identifying emerging hazards and keeping those products 
out of the stream of commerce. We have taken a number of steps 
to increase the surveillance of potentially harmful consumer 
goods by signing several information sharing agreements with 
Customs and Border Protection and increasing our physical 
presence at the ports of entry. The Commission's safe sleep 
team has also made great strides to rid the marketplace of 
dangerous cribs, usher in a new generation of safer cribs and 
to educate parents about the importance of maintaining a safe 
sleep environment for infants and toddlers. A key component of 
this was the mandatory crib safety standard. These standards 
were designed through many hours and staff working 
collaboration by the Commission resulting in a unanimous vote 
in favor of the new standards on December the 15th, 2010. And 
particularly, I am extremely proud of the Commission's staff 
and the work they have done to implement the bulk of the CPSIA 
and create a safer consumer product marketplace for all 
Americans.
    The Commission has received increases in appropriations 
over the past 3 years. These resources are making a difference. 
They ensure that we can get the message out to families after a 
hurricane or an ice storm that the use of portable generators 
in homes can result in carbon monoxide poisoning and tragedy. 
They also allow us to do public outreach to new mothers so they 
will not place their newborns into an unsafe sleep environment 
that could result in a tragedy. Some will say that these 
resources are solely to promulgating rules under the CPSIA. 
This is untrue.
    In 1980, the Commission had almost 1,000 employees and an 
inflation-adjusted budget of $150 million. By 2007, the 
Commission had fallen to 385 employees and was barely able to 
carry out its core functions. We simply cannot return to those 
dark days.
    In the coming months I look forward to discussing possible 
target improvements to the CPSIA with this subcommittee. On 
January 15, 2010, I reported a unanimous report of the 
Commission requesting some additional flexibility on some key 
requirements. I recognize that some want to go further than 
this and reopen the entire act. This would be a mistake. Calls 
for a return to a completely risk-based lead paint and contents 
standard are one example of a proposal that is seriously ill-
advised. Lead is a contaminant and a powerful neurotoxin. It is 
a particular threat to the developing brain of a fetus, infant 
and a young child and with documented negative effects on 
behavior and permanent loss of IQ.
    During my tenure as chairman, my message to manufacturers 
has been simple. Get the lead out. If it absolutely has to be 
in your product, we have sought the authority to address it 
through a functional purpose exception. We have made 
substantial progress in this area since the passage of the 
CPSIA and parents should never have to wonder and worry about 
whether the model train or the toy they purchase for their 
child is leaded or unleaded.
    Thank you again for inviting me to provide testimony before 
the subcommittee today.
    [The prepared statement of Ms. Tenenbaum follows:]

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    Mrs. Bono Mack. I thank the chairman and recognize 
Commissioner Northup for 5 minutes.

                   STATEMENT OF ANNE NORTHUP

    Ms. Northup. Thank you, Madam Chair, and let me 
congratulate you. I know you are the first woman that is a 
subcommittee chairman of the Energy and Commerce Committee and 
as a former member I know that those achievements are so 
important to all the women that come behind us. It is very 
exciting to the women on Capitol Hill to see you as the chair 
so I congratulate you, and also, Ranking Member Butterfield, 
thank you for having me here today.
    I appreciate the opportunity to come and talk a little bit 
about the CPSIA. I certainly want to acknowledge what the chair 
said and that is that most of our votes have been five to 
nothing. They are bipartisan. There is a wish across the 
Commission to make sure that our children are safer. I feel 
that if I had been still in Congress when the CPSIA had come 
before me that I would have voted for this bill. And 
understanding it as I read it as I was nominated by the 
President to this Commission and then went through the 
confirmation process, I had an opportunity to visit with most 
of the Senators who had been on the subcommittee and the 
committee, the Commerce Committee. And overwhelmingly I heard 
from them that there were unanticipated consequences of this 
bill and told me that they believed in the bill that there was 
a flexibility for us to both protect children and to avoid 
these unintended consequences and I promised them that I would 
do that.
    And like I said as I read the bill, everything seemed so 
straightforward and so reasonable. It was only then when I was 
sworn in that I found out that the Commission had come to 
certain conclusions about portions of this bill, especially the 
absorb ability exclusion that have rendered whole sections of 
the bill meaningless. In other words, our Commission has found 
on a partisan majority that that section of the law is totally 
meaningless, that it does not apply to one product. So I am 
here today, not to be the naysayer because I think it is 
important entirely. I think it is important to recognize that 
our chair has instituted some things that have modernized this 
Commission and have made it possible for us to intercept things 
at the border and to advance our technologies that will make an 
enormous difference and help us protect children.
    So I am here though to bring to your attention some of my 
concerns. It has been shocking to me the number of businesses 
that we have entirely caused to go out of business, the number 
of businesses that have left the children's product arena 
completely because of this bill, the number of choices that 
parents no longer have. Everyday I hear from businesses who 
tell me we use to make this many versions of this product. 
Today we make one because any additional components will cause 
us this many more thousands of dollars of testing, this many 
more thousands of dollars of paperwork and tracking and 
concerns that we have, and we heard it just at the toy fair 
this weekend. Almost universally, people estimated their cost 
and increase the price to parents 20 to 30 percent and the fact 
that they have reduced the bells and whistles of their toys. 
They have, as one major manufacturer told me, we have taken the 
fun out of toys because we don't want to put multiple colors. 
We don't want to put the sound in it. We don't want to put the 
extra additions to it because we have to--it is just so 
complicated to abide by the law.
    Specifically, the law requires that yes, everyone meet the 
lead standard and that means whether the lead is absorbable to 
not, even though in the law it said that items where the lead 
was not absorbable where exempted from the law. So we have 
applied it so that everything is affected by that even when it 
is not absorbable. So people that make ball bearings and 
connectors and things like that have no way to make those 
products and still comply by the law. Or they are using, as 
somebody told us in testimony, substitutes that are even less 
safe, like antimony, a known carcinogenic. So we need to 
address that exclusion.
    I want to use the rest of my time to talk about the 
database. Right now you can go on Amazon.com, decide you are 
going to order a highchair for your child as I did for my 
grandchildren and the brand that I chose, I put in a brand, 147 
different highchairs they make and some of them are $54 on the 
first page, one is $148. Today our database, somebody puts in 
an incident and all they have to do is give that brand name. 
They do not have to say whether it was the $54 chair or the 
$148 chair. They can be misidentifying it as we find people 
misidentify things in incidents everyday. That kind of 
information is not helpful to consumers. If accurate 
information is helpful, inaccurate information can drive people 
away from the safest product and it is not helpful to us who 
have to enforce the law. I know we will have a chance to talk 
about this further in the questions and answers but I did want 
to bring that to your attention.
    Thank you very much.
    [The prepared statement of Ms. Northup follows:]

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    Mrs. Bono Mack. I thank the witnesses for their testimony 
and I am going to recognize myself for the first 5 minutes of 
questioning.
    And my first question is to Chairman Tenenbaum, while well-
intentioned, CPSIA is clearly flawed in many, many respects. 
What needs to be done to make it more workable?
    Ms. Tenenbaum. Thank you, Madam Chairman. Last January all 
of the Commissioners submitted a report to this committee and 
to Congress and it was a unanimous report in which we asked for 
four things. First of all we asked for greater flexibility to 
granting exclusions from the Section 101(a) lead limits and 
that is now it is 300 in parts per million. In August it will 
be 100 parts per million. We asked for exclusions for ordinary 
children's books. We asked for a perspective application when 
we go to 100 parts per million so that compliant inventory now 
in the stores or are being shipped to the stores would not have 
to be recalled. We only want 100 parts per million applied 
prospectively. And we wanted some relief and some flexibility 
for small manufacturers and crafters and so that was what we 
asked the Committee for. Mr. Waxman proposed a bill and that 
was discussed on both sides of the aisle. Mr. Barton had a bill 
and a number of members submitted bills but Congress did not 
take any action last year. So we are hopeful that this year we 
can have.
    Mrs. Bono Mack. Thank you for those suggestions. Let me 
move on to the next question because 5 minutes goes by so 
quickly.
    Ms. Tenenbaum. I am sorry.
    Mrs. Bono Mack. That is OK. If you could clarify something 
for me though, in terms of lead exemptions you favor the so-
called functional purpose exemptions. What do you mean by that 
and doesn't this threaten to bog down the Commission in making 
case by case determinations?
    Ms. Tenenbaum. Well, under the Federal Hazardous Substance 
Act which is the act which used to govern the way we dealt with 
lead before they passed CPSIA, there was a functional purpose 
exemption. For example, if you had a chemistry set, you had to 
label what the chemicals were but we did not recall chemistry 
sets because the chemicals were needed for the functional 
purpose of the chemistry set. It was our thoughts, several of 
us that we could say if you have an ATV and you need the ATV or 
the bicycle lead in it to make it stronger or have greater 
machine ability when you are making an ATV or bicycle, then 
that is your functional purpose, and if it doesn't harm 
children then we could exempt you. We never envisioned this 
being a very complicated exemption process but as it was talked 
about in Congress it became very complicated and then it really 
sunk under its own weight.
    Mrs. Bono Mack. Thank you. It seems to me that the 
Commission's priorities get out of whack at times and you spend 
so much time focusing on trace amounts of lead but what about 
dangers that actually result in kids being hurt? According to 
one of my hometown newspapers, 20,000 children a year under the 
age of 5 are injured in shopping cart accidents. Under CPSIA, 
things like doll clothes must be approved by third-party 
testers. Are the locking wheel devices on shopping carts 
tested?
    Ms. Tenenbaum. Well, thank you so much for that question. 
My staff has made me aware of the problems with shopping carts 
and we have been engaged with the ASTM which is the voluntary 
standards making organization to look at shopping carts so that 
we can expedite the issues with those carts. I would have to 
note though because we have increased resources we are able to 
look at emerging hazards faster and that is why any cuts to our 
budget will knock us off course in terms of our ability to 
respond to emerging hazards like shopping carts and lithium 
battery buttons and so forth.
    Mrs. Bono Mack. Thank you, I can see.
    Ms. Northup. Madam Chair, first of all the functional 
purpose the way it was written would have been very difficult. 
It said that anybody applying for it would have to prove that 
there was no substitute and as we heard in testimony yesterday, 
there is always a substitute. The fact is you will end up with 
a $7,000 bicycle. So its not that there is not substitute. But 
if a ball bearing for example and it is made of brass is 
important in a bicycle, why is it not also important in a Tonka 
truck and the other items and so yes, bicycles might have the 
financial wherewithal to apply. They have to prove that there 
is no other practical substitute. They have to prove it doesn't 
hurt a child. I think that the minority of the Commission 
believes that if we exempt a material for one manufacturer, we 
ought to exempt that same material for all because if it meets 
the bar that it is not going to harm a child then why is there 
any other reason for us to address it. And as far as yes, this 
has completely absorbed the Commission's time. There are things 
that have gone unmet. Things like table saws. There is 
technology that addresses this. There are 10 fingers that are 
cut off a day in this country. Carbon monoxide poisoning, 500 
people die a year from that because of generators. These are 
things that are way overdue in the rulemaking that we have not 
taken up because there simply is not the time to do that.
    Mrs. Bono Mack. I thank the witnesses and now I would like 
to yield 5 minutes to Mr. Butterfield for his questioning.
    Ms. Butterfield. Thank you, Madam Chairman.
    Let me address my questions to the chairman of the 
Commission and the chairman is right, 5 minutes goes very 
quickly so I am going to try to get through this.
    Ms. Tenenbaum. I am trying to be.
    Mr. Butterfield. It is clear that the manufacturers have 
become critical of the Commission in implementing the database 
and we have just talked about that. Even your colleague, Ms. 
Northup, has been somewhat respectfully critical of the 
database. Just last week in written testimony to the House 
Oversight and Government Reform Committee, the National 
Association of Manufacturers' president, Mr. Timmons, stated 
that, ``The final rule creates a default for immediate 
publication before any meritorious claims regarding trade 
secrets or material inaccuracies are resolved.'' In your 
testimony today, you point our several safeguards in the final 
rule to protect manufacturers and I know this is an issue that 
the drafters of the act gave a lot of thought. If you have ever 
read or even glanced at this section of the law, you can see it 
is rather lengthy. In fact, the statute provides more 
procedural safeguards then any other public database at a 
federal agency including NHTSA and FDA, and so I appreciate 
that the critique of the database provided by a witness on 
today's second panel is a bit more careful then what came from 
the manufacturers last week. Nonetheless, it seems to me that 
there is some amount of misunderstanding and misinformation 
about the database. I would like you to help us clear up that 
with a few yes or no questions. Number one, is it correct that 
anyone who submits a report must provide to the Commission 
their name and contact information?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Is it correct that anyone who submits a 
report must complete a verification that the information is 
true and accurate?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Is it correct that within 5 business days 
of receiving a report the Commission will transmit the consumer 
report directly to the manufacturer?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Madam Chairman, is it correct that the 
Commission will not publish that report until the tenth 
business day after transmission to the manufacturer?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Is it correct that during the 10-day 
waiting period the manufacturer is given a chance to do three 
things? Number one, claim parts of the report are materially 
inaccurate. Number two, claim parts of the report contain 
confidential information and three, submit its own comments to 
be made public along with the consumers report. Is that true?
    Ms. Tenenbaum. Yes, that is true.
    Mr. Butterfield. Is it correct that the Commission as 
practicable will attempt to expedite that is expedite review of 
material inaccuracies where the manufacturer has limited the 
length of its submission?
    Ms. Tenenbaum. That is true.
    Mr. Butterfield. Is it correct that the Commission will 
review all inaccuracy claims and will correct or remove any 
inaccurate information published in the database?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Is it correct that the database will 
contain only reports of harm from a product and not general 
complaints or reviews about a product?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Is it correct that the Commission will 
seek criminal prosecution through the Department of Justice 
where it identifies repeated instances of false submissions?
    Ms. Tenenbaum. Yes.
    Mr. Butterfield. Finally, and we are within the 5 minutes, 
let me quote from the final rule on this one: ``The Commission 
will as a matter of policy, redact the allegedly confidential 
information from a report of harm before publication in the 
database until it makes a determination regarding confidential 
treatment.'' Does that really mean what it says? Is it correct 
that no information claimed by a manufacturer to be 
confidential will be made public until this is resolved?
    Ms. Tenenbaum. That is true.
    Mr. Butterfield. All right, thank you, I don't know about 
you but those safeguards strike me as very adequate and I am 
very pleased with your responses. Thank you.
    Ms. Schakowsky. Would the gentleman yield for a second?
    Mr. Butterfield. Yes, I will yield to the gentlelady from 
Illinois.
    Ms. Schakowsky. Thank you.
    I wanted to raise just the issue that our chairwoman raised 
about--oh no, it was Ms. Northup raised about products not 
being clearly identified, that there may be what?
    Ms. Northup. One hundred forty-seven, that was it, yes.
    Ms. Schakowsky. Yes so that is there something in the 
regulations that makes sure that we are clearly identifying the 
actual product line that the product itself precisely so there 
isn't that kind of confusion so it is not just a brand name but 
that it is which exactly of the items?
    Ms. Tenenbaum. Well, you have to give the product name but 
you don't have to give the model name. But you have to give the 
product name. You have to give the manufacturer, the date you 
purchased it, your name and verification and several other 
things but we are not required to do the model. But we are 
hopeful that people will give the model name to be more clear 
and we certainly will investigate. If we investigate we will 
find out what the model name is.
    Ms. Schakowsky. I think that is a reasonable thing to ask.
    Mrs. Bono Mack. Ma'am, if we can move on before we get 
around to a second round of questioning hopefully.
    Ms. Schakowsky. All right, OK, excuse me.
    Mrs. Bono Mack. But members the time is involved by the 
votes on the floor so I would like to recognize Mr. Harper from 
Mississippi for 5 minutes.
    Mr. Harper. Thank you, Madam Chair.
    I would like to ask, if I could, Commissioner Northup a 
couple of questions on some of this. What provisions of CPSIA 
do you think do not warrant the cost or regulation?
    Ms. Northup. Well, first of all there have been no cost 
benefit analyses so there is we don't even know what the cost 
of these regulations are. We estimated in 2009, billions of 
dollars. I have attached a list of companies that we know have 
gone out of business. Companies that we know have cut back. 
Companies that have left the market, the number of employees 
that have been cut off but there has been no broad study of 
that. But I would, the one that we have stayed right now, the 
testing and third-party certification, because we have advanced 
technology we are better at the border then we have ever been. 
Our ability to get logs of what is coming into this country we 
know who the people are that maybe have a bad record, who has a 
good record. We have the ability to scan an enormous amount of 
products instantaneously as they come in. Our level of 
penalties we if something comes in and it doesn't comply the 
entire shipment is destroyed and so those threats have created 
an enormous pressure on the manufacturers overseas to verify 
and re-verify and check. The third-party testing and then the 
certification on top of that is creating a nightmare of 
paperwork because you have to track every nut, bolt, screw. 
Bicycles, 141 different components so every time it changes in 
the manufacturing process you have to change the lot number, 
you have to change the 141 certification numbers, you have to 
retest and they just, you know, they what it is old technology 
this sort of third-party testing. And if I may say, the people 
that are going to break those rules do you think they are not 
going to put in a new shipment of snaps and not change their 
certification or keep using the same lot numbers? We have such 
incredibly advanced ways of scanning materials coming into this 
country now that the cost of just that alone is going to be 
billions of dollars and it is on every single product even 
though the vast, vast, vast majority of them because of the 
fact, their products will be destroyed as they come in at the 
ports are fine. Let me just say that the database, we have 
spent $29 million on it. Yes, Representative Schakowsky is 
exactly right. It has the manufacturer's name. It may say a 
Graco high chair. It does not say which Graco high chair. It 
does not say the day it was purchased. You are supposed to say 
the approximate date of the accident but I will just use the 
example of Thanksgiving, three grandchildren. One is the new 
Graco high chair, one is the one I brought up from the basement 
that is 30 years old, one of them is the antique I have sitting 
by the fireplace. I could enter that as an accident if the leg 
fell off of one of those. The manufacturer has no idea. Is this 
a 1990s high chair or is this today's high chair? Do I need to 
conduct a recall today or do I have a product that years ago 
was produced? And by the same token, the parents who might go 
online and say OK I am going to buy a high chair. What data is 
in the database? They are not going to know. Is this a product 
that is on the market today? And finally, it allow anybody, not 
first person knowledge but it can be third-party. We are even 
inviting any organization to download all their data into our 
database. So the manufacturer gets a report, a red Schwinn 
bicycle that the wheel fell off. Schwinn says I don't make a 
red Schwinn bicycle but you have to give your name if you are 
the entrant and you can be a bystander. You can be a third-
party organization. You can be the Consumers Union. So we have 
no way to go back to the consumer and say can you help us 
figure this out. They don't make a red bicycle and then we find 
out it wasn't. I had today a major company that sent me about 
eight examples of where there were two, one where a child died. 
It took 30 days for us and them to ascertain that it was a 
hoax. That is the kind of information. Those are things that 
come in everyday into our database. They are now going to be 
public within 15 days of when they are entered and nobody is 
going to be able to verify because they are not going to know 
who the consumer is.
    Mr. Harper. Thank you, Madam Chair.
    Mrs. Bono Mack. I thank the gentleman. I would like to 
yield 5 minutes to the gentlelady from Illinois, Ms. 
Schakowsky.
    Ms. Schakowsky. My certain, OK, sorry.
    I wanted to ask the chairwoman, is $29 million the cost of 
the database?
    Ms. Tenenbaum. No, that is not true and we have repeatedly 
said it is not true. We were charged when we were given new 
funds to upgrade our whole IT system. The database is around $3 
million. The IT system was to get a data warehouse. We have 
five different silos of data that couldn't talk to each other. 
Our database couldn't talk to CBP so we had done extensive 
upgrading of our whole IT system and the database cost about $3 
million of that. Now, we have had a soft launch of the database 
and of the 900 incidents we have had in February most of them 
had the serial number and the other thing we only out of that 
900 we only had four material inaccurate claims and we had 723 
businesses who signed up to have a business portal so they can 
get the information within 5 days of us receiving it.
    Ms. Schakowsky. Thank you. So actually you did. How were 
those four discovered that were inaccurate, or whatever word 
you used?
    Ms. Tenenbaum. Well, the business portal when you sign up, 
the 723 businesses sign up and we send them the report, they 
come back to say this information is materially inaccurate. 
Now, the law requires us to post the report of harm before we 
make the determination of whether or not it is true. We are 
going to try our very best to determine if it is materially 
inaccurate and the company is right and not put it on the 
database within 10 days. But if we haven't received the 
information or haven't had the time to research it and get to 
the bottom of it if it is a very complex laboratory issue and 
testing issue then we will have to post it and that is what the 
rub is.
    Ms. Schakowsky. OK but I wanted to get to this issue of 
verified or firsthand. Here is my concern, one of the things 
that really inspired me to work on this law was the death of a 
child, Danny Kaiser, and his mom, Linda Ginzel who created Kids 
in Danger and became a great advocate over this tragedy. Well, 
she wasn't there when her son died in the crib. Would she be 
then ineligible to report on her son's death because she had 
not been at the daycare center or a parent who is not in the 
room when a child dies in a crib? How are you going to 
distinguish?
    Ms. Northup. Actually I wrote an alternative database and 
absolutely the daycare center can put this information in, the 
parent can put this information in. Nobody wants people that 
don't have firsthand information not to be able to put this 
information in. The issue is more a question of third parties 
that are sometimes fourth- and fifth-hand information. Let me 
just say one of the things I have seen at the Commission is 
that organizations that have particular safety agendas, 
marketing agendas want to use information of accidents to come 
to you and say there are 10 examples of this. You ought to pass 
a law. I will give you an example. The fire marshals, they want 
sprinklers in all buildings. We are not involved in that issue 
but they often put into fires in homes the fact that it was a 
BIC lighter. Well, it may not be a BIC lighter. In fact, BIC 
lighter has come to us and say please make them identify these 
better because what they really are is the cheap foreign 
knockoff. The problem for the company is if it says a BIC 
lighter. They are subject to a class-action lawsuit. They are 
subject to running around trying to prove that it is not a BIC 
lighter. And we don't even have the name of the person whose 
house burned down. All we have is the person that entered the 
incident, the Fire Marshals Association.
    Ms. Schakowsky. I get what you are saying but I think that 
the organizations that represent they become a portal for 
people who have been hurt. Also have this, you can trace back 
this information.
    Ms. Northup. Many of them don't. We often have information 
where we cannot get back to who it was that was harmed and I 
would just say, as a parent that I knew what the product was 
that was at hand and, the question is would a bystander have 
that information? This is really important information to have. 
If you as the chair said I have never seen our agency be able 
to resolve a question of material inaccuracy in 10 days, ever. 
There are ones that are still dangling out there that are 9 
months old that we still haven't ruled on.
    Ms. Schakowsky. I yield back.
    Mrs. Bono Mack. Good, the gentlelady's time has expired.
    The chair recognizes the gentlelady from Tennessee, Ms. 
Blackburn, for 5 minutes.
    Mrs. Blackburn. Thank you, Madam Chairman, and I want to 
welcome the two of you and thank you for being here and thank 
you for getting your prepared testimony to us.
    I think that we have in front of us CPSIA is something that 
most people are just not real happy with. And I found it very 
interesting and, Commissioner Northup, I want to ask you what 
you think about the results of that Consumer Union poll that 
Mr. Waxman sent around yesterday and a dear colleague and also 
would like for you, if you will, to continue to talk about some 
of the unintended consequences. You have hit on the absorb 
ability problems and the miscues that are there, businesses 
closing. Of course we hear a lot from our charitable 
organizations about their displeasure with what we are seeing 
in the implementation of this law. Price increases we have 
talked about the database problems and then of course you were 
just beginning to touch on what I think is very dangerous for 
many of our American manufacturers and that is the fraud and 
infringement on their copyrights and the fraudulent 
merchandise, the pirated merchandise that makes it way and they 
found out about it later. This Schwinn bicycle is a perfect 
example of that. And so if you will talk about those unintended 
consequences that are coming into you and then touch on that 
Consumer Union poll because I don't think people are in favor 
of this.
    Ms. Northup. Well, I was amazed at the poll. It did say--
first of all if you had polled me and said do you think the 
Federal Government should be involved in consumer safety, 
wouldn't every one of us in this room say yes? I was pretty 
shocked only eight or nine out of ten said yes. What I was even 
more surprised is that only half of those that said yes said 
they are very much supportive of that. The other half said just 
somewhat supportive of the Federal Government being involved. 
But mostly I would say that the poll was written in such a way 
all of us do polls politically and we know if we want really 
accurate information we have to make the poll so that it 
doesn't slant the question. You could also have written it that 
says do you think the Federal Government should require 
businesses to test every component of their children's product 
in an outside lab increasing the price 20 to 30 percent for 
materials that are not even dangerous to them. What sort of 
results do you think you would have gotten? Here is another 
one. Do you think the Federal Government should have spent $29 
million? Let me tell you, this whole database is we could have 
continued operating on the database we had. It was it only had 
to be changed because it was going up on a database where 
certain incidents that are not verifiable and can be entered 
trial lawyers, consumer advocates or competitors was false 
information could be posted about legitimate companies. You 
know, what sort of poll do you think you would have gotten? I 
don't think either those questions or the questions in the poll 
give you the real truth that we need to if you really if what 
you are trying to do is poll the American people you need to 
actually give them this is better.
    Mrs. Blackburn. OK, and let me move on to the unintended 
consequences.
    Ms. Northup. Yes, the unintended consequences I would just 
tell you that it was a month after being at the Consumer 
Product Safety Commission. I was actually depressed because I 
thought that when I passed laws when I was in the General 
Assembly of Kentucky and in Congress and I sent them over to 
agencies and I thought they would make them rational and that 
they had more leeway. This law does not have a lot of leeway 
but we have heard from Members of Congress. Senator Klobuchar 
sent us a letter and said this law clearly was meant to exempt 
items that aren't where the lead is absorbable.
    Mrs. Blackburn. OK let me stop you right there.
    Madam Chairman, do you think the agency's overreach in 
trying to implement this law the way they have overreached on 
some of these rules has attributed to some of the jobs loss 
that we have seen in the manufacturing sector in this country?
    Ms. Tenenbaum. I don't think we have overreached. I think 
we have implemented it based on the plain language of the 
statute and the issue here is the statute gives three 
exemptions.
    Mrs. Blackburn. OK, let me stop you right there because I 
want to move on to the question on the database, $29 million is 
what you have spent total on this database?
    Ms. Tenenbaum. No, we have spent $3 million on the 
database.
    Mrs. Blackburn. OK.
    Ms. Tenenbaum. We also received funds and that is the whole 
$29 million, $3 million of which were the database which we did 
IT modernization.
    Mrs. Blackburn. Did you carry that out in-house or did you 
contract it out?
    Ms. Tenenbaum. Well, we had some contractors and some 
insiders.
    Mrs. Blackburn. OK and the timeframe that it has taken you 
to get the database?
    Ms. Tenenbaum. We had when I came to the Commission July 29 
we had not received the money from OMB because we had not 
qualified to bring the money down so we started in July of '09 
and that is when the money came in.
    Mrs. Blackburn. But you still have problems with it both 
from the entry and the information side?
    Ms. Tenenbaum. No, we don't. We just did a soft launch.
    Mrs. Blackburn. Yield back.
    Mrs. Bono Mack. Yes, the lady's time has expired.
    The chair recognizes the gentleman from New York, Mr. Towns 
for 5 minutes.
    Mr. Towns. Thank you very much, Madam Chair.
    And also let me say it is good to see you.
    Ms. Northup. Thank you. It is great to see you.
    Mr. Towns. Happy to know there is life after Congress.
    Ms. Northup. I have missed you.
    Mr. Towns. Let me just begin--first of all I want to clear 
up something. I keep hearing $3 million. I keep hearing $29 
million on this database. I mean how much does this database 
really cost? Let me put it on the record here.
    Ms. Tenenbaum. Three million.
    Ms. Northup. The IT modernization cost $29. This is the 
first time I have ever heard the figure $3 million ever but it 
was necessary in order to have this public database so that 
everything could talk to each other but let me just say going 
forward this year we do not have additional FTEs in the budget 
to handle the cases that come in but after this year we do. So 
the cost is going to grow because we are going to have to 
manage all the questions of verification when, you know, the 
verification that is part of the intake of an incident is only 
a self-verification where you say to the best of my knowledge 
this is true and we know as we take in cases right now that 
sometimes people have the wrong product. They have, you know, 
so the verification that the litigation that is involved all of 
that will take more FTEs.
    Ms. Tenenbaum. Mr. Towns, we had five separate databases or 
silos. They could not talk to each other so if someone sent us 
an e-mail on CPSC.gov and said my stove caught on fire, it was 
this manufacturer and this model number we would then manually 
have to put into our incident report on computers but we had 
all five. We didn't have a data warehouse where one system 
could talk to the other system. We needed an upgrade in our 
hardware in our computers. We needed an upgrade in software. So 
we could not even share information with CBP because our 
systems wouldn't talk together so all of this is a larger 
effort to get our technology up-to-date and that we have people 
who have said they have repeatedly told Mrs. Northup that it is 
$3 million. It is not $29 million and so it is $3 million. The 
database is $3 million. It is not $29 million.
    Mr. Towns. OK, thank you. In 2008, CPSIA passed with broad 
bipartisan support. In fact I voted for it and was signed into 
law by President George Bush. According to your testimony, 
Commissioner Northup, this legislation has had unintended 
consequences you were talking about earlier to small businesses 
because of new testing standards. Would implementation of a 
component part testing rule benefit small businesses?
    Ms. Northup. We hope so. What we would hope is that there 
would be there were developed on the market suppliers that 
would provide pre-tested, pre-certified components. The snap, 
the zipper, the component so that somebody that say makes a 
child's outfit could go to Michael's or whoever, the hobby shop 
and pick up these components pre-tested and pre-certified and 
then depend on those in their final certificate as, they would 
have currency. We would accept those pre-certifications and 
certificates in the final product. It will help. It does not 
take away the fact that many small suppliers also had very 
small lots. They make things to order. They make things--for 
example at the toy fair I met a woman who makes things for the 
blind. She has to have buttons for the eyes because just 
painting them on doesn't give you the tactile benefit. We have 
educational toys that are very small lives and so all these 
seeking out these certification numbers, these pre-certified 
products then doing a final certificate that picks up all of 
those. Every time you go back to the store and you pick up 
another lot you have to change your final certificate. You have 
to change what your tracking label is so that it reflects a new 
certificate. It is a lot of paperwork and the small businesses 
are telling us that is why we are going to make one thing or we 
are going to get out of the children's product business. It is 
very, you know, Ashley Furniture was probably the best example. 
They spent $13 million testing. They have 14 layers of primer 
and final product. They have every screw, nut and bolt. Not one 
product, not one component violated the lead limit but it was 
$13 for them to get the tracking and the component testing done 
so far.
    Mr. Towns. Thank you, Madam Chair.
    Mrs. Bono Mack. Thank you. The gentleman's time has 
expired.
    I would like to recognize my new colleague from Kansas, Mr. 
Pompeo, for 5 minutes.
    Mr. Pompeo. Thank you, Madam Chairman.
    Chairman Tenenbaum, you said that there has been no cost 
benefit analysis performed at all, is that correct?
    Ms. Tenenbaum. Under the CPSIA the Commission had mandatory 
deadlines and also the CPSIA did not require the Commission to 
do cost benefit analysis. Now, under the Federal Hazardous 
Substance Act and no under CPSA which is our general act we do 
cost benefit.
    Mr. Pompeo. But there has been none on the database? So 
when we are talking about $3 million or $29 million that has 
been spent, I mean the real cost of this thing isn't what we 
are paying for the database. It is the hundreds of millions of 
dollars this is going to cost small business but we don't truly 
have any idea, is that correct, no analysis?
    Ms. Tenenbaum. Well, the Commission has not done that 
because it is not our role to but we would certainly support 
any other agency that wanted to do one. We would provide them 
with the data.
    Mr. Pompeo. Thank you. I appreciate that. You said, ``The 
rub is that we have to post it.'' You have to post it.
    Ms. Tenenbaum. We have to post within 10 days.
    Mr. Pompeo. So would you support this committee 
recommending that we provide flexibility at your agency that 
you don't have to put it on that you can make a decision about 
whether it is accurate and the right thing to do? Today you say 
we have forced your hand. Would you prefer that we gave your 
agency more flexibility?
    Ms. Tenenbaum. I think we need to stay to a limit where we 
can get information out as quickly as possible to consumers. I 
have heard of too many deaths, Danny Kaiser, other deaths of 
children because parents did not have the information and we 
need a quick turnaround if a product is a problem. We will make 
the best faith effort once it is given to us that it is 
materially inaccurate to make a determination.
    Mr. Pompeo. I appreciate that. I think this, I am an 
engineer. I love data but I also and I run for office and I 
know what people put online exactly.
    Mrs. Bono Mack. Will the gentleman yield for briefly?
    Mr. Pompeo. Yes, of course, yes, ma'am.
    Mrs. Bono Mack. First day jitters, opening night jitters up 
here. We forgot to start the clock so we would like to point 
out that your time will expire at 2 minutes.
    Mr. Pompeo. That is great. I assumed it was my first day 
jitters that you were referring to.
    Mrs. Bono Mack. That is right. It was your first day 
jitters. You had it right.
    Mr. Pompeo. That will happen as well. I just think this is 
a plaintiff's bar dream and I think the cost of litigation will 
be enormous.
    Ms. Northup, do you think it would make sense to delay the 
implementation of the database to let this committee work out 
some of the challenges to make sure that we get good 
information to the public and we don't end up causing all the 
problems that have been alluded to this morning?
    Ms. Northup. Absolutely, as I walked around the toy fair in 
New York, one person after another raised this issue to me. 
Some already had issues that had come in on the soft launch and 
said there is nobody that knows what the facts are on this. 
They don't have to give enough facts that you can possibly know 
what the product is. They don't have to give enough specifics 
that you can possibly know what went wrong with it or even if 
it is they can't even make the claim it is materially 
inaccurate because they have no way to correspond with us and 
have us be able to go back to the source who might have 
firsthand information. I think that when you consider the jobs 
in this country and you consider the fact that we are going to 
have manufacturers running around terrified about how they are 
going to answer a database question when maybe it is not even 
their product. Maybe it is a product that is not even on the 
market anymore. It is 20 years old. And consumers if I might 
say the benefit to consumers I think of the ladders ad where 
you have two people playing tennis on the tennis court and all 
these people come running down to the point where it is 
crowding out the legitimate game of tennis. If you have all 
these data dumps from these organizations in here, the 
legitimate firsthand benefit that you can get from this 
database is lost and I might see that company X had a problem. 
It might not be there product. It might be a product from 20 
years ago. I might think, OK I don't want to buy that product 
so I buy a different product and guess what? Really that was 
the safer product. So it is even misdirecting people to what is 
a hazard and what isn't a hazard, just some of the questions to 
stay within the timeframe.
    Mr. Pompeo. Thank you, Commissioner Northup.
    I yield back my time.
    Mrs. Bono Mack. I would thank the gentleman.
    I would and it is an honor to recognize the chairman 
emeritus and author of the original Consumer Product Safety Act 
as well as the conferee on CPSIA and the chair would recognize 
Congressman Dingell for 5 minutes.
    Mr. Dingell. Madam Chairman, I thank you and I appreciate 
your courtesy in recognizing me and I commend you for this 
hearing.
    As my colleagues some of them will remember and the members 
will remember we passed with the support of the unanimous 
support of this committee a unanimous bill on this matter. It 
was an excellent piece of legislation. It got to the United 
States Senate and it got screwed up. And then we went to 
conference and the screw-up was worsened and it wasn't very 
long before I was being called by industry inquiring why a bill 
which had passed the House unanimously, come out of this 
committee unanimously had been turned into such a sad 
caricature.
    So I have some questions for the Commissioner and I want to 
welcome the Commissioner and I want to welcome you 
particularly, Commissioner Northup.
    Ms. Northup. Thank you.
    Mr. Dingell. And I want you to understand this hearing is 
not critical of you but it is of the United States Senate and 
those people that screwed this up and we are going to try and 
figure out what it is we can make the matters right and help 
you to do your job. And I speak with particular outrage because 
years ago John Moss and I wrote the original legislation which 
created this your Commission in this room right here. It was a 
great success until the Senate got its hands on it and some 
members of the conference assisted actively in that screw-up.
    Yes or no to both Commissioners, Section 101 of the CPSIA 
permits the Commission to exempt certain materials and products 
from the ax lead limit? I believe that is so narrowly written 
as to be useless. Do you believe that Section 101(b) needs to 
be amended in order to permit the Commission a more reasonable 
degree of discretion in granting exemptions, yes or no?
    Ms. Tenenbaum. Yes.
    Ms. Northup. Yes.
    Mr. Dingell. To both Commissioners, similarly given 
widespread concern about the feasibility of retroactively 
applying CPSIA's requirements to existing inventory, do you 
believe the applicability of such requirements should instead 
be limited to products manufactured after the act's effective 
date or the effective date of regulations promulgated by the 
Commission pursuant to the act except in instances where the 
Commission decides that exposure to a product causes a health 
and safety risk to children, yes or no?
    Ms. Tenenbaum. Yes, for a hundred parts per million.
    Ms. Northup. Yes, for all parts. If they are not dangerous 
we should allow them to still be sold.
    Mr. Dingell. And you ought to have waiver authority, isn't 
that right?
    Ms. Tenenbaum. Yes.
    Ms. Northup. Yes.
    Mr. Dingell. That makes for intelligent regulation.
    Now again to both Commissioners, likewise I am concerned 
that the age limit for children's products defined in CPSIA 
unnecessarily subjects certain products such as bicycles to 
more rigorous standards then otherwise necessary. Do you 
believe the age limit used in the definition of children's 
products should be lowered, yes or no?
    Ms. Tenenbaum. No.
    Ms. Northup. Yes.
    Mr. Dingell. We have got a division. Do you believe that 
the Commission should have authority to deal with the question 
of waivers on that matter where it makes good sense, yes or no?
    Ms. Tenenbaum. Yes.
    Ms. Northup. Yes, except I worry about the big companies 
having the resources to ask for a waiver and for the exact same 
products small ones won't.
    Mr. Dingell. The little guys don't.
    Do both Commissioners, I am also concerned that the blanket 
applicability of certification and tracking label requirements 
could be when required unduly cumbersome especially for small 
businesses. Would an exemption for small businesses like the 
one contained in the Food Safety Modernization Act be feasible 
in the case of consumer products, yes or no?
    Ms. Tenenbaum. I would like to study that more. I don't 
know. I didn't read the food act.
    Mr. Dingell. That is a fair answer.
    Ms. Northup. I would support that but I would support doing 
away with third-party testing and certification and just let 
the advanced technology we have today. All the new tools that 
you gave us are plenty adequate to make sure that companies 
comply with our laws.
    Mr. Dingell. Now, to both commissioners I will expect that 
you will if you see fit make additional remarks for the 
purposes of the record and I sorry that I am so constraining 
you. Again to both commissioners, do you believe that the 
Commission's problems in implementing CPSIA can be remedied 
solely by administrative action by CPSC, yes or no?
    Ms. Tenenbaum. No.
    Mr. Dingell. Commissioner?
    Ms. Northup. We could make some significant changes if we 
made the absorb ability exclusion mean something and I think 
there is we could have the majority of the commissioners didn't 
so it will take your action to change that.
    Mr. Dingell. I thoroughly agree. We have made a fine mess 
out of this. It has to be rectified legislatively.
    Again to both Commissioners, if not do you support amending 
CPSIA to address these problems?
    Ms. Tenenbaum. Yes.
    Ms. Northup. Yes.
    Mr. Dingell. Would you assist the committee in our effort 
to do so?
    Ms. Tenenbaum. Yes.
    Ms. Northup. Yes.
    Mr. Dingell. I will be submitting additional questions to 
the record to allow the Commission to expand on these matters 
and I will ask Madam Chairman unanimous consent that my letter 
of March 4, 2009, to Commissioners Nord and Moore as well as 
their respective replies be entered into the record.
    Mrs. Bono Mack. Without objection.
    [The information appears at the conclusion of the hearing.]
    Mr. Dingell. And members of the Commission, I just want to 
ask this one additional question. Do you believe that 
implementation of CPSIA has overburdened the existing CPSC 
staff and resources?
    Ms. Tenenbaum. No.
    Ms. Northup. Yes.
    Mr. Dingell. Does CPSC have adequate resources with which 
to implement CPSIA as well as to carry out its other duties?
    Ms. Tenenbaum. Yes, if we are not cut.
    Mr. Dingell. Commissioner?
    Ms. Northup. No, I don't think we do but we could change 
the law and it would be sufficient and I am delighted to see 
you again, Representative Dingell.
    Mr. Dingell. Well, you are welcome back here, Commissioner. 
I am happy to see you and I am sorry we are seeing you under 
these circumstances and just maybe we can fix this mess. Thank 
you.
    Mrs. Bono Mack. The gentleman's time has expired.
    The chair would recognize the gentleman from Kentucky, Mr. 
Guthrie for 5 minutes.
    Mr. Guthrie. Thank you, Madam Chairman. I appreciate the 
opportunity to be here and I have to follow up Chairman 
Emeritus Dingell. To the other committee and back so I might 
have missed this but I know the ranking member asked questions 
about the database and Congresswoman Northup, my fellow 
Kentuckian, or Commissioner Northup, you were going to answer. 
You may have since I was gone. They went through a series of 
questions on the database and did you agree with the security 
that it is a secure database and they did clear up all the 
problems or if you have mentioned that then we will move 
forward.
    Ms. Northup. Let me just state again I think it is so 
important because this database is going to be turned on that 
first of all the database rule that was written there was great 
division within the Commission. It is one of the few things 
that has divided us so seriously. I just I want to reiterate 
that there are a lot of things that we agree with and that the 
chair has really done a magnificent job in coordinating with 
Customs and implementing so much of this law. It is a shame 
that we are sort of here on the biggest debate issue but it is 
going to be turned on in 3 weeks. It is going to allow anyone 
to input, anyone, any organization, third-hand knowledge, 
hearsay information and the type of things that we see 
everyday. We see a Facebook where somebody talks about Pampers 
and about that they are causing a huge problem. Suddenly we got 
in 500 or we get in all these cases as I have to be careful I 
don't talk about what is confidential but I think we have made 
public statements that to date we have not been able to find 
that there is any problem with Pampers. But we haven't even 
finished providing a final statement on that.
    Mr. Guthrie. OK, I want to get to another question. Go on 
for just a minute.
    Ms. Northup. For the companies that then would be running 
around because somebody collected some information on Facebook 
and at this point the person that owns the Facebook account 
could transfer every one of those incidents into our database. 
They do not have to know who it happened to. They put it in as 
their entry. That is legal. That is what they are supposed to 
do. It is the name and contact information of the person 
entering it, not the consumer.
    Mr. Guthrie. Right, I just wanted to ask another question 
real quick.
    Ms. Northup. Yes.
    And, Chairman Tenenbaum, and actually we met a long time 
ago when I was a State legislator and you hosted us for the 
Southern Regional Education Board in Charleston and you did a 
great job. Thanks but I am a manufacturer, my background, and 
like the Administration we are looking to create jobs and the 
ability to export, not just importing, increase our imports and 
my understanding is that CPSIA is that American manufacturers 
won't be allowed to sell their goods abroad unless they meet 
the lead standard that we just heard the Chairman Emeritus say 
we have got to fix. So and also they won't be able to sell 
abroad unless their goods have not been sold in the United 
States and never will be sold in the United States. So if they 
have never been sold in the United States or won't be they 
won't be able to sell abroad unless they compete with this law 
that we just heard other comment we think is unworkable. Do you 
think this puts American manufacturers at a disadvantage to or 
we couldn't make something here and send it somewhere else to 
go into a product and then come back here?
    Ms. Tenenbaum. No, American manufacturers have to meet the 
standard which is 300 parts per million right now and 90 parts 
per million for lead.
    Mr. Guthrie. Well our point is that it is difficult to do 
that and as the chairman emeritus has said the whole law we 
need to fix that.
    Ms. Tenenbaum. No, yesterday we heard testimony. Excuse me, 
I just interrupted you.
    Mr. Guthrie. No, go ahead. Go ahead. No that is fine. We 
are trying to get all of this in before we are out of time.
    Ms. Tenenbaum. I am sorry but this came to mind but we 
heard testimony about one of the largest testing laboratories 
in the world and they said they tested over 90,000 data points 
and they found that 97 percent already comply with the hundred 
parts per million lead and so people are already going to that 
standard. And the other thing is that domestic manufacturers 
and importers have to comply with the 300 parts per million 
lead content and 90 parts per million.
    Mr. Guthrie. Part of it is the labeling too.
    Ms. Tenenbaum. Right and Canada has already dropped their 
standard for lead content to 90. The EU has 90 but it is the 
solubility standard but it is roughly comparable and but it is 
so worldwide people are dropping their lead standards. Because 
I have an article from May 1936, which talks about the harm 
lead can do to children and just this article says even 
infinitesimal amounts can bring down the IQ. It is a potent 
neurotoxin. It can cause brain damage and there is no de 
minimis standard known. There is no safe level of lead known.
    Mr. Guthrie. I am going to let you go.
    Ms. Northup. Let me just say that we have health agencies 
that tell us about what is an unsafe level of lead. The CDC, 
the NIH, the EPA all tell us a child's lead level needs to be 
under 10 parts per deciliter of blood. Right now only one 
percent of all children reach that and in every case even the 
consumers, I mean the American Association of Pediatrics tells 
us that if a child doesn't, they don't say it is their bicycle 
handlebars to take away those toys. They tell you it is because 
of lead in paint, lead in gasoline and what to do to offset 
those. No one has ever suggested in the health community that 
your bicycle handlebars and things like that have anything to 
do. In fact, we allow more then that amount of lead, the FDA in 
a child's piece of candy can have more lead.
    Mr. Guthrie. As a manufacturer I can tell you if you agree 
with everything and it all works like it is supposed to, the 
traceability side of that because I have an automotive supplier 
and he said if he had to trace everything came in and went on, 
that is a real cumbersome thing for our American manufacturers, 
I think.
    Ms. Northup. Thank you.
    Mrs. Bono Mack. The gentleman's time has expired.
    The chair recognizes the gentleman from Texas, Mr. Olson, 
for 5 minutes.
    Mr. Olson. Thank you, Chairwoman, and thank you to our 
witnesses for coming in. I greatly appreciate your time and 
your expertise.
    I want to follow up on a comment you made, Commissioner 
Northup, and I will quote here, ``We are better at the border 
then we have ever been.''
    Ms. Northup. I was talking about products coming in.
    Mr. Olson. Yes, products coming in. Exactly. No, no, yes, 
yes, not yes but we don't want to open that. No, ma'am.
    I represent the Port of Houston which is the largest port 
in foreign products here in America and you all know that the 
Panama Canal is being widened and deepened and it is expected 
to be opened in 2015. When it is these very, very large cargo 
ships that right now are coming to the western coast of Mexico, 
the western United States are going to punch through the canal 
and come to the Gulf Coast. Any my question is are you working 
right now with DHS with the Customs people to make sure that we 
have the resources that when these ships get through if not 
were going to have some of these toys and all the things we are 
concerned about that you can verify and test these things and 
get ahead of this curve so they don't come to the pier, get off 
the pier and go into our economy?
    Ms. Northup. Really the person who has done so much on this 
is our chair and I feel like I ought to let you answer first 
because you have a lot you can say.
    Ms. Tenenbaum. Well, first of all thank you. First of all, 
last year we were the first agency to sign a memorandum of 
agreement with Customs and Border Protection whereby we get to 
see the manifest data. We have two people located at CBP and 
the CTAC office and we look at data on ships as it comes to the 
United States before it is even import before it is unloaded 
and we have also just finished a study on a risk management 
study so that we can target shipments and we are very, very 
accurate. Last year we, I had the numbers but we were able to 
have at least the targeted shipments that we stopped we found 
at least 50 percent had already violated. So we are working so 
that companies that don't have history of non-compliance can 
have a safe lane and those that we need to target and monitor 
closely we will have information well ahead of time before they 
get into the port. Because I visited the Port of Savannah and 
also the Port of Charleston and I understand that we need to 
get the shipments unloaded.
    Mr. Olson. Yes, ma'am.
    Ms. Northup, any comments?
    Ms. Northup. Yes, only that it is so sophisticated it is so 
impressive. I think when you consider how advanced it is and 
the fact is one of the reasons we have so many fewer recalls is 
because we are intercepting things at the port and it does add 
to my claim what I believe is a reason why third-party testing 
and all the certification and tracking of every single 
component is going to be obsolete in compared to the new ways 
we have to survey what is coming into our ports.
    Mr. Olson. Yes, ma'am. Thank you very much for those 
answers. I would encourage you to keep working with the Customs 
and Border Patrol because this is will be big all along the 
Gulf Coast.
    Ms. Tenenbaum. They are our strongest partners.
    Mr. Olson. I mean it is not just the Port of Houston. It is 
all the ports along the Gulf Coast are going to be impacted by 
this and obviously we need to stop these products from getting 
in as quickly as we possibly can.
    The other question I have is about the impact of CPSIA on 
sort of the charities. Under the lead content test requirements 
right now is it a violation to donate clothes, toys or other 
items to children 12 and under if the items have not been 
tested and certified in compliance with law?
    Ms. Tenenbaum. No, it is not a violation for you to give 
clothes to Goodwill or Salvation Army or any other charity. We 
have worked with all the charitable organizations and worked 
with States. We had a handbook. We have done an extensive 
education. We know that there are certain items that pose the 
largest risk. Children's jewelry could have cadmium or lead. 
Painted toys, items made out of vinyl because vinyl degrades 
quicker and lead can be exposed and there have been high 
amounts of lead in vinyl clothes, in vinyl clothing. So we have 
worked with them on things they need to check and not resell. 
Also it is illegal to sell a recalled product under CPSIA so if 
a crib has been recalled or playpen you shouldn't sell it. But 
we work really hard with the States and the organizations to 
try to educate them on what are the high-risk products.
    Ms. Northup. It is almost impossible to resell any 
children's product. As Goodwill told me in Kentucky they have 
lost a million dollars in sales in the first 4 months that this 
went into effect because the fact is they actually paid $35,000 
to buy an XRF gun. They hired somebody and trained them. By the 
time they found a button that passed they had spent more money 
then they would get on a blouse for example, a child's blouse 
and they found that so all of those things went out. All the 
new standards we have made for durable goods make every other 
durable good that is in the marketplace whether it is a car 
seat or a bath seat or you cannot sell them secondhand. So 
while it is not against the law for you to donate them, it is 
against the law for them to sell anything that doesn't comply.
    Mr. Olson. Thank you, ma'am.
    Mrs. Bono Mack. The gentleman's time has expired.
    The chair recognizes Congressman Lance for 5 minutes.
    Mr. Lance. Thank you very much, Madam Chair, and good 
afternoon to you both. I am new to the full committee, 
therefore new to the subcommittee and it is my honor to meet 
both of you and I look forward to working with both of you.
    As I understand that you have stayed portions of the law 
for several years in a row. I also understand that some 
manufacturers might still be worried that state attorneys 
general might enforce the requirements even though those 
requirements have been stayed and I would request your comments 
as to perhaps whether or not your stay should be effective with 
the States as well.
    Ms. Tenenbaum. Well, the stay will automatically lift 
December 31 of this year. Now what we have not and that is just 
for testing and certification for lead content, not lead paint. 
We didn't stay it but lead content.
    Mr. Lance. Yes.
    Ms. Tenenbaum. And so but you still have to comply. So we 
didn't stay enforcement. Any manufacturer has to comply with 
lead paint limits, total lead content, limits on certain 
phthalates, small parts, magnets, and F963. Now, that means 
that attorneys general may enforce the law just as we might 
enforce the law and the large manufacturers as well as the 
large retail, if you go into any retail establishment you will 
find that their products have been tested because they require 
before the Wal-Marts, the Toys R Us, Target, if they require 
you to show a third-party test and that is why many people are 
already testing. So the attorneys general are not stayed from 
enforcement and neither are we.
    Mr. Lance. And has that occurred in any situation with 
which you are familiar?
    Ms. Tenenbaum. Sure we have several attorneys general who 
are very active in consumer product safety and you can as well 
as some States who have lower lead limits then we do. Illinois 
has a 40 parts per million lead limit. Proposition, I mean 
California has had Proposition.
    Mr. Lance. But do you know what? I do not. Do you know what 
it is in New Jersey? I do not know.
    Ms. Tenenbaum. No, but I can look it up.
    Mr. Lance. Commissioner Northup, your comments?
    Ms. Northup. Yes, well first of all the attorneys general 
one of the things that the law did say is that attorneys 
general can enforce the law even though it is a federal law can 
enforce it at the State level and it has caused a lot of angst 
among manufacturers and, you know, even though Illinois has a 
40 parts per million, it doesn't say that you can't sell it. It 
just says you have to label it saying it might cause lead 
poisoning in your child.
    Mr. Lance. I see. Thank you, I did not realize that.
    A philosophical question, sometimes perhaps in all cases 
laws we pass here and that are passed at State capitols with 
which I am familiar have unintended consequences and then it is 
our responsibility to try to address them. Do you believe and I 
would address this to both of our distinguished witnesses. Do 
you believe that unintended consequences might on occasion 
result in overreaching?
    Ms. Tenenbaum. Well here is the law that was passed--allows 
to exempt products. If we cannot exempt a product if normal use 
and abuse of the product results in any lead being absorbed 
into the human body, any lead. So that is why when you had 
bicycles and ATVs and books the any lead standard kicked in and 
that is where we say we need flexibility.
    Mr. Lance. That would require modification of the statute 
in your opinion?
    Ms. Tenenbaum. It would require us to have some flexibility 
and that if there is no harm to the child or to the person 
using it then we could have a waiver or an exemption. We can 
grant an exemption.
    Mr. Lance. Ms. Northup.
    Ms. Northup. I think by far the simpler thing and the thing 
to give certainty to the providers, the businesses is to have 
an exemption that makes the absorb ability exclusion mean 
something. There were three exclusions. There were electronics. 
There was the inaccessible. We have made both of those two 
exclusions mean something considerable but we have decided that 
not one thing qualifies for the absorb ability. If you changed 
it to say no amount of lead could be absorbable that would 
cause any material change in a child's lead level we would 
totally rationalize this bill.
    Mr. Lance. Would you suggest that this be done at your 
level or through by statute?
    Ms. Northup. Well, I do make the argument I have a legal 
brief that I think that it did give us that because I believe 
that Congress when they passed it meant for that section of the 
law to mean something and there is a lot of statutory past 
interpretation that shows that you can't just write off a whole 
section of the law. But the majority of the Commissioners 
decided that we couldn't and so it will take a change by you.
    Ms. Tenenbaum. First of all that was.
    Mrs. Bono Mack. The gentleman's time has expired and we 
need to move along but I would like to thank both witnesses for 
appearing today.
    I also urge both of you moving forward to reexamine how the 
Commission prioritizes risk. Let us focus more on real dangers 
facing our children which may be going unaddressed at the 
present time and not perceived ones. Again thank you both very 
much. I look forward to working with you on fixing as Chairman 
Emeritus Dingell said all that is screwed up.
    Ms. Tenenbaum. Thank you, Madam Chairman. Thank you all.
    Ms. Northup. Thank you.
    Mrs. Bono Mack. We will just give a few moments for the 
second panel to get in place.
    The subcommittee will come back to order.
    On our second panel we have four witnesses. I would like to 
welcome them all.
    Our first witness is Jolie Fay. Ms. Fay is the founder of 
children's product company called Skipping Hippos based out of 
Portland, Oregon. She is also secretary of the Handmade Toy 
Alliance which she also represents today.
    Our second witness is Wayne Morris. Mr. Morris is the vice 
president of Division Services for the Association of Home 
Appliance Manufacturers representing manufacturers of all sizes 
and various consumer products.
    Also today, we have Rick Woldenberg of Chicago, Illinois. 
Mr. Woldenberg is the chairman of Learning Resources, 
Incorporated, a children's product manufacturer and direct mail 
retailer that specializes in educational toys. The company is a 
small business but employs over 150 people.
    And finally, we will hear from Nancy Cowles, Executive 
Director of Kids in Danger also based in Chicago. Ms. Cowles is 
testifying on behalf of Kids in Danger, Consumer Federation of 
America, and Consumers Union.
    Again, welcome to all of you. You will each be given the 5 
minutes and to help you keep track of time, I am going to make 
him remember to keep track of time and when the light turns 
yellow before you in the little box please try to sum up your 
remarks so that when the light turns red you are ready to stop. 
And with that we will welcome Ms. Fay for her first 5 minutes 
and just ask that you turn on the microphone and bring it close 
to your mouth and you are recognized for 5 minutes.

     STATEMENTS OF JOLIE FAY, FOUNDER, SKIPPING HIPPOS AND 
SECRETARY, HANDMADE TOY ALLIANCE; WAYNE MORRIS, VICE PRESIDENT, 
DIVISION SERVICES, ASSOCIATION OF HOME APPLIANCE MANUFACTURERS; 
RICK WOLDENBERG, CHAIRMAN, LEARNING RESOURCES, INC.; AND NANCY 
         A. COWLES, EXECUTIVE DIRECTOR, KIDS IN DANGER

                     STATEMENT OF JOLIE FAY

    Ms. Fay. Chairman and members of the subcommittee, thank 
you for inviting us here.
    I make children's ponchos in my home in Portland and I am 
testifying today on behalf of the Handmade Toy Alliance 
members. We are the people knitting hats on the train and we 
are the mothers in line with you at the store. We are the 
people from your hometowns who have grown up in families that 
craft and we are your neighbors and your families and we are 
constituents, and we need your help to bring commonsense 
changes to the CPSIA. Our businesses were born from the desire 
for safe children's products. We make them with care and 
attention and most often from materials purchased from our 
local craft stores. Our dreams are to build heritage products 
that will be cherished and remembered and saved for 
generations.
    Our broad membership experience is the unintended 
consequences of the CPSIA in different ways. Micro-sized 
businesses that craft and retail toys and children's products 
make up half of our membership. Often these are one-person 
businesses who produce and sell in very small batches. The 
CPSIA makes no provisions for these businesses to be able to 
operate. People crafting in their homes are expected to third-
party test the same way as a mass-market manufacturer. The cost 
of third-party testing for lead and ASTM standards are 
prohibitive in very small batches. Tracking and labeling 
requirements are too burdensome and people find the law and its 
requirements too complex to understand and apply.
    At the Hollywood Senior Center in Portland, Oregon there is 
a small retail shop that sells items made by the seniors. They 
live on an incredibly small fixed income and would never be 
able to afford a single ASTM third-party test. The workmanship 
that has developed over a lifetime helps contribute a small but 
very substantial supplement to their monthly income. These are 
artisans and this law makes them criminals.
    Another segment of small-batch businesses producing 
multiple items and selling in boutiques and online are also not 
able to absorb the testing costs for their products and are 
treated equivalent to mass-market manufacturers. Companies who 
create only 20 or so products producing in batches in 10 and 20 
units simply cannot afford these testing costs and expect to be 
able to charge the same price or even a reasonable price.
    A third group hurt is in the specialty toy retailers. These 
are the mom and pop toy shops in towns across America. The 
CPSIA removes the ability for them to sell most safe and local 
products and many international products. Loss of specialty 
toys from Europe particularly tilts the children's marketplace 
in favor of mass produced items and removes the opportunity for 
special retailers to differentiate themselves. Without the 
ability to offer unique items to sell in their store, there is 
nothing that can set them apart from their competitors.
    Finally, toy importers represent two percent of our 
membership. It is a small percentage but a big component of the 
culture of specialty toys in America. Within this melting pot 
culture that we live in they provide access to many safe 
products from our ancestors and countries of origin enriching 
the value of play and helping the culture survive. The CPSIA 
treats these small-scale importers as if they were mass-market 
manufacturers and they suffer alongside the U.S. small-batch 
manufacturers.
    I grew up in Wyoming, where my great-grandparents were 
homesteaders. For generations my family has made toys and 
clothes and saddles for children. I cherish these items because 
they are from my family and they were made with care, just like 
what I make. Our members are people just like me from all 
across the country making safe products that we cannot afford 
to third-party test. I am here today because I want my children 
to continue this tradition and to understand and learn from our 
entrepreneurial spirits. Crafting gives them joy and selling it 
gives them reward.
    While the HTA has worked closely with the CPSC, we feel 
strongly that the current legislation does not grant the CPSC 
the flexibility to address our members' needs. Our membership 
is in need of a legislative fix that only you in Congress can 
give. Solving the problems of the CPSIA is not only for our 
members' immediate financial relief but will save generations 
of future handmade products. For thousands of years cultures 
have been studied through their handcrafted toys. In museums 
around the world there are artifacts of handmade toys 
connecting the cultures of the past to societies of today. What 
will the legacy be if the CPSIA destroys our generation's 
ability to share this piece of history?
    Thank you for the opportunity to speak.
    [The prepared statement of Ms. Fay follows:]

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    Mrs. Bono Mack. I thank the gentlelady.
    And now we will hear from Mr. Morris for 5 minutes.

                   STATEMENT OF WAYNE MORRIS

    Mr. Morris. Thank you, Chair Bono Mack and members of the 
subcommittee. Thank you for inviting the Association of Home 
Appliance Manufacturers to testify on this important matter.
    AHAM supports the creation of a public database to assist 
consumers with easy access to relevant and accurate safety 
information, and it is important that that situation be 
properly funded. Of course there are many private Internet 
sites that play the same role and so it makes little sense for 
the Commission to expend major resources to create a competing 
website unless it adds value. A critical part of that value 
proposition is that the information should be of high quality, 
accuracy and utility.
    Unfortunately, the Commission's current database design 
hinders the publication of accurate information. It places 
unreasonable burden on manufacturers and it does not require 
timely resolution of good faith material inaccuracy claims. We 
need the database to be news we can use. With a few changes the 
accuracy of the information can be improved. Nothing we are 
proposing inhibits in any way the Commission from pursuing 
reports it receives from consumers or anyone else to see if a 
corrective action is necessary or a violation of the standards 
has occurred.
    Our testimony here is limited to what is placed on a 
public, incident, Internet-based database. We have three 
points.
    One, the Commission should resolve claims of material 
inaccuracy. According to the CPSC material inaccurate 
information is a report of harm in a report which contains 
``information that is false and misleading and which is so 
substantial and important as to affect a reasonable consumer's 
decision making about the product.'' This includes 
misidentification of the product, manufacturer or private 
labeler, or the harm or risk of harm.
    The manufacturer has the burden of proof and must provide 
specific evidence and describe how the report is wrong and how 
it should be corrected. It is in every legitimate party's 
interest that the Commission post only accurate information to 
the database.
    Under the current regulations, all harm reports except for 
the ones of outstanding confidentiality claims have to be 
posted to the database within 10 days of transmitting the 
report to the company no matter what. Accordingly, even if a 
company meets the Commission's burden of proof and responds 
within the short 10-day period, by submitting substantial 
evidence of material inaccuracy the Commission will post the 
complaint to the database before resolving the material 
inaccuracy claim. The Commission actually has no obligation to 
resolve the material inaccuracy claimed by any particular time. 
As we all know, once information has been published on the 
Internet even if it is revised or retracted later, it stays in 
cyberspace forever and may already have done damage.
    We believe it is wrong for the Federal Government to allow 
companies and their brands to be unfairly characterized, even 
slandered without evaluating the company's claim. Because of 
the extremely limited timeframe to receive the information, 
analyze it and develop a response, we believe that it is 
unlikely that many companies will comment on a high percentage 
of reports of harm and the chairman spoke earlier of the soft 
launch proving what we say. If a company does respond, basic 
fairness requires that the government decide before the data is 
publicly released.
    Two, the eligible reporters to the database should be 
limited to those with direct information. The CPSIA lists those 
who may submit reports of harm to the inclusion of public 
incident database. The Congressional specificity of these 
groups was purposeful to encourage their involvement and to 
make clear that those who are the consumers, their 
representatives, first responders or care providers to 
consumers should not participate in the database for their own 
ends. This applies to trial lawyers, consumer groups and even 
trade association like mine. Remarkably, the Commission is now 
in the final database rule shoehorn certain non-governmental 
organizations into a definition of public safety entity. 
Congress should reinstate the original intent of the 
legislation.
    The database ought to be limited to those people who 
purchase the product, use the product or cared for someone who 
has suffered an injury. Otherwise the database is simply a blog 
and there is no reason for the Federal Government to displace 
or compete with private blogs.
    Three, the Commission should require a registration a model 
or other descriptive information. There are thousands of 
categories of consumer products, manufacturers and brands where 
there are numerous models of a product. Although the Commission 
encourages submitters to provide more detailed information 
which will allow the public and manufacturers to identify which 
particular product was subject to alleged incident, it does not 
require that information. This is a mistake which Congress 
should remedy.
    The suggestions that we have made do not prevent a useful, 
accessible public database. Rather, we believe our proposals 
enhance the utility of this new mechanism.
    Thank you for the opportunity to testify. I would be glad 
to answer questions. Thank you.
    [The prepared statement of Mr. Morris follows:]

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    Mrs. Bono Mack. Thank you, Mr. Morris.
    And, Mr. Woldenberg, you are recognized for 5 minutes.

                STATEMENT OF RICHARD WOLDENBERG

    Mr. Woldenberg. Chairman, Ranking Member Butterfield and 
distinguished members of the subcommittee, thank you for the 
opportunity to testify this morning.
    My name is Richard Woldenberg. I am chairman of Learning 
Resources, an Illinois-based 150-person manufacturer of 
educational materials and educational toys. I am accompanied 
today by my son, Ben, and my daughter, Alana. This is my second 
appearance before the subcommittee to testify about the CPSIA.
    Three years after its passage, the high cost of the CPSIA, 
its overreaching and intrusive nature, its non-existent impact 
on injury rates and its depressing effect on the markets is 
beyond dispute. What remains a mystery is why we did this to 
ourselves in the first place.
    The crisis, such as it is, seems like a media-fed hysteria. 
CPSC recall statistics reflect only three unverified injuries 
and one death attributed to lead from March, '99 to April, 
2010, out of literally trillions of product interactions by 
tens of millions of children. Notably, there was only one 
recall of phthalates in U.S. history, 40 little inflatable 
baseball bats in 2009.
    The possibility of injury is real but what is the 
probability of injury. Supporters of the CPSIA have never 
proven a causal link between the reported hazard in children's 
products and actual cases of injury. This is a very serious 
indictment of this law.
    Children can take lead into their bodies in many ways 
including through the air, water and food everyday. The CPSIA 
places all of the blame on children's products without any 
substantive proof of cause. Lead or phthalates poisoning may 
seem so frightening that no price is too high to pay. In our 
panic, the absence of proof that children's products are 
causing injury hardly seems to matter. But in the wake of 
Toyota, is jumping to conclusions about causation still 
acceptable? Is it responsible government to simply argue that 
the CPSIA doesn't harm children and that businesses will just 
absorb the costs?
    The harm inflicted by the CPSIA has been brought to the 
subcommittee's attention time and again over the last 3 years. 
First, absurdly high compliance costs. We have experienced a 10 
times increase in costs from 2006 until 2011, all without any 
change in the safety of our products because they were safe to 
begin with. This cost jobs and curtailed business expansion 
opportunities.
    Second, rules mania. Doubt over the interpretation of CPSC 
rules is widespread. No wonder the rules and law applicable to 
our business now balloon over 3,000 pages and counting. Several 
customers respond to this uncertainty by instituting their own 
safety rules. One even insisted that we test for lead in paint 
even if the item had no paint on it.
    Third, absurd complexity. The explosion of safety rules 
makes it difficult or impossible to know how to comply. In the 
context of a real product line there is just too much to figure 
out. What is a children's product? What isn't? What is a toy? 
Which materials need to be tested or retested? In practical 
terms, it is a nightmare.
    Other rules make us look stupid to customers. Consider for 
instance this warning on one of our rock sets. ``Caution, 
federal law requires us to advise that the rocks in this 
educational product may contain lead and might be harmful if 
swallowed.'' This is a form of humiliation.
    Fourth, liability risk deters cooperation. Under the CPSIA 
the CPSC has become a coercive enforcer of rules with little 
mercy or sense of proportion and no exercise of judgment. This 
environment certainly contributed to a lack of cooperation by 
component manufacturers who won't test for CPSIA compliance and 
subject themselves to CPSC persecution. Trust has been 
destroyed in so many ways.
    Congress must restore to the CPSC the responsibility to 
assess risk. My top five recommendations are that first, the 
CPSC should be mandated to base its safety decisions, resource 
allocations and rules on risk assessment. Second, the 
definition of children's products should be limited to children 
six-years-old or younger and the definition of toy for 
phthalates purposes should be limited to children three-years-
old or younger. Third, lead in substrate and phthalate-testing 
should be based on the reasonable business judgment of the 
manufacturer, not mandated outside testing. Resellers should be 
entitled by rule to rely on the representation of 
manufacturers. Fourth, mandatory tracking labels should be 
explicitly limited to long-life heirloom products with a known 
history of injuring the most vulnerable children. And fifth, 
the 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.
    In conclusion, I urge your committee to address the 
fundamental flaws in the CPSIA to restore order to the 
children's product marketplace and to protect small businesses 
from further damage. I appreciate the opportunity to share my 
views here today and I am happy to answer your questions.
    [The prepared statement of Mr. Woldenberg follows:]

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    Mrs. Bono Mack. Thank you.
    Ms. Cowles, you are recognized for 5 minutes.

                  STATEMENT OF NANCY A. COWLES

    Ms. Cowles. Thank you. Thank you chairman, ranking member, 
and other subcommittee members for allowing us to testify here 
today.
    I am Nancy Cowles. I am the executive director of Kids in 
Danger. KID was founded in 1998, by the parents of Danny Kaiser 
who you have already heard about today, who died in a very 
poorly designed and inadequately tested portable crib. A 
portion of the Consumer Product Safety Improvement Act is in 
fact named after Danny. His parents and our organization are 
moved that lasting improvements to the safety of juvenile 
products will always be associated with his name.
    Contrary to how it has been portrayed, CPSIA was not a 
slapdash attempt to address new reports of lead-painted 
products from China and bad press in the Chicago Tribune. Many 
sections of the law were previously introduced bills including 
mandatory standards and testing for juvenile products, a ban on 
using unsafe cribs in childcare, product registration, Internet 
labeling and lead limits.
    KID has been reporting on the problems of lead in 
children's products and looking for a limit for those elemental 
lead since 2004. Even with delays and incomplete 
implementation, CPSIA has already shown success in making 
children safer. My written testimony does go into much greater 
detail but here are just a few areas.
    Over the past 4 years we have seen 10 million cribs 
recalled in this country. That is a lot of cribs and we know 
from past history on recalls, many babies are still sleeping in 
those cribs that are dangerous. A report released just today by 
the American Academy of Pediatrics shows that 26 children are 
rushed everyday to hospital emergency rooms because of injuries 
caused or taking place in a crib.
    CPSIA finally gave CPSC the authority to end a decade of 
inaction in the voluntary standard setting process on cribs and 
address real world hazards that have killed dozens of children. 
The CPSIA also requires that infant-toddler durable products 
such as cribs, strollers and highchairs include a product 
registration card to give manufacturers the ability to contact 
consumers in the event of a recall or product safety issue. 
Danny's mother has testified before this former body that she 
firmly believes her son, Danny, would be alive today if the 
product that killed him had come with one of those simple 
cards.
    One of the most significant improvements in safety will be 
the database which goes live in March. It will both help 
individual consumer's research purchasing decisions as well as 
report when they have a safety problem with a product. In 
addition, it will help spot injury patterns and emerging 
hazards. The CPSC has put in place, as we have heard, many 
safeguards to keep the information accurate and useable.
    We have also heard that before the CPSIA was passed, CPSC's 
ability to protect the public had been dramatically weakened. 
In 1972, when it was first started the agency was appropriated 
would be $176 million in today's dollars and had 786 full-time 
employees. Over the next 2 decades it dropped by almost 60 
percent.
    CPSIA infused CPSC with resources exactly where they had 
been lacking in the preceding years. Through the CPSIA and the 
appropriations process, CPSC has taken a number of important 
steps to protect consumers. They have a strong team in place to 
address safe sleep for infants. They have updated their 
internal data management in preparation for the new database 
and they have reinvigorated industry setting standard bodies. 
CPSC is a stronger more effective agency today because of the 
Consumer Product Safety Improvement Act. Consumers including 
children are safer. Implementation will have real safety 
results across all of CPSC's work and CPSC has in addition 
continued to address emerging hazards such as Chinese drywall, 
cadmium batteries, and more.
    There have been delays and problems with implementation 
especially in the areas of testing for lead and other hazards. 
We fully support the Handmade Toy Alliances call for clear 
rules for reasonable testing for micro-manufacturers of 
children's products including the component testing procedures 
that are underway. But no matter where they make their 
purchases, parents deserve to know the products they buy for 
their children are safe, whether it was made in someone's 
garage, a small workshop, or a huge factory in China.
    How do you know that the wheels on the baby's toy truck 
won't come off if you aren't testing it? How can we be sure 
products don't contain lead if they or their components aren't 
tested? Parents certainly can't ascertain the presence of lead. 
It is a known neurotoxin whose effects are permanent and 
irreversible. The damage is cumulative so every exposure simply 
adds to what the child has already been exposed to. And it has 
been suggested that we move to an accessible limit or use the 
risk analysis on every product but as we are talking here today 
about CPSC's resources, I do not believe that this product-by-
product analysis of accessibility and risk would be useful and 
in fact would tie up most of CSPC's time and resources. We know 
lead is dangerous and we know it shouldn't be in children's 
products.
    Thank you for your time.
    [The prepared statement of Ms. Cowles follows:]

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    Mrs. Bono Mack. I thank the witnesses for your courtesy in 
honoring the red light and would like to recognize myself 5 
minutes for the first round of questions.
    First, Ms. Fay, welcome again to the Committee. I 
appreciate it very much. I think as a member of Congress every 
time I get the opportunity to see how our laws matter at home 
in our districts it is very important and sometimes very eye 
opening for what we do here. Just a very quick question, you 
are a crafter and your inspiration for your crafts is your own 
children, correct?
    Ms. Fay. Correct.
    Mrs. Bono Mack. So the items you make, your children are 
the first to try them out to test them out?
    Ms. Fay. Always.
    Mrs. Bono Mack. Well, thank you and, Mr. Morris, you 
mentioned briefly the comparing the database to your fear of it 
becoming a blog and I think we all have concerns and we 
recognize the changing nature of the Internet and that everyday 
we find new information there or new ways to learn about 
information. I too have some concerns about the database but 
how can you even begin to investigate a complaint if your folks 
don't know who it came from how to contact the complainant?
    Mr. Morris. Well, you are right, Chairman. The issue with 
the database is one that has been troublesome to our 
manufacturers since the very beginnings of it. I believe that 
when this particular body, this committee considered the 
database originally, in the House it was a study bill and it 
became a situation with the requirements when it was added in 
the Senate. The issue of having invalidated information is very 
concerning to manufacturers whose real primary I guess you 
could say their real value is their brand name. That tends to 
be in many cases these days the primary activity that they 
operate. So any time that we have the ability to investigate 
further to take a little bit of additional time and certainly 
to contact the consumer would be a help to everyone in gaining 
accuracy to this database. It is really not much of use to 
anyone if it contains just allegations that have not been 
proven.
    Mrs. Bono Mack. Thank you.
    Ms. Cowles, in terms of safety who would you regard as the 
best couple of children's product manufacturers?
    Ms. Cowles. Well, you know, what we tell parents who call 
us with that same question of what crib should they buy, what 
stroller, is that any manufacturer, you know, needs to meet the 
standards that are out there and that you can't necessarily go 
by brand name. So I think that what we are looking at here is 
that there are parents need to know that go to the store that 
any of the products on the store shelves whether it be a big 
name store or your small local retailer or someone selling at a 
craft fair that the product is not going to hurt their child 
and so I mean we don't.
    Mrs. Bono Mack. So you don't actually help them with the 
answer when they call you for a specific help on their 
question?
    Ms. Cowles. No, we certainly don't recommend one brand over 
another. No, we don't. We don't do any marketing for the 
brands.
    Mrs. Bono Mack. Is there any company that has no safety 
problems at all?
    Ms. Cowles. No.
    Mrs. Bono Mack. Would you favor a CPSIA amendment that 
allows the Commission to decide if the crib standard is revised 
again whether childcare centers have to buy new cribs or not?
    Ms. Cowles. For the next revision you mean not this current 
one? Yes, we do favor. We do not believe that it needs to 
continue to be retroactive. We think at this point with the 
number of dangerous cribs out there it is good to get rid of 
them now at this point and they do have the 2 years but I think 
any further changes because this was such a dramatic overhaul, 
any future changes could be perspective from the date of 
manufacturer so we do support that.
    Mrs. Bono Mack. Mr. Woldenberg, how do you keep track of 
all of the federal and State requirements that apply to your 
business?
    Mr. Woldenberg. We work pretty hard. It is a lot. We have a 
staff of five-and-a-half people including myself, plus an 
outside lawyer on retainer and we have been working at it for 3 
years.
    Mrs. Bono Mack. And then, Ms. Fay, how big is your staff to 
try to comply with the same requirements?
    Ms. Fay. It is just me.
    Mrs. Bono Mack. And, Mr. Morris, in the case of and I have 
got to be brief, in the case of youth ATVs, CPSC has made the 
judgment that the risk of lead exposure to children is 
outweighed by the risk that children face if youth ATVs are not 
available and they ride adult-size ATVs instead. Can you 
briefly say does inaccurate information in the database pose 
the same problem? If the database sounds a false alarm about 
one product couldn't consumers be scared into buying a more 
dangerous product instead?
    Mr. Woldenberg. Chair Bono Mack, I won't try to explain on 
all terrain vehicles because that is really not our product 
category but you address the issue of the materially inaccurate 
information in the database and I believe that is one of the 
things that we believe very strongly that there is time that 
needs to be added to this sequence within the CPSC to resolve 
these types of issues and to make sure that the information 
that has been put onto the comment by the consumer is in fact 
accurate. That the model number is there, it treats that 
particular model number. It gives that information to the 
consumer or to others so that they can deal with it directly. 
It is also a problem that if these reports are made the 
Commission itself is going to seek to try and do an 
investigation. If they don't know, they will be running around 
trying every type of product. I think that we need to try and 
narrow that down. Thank you.
    Mrs. Bono Mack. Thank you. I just appreciate--I am new with 
a gavel but I hold it and you guys stop and that is a pretty 
powerful feeling without having to pound it.
    But I would like to recognize Mr. Butterfield for his 5 
minutes of questioning.
    Mr. Butterfield. Thank you, Madam Chairman.
    Ms. Cowles, let me start with you. Your group as well as 
other groups that you are representing today seems to be 
acquainted with the dangers of lead.
    Ms. Cowles. That is correct.
    Mr. Butterfield. I think you have spent a lot of time 
reading about and studying and getting familiar with. As you 
note in your testimony, you tried to raise the profile of the 
problem with lead in children's products some years ago, a few 
years before the massive recalls in '07 and '08. I am told that 
you even asked the Commission to act using its authority to 
establish lead content limits for children's products and I 
assume that the Commission didn't respond favorably. Can you 
speak to that please?
    Ms. Cowles. Yes, in fact I have the study here that we 
released in 2004 looking at lead in children's products. We 
call it Playing with Poison and we were surprised and I think 
that actually the CPSIA has reaffirmed our surprise at just how 
pervasive lead is and so we are very concerned not only with 
lead in paint but the lead content. It is an irreversible 
damage that it does to a child. Well under the hundred parts 
per million limit that we are looking at is enough for a child 
to be exposed to and lower their IQ one point.
    Mr. Butterfield. Do you have advocate for a total lead 
content limit?
    Ms. Cowles. We do and we support the total lead that is in 
the CPSIA. We think it is the most straightforward, the 
simplest way to test as well as we believe less expensive then 
the soluble test.
    Mr. Butterfield. All right.
    Mr. Woldenberg, let me just briefly address something to 
you as well. You pointed to a label a few moments ago on the 
toy that said something. Would you repeat that again because we 
didn't see that in your written testimony?
    Mr. Woldenberg. OK, I apologize, it says, ``Caution, 
federal law requires us to advise that the rocks in this 
educational product may contain lead which may be harmful if 
swallowed.'' It goes on to say, ``We stand behind the safety of 
all of our products'' and gives our phone number.
    Mr. Butterfield. Did you manufacture that product?
    Mr. Woldenberg. Yes, it is a box of rocks for schools.
    Mr. Butterfield. Unless we are sadly mistaken we are not 
aware of any federal law that requires that label to posted on 
the toy.
    Mr. Woldenberg. We are unable to determine whether those 
levels of rocks, this is an educational product. There is an 
exemption in CPSC rules that allows us to label products as 
possibly containing lead if they are for educational use in 
school and that is why we did this. We did this.
    Mr. Butterfield. But you take the position that it is 
required by federal law?
    Mr. Woldenberg. It is required by the CPSC. We didn't want 
to do it.
    Mr. Butterfield. All right.
    Let me go back to you, Ms. Cowles, if I can and talk about 
the database. There has been a lot of conversation about that. 
Some people say data and some say data. I am a southerner, I 
guess I say data.
    Ms. Cowles. Well, I am from South Carolina so I go with 
you.
    Mr. Butterfield. Yes, yes, Ms. Cowles, Mr. Morris in his 
testimony takes issue with the Commission including certain 
NGOs in the definition of public safety entities. I assume he 
means the inclusion of consumer advocacy groups in that 
definition. Do you believe that groups like your group should 
be able to submit reports of harm for the database and if so 
please explain why?
    Ms. Cowles. I do believe that there are instances in which 
a group like mine would have information about a case about an 
injury and in order to make sure that it was included in the 
database, might want to enter that into the database. And I can 
give you--I have been working on this issue for 10 years now 
and while we talk about the database as a new thing, as we have 
said the CPSC has always had this way to provide information to 
them. They have always had an online forum. They have always 
had their own database. The difference is that now the 
consumers now will have access to that public information. I 
have only once reported an incident to CPSC and that was 
because it was from a family who had already lost one child to 
an unsafe product and did not want to deal with CPSC again. 
That was the only incident in which I did it so I do believe 
there are instances where it will be done. I do not believe 
there is going to be this flood from groups like ours. I can 
assure you the parents that I deal with who call me about a 
problem, they have already reported it to the manufacturer but 
they are calling me or the CPSC so that the manufacturers who 
say they don't have the information, I have never found that to 
be the case.
    Mr. Butterfield. I believe Mr. Morris calls it salting the 
database. Have you ever salted a Federal Government database? 
Do you know any group that has?
    Ms. Cowles. Do you mean put false information in it?
    Mr. Butterfield. Yes, recklessly done so.
    Ms. Cowles. No, I certainly do not. I think we look forward 
to access to information. Now when a parent calls me about a 
child who has been injured or killed it takes me months to get 
that information from CPSC to see if there were other incidents 
or if there is a standalone incident. I am looking forward to 
having access to information that can keep children safe so I 
do not think and I will not be spending my time putting false 
information about anybody's products in it.
    Mr. Butterfield. Do you understand you could go to jail for 
doing that or anyone could?
    Ms. Cowles. Well, I wouldn't do it either way.
    Mr. Butterfield. Anyone could.
    Ms. Cowles. Yes.
    Mr. Butterfield. All right, thank you very much.
    My time has expired.
    Mrs. Bono Mack. I thank the gentleman.
    The chair recognizes the vice-chair of the subcommittee for 
5 minutes, Marsha Blackburn.
    Mrs. Blackburn. Thank you, Madam Chairman.
    Ms. Cowles, do you know how exposure to lead occurs in a 
child?
    Ms. Cowles. I know there are many different ways that 
exposure occurs.
    Mrs. Blackburn. Well, according to the CDC it is direct 
ingestion such as swallowing paint chips, house dust or soil 
contaminated by leaded paint or through hand-to-mouth 
activities such as placing fingers or other objects in their 
mouth putting them in contact with lead paint or lead dust. Do 
you know what today's major source of lead exposure is today 
according to scientists?
    Ms. Cowles. Yes, I do.
    Mrs. Blackburn. And what is that
    Ms. Cowles. That is old housing stock and the environmental 
lead.
    Mrs. Blackburn. According to the CDC the major sources of 
lead exposure among U.S. children are lead contaminated dust, 
deteriorated lead-based paint and lead contaminated soil. Do 
you know what scientists attribute this 91 percent drop--well 
let me go up here first? Do you know what the average blood 
lead level of a child under 5 was in 1970?
    Ms. Cowles. No, but I am sure it was much higher than it is 
today.
    Mrs. Blackburn. The average and this is according to the 
EPA, the average BLL of a child under 5 was 15 micrograms per 
liter. Do you know what the current level of concern is 
according to the CDC?
    Ms. Cowles. You better tell me. I have a guess but, right.
    Mrs. Blackburn. In micrograms do you know the average blood 
lead level, the BLL of a child under 5, do you know what that 
is today?
    Ms. Cowles. No.
    Mrs. Blackburn. OK, it according to the EPA in '07 and '08, 
the average of a child under 5 was 1.4 micrograms per 
deciliter. So that I think gives you a pretty good idea of how 
we are doing with the lead. What do you think has attributed to 
this 91 percent drop in the blood lead level?
    Ms. Cowles. The banning of lead in paint, the banning of 
lead in certain products, the very extensive abatement efforts 
on the part of cities, States.
    Mrs. Blackburn. Well, the CDC says it is the result of the 
removal of lead from gasoline as well as from other sources 
such as household paint, food and drink cans, and plumbing 
systems, so just some items there for the record.
    Mr. Woldenberg, can you tell us what your annual testing 
costs are under CPSIA?
    Mr. Woldenberg. We are projecting for, I am sorry.
    Mrs. Blackburn. OK and also I want you to tell me how this 
has affected your business plan following the adoption of the 
rules. Let me see where it is now and what kind of changes you 
had to make.
    Mr. Woldenberg. Group-wide we are projecting costs far in 
excess of $1 million up to $2 million for this fiscal year and 
we expect that to increase if the 15-month rule is implemented 
as currently drafted by the agency. The impact on our business 
is that a tremendous amount of money has been removed from our 
business at an extremely inconvenient time. Our head count is 
down about approximately 30 percent from peak. It is, of 
course, not entirely due to this law. There was the recession 
but it greatly depleted our resources. We have deferred on 
opportunities to expand our business range into younger child 
ages educational products simply because we don't want to be 
exposed to the risk.
    Mrs. Blackburn. How many jobs do you think that would have 
created had you been able to move ahead with that expansion?
    Mr. Woldenberg. Well, $2 million goes a long way especially 
when it is moved from your profits so I am hoping a couple 
dozen and we have about five people in quality control to 
compensate for that.
    Mrs. Blackburn. OK so you are lacking a couple of dozen 
jobs.
    Mr. Woldenberg. I would say so.
    Mrs. Blackburn. Ms. Fay, welcome. I am glad you are here. 
Talk about the unintended consequences of CPSIA affecting small 
business owners like yours and I want you to talk in terms of 
jobs, prices and consumer choice in the marketplace.
    Ms. Fay. We can't afford the third-party testing. We can't. 
It is not just the lead. It is the ASTM testing and the 
phthalate testing. I don't know anyone especially now this has 
been going on for so long and we have been fighting this for so 
long that none of us can.
    Mrs. Blackburn. So it will shut you down? It will shut your 
fleece fabrics and things, it will shut you down. So instead of 
creating the environment in which government creates the 
environment for jobs growth to take place, you see this as 
something that is completely restricting your ability to do 
business?
    Ms. Fay. Yes, I am still the only inventory I have.
    Mrs. Blackburn. Direct and indirect jobs, how many jobs 
would that be costing?
    Ms. Fay. It is mine, and it is every other crafter out 
there. If we can't continue selling our stuff, we are dead in 
the water.
    Mrs. Blackburn. Well and I think that is everyone wants to 
make certain that we are handling the problems that are in 
front of us but I think we are all concerned when we look at 
the unintended consequences.
    I yield back.
    Mrs. Bono Mack. I thank the gentle lady.
    The gentlelady from Illinois, Ms. Schakowsky is recognized 
for 5 minutes.
    Ms. Schakowsky. Mr. Woldenberg, you have written that there 
are no injuries as a result of products with high lead levels 
and my colleague was just talking about lead. I am really 
confused here. Is there some argument here that protecting our 
children from lead in toys is an unreasonable direction to go 
in, Mr. Woldenberg, that this is not a problem? Do you have 
scientific data that would back up that there are no injuries 
as a result of products with high lead levels?
    Mr. Woldenberg. Well, the source of my information is the 
CPSC and I went through every recall they did from '99 to 2010, 
line by line and what I have said consistently is that there 
are three unverified injuries in their reports and one death 
attributed to lead in recalls of children's products since '99.
    Ms. Schakowsky. And so you are concluding that lead in 
toys, that that is OK? That it is not a problem.
    Mr. Woldenberg. Oh no, I would never say that. It is not in 
doubt that lead is dangerous but the real question isn't 
whether lead is dangerous but the real question is whether our 
products are dangerous and the consequence of.
    Ms. Schakowsky. I am really not following that. If lead is 
in toys and sometimes at very high levels and in trinkets and 
things like that how then and you believe that it is dangerous 
then how can the product not be dangerous?
    Mr. Woldenberg. Well, I believe that Representative 
Blackburn cited that it is soluble lead that the CDC and NIH 
and EPA cite as the cause of blood lead levels rising and what 
is at issue I think largely today is the regulation of 
insoluble lead that is lead bound into substrate and I believe 
that is, you know, not nearly the cause for concern because we 
can't identify people who have been injured by it. We are a 
conscientious.
    Ms. Schakowsky. All right, thank you.
    Ms. Cowles, let us talk about the different tests and your 
comments are what Mr. Woldenberg has said.
    Ms. Cowles. Well, I think that that the statistics from CDC 
do not differentiate between soluble and insoluble. It is lead 
dust. It is lead. That lead could be the total lead in the 
product. A child can transfer it from its hand to their mouth, 
you know, if you watch a child at play. If you were to put 
purple ink on a child's hand and have them be unaware and come 
back an hour later and see all the purple ink around their 
mouth. Even children you think are too old to mouthing you 
would see that they are ingesting whatever gets on their hand a 
child is going to ingest even older children then the up to 
three that we have talked about in terms of mouthing. In terms 
of the product itself and the testing, the total lead test that 
CPSIA requires the under 300 parts per million going to 100 
parts per million, is a very straightforward test that can be 
done. You can screen for it using an XRF gun so that you can 
see if it has some lead in it then you are going to need to do 
the test and so we believe that that is much more 
straightforward. You get more reliable results from that then a 
soluble test where you have to sort of figure out using 
different methods how much how your much of the lead will 
actually come out using different amounts of acids for 
different periods of time. Those tests often are very 
different. You get different results at different times and 
they aren't as straightforward I don't think as the total lead. 
I think the total lead actually simplifies it and makes it 
easier for people to comply.
    Ms. Schakowsky. The other thing I have a real problem with 
is that somehow this notion of a cost benefit analysis in a 
tradition way. I mean what is the value then of a child's life 
or a child's IQ point. Ms. Cowles, if you would comment on the 
use of this the notion that we should have some sort of a cost 
benefit analysis.
    Ms. Cowles. And I think if we are going to look at cost 
benefits let us look very closely at the benefit side. It is 
true as Mr. Woldenberg said there are not body bags of children 
who have been injured and killed by lead but there is testing 
that shows that a small exposure to lead is going to lead to a 
reduction in a child's IQ point. You are not going to be able 
to measure that. The parent isn't even necessarily going to 
know but we can show that that has an impact on future 
earnings. We have seen reports that, Representative Blackburn, 
you mentioned the changes in the '70s. There are reports that 
indicate that the drop in crime that we have seen could be 
because of the reduction in lead at that time. So to say that 
simply because a child doesn't have an acute case of lead 
poisoning does not mean that there is not chronic lead 
poisoning that could be affecting both their future earning and 
our economy. So if we are going to look at cost benefit, we 
need to look closely at the benefits of children and how they 
are protected and what impact that has.
    Ms. Schakowsky. And thank you.
    Mrs. Bono Mack. The gentlelady's time has expired.
    The chair recognizes the gentleman from Mississippi, Mr. 
Harper, for 5 minutes.
    Mr. Harper. Thank you, Madam Chairman.
    Ms. Fay, I would like to ask you just a couple of things. 
Of course, you know, we all want to make sure that the products 
that the kids use are safe. How do you ensure that your product 
is a safe product without testing?
    Ms. Fay. Before the February 10, 2009, I rented an XRF 
scanner and I tested for 15 hours in my basement with this x-
ray gun. I tested every fabric and every trim and I tested 
possible trims on sample cards that I might use in the future 
and in 15 hours every test result I had was no lead detected.
    Mr. Harper. What was the cost for you to rent that device, 
if you recall?
    Ms. Fay. To rent it, it was for 5 days, $2,500 and I shared 
the cost with four other companies and I know that many of the 
handmade toy lines members across the country were having 
testing parties where they would get big groups of people to 
also use an XRF scanner so that everyone knew that all of their 
products were free of lead. And I also know in Oregon you are 
allowed to take your products to the Housing Development 
Department and they test them with an XRF scanner for free.
    Mr. Harper. I am just curious that you found no problems in 
what you spent the 15 hours with.
    Ms. Fay. I found no problems with any of my products.
    Mr. Harper. And the four other companies that shared this 
with you or the 5-day rental cost with you, did they find any 
problems that you were aware of?
    Ms. Fay. I am aware of some problems with shoes and mostly 
on the soles of the shoes, sometimes companies had like a 
colored dot that helped recognize their brand and that dot on 
the sole of the shoe sometimes had lead that I know of.
    Mr. Harper. And do you know what that particular company 
did in reaction to that, if you know?
    Ms. Fay. They threw them all away.
    Mr. Harper. OK and is it your desire that you produce and 
manufacture goods that are safe?
    Ms. Fay. Yes and it was for most of the handmade toy lines 
it if not every single one of us, we started our businesses 
because we wanted safe products for our kids and we felt that 
if we made them with our hands and we knew that the time and 
attention going into this product was there, the products would 
be safer.
    Mr. Harper. When you shared this cost for this and you said 
$2,500 for this device for the 5-day rental, have you been 
given a cost estimate of what the third-party testing would be 
for you?
    Ms. Fay. At the time, I had just sold my house and I took 
almost all of our money, invested in my business so I had 
$30,000 worth of product and my testing costs were $27,000.
    Mr. Harper. OK, thank you, Ms. Fay.
    Mr. Woldenberg, if I could just ask you on, you know, how 
do you without doing the testing what do you propose? What is a 
reasonable response to what we are seeing here?
    Mr. Woldenberg. Well, we have always tested and there is no 
way to know if you comply with a standard without testing. We 
also can't use an in-house testing lab. We are not big enough 
and aren't prepared to manage one so, you know, what we want to 
do is manage to a standard. Set a reasonable standard and then 
the government shouldn't get involved in telling us how to meet 
it. We know well how to meet it and we have been doing it more 
then 2 decades successfully.
    Mr. Harper. So do you see a greater burden on small volume 
businesses with this possible requirement?
    Mr. Woldenberg. What I just articulated or what exists?
    Mr. Harper. Yes.
    Mr. Woldenberg. What I just articulated would be far 
easier. You know, Ms. Fay just described wasting thousands of 
dollars testing stuff that everyone knows is safe. That is just 
a terrible burden on any business whether it is a single 
business or a business with 150 people.
    Mr. Harper. OK, thank you.
    Madam Chair, I yield back the balance of my time.
    Mrs. Bono Mack. The gentleman yields back.
    The chair recognizes Dr. Cassidy for 5 minutes.
    Dr. Cassidy. Ms. Cowles, I am sorry, how do you pronounce 
your name? I am sorry.
    Ms. Cowles. That is all right, Cowles.
    Dr. Cassidy. Cowles. I have to admit I started laughing 
when Mr. Woldenberg said he has to label rocks as a potential 
threat for lead poisoning if they are swallowed. Does that seem 
reasonable to you?
    Ms. Cowles. I don't think that is part of CPSIA and I don't 
think he is saying it is either, the labeling of his rocks.
    Dr. Cassidy. OK, so OK, so that is however that is 
interpreted because I think you felt as if you had to correct?
    Mr. Woldenberg. That is the only way we can sell products 
with lead is we had to find an exemption. There is an exemption 
for educational products and the cost to us is we have to put 
the word lead on our product. We don't believe anyone will buy 
things that say lead on them if they are for children. Who 
wants to buy a product that says it has lead in it? It is 
death. That is what is going on in Illinois right now with the 
lead labeling law which is essentially overriding your 
legislation.
    Dr. Cassidy. But I think there is a dispute as to whether 
or not you are actually required to put that on.
    Mr. Woldenberg. We hired counsel and had a 1-hour 
conference call and whether or not this product was saleable 
under U.S. law without this label. I very much opposed putting 
a label on it. I was overruled by my outside counsel.
    Dr. Cassidy. OK, I can only imagine what that cost you.
    Mr. Woldenberg. Exactly.
    Dr. Cassidy. Now, the next thing is I am new to this 
committee so I have kind of an open mind but Ms. Fay do you 
have a logger making a little wooden airplane?
    Ms. Fay. I volunteer at a senior center.
    Dr. Cassidy. Hang on, hang on, decorating with a non-lead 
based paint?
    Ms. Fay. No, there is no paint on it.
    Dr. Cassidy. OK, that has to be tested for lead content?
    Ms. Fay. Yes and not the lead. It does not if it is not 
coated with anything other then natural materials but the ASTM 
testing.
    Dr. Cassidy. Which is what? I am sorry to be so ignorant?
    Ms. Fay. They call it S963 and it is the required under the 
CPSIA that any toy has to go through a series of tests 
depending on what type of toy it is.
    Dr. Cassidy. OK.
    Ms. Fay. So for example, you have to--we pay someone to 
hold an object from shoulder height and drop it to make sure. 
That is a laboratory test that they would have to pay. And the 
logger at the senior center, he is a retired logger.
    Dr. Cassidy. So this guy kind of doing a handicraft has to 
pay a third-party engineering group to hold it out by hand and 
drop it to see if it shatters?
    Ms. Fay. If he wants to sell it.
    Dr. Cassidy. Because I mean I am just asking what would 
your comments be about that?
    Ms. Cowles. I think I said in my testimony that we, you 
know, since the time this law passed we are very receptive to 
the problems of one-of-a-kind items, very small crafters such 
as Ms. Fay is talking about and are open to looking at 
reasonable testing programs. We are not--we would not say that 
those toys do not need to be tested in some way because again 
it doesn't matter to the child whether the nice gentleman at 
the senior center is making it or if it is brought in from 
China. If a wheel is going to fall off and cause a choking 
hazard for a very young child the parent should still know.
    Dr. Cassidy. Well, let me ask you I don't know, again I 
don't know this. I am learning in this committee. Obviously, I 
have young children. They always put things in their mouth, a 
little bit older now but you could swallow a ball and that 
could choke. Is a ball, let us say a ping-pong ball or is a 
rubber ball on a paddle, is that covered under this? I mean 
clearly they could die from dying swallow a small little rubber 
ball.
    Ms. Cowles. Yes, they can and they do, yes.
    Dr. Cassidy. Is that covered under this legislation?
    Ms. Cowles. Yes, balls would be covered because they are a 
toy so those products and again the choking hazard is for 
products for children under the age of 3. So those products 
usually small balls and the paddles you are talking about are 
not made for children under 3.
    Dr. Cassidy. Now, but as I have been reading the testimony 
and the stuff applied that is not applied, the common toy box 
concept does not apply to those sorts of toys?
    Ms. Cowles. That is dealing with lead and things more than 
the choking hazard. There are additional labeling requirements 
for toys for children over 3 but under 6 to indicate once again 
that a child under 3 should not have them but the common toy 
box we are talking about is the lead issue.
    Dr. Cassidy. Now, I actually think if you are speaking of a 
common toy box, just thinking of my three children, that a ball 
would be more likely to be taken from one of them then an ATV 
and so if there is a common toy box, they will grab the older 
child's ball and try and put it in their mouth and hopefully 
nothing bad happens but it could. If we are going to accept the 
rationale, the common toy box means that you have to limit 
exposure to some of these toys I don't see the rationale for 
limiting it to what we limit it to.
    Ms. Cowles. Well, I think that because even for the child 
over 3, lead is still a neurotoxin and it is still going to 
hurt that child if they do mouth it and so there is no reason 
for lead to be in children's toys.
    Dr. Cassidy. Mr. Woldenberg, you were shaking your head.
    Mr. Woldenberg. Well, small parts are not illegal for 
children over 3 and there are many cherished childhood products 
such as Legos would be illegal if they were so if your 
observation is there are lots of small parts out there that 
children could be putting in their mouth, it is absolutely 
true, and it is a risk that is solved by parental supervision.
    Dr. Cassidy. OK, I yield back. Thank you.
    Mrs. Bono Mack. The gentleman's time has expired.
    The chair recognizes the gentleman from Texas, Mr. Olson.
    Mr. Olson. I thank the chair and I thank our witnesses for 
coming today. It is pretty obvious that this is a matter of 
great importance because of the emotions that are being felt 
here in this committee and because as a father of a beautiful 
14-year-old daughter and a 10-year-old son, all I want for them 
is to be healthy and happy.
    And, Mrs. Fay, I just want to tell you, you are not alone 
and I want to prove that to you because I am going to read a 
letter that I received from one of our Texans back home. And 
her name is Celice William Jackson and she is the owner of 
Mommy's Heartbeat and she just makes clothing for little babies 
in her home and here is what she wrote. ``This bill, we are 
talking about CPSIA, requires manufacturers of any product 
intended for children 12 and younger to test their end product 
for lead and phthalates. The way the test is performed is by 
testing each component of the product in order to say whether 
it passes or not. For example, if I make a diaper and I have 
pink snaps, thread and fabric, when I send my diaper to be 
tested they will test the snaps, thread and fabric. But say I 
run out of pink thread and I use blue then I have to send in 
the diaper to be tested again which means that the fabric and 
snaps will be retested just because I used a different color of 
thread. By the way, it is nearly impossible for non-metallic 
thread to contain lead. I believe we can both agree that this 
testing is wasteful and redundant. I am a work-at-home mom to a 
beautiful 9-month-old daughter. If CPSIA stands as is, I will 
be forced to stop doing business. I cannot afford the hundreds 
of dollars required just to test one product. The economy is in 
bad enough shape as it is without having thousands of small 
businesses closing their doors and the cost of children's good 
skyrocketing.''
    My question for you, are you aware of more businesses that 
in your shape, Ms. Fay, out there in Oregon.
    Ms. Fay. We get e-mails from companies all over the country 
talking about how this law is affecting them and we have 
compiled a list of businesses that have already closed due to 
the CPSIA. However, this list is small in comparison to what 
will happen if the CPSIA is fully implemented without changes. 
We know that if the stay of enforcement, if third-party testing 
is allowed to expire after December and no amendment has fixed 
our problems, 90 percent of our membership will have to close 
their businesses.
    Mr. Olson. Yes, ma'am, and again we need to fix that up 
here in the House of Representatives.
    Ms. Fay. Please.
    Mr. Olson. That is something we can fix and something we 
should fix.
    A question for you, Mr. Woldenberg, and just sort of the 
cost for your business here and how much of the cost of CPSIA 
impacted your business, your product lines. I mean your 
testimony states that your business costs of compliance have 
increased ten-fold, ten-fold.
    Mr. Woldenberg. Well, I can illustrate that for you. You 
know, if we tested every one of our products once in 
destructive testing and all of our testing is destructive, we 
would have to test 1,500 products. Right now hanging over our 
head is the so-called 15-month rule which should be called the 
30-month rule and this is a picture of what I would have to 
test. This is 81,000 units. This is what they look like. All of 
this would be destroyed and I have to pay for that. And it is a 
huge, huge distraction as well. There is just no end to the 
threats that come from this law.
    Mr. Olson. So you have to destroy 81,000 units?
    Mr. Woldenberg. Yes, that is what it looks like.
    Mr. Olson. Just for testing and those are units that you 
could be selling, making money and growing your business?
    Mr. Woldenberg. Right, this is a shipment of 81,000. I 
wouldn't get to do that.
    Mr. Olson. Well, yes, sir. I mean I know that back home in 
Texas there are a lot of old boys who would like to destroy 
81,000 cartons there but that is not the way we are going to 
grow our economy. We need to get the regulatory burdens off 
your back.
    Mr. Woldenberg. Thank you.
    Mr. Olson. And anything we can do to help you, we are going 
to do it.
    Mr. Woldenberg. Thank you.
    Mr. Olson. Thank you very much for your time.
    Yield back.
    Mrs. Bono Mack. The gentleman yields back.
    The chair recognizes Mr. Pompeo for 5 minutes.
    Mr. Pompeo. Thank you, Madam Chairman.
    I just have a couple questions for Ms. Cowles. The American 
Academy of Pediatrics testified at the Commission's one hundred 
parts per million technological feasibility yesterday that 
there is a point where we go from the sublime to the ridiculous 
when it comes to treating all products as presenting the 
identical, the same risk. In your judgment, have we reached the 
ridiculous when we treat a bicycle or a geology kit or a 
jewelry charm precisely the same way?
    Ms. Cowles. I don't know that I would call it ridiculous. I 
think that it is not really treated the same way. The charm is 
obviously going to be, you know, has definitely caused harm. I 
think we are looking at the way that lead is addressed in those 
different products but the effect of lead in each of those 
products if the child is able to ingest it is going to be the 
same.
    Mr. Pompeo. Right and but we still have got the same 
hundred parts per million standard for each of those items and 
you think that is appropriate given the variance in the product 
and the product's usage and the product's contact with human 
beings?
    Ms. Cowles. You know, I think that we should certainly look 
at inaccessible lead so that if there is lead in products that 
there is no way that the child is going to touch, that is one 
issue but I think that the way I look at it if you want to 
simplify it is as Rick said, parents do not want to buy 
products that have lead in them for their children. We had a 
lab testify yesterday at that same hearing that said most of 
the products that they are testing are already well below the 
hundred parts per million. I think we can do this and we can 
make these products without lead. It is what parents want and 
we can quibble about how bad the effect will be but I think 
that as Rick said if you tell the parent there is lead in it 
they really are not going to want to buy it so why don't we get 
the lead out of it.
    Mr. Pompeo. In your judgment, Mr. Woldenberg showed us a 
picture of some product that will have to be destroyed. In your 
judgment, should the Federal Government make him destroy that 
product?
    Ms. Cowles. I think he is talking about destructive 
testing. He is not talking about he is destroying it because it 
has lead in it.
    Mr. Pompeo. But no he is talking about destructive testing. 
Do you think that he should?
    Ms. Cowles. I am not familiar with his testing process as 
to why all of that would have to be destroyed.
    Mr. Pompeo. Mr. Woldenberg, you were going back with my 
colleague, Congressman Butterfield, a few minutes ago about 
whether the label there was necessary or required and your 
counsel overruled you and told you it was. Has your counsel 
told you how many more hours he is going to get to bill once 
the database comes online?
    Mr. Woldenberg. The database is going to be a full 
employment plan for our outside counsel.
    Mr. Pompeo. And so, Ms. Fay, you don't have inside counsel?
    Ms. Fay. Can't afford it.
    Mr. Pompeo. And we have heard different testimony this 
morning about the risks and problems potentially with that 
database people have different judgment. Commissioner Tenenbaum 
was pretty clear in 10 days she feels like she is required to 
publish it regardless of its merits. Do any of the three of you 
involved in the manufacturing process think that makes sense?
    Mr. Woldenberg. I do not. We can't evaluate the information 
that we are given because we are not given full access to the 
information and one of the biggest concerns that I have about 
the database is that by the government getting into the 
business of a safety blog they are training our customers not 
to call us. I want to talk to them directly about problems.
    Mr. Pompeo. I really want and that is actually where I was 
headed. I appreciate that. Do any of you ever fear that your 
customers when they are not happy with your product won't call 
you?
    Mr. Woldenberg. That is my biggest nightmare.
    Mr. Morris. Certainly in our industry, Congressman, the 
manufacturers get lots of calls from their consumers and they 
find vital information very well and very thoroughly because 
the consumer when they call usually has the model number, they 
have the exact information in front of them and that is the 
best way to get the information.
    Mr. Pompeo. Until 45 days ago I was involved in and I was 
running a manufacturing business and my customers when they 
weren't happy often were pretty successful at locating me. I 
also felt like we had an incentive to respond to that in a way 
that was meaningful to the customer and corrected any potential 
problems with product that we may have made. Do you all feel 
like you have adequate incentive already to address customer 
concerns about problems with your products?
    Mr. Woldenberg. Absolutely and it is how a conscientious 
manufacturer has to behave. It is our responsibility.
    Mr. Morris. That is why in many cases the claims that a 
manufacturer will make about materially inaccurate information 
is largely going to be that is not my product. It needs to be 
resolved and there is no reason that the Commission can't take 
an extra couple of hours to read a report and make sure that is 
accurate.
    Mr. Pompeo. I appreciate it. Thank you all for coming 
today.
    I yield back my time.
    Mrs. Bono Mack. The gentleman yields back and no other 
members are present to ask questions.
    Without objection, the chair is going to insert five 
additional statements for the record of our hearing that have 
been submitted. We have previously shared these with the 
minority and believe that they will improve the hearing record. 
So ordered.
    [The information appears at the conclusion of the hearing.]
    Mrs. Bono Mack. And so in conclusion of the hearing, I 
would again like to thank all of our witnesses today. We all 
appreciate your time and the stories that you shared with us. 
We all want safer products for our children. There is no 
question. But we also want to stimulate and encourage 
businesses rather than stifle them with unnecessary regulations 
that have little to no impact on safety. Our challenge is to 
figure out how to strike that balance and this is only the 
first of our discussions on that topic. I would like to most 
especially thank the Ranking Member Butterfield for his help 
today and his support and offer an open door to him as we work 
through all of these policies and to each and everyone of you I 
believe that we can do great things if we work together and 
that is my intention to do it that way.
    So thank you to the audience for your kindness today and 
that concludes--oh wait, wait, oh just a little business. I 
remind members that they have 10 business days to submit 
questions for the record and to ask that the witnesses please 
respond promptly to any questions they may receive. The 
committee is now adjourned.
    [Whereupon, at 2:08 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                 Prepared Statement of Hon. Fred Upton

    Thank you, Chairman Bono-Mack, for holding this, your first 
hearing as Chair of the Commerce, Manufacturing and Trade 
Subcommittee, on the Consumer Product Safety Improvement Act 
(CPSIA). I think we all agree that there are significant 
problems with this law that need to be addressed urgently. I am 
also interested in hearing about the effect of this law on the 
resources of the Consumer Product Safety Commission.
    The Energy & Commerce Committee worked on the CPSIA on a 
bipartisan basis under the leadership of then-Chairman Dingell 
and then-Ranking Member Barton. The bill passed the House on a 
nearly unanimous basis. The Senate did not proceed with the 
same bipartisan approach, but in conference we nevertheless 
went along with some of their provisions. Some of our conferees 
have expressed regret on that score. In any case, not long 
after the President signed CPSIA into law, serious problems 
emerged.
    We all care deeply about our children and their safety - 
nearly every one of us on this dais has a child or grandchild. 
No one wants to put little children at risk. But this law may 
be doing exactly that. By dictating so much of the Commission's 
work, in too many cases we have shifted its attention to 
products that pose little or no risk and away from more 
significant issues. At the same time, we have deprived the 
Commission of the flexibility to develop common-sense solutions 
to the problems of implementation. The retroactive effect of 
the law has caused the Salvation Army, Goodwill Industries and 
thrift stores across the land to destroy used products, 
including even winter clothing that is sorely needed by 
millions of American children.
    While we have seen little evidence of improvement in 
children's safety, there has already been an extreme impact on 
the children's product market - particularly for small- and 
micro-sized businesses. The Commission has pushed off the day 
of reckoning for some businesses by postponing, again and 
again, the expensive requirements for third-party independent 
laboratory testing of children's products. But the Commission 
has already told us that it believes its hands are tied-it can 
do nothing more to exempt products from this costly testing, 
even when the risk, if any, is minute and the burden to small 
business is gargantuan. In fact, the Commission is now working 
on regulations that would require even more testing-regulations 
that will pile on even greater costs in this terrible 
recession.
    In short, it is up to us to fix the problem. We have no 
time to waste. This summer, the lead limits are set to drop 
again, to even lower levels. Again the effect will be 
retroactive, so our retailers and thrift stores will once again 
be destroying inventories of products that are already the 
safest in the world. I want to make clear that we do not intend 
to undo everything we did in the CPSIA, but we have every 
intention of fixing the law so that it works and the Commission 
can get back to its job of protecting our children.

               Prepared Statement of Hon. Edolphus Towns

    Thank you Chairman Bono-Mack and Ranking Member Butterfield 
for holding this hearing today on the Consumer Product Safety 
Improvement Act and Consumer Product Safety Commission 
resources. The CPSIA was passed in the 110th congress to help 
protect consumers against dangerous products that may do them 
harm. This legislation affects a broad spectrum of our economy, 
from the manufactures of toys to the children that play with 
them. Our constituents want to know that we are doing 
everything in our power to make sure their children are kept 
safe.
    I'm also interested in hearing from our witnesses today 
about how and more importantly when CPSIA's new rules will be 
finalized and implemented. As it currently stands the new rules 
have been in limbo due to concerns with-in the industry about 
unintended consequences. While I sympathize with the cost 
concerns of small businesses the safety of our nation's 
children should be our first priority.
    I look forward to working with industry and consumer groups 
to make sure CPSIA's new rules and data base system are 
properly implemented and adhered to.
    Thank you and I yield back the balance of my time.

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