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




   H.R. --------, LEGISLATION TO REVISE THE CONSUMER PRODUCT SAFETY 
                            IMPROVEMENT ACT

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

                                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

                               ----------                              

                             APRIL 7, 2011

                               ----------                              

                           Serial No. 112-34











      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov















   H.R. --------, LEGISLATION TO REVISE THE CONSUMER PRODUCT SAFETY 
                            IMPROVEMENT ACT

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

                                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

                               __________

                             APRIL 7, 2011

                               __________

                           Serial No. 112-34








      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov

                                _____

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                          FRED UPTON, Michigan
                                 Chairman

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

                                 _____

           Subcommittee on Commerce, Manufacturing, and Trade

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

                                  (ii)










                             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. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     4
Hon. Bobby L. Rush, a Representative in Congress from the State 
  of Illinois, opening statement.................................     5
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................     6
Hon. Marsha Blackburn, a Representative in Congress from the 
  State of Tennessee, opening statement..........................     7
Hon. Cliff Stearns, a Representative in Congress from the State 
  of Florida, opening statement..................................     8
Hon. G.K. Butterfield, a Representative in Congress from the 
  State of North Carolina, opening statement.....................     8
Hon. Janice D. Schakowsky, a Representative in Congress from the 
  State of Illinois, opening statement...........................     9
Hon. Pete Olson, a Representative in Congress from the State of 
  Texas, opening statement.......................................    10
Hon. John D. Dingell, a Representative in Congress from the State 
  of Michigan, prepared statement................................   120
Hon. Edolphus Towns, a Representative in Congress from the State 
  of New York, prepared statement................................   226

                               Witnesses

Dana Best, American Academy of Pediatrics........................    10
    Prepared statement...........................................    13
    Answers to submitted questions...............................   254
Barbara D. Beck, Principal, Gradient.............................    27
    Prepared statement...........................................    29
    Answers to submitted questions...............................   266
Robert Jay Howell, Assistant Executive Director, Hazard 
  Identification and Reduction, Consumer Product Safety 
  Commission.....................................................    45
    Prepared statement...........................................    47
    Answers to submitted questions...............................   271
Caroline Cox, Research Director, Center for Environmental Health.    73
    Prepared statement...........................................    76
    Answers to submitted questions...............................   289
Sheila A. Millar, Partner, Keller and Heckman, LLP...............    80
    Prepared statement...........................................    82
    Answers to submitted questions...............................   295
Paul C. Vitrano, General Counsel, Motorcycle Industry Council....    91
    Prepared statement...........................................    93
    Answers to submitted questions...............................   302
Erika Z. Jones, Partner, Mayer Brown, on behalf of the Bicycle 
  Product Suppliers Association..................................   100
    Prepared statement...........................................   102
    Answers to submitted questions...............................   306
Charles A. Samuels, Member, Mintz, Levin, Cohn, Ferris, Glovsky, 
  and Popeo, P.C.................................................   123
    Prepared statement...........................................   126
    Answers to submitted questions...............................   311
Frederick Locker, Locker, Greenberg, and Brainin, P.C............   136
    Prepared statement...........................................   138
    Answers to submitted questions...............................   313
Dan Marshall, Vice President, Handmade Toy Alliance, and Co-
  Owner, Peapods Natural Toys and Baby Care......................   151
    Prepared statement...........................................   153
    Answers to submitted questions...............................   317
Rachel Weintraub, Director of Product Safety and Senior Counsel, 
  Consumer Federation of America.................................   155
    Prepared statement...........................................   157
    Answers to submitted questions...............................   321

                           Submitted Material

Statement, dated April 3, 2009, from Nancy Nord, Acting Chairman, 
  Consumer Product Safety Commission, submitted by Mr. Kinzinger.    69
Letter, dated April 6, 2011, from Edward Moreland, Senior Vice 
  President, Government Relations, American Motorcyclist 
  Association, to subcommittee leadership, submitted by Mr. 
  Kinzinger......................................................    71
Statement, undated, on behalf of American Apparel & Footwear 
  Association....................................................   185
Letter, dated April 6, 2011, from Consumer Product Safety 
  Commission chairman and commissioners to subcommittee 
  leadership.....................................................   192
Letter, dated April 6, 2011, from Jim Gibbons, President and CEO, 
  Goodwill Industries International, Inc., to subcommittee 
  leadership.....................................................   196
Letter, dated April 1, 2011, from Michael S. Bass, President, 
  Hobby Manufacturers Association, to John ``Gib'' Mullan, Chief 
  Counsel, Commerce, Manufacturing, and Trade Subcommittee.......   198
Letter, dated April 5, 2011, from David E. Jacobs, Research 
  Director, National Center for Healthy Housing, to Mr. Upton....   200
Joint letter, dated April 6, 2011, to subcommittee leadership....   203
Letter, dated April 5, 2011, from Linda Ginzel and Boaz Keysar, 
  Co-founders, Kids In Danger, to subcommittee leadership........   206
Letter, dated April 7, 2011, from Nancy A. Nord, Commissioner, 
  Consumer Product Safety Commission, to Mrs. Bono Mack..........   209
Letter, dated April 5, 2011, from Lisa L. Olney to Mr. 
  Butterfield....................................................   211
Letter, dated April 5, 2011, from Lisa L. Olney to Mrs. Bono Mack   213
Letter, dated April 5, 2011, from Scott Clark, Professor, 
  Department of Environmental Health, University of Cincinnati, 
  to Mr. Upton...................................................   215
Letter, dated April 6, 2011, from Bob Wopperer, Senior Director, 
  Marketing and Business Development, Thermo Fisher Scientific, 
  to Mr. Upton...................................................   217
Letter, dated April 3, 2011, from Michele Witte to subcommittee 
  leadersip......................................................   219
Statement, dated April 6, 2011, on behalf of YKK Corporation of 
  America........................................................   221
Discussion draft of H.R. --------, a bill to amend the consumer 
  product safety laws............................................   229

 
   H.R. --------, LEGISLATION TO REVISE THE CONSUMER PRODUCT SAFETY 
                            IMPROVEMENT ACT

                              ----------                              


                        THURSDAY, APRIL 7, 2011

                  House of Representatives,
Subcommittee on Commerce, Manufacturing, and Trade,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:05 a.m., in 
Room 2123 of the Rayburn House Office Building, Hon. Mary Bono 
Mack (chairman of the subcommittee) presiding.
    Members present: Representatives Bono Mack, Blackburn, 
Stearns, Bass, Harper, Lance, Cassidy, Guthrie, Olson, 
McKinley, Pompeo, Kinzinger, Barton, Butterfield, Dingell, 
Towns, Rush, Schakowsky, and Waxman (ex officio).
    Staff present: Gib Mullan, Chief Counsel; Shannon Weinberg, 
Counsel; Paul Cancienne, Policy Coordinator; Brian McCullough, 
Senior Professional Staff Member; and Alex Yergin, Legislative 
Clerk.
    Mrs. Bono Mack. Good morning. It is with a sense of purpose 
as well as a sense of urgency that we gather here today to 
consider some sensible ways to make the Consumer Product Safety 
Improvement Act, also known as CPSIA, work better for all 
Americans. There is bipartisan agreement that CPSIA, while 
well-intentioned, has created a number of serious problems for 
manufacturers and retails. Today, we will examine some ways to 
make a good law even better.
    The chair will now recognize herself for an opening 
statement. You can start me back at 5. Thank you.

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

    In our first hearing of the year, we heard about many of 
the problems associated with passage of CPSIA. Today, we will 
focus on a preliminary discussion draft, which offers a range 
of possible solutions.
    One major area for reform relates to the regulation of 
children's products. In this area, we have the benefit of five 
unanimous recommendations from the CPSC. We also have draft 
legislation from last year and other CPSC suggestions in 
response.
    The discussion draft aims to reduce the regulatory burdens 
of the law without undercutting consumer protection. A 
fundamental premise is that the Commission can actually protect 
consumers far better when it is allowed to set priorities and 
regulate based on risk. Where possible, we should spare the 
Commission from having to make time-consuming, case-by-case 
determinations, and let it spend more time on its bigger 
problems. This is especially true in our current budget climate 
where we have to make the best use of agency resources.
    We need to strike the right balance and that is seldom 
easy. The discussion draft points to areas where we must decide 
important policy questions. I hope our witnesses today will 
help us to make wise choices by shedding light on these issues.
    In Section 1, for example, the draft leaves open the age 
for defining the term ``children's product.'' At our last 
hearing, my friend and colleague Mr. Dingell, the chairman 
emeritus of the full committee, reminded us that a lot of the 
problems with CPSIA originated in the Senate, but this is one 
that did not. The Senate-passed bill applied the lead content 
limits to products for children ages 7 and under. That age 
would have kept the focus on children who are at greater risk 
when it comes to lead, because very young children, according 
to the CPSC, are much more likely to put things in their mouth. 
The House set the top age at 12 years old because of the so-
called ``common toy box'' concern. But by pushing the age to 
12, we ended up regulating a huge number of products that are 
never going to be mouthed or even handled by young children. 
These include not only the well-known examples of ATVs, 
bicycles, and books, but also band instruments, scientific 
instruments, and clothes for older children, among other 
things.
    Another key area is third-party testing. Again, the 
discussion draft tries to strike an appropriate balance. It 
preserves third-party testing for lead paint, cribs, pacifiers, 
small parts, and children's metal jewelry, all priorities that 
Congress explicitly set in CPSIA. For other standards, however, 
it gives the Commission discretion to decide what standards 
should require third-party testing. And it gives the Commission 
new authority and flexibility to require testing for only some 
portions of a standard or only for certain classes of products. 
It also asks the Commission to make sure that the benefits of 
third-party testing justify the costs before making it 
mandatory.
    Another major area of reform is the CPSC's public database, 
which just recently began to post complaints. The discussion 
draft addresses some of the more significant problems that were 
brought to light in our earlier hearing.
    First, the draft spells out in greater detail who can 
submit reports of harm for the public portion of the database. 
Among consumers, only those who have suffered harm or a risk of 
harm--as well as members of their family, legal 
representatives, or any person authorized by the family--could 
make public reports.
    Second, the draft sets forth a process for improving 
product identification. The database cannot help consumers if 
they don't know which products have problems. The draft enlists 
manufacturers to help consumers provide better descriptions.
    Third, the draft gives CPSC more options for solving claims 
of material inaccuracy. The fundamental premise here is that 
the database may do more harm than good if it misleads 
consumers based on inaccurate information.
    Finally, the draft would strengthen the Commission's 
authority to investigate complaints. While some consumers may 
benefit from the ability to see safety-related complaints, a 
lot more consumers will benefit if the Commission can 
investigate complaints more quickly.
    Congress must move quickly, too, because the clock is 
ticking. Unless we act soon, the 100 parts-per-million lead 
limit will take effect retroactively in August, and once again, 
millions of dollars worth of products will become illegal to 
sell, donate, or export.
    We have an opportunity and an obligation to make CPSIA a 
law that benefits all Americans.
    [The prepared statement of Mrs. Bono Mack follows:]

               Prepared Statement of Hon. Mary Bono Mack

    The committee will come to order.
    Good Morning. Today, we turn back to the subject of the 
Consumer Product Safety Improvement Act of 2008, also known as 
CPSIA. In our first hearing of the year, we heard about the 
many problems associated with this law. Today, we will focus on 
a preliminary discussion draft, which offers a range of 
possible solutions.
    One major area for reform relates to the regulation of 
children's products. In this area, we have the benefit of five 
unanimous recommendations from the Consumer Product Safety 
Commission. We also have draft legislation from last year and 
other CPSC suggestions in response.
    The discussion draft aims to reduce the regulatory burdens 
of the law without undercutting consumer protection. A 
fundamental premise is that the Commission can actually protect 
consumers far better when it is allowed to set priorities and 
regulate based on risk. Where possible, we should spare the 
Commission from having to make time-consuming, case-by-case 
determinations, and let it spend more time on bigger problems. 
This is especially true in our current budget climate, where we 
have to make the most of scarce agency resources.
    We need to strike the right balance, and that is seldom 
easy. The discussion draft points to areas where we must decide 
important policy questions. I hope our witnesses today will 
help us to make wise choices by shedding light on these issues.
    In section 1, for example, the draft leaves open the age 
for defining the term ``children's product.'' At our last 
hearing, my friend and colleague Mr. Dingell, the Chairman 
emeritus of the full committee, reminded us that a lot of the 
problems with CPSIA originated in the Senate, but this is one 
that did not. The Senate-passed bill applied the lead content 
limits to products for children age 7 and under. That age would 
have kept the focus on children who are greater risk when it 
comes to lead, because very young children, according to the 
CPSC, are much more likely to put things in their mouth. The 
House set the top age at 12 years old, because of the so-called 
``common toy box'' concern. But by pushing the age to 12, we 
ended up regulating a huge number of products that are never 
going to be mouthed or even handled by young children. These 
include not only the well-known examples of ATVs, bicycles, and 
books but also band instruments, scientific instruments and 
clothes for older children, among other things.
    Another key area is third-party testing. Again, the 
discussion draft tries to strike an appropriate balance. It 
preserves third-party testing for lead paint, cribs, pacifiers, 
small parts, and children's metal jewelry--all priorities that 
Congress explicitly set in CPSIA. For other standards, however, 
it gives the Commission discretion to decide what standards 
should require third-party testing. And it gives the Commission 
new authority and flexibility to require testing for only some 
portions of a standard or only for certain classes of products. 
It also asks the Commission to make sure that the benefits of 
third-party testing justify the costs before making it 
mandatory.
    Another major area of reform is the CPSC's public database, 
which just recently began to post complaints. The discussion 
draft addresses some of the more significant problems that were 
brought to light in our earlier hearing.
    First, the draft spells out in greater detail who can 
submit reports of harm for the public portion of the database. 
Among consumers, only those who have suffered harm or a risk of 
harm--as well as members of their family, legal representatives 
or any person authorized by the family--could make public 
reports.
    Second, the draft sets forth a process for improving 
product identification. The database cannot help consumers if 
they don't know which products have problems. The staff draft 
enlists manufacturers to help consumers provide better 
descriptions.
    Third, the draft gives CPSC more options for solving claims 
of material inaccuracy. The fundamental premise here is that 
the database may do more harm than good if it misleads 
consumers based on inaccurate information.
    Last, the draft would strengthen the Commission's authority 
to investigate complaints. While some consumers may benefit 
from the ability to see safety-related complaints, a lot more 
consumers will benefit if the Commission can investigate 
complaints more quickly.
    Congress must move quickly, too, because the clock is 
ticking--unless we act soon, the 100 ppm lead limit will take 
effect retroactively in August and once again millions of 
dollars worth of products will become illegal to sell, donate 
or export.

    Mrs. Bono Mack. And now I would like to recognize the 
ranking member of the full committee, Mr. Waxman, for his 5-
minute opening statement.
    Mr. Waxman. Chairman Bono, thank you very much for 
recognizing me to give this opening statement and Mr. 
Butterfield to allow me to go ahead of him.

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

    I share your belief that some changes are needed to the toy 
bill that we passed in 2008. That legislation was an historic 
step forward for children's safety, but like most legislation, 
it was not perfect. It has had some unintended consequences and 
needs refinement. But the discussion draft before us, which is 
the subject of today's hearing, takes a wrecking ball to the 
law and would endanger young children. As the chair of the 
Consumer Products Safety Commission wrote us today, this draft 
would turn back the clock to an era when harmful products made 
their way into the stream of commerce and into the hands of 
innocent children.
    In 2008 our committee led the way in passing a strong toy 
safety law. We held hearings at which we learned about children 
who died or were severely injured by lead in toys and small 
charms. We learned that other children suffered catastrophic 
internal injuries from magnetic toys that ripped through their 
intestines. And we witnessed record recalls and loss of 
confidence in the safety of children's products. Despite strong 
bipartisan support for the new law, implementation has not 
always been smooth. The ATV industry, the bicycle industry, the 
publishing industry, and makers of handcrafted toys have all 
raised valid compliance issues.
    I know it is possible to address these concerns without 
gutting the law. When I was chairman of the committee in the 
last Congress, we initiated a stakeholders' process to produce 
the draft bill that gave targeted relief to industry while 
maintaining the most important health and safety protections in 
the new law. That draft legislation was supported by both 
industry and consumer groups. Although the Republican staff 
were consulted at every step in the process, Ranking Member 
Barton decided he would not support the bill and we never acted 
on it.
    The discussion draft before us is a very different 
document. Democrats, consumer groups, and health experts were 
not consulted. The result is a one-sided proposal that provides 
relief to industry but sacrifices children's health and safety. 
According to the Consumer Federation of America and Consumers 
Union, this proposal undermines safety testing for children's 
products, undermines lead protections, undermines the 
effectiveness of the new crib safety standard, and undermines 
the new public safety product hazard database.
    According to Chairman Tenenbaum and Commissioners Adler and 
Moore, this proposal would be a reversal of several of the core 
safety provisions in the law. Not only are they critical of the 
bill, but let me just state quite clearly, there is no chance 
that a bill this extreme could ever become law. It would not 
survive in the Senate, and if it did, it would be vetoed by the 
President. The result would be a lost opportunity. Many of the 
witnesses who will testify today have identified legitimate 
concerns but they will receive no relief if all we produce is a 
more partisan gridlock kind of legislation.
    If we work together, I am confident that we can find a way 
to address most of industry's concerns without jeopardizing the 
important safety advances we made in the toy safety law. And I 
had a discussion with the chairman yesterday. I think there is 
an opportunity for us to work together and produce a product 
that will be a consensus product. I hope that after this 
hearing is over we can start fresh and we can produce a genuine 
bipartisan reform we all can support.
    Madam Chair, I would like to yield the rest of my time and 
an additional 1 minute without any objection to Mr. Rush, who 
chaired this subcommittee in the last Congress and I think has 
an important statement to make.
    Mrs. Bono Mack. Without objection, the gentleman is 
recognized.

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

    Mr. Rush. Thank you, Madam Chair, and I want to thank the 
ranking member for the full committee for yielding this time to 
me.
    Madam Chair, consumer protection is one of the core 
functions of this subcommittee, and I want to commend you for 
convening this important hearing. However, I am surprised to 
see that instead of talking about improving safety for our 
children, making our new law's implementation possible, we are 
focusing on undoing one of the legislative achievements of this 
subcommittee historically. Demolition and destruction, not 
creative solution seems to be the policy agenda for our new 
Republican majority. I am still waiting to see when we will 
talk about real policy solutions, including the policy 
implementation issues as it relates to this bill for the 
American people.
    Regulations are not a problem. It is the constant changes 
or the risk of changes that are difficult to manage for our 
manufacturers, our consumers, and for the American public. We 
need to agree once and for all and implement the laws that we 
have developed. We need regulatory predictability. There is a 
similar Product Safety Improvement Act that the Republicans are 
attempting to revise today represents demolishing the most 
comprehensive overhaul of U.S. consumer protection oversight in 
a generation, one that established policies which repaired our 
Nation's broken product safety system.
    And I must say, Madam Chairman, that I am very proud of 
what we did with bipartisan input, with input from all the 
stakeholders despite the political differences that we all 
shared. We were able to reinvigorate the CPSC with resources. 
We added additional commissioners. We authorized a shiny new 
testing lab. And Madam Chair, may I ask for an additional 30 
seconds?
    Mrs. Bono Mack. The clock----
    Mr. Rush. All right. Well, Madam Chair, I just want to 
conclude by saying that this hearing could be better spent if 
we were really trying to--maybe we could solve some of the 
problems----
    Mrs. Bono Mack. All right----
    Mr. Rush [continuing]. That we have implementing the bill. 
Thank you.
    Mrs. Bono Mack. All right. So the gentleman yields back. 
And now----
    Mr. Rush. I yield back the time I have.
    Mrs. Bono Mack. Chairman Upton, in accordance with the 
committee rules, yielded me his 5 minutes, and as his designee, 
I would like to recognize the chairman emeritus of the full 
committee, Mr. Barton, for 2\1/2\ minutes.
    Mr. Barton. Well, Madam Chairman, I really can't do it in 
2\1/2\ minutes. So you are going to have to give me at least 3 
minutes or just go to somebody else.
    Mrs. Bono Mack. Well, we were rather lenient with the other 
side, so that is not a problem. Go ahead.
    Mrs. Blackburn. Madam Chairman, I will yield the chairman 
emeritus my time.
    Mrs. Bono Mack. So the chairman emeritus is recognized for 
3\1/2\ minutes.

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

    Mr. Barton. There is an old joke about somebody trying to 
get somebody to vote for him and the guy says I would never 
vote for you if you were running unopposed. And the man goes 
back and says well, how do we put that voter down? He says put 
him down undecided. That is kind of what we need to put Mr. 
Waxman down after what he said.
    I participated as the ranking member when this bill was 
passed. I participated in the last Congress when there was an 
attempt to amend it. When Chairman Waxman said that the 
Republicans and the staff were consulted, that is a true 
statement, but we weren't listened to. In the last Congress, 
Chairman Waxman and his allies were almost totally inflexible 
in trying to come to some common ground on changes to the law 
that was passed under Chairman Dingell's chairmanship back in 
2008.
    This discussion draft does not take a wrecking ball to the 
law. It is a good-faith attempt to reconcile the law that, in 
its current state, is literally unenforceable. We have that in 
testimony from the Consumer Product Safety Commission. They 
have basically--I wouldn't even use the term basically--they 
have no flexibility at all. The discussion draft that 
Chairwoman Bono Mack has crafted does give flexibility. I think 
that is a good thing. It does change some of the principles or 
modify some of the principles from the law that was passed 2 
years ago, but it keeps the core of the law together and it 
does give the Commission the flexibility and the industry that 
has to live by it the ability to actually use a little common 
sense in implementation. I think that is a good thing. I think 
this discussion draft is a vehicle that can be a bipartisan 
compromise. But a compromise means both sides have to come 
together. And Chairman Waxman's statement indicates to me that 
it is the bill or nothing. And I don't think that is a position 
to take when we are trying to do something that should be 
everybody's best intentions to actually protect the children of 
America, but also gives those that provide the products for our 
children the ability to provide them in a safe and effective 
fashion.
    I am the father of a 5-year-old and the grandfather of five 
grandchildren that are under the ages of 13. There is no way in 
this world that I want to do anything that would put my 5-year-
old child or my grandchildren in harm's way. So Madam 
Chairwoman, I think the discussion draft is a good starting 
point. It is a starting point. It is not an end point. And if 
Mr. Waxman and Mr. Rush and our friends on the minority side 
wish to work with us, we can come up with something that 
improves the bill that is now the law and gives the flexibility 
that is necessary.
    So with that, I want to thank the Chairwoman for giving me 
some extra time and thank the vice-chairwoman, Ms. Blackburn, 
for giving me some of her time. And I yield back.
    Mrs. Bono Mack. I thank the gentleman for his statement and 
yield 1 minute to Ms. Blackburn.

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF TENNESSEE

    Mrs. Blackburn. Thank you, Madam Chairman. I am only going 
to take about 30 seconds because there are several individuals 
that would like to speak on this issue. I want to thank the 
chairman for bringing forward a discussion draft that will 
encourage us all to listen to the science and to use some 
common sense. I am a mother. I am a grandmother. I am an aunt. 
I am a sister. There is no way I would want to have products in 
the marketplace that are going to be harmful to children and 
grandchildren, no way at all. And I think it is important that 
we listen to the science. I think that it is important that we 
apply some common sense. I have also listened to a lot of the 
crafters and the small producers in my area and have had good 
discussions with them. Also, Mr. Howell, when we get to you, I 
am going to want to talk about this database that I think is 
seriously flawed. And I thank the chairman and yield back.
    Mrs. Bono Mack. I thank the gentlelady and recognize the 
gentleman from Florida, Mr. Stearns, for 1 minute.

 OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. Stearns. Thank you, Madam Chairman. Let me echo what 
the emeritus chairman, Joe Barton, said. I was a conferee on 
this. We had lots of recommendations. We in fact specifically 
recommended what the CPSC did in January 2010 when they 
reported back to Congress and they identified some of the 
problems. There was no flexibility. And they recommended 
solutions. And we had these recommendations under Joe Barton's 
leadership to provide the CPSC with this kind of flexibility 
they need to grant exclusions to the lead limits but they 
didn't listen. So I think, Madam Chair, what you are doing here 
is the Lord's work. We need to have the flexibility. And we 
heard from Commissioner Northrup, who was a former Member of 
Congress. She also bought this out. And so I am pleased to be 
here and to support you and I appreciate what you are doing. 
Thank you.
    Mrs. Bono Mack. I thank the gentleman. Last but not least, 
the gentleman from North Carolina, the ranking member of our 
subcommittee, Mr. Butterfield, is now recognized for his 5 
minutes.

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

    Mr. Butterfield. Let me thank you very much, Chairman Bono 
Mack, and especially thank you to all of the witnesses who have 
come forward today to give us your testimony.
    You know, Madam Chairman, my recollection--and I was simply 
a rank and file member of the subcommittee in the last 
Congress--but my recollection of this is somewhat different 
from my good friend from Texas, Mr. Barton. My recollection is 
that CPSIA followed a long and well-considered road to passage 
that included many, many hearings and extensive conference with 
the Senate from introduction to enactment. I recall that this 
legislation at all times remained a bipartisan effort, and I am 
surprised to hear today that it was not. The vote tally speaks 
volumes about the bipartisanship nature of this law. Much of 
the law was taken word-for-word from some of Mr. Barton's 
language that he had authored. The House passed the conference 
report with a vote of 424 to 1. And while I don't know it for a 
fact, I suppose Mr. Barton may be the 1, but the vote was 424 
to 1. And the Senate passed it----
    Mr. Barton. Could the gentleman yield?
    Mr. Butterfield. Yes.
    Mr. Barton. I voted for the bill.
    Mr. Butterfield. You did vote, right.
    Mr. Rush. He voted for it, yes.
    Mr. Butterfield. All right. And the Senate vote was 89 to 
3. Today, however, it is apparent some portions of the law need 
to be refined. The ranking member of the full committee has 
acknowledged that and I do as well. Unfortunately, the 
discussion draft does not seek to refine the law. Rather, it 
seeks to undo nearly 2 years of close consultation and careful 
compromise with Members of Congress, industry--many of whom are 
here today--and consumer groups, and potentially puts consumers 
and children at risk. The minority was not consulted to my 
knowledge in the preparation of the draft legislation. And I am 
confident the language would look very different had we been 
invited to the table and had an opportunity to participate. The 
draft language would redefine what is considered a children's 
product to a yet-to-be-determined age, possibly exposing both 
those who would be classified as children and those who would 
not to potentially dangerous products.
    I ask my colleagues about households with multiple 
children, if a 9-year-old has a toy intended only for ages 9 
and older, is it not reasonable to expect that 9-year-olds with 
a preschool-age sibling would also want to and will find a way 
to play with that toy? But perhaps most alarming is rolling 
back the current lead content limits in favor of risk 
assessment. This is similar to the model that proved to be 
inadequate prior to CPSIA but with the twist of creating 
additional burdens for the Commission.
    Since the model and the draft will require premarket risk 
assessment, CPSC will have to determine for each and every 
children's product how manufacturers should measure the risk. I 
am troubled that the draft eliminates independent third-party 
testing for all children's products with a very narrow 
exception for five categories. I remind my friends of the 
millions of toys that were recalled in '07 due not only to high 
lead levels but design-related safety defects as well. It was 
clear that manufacturers of children's products and their 
suppliers had fallen asleep at the wheel and their in-house 
safeguards were inadequate.
    Finally, and I am going to yield to the gentlelady from 
Illinois in just a minute--CPSIA required the CPSC to create a 
Public Product Safety Information Database so that consumers 
would have a convenient way to report and learn about dangerous 
products. The draft language marginalizes the efficacy of the 
database by limiting who can submit information, as well as 
establishing a drawn-out process by which the submitter, the 
Commission, and the manufacturer are required to have ongoing 
contact. The more burdensome it becomes to make a safety 
complaint, the less likely consumers are to use the database. 
At this time I will yield my remaining time, Madam Chairman, to 
the gentlelady from Illinois.

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

    Ms. Schakowsky. I thank the gentleman for yielding.
    To say that I am concerned about the draft bill would be a 
vast understatement. Here we are in the Subcommittee on 
Commerce, Manufacturing, and Trade, and instead of looking at 
ways that we can create jobs, good jobs for the American 
people, we are examining a bill to undermine consumer 
protection, words that used to be part of the subcommittee's 
title. The draft bill is not a collection of small fixes. It 
would fundamentally gut key pieces of the CPSIA, including the 
provisions I authored to ensure that durable infant and toddler 
products are subject to rigorous testing requirements.
    I want to read a letter I received from Danny Keysar's 
parents, which I hope to submit for the record, along with two 
other letters from parents who lost their children. Danny's mom 
wrote, ``As parents who have paid the ultimate price for unsafe 
products, we know you don't want to see more children suffer as 
our son did.'' Giving flexibility to the CPSC to enforce safety 
provisions is one thing, but this wholesale reversal of crucial 
safety provisions sends us back to a scenario we know leaves 
children at risk.
    I yield back the balance of my time.
    Mrs. Bono Mack. All right. And the chair inadvertently 
overlooked the last 30 seconds on our side, and I would like to 
recognize the gentleman from Texas, Mr. Olson, for 30 seconds.

   OPENING STATEMENT OF HON. PETE OLSON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Olson. I will be brief. I am pleased to be here, and I 
thank the Chair for her leadership in bringing forward this 
important draft legislation to fix the unintended consequences 
of CPSIA.
    As a parent, nothing is more important to me than the 
safety and health of my children. I think this draft provides 
us with a balanced way forward that protects my children from 
harmful products without devastating our country's small 
businesses. If my children are protected, your children are 
protected.
    I thank the Chair and looking forward to helping her 
advance a commonsense fix to this law. I yield back.
    Mrs. Bono Mack. I thank the gentleman. And now all opening 
statements are concluded. And we have three panels before us 
today. 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 our 
first panel we have, in reverse order, but we have Robert 
Howell, Assistant Executive Director of Hazard Identification 
and Reduction at the U.S. Consumer Product Safety Commission. 
That is a mouthful. And then Dr. Barbara Beck, a widely 
respected expert in toxicology and a former EPA region chief 
and fellow at the Harvard School of Public Health; and Dr. Dana 
Best, who is presenting on behalf of the American Academy of 
Pediatrics.
    Good morning. I would like to thank you all for coming. You 
will each be recognized for 5 minutes. To help you keep track 
of time, the little clock in front of you, when it turns 
yellow, please recognize that is the 1-minute mark if you could 
start wrapping up and when the light turns red, your time is 
up. I would also ask you to remember to turn the microphone on 
before you begin. And now I would like to start with Dr. Best 
for your 5 minutes. Good morning and welcome.

  STATEMENTS OF DANA BEST, MD, MPH, FAAP, AMERICAN ACADEMY OF 
  PEDIATRICS; BARBARA D. BECK, PH.D., DABT, FATS, PRINCIPAL, 
GRADIENT; AND ROBERT JAY HOWELL, ASSISTANT EXECUTIVE DIRECTOR, 
  HAZARD IDENTIFICATION AND REDUCTION, U.S. CONSUMER PRODUCT 
                       SAFETY COMMISSION

                     STATEMENT OF DANA BEST

    Ms. Best. Good morning. Thank you for this opportunity to 
testify today. I am a pediatrician and pleased to represent the 
American Academy of Pediatrics. The AAP is deeply concerned 
that the subcommittee is considering legislation that would 
profoundly alter the CPSIA and could reverse the progress 
towards safer toys and children's products. Today I will focus 
on four areas: the scope of children's products, lead limits in 
children's products, risk assessment, and the need for third-
party testing.
    First, the scope of children's products should protect 
children up to age 12. The AAP recommended that the CPSIA cover 
products for children up to age 12 years based on developmental 
and pragmatic concerns. With regard to developmental issues, 
the mouthing behaviors that cause the most concern for exposure 
to hazards like lead peak in the toddler years and taper off 
throughout school age, although it is not unusual for school-
age children to place toys and other objects in their mouths or 
to mouth or suck on items like jewelry and pens. For some 
groups, such as children with developmental delays, mouthing 
behaviors may persist until adolescence or later.
    Another concern is that toys are often shared. While most 
parents work hard to keep toys for older children away from 
younger children, they may not always be successful. It is 
therefore important to ensure that toys are as safe as possible 
for all children in the household.
    Second, the CPSIA's limits on lead in children's products 
should not be relaxed. In the judgment of the AAP, there is no 
scientific basis for establishing a de minimis level for lead 
in children's products. To date, science has not identified a 
threshold below which lead ceases to damage a child's brain or 
body. There is no known safe level of lead. During the 
development of the CPSIA, the AAP was asked to recommend a 
limit for lead in children's products. Following a rigorous 
scientific review, the Academy recommended that lead in 
children's products be limited to 40 parts per million. The 
rationale behind this level is explained in my written 
testimony.
    The AAP is also concerned that the discussion draft 
proposes to distinguish between lead exposure due to sucking on 
an item from lead exposure due to licking an item. From a 
scientific perspective, there is no basis for making this 
differentiation. Both actions defined as ``mouthing'' in the 
pediatric literature are associated with lead ingestion.
    The AAP urges Congress to resist calls to set differing 
standards for lead in children's products based solely on the 
likelihood of sucking, licking, or swallowing. Given the 
extreme toxicity of lead, its bioaccumulation, and the 
irreversible nature of the damage it causes, the concept of 
setting different levels of lead for various types of toys or 
children's products is troubling.
    Third, risk assessment is not an appropriate method for 
limiting lead exposure in children's products. The draft before 
the subcommittee appears to shift from measurement of total 
lead in children's products to risk assessment frameworks. The 
AAP urges you to leave intact the straightforward, predictable 
total lead standard in the CPSIA. The fundamental premise of 
risk assessment is that some degree of risk is acceptable such 
as when the benefit of receiving a drug is compared to its side 
effects. In the case of lead, there is no benefit to exposure. 
While the harms are numerous and significant such as decreased 
IQ, if the CPSIA standard is altered, Congress would need to 
determine what level of IQ loss is considered acceptable.
    In addition, standards should protect not only the average 
child, but also children at higher risk of lead exposure and 
its consequences. This is best accomplished using the lead 
limits currently in the CPSIA.
    The AAP is deeply concerned that a risk assessment 
framework would require the CPSC to perform or confirm risk 
assessment on many different products. It is unclear who would 
bear the ultimate responsibility for determining risk or what 
the process would be for reconciling differences when risk 
assessments differ between the agency and the manufacturer.
    Finally, third-party testing is necessary to ensure the 
safety of children's products. The discussion draft proposes 
significant changes to CPSIA's third-party testing 
requirements, dramatically reducing the number and types of 
products subject to independent testing. This would essentially 
return us to the pre-CPSIA state of affairs in which consumers 
were expected to guess which toys and children's products were 
really safe.
    The AAP would like to make one more comment on another 
point made in the discussion draft and strongly recommend that 
noncompliant cribs not be permitted in childcare facilities.
    In conclusion, the AAP urges you to not weaken the CPSIA's 
protections against lead and other hazards as you consider ways 
to improve the ability of manufacturers and businesses to 
comply with this important law. Thank you.
    [The prepared statement of Dr. Best follows:]





    
    Mrs. Bono Mack. I thank the gentlelady and recognize Dr. 
Beck for 5 minutes. Can you make sure your microphone is on and 
close to your mouth, please?
    Ms. Beck. Sorry.
    Mrs. Bono Mack. Thank you.

                  STATEMENT OF BARBARA D. BECK

    Ms. Beck. My name is Barbara Beck. I am a toxicologist risk 
assessor at Gradient, an environmental consulting company and I 
have worked on issues of lead exposure, toxicology, and risk 
for over 20 years, starting from my time at EPA Region 1 where 
I was involved in development of one of the first clean up 
levels for lead in soil that I am aware of. I have evaluated 
exposures, toxicology of lead in products, workplace, and in 
the environment.
    In its present version, the CPSIA Act has established a 
concentration limit of 300 parts per million for lead, which 
will go in August to 100 parts per million unless it is not 
feasible. This is going to be problematic and is problematic at 
present, especially for metallic alloys that contain lead such 
as tire stem valves. My concern with the present approach is 
that it doesn't consider the actual exposure, the intake, the 
absorption, and the impact of lead releases from such products 
on blood lead levels. Blood lead levels are typically 
considered the appropriate metric for evaluating exposures to 
lead.
    Risk-based approaches have been used to establish limits 
for lead for decades. It has been used to establish limits for 
lead in air, water, and soil. Such approaches have been 
beneficial. Blood lead levels of children in the U.S. have 
declined by over a factor of 10 over the past 20 years as lead 
has been removed or reduced from air, from food, and from 
paint.
    The proposed changes represent a step in the right 
direction. Determination of a de minimis level of lead exposure 
is consistent with what has been conducted with other types of 
materials such as soil, air, and water, and it also proposes 
the use of a methodology to identify how much lead is released, 
what the actual exposure would be from a children's product. 
This approach is not only consistent with regulatory policy in 
other settings, but with fundamental principles of toxicology. 
The dose is what matters. The dose of a chemical--whatever the 
chemical is, how hazardous it is--is really critical in 
determining whether there would be a risk or no risk.
    I am not here to propose a specific model or a specific de 
minimis limit, but I do note that the approaches should 
consider the age of the child: mouthing behavior peaks at age 2 
to 3, absorption of lead from the gut peaks around that age, 
and choosing a value of, say, 7 years old would be protective 
of younger children. The method that is considered should 
consider how a child actually interacts with the product and 
risk-based methods are available to evaluate mouthing behavior, 
contact by hand with products, hand-to-mouth, as well as the 
potential swallowing of a product and the impact that contact 
on blood lead. That can be modeled.
    My comments that are provided to the committee provide a 
hypothetical example of how such an analysis could be 
conducted. It is not meant to propose specific de minimis 
values or the specifics of an approach but to demonstrate that 
there are methods. In my particular example, I demonstrate how 
a release of 1 microgram of lead from a product per day every 
day for a 2- to 3-year-old child would not have a discernible 
impact on blood lead. Some people may consider that de minimis.
    In conclusion, I strongly encourage the committee to 
consider the use of such risk-based approaches in proposing 
amendments to the CPSIA. Such approaches will allow for health-
protective risk-based limits that would be sound public health 
policy, as well as sound risk management policy. Thank you.
    [The prepared statement of Ms. Beck follows:]





    Mrs. Bono Mack. Thank you, Dr. Beck. Mr. Howell, you are 
recognized for 5 minutes.

                 STATEMENT OF ROBERT JAY HOWELL

    Mr. Howell. Good morning, Chairman Bono Mack, Ranking 
Member Butterfield, and members of the subcommittee. My name is 
Robert Howell. I am the assistant executive director for the 
Office of Hazard Identification and Reduction at the Consumer 
Product Safety Commission. I appreciate the opportunity to 
testify before you this morning regarding certain technical 
aspects of the discussion draft of legislation that would 
revise the Consumer Product Safety Improvement Act. The 
testimony that I will give this morning represents my personal 
views and has not been reviewed or approved by the Commission 
and may not necessarily reflect the views of the Commission.
    In my role at CPSC, I oversee the technical work of the 
Agency within the Office of Hazard Reduction's directorates for 
Engineering Sciences, Epidemiology, Economic Analysis, Health 
Sciences, and Laboratory Sciences. My office is responsible for 
the collection and analysis of death and injury data associated 
with consumer products, the evaluation of consumer products for 
potential safety hazards and regulatory compliance, and the 
development of technical solutions to product safety concerns.
    Prior to joining CPSC in 2006, I served as vice-president 
of manufacturing and operations for a multinational corporation 
with responsibility for the management of global manufacturing 
and logistics.
    On January 15, 2010, the five members of the CPSC issued a 
report to Congress regarding possible improvements to the 
CPSIA. In suggesting those improvements, the commissioners 
noted that the recommendations were focused on maintaining the 
``safety and welfare of consumers while minimizing 
administrative burdens on the Agency or significant market 
disruptions caused by the implementations of specific 
provisions of the CPSIA.''
    Specifically, the Commission listed the following 
recommendations for improvement of the statute: that the 
Commission ``needs additional flexibility within Section 101 to 
grant exclusions from the lead content limits in order to 
address certain products, including those singled out by the 
conferees;'' that ``Congress may, with some limitations, choose 
to consider granting an exclusion for ordinary children's books 
and other children's paper-based printed materials; the 
Commission believes that a prospective application of the 100 
parts per million lead limits would be helpful for our 
continued implementation of the law;'' and that the 
``Commission remains committed to working with Congress to 
explore other ways to address the concerns of low-volume 
manufacturers'' with regard to the testing and certification 
requirements in Section 102 of the CPSIA.
    From my perspective, the CPSIA has improved the health and 
safety of consumers, particularly children. In additional, 
industry has made substantial progress over the past 2\1/2\ 
years adapting to the requirements of the law. For example, the 
children's product industry has made progress in reducing the 
levels of lead since the enactment of CPSIA. In a recent 
Commission hearing on the technological feasibility of reducing 
the lead limits to 100 parts per million, a representative of 
SGS--a global inspection, verification, testing, and 
certification company--presented a statistical analysis of lead 
content testing data with close to 90,000 data points collected 
primarily from its Shenzhen laboratory that specializes in the 
testing of children's toys and other children's products.
    In its analysis, SGS found that 96.3 percent of metal 
components tested at or below 100 parts per million. The 
analysis also determined that just over 97 percent of glass and 
ceramic components tested at or below 100 parts per million. 
Concerning plastic components, SGS found that 99.4 percent of 
those components tested at or below 100 parts per million. 
However, there are certain provisions of the CPSIA such as the 
current exceptions to the Section 101 lead limits that can be 
improved in such a way as to reduce the burden on the regulated 
community while maintaining an appropriate level of safety for 
America's consumers. I personally believe this balance is 
necessary to ensure efficient and effective implementation of 
the CPSIA from the perspective of both the regulated community 
and the regulators.
    There are several approaches that could allow the CPSC to 
address the unintended consequences of certain regulatory 
requirements in the CPSIA. For example, the Commission has 
heard from a number of Members of Congress that they did not 
intend to cover all-terrain vehicles under the provisions of 
Section 101. Accordingly, Congress could permit the Commission 
to exempt certain products like ATVs from the lead limits. This 
will allow the CPSC to weigh the risk of possible lead exposure 
to a child riding a youth-sized ATV against the risk to the 
child from riding a larger and more powerful adult ATV.
    Assuming that the exceptions would be made on a notice-and-
comment basis, the underlying analysis and support for any 
exceptions would be public, allowing for transparency and 
accountability for all stakeholders involved in the process.
    Finally, allowing the Commission to regulate on a timetable 
influenced by the seriousness of the actual risk would allow 
for better priority-setting that will permit Commission 
resources to be put towards the most serious health risk.
    Mrs. Bono Mack. If you could please sum up now.
    Mr. Howell. Madam Chairman, thank you.
    [The prepared statement of Mr. Howell follows:]





    Mrs. Bono Mack. Thank you. Oh, perfect. Thank you. That 
worked out just well. I want to thank our panel of experts. And 
now the chair will recognize herself for the first 5 minutes of 
questioning.
    And Mr. Howell, the first question to you. How does the 
CPSC staff go about deciding whether a substance or a product 
poses a risk to children? And briefly, what factors are 
important?
    Mr. Howell. As CPSC staff evaluates potential risk to 
children, it involves several different teams within CPSC. We 
have a human factors team that will actually age-grade the 
product and determine what particular product characteristics 
are important in age-grading to ensure that the product is 
targeted to the correct group of children. If, for example, we 
are evaluating that product with regards to lead, for example, 
a complete risk assessment would be conducted taking into 
account not only the intended consumer but any other children 
that may be attracted to that particular toy based on 
characteristics of the toy.
    Mrs. Bono Mack. Thank you. Does the Commission have 
information on the cost of third-party testing? For example, do 
you know how much it would cost to have a bicycle tested by a 
third-party laboratory to all the applicable standards?
    Mr. Howell. We have heard from the bicycle industry that 
the cost to test a $50 bicycle for all the applicable standards 
would run somewhere in excess of $10,000.
    Mrs. Bono Mack. Wow. Thank you. And the focus of a lot of 
our attention, especially on this side of the aisle and again, 
Mr. Howell, is the database. I actually think the database is 
helpful and useful, but I think it has problems and we should 
talk about it a great deal. My thinking is that it is 100 
percent negative derogator and that if the manufacturer can 
respond that they are seen as defensive. There must be a way--
if you buy anything anywhere on the internet now, Amazon, I 
mean even Zappos.com, you know, there are comments on both 
sides. People can give the good and the bad of a product. Yet 
this database is 100 percent negative. Can it not be refined so 
that there is a more accurate depiction of a product?
    For example, if I complain about something potentially 
hurting my child but this is one example out of 10,000--but 
nobody else would have any way of knowing that--can't the 
database be refined to be a more accurate depiction about a 
product in society?
    Mr. Howell. Chairman Bono Mack, I am quite certain that 
either Congress or the Commission could--within CPSIA as 
written--make modifications. But that is certainly more of a 
policy matter and is beyond my responsibilities at CPSC.
    Mrs. Bono Mack. Well, thank you. I think I made my thoughts 
pretty clear there in my questions. So also, to you Dr. Best, 
you state from a scientific perspective that there is no basis 
for differentiating between a child licking versus sucking on 
an object. In CPSIA however, Congress drew that very 
distinction for purposes of phthalate limits. Do you see a 
reason why this is changed? And I always do that on that word. 
Do you see a reason why this distinction makes sense for 
phthalates but not for lead?
    Ms. Best. We didn't actually work on the phthalates issue, 
and so I can do some research and perhaps offer you a response. 
But again, I am an expert on lead, not on phthalates.
    Mrs. Bono Mack. All right. Thank you. And you mentioned 
also that older children sometimes put ballpoint pens or 
jewelry in their mouths. You also mentioned that toys may be 
shared among multiple children in the same household. But 
aren't there many other items which older children do not mouth 
and to which younger children rarely, if ever, have access?
    Ms. Best. Of course. But we are talking about the harms to 
children from lead-containing objects. And so, you know, our 
focus is on those lead-containing objects that may be dangerous 
to younger children.
    Mrs. Bono Mack. But common sense would say, as a parent--my 
kids are now 23 and 20 and my step-kids are 8 and 11--common 
sense would say to a parent their children don't only come in 
contact with children's products whether it is a 2-year-old 
toy, a 10-year-old toy or an adult, say, electronic component 
of some sort. Is that not a problem as well? Is it common sense 
that we are trying to say that a--from what I understand--a 
Hannah Montana DVD is under one category and a Miley Cyrus DVD 
is on another category and then a DVD player is entirely 
exempt? So parents ask themselves these questions all the time. 
It is one of these things, what are they thinking in 
Washington? Because it makes no sense at all. As a 
pediatrician, how do you address that?
    Ms. Best. I am having trouble understanding the question. 
So yes, there are products in the house that are not intended 
for children that do not come under the CPSC's purview in this 
context. And while there are other safety groups that may work 
with those products, we are focusing on the safety of 
children's toys here and products intended for children. And 
that is our focus.
    Mrs. Bono Mack. We are out of time. Just to make a little 
more clear that it is common sense, sometimes, that you can't 
protect from everything here. And that is the question. Is the 
Commission focused on its highest priorities? So I am sorry, 
but I need to yield now to Mr. Butterfield for his 5 minutes of 
questioning.
    Mr. Butterfield. Thank you, Chairman. Prior to the 
enactment of this legislation, the Consumer Product Safety 
Commission assessed the risk posed by children's products 
containing lead by estimating the amount of lead intake from 
the product and the subsequent effects of exposure on blood 
lead level. For the most part, this was what I call an after-
the-fact assessment. That is the Commission mostly looked at 
products for exposure to and risks from lead after products had 
entered the marketplace and been put into the hands of 
children. The discussion draft seems to create a de minimis 
exception that makes the total lead content limits in CPSIA 
more meaningless. Basically, any component part that cannot be 
swallowed can contain any amount of lead so long as a child 
isn't expected to ingest more than some amount to be determined 
amount of lead. So rather than determining the total amount of 
lead contained in a product, the discussion draft would call on 
manufacturers to estimate the amount likely to be ingested and 
takes it as a given that it is oK for kids to take in some 
amount of lead from their toys.
    Ms. Best, the de minimis exception in the discussion draft 
is essentially a return to the approach that the commission 
used prior to the legislation. As I read it, any component part 
of a toy or other children's product such as a crib would be 
allowed to release a de minimis amount of lead, say 6 
micrograms per day. Can you please explain what would happen if 
a child played with more than one toy in one day? Even a child 
who has one special toy plays with dozens of toys in a day. 
Could that child be exposed to 6 micrograms per day per toy? I 
do not read the de minimis standard as requiring the 
consideration of other exposures to lead in a given day. Can 
you help me with this?
    Ms. Best. Well, the Academy is very much against the de 
minimis standard for many of the points you raised. Lead 
exposure doesn't come just from one individual product. It 
comes from the environment. It can be found in our food, in our 
air, certainly on paints, certainly in the water in Washington, 
D.C., in the past. And so we are very concerned about the 
bioaccumulation of lead through all these different sources. 
Because lead doesn't immediately get passed out through your 
body, you can actually store it. Some of these stores persist 
for years, if not decades. And that is one of the things we are 
very much concerned about.
    Mr. Butterfield. Thank you. Many of us agree that there are 
specific products that can't meet the lead content limits and 
can't be made without lead--we acknowledge that--and that some 
form of relief should be provided for the narrow universe of 
products. We agree, some of us, that this relief should be as 
simple to understand and apply as possible while remaining 
protective of children's health and safety. So far as I can 
tell, the proposed de minimis exception in the draft fails on 
all of these counts. Implementing the de minimis exception will 
require taking into account very product-specific 
considerations, and on a good number of instances, it will 
require applying varying lead requirements for differing parts 
of the same product.
    For example, say I manufacture a toy truck that contains 
plastic and metal, some large enough not to be swallowed and 
others that can be swallowed. For each plastic component, I 
would have to ask is this small enough to be swallowed? If the 
answer is no, then I would have to ask how do I expect a child 
to interact with this component? Is lead likely to be ingested 
from the interaction? How much lead can I expect to be ingested 
from the interaction? What age is the child doing the 
interacting? For the metal components, the manufacturer would 
then have to ask, can I meet the alternative 600 parts per 
million total lead count standard in the draft? If the answer 
is no, the manufacturer would again have to run through the 
analysis as I described. Can it be swallowed? So forth and so 
on.
    Mr. Howell, let me ask you this yes or no, sir, and I am 
going to be out of time momentarily. Would the Commission have 
to develop multiple methodologies given that children interact 
differently with different products?
    Mr. Howell. Yes.
    Mr. Butterfield. Would requiring the Commission to develop 
multiple methodologies to account for the different ways 
children can interact with different products and parts require 
substantial investment of the Commission's limited resources?
    Mr. Howell. No.
    Mr. Butterfield. In your experience, sir, do retailers and 
manufacturers prefer clear lines for compliance over estimating 
the likelihood that their product might behave in a certain 
way?
    Mr. Howell. Many do.
    Mr. Butterfield. Under current law, sir, enforcement is 
simply the product meets the standard or doesn't meet the 
standard. Under the draft that we have in front of us, the 
Commission's enforcement seems to be more complicated. For each 
product at the border where there might be a problem, the 
Commission will have to do complicated testing. Couldn't this 
slow down products and have them retain longer at some of our 
ports?
    Mr. Howell. Yes.
    Mr. Butterfield. All right. Thank you very much. My time is 
out.
    Mrs. Bono Mack. All right. The chair recognizes the vice 
chair of the subcommittee, Ms. Blackburn, for 5 minutes.
    Mrs. Blackburn. Thank you, Chairman, and thank you to our 
witnesses.
    Mr. Howell, I would like to start with you if I may, 
please. As I mentioned in my opening statement, the database--
as we hold our initial hearing on this issue, we are very much 
aware that the database is incomplete; it has problems. The 
chairman mentioned some of the problems that are there with how 
information is recorded. And I want to know two things from you 
if you would, please, sir. Number one, would we be better off 
to take that thing down until the problems are worked out? And 
number two, what needs to be done to correct the problems that 
are around the database? Very quickly, please. I have got other 
questions.
    Mr. Howell. Ms. Blackburn, because the problems that you 
cite are not clearly defined, I am going to respond to your 
question clearly in a very broad way. Certainly the decision 
whether to keep the database up or down becomes a policy 
decision. It is not one that my technical staff necessarily are 
the appropriate ones to make. The challenges of implementing 
anything that is new certainly will require the attention of 
staff in order to get it right. Many of the things that we see 
in the database, regardless of the nature of the reports of 
harm, would require resources to get a handle on the 
appropriate way to respond.
    Mrs. Blackburn. OK. And I will help you with that 
definition. The prior hearing that we had we heard from the 
commissioners that if there is a complaint against, say, Graco 
cribs, then all Graco cribs are--you know, you don't define 
between that. So I would ask you to submit to us in writing 
with a little bit more detail what you think needs to be done. 
Because I think we need to take the thing down and bring it 
offline, work out the kinks, and then bring it back so that it 
is understandable to consumers so they know exactly what the 
product is and so there is a method for them to evaluate what 
actually is the problem and then if they do or do not want to 
purchase that product. At this point right now, people can just 
rail against a brand and not necessarily a specific product or 
a part. And there is that problem of definition within that 
use.
    I want to come to Dr. Beck. Mr. Vitrano, who is going to 
testify on the next panel, submitted testimony. And thank you 
all for submitting your testimony in advance. And in there he 
talks about the lead intake from children's interaction with 
ATVs is less than the intake from drinking a glass of water. 
And I would like to know in your opinion do you agree with 
that? Do you find that to be an accurate statement and a little 
bit of definition around that and see if--what I am looking at 
is if the metal parts on an ATV contain higher lead than are 
permitted by the EPA for drinking water standards, I am sure 
you can understand our confusion with that issue.
    Ms. Beck. Yes. His statement is correct. It is based on 
analysis that we did in which we had wipe samples. Because the 
question is how does a child interact, say, with the valve 
stem? We had samples of wipes that rubbed the valve stem, and 
that was to mimic a child touching a valve stem when they fill 
their----
    Mrs. Blackburn. OK. So Dr. Beck, it would be true that a 
child gets more lead content in drinking a glass of water than 
from playing with an ATV?
    Ms. Beck. They would get more lead from what is commonly 
found in drinking water but is permissible under EPA than they 
would get from contacting their hands with the valve stem on an 
ATV or from touching the handles.
    Mrs. Blackburn. OK, now, let me ask you this. Do you find 
this with other products? Have you found this same association 
in other products that you have tested, maybe with the wipe 
test?
    Ms. Beck. We have also done wipe tests on scooters and we 
had similar results, that what came off in a wipe was 
relatively small, less than what a child might typically get 
from drinking water.
    Mrs. Blackburn. OK. Thank you very much. I appreciate that. 
And I will go ahead and yield back.
    Mrs. Bono Mack. I thank the gentlelady. The chair 
recognizes Ms. Schakowsky for 5 minutes.
    Ms. Schakowsky. Thank you, Madam Chairman. Mr. Howell, in 
your testimony you note that an independent testing lab, SGS, 
has found that almost 90 percent of toys tested by it recently 
comply with the 100 parts per million lead limit. While I 
realize this is data from only one entity, it seems to provide 
at least some evidence that the children's product marketplace 
has largely adapted already to the 100-parts-per-million limit. 
Would you say that is true?
    Mr. Howell. Yes, I would. I would also add to that, though, 
that it may also indicate that we are rapidly approaching a 
point of diminishing returns in that the effort to achieve the 
final reduction in lead may be much more costly than the 
incremental cost of getting to where we are today.
    Ms. Schakowsky. Certain members of industry have been very 
critical of fixed parts-per-million limits for lead in 
children's products and have advocated a move back--as we heard 
from Dr. Beck today--to risk-based standard. However, the 
American Society of Testing and Materials, ASTM's F-963 toy 
standard, which has been drafted through a consensus process 
and is now a mandatory rule under the CPSIA, contains fixed 
parts-per-million limits for certain toxic metals and surface 
coatings of toys like cadmium--is it antimony?--and barium and 
in those areas--well, so I am asking why not lead? If they 
could go to a PPM for other things, why not lead? And let me 
pose the same question to Dr. Best. But Mr. Howell?
    Mr. Howell. Certainly you can regulate lead either on a 
fixed-content limit or on the extractable amount. That becomes, 
basically, not only a policy choice but a choice of economics 
and ease of test, if you will, that would facilitate 
compliance.
    Ms. Schakowsky. So would you say that it is easier to 
administer for many companies and for the Commission to go on a 
parts-per-million basis?
    Mr. Howell. Certainly, there are advantages to testing by 
content in the fact that it is that time is much faster. It 
certainly doesn't generate the level of hazardous waste than 
what chemistry does. But at the same time I believe another way 
to look at the problem, perhaps, would be a balance between 
both the parts-per-million content at some prescribed level and 
then a risk-assessment approach at levels above that to deal 
with, perhaps, products such as ATVs and bicycles where the 
exposure is, perhaps, much, much less of a concern than you 
might have in something that is mouthable or swallowable.
    Ms. Schakowsky. Thank you. Dr. Best, I wonder if you would 
comment on these issues.
    Ms. Best. One of the big differentiations between the CPSIA 
and the ATSM--or MS, whatever--their levels is that the ATSM's 
levels are soluble lead. And we are concerned not only about 
the surface coating but as the product wears, the surface 
coating may be worn off and so then you are getting deep into 
the content of whatever product we are talking about, and 
again, the swallowing question comes into play.
    Ms. Schakowsky. Right. But my question is if the toy 
manufacturers could go to a parts per million for these other 
things, why not with lead?
    Ms. Best. Well, we believe that they can go to a total lead 
content level and achieve that reasonably. And as some of these 
data have shown, many manufacturers----
    Ms. Schakowsky. OK. One other question on lead content. You 
had mentioned that children with disabilities sometimes 
continue mouthing, you know, well past a little kid and yet 
products designated as--I am looking what it is called--special 
products for the disabled are not in the category that would 
require a mandatory third-party testing for almost all 
children's products. Do you think that is a mistake?
    Ms. Best. I can't say I know all of the definitions of 
special products for the disabled. Certainly, you know, I 
wonder if some of them are more adapted products such as 
adaptive listening devices and adaptive hearing devices, so 
they are not toys. And so we have been very focused on the toys 
and so that is where, you know, all of our evidence has been 
based.
    Ms. Schakowsky. Thank you.
    Mrs. Bono Mack. All right. The chair recognizes Mr. Barton 
for 5 minutes.
    Mr. Barton. Thank you. Mr. Howell, my recollection is that 
in the Congress and the hearing in this Congress that the 
commissioners who testified, testified that the current law 
doesn't give them the flexibility that they need to implement 
the law. Is my recollection correct?
    Mr. Howell. I recall the same thing.
    Mr. Barton. You recall the same thing? So that is a yes?
    Mr. Howell. That is a yes.
    Mr. Barton. OK. Dr. Best, what is wrong with giving the 
CPSC some flexibility to implement the law?
    Ms. Best. It is my understanding that they already have 
some flexibility to----
    Mr. Barton. That is not their understanding.
    Ms. Best. Well----
    Mr. Barton. I mean they testified at least twice----
    Ms. Best. Right.
    Mr. Barton [continuing]. That they need more flexibility. 
So let us stipulate that they don't have flexibility. Why, 
then, would it not be prudent for Congress to give them some 
flexibility?
    Ms. Best. Well, the stipulation I would have to look at. 
But the concern we have is that children's health is not 
something that should be negotiated based on manufacturers' 
profit.
    Mr. Barton. Well, nobody is saying that the stipulation 
should be based on profit. That is a fairly obnoxious comment 
to make in reply to my question.
    Ms. Best. When we do a risk-based assessment or we allow 
great freedom in terms of how safe toys are, we go back to the 
days where children----
    Mr. Barton. OK, well, look, I don't have time for a 5-
minute longwinded non-statement. Do you support any flexibility 
at all for the Commission? Yes or no?
    Ms. Best. I will support some----
    Mr. Barton. So that is a----
    Ms. Best [continuing]. Very defined, limited----
    Mr. Barton. Thank you.
    Ms. Best. [continuing]. Carefully protective flexibility.
    Mr. Barton. You do support some flexibility. That is a good 
thing. Let me go back to Mr. Howell. The House bill, when we 
actually passed the bill under Chairman Dingell's leadership, 
had a 12-year-and-under standard. The Senate bill had a 6-year-
and-under standard for children. The Senate receded to the 
House to the 12-year. That is one of the changes in the draft 
before us is that we leave the age as undefined. If you split 
the difference between the Senate and the House, obviously it 
would be 9 and under. Is that a reasonable compromise or is 
that unfeasible in your opinion?
    Mr. Howell. To some degree it depends on the risks that you 
are trying to manage. I will say in that some work done several 
years ago in establishing lead limits for children's jewelry, 
which the work was terminated because of the CPSIA, staff had 
determined that 9 and under would be an appropriate age based 
on how children interact with a product such as jewelry.
    Mr. Barton. Let me ask that same question to Dr. Best. Is 
there some middle ground between 6 and 12?
    Ms. Best. We carefully reviewed this in 2007 and we believe 
12 is the right age.
    Mr. Barton. OK. What about Dr. Beck?
    Ms. Beck. I think that it is somewhat of a science policy 
decision that there really is no bright line. I do think what 
Mr. Howell has proposed, 7, 9, that they are reasonable 
compromises. Obviously, a young child might play with toys of 
an older child, but it will be less frequent. But as I said, 
ultimately, I think that there is need for some judgment in 
determining what the actual age should be.
    Mr. Barton. OK. Mr. Howell, on third-party testing, the 
draft preserves third-party testing for certain priority 
standards and priority products and it gives the Commission the 
flexibility to require third-party testing for other standards. 
Is that something you think the Commission would support in 
this draft, the third-party testing amendments?
    Mr. Howell. Sir, I am unable to speak for the Commission.
    Mr. Barton. You work for the Commission. You are the only 
Commission representative we have.
    Mr. Howell. I work for the Commission but the question was 
do I believe the Commission would buy into this proposal,and I 
cannot predict what the Commission might accept or not accept.
    Mr. Barton. So you just walk around in a daze when you are 
at the Commission even though you are the----
    Mr. Howell. No, sir, but I do not control the votes of the 
commissioners.
    Mr. Barton. Well, but you can have an opinion about what 
their position might be. You have got a better opinion than I 
do.
    Mrs. Bono Mack. The chair would recognize that we are out 
of time and, with all due respect to my dear colleague, but 
recognize now for 5 minutes Mr. Towns.
    Mr. Towns. Thank you very much, Madam Chair. Let me ask 
discretion, first of all, I guess to you Dr. Best. Can you 
explain how lead buildup in bones throughout a lifetime can 
impact pregnant women and developing fetuses and why children 
are born with lead in their blood?
    Ms. Best. Yes. Lead is similar to calcium in that our 
bodies see lead as if it was a calcium molecule and then absorb 
it into our bones throughout our lives. And so if you are 
exposed to more levels of lead as you are developing bones or 
remodeling bones, which goes on throughout life, you are likely 
to absorb and store lead in your bones to a greater extent.
    During pregnancy, there is a very high calcium demand on 
the mother's body and the fetus actually steals calcium from 
the mother. And if the mother doesn't have enough daily dietary 
intake from calcium, the bones will be resorbed and calcium 
from the bones will then be used to help the fetus develop. And 
so if there is calcium being released from the bones and there 
is also lead in the bone, the lead is released at the same time 
and then transferred to the fetus.
    Mr. Towns. Thank you very much. Let me ask you this, Mr. 
Howell. When can a product that has shown consistent 
compliance, you know, through a third-party testing be relieved 
from testing? How many years?
    Mr. Howell. If the objective is to establish a prevention-
based program, the answer to that would be that while the 
frequency of testing could certainly be extended, I would 
suggest that perhaps it could never be terminated if you will 
but just longer periods of time between third-party testing. In 
the industry that would be a skip-lot quality approach.
    Mr. Towns. Even if you test it and there is consistency and 
you still feel that you can't say 2 years, 10 years, 20 years? 
You just would have to continue?
    Mr. Howell. Well, the assumption there is that things never 
change in the manufacturing process. And, for example, the lead 
in paint that some say was the beginning of the CPSIA 
discussion was a total surprise to the manufacturer. They 
thought they had their process totally under control and they 
had a supplier who brought material into their factory, they 
assumed it was correct--and, in fact, it was loaded with lead. 
So if indeed the goal is to measure compliance to assure the 
American public that the product is safe, I would suggest that 
while you could increase the time between testing that you 
might be accepting some risk if you chose to terminate the 
testing until such time as you determine there was another 
problem and then reinstitute the testing.
    Mr. Towns. Right. Thank you. Is there sufficient 
flexibility for the Commission to allow for--I am trying to see 
if there is anything on this side that we need to do.
    Mr. Howell. In my opinion and, of course, as has been 
stated many times by the Commission itself, there is certainly 
a need for additional flexibility for the Commission to act 
appropriately to implement the law and safeguard consumers.
    Mr. Towns. Dr. Best, is there anything that we need to do 
on this side as Members of Congress? Let us switch roles for a 
minute.
    Ms. Best. Besides pass a budget? Sorry. I think we need to 
remember that toys are not a requirement for life and we want 
children to have the best opportunity that they can possibly 
have. And, you know, the option is not between a drug that has 
side effects for a child. The option is between a toy that is 
safe and a toy that may not be safe. And so we need to remember 
that, you know, every toy is not a required product to help a 
child grow. They need toys but they need to know that those 
toys are safe. And we need to continue to remember that lead is 
dangerous at small levels. Even very small levels it causes IQ 
loss and the more we find out about the low levels of lead, the 
more harms we discover.
    Mr. Towns. Thank you. I see my time has expired, Madam 
Chair. Thank you very much.
    Mrs. Bono Mack. I thank the gentleman and recognize the 
gentleman from New Hampshire, Mr. Bass, for 5 minutes.
    Mr. Bass. Thank you very much, Madam Chairman, and I 
appreciate your holding this important hearing to discuss a 
piece of legislation which corrects a response to a problem 
which was clear and understandable and necessary which occurred 
during the period of time that I was not serving in the 
Congress. And I was thinking of saying I am not surprised that 
the response that was passed by Congress essentially endeavors 
to use a Howitzer to kill a mosquito and so here we are trying 
to make this necessary new law work better.
    However, my questions are for Mr. Howell, and they don't 
deal with the central controversy of the bill but rather with 
some equipment that the CPSC is using and whether or not its 
use should be expanded. I understand that the Consumer Product 
Safety Commission uses several dozen handheld x-ray 
fluorescence analyzers and they are used both in the laboratory 
and also in ports of entry. They quickly, effectively, non-
intrusively, and accurately determine whether and how much lead 
is in a product. Can you give us a brief description of your 
experiences using this equipment and enforcing limits on lead?
    Mr. Howell. Certainly. The XRF scanners have certainly 
helped the efficiency and effectiveness of implementing the 
law. There initially were some limitations. The XRF is a good 
tool for detecting lead and other potentially toxic heavy 
metals in homogenous materials like plastics. However, there 
were some limitations early on in checking for lead in surface 
coatings, as in paint.
    Mr. Bass. Um-hum.
    Mr. Howell. However, just recently CPSC issued a Notice of 
Requirements recognizing that HD XRF technology had been 
developed, a testing protocol had been developed under ASTM and 
that is now an approved method to test for lead in paint. So it 
certainly is an efficient technology.
    Mr. Bass. As the lead individual for hazard reduction's 
support expanded use of these XRF devices by manufacturers, 
retailers, and porters as a means to ensure compliance with 
lead limits?
    Mr. Howell. I believe the cost savings, in my experience, 
has been motivation enough. Certainly, most manufacturers who 
can afford a unit, to my knowledge, have acquired one.
    Mr. Bass. So the expanded use of this equipment would, in 
your opinion, improve the safety and quality of the products on 
the market today?
    Mr. Howell. It certainly is an effective way for a 
manufacturer to monitor his incoming materials and his outbound 
materials.
    Mr. Bass. OK. And lastly, as you may know, the EPA and HUD 
have used handheld XRF for decades to test for lead in homes 
and they are obviously protecting children. CPSIA includes a 
limit for lead in small painted areas on children's products. I 
think it is 2 micrograms per square centimeter of paint. Do you 
support making this limit applicable to larger painted areas as 
well?
    Mr. Howell. If you would allow me to respond to that 
question in writing, I would like to get with our chemist and 
give you an appropriate response.
    Mr. Bass. OK. Fair enough. Thank you very much. And I thank 
the chairlady. I yield back.
    Mrs. Bono Mack. I thank the gentleman. And the chair 
recognizes we have a series of votes on the floor so it is my 
intention to have Mr. Dingell as his 5 minutes of questioning 
and then we will break and return to resume questioning after 
the series of votes. So Mr. Dingell, you are recognized for 5 
minutes.
    Mr. Dingell. Thank you, Madam Chairman. To the witnesses, 
these questions will require a yes or no answer only because of 
time.
    The draft legislation requires the Commission to establish 
procedures for estimating the amount of lead a child would 
ingest from a given child's product. However, while the 
Commission establishes such procedures, the draft legislation 
would permit the manufacturers to use ``any reasonable 
methodology to estimate the amount of lead a child would likely 
ingest from exposure to a component part.'' Question: Is there 
any such reasonable methodology in use by manufacturers today 
for testing children's products? Starting with Dr. Best.
    Ms. Best. I am not familiar with what manufacturers can do.
    Mr. Dingell. Ms. Beck?
    Ms. Best. Oh, I am sorry.
    Mr. Dingell. Yes or----
    Ms. Beck. There is methodologies. I don't know if the 
manufacturers know about them.
    Mr. Dingell. Thank you. And if you please, Mr. Howell, yes 
or no?
    Mr. Howell. I am not aware.
    Mr. Dingell. Now, starting again, Dr. Best, is it possible 
the ambiguity of the term ``reasonable methodology'' would lead 
to a wide variance in test results across the manufacturers of 
similar products? Yes or no?
    Ms. Best. Yes.
    Mr. Dingell. OK. Dr. Beck?
    Ms. Beck. I don't know.
    Mr. Dingell. Mr. Howell?
    Mr. Howell. I do not know.
    Mr. Dingell. Could this--well, I will just defer on that 
particular question. Now, Mr. Howell, the draft legislation 
would allow CPSC, subject to conditions, to require a third-
party testing of children's products. Under the draft bill, 
CPSC would require a third-party testing only if the Commission 
first verifies the testing capacity of ``accredited third-party 
conformity assessment bodies,'' as well as establishes and 
publishes Notice of Requirements for such accreditation of such 
assessment bodies. Does this include both national and 
international or domestic and international bodies? Yes or no?
    Mr. Howell. I believe it does, yes.
    Mr. Dingell. OK. Now, if so, how many such assessment 
bodies are there worldwide?
    Mr. Howell. CPSC recognized conformity assessment bodies 
are currently in excess of 300 I believe.
    Mr. Dingell. OK. Now, further, does the Commission have the 
resources with which to verify the testing capacity of all 
third-party conformity assessment bodies? Yes or no?
    Mr. Howell. I can't answer that question yes or no.
    Mr. Dingell. It means that you do not know they do have 
such capacity. Now, moreover, is it your understanding the 
draft legislation, the Commission would have to accredit all 
third-party conformity assessment bodies? Yes or no?
    Mr. Howell. No.
    Mr. Dingell. If so, do you believe the Commission has the 
resources with which to accomplish this purpose? Yes or no?
    Mr. Howell. Yes.
    Mr. Dingell. In summary, do you believe the practical 
effect of these requirements would be that the Commission would 
seldom, if ever, require third-party testing of children's 
products? Yes or no?
    Mr. Howell. No.
    Mr. Dingell. Now, Mr. Howell, CPSIA defines a children's 
product as one ``primarily intended for a child 12 years of age 
or younger.'' The discussion draft would change this definition 
to ``intended for use by a child,'' then it leaves a gap, ``age 
to be determined--years younger.'' Would these words ``for use 
by'' limit the number and type of products covered by this 
definition? Yes or no?
    Mr. Howell. Yes.
    Mr. Dingell. Now, to Drs. Beck and Dr. Best. Would you care 
to comment briefly on Mr. Howell's response to the last 
questions? Starting with Dr. Best.
    Ms. Best. No.
    Mr. Dingell. You can if you wish. Ms. Beck?
    Ms. Beck. If the age decreases from 12 to some number less 
than 12, then the number of products to be tested, of course, 
would diminish because the products are defined for different 
age groups.
    Mr. Dingell. Ladies and gentleman of the panel, thank you. 
Madam Chairman, I thank you for your courtesy.
    Mrs. Bono Mack. I thank the distinguished gentleman. And it 
is my intention that we recess now for this series of votes and 
we return at high noon. So we will see you all at high noon if 
we are quick on the floor with votes. If not, a little wiggle 
room. See you guys at noon. Thanks.
    [Recess.]
    Mrs. Bono Mack. All right. The chair will recognize Mr. 
Pompeo for 5 minutes.
    Mr. Pompeo. Great. Thank you, Madam Chairman. Thank you, 
panelists, for hanging with us through the vote.
    You know, I heard Mr. Waxman say this was a wrecking ball 
and I heard somebody say we were comprehensively demolishing 
the CPSIA. I think there is lots more to do. I think this is a 
very good first step, but there is a lot more work to do.
    I wanted to ask you, Mr. Howell, just a couple questions 
about the database. We have been live now for almost a month, 
right? How many reports have we received since March 11 under 
the database rule?
    Mr. Howell. The number is approximately 1,500 at this 
point.
    Mr. Pompeo. And other than those--so there is a 5-day 
period before it goes out to the manufacturer. How many of 
those have been sent on to the manufacturer of those 1,500?
    Mr. Howell. I would like to respond in writing with precise 
numbers. But at this point of those that we have received, I 
think approximately 50 percent at this point have been sent to 
manufacturers.
    Mr. Pompeo. And so how many of those are past the required 
time period to send on to the manufacturer approximately?
    Mr. Howell. Actually, once they pass the CPSIA check, which 
is the eight requirements to be considered, at that point they 
would be passed to the manufacturer and we are not late in 
sending the initial notice to the manufacturer. Those are 
happening on time.
    Mr. Pompeo. So everything is on time. Everything is good. 
You have got the resources to respond at the level of the 
reports that have come in so far and you are making all of the 
deadlines that were imposed by the rules that CPSC put in 
place?
    Mr. Howell. I believe for the most part, yes.
    Mr. Pompeo. And how is this being conducted? How do these 
come in? Who is reviewing them? Are you reviewing them along 
with staff and a committee? What kind of resources are being 
dedicated to that project?
    Mr. Howell. At this point in time, there are several 
different staff members involved in the review, part of that 
because it is a brand new process and we are trying to 
understand what we are getting in, making the appropriate 
decisions regarding reports of harm to ensure that they do, 
indeed, meet the qualifications. It is roughly a team of 10 to 
12 with representatives of technical staff, legal staff, and 
IT.
    Mr. Pompeo. Wow. 10 to 12 people. Wow, for 1,500 across 30 
days. So what do you have? 35 a business day, 50 a business 
day, something like that?
    Mr. Howell. Probably somewhere in the neighborhood of 50 a 
business day.
    Mr. Pompeo. Yes. Can you keep up with it?
    Mr. Howell. At this point yes, but we are in a learning 
curve and we understand that as we get a better handle of the 
nature of these incoming reports, we expect efficiencies to 
increase.
    Mr. Pompeo. Why would you go through a learning curve when 
you have had this database running without it being public for 
such a long time? Why wouldn't we have done the learning curve 
before we went live?
    Mr. Howell. When we were in the soft launch, not every 
manufacturer necessarily felt compelled to respond knowing that 
those reports would not necessarily go live. Now that we are 
live, we are getting many more responses from manufacturers.
    Mr. Pompeo. My first question focused on the process 
internal to CPSC before forwarding on. Tell me how the process 
is going in getting a response from manufacturers to date that 
have had the deadline arrive for their response to be due?
    Mr. Howell. You know, the manufacturers receive 
notification that there has been a report of harm. 
Manufacturers can file a claim of material inaccuracy.
    Mr. Pompeo. How many have done that so far?
    Mr. Howell. I believe there has been less than 10 percent 
have filed claims for material inaccuracy. They can also file 
claims for confidentiality, which is extremely rare at this 
point in time. And they are certainly free to file a comment 
without necessarily filing a claim of inaccuracy or 
confidentiality.
    Mr. Pompeo. How many have said ``not me, not my stuff?''
    Mr. Howell. The vast majority of the material inaccuracy 
claims tend to be just that nature. ``It is not my product.''
    Mr. Pompeo. And are those still online readily accessible 
to the public? So you all send it to the manufacturer and they 
say it is not my stuff, are you then putting it online?
    Mr. Howell. No, if they claim that it is not their product, 
that is a valid claim of material inaccuracy. And until such 
time as that is resolved and the problem clearly identified, it 
does not get posted.
    Mr. Pompeo. Thank you, Mr. Howell. Ms. Best, you talked 
about--she is not here. Let me ask you one more question, Mr. 
Howell. How many items from the punch list that Commissioner 
Tenenbaum gave me on the database have you all been able to 
work through since she was here? That is what is still left to 
fix?
    Mr. Howell. I am not familiar with that punch list. I will 
certainly respond to that in writing.
    Mr. Pompeo. Thank you. Madam Chairman, I yield back the 
balance of my time.
    Mrs. Bono Mack. I thank the gentleman and recognize Mr. 
Butterfield to explain the absence of the witness.
    Mr. Butterfield. Thank you, Madam Chairman. You will notice 
that Dr. Best is absent this afternoon. I want the record to 
show that she had prior obligations this afternoon and had to 
leave. I am told that she is seeing patients today and has 
scheduled those appointments with the understanding that we 
would convene this morning at 9:00 a.m. instead of 10:00 a.m. 
But please be assured that she will be available to answer any 
questions that any of the members may have. Thank you.
    Mrs. Bono Mack. I thank the gentleman and would remind the 
committee that we did delay the starting point of today's 
hearing to accommodate the Democrats. And it is unfortunate 
that the witness had to leave but remind members, too, you can 
submit further questions to her in writing later. And at that 
point, we will be happy to recognize Mr. Harper for 5 minutes.
    Mr. Harper. Thank you, Madam Chair. Mr. Howell and Dr. 
Beck, thank you for being here today. I am sure you can come up 
with a list of a dozen things you would rather be doing or 
maybe 100 things, but we welcome your attendance and appreciate 
what you are sharing with us.
    And Mr. Howell, just a couple of questions on some issues 
involving this. And I know that when we are talking about the 
common toy box theory applying, of course, to toys, it seems 
like there are a lot of other products that it really makes no 
sense at all. For example, infants and toddlers are not going 
to have access to motorized products like ATVs or at least we 
hope they are not. What is the situation with, say, ATVs and 
other things like that when it comes to these regs?
    Mr. Howell. One would certainly not expect that small 
children would have frequent access with those type of outdoor 
products, certainly.
    Mr. Harper. OK. When we talk about, say, electronics, you 
know, the Commission set much higher lead limits for certain 
metal alloys. When the Commission granted a stay of the lead 
content limits for ATVs and bicycles, it set temporary limits 
at the same or very low or similar levels I mean. Why does the 
CPSC consider them to be safe or at least safe enough for now? 
What is the rationale for that?
    Mr. Howell. When the Stay of Enforcement was issued, it was 
simply a stay from the testing and certification requirements. 
There was not a stay of the requirement to conform to the law 
as written. So the limits that are established are the limits 
that were prescribed in law.
    Mr. Harper. Got you. Now, I will ask if the Commission is 
aware of any deaths in fixed-side cribs in daycares?
    Mr. Howell. Would you repeat that, please?
    Mr. Harper. Sure. Yes, sir. Is the Commission aware of any 
deaths involving fixed-side cribs in daycares?
    Mr. Howell. I am not aware of any but I will certainly take 
that question back and have our epidemiologist do a data-pull.
    Mr. Harper. In your testimony, Mr. Howell, you have 
suggested the Commission be allowed to regulate on a timetable 
influenced by the seriousness of the actual risk to allow for 
better priority-setting. Do you have specific suggestions that 
you can share on how you can do this or how we can do this?
    Mr. Howell. I believe any organization that has finite 
resources needs to ensure that they are allocating those 
resources to the highest priorities. You know, certainly there 
are various ways to rank those within the Commission. One might 
suggest that frequency and severity at-risk populations are all 
criteria that would help identify higher-priority projects 
versus those that might fall lower on the list. And it is 
really all about managing finite resources in a way that 
provides the greatest return on those efforts.
    Mr. Harper. OK. Dr. Beck, Mr. Vitrano, who will testify on 
the next panel, submitted testimony that says you estimated the 
lead intake from children's interaction with ATVs is less than 
the intake from drinking a glass of water and I ask if that is 
true or any info on that statement.
    Ms. Beck. Yes, we did an analysis in which we used wipe 
tests from ATVs so we had actual data and we compared how much 
children would get from that scenario versus what a child might 
drink in a typical glass of drinking water, which may contain 
small amounts of lead. So that is a correct conclusion from our 
analysis.
    Mr. Harper. And when was that analysis done? How recently?
    Ms. Beck. It was, I believe, either 2008 or 2009.
    Mr. Harper. All right. But wouldn't it be true, though, 
that the metal parts of the ATVs contain much higher lead than 
permitted by EPA drinking water standards?
    Ms. Beck. It is a little bit apples and oranges because the 
drinking water standards based on what is in the water----
    Mr. Harper. Right.
    Ms. Beck [continuing]. That is a very low concentration in 
the water. And then if you were to say what does that mean in 
terms of--you could compare it to PPMs in a valve and, of 
course, that would be much, much higher. But it is a little bit 
of an apples-and-orange comparison.
    Mr. Harper. But based on that analysis, your concern about 
ATVs as it concerns infants and toddlers, you would not be 
overly concerned with that at all, would you?
    Ms. Beck. No, because it is really not a plausible 
scenario.
    Mr. Harper. Sure. OK. I yield back.
    Mrs. Bono Mack. I thank the gentleman and recognize Dr. 
Cassidy for 5 minutes.
    Mr. Cassidy. I really enjoyed this panel. All of you 
attempted to be very fact-based and referenced-based. So let me 
just first compliment you. And my compliments to Dr. Best, who 
is no longer here.
    First you, Mr. Howell. Clearly it is common sense that a 
kid is not going to chew on an ATV and probably not on the stem 
of a bicycle. On the other hand, I can understand that if there 
was some other product that the varnish wore off that the child 
could gnaw down to and actually have some lead exposure. So I 
guess my question to you is are we able to come up with a 
definition that which is absurd that the kid would ever chew on 
is moved over here and that which it is plausible is moved over 
there? Is that something within the Commission's ability to 
accomplish?
    Mr. Howell. Certainly in the Commission's traditional risk-
based evaluation of consumer products, that would be an 
evaluation that would be conducted. How a child interacts with 
the product is important in determining the level of risk that 
that child may be subjected to from that certain product. In 
the case of ATVs, we would find it less likely the child would 
swallow or mouth an ATV. Certainly you would expect that there 
could be some migration of lead from contact with the hand on 
an ATV.
    Mr. Cassidy. Now, I gather from Dr. Best--and I am sorry 
she is not here because I just wanted to explore this because 
all three of you know so much more about this issue than I. 
That is why you are the panel members and I am not--that there 
was some dissatisfaction from the risk-based assessment. So now 
I am sure there are many aspects of risk-based assessments, but 
was one of the areas that folks were unhappy with, did that 
include your ability to differentiate lead paint peeling off a 
wall from an ATV, one is a great risk, one is a minimal risk 
for lead exposure?
    Mr. Howell. I have certainly heard the arguments against 
risk-based but I am not fully aware of all the underlying 
rationale behind that criticism.
    Mr. Cassidy. So it sounds like you feel like risk-based is 
a practical thing for the Commission to implement?
    Mr. Howell. The Commission has been using a risk-based 
approach for decades now.
    Mr. Cassidy. Now, you mentioned in response to Mr. Harper, 
the last line of your testimony to ``effectively prioritizing 
Commission resources towards those of the most serious health 
risk.'' Now, I have learned in life that if you attempt to 
monitor everything, you end up monitoring nothing. But on the 
other hand, if you monitor a few things, you often can monitor 
them well. And I have also learned that there is oftentimes, 
you know, 99.9 percent risk with this subset of activities and 
.1 percent with this subset. Is that so clearly broken out in 
lead exposure? Can you say, listen, this is really high-risk 
stuff. We need to focus our resources even more so than now if 
we were so allowed, as opposed to this, which is incredible 
low-risk. We are kind of killing our time over here.
    Mr. Howell. Certainly, the Agency is extremely concerned 
with those lead-bearing items that can be swallowed. Acute 
exposure to lead is certainly a very serious, serious thing. 
One would expect that the risk decreases as you move from 
swallowing to mouthing, from mouthing to touching. And the 
management of that risk at that point then becomes a decision 
on how the child interacts with the product and what you----
    Mr. Cassidy. So you mean by risk-based would make some 
differentiation between high- and low-risk and it would all be 
upon how the child interacts and the relative amount, et 
cetera, et cetera?
    Mr. Howell. Yes, that is a basis of----
    Mr. Cassidy. Now, the other thing occurs to me is that we 
have heard last time from a previous panel about the craft-
makers and you know, somebody in Oregon who makes these nice 
little airplanes that apparently needs a--I shouldn't laugh--
but you know, it would make probably 100 planes a year, sells 
them out of their shop and now has to get a third-party 
assessment as to the lead content of the paint. Now, in your 
risk assessment, do you also say listen, if it is below a 
certain production value or quantity per year--I mean the 
ability of something that is produced on the scale of 100 a 
year, as one example, is really unlikely to have a significant 
impact, do you have any such sort of evaluation like that?
    Mr. Howell. Our evaluation is from a risk approach is a 
product evaluation and the consideration of the volume of the 
product produced is not relevant to the assessment of the risk 
that that particular product may present to the consumer who is 
using that product.
    Mr. Cassidy. Yes, it wouldn't be for the particular 
consumer, but it would be for the epidemiology of it in terms 
of a population issue, correct?
    Mr. Howell. Absolutely. And when it comes to prioritizing 
the Agency's work, that is where the frequency severity factors 
come into play.
    Mr. Cassidy. So you do incorporate the population aspect to 
it. OK. Well, thank you. Ms. Beck, I am sorry, no questions for 
you. It was just mine were more oriented to Mr. Howell. Thank 
you.
    Mrs. Bono Mack. The chair recognizes Mr. Kinzinger for 5 
minutes.
    Mr. Kinzinger. Let me see if I can get this to work here. 
Well, maybe. Well, how are you doing today? Hopefully well. I 
don't need to take a lot of time because I think you guys have 
been very good at answering the questions. I appreciate your 
time and I appreciate the chairwoman for organizing the 
hearing.
    You know, one of my concerns when we get to government 
involvement in areas is something that I affectionately refer 
to--as many other do--as the law of unintended consequences. 
You know, it is obviously when somebody does something that 
looks great on paper and then in actuality has a completely 
different effect.
    So Mr. Howell, my question, speaking in terms of the law of 
unintended consequences to you, do you agree with the past-
acting Chairman Nord's statement of April 3, 2009, that the 
``application of the lead content mandates of this act may have 
actually the perverse effect of actually endangering children 
by forcing youth-sized vehicles off of the market'' and in a 
result actually children riding vehicles that are bigger or, in 
essence, too big for them, adult-sized ATVs if you will.
    Mr. Howell. I agree with that statement.
    Mr. Kinzinger. OK. So you do agree with that. Madam 
Chairwoman, I would like to ask unanimous consent to insert two 
documents into the record.
    Mrs. Bono Mack. Without objection.
    Mr. Kinzinger. The first, a statement from acting Chairman 
Nancy Nord of the CPSC from April 2009 requesting exclusions 
from the lead-content limits of the Consumer Protection Safety 
Improvement Act of '08. The other is a letter from Edward 
Moreland, Senior Vice President of the American Motorcyclists 
Association to Chairwoman Bono Mack and Ranking Member 
Butterfield regarding the discussion draft.
    [The information follows:]





    Mr. Kinzinger. The next question I have, common sense seems 
to support the notion that youth model OHV should not be 
subjected to the lead content provisions of this act. Would one 
of the solutions to this conundrum be an outright categorical 
exemption, like the one provided in H.R. 412? It is called the 
Kids Just Want to Ride Act. It is one I am a co-sponsor on.
    Mr. Howell. As a policy decision, that certainly would be 
an option.
    Mr. Kinzinger. OK. Well, like I said, those are basically 
my two big questions I had. You all have done a great job here 
in front of us today. I appreciate your time. And I would yield 
back my time.
    Mrs. Bono Mack. I thank the gentleman. And at that point I 
am happy to thank our panelists for staying and for your expert 
testimony. We appreciate everything you have had to offer today 
and hopefully we will craft some great legislation. So thank 
you for your time and we will spend a quick 30 seconds or a 
minute seating the new panel and get started right away. Thank 
you again.
    All right. Thank you. Our second panel is comprised of four 
witnesses. Welcome. And thank you for staying with us this 
morning. Our first witness, again, but not in the order of 
recognition, but to introduce Erika Jones. She is a partner at 
Mayer Brown here representing the Bicycle Product Suppliers 
Association. Welcome. Our second witness is Paul Vitrano, 
General Counsel for the Motorcycle Industry Council. Also 
testifying today is Sheila Millar, a partner at Keller and 
Heckman, LLP. And our fourth witness on this panel is Caroline 
Cox, Research Director for the Center for Environmental Health. 
Welcome to each of you.
    You all know the drill now, the 5 minutes and the clocks 
and how they work. So if you could just pay attention to those, 
we appreciate it. We will have some floor votes again 
eventually, so if we can move it along, that would be terrific.
    So now we are going to begin with our first witness and 
recognize Ms. Cox for 5 minutes.

   STATEMENTS OF CAROLINE COX, RESEARCH DIRECTOR, CENTER FOR 
  ENVIRONMENTAL HEALTH; SHEILA A. MILLAR, PARTNER, KELLER AND 
  HECKMAN, LLP; PAUL C. VITRANO, GENERAL COUNSEL, MOTORCYCLE 
INDUSTRY COUNCIL; AND ERIKA Z. JONES, PARTNER, MAYER BROWN, ON 
      BEHALF OF THE BICYCLE PRODUCT SUPPLIERS ASSOCIATION

                   STATEMENT OF CAROLINE COX

    Ms. Cox. Thank you very much for the opportunity to testify 
today. My message is that CPSIA, as written, has been an 
enormous success and I am really privileged today to be able to 
provide research data to document that success.
    You heard earlier that health professionals agree that 
there is no safe level of exposure to lead for children. So I 
am discouraged to see the proposed revisions in the CPSIA that 
would weaken a law that has worked so well to protect American 
children from unnecessary lead.
    For the last 15 years, my organization, the Center for 
Environmental Health, has worked to protect children and 
families from harmful chemical exposures. Our experience before 
and after passage of the CPSIA demonstrates that the law has 
been highly successful. Prior to adoption of the law, we found 
high lead levels in dozens of children's products sold to 
millions of American families by major retailers. At that time 
there was no federal law to protect children from lead so we 
relied on California State Law. Since the lead limits under 
CPSIA went into effect, our experience shows a dramatic change 
in the marketplace for children's products.
    In the last year and a half, we purchased over 1,200 
children's products from major national retailers and screened 
them for lead. These were stuffed animals, toys, games, lunch 
boxes, backpacks, jewelry, toy sporting equipment, lots of 
other things. As far as we know, it is the largest independent 
monitoring of compliance with CPSIA to date.
    Out of these 1,200 products, we found only 46 that did not 
comply with CPSIA lead standards based on tests by a CPSIA-
certified lab. In other words, more than 96 percent were in 
compliance. And because we intentionally purchased products 
that were likely to have lead problems, we believe overall 
compliance is even higher.
    This data contrasts with what we found in 2007 and 2008. 
Our results show that over the 4-year interval, the prevalence 
of lead hazards in children's products was reduced by a factor 
of about 3. Given the immense size of the U.S. market for 
children's products, this is a major accomplishment.
    We do understand that CPSIA requirements can be a hardship 
for small business and we would support amendments to help with 
that. We believe that the CPSIA has been effective because one, 
the lead standards are comprehensive. They cover virtually all 
children's products and all accessible parts of those products. 
And that has created a huge market for complaint materials and 
components.
    The standards are straightforward, and because they are 
based on a total content standard, testing is accessible, 
consistent, and affordable. Lead content standards are the only 
kind of standards that allow materials and components to be 
tested upstream in a supply chain. When you have exposure-based 
standards or risk-based standards, the testing can only be done 
on finished products after it is already made.
    And the third point I would like to make is that the lead 
standards apply to a really meaningful definition of 
``children,'' up to age 12. Because lead is a cumulative and 
persistent toxicant, it is particularly important to maintain 
this requirement. Protect children as they move into their 
teenage years and girls move into childbearing years.
    I wanted to just give a quick visual demonstration of the 
success of the CPSIA. Here is Curious George from 2007. His 
face contains lead at a level 20 times the current CPSIA 
standard. Don't kiss this George. And I think most kids 
probably wanted to. Here is the current post-CPSIA George. 
George is lead-free and sold at the same price. I think this 
really shows how successful the law has been.
    We respectfully recommend that this committee support the 
public health success that the CPSIA has been. Crucial support 
includes the lead content standards, as well as the definition 
of a child as 12 years old and younger. Thank you so much.
    [The prepared statement of Ms. Cox follows:]





    Mrs. Bono Mack. Thank you, Ms. Cox. Ms. Millar?

                 STATEMENT OF SHEILA A. MILLAR

    Ms. Millar. Thank you, Chairman Bono Mack and Ranking 
Member Butterfield, members of the subcommittee. I appreciate 
the invitation to appear here today.
    As a longtime consumer protection attorney--and I think all 
of the members of the panel here and everybody in this room 
share the same view. We need and want a strong and effective 
CPSC that has both the authority and the resources necessary to 
adopt and enforce national consumer product safety standards. 
Where we differ is that some of us favor revisions to CPSC's 
arbitrary one-size-fits-all limits that apply irrespective of 
the type of product, material, age of the user, or actual risk 
of exposure, its illusory or nonexistent exemption scheme, its 
retroactive effect and burdensome testing requirements, which 
have cost money and jobs.
    Based on my experience with many different federal 
agencies, if I have learned one thing over the years, it is 
that sound public policy should be based on facts and science 
and risk. So I want to focus on a few key points from my 
written testimony.
    First, the lead and substrate limits were derived from the 
unfounded assumption that presence equals risk. It doesn't. And 
I think Dr. Beck illustrated that point carefully this morning. 
The CPSC's own research has demonstrated that materials that 
are high in lead may sometimes yield less migratable lead or 
about the same amount of migratable lead as products that 
comply with 600 or 300 parts per mission. Exposure is the key 
to risk. And so we do believe that revisions that are more 
targeted to exposure keying off of proven things that the CPSC 
has done for years makes a lot of sense.
    In terms of the lead exemption process, the proposal here 
offers a good step forward but remains unnecessarily complex. 
In addition, the limited exemption scheme is coupled with a 
general provision that gives the CPSC new authority to adopt 
600 ppm limits on older children's or even adult products. 
Because I support a risk-based approach, I favor neither the 
current exemption process as drafted, nor giving CPSC general 
authority to simply adopt the 600 ppm limit on any product, 
irrespective of risk.
    In contrast, the phthalates provision offers an elegantly 
simple view that could be applied more generally. It tracks the 
CPSIA exemption for inaccessible component parts but gives the 
Commission authority to adopt health-based exemptions, 
exemptions from the prohibition that are not necessary to 
protect children's health. Why not adopt a consistent science-
based exemption process for both lead and phthalates predicated 
on the simple basic rule: that the government should not be in 
the business of banning safe products.
    I do want to spend a couple minutes talking about testing. 
Let me be clear. Testing has an important role in compliance. 
And as Mr. Howell referenced this morning, there may be ways to 
look at how to dovetail testing regimes with supplier 
assurances, self-certifications, and other proven techniques 
that help confirm safety.
    Let us also be clear that the prospect of $15 million 
penalties offer very powerful incentives to comply to say 
nothing of the prospect that your products will simply be 
rejected by your customers.
    From the standpoint of total content testing, I differ with 
Ms. Cox in that we have seen over and over again the total 
content lead tests are not so uniform as you might expect. 
There is considerable variability and the absence of any 
definitive inter-laboratory variability factor is a key 
problem, particularly as levels drop lower and lower. So when 
we look at these differences in terms of inter-laboratory 
variability, a material--which may have residual lead content, 
let us say, a plated piece of metal where you are building on a 
piece of tin coupled with a nickel-plating, a copper-plating, a 
silver-plating--at the end of the day, the addition of those 
added metals, each of which could have residually low total 
content, could put you above 100 ppm. And I think we have seen 
the need for exemptions to perhaps look at a broader array of 
material to address that naturally occurring problem.
    I would also caution against assuming that component 
testing is the solution to all ills with certification testing 
here. I represent many raw materials suppliers of plastics, 
chemicals, and other materials, and they are simply not willing 
to subject themselves to the jurisdiction of the CPSC to 
provide component-test certifications in the rigid scheme 
required by CPSIA.
    I strongly support a national safety net for consumers. I 
also strongly support reducing unnecessary burdens on the 
regulated community by restoring the CPSC its authority to make 
sound risk-based decisions. Thank you again for the invitation 
and I look forward to responding to any questions.
    [The prepared statement of Ms. Millar follows:]





    Mrs. Bono Mack. Thank you very much. Mr. Vitrano, 5 
minutes.

                  STATEMENT OF PAUL C. VITRANO

    Mr. Vitrano. Chair Bono Mack, Ranking Member Butterfield, 
and distinguished members of the subcommittee, thank you for 
the opportunity to testify. I am Paul Vitrano of the Motorcycle 
Industry Council, which represents nearly 300 manufacturers of 
motorcycles and ATVs, aftermarket companies, and allied trades. 
We appreciate the subcommittee's efforts to address the 
unintended consequence of the CPSIA, which has effectively 
banned the sale of youth ATVs, motorcycles, and snowmobiles. 
The act has actually created unsafe situations for young riders 
by reducing the unavailability of appropriately-sized speed-
restricted youth models.
    As you noted during the last hearing, Chair Bono Mack, the 
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. The act also has cost manufacturing and 
dealership jobs.
    We urge Congress to fix this unintended ban and appreciate 
the subcommittee has offered an initial draft reform bill. 
Within the framework of the draft bill, the only way to fix the 
ban on youth vehicles with certainty and without imposing 
further needless costs and burdens on our industry and its 
customers is to amend the range of children's products at least 
for these vehicles to age 6 and under.
    Alternatively, we ask you to consider adding a categorical 
exemption to the bill. There already is widespread support for 
this approach. Representative Rehberg has authored the Kids 
Just Want to Ride Act, H.R. 412, which currently has 61 
bipartisan cosponsors. And just last week, Senators Klobuchar 
and Tester offered a categorical exemption as an amendment to 
the small business bill currently before the Senate.
    ATVs and motorcycles do not present any lead-related health 
risk to young riders and Congress has made it clear that it 
never intended the lead content restrictions for toys to apply 
to these vehicles. We ask that you keep in mind the following 
points as you work to provide young riders in our industry with 
much-needed relief.
    First, the lead content in metal parts of ATVs and 
motorcycles poses no risk to kids, as Dr. Barbara Beck 
testified earlier this morning. The estimated lead intake from 
kids touching metal parts is less than the lead intake from 
drinking a glass of water.
    Second, everyone agrees that the key to youth safety on 
ATVs and motorcycles is ensuring they ride the right size 
vehicles. By reducing the availability of these vehicles, the 
CPSIA has created--in the CPSC's own words--a ``more serious 
and immediate risk of injury or death'' than any risk from lead 
exposure.
    Third, in 2009 MIC estimated that a complete ban on youth-
model vehicles would result in about 1 billion in lost economic 
value in the retail marketplace every year.
    Fourth, motorcycles and ATVs are motor-powered machines, 
not toys or other articles kids wear or play with. So the 
extent and nature of the children's interaction with our 
vehicles is materially different. As you know, kids do not 
mouth tailpipes or swallow battery terminals. Young riders 
typically only touch a few parts of the vehicles like 
handlebars and clutch levers and often with gloved hands.
    Finally, ATVs and dirt bikes are stored outside the house, 
usually in garages, sheds, or barns and thus are much less 
likely than household items to be touched by young children. In 
addition to being remotely located, the vehicles have keys and 
use is controlled and supervised by parents.
    There are two commonsense ways to fix this problem once and 
for all and without imposing further unnecessary testing and 
certification costs and burdens on our industry and customers. 
We urge you to exclude these youth vehicles from the lead 
content provisions by lowering the age range to primarily 
intended age 6 and under or adding a categorical exemption.
    We also support the recommended changes to the CPSIA 
database provisions. One of our members recently received a 
report of harm where a rider who had been drinking prior to 
riding rode off a cliff at night in the dark. Nothing in the 
report indicated any problem with the ATV, but because the 
CPSIA database on its face only accepts reports of ``unsafe'' 
products, the inclusion of this report will result in the ATV 
implicitly being classified as an unsafe product. Unless 
Congress acts, the database will become a repository of 
inaccurate information that defames manufacturers and misleads 
customers. We believe the modest changes proposed in the draft 
legislation will result in a more useful database with accurate 
and relevant information for consumers. Thank you. I am happy 
to answer any questions.
    [The prepared statement of Mr. Vitrano follows:]





    Mrs. Bono Mack. Thank you, Mr. Vitrano. Ms. Jones, you are 
recognized for your 5 minutes.

                  STATEMENT OF ERIKA Z. JONES

    Ms. Jones. Good afternoon, and thank you for inviting me to 
be with you this afternoon. I am Erika Jones, and I am counsel 
to the Bicycle Products Suppliers Association, which represents 
most of the manufacturers and importers of children's bicycles 
and adult bicycles offered for sale in the United States.
    The bicycle industry has taken very seriously the 
expectations of Congress when the CPSIA was enacted. The 
bicycle industry has made substantial progress toward reducing 
lead in children's bicycle products or making the lead 
inaccessible to children and appreciated the Stay of 
Enforcement that was enacted by the Commission and used that 
time productively to make these design changes and material 
substitutions in their products.
    Nevertheless, the industry is facing another brink of 
uncertainty as later this year a new standard of 100 parts per 
million looms on the horizon and presents a number of 
feasibility and practicability challenges for the industry. The 
industry presented data to the Commission in February of this 
year and again last month in written comments providing data 
from testing of a bicycle that was specced by its manufacturer 
to be below 100 parts per million because retailers are 
beginning to demand that level of achievement. And despite this 
effort to reach that goal, over 38 of the over 100 parts that 
were tested by the laboratory exceeded 100 parts per million, 
and that is attributable to the variability that is present, 
inherent, and we think at this point, can no longer be worked 
out of the system. These were metal parts. The bicycle industry 
has solved the issue with respect to plastic and other non-
metallic parts but continues to have a problem with those 
components on bicycles that are made from metal alloys.
    A witness at the CPSC regulatory hearing last month, who 
was retained by the bicycle industry and who runs a CPSC-
certified lab, testified that he has in his experience seen a 
shrinkage in the number of children's bicycle models that are 
offered for sale and the number of manufacturers willing to 
engage in this sector, which means a loss of choice for 
consumers. And this, we believe, is attributed to the cost of 
testing for the over 100 parts of a bicycle that are accessible 
and therefore have to be tested.
    Bicycles provide safe, affordable, and environmentally 
friendly transportation. They provide children with an 
enjoyable means of outdoor exercise, which we think is far more 
important for the health of children than protecting them from 
the theoretical risks from touching metal bicycle components 
with their hands. If lead testing costs make children's 
bicycles too expensive for average families to afford or if 
affordable used bicycles are difficult to obtain, the health of 
America's children could be affected far more than from the 
presence of lead in a tire valve stem that they may touch only 
on occasion.
    I would like to address a comment made by the previous 
panel, by Dr. Best, who made a comment that there is no benefit 
to lead and therefore it should be inherently unnecessary. We 
disagree with that. Lead in the quantities that we see it in 
metal alloys that are used in bicycles provide a tremendous 
benefit. They provide corrosion resistance. Lead alloys provide 
strength and durability that is needed for appropriate 
performance of a bicycle. And it would not be socially useful 
or desirable to produce a bicycle that may meet a lead-free 
standard but which falls apart or which cannot be operated in 
an outdoor environment where it is intended to be used.
    The industry applauds your subcommittee for convening this 
hearing today. We believe there is a need to reform the CPSIA 
to reverse these unintended consequences and eliminate the 
unnecessary regulatory requirements that are driving up the 
cost of children's bicycles making them less available and we 
urge prompt action on sensible reforms of the CPSIA. Thank you.
    [The prepared statement of Ms. Jones follows:]





    Mrs. Bono Mack. Thank you, Ms. Jones. You get the record 
for coming in 45 seconds short, so I am going to recognize 
myself for the first 5 minutes of questioning and direct my 
question to you.
    You made reference several times in your written testimony 
to the August time frame. What happens in August that this time 
frame is of such concern that we need to do something about it 
in this amendment that we are looking at?
    Ms. Jones. On August 11 of this year the lead standard for 
substrate will drop to 100 parts per million, and under the 
current interpretation of the statute that will have immediate 
effect at the retail level, meaning it will really be 
retroactively applied to products that are on the retail 
shelves that are being built right now as we speak. And that 
has a devastating effect on product planning and as I testified 
a few minutes ago and as we have submitted data to the CPSC, 
the 100-parts-per-million standard is technically not feasible 
right now for the bicycle industry to meet.
    Mrs. Bono Mack. Thank you. And you also state that ``except 
in the rarest of circumstances, new government standards should 
apply prospectively to products that are manufactured after the 
effective date of the standard.'' Can you give us examples of 
circumstances in which new standards have been applied 
immediately and retroactively? And how do those examples differ 
from the instance we have before us?
    Ms. Jones. Well, the best example is the one we were just 
discussion of the 100 parts per million, which will apply 
immediately on August 11, not to products built after that date 
but to products on retail shelves as of that date, the same 
process applied when the 300 parts per million standard took 
effect in 2009. And it had the same effect and disruptive 
effect at the retail level.
    This is not the norm for product regulation in other 
government agencies where normally--even at the CPSC as well--
normally, manufacturers are given lead time to plan for the new 
regulation, to redesign their products, to absorb the costs in 
a more orderly fashion, and to work out their inventory so that 
products sold after the effective date reach retail shelves in 
a compliant fashion. That is the proper, orderly way to 
regulate products for safety improvement, not to disrupt the 
market with these very abrupt changes that do not permit that 
kind of orderly transition.
    Mrs. Bono Mack. Thank you. Ms. Cox----
    Ms. Cox. Could I make a brief comment there?
    Mrs. Bono Mack. No, I would like to move on. I have limited 
time and I do have a question for you, though. And you do 
mention that the FDA's warning about lunchboxes containing lead 
claiming that FDA interpreted CPSC's data differently than CPSC 
itself. How many lunchbox recalls did FDA order after it 
reviewed CPSC's data?
    Ms. Cox. This happened a long time ago but my recollection 
is there were not recalls but just a warning letter sent to 
lunchbox manufacturers telling them to fix the problem.
    Mrs. Bono Mack. I guess you mentioned this in your 
testimony that your discussion of lunchboxes suggests that FDA 
would disapprove of a risk-based lead standard and insist on a 
total lead content standard, but in fact they don't have any 
total content standard for lead, do they?
    Ms. Cox. I actually think the example of the lunchboxes 
shows that, you know, one of the big advantages of the total 
content standard, it provides a clear, consistent number which 
manufacturers, retailers, regulators, everybody knows what the 
threshold is. I mean one of the issues with the lunchboxes was 
that it occurred pre-CPSIA, and so different agencies 
interpreted the results of the risk-based testing in different 
ways. And what we have now with CPSIA is a clear standard and 
lunchboxes all across the country--I have tested a lot of them 
over the last couple of years, and they are great.
    Mrs. Bono Mack. All right----
    Ms. Cox. They comply with the standards.
    Mrs. Bono Mack. Thank you. Ms. Millar, why isn't a total 
lead standard as health-protective as an exposure-based 
standard?
    Ms. Millar. The risk to a child or to any consumer is based 
on actual handling and use. One of the assumptions that is 
incorrect that is underlying CPSIA is the notion that 100 
percent of lead and substrate will migrate out of the product. 
That is actually not true and the CPSC's own data demonstrates 
that actual migration rates are generally very low, even in 
worst-case, 24-hour acid ingestion test conditions. That is why 
we think that total content--and I think Mr. Howell expressed 
it this morning--can be useful as a benchmark screen, but 
absolute limits that ban products that actually don't result in 
exposure of the sort that Mr. Vitrano and Ms. Jones talked 
about this morning do serve to essentially ban products that 
are objectively safe because they don't result in significant 
harmful exposure to the consumer who is handling the product.
    Mrs. Bono Mack. Thank you. Mr. Butterfield, you are 
recognized for 5 minutes.
    Mr. Butterfield. Thank you very much. Let me go to you if I 
can, Ms. Cox. In your testimony you state that exposure 
assessment testing is a subjective process, open to 
interpretation and manipulation. Is that a fair 
characterization of your statement, that it is subjective as 
opposed to objective?
    Ms. Cox. It is definitely subjective, yes.
    Mr. Butterfield. All right. And the gentlelady on the first 
panel, Dr. Beck, testified and supports the risk assessment, 
seems to provide support for your view as well. Her written 
testimony that she submitted indicates that assessing risk is 
highly contextual and hinges on a number of factors.
    Dr. Beck testified that you would want to know a lot of 
different things. You would want to know what the product is, 
how frequently a child interacts with the product, the duration 
of the interaction, will the child likely bite or suck on the 
product, will the child touch the component, how large an area 
the child will touch, and so forth and so on. That is about 
seven separate pieces of information that Dr. Beck identified. 
And I can add a couple more. How old is the child and in what 
stage of development is that particular child? What is the 
nutritional status of the child? Does the child have certain 
genetic traits that will lead to greater absorption? And so 
forth. It seems to me that perhaps the only person who could 
know all of these things and come up with that type of risk 
assessment would be someone who is superhuman.
    Let me start with one simple question. Is it correct that 
with a lead content limit, a manufacturer or a retailer only 
has to know the answer to one simple question, how much total 
lead is in the component?
    Ms. Cox. Yes, that is correct. And just to reinforce what I 
said earlier. That allows the manufacturer or anyone in the 
supply chain to specify to their suppliers the type of material 
that they need.
    Mr. Butterfield. Dr. Beck also in her testimony asserted 
that a standard based on soluble lead is generally preferable 
to a standard based on total lead. And as I understand it, 
total lead is a measure of how much lead is in a component, 
period. This is the measure required by the legislation. 
Solubility, on the other hand, refers to the amount of lead 
released from a component under certain specified conditions. 
Is it correct, Ms. Cox, that the conditions for measuring 
solubility are not consistent? That is they could choose to 
vary the time, temperature, and the solution that is used, 
whether to agitate the solution and so on. Would you elaborate 
on that, please?
    Ms. Cox. I think I could just say that I have actually 
heard people in the laboratory and testing industry say that if 
something complicated like a solubility test or other exposure-
based testing was required that there actually wouldn't be lab 
capacity enough to be able to do these tests because they are 
so much more complicated and time consuming than a simple test 
for lead content.
    Mr. Butterfield. Will changing even one of these conditions 
affect the amount of lead that will be released during the 
test?
    Ms. Cox. I think--yes, I am not a lab specialist but that 
is my understanding, yes.
    Mr. Butterfield. All right. My next question is--I guess I 
have time to do it. Let me try this. In your testimony, Ms. 
Cox, you point out that a total lead content limit allows 
companies to specify materials that meet the standards when 
contracting with suppliers. If I understand you correctly, a 
manufacturer can tell his or her metal supplier, I want to buy 
metal from you but only metal that contains no more than 300 
parts per million and a supplier would be able to easily fill 
that order as specified. Could you respond?
    Ms. Cox. Correct. In the exposure-based testing you can't 
do until the product is completed, so that would happen at the 
very end of the manufacturing process, whereas with the total 
content, you can specify the content of all the materials and 
components that are used in a product. So it allows you to do 
it sort of pre-manufacture rather than having to potentially 
reject a product after it is already made.
    Mr. Butterfield. All right. All right, Madam Chairman, I 
yield back.
    Mrs. Bono Mack. Thank you, Mr. Butterfield. And now I would 
like to recognize Ms. Blackburn for her 5 minutes.
    Mrs. Blackburn. Thank you so much. And thank you all for 
your patience today.
    Ms. Cox, I enjoyed listening to your testimony and 
especially that you used Curious George. I have got a 3-year-
old and a 2-year-old grandchild and that is one of their 
favorites. Let me ask you something. Do you find more lead in 
products that we import or products that are domestically 
manufactured?
    Ms. Cox. I think probably everybody here is aware that 
virtually all the products on the shelves of major national 
retailers are products that are not made in this country. So, 
you know, when we find products that exceed CPSIA limits, it is 
not surprising that that is also true.
    Mrs. Blackburn. OK. In listening to your testimony and the 
testimony of others, it has been kind of curious--and Mr. 
Vitrano and Ms. Jones, I will ask you. With motorcycles and 
bicycles, do you all find more lead in those that we import or 
those that are domestically produced?
    Mr. Vitrano. All the major manufacturers of ATVs actually 
produce many of the models in the U.S. itself.
    Mrs. Blackburn. OK.
    Mr. Vitrano. Some models are made by those companies from 
outside the U.S. and----
    Mrs. Blackburn. Well, maybe that they are domestically 
produced is one of the reasons we have less lead in a wipe test 
than in a glass of water. Ms. Jones, bicycles?
    Ms. Jones. Most children's bicycles are not made in this 
country any longer.
    Mrs. Blackburn. OK. And so you don't see that as being 
pertinent to what you all do?
    Ms. Jones. We do not see that as being pertinent.
    Mrs. Blackburn. OK. That is fine. You know, I have wondered 
if maybe since we have driven manufacturing out of this country 
is one of the reasons we are here having this hearing today and 
talking about the amount of metals that are there and some of 
the environmental litigation that has been brought forward and 
has driven manufacturing away from our shores. Maybe that is 
one of the reasons that we are here.
    And I know, Ms. Cox, that the Center for Environmental 
Health uses litigation quite frequently under California's Prop 
65 warning requirements. And I know that you all do some work 
and wanted to ask you, do you all get a bounty for identifying 
violations under Prop 65 labeling laws?
    Ms. Cox. Proposition 65, for those of you who don't know, 
was a ballot initiative in California in 1986----
    Mrs. Blackburn. Yes, but you identify violations under 
that, so do you all get a bounty?
    Ms. Cox. The statute, as passed by the voters, provides for 
if the statute is violated, there are civil penalties that are 
paid to the State----
    Mrs. Blackburn. Yes, I have got some of them in front of 
me----
    Ms. Cox [continuing]. And the plaintiffs who identify the 
violation is entitled to 25 percent of those civil penalties.
    Mrs. Blackburn. OK. So I have got an exhibit in front of me 
that identifies some of these. So if one type of fashion 
accessory listed above is checked, it would be $45,000 in that 
identification. So you all would get 25 percent of that if you 
identified those.
    Ms. Cox. 25 percent of the civil penalties.
    Mrs. Blackburn. OK. All right. So 25 of the 45,000. So, OK, 
is this a funding revenue stream for your organization?
    Ms. Cox. My organization has a diverse source of revenue. 
Like most nonprofit organizations, we receive grants from 
foundations. We also have a strong committed group of 
individual supporters who support us financially. And then we 
do get some money from our litigation as well.
    Mrs. Blackburn. Is that with the Lexington Law Group? Is 
that under a consent decree?
    Ms. Cox. Could you repeat the question? Sorry.
    Mrs. Blackburn. I said is that with the Lexington Law 
Group, your litigation? OK. Let us move on. So then you get 
some money that comes to you through identifying these 
violations and most of the product, I guess, that you are 
looking at is things that are imported and they are on the 
shelves of major retailers, is that correct?
    Ms. Cox. Yes.
    Mrs. Blackburn. And how many lawsuits have you partnered 
with the Lexington Law Group?
    Ms. Cox. Let us see. There were a lot of questions there.
    Mrs. Blackburn. Yes, let me help you out with this. My time 
is nearly out. What I would like to know--and you can submit in 
writing--I would like to know what percentage of your funding 
relates to litigation. I would like to know how many lawsuits 
you have partnered with the Lexington Law Group. And I would 
like to know how much money you have made, what your revenue 
stream is from Prop 65 lawsuits in violations since the passage 
of CPSIA. And with that, Madam Chairman, I yield back the 
balance of my time.
    Ms. Cox. Yes, I think it probably would be best for me to 
provide that information in writing since it is a lot of 
numbers.
    Mrs. Blackburn. Yes, ma'am, I was asking for it in writing.
    Ms. Cox. I would be happy to do that.
    Mrs. Blackburn. For the record.
    Mrs. Bono Mack. Thank you. The chair is happy to recognize 
Mr. Pompeo for 5 minutes.
    Mr. Pompeo. Thank you, Madam Chairman. Following up on Ms. 
Blackburn, would you submit all of the sources of funding for 
your organization when you put that in writing to us, not only 
that that you get for Prop 65 but other sources for funding for 
the center, the CEH?
    Ms. Cox. Yes, I would be happy to.
    Mr. Pompeo. Thank you.
    Ms. Cox. And just to clarify, the work that I talked about 
in my testimony, monitoring for CPSIA compliance, that money 
came from the California Department of Justice, California 
Attorney General.
    Mr. Pompeo. So governmentally funded, is that right?
    Ms. Cox. Sorry?
    Mr. Pompeo. Government funding from the State of 
California?
    Ms. Cox. It went through a private foundation but the 
source of the money was the attorney general's office.
    Mr. Pompeo. Thank you. Ms. Millar, this is fascinating to 
me. I am new here. This is all very fascinating. You, on the 
other hand, you get paid by your clients and you are here today 
trying to avoid them paying you by reducing the regulatory 
burden. I find that fascinating to see the charitable effort 
you are making here today. Yes, no, I truly meant it that way. 
I meant it as a compliment.
    Ms. Jones, you said that you have a problem with metal 
alloys in the bicycle industry?
    Ms. Jones. Yes, sir.
    Mr. Pompeo. Why do you use metal? Just why don't you stop 
using it?
    Ms. Jones. Metal alloys add a great deal of important value 
to bicycles. They help the bicycle be corrosion-resistant, they 
help them be strong and durable, and we really couldn't make 
bicycles without them.
    Mr. Pompeo. So there is no substitute?
    Ms. Jones. Well, no, that is not true. There are 
substitutes, for example, carbon fiber. Some very high-end 
racing bikes for adults are made of carbon fiber but they would 
be way too expensive----
    Mr. Pompeo. But I am not going to buy that for my son?
    Ms. Jones. You are not going to buy that. It would be too 
expensive.
    Mr. Pompeo. Yes. Yes, my son might like it but I am not 
going to buy it.
    Ms. Jones. There is no affordable, practical substitute.
    Mr. Pompeo. Thank you. That is what I figured. We were 
talking before about these different tests. Mr. Butterfield, 
Ms. Cox, asked you about some different tests and you said boy, 
the testing would just be really hard. He was describing these 
testing would be very difficult, soluble, non-soluble, it would 
be really hard and inconsistent. Is that right? And so you then 
said yes, that would be hard, so let us just take a simpler 
test that probably doesn't really accomplish what we are trying 
to do. So it is a proxy at best. The perfect testing would be 
hard and difficult so what everybody defaults to is this simple 
test that really doesn't get to the true risk of exposure to a 
consumer of a product. Did I understand your response 
correctly?
    Ms. Cox. I would prefer to phrase it as----
    Mr. Pompeo. I am sure you would.
    Ms. Cox [continuing]. The goal----
    Mr. Pompeo. I would prefer if you would not rephrase it but 
simply answer my question.
    Ms. Cox. The goal of CPSIA was to remove a toxic metal from 
children's products. And there had been a long history prior to 
CPSIA of risk-based approaches not being successful, and the 
lead content standard has been very successful at changing the 
marketplace and getting lead out of these products.
    Mr. Pompeo. I have no doubt. And banning lots of things 
would make them successful, too. We can always create a test 
that is over-inclusive and solve a problem. But as you can see 
from Ms. Jones' comment earlier, we create another one. My son 
doesn't get to exercise on his bicycle. Ms. Millar, do you have 
a view on the testing that Mr. Butterfield asked Ms. Cox about?
    Ms. Millar. Yes. As I said earlier--and I think Mr. Howell 
alluded to this as well this morning in his testimony--the 
ability to use total content as screening is an important tool. 
There is no question about it. And I think it is true that 
people do try to target where they can meet a certain limit. It 
does help in the supply chain. It is not true that total lead 
tests are always uniform and never varied. We see a lot of 
different variability in total content test. And I think the 
problem becomes that when you establish an absolute ban, what 
we have seen for bikes, for ATVs, for certain, you know, 
pearlized buttons, for example, have agents in them that are 
metallic, you can have violations of total content limits where 
objectively applying standard accepted procedures that the CPSC 
uses, whether it is a wipe test, a saline test to mimic 
mouthing, which is a 6-hour-test procedure--they have an 
established procedure--or their updated 24-hour acid exposure 
test, you can establish whether or not that product is going to 
pose a risk. And so the manufacturers are going to always 
target to some objective limit where they can. The problem is 
that you are going to ban them where they exceed it where there 
is not a risk.
    Mr. Pompeo. It makes sense. I have got one more question, 
just 20 seconds. Mr. Vitrano, Ms. Jones, have any of you had 
any experience responding to a CPS database complaint at this 
point? There has only been a month. Have any of you had 
experience responding to----
    Ms. Jones. Yes.
    Mr. Pompeo. How did it go?
    Ms. Jones. We still have a couple in process but, you know, 
it is certainly something that people pay attention to. They 
take it seriously. In no case, however, has a client to date 
had a materially inaccurate incident report submitted to them.
    Mr. Pompeo. But they have had to spend a bunch of money 
talking to you? Thank you. I yield back my time.
    Mrs. Bono Mack. I thank the gentleman and recognize the 
distinguished chairman emeritus, Mr. Dingell, for 5 minutes.
    Mr. Dingell. Madam Chairman, thank you. The questions are 
to all witnesses and I would very much appreciate it if they 
would be answered yes or no.
    First of all, beginning with Ms. Cox, are you aware of a 
uniform reasonable methodology in use by manufacturers of 
children's products to find what is the amount of lead in a 
product? Yes or no?
    Ms. Cox. Yes.
    Mr. Dingell. Ma'am, Ms. Millar?
    Ms. Millar. Yes.
    Mr. Dingell. And you, sir?
    Mr. Vitrano. Yes.
    Mr. Dingell. Ma'am?
    Ms. Jones. Yes.
    Mr. Dingell. OK. Now, is it possible the ambiguity of the 
term ``reasonable methodology'' could lead to a wide variance 
in test results across manufacturers of similar products? Yes 
or no? Ms. Cox?
    Ms. Cox. Yes.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. No.
    Mr. Dingell. Sir?
    Mr. Vitrano. I don't know.
    Mr. Dingell. Ma'am?
    Ms. Jones. No, we are not seeing that.
    Mr. Dingell. The next question, if it wouldn't lead to a 
variance, do you believe that this could pose a risk to the 
health of the children who use such products? Yes or no? In 
other words----
    Ms. Cox. I don't think I am able to answer that question.
    Mr. Dingell [continuing]. Is that variance going to put the 
children at risk? Well----
    Ms. Cox. Well, certainly, we need consistent testing.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. I don't see the variability, so my answer is 
no.
    Mr. Dingell. And you, sir?
    Mr. Vitrano. It would depend on the variability.
    Mr. Dingell. Ma'am?
    Ms. Jones. And we are not seeing the variability.
    Mr. Dingell. Ms. Cox, do you want to take another shot at 
it? All right. We will go to the next set of questions because 
time is very limited here.
    We have the term ``accredited third-party conformity 
assessment bodies.'' I assume that this includes both domestic 
and international bodies that would do this kind of testing? Am 
I correct? Yes or no, Ms. Cox?
    Ms. Cox. Yes.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. Yes.
    Mr. Dingell. Sir, if you please?
    Mr. Vitrano. Yes.
    Mr. Dingell. Ma'am?
    Ms. Jones. Yes.
    Mr. Dingell. All right. Now, if so, how many such 
assessment bodies are there worldwide? I don't expect you to 
know but give me a shot in the dark, the best count you can 
give. How many do you think there are? Ms. Cox?
    Ms. Cox. I don't know.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. A couple of hundred, I believe.
    Mr. Dingell. Sir?
    Mr. Vitrano. For youth model ATVs there currently is 1.
    Mr. Dingell. Ma'am?
    Ms. Jones. For bicycles there are only two in the U.S. and 
about a half-dozen outside of the U.S.
    Mr. Dingell. Thank you, my friends. Does the Commission 
have the resources with which to verify the testing capacity of 
all of these third-party conformity assessment bodies? Yes or 
no? Ms. Cox?
    Ms. Cox. I don't know.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. I don't know.
    Mr. Dingell. Sir?
    Mr. Vitrano. I don't know.
    Mr. Dingell. Ma'am?
    Ms. Jones. I don't know.
    Mr. Dingell. Now, is it your understanding of the draft 
legislation that the Commission would have to accredit all 
third-party conformity assessment bodies? Yes or no?
    Ms. Cox. I don't know.
    Mr. Dingell. In other words, would they have discretion 
under the legislation to decide who they would accredit and how 
and why they would accredit? Yes or no?
    Ms. Cox. I don't know.
    Mr. Dingell. Ma'am?
    Ms. Millar. I don't know.
    Mr. Dingell. Sir?
    Mr. Vitrano. I don't know.
    Mr. Dingell. Ma'am?
    Ms. Jones. I don't know.
    Mr. Dingell. All right. Now, in summary, do you believe 
that the effect of these requirements would be that the 
Commission would seldom, if ever, require third-party testing 
of children's products? Yes or no?
    Ms. Cox. I don't know.
    Mr. Dingell. Ma'am?
    Ms. Millar. I don't know.
    Mr. Dingell. Sir?
    Mr. Vitrano. No.
    Mr. Dingell. Ma'am?
    Ms. Jones. No.
    Mr. Dingell. Now, here are some questions about the 
database which are troubling us. And everybody, I think, is 
troubled. Is it your understanding that CPSIA requires all 
information submitted to the consumer complaint database to be 
published online within 10 days of its receipt, regardless of 
the accuracy of the information? Yes or no? Ms. Cox?
    Ms. Cox. I don't know.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. Yes.
    Mr. Vitrano. Yes.
    Ms. Jones. Generally, yes.
    Mr. Dingell. Thank you. Now, should a manufacturer be given 
the opportunity to contest the accuracy of a consumer complaint 
before it is published? Yes or no? Ms. Cox, please? What is 
your opinion, just your best judgment on the matter, please?
    Ms. Cox. These questions are outside my expertise.
    Mr. Dingell. All right. Then I will not press you on it, 
ma'am. Ms. Millar?
    Ms. Millar. Yes.
    Mr. Dingell. Mr. Vitrano?
    Mr. Vitrano. Yes.
    Mr. Dingell. Ms. Jones?
    Ms. Jones. Yes.
    Mr. Dingell. All right. Now, if a manufacturer is allowed 
to dispute the accuracy of the information in a consumer's 
complaint, how should the dispute be resolved and by whom? If 
you please, Ms. Cox?
    Ms. Cox. I don't know.
    Mr. Dingell. Ms. Millar?
    Ms. Millar. I think the CPSC should resolve the inaccuracy 
before posting the complaint to the database.
    Mr. Dingell. Mr. Vitrano?
    Mr. Vitrano. CPSC should resolve it before posting.
    Mr. Dingell. Ms. Jones?
    Ms. Jones. CPSC should resolve it before posting.
    Mrs. Bono Mack. The gentleman's time has expired.
    Mr. Dingell. I thank you, Madam Chairman. I have one more 
great question. Could I ask unanimous consent to ask it, 
please?
    Mrs. Bono Mack. Yes, without objection.
    Mr. Dingell. Thank you. The draft legislation amends CPSIA 
to permit only persons directly harmed by a consumer product, 
their family, their legal representative, or another person 
authorized on their behalf to submit a complaint to the 
database. Previously, CPSIA permitted anyone to submit 
complaints about a consumer product. Do you believe that the 
draft legislation's narrowing of eligibility to submit the 
complaints is necessary? Yes or no?
    Ms. Cox. Not necessary.
    Mr. Dingell. OK. Ms. Millar.
    Ms. Millar. Necessary.
    Mr. Dingell. Mr. Vitrano?
    Mr. Vitrano. Yes, it is necessary.
    Mr. Dingell. Ms. Jones?
    Ms. Jones. Yes, it is necessary.
    Mr. Dingell. Madam Chairman, you have been most courteous. 
May I have an additional unanimous consent request? I have a 
splendid statement that I have labored long and hard on.
    Mrs. Bono Mack. I have nothing but fondness and admiration 
for the distinguished chairman, but we still have another 
member and another panel to go and votes on the floor. So I 
will----
    Mr. Dingell. I am not delaying----
    Mr. Butterfield. Madam Chair----
    Mr. Dingell [continuing]. Madam, I have a statement I would 
like to put in the record.
    Mr. Butterfield. Whenever the chairman emeritus talks like 
that, he has a pleasant surprise for us. I would ask unanimous 
consent to yield to the chairman emeritus.
    Mr. Dingell. Thank you very much. No, it is just a 
statement that I want to put in the record, Madam.
    Mrs. Bono Mack. Of course. Without objection.
    [The information follows:]





    
    Mr. Dingell. And I do thank my good friend for his kindness 
to me. Thank you, Madam Chairman.
    Mrs. Bono Mack. Thank you. And reminder, I am new at this 
chairmanship, so I appreciate the kindness of the distinguished 
chairman emeritus but will recognize Dr. Cassidy for 5 minutes.
    Mr. Cassidy. I don't know. I am sorry. I was out when you 
all were making testimony so I don't know if anyone can address 
what I am about to ask. As I look at the epidemiology of lead 
poisoning, it seems to be not generally distributed, but it 
seems to be in certain populations. Those which are recent 
immigrants, for example, appear to have a disproportionate 
amount of lead toxicity. And in fact I was looking at something 
from a hospital in Los Angeles that found even within the 
Hispanic community there, there was three ZIP codes which were 
particularly impoverished ZIP codes in which there was even 
more. Now, assuming that toys are generally distributed but 
that the people who have problems with lead toxicity are 
concentrated in certain areas, it suggested to me that the 
culprit for those children who have increased lead, it may be 
geographic or related to how recently they came from another 
country without standards than it is almost anything else.
    I toss that out not knowing if anyone can answer that or if 
these are just musings. Anybody want to take a crack at that?
    Ms. Cox. I will take a crack at it. Exposure to old lead-
based paint in homes is the primary source of lead exposure to 
children, and that has been the case for several decades. 
Current statistics are about 70 percent of elevated blood lead 
levels in children are caused by exposure to paint. The other 
30 percent are not. Further----
    Mr. Cassidy. Now, wait. I am sorry. Just so I understand, 
so if you have a blood level of 100, just to pick a number, 
does that mean that 70 percent of that 100 is related to paint 
exposure and 30 percent to another environmental factor or does 
it mean that 70 percent of the children that have elevated lead 
levels have it due to paint?
    Ms. Cox. 70 percent of the children with elevated blood 
lead levels, they are able to trace back that exposure to 
paint.
    Mr. Cassidy. So the 30 percent, is that those for whom no 
point source can be identified or those for whom another point 
source is identified?
    Ms. Cox. In general, when there is a child with an elevated 
blood lead level, there is a huge effort to identify the 
source. So the number of unidentified ones is really small.
    Mr. Cassidy. And so again, as I look at this concentration 
among recent immigrants, it suggests to me that recent 
immigrant status is a separate factor. I did my medical 
residency in Los Angeles and we used to see all these diseases 
from other countries in Los Angeles, very odd diseases that we 
wouldn't see in Washington, D.C., for example, even though this 
is also a place of immigrants. So I guess to what is the impact 
of immigrant status? Is there exposure to lead that is 
occurring south of the border that we are importing?
    Ms. Cox. I am not aware of any statistics about immigrant 
status and lead exposure. I do know that because the 
deteriorating paint is a factor, you know, living in older 
housing or housing----
    Mr. Cassidy. OK, I got that.
    Ms. Cox [continuing]. That is not well-maintained----
    Mr. Cassidy. The 30 percent of folks for whom paint is not 
a factor--and I should know this but I have been trying to 
track it down and I apologize--what percent of those have a 
point source identified and what are those point sources?
    Ms. Cox. The point sources tend to be lead in soil, lead in 
water, and then lead in various kinds of consumer products.
    Mr. Cassidy. What, for example?
    Ms. Cox. Examples of consumer products?
    Mr. Cassidy. With lead that have been identified as a risk 
for children.
    Ms. Cox. Jewelry, toys, there is some lead-containing 
makeup that has been a problem. There is lead-containing 
foodware that has been a problem----
    Mr. Cassidy. I assume that some of this, though, must be 
older stuff. I mean I can remember playing with lead when I was 
a kid. Obviously, my mother didn't care for me. I am assuming 
that much of what is now available with or without these 
regulations that lead is gone. Is that a fair statement? I am 
looking at all of you all now because I can only imagine that 
my pencil that I used to chew on in third grade probably had 
lead in it.
    Ms. Cox. The regulation of lead over the last 40 years has 
been, you know, one of the country's greatest public health 
successes. So removing lead from paint, removing lead from 
gasoline, and then removing lead from other consumer products 
has had a dramatic reduction in the number of children with 
elevated blood lead levels. The goal of CDC was to get that 
level to 0 by 2010. It hasn't quite happened but----
    Mr. Cassidy. And if it is true that immigrants are the 
cause of a lot of this, it will never happen. I just say that 
because our tuberculosis problem will never go to 0 as long as 
we have people immigrating from Mexico because it is just 
endemic there. I am just trying to understand to what degree 
can we attribute products, you know, toys for this as opposed 
to everything else? Thank you for your time. Thank you.
    Mrs. Bono Mack. I thank the gentleman and that concludes 
the panel. And I would like to thank Ms. Cox and Ms. Millar, 
Mr. Vitrano, and Ms. Jones for your time and testimony today. 
And I am sure we will be working together in the future on 
refining this legislation.
    Mr. Butterfield. Madam Chairman, may I be recognized before 
the panel leaves?
    Mrs. Bono Mack. Yes.
    Mr. Butterfield. Earlier Ms. Blackburn requested Ms. Cox, 
if she would furnish financial information for her nonprofit 
organization, and at first I had a little heartburn about that, 
but after I thought about it, it is an appropriate request. It 
goes to her credibility as a witness today. As a former judge I 
guess I should know that. But I was wondering if it would be 
appropriate to ask the other three witnesses if they would 
similarly furnish the sources of their revenue for their 
organizations that they represent.
    Mrs. Bono Mack. Well, I will remind the gentleman that you 
can submit any question you would like to any witness and that 
you have 10 days to do so and remind the gentleman also that 
Members of Congress are allowed to ask any question that they 
would like of any witness and again remind you that you have 
that prerogative to do that in writing to the witnesses. And 
with that, again, if the gentleman will yield back.
    Mr. Butterfield. He will. Thank you.
    Mrs. Bono Mack. I thank the panelists again and would call 
for the third panel if we can get seated. We are going to have 
votes shortly on the floor so we would love to get started and 
see how much progress we can make. So a short break and then we 
will roll into the third panel.
    Thank you. That was a quick transition. Thank you, staff. 
So now the third panel, I would like to thank you all very much 
for being here. We have the final four witnesses. First up, we 
have Frederick Locker of Locker, Greenberg, and Brainin, P.C. 
Our next witness is Charles Samuels of Mintz, Levin, Cohn, 
Ferris, Glovsky, and Popeo, P.C. Also testifying will be Dan 
Marshall, Vice President of the Handmade Toy Alliance. And our 
fourth panelist today is Rachel Weintraub, Director of Product 
Safety and Senior Counsel for the Consumer Federation of 
America. Welcome everybody. You know the drill, 5 minutes, and 
you know where the lights are so we are going to begin, Mr. 
Samuels, with your 5 minutes. Thank you and welcome.

 STATEMENTS OF CHARLES A. SAMUELS, MEMBER, MINTZ, LEVIN, COHN, 
  FERRIS, GLOVSKY, AND POPEO, P.C.; FREDERICK LOCKER, LOCKER, 
  GREENBERG, AND BRAININ, P.C.; DAN MARSHALL, VICE PRESIDENT, 
 HANDMADE TOY ALLIANCE, AND CO-OWNER, PEAPODS NATURAL TOYS AND 
BABY CARE; AND RACHEL WEINTRAUB, DIRECTOR OF PRODUCT SAFETY AND 
         SENIOR COUNSEL, CONSUMER FEDERATION OF AMERICA

                STATEMENT OF CHARLES A. SAMUELS


    Mr. Samuels. Thank you, Chair Bono Mack, and members of the 
subcommittee. Thank you for the opportunity to testify. I have 
the privilege of serving as general counsel of the Association 
of Home Appliance Manufacturers, as well as representing 
companies on product safety matters.
    I support a fully resourced, focused, and effective 
Commission with the tools to protect Americans from unsafe 
products. I supported the revamping of the federal product 
safety laws and I respect the hardworking and dedicated 
officials at the Commission. Unfortunately, parts of the law 
are overreaching, over-prescription, and distort the Agency's 
mission to the detriment of consumers and industry. The 
discussion draft makes great strides towards remedying the 
imbalances and deficiencies in the current law without doing 
violence to the core public policies.
    I will focus on the database provision. Technology should 
be used to disseminate good and easily accessible information 
to consumers about product safety. It makes no sense, however, 
for so much of the resources of the Commission to be invested 
in this effort unless it provides useful and accurate 
information to the extent feasible. We cannot expect 
perfection, but we now have a database that can be manipulated 
for purposes other than that intended. Vague, useless, and 
incorrect information can be placed online. This not only harms 
manufacturers, retailers, and importers, but harms consumers 
who receive bad information and cannot focus on truly unsafe 
products. Discrete changes can be made to the law, which will 
greatly improve the operation, utility, and fairness of the 
program.
    First, the intent of the law is that posted reports of harm 
will come from those who suffer the harm, their family and 
legal and medical representatives. The database should not be a 
platform for manufacturers, trade associations, trial lawyers, 
or consumer groups who are trying to make policy points or 
enhance their economic status.
    I support the tighter definition of ``consumers'' to 
restrict it to the persons who actually suffer the harm related 
to the use of the product and their representatives. I also 
support revising the term ``public safety entities'' that make 
clear that you are referring to public safety officials.
    The requirement that the Commission ascertain the location 
and availability of a product is important for the manufacturer 
to evaluate the complaint or for the Commission to look further 
at the allegations. The Commission also should know the 
identity of the person who allegedly was harmed.
    A major deficiency of the database is the agency decision 
to publish the report regardless of whether a good faith, 
substantial claim of material inaccuracy has been submitted but 
has not been resolved within 10 days. This is unfair, a lack of 
due process and absolutely not what we should be expecting from 
our Federal Government. We have great freedom in this country 
to blog and publicly report bout almost anything without much 
legal restriction, but the government should show more prudence 
and responsibility.
    The draft properly provides that if a manufacturer claims a 
material inaccuracy and the Commission determines that the 
claim is ``potentially valid,'' the Commission must resolve 
that inaccuracy before posting by communicating with the 
reporter, investigating the incident, or providing the 
manufacturer a reasonable period of time to investigate. This 
does not need to be a lengthy process. It is likely the vast 
majority of database reports will receive little or no response 
and, at most, there will be a response suitable to be placed on 
the database along with the consumer report. But in those cases 
where a company has gone to the trouble to evaluate and provide 
proof that a report is materially inaccurate, that ought to be 
resolved before the report is posted. Once it is posted, 
pulling it from the database later is of very limited utility 
and great harm can be done.
    The existing database also is deficient in that it allows 
reports which are so unspecific as to a particular model that 
the information is useless, even deceptive. I support the 
language in the discussion draft that a manufacturer may 
respond that the report is insufficient for determining which 
of its products are the basis of the complaint and that that 
must be determined before the complaint is posted.
    The present 10-day limitation for companies to evaluate and 
respond to a report and the Commission to resolve any issues is 
extraordinarily short and unreasonable. Even well-organized 
companies will have difficulty dealing with this time frame. 
Therefore, I recommend that the 10 days be increased to at 
least 15 days, which will have no material impact on the timing 
of postings or the value of the database.
    Also, there is an indication that the Commission may be 
limiting its review of material inaccuracy only to those 
situations where there has been a misidentification of the 
product. That is definitely not the extent of material 
inaccuracy. The Commission's regulations state that material 
inaccuracy includes all relevant facts which significantly 
impact a consumer's decision on whether to purchase a product 
and that includes causation.
    Congress should make clear to the Commission that second- 
and third-hand reports do not constitute reports of harm 
eligible for the database. And simple consumer complaints of 
dissatisfaction about the quality or performance of the product 
which are not safety-related should not be posted.
    I hope that these comments are helpful. I would be pleased 
to answer your questions. Thank you.
    [The prepared statement of Mr. Samuels follows:]





    Mrs. Bono Mack. Thank you. Briefly, we are going to go 
through Mr. Locker and then we are going to run to vote. So 5 
minutes, Mr. Locker, please.

                 STATEMENT OF FREDERICK LOCKER

    Mr. Locker. OK. Thank you. And I will try to make sure you 
don't waggle the gavel.
    Chairman Bono Mack, Vice Chairman Butterfield, members of 
the subcommittee, thank you for the opportunity to appear 
before you on this important subject matter of practical, 
commonsense solutions--and I emphasize ``solutions''--to 
unintended consequences involved in the implementation of the 
Consumer Product Safety Improvement Act of 2008, or as it has 
been come to be known as CPSIA.
    Now, our firm works as safety counsel to the Craft and 
Hobby Association, Toy Industry Association, Juvenile Product 
Manufacturers Association, Halloween Industry Association, 
apparel makers, publishers and retailers. And for better and 
for worse, we have had a lot of experience in the last 2\1/2\ 
years with the problems with implementation of the law.
    Now, we have been involved in developing product safety 
standards over many decades and we have also worked in 
collaboration with many foundations and consumer organizations 
to advocate the need for uniform product safety standards and 
initiatives, both in the United States and globally. We keenly 
recognize that sometimes in this rush to regulate, attention 
may be focused on relatively small risks associated with 
products while some very big risks remain unappreciated and 
unaddressed. In a world where perception is reality, where 
misinformation often drives perception, and where new, scary, 
and uncertain hazards can receive enormous amounts of attention 
very quickly, it is important to understand context for 
managing children's risks and for regulating them.
    We understand, however, that there is no more important 
theme than protecting our population of consumers and in 
particular our children. As much work as we all do, there is 
always room for improvement in this regard. We may not always 
agree with everyone appearing before you today on how to 
achieve our common goals, but we always stand willing, ready, 
and able to work with everyone for the betterment of children's 
lives.
    Now, in the past appearances before this committee, we have 
supported the legislative initiatives, including the concepts 
embodied in CPSIA. However, to the extent that implementation 
of provisions have resulted in regulations that depart from 
sensible risk-based decision-making, it has become clear to all 
involved on both sides of the aisle that Congress needs to act 
to restore a commonsense regulatory framework. The CPSC has 
strained under the burden, but despite admonitions from 
Congress that the agency was empowered with discretion to 
implement practical commonsense regulations on at least five or 
six separate occasions in the past, the Commission in a 
bipartisan fashion has readily acknowledged, as it has today, 
that its discretion has been limited without statutory changes.
    CPSIA adopted an unduly prescriptive regime and as often 
happens, Congress can act with a sledgehammer instead of a 
scalpel when trying to deal with issues. CPSIA adopted a set of 
absolute total limits on lead and phthalates. This House body, 
I note, didn't even consider the phthalate legislation that was 
grafted in the Senate and in conference. These wholesale limits 
were coupled with an exemption process that we all had hoped 
would work better but had proved to be impractical for lead and 
phthalates regulation.
    In effect as a result and direct result of that, the stream 
of commerce and business suffered significantly as the 
imposition of these requirements was further deemed to apply in 
a retroactive manner to any previously produced goods entered 
into commerce when the laws and step-down levels went into 
effect. These confusing and burdensome testing schemes--which 
have yet to be fully and clearly enunciated as we sit here 
today--have resulted in additional marketplace confusion and 
cost.
    So let me share just a few of the comments and proposals on 
the law that is before us today. Our comments are for the 
record--but in terms of the budget, it is clear that an era of 
restrained budgets and limited resources, the CPSC will need to 
allocate funds based upon risk/hazard analysis and sound 
scientific principles. In terms of lead, Congress recognized 
this approach when they adopted as a regulatory requirement, 
for example, the toy safety standard ASTM F-963 to which 
Congressman Schakowsky referenced. That standard, by the way, 
is a soluble migratable standard. It is not a total limits 
standard and has proved to be remarkably effective both in the 
United States--which is why Congress adopted it--Europe, and 
the rest of the world.
    Exemptions for certain materials have been adopted by the 
CPSC but they have not gone far enough. So we favor the types 
of processes that have been adopted and proposed in the draft 
resolution in phthalates. In terms of phthalates, they need to 
have an inaccessibility recognized. There needs to be action on 
the Chronic Hazard Advisory Panel when they come to conclusions 
that action has to be quick.
    [The prepared statement of Mr. Locker follows:]





    Mrs. Bono Mack. That is the red light and we have to run to 
the floor for a vote. And we will recess and reconvene 
immediately following the last vote in the series.
    Mr. Locker. OK. Sorry.
    Mrs. Bono Mack. I don't have the time. I tried last time 
and I was off by 20 minutes. So immediately following the last 
vote, we will return. We have a five-vote series.
    Mr. Locker. Thank you.
    [Recess.]
    Mrs. Bono Mack. We are ready to begin. So we left off with 
Mr. Marshall and so we will recognize you for your 5 minutes.

                   STATEMENT OF DAN MARSHALL

    Mr. Marshall. Thank you very much. Hello. My name is Dan 
Marshall. I am the founder and vice president of the Handmade 
Toy Alliance. The HTA represents 644 small businesses affected 
by the unintended consequences of the Consumer Product Safety 
Improvement Act. I would like to mention also that we receive 
no outside funding whatsoever. We are funded entirely by our 
members and some small donations that folks have made along the 
way. We are kind of a shoestring operation.
    My wife and I own Peapods Natural Toy Store in St. Paul, 
Minnesota. I am here today with my daughter Abigail and fellow 
HTA Board members Rob Wilson of Challenge and Fun in 
Massachusetts and Randy Hertzler of euroSource in Pennsylvania.
    The HTA began in November of 2008 after I began to 
understand how the newly passed CPSIA will decimate the small-
batch manufacturers who supply our store. Since then, I have 
been working with hundreds of other small business owners to 
save small-batch manufacturers from regulatory burdens of the 
CPSIA, the greatest of which is the cost of mandated third-
party testing. These fixed costs, which are easily bourn by 
mass-market manufacturers, who make tens of thousands of units 
at a time, are simply impossible for small businesses that make 
toys, children's clothing and accessories in batches of a few 
dozen at a time, often in home-based studios.
    These required tests are not limited to lead testing. Toys, 
for example, will be subject to mandatory ASTM F-963 testing, 
which requires the destruction of multiple units of each toy. 
The CPSC's current schedule would mandate ASTM testing as soon 
as this October. Unless the CPSIA is reformed, hundreds of 
small American toymakers will not survive that date.
    Unlike similar product safety legislation such as the Food 
Safety Modernization Act, FDA food labeling rules, or 
California's Proposition 65, the CPSIA makes no allowances 
whatsoever for small businesses, nor does it allow the CPSC any 
discretion in how it applies third-party testing requirements 
to various types of products. Bicycles, books, hand-knit 
sweaters, and wooden toy cars are all tested the same.
    As a result, the CPSIA, as it stands now, is basically 
unenforceable. Key provisions have been stayed numerous times. 
The CPSC is slowly being transformed from a public safety 
guardian into an enforcer of procedures and technicalities 
dictated by Congress at huge cost. Congressional action has 
dramatically undermined the CPSC, an agency which has 
effectively protected the American public for almost 40 years.
    Meanwhile, we have watched numerous trustworthy businesses 
fold because of the CPSIA. Untold others have decided not to 
pursue their dreams as toymakers or crafters. We have even 
begun to see secondary effects such as the end of Mothering 
Magazine, which closed this February after 35 years, citing 
reduced ad revenues due to the CPSIA's impact on their 
advertisers. If the CPSIA is not amended, hundreds more small 
family businesses will perish for no good reason.
    Thanks to the work of this committee, we have a way 
forward. Our alliance endorses the draft amendment because of 
the relief it provides to our members. This bill requires 
either an exemption from third-party testing or alternate 
testing procedures, such as XRF screening for lead in 
substrates, for products that are produced in small quantities. 
This is exactly what we have been asking for since the 
formation of our organization. Small-batch manufacturers would 
be given a safety valve which was originally left out of the 
CPSIA.
    We desire a thoughtful and measured reform worthy of 
meaningful bipartisan discussions. These issues deserve a full 
hearing to ensure that a high degree of consumer protection is 
maintained. We do not wish to create loopholes that would 
benefit the types of irresponsible companies that created the 
toy safety scare in the first place.
    We urge you to reach out to your colleagues in the Senate 
to reach a bipartisan agreement. The CPSIA was the product of a 
strong bipartisan effort in 2008 and its reform requires the 
same effort. We believe this discussion draft is a suitable 
foundation for that discussion. We urge both Houses of Congress 
to set aside differences and find a way to see this reform 
process through. Our family businesses are watching the process 
closely and we are depending on you.
    In conclusion, on behalf of our members, I would like to 
thank this committee for addressing this important issue and 
urge you to quickly pass meaningful reform of the CPSIA. Thank 
you.
    [The prepared statement of Mr. Marshall follows:]





    Mrs. Bono Mack. Thank you very much. Ms. Weintraub, your 5 
minutes.

                 STATEMENT OF RACHEL WEINTRAUB

    Ms. Weintraub. Chairman Bono Mack, Ranking Member 
Butterfield, Representative Schakowsky, I am Rachel Weintraub, 
Director of Product Safety and Senior Counsel for Consumer 
Federation of America. I offer this testimony on behalf of CFA 
as well as Consumers Union, Kids In Danger, National Research 
Center for Women and Families, Union of Concerned Scientists, 
and the U.S. Public Interest Research Group. I thank you for 
inviting me to testify today.
    The CPSIA institutes the most significant improvements to 
the Consumer Product Safety Commission since the Agency was 
established. The millions of recalls of toys for excessive lead 
and tiny powerful magnets, children's jewelry because of high 
lead levels, and cribs because of durability problems cause 
consumers to question the effectiveness of our Nation's safety 
net. The CPSIA has restored consumer confidence by requiring 
children's products to be tested for safety by banning lead and 
certain phthalates and toys and by creating a publicly 
accessible consumer complaint database and authorizing 
necessary resources to CPSC.
    The consumer community has stated previously that any 
changes made to the CPSIA must not weaken product safety 
standards and must not weaken public health protections. The 
current discussion draft fails this litmus test unfortunately. 
This discussion draft is not narrowly tailored, but rather 
carves gaping loopholes in the consumer protections created by 
the CPSIA. It covers fewer children's products, undermines the 
lead and phthalate standards, substantially weakens the third-
party testing requirements, and makes the consumer complaint 
database vastly less useful for consumers. I will highlight 
some of the most critical provisions of the discussion draft in 
my testimony.
    We oppose an effort to weaken the scope of the protections 
of the CPSIA. The discussion draft implies that only those 
products for children of some younger age, we presume, should 
be afforded protections by the CPSIA. Congress embraced the 
belief that there is a shared toy box, which we know reflects 
the reality of what is true in many homes across this country. 
School-age children are at risk from lead exposure and from 
hazards posed by powerful magnets in toys, for example. If 
those toys are not required to meet any lead limit or meet the 
standard for magnetic toys, the potential for harm is large. 
Further, the voluntary standard for toys, ASTM F-963, covers 
toys intended for children under age 14 years of age.
    The third-party testing provision of the CPSIA will be 
eliminated almost entirely by the discussion draft. Third-party 
testing is necessary to confirm compliance with safety rules 
and prevents hazards before they enter the marketplace. While 
the discussion draft preserves third-party testing for lead in 
paint, full-size cribs, non-full-size cribs, pacifiers, small 
parts, and children's metal jewelry, the fact that all infant 
durable products other than cribs will not be subject to third-
party testing is untenable. And there is even ambiguity about 
the crib standard.
    The provision makes it very difficult for CPSC to require 
third-party testing for other products. The rule-makings 
required in this section require a cost analysis while ignoring 
the benefits of lives saved, injuries avoided, or healthcare 
costs reduced as a result of the testing requirement. And no 
time frame is established for these rule-makings. This section 
lists products that can never be required to undergo third-
party testing but fails to define them. While we understand 
that a narrowly-targeted exemption for third-party testing 
provisions may be the only solution for small-batch 
manufacturers, the lack of definition and an alternative 
testing mechanism to ensure safety makes it impossible to 
determine the appropriateness of this relief.
    The discussion draft puts babies at risk in childcare 
facilities by allowing fixed-side cribs to remain in use if 
there is required supervision. Slowly removing the drop-side 
cribs misses numerous other hazards that the new crib standard 
addresses such as hardware failures, material integrity 
problems, mattress support failures, slat hazards, and corner 
posts. This provision drastically weakens the consumer 
protections of the CPSIA and will keep babies in known unsafe 
cribs.
    The consumer complaint database will give consumers access 
to lifesaving information and will help CPSC to more nimbly 
identify and act upon safety hazards. CPSC's rule is responsive 
to the public interest needs for disclosure and protective of a 
manufacturer's effort to protect their brand and confidential 
business information. The database includes more checks on the 
information and more opportunities for a manufacturer to 
comment than other similar government agency databases.
    The discussion draft tips the balance that the database 
rule has achieved by limiting who can report to the database, 
unnecessarily increasing the types of information consumers 
must report before their complaint can be considered for 
posting, requires consumers to unwittingly engage in a dialogue 
with a manufacturer about the reported harm rather than simply 
reporting the incident to the CPSC, stays the reporting of 
information until final decisions about the sufficiency and 
accuracy of the information are made, and will substantially 
increase the time it will take for information to be posted 
publicly. This will discourage reporting by consumers to the 
database and decrease the utility of this important consumer 
protection.
    I thank you for your consideration and am happy to take 
questions.
    [The statement of Ms. Weintraub follows:]





    Mrs. Bono Mack. Thank you very much. All right. The chair 
recognizes herself for 5 minutes for the first round of 
questions.
    And I would like to ask Mr. Marshall, please, would you be 
willing to register with the Commission in order to qualify for 
this small-batch exemption to the third-party testing 
requirements?
    Mr. Marshall. I think that would be a fair tradeoff so that 
the CPSC would know who the small-batch manufacturers are and 
it would be consistent with how the FDA approaches food 
labeling laws. So yes.
    Mrs. Bono Mack. Thank you. And you also mentioned the other 
laws that have provisions to accommodate the different 
circumstances of small-batch manufacturers. Can you say more 
about the approaches that you believe are the best?
    Mr. Marshall. Well, the issue with third-party testing is 
cost, so I think it makes sense to create exemptions based on 
the number of units produced per year. That seems like the most 
logical way to us to get at the cost versus the output of a 
particular manufacturer.
    Mrs. Bono Mack. Thank you. Ms. Weintraub, first of all, 
your testimony--you and I have not read the legislation at all 
in the same way--but you testified that the CPSIA became law as 
a result of ``a period of record numbers of recalls of 
hazardous products that injured, sickened, or killed 
children.'' What I remember most are the lead-in-paint recalls 
and no one here will ever argue that lead-in-paint restrictions 
should ever be loosened. ``However, the most significant 
problems with this bill relate to lead in substrate.'' Putting 
aside metal jewelry, again, restrictions for which we do not 
intend to loosen, were there any children injured, sickened, or 
killed by lead in substrate, and if so, how many and can you 
provide verified statistics of those injuries?
    Ms. Weintraub. I can't provide verified statistics of those 
injuries because many of those injuries are silent. They could 
cause--and likely have caused but we just don't know--
neurological impairments, decreases in IQ----
    Mrs. Bono Mack. You are saying they are all speculative 
injuries that you----
    Ms. Weintraub. No, I wouldn't say that they are 
speculative----
    Mrs. Bono Mack. But they are speculative?
    Ms. Weintraub [continuing]. But they are very difficult to 
document.
    Mrs. Bono Mack. All right. And--again, you and I read the 
legislation entirely differently--contrary to what you said in 
your testimony, the discussion draft does not deprive consumers 
of third-party testing. It gives the Commission authority to 
decide what should be third-party tested. You know, what I have 
heard from the commissioners is that they need a little bit 
more common sense, the ability to apply common sense. You 
completely disagree with that notion and what I see in the 
legislation and what you see are entirely different?
    Ms. Weintraub. Well, I am not entirely sure what you see, 
but what I see is a system where there is a list of products 
that are subject to third-party testing, a list of products 
that can never be subject to third-party testing, and then a 
very rigorous rule-making without any timelines that is 
required in order for other products to be third-party tested.
    Mrs. Bono Mack. You are saying that there are products that 
can never be tested?
    Ms. Weintraub. My understanding was that there is a list in 
this discussion draft that includes----
    Mrs. Bono Mack. Have you seen the discussion draft?
    Ms. Weintraub. Yes, I have seen it.
    Mrs. Bono Mack. OK, but your understanding--I am sorry. You 
confused me right there. You said your understanding is that--
--
    Ms. Weintraub. Well, you are disagreeing with my 
interpretation so----
    Mrs. Bono Mack. Well, and you disagreed with mine so I----
    Ms. Weintraub. Well, the way that I read the discussion 
draft is that there are a list of products which are undefined, 
products for children with disability, one-of-a-kind products, 
works of art, and products manufactured by small-batch 
manufacturers that would never be subject to----
    Mrs. Bono Mack. Well, nothing is excluded from testing and 
the Commission can decide to impose the testing. But just 
moving on a little bit to Mr. Samuels.
    You state that the Commission has made some unfortunate 
interpretations in implementing the database. What 
interpretations are you referring to and are they corrected by 
this legislation?
    Mr. Samuels. Thank you very much. Two very troublesome 
interpretations is their unnecessary--in fact, I think really 
improper--increase of the number of parties that can make 
reports of harm. So that includes trial lawyers; it includes 
consumer groups that may not be direct representatives of 
someone that is harmed. It is totally improper and your draft 
limits it to those people really harmed and their 
representatives, which is what the database is supposed to be 
all about.
    The second thing is a very unfortunate interpretation that 
even if a manufacturer has claimed a material inaccuracy in a 
report that it isn't even their product, that if the 20-day 
clock runs out, they are going to post it anyway, even if they 
have failed to resolve it. That is unfair and unnecessary and 
your draft does a very good job on dealing with that.
    Mrs. Bono Mack. Thank you. I just want to finish my last 9 
seconds by saying that I believe the database has room for 
improvement and we can do all of these things. But I also want 
to go on the record that I support the database. I think there 
is some consternation from the other side that I don't. But I 
think it is very flawed and we should make sure that it serves 
both the public and make sure that we continue to make ``made 
in America'' matter again. So with that I am happy to recognize 
Mr. Butterfield for his 5 minutes.
    Mr. Butterfield. Thank you, Madam Chairman. Ms. Weintraub, 
well, you are probably well aware that the existing law that we 
passed a couple of years ago sets clear lines on total lead 
content that becomes increasingly stringent over time. The 
purpose of decreasing the amount of lead allowed in children's 
products over time was to gradually get these products closer 
to a total lead level that would not result in at least one 
form of neurological damage, and that is the loss of IQ. Some 
manufacturers, however, have been complaining ever since the 
law went into effect, many of whom were at the table when the 
law was being written, that there is no way they can make their 
products without certain components that exceed the limits and 
that those components don't put children's health at risk.
    The discussion draft that we have seen and that you 
acknowledge that you have seen attempts to give these 
manufacturers relief from the lead content limits. However, it 
does so in a very broad and far-reaching way that not only lets 
those who claim they need lead for their products to function 
properly to exceed the limits, but lets anyone who wants to 
continue using lead to do so as long as they are willing to 
play a game of risk with children's health.
    The de minimis ingestion-based standard in the draft is 
available for any component part so long as it isn't a small 
part. And there is no consideration of whether lead needs to be 
in that particular component.
    My question to you is to the extent there is bipartisan 
sentiment that Congress should grant manufacturers some form of 
relief from the lead content limits, do you agree or disagree 
that any such exception must, as a fundamental matter, consider 
whether that product needs to have lead in it to function 
properly?
    Ms. Weintraub. I agree.
    Mr. Butterfield. Let me skip over a couple of questions. I 
will stay with you if you will. Tucked away at the very end of 
the Republican discussion draft is a one-sentence section 
regarding the effective date of the amendments in the draft. 
Although that section is at the very end and only one sentence 
long, what this section says is actually quite important. As I 
understand it from my staff, what this sentence says is that 
anyone who is currently in compliance with any part of CPSIA 
gets a free pass. Would you agree or disagree with that and 
would you elaborate for me, please?
    Ms. Weintraub. I do agree. I think that provision that you 
are referencing is truly retroactive provision of this law. I 
think the term ``retroactivity'' as it applies to other lead 
standards I think is legally not accurate. But in this case I 
think this is true retroactivity. The one sentence actually 
states that this draft will go back to the time that the CPSIA 
was passed in August of 2008.
    Mr. Butterfield. OK. I want to get to the database in the 
few seconds that I have left and this is a rather long 
question. This is going to be too lengthy for me to complete in 
the time allotted, but would you speak to the database that we 
rolled out a few weeks ago and tell us your conclusions on it?
    Ms. Weintraub. Sure. The consumer complaint database is a 
very important consumer protection. It is so important because 
consumers have been in the dark about product safety. There is 
many incidents that we know about and obviously others that we 
couldn't possibly know where consumers were just completely in 
the dark, that manufacturers had information about a safety 
problem with the product. CPSC may or may not have known and 
consumers continued to use the product. They were in the dark. 
They were under a veil of ignorance and weren't able to make 
the right choices for their families because they just didn't 
know about incidents that sometimes were pervasive and affected 
many, many people.
    So what the database seeks to do is equal this playing 
field a little bit. It still requires CPSC to go to 
manufacturers outside of the database before they can release 
information about particular products. But it requires a very 
specific number of fields of information that really narrow the 
information so that information has to be very targeted to the 
type of harm, a description of the product, and really provide 
useful information to consumers.
    And unlike other government databases, it provides a place 
where manufacturers can comment simultaneously. If you go on 
the database today, you will see a consumer filed a comment and 
then in the same page the manufacturer files a comment, which 
is significant.
    Mr. Butterfield. Thank you. I yield back.
    Mrs. Bono Mack. I thank the gentleman. And the chair now 
recognizes Mr. Olson for 5 minutes.
    Mr. Olson. I thank the Chair, and I thank the witnesses for 
your knowledge, for your patience, and your persistence.
    And my first question is going to be for you, Ms. 
Weintraub. What is more dangerous, a product of 10,000 parts 
per million lead that does not leach enough lead to result in a 
measurable increase in a child's blood lead level, or a product 
that contains 100 parts per million lead that leaches enough 
lead to result in a measurable increase in a child's blood lead 
level?
    Ms. Weintraub. I think it depends on a number of scenarios, 
so I am not sure. I could get back to you.
    Mr. Olson. OK. So you can't tell me between 10,000 parts 
per million or 100 parts per million?
    Ms. Weintraub. I think, you know, there is many factors 
that go into that sort of analysis. So I would like to review 
the information and get back to you if I could.
    Mr. Olson. OK. Thank you. I would appreciate that. Is there 
a mechanism to aid CPSIA to prevent these safe products to be 
sold to children under age 12?
    Ms. Weintraub. I am sorry. Can you repeat that?
    Mr. Olson. I can, yes, ma'am. Is there a mechanism to aid 
CPSIA to prevent these safe products to be sold for children 
under age 12--safe lead products?
    Ms. Weintraub. Well, I am not sure that I agree with 
underlying assumption of the question, but products intended 
for children 12 and under have to meet the current lead 
standards, as well as the other mandatory standards that are 
relevant to those products.
    Mr. Olson. OK. Thank you for that answer. A couple more 
questions. You testified that Congress took over a year in a 
deliberate process to consider the implications of this law. 
Unfortunately, as much as we would like to think we are, we are 
not immune to error. We are not omniscient. I would bet the 
vast majority, if not all the Members of Congress, had no idea 
we would be essentially banning bicycles, jungle gyms, and golf 
equipment--in a time of a child obesity crisis--banning science 
equipment, like microscopes and organic geology sets--again, in 
a time when students are falling behind in the sciences--or 
banning musical instruments in a time when our students are 
also falling behind in the arts. Did you know this law would 
ban those products?
    Ms. Weintraub. I think what is important to note is that 
lead is not necessary to be in products. And if it is in fact 
necessary, I think that should be part of any analysis that 
would give flexibility for any type of exemption, because the 
important thing to focus on from the consumer perspective is 
that when consumers are purchasing a product for their child, a 
toy, they don't expect that they will be exposing them to risk. 
And especially when it comes to lead, it is impossible for a 
consumer to identify whether there is lead in that product. So 
the consumer is really relying on the manufacturer and also 
relying upon Congress and the CPSC to make choices that will 
protect consumers.
    Mr. Olson. And we are doing that, ma'am, with all due 
respect. And one final question. You testified that CPSIA 
became law as a result of ``a period of record numbers of 
recalls of hazardous products that injured, sickened, or killed 
children.'' What I remember most are the lead-in-paint recalls. 
And no one here will argue that lead-in-paint restrictions 
should be loosened. No one. However, the most significant 
problems with this bill relate to lead in substrate. Putting 
aside metal jewelry, again, restrictions for which we do not 
intend to loosen, were there any children injured, sickened, or 
killed by lead in substrate? How many and can you provide 
verified statistics of those injuries?
    Ms. Weintraub. I believe I answered a similar question 
previously and I will answer the same information that, 
unfortunately, I am sure that there were injuries, there were 
harms to public health, but it is very difficult to document 
because these harms and these injuries occur as neurological 
impacts to effects of behavior and decreases in IQ. So it is 
very hard to document. But to say that there has been no harm 
from lead in substrate I think is not accurate.
    Mr. Olson. I appreciate those answers again. I would submit 
to you that it is important we know those answers before we 
take action. We should be able to document it. I yield back my 
time.
    Mrs. Bono Mack. Would the gentleman yield, actually, for 
your final minutes? I would like to ask a follow-up question if 
might to Mr. Locker and take the final minute. So you state the 
regulations have departed from sensible risk-based decision-
making at the Commission and the law does not grant them the 
ability to make commonsense decisions--there are those words 
``common sense'' again--but commonsense decisions that has 
resulted in banning safe products. How do you know the products 
are safe?
    Mr. Locker. That comment related to the ability of the 
Commission to grant exceptions based upon data that was 
available to them. I mean the Commission is not going to act to 
grant exceptions if there was exposure--as Mr. Howell testified 
under the Federal Hazardous Substances Act--to any hazardous 
substance. So in that situation the problem is not that the 
Commission can't make that determination. The problem has been 
that the language in the statute, which you now seek to 
correct, provides the Commission cannot make the decision if 
there is any lead that comes from the product. And that creates 
a Catch-22. So what we are saying is that when the Commission 
can determine that there is no extractable lead from the 
product that presents a hazard, the examples of the ATV fender, 
the bicycle fender, brass latches on safety devices maybe in 
car seats and strollers, when there is no actual human health 
risk, they should be able to say that these are exempt or 
excluded products. So far they can't and the way, you know, 
many of our clients know they are safe is they do do testing. 
They do do extraction testing. They do do formulations. They 
avoid hazardous substances where possible because under the 
Federal Hazardous Substances Act for children's products, they 
have to.
    Mrs. Bono Mack. Thank you. All right. The balance of the 
time has expired. I will recognize Ms. Schakowsky for 5 
minutes.
    Ms. Schakowsky. Thank you, Madam Chairman. I wanted to make 
it clear particularly to Mr. Marshall that Mr. Waxman, who at 
the time in April of 2010, who was chairman of the full 
committee, released a discussion draft that gave targeted 
relief to industry while maintaining important protections, 
which I am sure you agree are important for the health and 
safety of children brought about by this legislation. I was 
very involved in it. At the time Mr. Rush wasn't here for 
health reasons and I helped negotiate the bill and I worked 
with Chairman Barton and afterwards, you know, things happened. 
And you see some problems and so Mr. Waxman introduced this 
draft that would make some changes.
    And at the time the draft was supported by the National 
Association of Manufacturers, the Retail Industry Leaders 
Association, the Motorcycle Industry Council, the Handmade Toy 
Alliance, and Goodwill Industries. And Chairman Tenenbaum wrote 
that the Waxman discussion draft would provide CPSC with the 
flexibility needed to implement the law. And then at that time 
the Republican minority refused to support the legislation and 
it didn't move forward in the 111th Congress. So I want to make 
the point that we understand that there are some things that 
need to be tweaked. We want to do it but we don't want to blow 
up the bill.
    This has been an issue so dear to my heart, and I did want 
to ask Ms. Weintraub an important question. The draft bill 
exempts most children's products, including durable nursery 
goods--which I have been working on for many sessions--from 
third-party testing but then says that cribs will be tested. 
However, the current language remains ambiguous on cribs. Can 
you talk about this ambiguity? If the bill were to become law, 
could parents be assured that the crib they are using is safe?
    Ms. Weintraub. Sure. Yes, I agree that there is ambiguity. 
On the one hand, in the list of products that clarifies that 
there is third-party testing, cribs and non-full-size cribs are 
included, but yet there is a reference to a C.F.R. that seems 
to have moved. So it is a little bit confusing. But then 
further confusing there is another provision later on--I 
believe it is in the third-party section--which says that this 
would stay all standards having to do with third-party testing 
that were passed since some date in 2009. So there is 
definitely confusion about whether cribs would be required to 
be tested to the new robust crib standard.
    Ms. Schakowsky. There is another part. The bill would 
eliminate the requirement that daycares and hotels in certain 
states use newer, safer cribs. And I have subsequently become 
friends with Linda Ginzel, mother of Danny Keysar, whose son 
died a really tragic accident. And I had in my hand the letter 
from her that I wanted to read just one paragraph.
    ``We founded Kids In Danger in 1998 after the death of our 
beloved son Danny in a poorly-designed inadequately-tested and 
recalled portable crib. Danny was 16 months old when the top 
rails of the Playskool Travel-Lite crib he slept in at his 
licensed childcare home collapsed around his neck, strangling 
him. He was the 12th child to die in cribs of this design.''
    So, you know, is it necessary to eliminate that 
requirement?
    Ms. Weintraub. No, it is incredibly problematic. In terms 
of what the draft bill does for childcare facilities, it seems 
to be allowing all fixed-side cribs and the new robust crib 
standard does much more than eliminate drop-sides. It adds many 
important provisions that ensure the durability of the crib so 
that cribs can actually wear, reflecting how children use cribs 
has to do with slat integrity, has to do with mattress support, 
and the integrity of the hardware. So by just saying that all 
fixed-side cribs can be used in daycares, it unfortunately 
isn't capturing the universe of those cribs that we have reason 
to be concerned about.
    Ms. Schakowsky. Let me just say in the seconds I have left, 
Madam Chairman, that I know that you care very much about the 
safety issues and just I for one would love to be able to work 
with you to address some of the problems that we are hearing 
and to work to come up with some kind of a compromise.
    Mrs. Bono Mack. The gentlelady yields. I thank her very 
much for the spirit and I look forward to working with you and 
I acknowledge your expertise and your passion over the years in 
this and I can say, I think, just in listening to these past 
few seconds, I think there is some misinterpretation of this. 
But this is a draft discussion. Sometimes I feel it is almost 
like a Mad Libs when we were kids. There are blanks in here for 
this very reason. And I would never dream of doing this without 
working with you. So I thank you very much for your comment. 
And now the chair recognizes Mr. McKinley for his 5 minutes.
    Mr. McKinley. Thank you, Madam Chairman. Ms. Weintraub, I 
have got a couple questions for you. Apparently, the chairman 
and others on the committee, they asked you about 
substantiating the claims that children have been ``injured, 
sickened, or killed'' by toys with lead in its substrate. And 
you have responded that these injuries are, by and large, 
silent and undocumented. How do we know they exist if they are 
silent and undocumented? And could you provide us some 
documentation that supports this, how many people have and with 
names or circumstances?
    Ms. Weintraub. We know that lead exposure to children 
causes a range of neurological----
    Mr. McKinley. I am looking for some specifics because you 
made the statement. That is why I am just trying to----
    Ms. Weintraub. Yes, so first, the----
    Mr. McKinley. I don't want the generalities. That is what 
happens around here. I am new at this game and everyone likes 
to talk in the abstract. I am an engineer. I want to deal in 
details. So when you make that statement, I want you to prove 
it.
    Ms. Weintraub. Sure. Well, first, the statement that I made 
applied to a full range of products. And when I talked about 
the injuries and deaths, I was also talking about magnet-toy 
deaths, as well as injuries from other toxic chemicals.
    Mr. McKinley. Can you document it?
    Ms. Weintraub. It is very difficult to document if a 
child----
    Mr. McKinley. Well, then you shouldn't be making that 
statement.
    Ms. Weintraub. I can provide you with scientific studies 
that will----
    Mr. McKinley. Let me go on my second question for you. Last 
week we had at the request, perhaps, or insistence of the 
administration and the Congressman from California, we included 
language in a broadband oversight bill to take care of the 
false and erroneous claims against people for waste, fraud, 
abuse, and precisely to protect these companies' reputations. 
We used Congressman Waxman's own language that he had inserted 
in a radio spectrum bill that he had produced last year. So we 
were using specifics. And then last year there was a data 
security bill that the Republicans were trying to put in to a 
consumers' right bill to protect access to databases, protect 
it for security for people's reputations. I have got a company 
in my area that has cried out on this. He has already had legal 
advice that is suggesting that he could be accused anonymously 
by people using false names put up there against him and he 
won't be able to clear his company name.
    Shouldn't companies who manufacture consumer products not 
be provided the same ability to protect their reputations from 
erroneous or false claims as the companies who receive 
broadband like we just did?
    Ms. Weintraub. I think there are very similar protection 
that is not identical. But first of all, on the consumer 
complaint database, complaints cannot be anonymous.
    Mr. McKinley. Would you work with us on that? Is that 
something that you think we should be doing? Shouldn't we be 
protecting everyone and not just certain people?
    Ms. Weintraub. I think there are adequate protections 
already. And already in order for a claim to be filed and 
posted on the database, a consumer needs to verify that what 
they are saying is true.
    Mr. McKinley. Their counsel doesn't agree with you on that. 
That is why we need to do this language. We need to have 
something in there to be able to take care of that because we 
are looking for something that is consistent with it. But the 
last question I have----
    Ms. Weintraub. Well, I am happy to take a look at----
    Mr. McKinley [continuing]. Is, Mr. Marshall, if I could--
back to you. You know, one of the things we were looking for in 
this hearing were some data because there are a lot of blanks. 
And you heard the chairman talk about it.
    And on page 11 it says the term ``produced in small 
quantities means not more than 'blank' number of units of the 
same product.'' What would you recommend is a number that we 
should use in that?
    Mr. Marshall. I think that could be a range of numbers. I 
think on an outside I think 10,000 units per year would be the 
highest we would like to see.
    Mr. McKinley. One thousand?
    Mr. Marshall. Ten thousand is the highest.
    Mr. McKinley. Ten thousand?
    Mr. Marshall. Yes. But it has to do with----
    Mr. McKinley. And that maybe I am dealing more with your 
company, what you all produce.
    Mr. Marshall. Well, I own a toy store and my wife and I, we 
buy from small-batch manufacturers.
    Mr. McKinley. OK.
    Mr. Marshall. But that is a number that we are willing to 
discuss.
    Mr. McKinley. Ten thousand.
    Mr. Marshall. As a high number. That would be the highest 
that we would want to see that number. It could be a range of 
numbers below that as well.
    Mr. McKinley. OK. I yield back my time.
    Mrs. Bono Mack. I thank the gentleman. And seeing no other 
members present, I believe that we are now ready to wrap it up. 
I ask unanimous consent that these 16 letters be made a part of 
the record, all of which have been vetted previously by the 
minority. Without objection.
    [The information follows:]





    
    Mrs. Bono Mack. All right. And as we wrap things up again, 
I want to thank our panelists for your patience today, your 
indulgence certainly through those long series of votes. I 
would like to thank you for your commitment to this very 
important issue. I look forward to hearing your thoughts 
further as we move this legislation forward.
    But I would like to be perfectly clear. Our only goal is to 
correct the unintended consequences of CPSIA. This draft does 
not undermine the current law. Again, we are trying to fix the 
problems that we know of in CPSIA, hopefully get some common 
sense back into this thing. We are simply working to make it 
better for all Americans and to provide the Consumer Product 
Safety Commission with the flexibility that it is asking for.
    As the mother of two children and three stepchildren, I am 
completely committed--like everybody in this room is--to the 
safety of children everywhere. So I hope we can put these 
political differences aside and pass a bill that will make them 
prouder and safer. The ranking member and I continue to have 
discussions about our hope and willingness to work together to 
get a good bill through Congress that not only we can be proud 
of but the American people can as well.
    So I remind members they have 10 business days to submit 
their questions for the record and I ask the witnesses to 
please respond to any questions they receive. And the hearing 
is now adjourned. Thank you again.
    [Whereupon, at 3:55 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]






                                 
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