[Senate Hearing 116-59]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 116-59

                           OVERSIGHT OF THE 
                   CONSUMER PRODUCT SAFETY COMMISSION

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

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON MANUFACTURING, TRADE,
                        AND CONSUMER PROTECTION

                                 OF THE

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION
                               __________

                             JUNE 20, 2019
                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation
                             
                             
                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                             


                Available online: http://www.govinfo.gov

                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
55-620 PDF                 WASHINGTON : 2024   


       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                  ROGER WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota             MARIA CANTWELL, Washington, 
ROY BLUNT, Missouri                      Ranking
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado               TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee          GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia  TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah                       TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin               JON TESTER, Montana
TODD YOUNG, Indiana                  KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida                  JACKY ROSEN, Nevada
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Jason Van Beek, General Counsel
                 Kim Lipsky, Democratic Staff Director
              Chris Day, Democratic Deputy Staff Director
                      Renae Black, Senior Counsel
                                 ------                                

                 SUBCOMMITTEE ON MANUFACTURING, TRADE, 
                        AND CONSUMER PROTECTION

JERRY MORAN, Kansas, Chairman        RICHARD BLUMENTHAL, Connecticut, 
JOHN THUNE, South Dakota                 Ranking
DEB FISCHER, Nebraska                AMY KLOBUCHAR, Minnesota
DAN SULLIVAN, Alaska                 BRIAN SCHATZ, Hawaii
MARSHA BLACKBURN, Tennessee          EDWARD MARKEY, Massachusetts
SHELLEY MOORE CAPITO, West Virginia  TOM UDALL, New Mexico
MIKE LEE, Utah                       TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin               KYRSTEN SINEMA, Arizona
TODD YOUNG, Indiana                  JACKY ROSEN, Nevada

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 20, 2019....................................     1
Statement of Senator Moran.......................................     1
Statement of Senator Cantwell....................................     3
Statement of Senator Blumenthal..................................    75
Statement of Senator Capito......................................    80
Statement of Senator Markey......................................    84
Statement of Senator Udall.......................................    85
Statement of Senator Rosen.......................................    87

                               Witnesses

Hon. Ann Marie Buerkle, Acting Chairman, United States Consumer 
  Product Safety Commission......................................     4
    Prepared statement...........................................     6
Hon. Robert S. Adler, Commissioner, United States Consumer 
  Product Safety Commission......................................     7
    Prepared statement...........................................     9
Hon. Dana Baiocco, Commissioner, United States Consumer Product 
  Safety Commission..............................................    11
    Prepared statement...........................................    13
Hon. Peter A. Feldman, Commissioner, United States Consumer 
  Product Safety Commission......................................    14
    Prepared statement...........................................    16
Hon. Elliot F. Kaye, Commissioner, United States Consumer Product 
  Safety Commission..............................................    72
    Prepared statement...........................................    73

                                Appendix

Letter dated June 13, 2019 to Hon. Jan Schakowsky and Hon. Cathy 
  McMorris Rodgers from Jennifer Loesch, Chief Executive Officer, 
  BreathableBaby, LLC............................................    89
Letter dated June 19, 2019 to Hon. Jerry Moran and Hon. Richard 
  Blumenthal from Marc Rotenberg, EPIC President; and Caitriona 
  Fitzgerald, EPIC Policy Director...............................    91
Crystal Ellis, Elementary Educator, Parents Against Tip-Overs, 
  prepared statement.............................................    93
Response to written questions submitted to Hon. Ann Marie Buerkle 
  by:
    Hon. Jerry Moran.............................................    97
    Hon. Marsha Blackburn........................................    99
    Hon. Todd Young..............................................    99
    Hon. Ron Johnson.............................................    99
    Hon. Maria Cantwell..........................................   100
    Hon. Richard Blumenthal......................................   101
    Hon. Tom Udall...............................................   110
    Hon. Kyrsten Sinema..........................................   111
    Hon. Tammy Duckworth.........................................   112
Response to written questions submitted to Hon. Robert S. Adler 
  by:
    Hon. Jerry Moran.............................................   113
    Hon. Maria Cantwell..........................................   114
    Hon. Richard Blumenthal......................................   114
    Hon. Tom Udall...............................................   123
    Hon. Tammy Duckworth.........................................   124
Response to written questions submitted to Hon. Dana Baiocco by:
    Hon. Jerry Moran.............................................   135
    Hon. Maria Cantwell..........................................   136
    Hon. Richard Blumenthal......................................   139
    Hon. Tom Udall...............................................   150
    Hon. Tammy Duckworth.........................................   151
Response to written questions submitted to Hon. Peter A. Feldman 
  by:
    Hon. Jerry Moran.............................................   152
    Hon. Marsha Blackburn........................................   153
    Hon. Ron Johnson.............................................   154
    Hon. Maria Cantwell..........................................   154
    Hon. Richard Blumenthal......................................   156
    Hon. Tom Udall...............................................   166
    Hon. Tammy Duckworth.........................................   168
Response to written questions submitted to Hon. Elliot F. Kaye 
  by:
    Hon. Jerry Moran.............................................   168
    Hon. Maria Cantwell..........................................   169
    Hon. Richard Blumenthal......................................   176
    Hon. Amy Klobuchar...........................................   187
    Hon. Tom Udall...............................................   187
    Hon. Tammy Duckworth.........................................   188

 
                           OVERSIGHT OF THE 
                   CONSUMER PRODUCT SAFETY COMMISSION

                              ----------                              


                        THURSDAY, JUNE 20, 2019

                               U.S. Senate,
Subcommittee on Manufacturing, Trade, and Consumer 
                                        Protection,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:30 a.m. in 
room SD-562, Dirksen Senate Office Building, Hon. Jerry Moran, 
Chairman of the Subcommittee, presiding.
    Present: Senators Moran [presiding], Thune, Fischer, 
Capito, Young, Blumenthal, Cantwell, Markey, Udall, Sinema, 
Rosen.

            OPENING STATEMENT OF HON. JERRY MORAN, 
                    U.S. SENATOR FROM KANSAS

    Senator Moran. Good morning, everyone. The Subcommittee 
will come to order.
    Welcome to today's oversight hearing on the Consumer 
Product Safety Commission.
    Thank you to all the Commissioners for being with us today.
    I am pleased that we are having an on-time start. We have 
votes at 11:30. So there will only be one round of questions. 
That does not mean that the witnesses can pretend they do not 
have all the answers in the first round of questions, knowing 
we will not have a second round. We expect you to answer them 
fully and to the best of your ability.
    This is an important hearing, and we are glad to have you 
all back with us. The Commission is fully formed and five 
members.
    According to that Commission, deaths and injuries and 
property damage from incidents stemming from consumer products 
cost the Nation more than $1 trillion. That is an economic 
cost. The cost to human beings and lives and families is even 
much more and unknowable.
    You have a broad mandate to protect consumers from 
unreasonable risk of injuries associated with more than 15,000 
consumer products, including household products, toys, sporting 
goods and more.
    The Commission was established by the Consumer Product 
Safety Act in 1972 as the jurisdictionally independent agency 
charged with enforcing various Federal statutes geared at 
protecting consumers.
    Central to the Commission's function is its use of 
voluntary consumer product standards instead of the 
promulgation of mandatory regulations, requirements, when 
appropriate. This approach allows the agency to have a 
collaborative working relationship with consumer advocacy 
groups, manufacturers, importers, retailers, and other 
stakeholders, which increases the flow of information for 
timely, accurate, and data-driven decisions related to risks 
posed to consumers.
    While the Commission is a relatively small agency, its 
influence is felt across the country and across our economy. 
And I look forward to hearing from you today about your 
critical initiatives and rulemaking agenda.
    In 2017, this subcommittee held a hearing to examine the 
effectiveness of the Virginia Graeme Baker Pool and Spa Safety 
Act, which was enacted to enhance the safety of public and 
private pools and spas, reduce drownings and entrapment 
incidents. While this law certainly has had a positive impact 
on improving pool safety, the Commission published a report 
this past May indicating the total number of drownings in 2016 
and the total number of drownings in 2015, including instances 
involving very young children. I hope the Commission today will 
provide recommendations on what else can be done to prevent 
these tragic deaths.
    The data-driven mission of the Commission and its efforts 
to keep pace with the increasingly technological economy will 
continue to be a critical aspect of the agency's effectiveness. 
As unauthorized disclosures of confidential information 
continue to plague actors in both the public and private 
sectors, including the CPSC, heightened attention to ensuring 
that resources and staffing are effectively dedicated to 
protecting such information is clearly necessary.
    For these purposes, the Ranking Member, Senator Blumenthal, 
and I introduced the CPSC Chief Information Officer Parity Act, 
which will ensure that the agency's top IT expert has a 
significant role in the Commission's decisionmaking process for 
budgetary and personnel purposes. Additionally, it would 
authorize the Commission to bring a chief data officer and a 
chief technologist to support such efforts and to protect the 
agency's systems from vulnerabilities.
    As the Fourth of July approaches, I would like an update 
from the Commission on an issue that we have discussed so many 
times in a public setting and in private meetings: firework 
devices. Again, this is not a Republican or Democrat issue in 
regard to consumer safety. We all have something to care about, 
and I look forward to hearing how we can assist the Commission 
in making thoughtful and policymaking decisions.
    Thank you to Acting Chairman Ann Marie Buerkle and 
Commissioner Robert Adler, and the other three--and Dana 
Baiocco, Peter Feldman, and Elliot Kaye for speaking to the 
Subcommittee today on issues that directly impact our nation's 
consumers.
    Following Tuesday's news of withdrawing her pending 
nomination, I would like to thank Acting Chairman Buerkle, in 
particular, for her dedicated public service on the Commission 
for the past six years and as the Acting Chairman for the past 
two and a half years. Her leadership and engagement with this 
subcommittee and all stakeholders has been commendable and led 
to many significant advancements in consumer product safety.
    With that, I will turn to the Ranking Member of the Full 
Committee, Senator Cantwell.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Chairman Moran, for holding 
this oversight hearing and for the Commission being here.
    The Consumer Product Safety Commission is a small Federal 
agency with a huge mission. It is to be the cop on the beat 
when protecting consumers from potentially dangerous products. 
Time and time again, though, over the last two years, I have 
seen a pattern with the Commission where it has deferred to the 
industry on critical product safety matters instead of being 
more aggressive as a commission.
    From the get-go, almost all of the consumer commission's 
pending product rulemakings were terminated. For instance, 
instead of setting mandatory standards for window blinds to 
protect kids from cord strangulation, the Commission deferred 
to the industry to set its own standard.
    Another rule involved shut-off switches for portable 
generators, which are commonly used after power failures caused 
by hurricanes or winter storms that we often get in the Pacific 
Northwest. These generators propose a carbon monoxide poisoning 
risk, and again, the Commission nixed a mandatory standard and 
instead asked the Portable Generator Manufacturers' Association 
to write their own standards.
    But the failures have not just been with the safety 
standards intended to protect against dangerous products. Also 
the Consumer Product Safety Commission has essentially stopped 
imposing civil penalties on manufacturers. The Commission's 
most basic mission is to protect consumers from dangerous 
products, and I think two recent examples highlight a trend 
that I think is very problematic.
    The first involved the BOB jogging stroller. The Consumer 
Product Safety Commission career staff found a serious defect 
in the stroller that allowed the front wheel to detach 
unexpectedly. Those wheel detachments resulted in serious 
injuries to scores of adults and children. The Commission staff 
recommended a recall, and some on the Commission voted to move 
forward with a lawsuit against the manufacturer. But instead, 
the Commission sought a settlement with the company that 
resulted in little more than a public safety campaign and 
provided certain consumers with replacement parts. Other 
consumers with older models got nothing more than a 20 percent 
coupon on the stroller. So this agreement allowed the company 
to say that these corrective amount only to an information 
campaign when so much was at risk for families.
    The second involved the Fisher-Price Rock 'n Play Infant 
Sleeper. According to the consumer products report, almost 35 
infant deaths have been associated with this product since 
2009. But the Commission did not reveal this information until 
Consumer Reports blew the whistle and brought it to the public. 
So who knows how many more children could have been impacted. 
And even if the product was recalled, the Commission found a 
way to continue to fail the consumer when the Commission's 
recall notice listed just ``refund'' as the remedy for 
consumers that return the Rock 'n Roll Play. So consumers with 
older Rock 'n Roll Play Sleepers will only get a voucher for 
another. And so this is very problematic.
    We have a tradition on the Committee of working together to 
enact bipartisan legislation to help protect consumers, and the 
Consumer Product Safety Improvement Act of 2008, which was 
signed into law by President George W. Bush, gave the Consumer 
Product Safety Commission substantial new authority to protect 
consumers. So going forward, I hope that the White House will 
put forth names of people to be on the Commission that are 
going to use the authority and put American consumers and our 
children first when protecting them with these laws.
    I thank the Chairman. I look forward to hearing from the 
Commissioners.
    Senator Moran. Ranking Member, thank you very much for 
joining us today.
    Senator Blumenthal is expected. He is in the Judiciary 
Committee this morning. He is expected to join us shortly.
    Let us begin with the testimony, and we will begin with the 
Acting Chairman Ann Marie Buerkle. Thank you.

              STATEMENT OF HON. ANN MARIE BUERKLE,

                 ACTING CHAIRMAN, UNITED STATES

               CONSUMER PRODUCT SAFETY COMMISSION

    Ms. Buerkle. Thank you. Good morning, Chairman Moran, 
Ranking Member Blumenthal, who is not here yet, and Ranking 
Member Cantwell, and distinguished members of this committee.
    I am pleased to be before the Committee once again to 
discuss the good progress being made at the Consumer Product 
Safety Commission.
    As you know, earlier this week, I announced my intention to 
step down as the Acting Chairman and complete only my current 
term as a member of the Commission. I feel honored for the 
opportunity to have served as a Commissioner for the CPSC since 
2013 and as the Acting Chairman for two and a half years. My 
respect for this agency, its mission and, most importantly, for 
the staff has grown with each and every year I have been with 
the CPSC. It has been both a pleasure and a privilege to work 
with so many talented and capable individuals.
    Throughout my time at the agency, I have led with integrity 
and principle, always--always--with our safety mission above 
politics. I am incredibly proud of the accomplishments achieved 
during my tenure and deeply appreciate the support and 
excellent work by the CPSC staff. Together we have taken many 
actions that save lives every day, including:

   Initiating a multi-pronged approach on strengthening 
        furniture tip-over safety standards and enforcement;

   Eliminating window cords in 80 percent of the market 
        to prevent child strangulation;

   Educating people on the dangers of carbon monoxide 
        poisoning and facilitating the development of new 
        portable generator standards, resulting in safer 
        products being available today as we speak in the 
        marketplace;

   Guided the disbursement of over $2 million in grants 
        to reduce drownings and pool entrapments;

   Approving 14 new or revised mandatory standards, 
        many of them for children and infant products;

   Leading CPSC's effort to address the safety of the 
        Internet of Things, including the formation of an 
        interagency working group led by the CPSC;

   Jumpstarting a process to improve and modernize 
        saferpro-
        ducts.gov.

    In addition, CPSC is better positioned to be effective and 
efficient because of the agency-wide improvements made under my 
leadership. We have taken steps to modernize the agency both 
with data and technological advancements, as well as enhancing 
the organization and prioritization of staff as well as 
resources. The work we have done and that continues to occur 
will help ensure that the CPSC is equipped to succeed in a 
rapidly changing global marketplace where the types of products 
and how consumers buy and interact with those products is 
constantly evolving.
    Engagement with our stakeholders has been a priority for 
me. I have regular calls with consumer safety groups to 
understand and respond to their priorities. They provided 
critical suggestions to improve saferproducts.gov. Some of 
their suggested changes we were able to make the very next day. 
Others we are examining and have put forth funds in our midyear 
to fund that project.
    To help us better understand the products we regulate, I 
have asked staff to hold several tech-to-tech meetings. These 
meetings help our staff understand how products work in real 
world situations and help regulated industries understand the 
concerns of our staff and the issues that manufacturers need to 
address.
    Finally, no group has been more influential than the 
victims and their families that I have met over the years. 
Their courage, resolve, and desire to ensure that no other 
parent, relative, or loved one has to suffer the tragedy that 
they faced has helped me to never lose sight of the importance 
of the CPSC's mission and its effect on Americans. The efforts 
of parents who have lost children to furniture tip-overs is why 
I have called for a tougher standard for these products.
    These achievements could not have been accomplished without 
the CPSC staff, who are truly the backbone of our agency. 
However, they need the proper resources to do their job. As you 
have heard me say again and again, CPSC needs more resources. 
CPSC's mission has long dwarfed its budget. And I am proud that 
my advocacy for the agency has resulted in Congress and this 
administration providing increased funding in the House's 
current mark of $135.5 million. My hope is that as I depart, 
this trend continues and the CPSC's budget is finally able to 
be on par with its critical mission.
    Following my departure from the CPSC, my hope is that staff 
and the Commission will build upon the successes of my tenure 
as I have sought to build on the legacies of those who came 
before me. I hope my efforts to put politics aside and make 
principled decisionmaking will continue, making civility and 
robust engagement a priority. And I hope it is an agency that 
continues to leverage the expertise and knowledge of our staff 
to advance safety measures for consumers everywhere.
    My life has always been in advocacy, health care, and 
public service. I believe that my time at CPSC has been a 
culmination of a lifetime of advocacy. I want to say here this 
morning that it has been an honor to serve both the Obama and 
the Trump administrations to protect Americans and keep their 
families safe.
    Thank you again, Chairman Moran, for the opportunity to be 
here today, and I do look forward to answering any questions 
that you might have. Thank you.
    [The prepared statement of Ms. Buerkle follows:]

    Prepared Statement of Hon. Ann Marie Buerkle, Acting Chairman, 
            United States Consumer Product Safety Commission
    Good morning, Chairman Moran, Ranking Member Blumenthal, and 
distinguished members of the Committee. I am pleased to be before the 
Committee once again to discuss the progress being made at the Consumer 
Product Safety Commission.
    As you know, earlier this week I announced my intention to step 
down as Acting Chairman and complete only my current term as a member 
of the Commission. I feel honored for the opportunity to have served as 
a Commissioner for the Consumer Product Safety Commission since 2013, 
and as the Acting Chair for two and half years. My respect for this 
Agency, its mission, and most importantly, for the staff, has grown 
with each and every year that I have been with CPSC. It has been both a 
pleasure and a privilege to work with so many talented and capable 
individuals.
    Throughout my time with the agency, I have led with integrity and 
principle--always with our safety mission above politics. I am 
incredibly proud of the accomplishments achieved during my tenure and 
deeply appreciate the support and excellent work by the CPSC staff. We 
have taken many actions that save lives every day including:

   Initiating a multi-pronged approach on strengthening 
        furniture tipover safety standards and enforcement

   Eliminating window cords in 80 percent of the market to 
        prevent child strangulation

   Educating people on the dangers of carbon monoxide poisoning 
        and facilitating the development of new portable generator 
        standards, resulting in safer products being introduced into 
        the market

   Guided the disbursement of over $2 million in grants to 
        reduce drownings and pool entrapments

   Approving 14 new or revised mandatory standards, many of 
        them for children and infant products

   Leading CPSC's efforts to address the safety of the Internet 
        of Things, including the formation of an interagency working 
        group

   Jumpstarting a process to improve and modernize 
        saferproducts.gov

    In addition, CPSC is better positioned to be effective and 
efficient because of the agency-wide improvements made under my 
leadership. We have taken steps to modernize the agency both with data 
and technological advancements as well as enhancing the organization 
and prioritization of staff and resources. The work we have done, and 
that continues to occur, will help ensure that CPSC is equipped to 
succeed in a rapidly changing global marketplace where the types of 
products and how consumers buy and interact with those products is 
constantly evolving.
    Engagement with all stakeholders has been a priority for me and it 
has produced results. I have regular calls with consumer safety groups 
to understand and respond to their priorities. They provided critical 
suggestions to improve saferproducts.gov. Some of their suggested 
changes we were able to make the very next day. Others, we are 
examining as we develop our plan for updating the site.
    To help us better understand the products we regulate, I have asked 
staff to hold several tech-to-tech meetings. These meetings help our 
staff understand how products work in real world situations and help 
regulated industries understand the concerns of our staff and the 
issues that manufacturers need to address.
    Finally, no group has been more influential than the victims and 
their families that I have met over the years. Their courage, resolve 
and desire to ensure that no other parent, relative or loved one has to 
suffer the tragedy they faced has helped me never lose sight of the 
importance of CPSC's mission and its effect on Americans. The efforts 
of parents who have lost children to furniture tipovers is why I have 
called for a tougher standards for these products.
    These achievements could not have been accomplished without the 
CPSC staff, who truly are the backbone of our agency. However, they 
need the proper resources to do their job. As you have heard me say 
again and again, CPSC needs more resources. CPSC's mission has long 
dwarfed its budget. I am proud that my advocacy for the agency has 
resulted in Congress and this Administration providing increased 
funding and resources for the CPSC each year since I've been Acting 
Chairman, including the House's current mark of $135.5 million. My hope 
is that as I depart, this trend continues and that CPSC's budget is 
able to be on par with its critical mission.
    Following my departure from CPSC, my hope is that staff and the 
Commission will build upon the successes of my tenure, as I have sought 
to build on the legacies of those that came before me. I hope my 
efforts to put politics aside and make principled decision-making will 
continue, making civility and robust engagement a priority. And I hope 
it is an agency that continues to leverage the expertise and knowledge 
of our staff to advance safety measures for consumers everywhere.
    My life's work has always been in advocacy, healthcare, and public 
service. I believe that my time at the CPSC has been a culmination of a 
lifetime of these experiences and has made the American public safer. I 
truly look forward to the next chapter of my life and will continue my 
service to community, country and most importantly my six wonderful 
children and 18 grandchildren.
    It has been an honor to serve both the Obama and Trump 
administrations to protect Americans and keep their families safe. 
Thank you again for the opportunity to appear here today. I look 
forward to answering any questions you may have.

    Senator Moran. Chairwoman, thank you for your testimony and 
for your public service.
    Commissioner Adler.

STATEMENT OF HON. ROBERT S. ADLER, COMMISSIONER, UNITED STATES 
               CONSUMER PRODUCT SAFETY COMMISSION

    Mr. Adler. I am pleased to be here to discuss an agency 
that I have been associated with in some fashion since its 
opening in 1973 and where I have been a commissioner since 
August 2009.
    At the outset, I would like to say a few words about my 
colleague and friend, Acting Chairman Buerkle. I would like to 
thank her for her service in what is often an exceedingly 
difficult job, and I would like to commend her for her grace 
under pressure. Of course, my affection and respect for her do 
not mean that she and I share the same regulatory philosophy or 
view of policy approaches. Far from it. But I think she is an 
excellent role model for disagreeing without being 
disagreeable, and her fair and respectful treatment of staff 
serves as an example for us all.
    Turning to my remarks, CPSC is far and away the smallest 
health and safety agency in the Federal Government with the 
current funding level of just $127 million and a staff of 539 
FTEs. Let me put our budget in perspective. Our sister agency, 
FDA, recently asked for an increase in its budget--increase in 
its budget--that is five times what our entire budget is.
    Notwithstanding our modest budget, our jurisdictional 
scope, as the Chairman said, is extremely broad, encompassing 
roughly 15,000 product categories.
    This October will mark the 47th anniversary of the passage 
of the landmark Consumer Product Safety Act. Looking back, I 
believe that Congress and the agency should take great pride in 
what we have accomplished, especially given the immense scope 
of our mission.
    Among our many achievements, I would like to note the 
dramatic drop over the years in death and injuries to children 
from consumer products. To say the least, that does not mean 
our work is done, but I think it does mean we have made major 
progress.
    Despite this progress, I must caution that much of our work 
has been stymied by several statutory roadblocks. When the 
agency was established in 1973, we promulgated numerous 
critical safety rules dealing with hazards that ranged from 
flammable children's sleepwear, shattering glass panes, and 
unsafe toys, and we did it under the traditional rulemaking 
approaches in the Administrative Procedure Act. By my count, 
the agency wrote 24 safety rules in its first 8 years, or about 
three per year.
    In 1981, however, Congress imposed a set of cumbersome 
procedures on CPSC that have had the effect of stalling and 
lengthening our rulemaking efforts. And here is the statistic. 
In the following 38 years since 1981, we have managed to eek 
out only 10 safety rules under these procedures, and that is 
about one every 3 and a half years versus three per year. And 
we have really written only one safety rule using these 
procedures in the past 10 years.
    Let me be blunt. I have little doubt that lives have been 
lost and injuries incurred because of these delays in our 
rulemaking with no particular improvement in the quality of the 
standards that we write.
    While I am discussing parts of the statute that I would 
like to see reformed, I also must mention the onerous 
information disclosure restrictions under which CPSC must 
operate. I refer to the provisions of section 6(b). Unlike any 
other Federal health and safety agency, when CPSC wants to warn 
consumers about a particular hazard associated with a company's 
product, we first have to run our press release past the 
company to see whether they have any objections to it. And 
especially in recalls, that means companies can object to our 
proposed hazard warning, can threaten to sue us unless staff 
waters down the release. So just imagine a product where a 
dozen consumers have died and the company does not want us to 
include that fact in the release, and then put yourself in the 
shoes of staff who need to balance a timely warning against the 
threat of delays brought about by litigation. And you can see 
the dilemma that staff is often faced with, and I think you can 
see we have a problem.
    I would like to mention one final point in my testimony, 
and that is a concern I have about a vulnerable group, of which 
I am a proud member, and that is senior citizens. We make up 
about 13 percent of the population, but we account for roughly 
65 percent of consumer product-related deaths. And we are a 
rapidly growing demographic. Far and away, the greatest 
product-related hazard for seniors is falls. That is about 75 
percent of the fatalities that we suffer. We also suffer 
disproportionately from fires. Seniors are nearly four times as 
likely to die in a home fire as the general population. And 
there are numerous other products where seniors suffer 
disproportionate injuries and death. With these statistics in 
mind, I urge you to consider measures that would help with the 
serious challenges that seniors face in the coming years.
    Thank you very much for your attention, and I look forward 
to any questions you have.
    [The prepared statement of Mr. Adler follows:]

       Prepared Statement of Hon. Robert S. Adler, Commissioner, 
            United States Consumer Product Safety Commission
    Good morning Chairman Moran, Ranking Member Blumenthal, and the 
members of the Subcommittee on Consumer Protection & Commerce. Thank 
you for the opportunity to testify today along with my fellow CPSC 
Commissioners. I am pleased to be here to discuss an agency that I have 
been associated with in some fashion since its opening in 1973--and 
where I have been a Commissioner since August 2009.
    At the outset, I would point out that CPSC is far and away the 
smallest of the Federal health and safety agencies, with a current 
funding level for FY 2019 of $127 million and a staff of 539 FTEs. To 
put our budget in perspective, I note that for FY 2020, our official 
budget request is also for $127 million. By way of comparison, our 
sister agency, FDA, recently asked for $6.1 billion dollars for FY 
2020, which represents a $643 million increase over its FY 2019 budget 
request. In other words, FDA's request for an increase is more than 5 
times CPSC's entire budget.
    Notwithstanding CPSC's modest budget, our jurisdictional scope is 
extremely wide, encompassing roughly 15,000 categories of consumer 
product found in homes, stores, schools, and recreational settings. 
Given this broad jurisdiction, the agency has adopted what I believe to 
be a thoughtful, data-based approach using its technical staff to 
figure out which products present the greatest risk and which are most 
susceptible to corrective measures. And, we address them using our 
regulatory and educational tools in a way designed to minimize market 
disruption while always making consumer safety our top priority.
    Of course, the CPSC does not operate alone on product safety. We 
have always sought to make CPSC's various stakeholders partners in our 
quest to reduce or eliminate unreasonable risks. Included in this group 
are our friends in the consumer and business communities as well as the 
various standards development bodies that work with the agency.
    This October will mark the 47th anniversary of the passage of the 
landmark Consumer Product Safety Act (CPSA). Looking back, I believe 
Congress and the agency should take great pride in what the agency has 
accomplished, especially considering the immense scope of our mission.
    What has the agency accomplished? As a starting point, I would cite 
the estimated 30 percent reduction in the rate of deaths and injuries 
associated with consumer products since the agency's inception. Of 
course, not all of this drop can be directly attributed to agency 
actions, but a lot of it can. And, I would particularly point to the 
dramatic drop in death and injuries to children. Let me highlight just 
a few of the many improvements in safety:

   An over 80 percent drop in childhood poisonings,

   An over 70 percent drop in crib deaths,

   An almost 90 percent reduction in baby walker injuries, and

   An almost complete elimination of childhood suffocations in 
        abandoned refrigerators.

    We have also seen dramatic drops in fatal electrocutions, 
residential fire deaths, and traumatic injuries from lawn mowers. In 
short, CPSC has produced an excellent return on investment. By our 
calculation a number of years ago, this drop in deaths and injuries has 
resulted in well over $16 billion in reduced societal costs--which is 
many times the resources the CPSC has been given to do its job. And, as 
a tiny agency, we have produced these benefits at a very low cost.
    One further point: What makes these reduced injuries and fatalities 
so dramatic to me is that they occurred during a period when the 
population in the U.S. jumped from 220 million to 330 million--a 
roughly 50 percent increase. Drops in deaths and injuries this big in 
the face of a growing population represent a major step forward in 
safety.
    I would also like to mention the tremendous strides the agency has 
taken to implement the Consumer Product Safety Improvement Act of 2008 
(CPSIA) in the ten-plus years since its passage. Among the actions we 
have taken:

   Enforcing stringent limits on lead and phthalates in 
        children's products,

   Promulgating the strongest safety standard for cribs in the 
        world,

   Implementing rules of the new CPSIA requirement that firms 
        have independent laboratories conduct third party testing of 
        children's products before introducing them into the U.S. 
        market,

   Making mandatory a comprehensive toy standard, ASTM F-963,

   Writing, and continuing to write, a series of standards--I 
        believe the count is now 20--for durable infant products such 
        as play yards and strollers, and finally,

   Developing new approaches to stopping dangerous imported 
        products before they are sold to U.S. consumers.

    While I'm thrilled with our implementation of the CPSIA, I would 
simultaneously, with some frustration, point out the broad disconnect 
between the effectiveness of our rulemaking under CPSIA and our 
rulemaking under the infinitely more cumbersome procedures found in the 
other acts we enforce.
    Let me briefly explain: When the agency was first established in 
1972, we promulgated numerous critical safety rules dealing with 
hazards such as flammable children's sleepwear, dangerously shattering 
glass panes, and unsafe toys under the traditional rulemaking 
approaches found in section 553 of the Administrative Procedure Act. By 
my count, the agency wrote about 24 safety rules in its first 8 years--
or about 3 per year. In 1981, however, Congress imposed numerous 
cumbersome provisions requiring new steps and findings on CPSC 
rulemaking that had the effect of stalling and lengthening our 
rulemaking efforts.
    In the following 38 years, although we have promulgated a 
significant number of standards under the streamlined procedures in 
CPSIA (alas applicable only to a small subset of products we regulate), 
we have managed to eke out only 10 safety rules under these revised 
procedures--or about 1 every 3 \1/2\ years. What's of greater concern 
is that we have written only one safety rule using these procedures in 
the past 10 years.
    To be blunt, I have little doubt that lives have been lost and 
injuries incurred unnecessarily because of these delays in our 
rulemaking.
    I would love to report that these cumbersome provisions of CPSA 
have resulted in dramatically improved safety rules that justify the 
extra time and effort in drafting them. Frankly, I cannot do so. For 
the most part, the quality of safety standards has remained unchanged--
only the timeliness has changed. So, nothing would delight me more than 
to see Congress permit us to return to writing important safety rules 
under the time-honored, traditional provisions of the Administrative 
Procedure Act.
    While I'm discussing features of the Consumer Product Safety Act 
that I'd like to see reformed, I must also mention the onerous 
information disclosure restrictions under which the CPSC alone among 
all health and safety agencies in the Federal government must operate. 
I refer to the provisions of section 6(b) of the CPSA. Unlike any other 
health and safety agency, when the CPSC receives a request for 
information in its files under the Freedom of Information Act (FOIA), 
if a manufacturer's identity can be ascertained from the information in 
our files, we cannot simply respond with the information. Instead, we 
must first send the manufacturer the file for comments on the accuracy 
and fairness of releasing the information, process any comments the 
manufacturer submits, and determine whether or not to release this 
information in light of those comments. All of this done, I might add, 
with the looming prospect of being sued if the company doesn't like 
what we're about to disclose.
    On this point, I have heard the comment that the threat of 
litigation is not a serious concern because very few lawsuits to enjoin 
CPSC information disclosure have actually been filed and that companies 
prefer to negotiate more agreeable versions of press releases rather 
than go to court. I have two responses to this argument. First, saying 
that concerns about litigation are minor is akin to saying that 
countries should not worry about nuclear weapons since they are not 
used. The fact, however, is that the threat is sufficient to alter 
behavior. Second, I have little doubt that companies prefer to 
negotiate more agreeable versions of press releases. Therein lies the 
problem. What is more agreeable to a firm is likely to be a watered 
down version of a notice to the public of a serious safety hazard. 
Companies may be happy, but consumers end up at greater risk.
    Moreover, what's so frustrating about this process is that it 
applies to almost anything in our files even if we are simply a 
repository of the information--like a library. If, for example, we have 
obtained a simple list of 50 firms that make widgets and someone makes 
a FOIA request for the list, we must send out 50 different copies of 
the list with 49 names blanked out to each of the identified 
manufacturers and process each one's response to the list. No other 
agency in the government has to follow such time-consuming and costly 
procedures. Each year, we must spend hundreds of thousands of dollars 
and delay sometimes for months or longer the release of information 
because of 6(b).
    Let me be clear: I am not endorsing an approach in which the agency 
is free to disseminate inaccurate or unfair information willy-nilly. 
Any time CPSC initiates a disclosure of information that identifies a 
manufacturer, I think we ought to inform them of our intention to do so 
and permit them to point out any problems with this information 
disclosure. Other agencies have been doing this effectively for many 
decades without serious problems. What I object to is having the 
government play data nanny to information that the public desperately 
needs in order to protect itself.
    As a final point, I would like to share a concern I have about an 
often vulnerable group of which I am a proud member: senior citizens. 
Unfortunately, seniors do not necessarily get as much attention as they 
probably should. I say this because seniors are one of the fastest 
growing demographics in the country. Specifically--

   Roughly 40 million people in the U.S. are age 65 or older. 
        This number is projected to more than double to 89 million by 
        2050.

   By 2030, one in 5 people in the U.S. will be 65 or older.

   The U.S. currently contains more people age 65 and older 
        than the entire population of Canada.

   Today, the ``oldest old''--those 85 and older--have the 
        highest demographic growth rate in the country. This group now 
        represents 10 percent of the older population and will more 
        than triple in number by 2050.

    On the good news front, I can report that recent studies show that 
we're not only living longer, we're also living healthier. So, if we're 
to extend our lives as healthier adults, we also need to spend these 
years as safer ones. But, here the news is not so good. Although 
seniors currently make up about 13 percent of the population, we 
account for roughly 65 percent of consumer product-related deaths.
    Far and away the greatest product-related hazard for seniors is 
falls--comprising roughly 3/4 of the fatalities that we suffer. 
According to CDC, every 19 minutes a senior dies from a fall. Moreover, 
roughly one in four seniors in the U.S. reports falling each year. In 
fact, every year, 3 million people, including many seniors, go to an 
emergency room for injuries from falls, and 800,000 are hospitalized. 
And, for reasons that are unclear, CDC reports that fall fatalities 
have increased dramatically in recent years--up 31 percent from 2007-
2016.
    Another serious hazard to seniors is fires. Fires in homes 
constitute an extremely serious problem for seniors. CPSC staff report 
that almost 400,000 residential fires occur annually, resulting in 
roughly 2,400 deaths, 12,500 injuries, and over $7 billion in property 
loss. And, the U.S. Fire Administration estimates that adults age 75-84 
are nearly four times as likely to die in a home fire as the general 
population, while those over age 84 are nearly five times as likely to 
die.
    In addition to these concerns, I should mention that there are a 
whole host of consumer products that harm all users, but 
disproportionately injure and kill seniors. Here are some of the 
products that do so:

   Chairs, sofas, and sofa beds

   Power tools

   Gardening equipment

   Ladders

   Carpets and rugs

    With these statistics in mind, I urge you to consider measures that 
would help with the serious challenges that seniors face in the coming 
years as American ages.
    I look forward to working with my colleagues and the members of 
this Subcommittee as we focus on our mission to protect citizens from 
risks of unreasonable injury or death.
    Thank you for this opportunity to share my views.

    Senator Moran. Thank you, Commissioner.
    Commissioner Baiocco.

  STATEMENT OF HON. DANA BAIOCCO, COMMISSIONER, UNITED STATES 
               CONSUMER PRODUCT SAFETY COMMISSION

    Ms. Baiocco. Good morning, Chairman Moran.
    Senator Moran. Good morning.
    Ms. Baiocco. Thank you for inviting me to this hearing.
    I think it is a very big responsibility to discuss with all 
of you the performance of the agency and, indeed, a frank 
evaluation of the agency's performance is the first step to 
ensuring that the agency is operating effectively, given the 
complex and fast-paced issues in today's consumer product 
safety world.
    The agency can and must do more to facilitate its mission 
in this global economy. First, we must enhance the agency as a 
whole to better serve the consumer. To do this, the Commission 
must commit immediately to three investments that will make the 
agency more nimble and effective. One is improved equipment. 
Two, additional and specialized personnel to revamp the 
agency's technology, data capabilities, and hazard 
identification systems. So, Chairman Moran, your proposed bill 
with Senator Blumenthal is a welcome piece of legislation. And 
third, we need a more robust plan for testing and evaluating 
emerging technologies and the products in general.
    Given the speed with which products enter the market, the 
ease with which they get directly into consumers' homes, and 
the complexity of the global supply chain, which includes 
products that do not comply with our safety rules and 
standards, real action must be taken to keep this agency 
relevant. We must transition the CPSC into a forward-looking 
agency rather than a reactive one.
    To illustrate, there is a great demand right now for the 
production of more sustainable products. To the extent that 
``sustainable'' includes recycled or reusable products, the 
agency must ensure that this demand does not indirectly undo 
safety advancements that the agency has worked long and hard to 
achieve. The agency should be studying now and not reacting 
later to such pitfalls.
    Second, the agency must be purposeful in its regulatory 
activities. Rulemaking, of course, is the key to the CPSC's 
charge, but the agency must do a better job with this 
authority. When the agency promulgates a safety rule, it should 
do so swiftly and decisively, have a sound legal basis and 
scientific reason to do so. It serves no purpose to force a 
rule that does not solve or at least adequately address the 
hazard. All agency actions must be credible, rationally related 
to the hazard before it and consistent with the rule of law. 
The commission should not support any process that merely meets 
an arbitrary and capricious standard.
    Third, the CPSC should be the gold standard in engineering, 
testing, and problem solving. Our engineers must be more 
solution-oriented and empowered to solve problems 
affirmatively. Our compliance team should accept and capitalize 
on opportunities where industry is willing to share sound 
testing results and road maps for successful programs that the 
CPSC does not yet have. An ``us versus them'' mentality will 
impede good engineering solutions and interfere with strong 
stakeholder relationships.
    Since joining the CPSC, I have worked on some individual 
initiatives designed to contribute to the agency's mission. For 
example, I have pushed for and the agency now has a mobile-
friendly recall app. This simple, inexpensive initiative is 
just one way the agency is closing the gap between the way it 
works and the way today's consumer operates. Communication is a 
major key to success.
    My office is also committed to working with the e-commerce 
community to develop better ways of patrolling the varying 
platforms of noncompliant goods. I have opened discussions with 
several e-commerce hosts about direct recall notice, data 
sharing, and ways to better liaise with experts who are 
studying consumer behavior that the agency may benefit from.
    Another initiative focuses on counterfeit products. My 
research has revealed that knock-offs and other brand copy-cat 
products make up a deep pool of noncompliant goods that pose 
real safety risks. The agency's import surveillance team, small 
as they may be, are working extremely hard and quite 
effectively to stop the inflow of these noncompliant products. 
The individuals working daily at our nation's ports have 
developed an excellent and critical relationship with their 
U.S. Customs and Border Protection colleagues to accomplish a 
lot on this front. The agency should allocate more resources to 
these efforts so that they may expand on that good work.
    My goal as a commissioner is to ensure that the CPSC is 
employing the best practices in all that we do. It has been a 
challenging and rewarding opportunity to serve the American 
public as a commissioner, and I appreciate this opportunity to 
testify and to discuss, going forward, how the agency can 
achieve its mission.
    On a personal note, I would like to join Chairman Moran and 
my colleagues in thanking and congratulating Ann Marie Buerkle 
on her contributions to the CPSC. She is a committed and 
dedicated public servant and has served all of us with 
distinction. Her greatest accomplishment, however, has been the 
respect and admiration she has received from every staff member 
at the CPSC. Ann Marie, congratulations.
    [The prepared statement of Ms. Baiocco follows:]

        Prepared Statement of Hon. Dana Baiocco, Commissioner, 
            United States Consumer Product Safety Commission
    Good morning, Chairman Moran, Ranking Member Blumenthal, and 
Members of the Senate Subcommittee on Manufacturing, Trade, and 
Consumer Protection. Thank you for inviting me to this hearing and for 
providing all of the CPSC Commissioners with the opportunity to appear 
before you today. It is a great responsibility to discuss the status of 
the Agency. A frank evaluation of the Agency's performance is the first 
step to ensuring that the Agency is operating as effectively as 
possible given the complex and fast-paced issues in today's consumer 
product safety world.
    The Agency can and must do more to facilitate its mission in this 
global economy. First, we must enhance the Agency as a whole to better 
serve the American consumer. To do this, the Commission must commit 
immediately to three investments that will make the Agency more 
efficient, nimble, and effective: (1) improved equipment; (2) 
additional and specialized personnel to revamp the Agency's technology, 
data capabilities, and hazard identification systems; and (3) a more 
robust plan for testing and evaluating emerging technologies and 
products in general.
    Given the speed with which new products enter the market, the ease 
with which they get directly into consumers' homes, and the complexity 
of the global supply chain, which includes products that do not comply 
with our safety rules and standards, real action must be taken to keep 
the Agency relevant. We must transition the CPSC into a forward looking 
Agency rather than a reactive one.
    To illustrate, there is a great demand for the production of more 
``sustainable'' products. To the extent that ``sustainable'' includes 
recycled or reusable products, the Agency must ensure that this demand 
does not indirectly undo safety advancements that the Agency has worked 
long and hard to achieve. The Agency should be studying now, and not 
reacting later, to any such potential pitfalls.
    Second, the Agency must be purposeful in its regulatory activities. 
Rulemaking, of course, is a key part of the CPSC's charge but, the 
Agency must do a better job with this authority. When the Agency 
promulgates a safety rule, it should do it swiftly and decisively, and 
have a legally sound and scientific reason to do so. It serves no 
purpose to force a rule that does not solve, or at least effectively 
address, the hazard. All Agency actions must be credible, rationally 
related to the hazard before it, and consistent with the rule of law. 
The Commission should not support any process that merely meets an 
``arbitrary and capricious'' standard.
    Third, the CPSC should be the gold standard in engineering, 
testing, and problem solving. Our engineers must be more solution-
oriented, and empowered to solve product hazards affirmatively. Our 
compliance team should accept and capitalize on opportunities where 
industry is willing to share sound testing results and roadmaps for 
successful programs that the Agency does not yet have. An ``us versus 
them'' mentality will impede good engineering solutions and interfere 
with strong stakeholder relationships.
    Since joining the CPSC, I have worked on some individual 
initiatives designed to contribute to the Agency's mission. For 
example, I have pushed for, and the Agency now has, a mobile-friendly 
recall app. This simple, inexpensive initiative is just one way the 
Agency is closing the gap between the way it works and the way today's 
consumer operates.
    My office is also committed to working with the e-commerce 
community to develop better ways of patrolling the varying platforms 
for non-compliant goods. I have opened discussions with several e-
commerce hosts about direct recall notice, data-sharing, and ways to 
better liaise with experts, who are studying consumer behavior so that 
the Agency may benefit from this information pool.
    Another initiative focuses on counterfeit products. My research has 
revealed that ``knock-off,'' and other brand copy-cat products make up 
a deep pool of non-compliant goods that pose real safety implications. 
The Agency's import surveillance team, small as they may be, are 
working extremely hard, and quite effectively, to stop the inflow of 
these non-compliant products. The individuals working daily at our 
Nation's ports have developed excellent and critical relationships with 
their Custom and Border Protection colleagues to accomplish a lot on 
this front. The Agency should allocate more resources to these efforts 
so that they may expand that good work.
    My goal as a Commissioner is to ensure that the CPSC is employing 
best practices in all that we do. I recommend that the Commission 
conduct an in-depth, internal review of the Agency's staff directives 
and procedures to identify and enhance areas that need improvement. 
That review, in my opinion, is essential to the integrity and core 
functioning of the Agency.
    It has been a challenging and rewarding opportunity to serve the 
American public as a CPSC Commissioner. Thank you for this opportunity 
to testify before you and for your good work on this Subcommittee. I 
look forward to answering your questions today and, I am always 
available to discuss in more detail my comments regarding the Consumer 
Product Safety Commission in general and my perspectives, goals, and 
ideas for fulfilling the Agency's mission.

    Senator Moran. Thank you, Commissioner.
    Commissioner Feldman.

STATEMENT OF HON. PETER A. FELDMAN, COMMISSIONER, UNITED STATES 
               CONSUMER PRODUCT SAFETY COMMISSION

    Mr. Feldman. Thank you and good morning.
    I want to begin my remarks this morning by thanking 
Chairman Moran, Ranking Member Blumenthal, and the members of 
the Subcommittee for providing me this opportunity to appear 
before you today.
    I also want to thank the dedicated career staff at CPSC who 
are the lifeblood of our agency and who are at the front lines 
of our efforts to protect American consumers.
    It has been a great privilege to serve under the leadership 
of Acting Chairman Buerkle as a commissioner on CPSC since my 
confirmation last October. I want to echo the sentiments 
expressed here today. Ann Marie has a long career of public 
service that extends far beyond her work at the Commission, 
including her work as a nurse, an assistant attorney general, a 
Member of Congress, and above all, an advocate for American 
children and families. It has been a pleasure to work with her 
over the years, and she will certainly be missed by everybody 
at the agency.
    I am relatively new to CPSC and previously served as Senior 
Counsel under Chairman Thune on the Senate Commerce Committee. 
So in that respect, it is good to be back.
    As a Senate staffer, I worked directly with many of you on 
oversight matters, including oversight of CPSC. And therefore, 
I understand the important function that hearings like this 
serve. I also come to the agency with a deep understanding of 
the congressional intent behind the statutes governing the 
agency, its duties, and its limitations under the law.
    I am pleased to see some new faces behind the dais. Senate 
Commerce is a special committee with broad legislative 
jurisdiction and stewardship over our Federal independent 
agencies like CPSC that are charged with protecting consumers 
and advancing American prosperity through trade, innovation, 
and a vibrant manufacturing sector. I look forward to working 
with all of you going forward, and I hope I can be a resource 
to you and your staff.
    When I last testified before the House Energy and Commerce 
Committee, I was asked an important question. Is CPSC 
fulfilling its mission? My overall view is that the Commission 
is doing many things well. There are areas in which we are 
making progress, but there are also others where we could be 
doing more to protect the American consumers from dangerous 
products.
    As a Commissioner, my priority is to advance the agency's 
safety mission through inclusiveness and compromise. In the 
short time I have been at the agency, I am most proud of the 
opportunities that I have had to collaborate with my fellow 
commissioners on bipartisan solutions. These include bipartisan 
support to increase the agency's transparency in the form of an 
open meeting to discuss the agency's budget request, the first 
such meeting in recent memory and a tradition that I hope we 
will continue. Along with Commissioner Baiocco, we have 
advanced a number of amendments with bipartisan support, 
including efforts to strengthen the agency's data collection 
expertise, prioritize enforcement of the Child Nicotine 
Poisoning Prevention Act, and accelerate a mandatory standard 
to protect children from furniture tip-overs. More work is 
needed, but I am encouraged by this forward progress.
    During my confirmation hearing in June of last year, I laid 
out a number of priorities to this committee that I felt would 
achieve the Commission's goal of protecting consumers from 
unreasonable risks of dangers associated with consumer 
products. These include modernizing the Commission's data 
collection and processing capabilities to identify emerging 
hazards and to support the agency's enforcement, standards, and 
regulatory work. I testified that the Commission must rethink 
its market surveillance capabilities, especially with respect 
to e-commerce and new and emerging distribution models. As a 
general matter, CPSC must advance safety through engagement 
with safety groups and the regulated community with 
transparency and clarity about its expectations.
    These remain critical priorities and necessary to advance 
CPSC's mission, and our work here does remain ongoing. To 
further the goal of modernizing the Commission, I am excited 
that CPSC is leading the creation of an interagency working 
group, along with our sister agencies, FCC, FTC, FDA, DOT, 
NIST, and others to tackle issues pertaining to the Internet of 
Things and connected devices. The agency also took recent steps 
to identify unobligated agency funds to create an IoT research 
lab at our National Product Safety Testing Center in Rockville, 
Maryland. While this process is still in its early stages, it 
is an exciting development, and I see it as a necessary 
development and investment in the agency's knowledge and 
understanding of the new technologies that are increasingly 
integrated in the products that consumers demand.
    More can be done to close the agency's skills gap with 
respect to emerging technologies in consumer products. I am 
pleased that the agency voted, for example, to accept our 
proposal to hire a Chief Data Officer, but more work remains to 
ensure that the position is funded and implemented 
appropriately. I believe that the Commission should explore the 
creation of a Chief Technologist to expand staff expertise, as 
many of our sister agencies have done successfully.
    To further the goal of transparency, I maintain an open 
door and encourage all stakeholders to share their concerns 
with me. This invitation applies cross the board to consumer 
groups, trade groups, legislators, companies, and individual 
consumers.
    I have urged staff to work to implement the new regulations 
that we are working on expeditiously. I will continue to do so.
    But in closing, I look forward to our efforts to keep 
American consumers safe through bipartisan and collaborative 
solutions.
    Thank you again, Mr. Chairman, for the opportunity to 
appear before you today.
    [The prepared statement of Mr. Feldman follows:]

      Prepared Statement of Hon. Peter A. Feldman, Commissioner, 
            United States Consumer Product Safety Commission
    Good morning. I want to begin my remarks by thanking Chairman 
Moran, Ranking Member Blumenthal, and the members of the Subcommittee 
on Manufacturing, Trade, and Consumer Protection for providing me this 
opportunity to appear before you today.
    It has been a great privilege to serve, under the leadership of 
Acting Chairman Buerkle, as a Commissioner of the United States 
Consumer Product Safety Commission (CPSC) since my confirmation last 
October. I am relatively new to the agency and previously served as 
senior counsel to Chairman John Thune on the Senate Committee on 
Commerce, Science, and Transportation. It's good to be back.
    As a Senate staffer, I worked directly with many of you on CPSC 
oversight matters and therefore understand the important function that 
hearings like this serve. I also come to the agency with a deep 
understanding of the congressional intent behind the statutes governing 
the agency, its duties, and its limits under the law.
    I am pleased to see new members behind the dais. Senate Commerce is 
a special committee with broad legislative jurisdiction and stewardship 
over the independent Federal agencies like CPSC that are charged with 
protecting consumers and advancing American prosperity through trade, 
innovation, and a vibrant manufacturing sector. I look forward to 
working with you going forward and hope I can be a resource to you and 
your staff.
    When I last testified before the House Energy and Commerce 
Committee, I was asked an important question. Is the Consumer Product 
Safety Commission fulfilling its mission? My overall view is that the 
Commission is doing many things well. There that there are areas in 
which we are making progress, but there are also others in which we 
could be doing more to protect American consumers from dangerous 
products.
    As a Commissioner, my priority is to advance the agency's safety 
mission through inclusiveness and compromise. In the short time I've 
been at the agency, I am most proud of the opportunities I have had to 
collaborate with my fellow commissioners on bipartisan solutions. These 
include bipartisan support to increase agency transparency in the form 
of an open meeting to approve the agency's budget request, the first 
such meeting in recent memory, and a tradition I hope we will continue. 
Along with Commissioner Baiocco, we have advanced a number of 
amendments with bipartisan support, including efforts to strengthen the 
agency's data science expertise, prioritize enforcement of the Child 
Nicotine Poisoning Prevention Act, and accelerate a mandatory standard 
to protect children from furniture tip overs. More work is needed, but 
I am encouraged by this forward progress.
    During my confirmation hearing in June of last year, I laid out a 
number of priorities to this Committee that I felt would achieve the 
Commission's goals of protecting American consumers from unreasonable 
risk of danger. These include modernizing the Commission's data 
collection and processing capabilities to identify emerging hazards and 
to support the agency's enforcement, standards, and regulatory work. I 
testified that the Commission must rethink its market surveillance 
capabilities, especially with respect to e-commerce and new and 
emerging distribution models. As a general matter, the CPSC must 
advance safety through engagement with safety groups and the regulated 
community with transparency and clarity about its expectations.
    These remain critical priorities necessary to advance CPSC's 
mission, and our work remains ongoing. To further the goal of 
modernizing the Commission, I am excited that the agency is leading the 
creation of an interagency working group, along with the FCC, FTC, FDA, 
DOT and NIST, to tackle issues pertaining to the Internet of Things and 
connected devices. The agency also recently took steps to identify 
unobligated agency funds to create an IoT research lab at our National 
Product Testing and Evaluation Center in Rockville, MD. While this 
process is ongoing, it is a step in the right direction. I see this as 
a necessary investment in the agency's knowledge and understanding of 
emerging technologies integrated into the products that consumers 
increasingly demand.
    More can be done to close the agency's skill gap with respect to 
new and emerging technologies in consumer products. While I am pleased 
that the agency voted to accept our proposal to hire a Chief Data 
Officer, more work remains to ensure the position is funded and 
implemented appropriately. I also believe the Commission should explore 
the creation of a Chief Technologist to expand staff expertise, as many 
of our sister agencies have done.
    To further the goal of agency transparency, I maintain an open door 
and encourage all stakeholders to share their concerns with me. This 
invitation applies to consumer groups, trade groups, legislators, 
companies, and individual consumers. I have also worked to stress the 
importance of the Commission's independent Inspector General and to 
highlight the numerous, important recommendations that remain 
outstanding. I have urged staff and the Commission to work to implement 
these expeditiously and will continue to do so.
    In closing, I look forward to continuing our efforts to keep 
American consumers safe through a bipartisan, collaborative and 
forward-looking agency. Thank you again, Mr. Chairman, for holding this 
important hearing and for your work to protect consumers. I look 
forward to this important discussion and responding to members' 
questions.
                                 ______
                                 
                               ADDENDUM 1

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                               ADDENDUM 2

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    Senator Moran. Commissioner Feldman, welcome back to the 
Commerce Committee.
    Now Commissioner Kaye.

 STATEMENT OF HON. ELLIOT F. KAYE, COMMISSIONER, UNITED STATES 
               CONSUMER PRODUCT SAFETY COMMISSION

    Mr. Kaye. Good morning, Chairman Moran, Ranking Member 
Blumenthal, Senator Udall. Thank you for holding this critical 
oversight hearing of the United States Consumer Product Safety 
Commission.
    As my colleagues have said, the CPSC is a tiny agency 
compared with our sister Federal health and safety agencies. 
Accordingly, we run a lean operation and provide an excellent 
return on investment.
    When the CPSC is at our best, we are using our limited 
resources and our full authorities as a Federal regulatory 
agency to drive both voluntary and mandatory standards 
development to make consumers safer.
    When the CPSC is at its best, we are leading the charge to 
end persistent hazards such as furniture tipping over and 
killing young children, infants suffocating in unsafe sleep 
environments, and toddlers strangling on dangerous window 
covering cords.
    When the CPSC is at our best, we are promptly trying to 
recall dangerous products. We are using our litigation 
authority when necessary. We are assessing and pursuing civil 
penalties, as appropriate, to deter bad actors.
    When the CPSC is at our best, we are anticipating safety 
problems with emerging technological innovations.
    I believe that the CPSC and our outstanding staff can do 
all these things. I have seen them do it, and whether you have 
seen it too, we are all safer because of the CPSC staff.
    But even at our best, we still need help. For that, we 
desperately need additional authorities and adequate funding.
    While this is not an exhaustive list, we need revisions to 
our statutes to eliminate unnecessary hurdles to developing 
mandatory safety standards. We need enhanced authorities to get 
dangerous products recalled and off the market quickly. We need 
additional authorities so we can assess fines at our ports to 
prevent violative and defective products from reaching the 
stream of commerce. And we need the anti-consumer safety, anti-
transparency requirements of section 6(b) of the CPSA to be 
eliminated so we can provide the public with vital product 
safety information in a timely manner. As I stated during our 
House oversight hearing earlier this year, people die because 
of section 6(b). It is that simple.
    We also desperately need more resources. I know this is not 
an appropriations hearing, but our current budget of $127 
million is just not enough. It is truly amazing to me how 
under-funded consumer product safety actually is.
    With Congress' support for additional authorities, adequate 
funding, and continued robust oversight, we can stay true to 
our safety mission.
    Before closing, I do want to commend CPSC Acting Chairman 
Ann Marie Buerkle for her years of dedicated service to the 
American people. She has spent her entire life in service to 
others. While we differ greatly on policy and government 
philosophy, we have always agreed on the importance of 
representing the agency and its great staff with civility. I 
look forward to continuing to work with her in the months to 
come and continuing to call her a lifelong friend.
    Thank you again for the invitation to speak to you about 
the CPSC and the lifesaving work undertaken by our staff. I 
look forward to answering any questions you may have.
    [The prepared statement of Mr. Kaye follows:]

          Prepared Statement of Elliot F. Kaye, Commissioner, 
            United States Consumer Product Safety Commission
    Good morning, Chairman Moran, Ranking Member Blumenthal and Members 
of the Subcommittee. Thank you for holding this critical oversight 
hearing and for inviting us to speak about the important work of the 
United States Consumer Product Safety Commission (CPSC or Commission). 
I am pleased to be here with my friends and colleagues: Acting Chairman 
Buerkle and Commissioners Adler, Baiocco and Feldman.
    Today, we are representing the work of approximately 550 dedicated 
CPSC career staff. I am truly honored to work with them and my fellow 
Commissioners in furtherance of the CPSC's mission of saving lives and 
protecting the public from unreasonable risks of harm associated with 
consumer products.
    The CPSC is tiny compared to our sister Federal health and safety 
agencies, such as the U.S. Food and Drug Administration or the National 
Highway Traffic Safety Administration. Our budget has hovered around 
$127 million the past few years. Accordingly, we run a lean operation 
and provide an excellent return on investment considering our 
increasingly complex global economy with billions of consumer products 
entering commerce each year.
    Every day our actions affect the lives of all Americans, whether 
they realize it or not. From a child sleeping in her crib, to the toys 
that she plays with, to the smoke and carbon monoxide alarms that warn 
her parents of imminent danger, to the child- resistant packaging that 
keeps her from getting into poisonous medicines and household cleaners, 
we take very seriously our jurisdiction and its accompanying 
responsibility to keep consumers safe.
    When the CPSC is at our best, we are using our limited resources 
and our full authorities as a Federal regulatory agency to drive both 
voluntary and mandatory standards development to make consumer products 
safer. We are funding innovative safety research, writing effective 
testing protocols and driving much safer product designs to market.
    When the CPSC is at its best, we are leading the charge to end 
persistent hazards such as furniture tipping over and killing young 
children, infants suffocating in unsafe sleep environments and toddlers 
strangling on dangerous window covering cords. To that end, I have 
published a statement that outlines the steps necessary to end ten of 
the most persistent consumer product safety hazards that continue to 
take lives and devastate families.\1\
---------------------------------------------------------------------------
    \1\ See my statement on persistent hazards at: https://
www.cpsc.gov/s3fs-public/Commissioner
%20Kaye%20Consumer%20Product%20Safety%20Persistent%20Hazards%20Paper%20%
20April%
202019%20%28Final%29_0.pdf?BB56H79uwkQ6dDVAa4bjSlfmIlJkOio.
---------------------------------------------------------------------------
    When the CPSC is at its best, we are addressing hazards associated 
with exposures to classes of toxic chemicals in toys, art supplies, 
kitchenware, playgrounds, clothing, furniture and household 
cleaners.\2\
---------------------------------------------------------------------------
    \2\ For one example of the importance of the CPSC's work on chronic 
hazards, see my statement on organohalogen fire retardants: https://
www.cpsc.gov/s3fs-public/Commissioner_Kaye_State
ment_on_Organohaloen_Fire_Retardants_Petition_9.20.17.pdf?caGuQ1LWIZyZBw
qIgZwED0EpF
IDVtCjQ.
---------------------------------------------------------------------------
    When the CPSC is at our best, we also are concurrently using our 
enforcement authorities aggressively and appropriately to robustly 
enforce our existing laws and regulations and to keep unsafe products 
out of the marketplace. We are promptly seeking recalls for dangerous 
products, with comprehensive and consumer-friendly recalls and 
corrective action plans.\3\ We are using our litigation authority when 
necessary. We are assessing and pursuing civil penalties as appropriate 
to deter bad actors from selling recalled goods and failing to report 
to us as required under Section 15(b) of the Consumer Product Safety 
Act (CPSA). And, we are creating a level playing field and an 
environment where good actors can thrive. We do this by enforcing 
safety-oriented standards and working to remove from the market the 
products of those few bad actors who do not have safety in mind.
---------------------------------------------------------------------------
    \3\ See my statement on the six basic principles of consumer-
friendly recalls at: https://www.cpsc.gov/about-cpsc/commissioner/
elliot-f-kaye/statements/statement-of-commissioner-elliot-f-kaye-on-
consumer.
---------------------------------------------------------------------------
    When the CPSC is at our best, we are prioritizing our presence at 
the ports and are working with our partner agencies both domestically 
and internationally to stop violative or unsafe products from entering 
the stream of commerce.
    When the CPSC is at our best, we are anticipating safety problems 
with emerging technological innovations. We are able to keep pace with 
the global expansion of the Internet of Things and to stay ahead of the 
potential effects on consumer safety from all aspects of the market for 
networked products.\4\ We are dedicating resources to research and 
understand high-energy density battery technology to prevent batteries 
from combusting and harming people and their property. We are keeping 
abreast of and promoting safety in fast-moving tech trends, such as 
electronic rideshare scooters.
---------------------------------------------------------------------------
    \4\ See my paper setting forth a framework for safety across the 
Internet of Things at: https://cpsc.gov/s3fs-public/
A_Framework_for_Safety_Across_the_Internet_of_Things_1-31-2019_0.pdf?1
KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.
---------------------------------------------------------------------------
    When the CPSC is at its best, we give careful thought to special, 
vulnerable populations, such as children and senior citizens.
    I believe that the CPSC and our outstanding staff can do all of 
these things. I have seen them do it, and whether you all have seen it 
too, we are all safer because of the CPSC staff.
    But even at our best, we still need help. Even our best is 
sometimes not good enough to prevent some deaths and injuries. For 
that, we desperately need additional authorities and adequate funding.
    While this is not an exhaustive list, we need revisions to our 
statutes to eliminate unnecessary hurdles to developing mandatory 
safety standards. We need enhanced authorities to get dangerous 
products recalled and off the market quickly. We need additional 
authorities so we can assess fines at our ports to prevent violative 
and defective products from reaching the stream of commerce. And, we 
need the anti-consumer safety and anti-transparency requirements of 
Section 6(b) of the CPSA to be eliminated so we can provide the public 
with vital product safety information in a timely manner. As I stated 
earlier this year during our hearing before the U.S. House of 
Representatives Committee on Energy and Commerce, people die because of 
Section 6(b). It is that simple.
    We also desperately need more resources. When Congress last 
reauthorized our agency in 2008, it voted overwhelmingly to 
incrementally increase our funding levels annually, authorizing our 
budget at approximately $136 million for Fiscal Year 2014. We have yet 
to be funded at that level despite our budget justifications.
    I know this is not an appropriations hearing, but our current 
budget of $127 million is just not enough. At every budget cycle, we 
cut important and meaningful projects that could ultimately save lives 
and decrease the pain and suffering of millions of American families 
because there is just not enough money to do everything that needs to 
be done.\5\
---------------------------------------------------------------------------
    \5\ See my statement and amendment to the CPSC's FY 2020 Budget 
Request to Congress: https://cpsc.gov/about-cpsc/commissioner/elliot-f-
kaye/statements/Statement-of-Commissioner-Elliot-F-Kaye-on-the-Fiscal-
Year-2020-Performance-Budget-Request-to-Congress.
---------------------------------------------------------------------------
    We lack funding for anything more than the most basic research and 
demonstration projects. We lack funding for adequate coverage of 
dangerous products coming into the country through our ports. We lack 
funding to adequately monitor online sales channels. We lack funding to 
maintain our data infrastructure so it operates smoothly and securely 
well into the future. We lack funding for timely fulfillment of FOIA 
requests. We lack funding to recruit and to retain talented 
investigators, enforcement officers, engineers, scientists, economists, 
communication specialists, lawyers and support staff.
    It's truly amazing to me how underfunded consumer product safety 
actually is. It's kind of sad, really. It is also totally unnecessary.
    With Congress' support for additional authorities, adequate funding 
and continued robust oversight, we can stay true to our safety mission.
    Thank you, again, for the invitation to speak to you about the CPSC 
and the life-saving work undertaken by our staff. I look forward to 
answering questions you may have.

    Senator Moran. Commissioner, thank you.
    We have been joined by the Ranking Member. I am going to 
ask him if he has an opening statement to present, and then we 
will go to questions and answers.
    Senator Blumenthal.

             STATEMENT OF HON. RICHARD BLUMENTHAL, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Blumenthal. Thank you, Chairman Moran, and thank 
you for your understanding and my absence due to a Judiciary 
Committee meeting with votes on judicial nominees. And I am 
very pleased to be here and thank the Commissioners for being 
here as well, and thanks for the opportunity to give this 
opening statement.
    As a number of you have remarked, the CPSC is, indeed, a 
small agency with a small budget, but enormous 
responsibilities. And I agree completely that that budget 
deserves more support. It literally can make a difference 
between life and death for countless of our citizens and 
particularly our children.
    I am deeply concerned about inaction and mishandling of 
complaints that I have seen on a number of product safety 
issues, especially involving the deaths of infants. In my view, 
the CPSC may be making a habit of sitting on evidence of 
dangerous and deadly products and taking action only after 
there is widespread media coverage and ensuing public outrage. 
I will give you an example.
    Only thanks to Consumer Reports and the journalists there 
did the public learn of the Fisher-Price Rock and Play dangers 
and the 32 babies that have died since the product was first 
introduced in 2009. The Consumer Products Report revealed 
nothing that was not already known to this agency. They knew 
about the product killing babies. They had all the data on 
these deaths. And during this hearing, I would like to know why 
the CPSC, in effect, remained inert and inactive, did nothing 
on these data for so long. Kids In Danger, a national nonprofit 
dedicated to protecting children, released a report earlier 
this year that found the number of recalls has reached a record 
low since it first started tracking this data in 2001.
    So I worry about the products that are out there right now 
that the public has no knowledge of and pose dangers to 
children and others. What would normally be called a recall, 
which is a term the public well understands, are now being 
replaced with euphemisms like an information campaign. That 
term is confusing to the public who do not understand all of 
the meaning of those terms of art, even though they may have 
meaning to the CPSC.
    And so that is what has happened in the case of the 
defective BOB jogging strollers. They have resulted in reports 
of babies being flipped over, bashing their teeth on curbs, and 
bleeding from injury.
    Too often the CPSC now settles for inadequate voluntary 
standards that do nothing to protect consumers. And these 
voluntary standards are crafted with gigantic loopholes. They 
benefit the industry. They are based on unsubstantiated data.
    Another example. The new voluntary standard for window 
coverings creates a confusing dichotomy in which stock window 
coverings must meet standards that protect children from the 
risk of strangulation, but custom window coverings do not have 
to meet that standard. So the industry claims that it covers 80 
percent of the market. I am skeptical about the market data 
supporting it.
    What we see time and time again is that, in fact, the 
industry is driving the standards, the conversation, the 
debate, and in effect, setting those standards. And they will 
cut corners and go the cheapest route, leaving consumers 
vulnerable.
    And that is why when it comes to protecting our most 
vulnerable in setting agreements for infant sleep products, I 
believe that they should be consistent with the longstanding 
recommendation by medical experts and pediatricians that babies 
should only sleep on firm, flat surfaces with no extra bedding. 
I introduced the Safe Sleep Act of 2019 that would ban the 
sale, manufacture, and import of infant inclined sleep products 
that may pose dangers.
    And finally, I am concerned with the CPSC giving 
manufacturers and retailers a free pass, cutting back on civil 
penalties and setting them too low to create a meaningful 
deterrent threat. Last year, under Acting Chair Buerkle, the 
CPSC issued only three civil penalty settlements, down from six 
in 2016 and 2017.
    In short, consumers trust the CPSC to do its job, which is 
to keep dangerous products off the market. They believe that a 
product will not be sold online or store shelves if it is not 
safe. If the CPSC fails in its responsibility, consumers are 
betrayed.
    I look forward to making sure that the CPSC remains a 
strong watchdog for all Americans, especially our youngest and 
most vulnerable. Thank you.
    Senator Moran. Ranking Member, thank you very much.
    I will remind folks we have votes beginning at 11:30. I am 
going to hold myself and every member to the 5-minute rule.
    And I am interested in both specific kind of consumer 
issues, but I also think that we sometimes fail, in the quest 
of pursuing the things that we are most interested in, to look 
at the broader picture about the structure of the agency. So I 
am happy to have that conversation during this question and 
answer period.
    I want to start with one for you, Chairman Buerkle, that I 
have had conversations, since coming to the Senate, about 
fireworks. The Fourth of July is around the corner. I have been 
interested in the rulemaking efforts, the standard 
determination, the so-called ``ear test'' that has been 
controversial and inconsistent in its application. And so I 
would just want to give you the opportunity to update me and 
the Committee on the agency's activities with respect to 
fireworks.
    Ms. Buerkle. Thank you, Senator Moran.
    Yes, the fireworks NPR is still up before the Commission, 
and unfortunately, we do not have consensus among the five 
Commissioners as to how to proceed. And so the choices would be 
to bring it up and perhaps have it be defeated. I think there 
is some feeling among the Commissioners that does not address 
safety issues, that some of the issues in it--the platform, 
yes, but other aspects of the proposed rule do not.
    And I think the issue for industry is the uncertainty as to 
how we are going to proceed. I have talked about this with many 
Members of the Senate and the concern with regard to the 
uncertainty about a way forward. We can bring it up. Possibly 
it would be defeated, but then there would be certainty that 
nothing new will be happening until we perhaps propose another 
NPR, another rule, that would allow us to maybe robustly 
address the safety hazards.
    Senator Moran. So is that decision pending as to whether to 
bring it up?
    Ms. Buerkle. Yes. We can bring it up. We can bring it up at 
any time, and the Commission could have a decision, a public 
meeting to discuss it. But the concern I have heard from some 
of my colleagues is that it really does not affect safety and 
so why promulgate the rule.
    Senator Moran. It has interested me. Just since yesterday, 
I have had two Senators reach out to me about this topic. 
Interest in this has grown.
    And the failure to bring up and pass or defeat that 
proposal--what is the status of the regulation of the industry 
today?
    Ms. Buerkle. Today the proposed rule is just that. It is a 
proposed rule. It has not been finalized, so the status quo 
remains.
    Senator Moran. Chairman Buerkle, let me ask a follow-up 
question unrelated to this topic but to you. I understand that 
you requested that the CPSC's Office of Inspector General 
investigate the facts surrounding the unauthorized disclosure 
of information from the Commission's National Injury 
Information Clearinghouse. While that investigation remains 
ongoing, will you please explain what steps the Commission has 
taken to identify and correct issues that led to this 
disclosure, including any consultation with outside experts and 
law enforcement?
    Ms. Buerkle. Thank you, Senator Moran, for this opportunity 
to talk about an issue that really the agency has taken very, 
very seriously.
    What we currently are referring to is an inadvertent 
disclosure. Unfortunately, some of the safeguards--a second 
pair of eyes was not laid on and reviewed the outgoing 
information. That has been changed. Ever since we became aware 
of this issue, it goes through our FOIA Office where there is a 
higher level of scrutiny. There were also some changes in 
personnel at the time that the disclosure began, as well as a 
change in software. I think all of those contributing factors 
resulted in this very unfortunate situation.
    The agency has made it a priority to get to the bottom of 
it, and, yes, the IG is doing a very thorough investigation. We 
look forward to his findings and a determination as to whether 
or not we need to proceed and perhaps refer it elsewhere for 
some criminal activity.
    Senator Moran. Will you confirm to me that you will keep me 
and this subcommittee informed of the developments?
    Ms. Buerkle. Absolutely. I have made it clear to staff that 
I am available at any time to come up here and brief in person 
or to have conversations. But it certainly is something that I 
am committed to and I would be more than happy to do that.
    Senator Moran. Thank you very much.
    Commissioner Baiocco, at the Commission's recent midyear 
meeting, you introduced a measure to enlist support from other 
Federal agencies, including the FBI and the DOJ, to assist with 
a response and investigation into the unauthorized disclosure. 
Why do you feel that outside help is necessary?
    Ms. Baiocco. The CPSC is in over its head on this type of 
situation. As we have all talked earlier, we are a small agency 
with limited resources. We are still trying to get our arms 
around our own data. This was a large disclosure that I am not 
convinced was inadvertent. The little bit of information I have 
been able to look at I have not been able to link the 
information that went out the door with requests for the 
information. So I wanted that to be looked into a little bit 
more. And I did not believe that the agency, A, had enough 
time, B, had enough experience, or C, had a staff that had 
expertise in this area.
    Senator Moran. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for bringing up this issue of wanting to have a broader 
discussion, as well as focused-in discussion. And I would just 
point out that I think when the Commission comes before the 
Committee, even though I certainly believe in a very robust 
subcommittee level--anytime the Commission comes before this 
Committee, it should come before the whole committee.
    These are issues of mammoth importance to consumers, and we 
need to make sure they are getting the attention of an 
opportunity of everybody on this committee to participate, not 
that people could not show up if they are not on the 
Subcommittee. But this is about the bright light of day, and we 
want to make sure that that is known at least from our 
perspective.
    To the BOB stroller issue, we requested documents further 
explaining why the Commission did not recall the stroller. And 
in the information we received back, the Commission knew of 
almost 200 incidents related to the stroller, including some 
serious injuries because of the front wheel detachments.
    We have also learned that in late September, the CPSC's 
Office of Compliance staff did a presentation listing a litany 
of injures that could occur as a result of the defective 
stroller and stated that the Commission should push for a 
recall. So we know the rest of the history that that did not 
happen.
    So I want to get to the Commission--you know, I am all for 
the latest and greatest technologies. I am all for consumers 
having more information. But there is a difference between 
pushing and pulling and how you get information out to people 
and when you need to do a recall.
    So, Commissioner Kaye, do you think this information 
campaign remedy was a good enough protection for consumers? 
What else should we have been doing?
    Mr. Kaye. Thank you, Senator.
    No, I did not. I put out a statement with my colleague, 
Commissioner Adler, at the time explaining our concerns to the 
point you are making that consumers were not being given a full 
remedy. They were not being given the kind of information that 
they needed.
    I thought an excellent proof of why this was such a failure 
and that we had recognized ahead of time it would be a failure 
was reported by the Washington Post when one of the retailers 
that was required to receive notice under the agreement had 
been sent an e-mail by the company, apparently looked at it, 
and decided since it did not have the word ``recall'' in it, it 
was not worth doing anything about. And that was exactly what 
we were concerned about: people were going to push this to the 
side. And I just did not think if safety was truly the 
company's priority, that this was an action indicative of 
trying to protect its own customers.
    Senator Cantwell. Commissioner Adler, did you want to add 
anything to that?
    Mr. Adler. I concur completely with Commissioner Kaye. The 
idea of calling something that is truly a recall that has 
corrective action aspects to it an education campaign and 
hiding deeply within the information that was sent to consumers 
is what we called aggressively misleading. And it was very 
unfortunate, and I am sure it is one of the reasons that this 
recall is turning out to be less successful.
    One of the other concerns that we had was these are 
products that were on the market for roughly 18 years, but the 
recall, as disguised as it was, only addressed about 6 years. 
So why two-thirds of the products were left----
    Senator Cantwell. Well, this is why that challenge is if 
you are not clear and you are not precise and you do not get 
the information out to the consumer by saying that it is that 
serious, then it is very problematic. I am not saying that 
there are not ways to increase communication, but we should be 
very clear about what the rule is.
    So what happened in May 2018, the Commission released a 
vague alert about the deaths involved in the sleeper products 
for infants. There were 32 deaths related to that. Can you tell 
us what went wrong? Are there other defect products that you 
are aware of that the Commission is not notifying the public 
on?
    Mr. Adler. Well, I would take a first address at that. And 
part of the problem, honestly, is section 6(b). We cannot just 
simply say we have got this number of deaths associated with 
the product. We have to consult with the company. We have to 
make a determination, if the company is resistant, that the 
public health and safety advance an immediate notice.
    So part of it was that. I think part of it was--and I blame 
myself in part for this. There was not as much of the 
recognition of this growing problem. And I really want to 
commend Commissioner Kaye for being a strong voice about 
pursuing the issue. And if it had not been for him, I do not 
think I would have paid as much attention. So I give him a lot 
of credit for that.
    Senator Cantwell. Commissioner.
    Mr. Kaye. Sure. Thank you, Senator. I am happy to answer 
that as well.
    I think, frankly, we failed the American public on this 
one. I would say by early 2017, a critical mass of deaths had 
come to our attention. Yes, it is true that 6(b) certainly was 
a factor in us not reporting, but I think we could have even 
done a lot then despite the constraints of the law.
    Senator Cantwell. Thank you.
    Thank you, Mr. Chairman.
    Senator Moran. You are welcome.
    Senator Capito.

            STATEMENT OF HON. SHELLEY MOORE CAPITO, 
                U.S. SENATOR FROM WEST VIRGINIA

    Senator Capito. Thank you, Mr. Chairman.
    And thank all of you for serving and for the testimony here 
today.
    Chairman Buerkle, I would like to ask again about the 
recent data breach. Can you explain how the agency has worked? 
I mean, I know you have explained this before the Committee, 
but if you could explain one more time how the agency has 
worked to resolve this, and specifically who did the CPSC 
contact following the breach? Have you consulted and worked 
with other agencies throughout this process? And have you been 
able to determine if the entities who received unauthorized 
data have taken appropriate steps to destroy that?
    Ms. Buerkle. Thank you, Senator Capito.
    The disclosure issue, as I was recounting to Senator Moran, 
has been taken with the utmost seriousness by the agency.
    The Executive Director and her staff prioritized and did 
various stages as to how they were going to handle this. The 
immediate concern was stopping any more breaches, which they 
did immediately, and they changed the process. So now any 
requests go through the FOIA Office, which has the expertise 
needed. It will be reviewed by lawyers.
    The Department of Justice was contacted almost immediately 
because we were concerned about our remedies in clawing back 
the information that had been disclosed. And I am very pleased 
to say of the 36 entities that information was disclosed to, 30 
have certified destruction of that information, and one large 
disclosure is pending. That certification is pending. So we 
have gotten back much of the information that was disclosed 
inadvertently.
    I want to emphasize something about the Inspector General 
and his investigation. That is not the CPSC. There is some 
confusion that that is CPSC doing their own investigation. The 
Inspector General is doing an independent investigation apart 
from any of the CPSC staff. It is delving into this issue. I 
believe he has the expertise at this point to complete his 
investigation to make sure and to be able to tell us what are 
the appropriate next steps or whether it was truly inadvertent. 
But to call in someone else--it is not that I am opposed to 
that. I think right now, the Inspector General has to do what 
he does best, and that is a thorough investigation.
    Thank you.
    Senator Capito. Thank you.
    I have a question. We have a rural state, and I am always 
carping about in this committee and others about our lack of 
broadband connectivity, but a lot of us have this issue in our 
states.
    As you are looking at recalls and product warnings, how do 
you meet that challenge of an elderly population, people buying 
used products a lot or trading products for other things, and 
the lack of connectivity? Are you relying on that? So I will 
just kind of open it up to the panel. And, Mr. Feldman, do you 
have a comment on that?
    Mr. Feldman. I appreciate the question, and I understand 
the concern that you are raising.
    We know that direct notice recalls are the most effective 
recall, where a manufacturer or a retailer is able to reach the 
consumer directly and provide information about a health and 
safety notice----
    Senator Capito. Through however method, letter, whatever.
    Mr. Feldman.--through letters, through e-mails.
    But I understand how the connectivity issue in a rural 
state complicates that. We have been taking a look at 
additional technologies like blockchain to improve the 
traceability of products through the supply chain from 
manufacturer to retail to secondary market. That is probably 
somewhat a ways off but would offer a huge benefit with respect 
to traceability and the ability to figure out exactly who has a 
product at any given time to be able to effect that direct 
notice. But in the meantime, it remains a challenge relying on 
traditional modes of communication.
    Senator Capito. Does anybody else have a comment?
    Ms. Buerkle. If I could. We have an Office of 
Communications, and for instance, one of the things we just 
did--Senator Moran, you raised the issue of drowning. I spent 
half of a day doing interviews that will reach millions of 
people across the country, both radio and television. We do 
organized campaigns to get the word out because, to your point, 
not everyone has connected or has connectivity. And so we must 
rely on more traditional ways of getting information out.
    Senator Capito. Did you want to speak to that?
    Ms. Baiocco. I did. Thank you, Senator Capito.
    I am actually from the Ohio Valley. I was born in West 
Virginia, grew up right across the river in Yorkville. So I am 
very familiar with the area.
    And I think that you raise a couple very good points on the 
secondary sales, the resales. I mean, that is the neighborhood 
that we are from.
    Senator Capito. Right.
    Ms. Baiocco. So I think having the recall--everybody works 
on their phone now. Even my mother has a phone and an iPad and 
so forth. So getting a recall app together where the CPSC can 
actually ding somebody who has the information and say, hey, 
this has been recalled I think is very important. But that 
needs to be expanded.
    I would also like to see the CPSC have a full complement or 
department, if you will, of people who--you know, whether it is 
the old-fashioned way, pick up the phone and call Mary's resale 
shop in Wheeling and say, hey, do you have this product and it 
has been recalled. I mean, I do think we could use a small army 
of people who are reaching out in as many ways as possible 
because now we are in a situation where we have different types 
of markets. We have different types of resale, third party 
platforms, and so forth. They run the gamut. So I would like to 
see us put a little bit more effort into that.
    Senator Moran. Thank you.
    Senator Blumenthal.
    Senator Capito. Thank you.
    Senator Blumenthal. Thank you, Mr. Chairman.
    Chairman Buerkle, was the CPSC aware of the infant 
fatalities involving the Fisher-Price Rock 'n Play product 
before Consumer Reports published its data?
    Ms. Buerkle. Absolutely, sir. A report or a story certainly 
is not what generates a recall at the CPSC. It is an issue the 
agency has been working on. We were aware of deaths since 2009. 
They began to pick up 2011. So this actually occurred somewhat 
before my time as Chairman.
    However, we immediately, with the Executive Director and 
her office in Compliance, worked very diligently once this 
issue became, as someone mentioned, the critical mass where it 
came to the point where we needed to do something.
    We put out a generic warning at that time to begin to 
address this issue and to hopefully get the parties to the 
table that we were serious about addressing the hazards with 
inclined sleepers.
    Senator Blumenthal. Is there any Commissioner who was not 
aware of these deaths? And why did you not warn earlier?
    Ms. Buerkle. Well, there was----
    Senator Blumenthal. What is a critical mass of infant 
deaths?
    Ms. Buerkle. The issue was complex because of the 
mitigating factors, if there was an unsafe sleep environment, 
as you are raising with your Safe Sleep Act, pillows, blankets 
in the crib. Some of the babies were compromised, but it was 
identifying what the hazard was. And when we did--it is a 
multi-pronged process, and I do think that we are headed in the 
same direction as your Safe Sleep Act.
    Senator Blumenthal. Did section 6(b) prevent the CPSC from 
acting sooner?
    Ms. Buerkle. I do not believe so. I think that we took 
immediate action once it got to the point where it did. And it 
is a multi-pronged approach. We will be terminating the 
proposed rule that exists right now for inclined sleepers. I 
hope my colleagues will join me in getting that rule terminated 
immediately so we can turn it around and begin rulemaking on 
the product that will address the hazard that you are speaking 
of.
    Senator Blumenthal. With regard to the Safe Sleep Act, when 
it comes to establishing standards for infant sleep products, 
can you commit that you will support standards that are 
consistent with the best practices agreed on by consumer 
advocates and experts?
    Ms. Buerkle. Yes. I have had conversations with both Nancy 
Cowles and others in the safety community, and I know exactly 
their feelings and their beliefs of how they should be 
addressed. And I believe we are headed in that direction.
    Senator Blumenthal. Do you not agree that the public is 
better informed when you use the word ``recall'' rather than 
``information campaign''? They have no idea what an information 
campaign is, especially when products are sold secondhand on 
the Internet.
    Ms. Buerkle. I think that you are absolutely correct. A 
recall is certainly clearer than an information campaign. 
However, our recalls--mostly all of our recalls are voluntary. 
And so whenever we put out a press release, it has to be the 
parties have agreed to this press release and the language in 
it.
    In the Britax situation, the decision was made we need to 
get this information out, and rather than suing it and be in 
prolonged litigation as we had been in other cases, the magnets 
case in particular, where the consumer ends up with no remedy--
--
    Senator Blumenthal. But the lawsuit itself is a warning to 
consumers. Correct? It is a public act in effect saying this 
product is unsafe.
    Ms. Buerkle. But it is not clear. It certainly raises the 
issue, but it is not clear to the consumer what their remedy is 
and a lawsuit does not provide any remedy to the consumer.
    Senator Blumenthal. It eventually can provide remedies, but 
the lawsuit itself sends a signal. When you allege as the CPSC 
that a product is unsafe, that is much more informative and 
dramatic to consumers than saying that this company has an 
information campaign. Would you not agree?
    Ms. Buerkle. I agree except for the concern of the agency 
is to get unsafe products out of the marketplace. In the 
magnets case, that case was sued, and for six and a half years, 
we had no remedy for the consumer and the product exists in the 
marketplace to this day. And so the concern with Britax or any 
other product where we have identified an issue with it, how we 
can get that out of the market quickest and away from the 
consumer to avoid any additional injuries or incidents is 
really the goal.
    Senator Blumenthal. I have a great many other questions, 
which I am going to put in writing for a written response.
    Ms. Buerkle. Thank you, Senator.
    Senator Blumenthal. But let me just finish with one 
question.
    Three years have passed since the CPSC, in coordination 
with the EPA and the CDC, said it was going to study crumb 
rubber. When will that study be done?
    Ms. Buerkle. I can only speak for our agency, and we are 
moving along. What we were charged to do with playgrounds, the 
study is done, and we will be getting a report.
    And if I could just make a pitch at this point to our 
budget because what you are addressing is a chronic hazard. We 
generally address acute hazards. We have talked today about 
emerging hazards, and another issue that we have are chronic 
hazards. We need additional funding. We would take on the crumb 
rubber issue, but we need to have the funding to be able to do 
so.
    Senator Blumenthal. Are you saying that another agency is 
delaying it, not yourself?
    Ms. Buerkle. So it was a joint project with CDC, EPA, and 
CPSC, and the CPSC has completed our very small part of it, 
what we were charged to do.
    Senator Blumenthal. Thank you.
    Ms. Buerkle. Thank you, Senator.
    Senator Moran. I do not think the vote has been called, but 
we have about 10 minutes for the rest of the four members of 
the Committee who are here. So Senator Markey is next. I do not 
know what that will do on how this story ends.
    [Laughter.]

               STATEMENT OF HON. EDWARD MARKEY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman.
    The enforcement decisions that this Commission has made 
over the last few years, particularly as they relate to 
children's products, gravely concerns me. Instead of issuing 
recalls to protect the public, CPSC has increasingly relied on 
voluntary settlement agreements, and it has not even tracked 
whether the companies that have entered into these settlement 
agreements are adhering to them. Instead of levying civil 
penalties against bad actors, CPSC has been turning a blind eye 
to their wrongdoing. And instead of finalizing mandatory safety 
standards, CPSC has continued to kick the can down the road, 
allowing products like dangerously inclined infant newborn 
sleepers to proliferate.
    Today Senator Blumenthal and I have asked the GAO to look 
into these and other enforcement-related issues.
    Chairwoman Buerkle, since 2012, the CPSC has been aware of 
spontaneous crashes caused by the popular BOB jogging stroller 
made by Britax, crashes resulting in broken bones, torn 
ligaments, and smashed teeth. After months of investigating, 
the CPSC staff recommended the stroller be recalled. And in 
2018, the Commissioners voted in support of that recall with 
you, Chairwoman Buerkle, being the lone dissenter.
    After the CPSC shifted to a Republican majority, the 
Commission drastically changed its position. Instead of a 
recall, it decided on a voluntary settlement agreement with the 
stroller company, which centered on a one-year public safety 
campaign.
    We are now almost halfway through the year. What evidence, 
Madam Chair, do you have that this information campaign has 
adequately addressed the hazard?
    Ms. Buerkle. Sir, if I could, I would just like to correct 
the record. It was not a recall that I voted against. It was a 
lawsuit because the company refused to do a recall. And the 
recalls that we do at CPSC, for the most part, are voluntary. 
We reach an agreement with the company to get that product, as 
quickly as we can, out of the consumers' hands to avoid any 
additional injuries or deaths. So it was a lawsuit that I voted 
against.
    And again, as I recounted to Senator Blumenthal, the 
interest that I have is keeping the consumers safe, and the way 
we keep the consumers safe is to get the products out of the 
market and then to provide an adequate remedy to them. And 
having only sued one other case since I have been at the agency 
and no remedy has been given to the consumer----
    Senator Markey. Do you think the information campaign is 
working, or does more need to be done?
    Ms. Buerkle. That was only part of the settlement 
agreement. There were other components to it. One was to make 
other changes to the stroller and replace the bolts. I would 
say that the settlement is in the process of continuing to work 
out. They have agreed to give us monthly reports. So we will 
know how effective it has been.
    Senator Markey. Let me go to you, Commissioner Kaye. Are 
you concerned that not addressing this defect will mean the 
proliferation of other similarly designed and problematic 
jogging strollers will be out on the market?
    Mr. Kaye. Thankfully, Senator Markey, we have not seen 
that.
    But I do think that, to your earlier question, that as 
anticipated by Commissioner Adler and me, that this education 
campaign would be a total debacle. I think that that has played 
out, and I think consumers have been very poorly served by it. 
And I have seen zero evidence that what has been done to date 
has been even remotely effective.
    Senator Markey. In September 2018, the Children's Product 
Team in the Division of Defect Investigations was eliminated. 
This would be the team responsible for studying the alleged 
defects in the jogging strollers and inclined sleepers that 
killed over 30 newborns.
    Chairman Buerkle, why was this team of children's experts 
abolished?
    Ms. Buerkle. Senator Markey, the compliance organization 
was long overdue for a reorganization. The people who do any 
testing or determination as to whether or not there is a 
substantial product hazard--many of those are under EXHR, 
Hazard Identification. We are not part of this reorganization. 
But our compliance director felt that he needed stronger people 
in charge of these various defect and regulated organizations 
within his compliance department.
    Senator Markey. Mr. Chairman, can I just ask Commissioner 
Kaye? Did you agree with the decision to eliminate this team of 
experts?
    Mr. Kaye. Well, ultimately the decision was made by the 
chair, and this is under the purview of the Chair. And if I 
could quickly answer, I would say that I was less concerned 
about the change in the name of the organization that people 
were working under and how they were organized, and far more 
concerned about the change in culture, Senator Markey, with 
compliance of how the deference to industry became the driving 
factor of their work.
    Senator Markey. And that is what you think now 
characterizes the area where these experts on children's issues 
now resides?
    Mr. Kaye. I think they are still doing their same work. 
They are just doing it under a different name. But I do think 
the culture of the agency has changed in my experience from one 
that was driven hard to try to take these products off the 
market to making sure that industry was not upset with whatever 
is being done.
    Senator Moran. Senator Udall.
    Senator Markey. Thank you.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you, Mr. Chairman.
    And, Chairman Buerkle, your agency plays a significant role 
in each of our daily lives. I appreciate the hard work of the 
agency staff to make sure that the products we use are safe, 
particularly products used by children or products that can be 
misused by children. Making sure our children are safe must be 
a top priority for the CPSC.
    Unfortunately, in my view current leadership of the agency 
has failed to live up to its statutory obligations to safeguard 
our children from harm. These failures sadly will cost 
children's lives and wellbeing.
    Commissioner Feldman, I am concerned that as of May 31, 
there have already been 1,722 incidents of exposure to 
electronic cigarettes or liquid nicotine reported to poison 
control centers. That is over 340 calls per month compared to 
an average of 263 monthly calls last year. Those figures are 
frightening.
    As you know, liquid nicotine is highly toxic when ingested 
or absorbed through the skin. During your time working for this 
committee, you worked to develop the Child Nicotine Poisoning 
Prevention Act, which gives CPSC the authority to enforce 
requirements for child-resistant packaging and flow restrictors 
on liquid nicotine.
    To what extent is the Commission fully enforcing this law? 
In your view, is the agency doing enough to protect children 
from e-cigarettes?
    Mr. Feldman. Senator Udall, thank you for the question.
    I did have an opportunity to work on that legislation as a 
Senate staffer and enjoyed the opportunity to work with you and 
your office to advance what I see as an important bill to 
address the issue of unintentional poisoning from e-liquid, 
liquid nicotine bottles. The statute includes important 
safeguards to include child-resistant packaging. It also 
unambiguously requires that these bottles include flow 
restrictors.
    Since joining the agency, I have made enforcement of the 
Child Nicotine Poisoning Prevention Act a priority, and I am 
delighted to see that the agency has moved forward with a more 
aggressive enforcement posture. Clearly more work needs to be 
done, but this is something that I am going to continue to pay 
attention to and I hope that we continue to maintain an open 
dialogue as we move forward.
    Senator Udall. Thank you.
    The flame retardants, the OFRs, have a well documented 
association with significant adverse health effects on 
children. I would like to ask the Commissioners a ``yes or no'' 
question. Do you support the CPSC moving forward to develop a 
proposed rule to ban this chemical class in children's 
products, upholstered furniture, mattresses, and electronics 
casings? Why don't we not start with you?
    Ms. Buerkle. Thank you, Senator Udall.
    We just recently received a report back from NAS. They will 
be briefing the Commissioners on July 24 regarding their 
findings. But they have made it clear to us that we cannot 
examine this class of chemicals as a class. We need to break it 
down into subclasses. And it would be a million dollars per 
subclass. And establishing a priority for that, as well as the 
funding for that is the challenge for the agency. I think that 
there certainly is a stomach to do that at the agency because 
of your point, and whether or not these OFRs can pose a chronic 
hazard with the exposure to the consumer. But it is a funding 
issue, and I would respectfully request again--and Senator 
Moran, I know you are on our Appropriations Committee----
    Senator Moran. Thank you for that reminder.
    [Laughter.]
    Ms. Buerkle.--your assistance.
    Senator Udall. Good. You are requesting him right now. That 
is what I want to see, ask him for the money to do it. And I am 
on Appropriations. I will support him in his efforts to get you 
the money to do that.
    So yours is a yes. You are willing to move forward.
    Ms. Buerkle. We are willing to move forward and look at it 
with the proper funding.
    Senator Udall. Yes?
    Mr. Adler. Thank you very much, Senator Udall.
    Senator Udall. I have just one minute left.
    Mr. Adler. My answer is a resounding yes, and I fully share 
the Chairman's concern that NAS has told us it is going to be 
about $6 million to fund this. That is not money the agency has 
immediately available. So we desperately need funding to do 
this. This is a critically important safety issue and we should 
move forward.
    Senator Udall. Yes?
    Ms. Baiocco. Senator Udall, I also agree that we should 
move forward with the study.
    Senator Udall. Yes?
    Mr. Feldman. Yes.
    Mr. Kaye. Yes, consistent with the law.
    Senator Udall. Thank you very much.
    And I have got additional questions for the record. I hope 
you will answer them promptly.
    Senator Moran. Senator Rosen.

                STATEMENT OF HON. JACKY ROSEN, 
                    U.S. SENATOR FROM NEVADA

    Senator Rosen. I am going to be really quick and just ask 
part of my question so I can get it in.
    So last year, the CPSC held their first public hearing on 
potential safety issues and hazards associated with the 
Internet-connected consumer products. The Internet of Things, 
or IoT, has opened doors to innovative opportunities in the 
consumer product sectors. We have smart appliances, voice 
assistance. Our companies are on a mission to make our lives 
easier through these devices. But they also generate new risks 
to product safety. Hacks and vulnerabilities have happened in 
security system cameras, baby monitors, cardiac devices, just 
to name a few. So your agency, tasked with ensuring product 
safety, would mean safety and security, cybersecurity.
    So, Mr. Kaye, I am going to ask this to you. The Commission 
stated in last year's IoT Federal Register announcement, we do 
not consider personal data security and privacy issues that may 
be related to IoT devices to be consumer product hazards that 
the CPSC would address.
    So my one quick question is, what is your view of your 
jurisdiction over these? Is it just physical threats or does it 
include privacy and cybersecurity as well?
    Mr. Kaye. Thank you, Senator Rosen.
    So I will answer quickly that I cannot speak for the full 
commission. I can only speak for myself. We put out a paper--
and I am happy to have it sent to your office--from my office 
providing steps forward that the agency can and should take, 
and we do address the jurisdictional issues. While we do not 
have jurisdiction over a privacy violation, the root hack or 
the root vulnerability we do have jurisdiction over if it 
creates similar safety issues. And so we believe that what 
would end up happening is you would have a hack, you would have 
a safety issue, you would have a privacy issue. FTC would have 
to take the lead on the privacy issue. We would take a lead on 
the safety issue and solve the problem.
    Senator Rosen. Perfect. Thank you.
    Since we have votes, we will submit all the rest of the 
questions and other responses for the record. Thank you.
    Senator Moran. Thank you for your cooperation, Senator.
    The hearing record will remain open for two weeks. During 
that time, Senators are asked to submit any questions for the 
record. I assume there will be many. Upon receipt, the 
witnesses are requested to submit their written answers to the 
Committee as soon as possible.
    This concludes the hearing, and we thank the witnesses for 
joining us.
    [Whereupon, at 11:45 a.m., the hearing was adjourned.]

                            A P P E N D I X

                                        BreathableBaby, LLC
                                                      June 13, 2019

Hon. Jan Schakowsky,
Chairwoman,
Subcommittee on Consumer Protection and Commerce,
Committee on Energy and Commerce,
Washington, DC.
Hon. Cathy McMorris Rodgers,
Ranking Member,
Subcommittee on Consumer Protection and Commerce,
Committee on Energy and Commerce,
Washington, DC.

Dear Chairwoman Schakowsky and Ranking Member McMorris Rodgers:

    On behalf of BreathableBaby, LLC, I am submitting this letter as a 
statement for the record for the hearing ``Keeping Kids and Consumers 
Safe from Dangerous Products.''
    One of the bills the Subcommittee is considering at this 
legislative hearing, the Safe Cribs Act of 2019, would prohibit the 
manufacture, sale, distribution or importation of crib bumpers in the 
United States. In so doing, the bill explicitly includes mesh liners in 
the definition of a crib bumper. While I support the proposed ban on 
crib bumpers given the safety risks they pose, I respectfully submit 
that mesh liners are a very different and safe alternative to crib 
bumpers and should not be included in this legislation.
    A ban on mesh liners would be unprecedented. I am unaware of any 
product that has ever been prohibited under section 19(a)(1) of the 
Consumer Product Safety Act (CPSA) without any evidence of risk to 
consumers. Furthermore, it would be similarly unprecedented to ban such 
a product for failing to affirmatively prove its safety in the absence 
of that negative evidence.
    For nearly 20 years, BreathableBaby has been manufacturing mesh 
liners for cribs to protect infants from limb entrapment. Our product 
provides protection from the safety hazards and injuries posed by limb 
entrapment, such as dislocations and fractures. Furthermore, our mesh 
liners also provide a much needed degree of relief to sleep deprived 
parents who rush to their infants' rooms in the middle of the night--
often multiple times--because their child is screaming from being 
entrapped in the crib slats.
    BreathableBaby has sold over 4.5 million mesh liners. Throughout 
the nearly 20 years that BreathableBaby has sold its mesh liners, there 
has not been a single report or incident that our product--or any 
similar mesh liner product--was the cause of any injury or posed any 
risk. The company's track record is impeccable. As a result, millions 
of parents have turned to our mesh liners as a safe and reliable 
alternative to crib bumpers.
    Unlike mesh liners, crib bumpers are typically filled with a padded 
polyester type material up to 2-inch thick that can restrict breathing 
and contribute to death or injury due to suffocation if an infant were 
to be wedged between a mattress or other object in the crib and the 
crib bumper. Mesh liners pose no such danger to babies. Because mesh 
liners have no padding and are highly permeable, infants can still 
easily breathe even if their faces were to be pushed up against our 
mesh liner.
    The evidence, or lack thereof, is straightforward:

  1)  A forensic analysis of the four major U.S. Consumer Product 
        Safety Commission hazard monitoring databases (National 
        Electronic Injury Surveillance System (NEISS), Injury and 
        Potential Injury Incidents (IPII), In-Depth Investigation 
        (INDP) and the Death Certificates File (DTHS) by Econometrica, 
        a Washington DC based data analytics firm concluded:

      a.  With respect to limb entrapment data, the forensic analysis 
            supports the contention that there is a safety need for 
            products that prevent limb entrapments. The analysis of the 
            2009-2015 IPII database records shows that more than half 
            of all injury incidents that consumers reported to CPSC 
            (288 of 544, or 53 percent) associated with cribs involved 
            arm or leg entrapments.\1\
---------------------------------------------------------------------------
    \1\ Mesh Crib Liner Hazard Analysis; An Analysis of CPSC Incident 
Data, Econometrica (April 2016).

      b.  The NEISS data also confirms that mesh crib liners provide a 
            safety benefit by reducing the rate of limb entrapments in 
            crib slats or rails. Limb entrapments associated with cribs 
            account for an estimated 280 emergency department treated 
            injuries annually. The two largest categories of these 
            injuries were fractures and dislocations.\2\
---------------------------------------------------------------------------
    \2\ Id.

      c.  Based on this analysis of all of the CPSC incidents reports 
            since 2009, the study concluded that mesh crib liners 
            appear to provide a potentially substantial safety benefit 
            in the form of reduced numbers of limb entrapment injuries 
            without posing a potential suffocation risk. \3\
---------------------------------------------------------------------------
    \3\ Id.

  2)  Testing conducted by Bureau Veritas of the air permeability of 10 
        traditional crib bumpers and BreathableBaby's four mesh crib 
        liners utilizing ASTM D-737 (Standard Test Method for Air 
---------------------------------------------------------------------------
        Permeability of Textile Fabrics) confirmed the following:

      a.  BreathableBaby's mesh crib liner products tested between a 
            range of 384.6 to 1013.1 CFM (cubic feet per meter) of 
            airflow. On average, BreathableBaby's four crib liner 
            products were over ten times as permeable to air as the ten 
            traditional crib bumpers that were also tested.\4\
---------------------------------------------------------------------------
    \4\ Air Permeability Testing of Crib Bumpers and Mesh Crib Liners, 
Bureau Veritas (April 2016).

      b.  BreathableBaby's most permeable mesh liner was 46 times more 
            permeable to air than the least permeable traditional crib 
            bumper and was over 14 times more permeable to air than the 
            most permeable traditional crib bumper tested.\5\
---------------------------------------------------------------------------
    \5\ Id.

  3)  An independent research study on the suffocation hazards of mesh 
---------------------------------------------------------------------------
        liners by a leading pediatric pulmonary researcher concluded:

      a.  ``the combination of laboratory and epidemiologic data make a 
            compelling argument for the safety of the BreathableBaby 
            products. These mesh crib liners do not appear to present a 
            significant restriction to infant breathing airflows, and 
            there is no reason to believe that they would increase the 
            risk of suffocation hazards for infants.'' \6\
---------------------------------------------------------------------------
    \6\ Medical and Scientific Perspective On Safety Of BreathableBaby 
Mesh Crib Liners, Michael S. Schecter, MD, MPH, Professor and Chief, 
Division of Pulmonary Medicine, Department of Pediatrics at Children's 
Hospital of Richmond and Virginia Commonwealth University (August 
2016).

  4)  To date, every State that has banned the sale of crib bumpers or 
        has proposed legislation to ban the sale of crib bumpers, has 
        explicitly excluded mesh liners from such a ban or potential 
        ban. These States include Maryland, Ohio, New York, Vermont and 
---------------------------------------------------------------------------
        Missouri.

  5)  Parents want a solution to prevent limb entrapment. A 2015 survey 
        of over 1,000 mothers across the U.S. confirmed that 74.4% used 
        padded crib bumpers or mesh liners, and over 50% of these 
        mothers reported that they used them to prevent arms/legs from 
        getting stuck between slats. If mesh liners were to be included 
        in the ban, there is a high likelihood of unintended 
        consequences and risk to infant safety as parents look to 
        provide makeshift solutions.\7\
---------------------------------------------------------------------------
    \7\ Crib Bumper and Mesh Crib Liner Attitudes and Usage Study, 
BreathableBaby (September 2015).

  6)  BreathableBaby has sold over 4.5 million mesh liners since 2002 
        to satisfied parents without a single incident of injury or 
---------------------------------------------------------------------------
        death.

    Given the complete lack of any evidence that mesh liners pose any 
risk to infants, and given the clear safety benefits of preventing limb 
entrapment, I respectfully submit that including mesh liners in a ban 
on crib bumpers would be counterproductive and could needlessly expose 
infants to harm. This position is also supported by Dr. Jonathan 
Midgett, the Senior Science Advisor to CPSC Commissioner and Former 
Chairman Elliot Kaye, who recently published a paper stating, in part:

        ``Actively prohibiting the use of crib bumpers without some 
        alternative may cause some consumers experiencing repeated limb 
        entrapments to resort to makeshift bumpers such as using rolled 
        up blankets, pillows or other cushions. But, if the Commission 
        were to regulate bumpers in such a manner that allowed for mesh 
        liners or other designs with high levels of airflow, as was 
        done in Maryland and Chicago, the market would retain a product 
        that prevents limb entrapments.'' \8\
---------------------------------------------------------------------------
    \8\ Cluttered Cribs and Infant Safety: Policy Implications of 
Selling and Using Padded Crib Bumpers and Messaging about Safe Sleep 
Environments for Babies, Dr. Jonathan Midgett (September 2016).

    Thank you again for your consideration of this statement for the 
record. I stand ready to provide any further information to Members of 
the subcommittee as may be helpful as they deliberate on this bill.
            Sincerely,
                                           Jennifer Loesch,
                                           Chief Executive Officer,
                                                   BreathableBaby, LLC.
                                 ______
                                 
                      Electronic Privacy Information Center
                                      Washington, DC, June 19, 2019

Hon. Jerry Moran, Chairman,
Hon. Richard Blumenthal, Ranking Member,
U.S. Senate Committee on Commerce, Science, and Transportation,
Subcommittee on Manufacturing, Trade, and Consumer Protection,
Washington, DC.

Dear Chairman Moran and Ranking Member Blumenthal:

    We write to you regarding the oversight hearing for the Consumer 
Product Safety Commission.\1\ We write to call your attention to the 
ongoing failure of the CPSC to address the growing risk to privacy and 
security of Internet-connected devices. The unregulated collection of 
personal data and the growth of the Internet of Things (``IoT'')\2\ has 
led to staggering increases in identity theft, security breaches, and 
new cybersecurity threats. The CPSC should regulate Internet-connected 
devices. Privacy and security are integral to consumer safety.
---------------------------------------------------------------------------
    \1\ Oversight of the Consumer Product Safety Commission, 116th 
Cong. (2019), S. Comm. on Commerce, Sci. & Trans., Subcomm. on 
Manufacturing, Trade, and Consumer Protection, https://
www.commerce.senate.gov/public/index.cfm/2019/6/oversight-of-the-
consumer-product-safety-commission (Jun. 20, 2019).
    \2\ EPIC, Internet of Things (IoT), https://epic.org/privacy/
internet/iot/.
---------------------------------------------------------------------------
    EPIC is a public interest research center established in 1994 to 
focus public attention on emerging privacy and civil liberties 
issues.\3\ EPIC is a leading advocate for consumer privacy, and has led 
the effort to establish the authority of the Federal Trade Commission 
(``FTC'') to safeguard consumer privacy and more recently to explore 
the impact of the Internet of Things.\4\ EPIC also urged the Consumer 
Product Safety Commission (``CPSC'') to address the hazards of weak 
privacy and security in IoT products.\5\
---------------------------------------------------------------------------
    \3\ See EPIC, About EPIC, https://epic.org/epic/about.html.
    \4\ EPIC Comments to the Federal Trade Comm'n, On the Privacy and 
Security Implications of the Internet of Things (June 1, 2013), https:/
/epic.org/privacy/ftc/EPIC-FTC-IoT-Cmts.pdf.
    \5\ Sunny Kang, EPIC International Consumer Counsel, The Internet 
of Things and Consumer Product Hazards, Testimony, CPSC (May 16, 2018), 
https://www.youtube.com/watch?v=-YSDEkWuxUo&feature=youtu.be.
---------------------------------------------------------------------------
    Today, the IoT network is the weak link in consumer products. IoT 
devices track personal data generated by consumers' activities and 
lifestyles. IoT devices pose significant privacy concerns that could 
threaten physical danger.
    EPIC brought the Google Home Mini complaint\6\ to the CPSC 
precisely because the design defect of the consumer device created a 
specific risk to consumers. The Acting Chairman of the CPSC responded 
to EPIC, stating that ``CPSC's authority will not generally extend to 
situations solely related to consumer privacy or data security, that do 
not pose a risk of physical injury or illness, or property damage.'' 
\7\
---------------------------------------------------------------------------
    \6\ Coalition Letter to U.S. Consumer Product Safety Comm. On 
Google Home Mini (Oct. 13, 2017), https://epic.org/privacy/consumer/
Letter-to-CPSC-re-Google-Mini-Oct-2017.pdf.
    \7\ CPSC Acting Chairman Ann Marie Buerkle, Response to EPIC and 
Consumer Privacy Organizations (March 23, 2018), https://epic.org/CPSC-
response-GoogleHomeMini-3.23.18.pdf.
---------------------------------------------------------------------------
    The CPSC response reflects a profound lack of understanding about 
the IoT and the new threats facing consumers. As renowned security 
expert Bruce Schneier has said: ``The Internet is dangerous--and the 
IoT gives it not just eyes and ears, but also hands and feet. Security 
vulnerabilities, exploits, and attacks that once affected only bits and 
bytes now affect flesh and blood.'' \8\
---------------------------------------------------------------------------
    \8\ Bruce Schneier, IoT Cybersecurity: What's Plan B?, Schneier on 
Security (Oct. 18, 2017), https://www.schneier.com/blog/archives/2017/
10/iot_cybersecuri.html.
---------------------------------------------------------------------------
    Hackers, criminals, and foreign adversaries exploit IoT 
vulnerabilities to launch network attacks that cause millions of 
dollars in damage and have devastating impacts on real people.\9\ 
Hackers could conceivably exploit vulnerabilities on ``smart'' 
refrigerator to carry out a denial of service attack against the 
network of a city or hospital. In the past few months alone there have 
been several such attacks. A ransomware attack known as SamSam took 
down the entire municipality of Farmington, New Mexico and two 
hospitals by exploiting vulnerabilities in IoT devices.\10\ The City of 
Atlanta spent 2.6 million dollars to recover from a ransomware attack 
that impacted municipal functions including the Police Department and 
the judicial system.\11\ It would defy reason to say that unsecured IoT 
devices do not harm consumers.
---------------------------------------------------------------------------
    \9\ Bruce Schneier, Click Here to Kill Everyone, N.Y. Magazine 
(Jan. 27, 2017), http://nymag.com/selectall/2017/01/the-internet-of-
things-dangerous-future-bruce-schneier.html (describing an attack that 
used millions of DVRs and other insecure IoT devices to take down 
Twitter, Netflix, Reddit, and other sites down from the internet).
    \10\ Bill Siwicki, 71 percent of IoT medical device ransomware 
infections caused by user practice issues, Healthcare IT News (March 5, 
2018), http://www.healthcareitnews.com/news/71-iot-medical-device-
ransomware-infections-caused-user-practice-issues.
    \11\ Lily Hay Newman, Atlanta Spent $2.6M to Recover from a $52,000 
Ransomware Scare, Wired (April 23, 2018), https://www.wired.com/story/
atlanta-spent-26m-recover-from-ransom
ware-scare/.
---------------------------------------------------------------------------
    Privacy and security hazards should be regulated in the manufacture 
and design of consumer products. Companies have little incentive to 
maintain strong standards without regulation. And consumers do not have 
enough information to evaluate the privacy and security of these 
products themselves. This has alarming implications for toys that 
target children's data, and internet-connected home systems like smoke 
detectors and security cameras.
    Therefore, manufacturers--not consumers--must bear the 
responsibility to ensure the security of their products.\12\ We agree 
with the UK Government's assessment that ``There is a need to move away 
from placing the burden on consumers to securely configure their 
devices, and instead ensure that strong security is built in by 
design.'' \13\
---------------------------------------------------------------------------
    \12\ See Alan Butler, Products Liability and the Internet of 
(Insecure) Things: Should Manufacturers Be Liable for Damage Caused by 
Hacked Devices?, 50 U. Mich. J. L. Reform 913 (2017), http://
repository.law.umich.edu/cgi/viewcontent.cgi?article=1193&context=mjlr.
    \13\ UK Department for Digital, Culture, Media & Sport, Secure by 
Design: Improving the cyber security of consumer Internet of Things 
Report (March 2018), https://assets.publishing.service
.gov.uk/government/uploads/system/uploads/attachment_data/file/686089/
Secure_by_Design
_Report_.pdf.
---------------------------------------------------------------------------
    Current voluntary standards are lax. And current safety regulations 
are outdated. They are not adequate to address the security hazards of 
IoT devices. The CPSC should establish mandatory privacy and security 
standards, and require certification to these standards before IoT 
devices are allowed into the market stream.
    The code of practice proposed by the UK government serves as a 
useful framework for security standards for IoT. In particular, 
manufacturers should adopt the following:\14\
---------------------------------------------------------------------------
    \14\ Id.

---------------------------------------------------------------------------
   1.  No default passwords

   2.  Implement a vulnerability disclosure policy

   3.  Keep software updated

   4.  Securely store credentials and security-sensitive data

   5.  Communicate securely

   6.  Minimize exposed attack surfaces

   7.  Ensure software integrity

   8.  Data protection

   9.  Make systems resilient to outages

  10.  Monitor system telemetry data

  11.  Make it easy for consumers to delete personal data

  12.  Make installation and maintenance of devices easy

  13.  And validate input data

    This guidance necessitates privacy and security by design. If the 
CPSC implements this code of practice, it will shift the responsibility 
of product safety back to manufacturers where it belongs.
    Congress should act to empower regulators to protect consumers from 
the risks posed by the IoT. We ask that this letter be entered in the 
hearing record. EPIC looks forward to working with the Subcommittee on 
these and other issues impacting the privacy and security of American 
consumers.
            Sincerely,

Marc Rotenberg
EPIC President
Caitriona Fitzgerald
EPIC Policy Director

Enclosure:
EPIC and Consumer Privacy Organizations Letter to CPSC, Recall Google 
Home Mini (Oct. 13, 2017)
                                 ______
                                 
       Prepared Statement of Crystal Ellis, Elementary Educator, 
                       Parents Against Tip-Overs
    My name is Crystal Ellis. I am an elementary educator, mom, and 
child safety advocate, representing, Parents Against Tip-Overs, an 
organization of families like mine who have lost a child to furniture 
tip-over.
    Last week would have been my son, Camden Ellis' 7th birthday. 
Tragically, he was killed five years ago, on Father's Day, in a 
furniture tip-over incident. His 3-drawer dresser, just 30 \3/4\'' 
tall, fell, as he tried to reach inside to get to his clothes, trapping 
his neck between the drawers and suffocating him. He was unable to cry 
for help, and we did not hear it fall. His father found him, when he 
went to get him up for breakfast. I can still hear my husband's 
screams. After trying my best to revive him with CPR, and four days in 
a coma at Seattle Children's, we had to say good-bye, donating his 
organs to hopefully save another family from our fate.
    At the time, I thought this was a freak accident and I had no idea 
that this was a danger in my home. When I discovered that he was not 
only the 7th child to die because of the negligence of this particular 
manufacturer, without a recall, but that children were dying at the 
rate of one every 10 days from furniture tip-overs, I was absolutely 
devastated.
    How was this possible? I had taken multiple getting ready for baby 
classes, had put up baby gates, outlet covers, cabinet locks, and had 
our car seat professionally installed as a first-time parent. None of 
the professional educators, health care providers, mom group leaders, 
or other parents had ever told me about the risk of dresser tip-overs 
killing my son. I know that there are many other parents in this 
country that also have no idea that their dresser is a risk in their 
home. They assume, as I did, that any product that is sold to consumers 
in the United States of America has been vetted and tested by their 
government and would not be sold if it could kill us.
    One death every 10 days is a crisis that needs to be immediately 
addressed. It has already been 5 years since the death of my son, over 
14 years since the death of Kim Amato's daughter, Megan Beck, the 
earliest death in our group, and not enough has been done to keep 
children safe today. Since Meghan's death, 254 more have died. I 
believe a mandatory standard that takes into account real world use by 
a child with dynamic testing would have saved my son and literally tens 
of thousands of children every year from injuries and death.
    We need the STURDY Act for many reasons. The first is the lack of 
progress in working with manufacturers to get them to do the right 
thing. Consumers advocates and parents have been trying for almost two 
decades to strengthen the standard. Since the creation of this ASTM 
sub-committee, 19 years ago, there has been no significant change in 
the statistics. Manufacturers know how to solve this problem right now, 
by engineering the tip-overs right out of the design. PAT members 
continue to attend meetings and task groups, ready to dive into 
improving the standard, but, by multiple accounts and measures this 
ASTM sub-committee, F15.42, is one of the most contentious sub-
committees overseen by ASTM. They have stalled for years on seriously 
and effectively addressing the furniture tip-over issue. They keep 
saying they need more data. Their data is our dead and injured 
children. There are 542 known deaths from 2000-2017, and an average of 
75 ER visits a day due to tip-overs. We do not need more data.
    Even with the devastating statistics we already have, we also know 
the data is underreported, as the statistics are only those reported to 
the CPSC. Most consumers and health care professionals do not know what 
the CPSC is, or that it even exists, or the importance of reporting 
incidents of faulty products to them. We think the lack of awareness of 
who the CPSC is in direct correlation with two specific issues. These 
are the very small budget of the agency and the 6b provision of the 
Consumer Product Safety Act. We need to work with legislators and the 
CPSC to quickly resolve both of these issues. Lives depend on it. Every 
dresser that falls, at the reported rate of one ER visit every 17 
minutes, has the potential to be a death or a life-altering injury. 
Even with the chairman of the CPSC strongly urging these manufacturers 
to stop stalling and take immediate steps to increase the standard, 
there were still dozens of negative votes at the last ballot.
    Some manufacturer members of the ASTM sub-committee have argued 
that we should make the current voluntary standard mandatory, but we 
know the current standard is not strong enough. Proof of this exists, 
in the Ikea Hemnes dresser, which currently meets voluntary tip-over 
standards, yet was responsible for the death of two-year-old Conner 
DeLong in Florida, and was seen in a viral video falling on two year 
old twin brothers in Utah, both in 2017. We are also concerned that the 
creation of a mandatory standard from the current, weak voluntary 
standard, will make it much more difficult to make the standard strong 
enough to protect consumers.
    Secondly, the CPSC, even though they have expressed that tip-overs 
are their highest priority this year, are still not using every tool 
available to them, including section 104 rulemaking and recalling every 
dresser that does not meet the current, weak voluntary standard.
    Also, from participating in on the ASTM meeting on May 10th, I 
strongly feel that the manufacturers are not afraid of repercussions 
from the CPSC and appear content to wait and see if Congress forces 
them to do the right thing, because that's likely the only way they 
will. Between their small budget and their hands being tied by the 
limitations from Section 6b of the Consumer Product Safety Act, the 
manufacturers know they have time to stall. Time that will result in 
more deaths of children. How many more dead children will take to 
compel those in power to stop this crisis?
    Parents Against Tip-overs is a voice for our children who 
needlessly lost their lives to this 100 percent preventable issue. A 
voice for parents who are home today acting as full-time caregivers for 
their children who survived a tip-over incident but have been left with 
devastating life-altering injuries. And a voice for parents who cannot 
find theirs because they are overwhelmed by the darkness of grief and 
sadness that we have all, unfortunately, experienced.
    Lastly, I'd like to make it clear that furniture tip-over is not a 
partisan issue. I assure you; furniture falls on Republican and 
Democratic children equally. It falls on children from both wealthy and 
poor families, those who live in both urban and rural communities, 
babies, toddlers, and even adults sometimes. The only common 
denominator in a furniture tip-over is unstable furniture. And the only 
way to stop it is to force manufacturers to adhere to a strong and 
effective mandatory furniture safety standard, which the STURDY Act 
would do, and likely the only thing that WILL stop tip-overs. The 
STURDY Act will give the CPSC the legislative power to make a strong 
mandatory standard, where the industry will not hamper the process and 
continue to delay.
    Additional information to consider:

    Anchoring is necessary for furniture that is already in homes, but 
we know less than 1/3 of parents anchor, that the final act of safety 
should not be on the consumer to anchor, and anchors are not tested for 
safety and can actually fail and provide a false sense of security (2 
of the respondents to a Meghan's Hope/PAT survey said the furniture 
tipped because a restraint failed) The only solution is to build safer 
furniture and the industry will only do it if forced to by legislation 
supporting a mandatory standard created by the CPSC. That is abundantly 
clear.
    The Katie Elise and Meghan Agnes Act first introduced in 2005 to 
the House with 42 bipartisan co-sponsors, and 5 years after the ASTM 
furniture safety committee formed (which none of us knew even existed 
at that time). If it was adopted then, Camden, and all the other PAT 
children would very likely be alive today. Since Meghan died, there 
have been 254 reported deaths from tip-overs, and that's only through 
2017 and only what was reported to the CPSC. That number should have 
been 0.
    Excerpt from Meghan's Hope safety blog, written by PAT founding 
member, Kim Amato, about the argument for data, in an open letter to 
the ASTM, AHFA, and the CPSC (5/19/19):
    Here's what you need to acknowledge and understand about data And 
then apply it to the voluntary standard process, data collection and 
analysis, and the creation of a mandatory furniture safety standard.
    By the CPSC's clear indication in their annual tip-over report, 
their reports of injuries and deaths due to tip-overs are ESTIMATES. 
You all know why they are estimates, but since everyone in that room 
last week at the ASTM furniture safety subcommittee meeting who was not 
a consumer member seems to have forgotten, or perhaps just ignored, let 
me help you understand why the data you are claiming you need and are 
waiting for will never materialize.

   1.  The NEISS problem. The vast majority of the data the CPSC gets 
        on tip-over injuries and deaths comes from the NEISS hospitals. 
        According to the CPSC, ``NEISS injury data are gathered from 
        the emergency departments (ED) of approximately 100 hospitals 
        selected as a probability sample of all 5,000+ U.S. hospitals 
        with emergency departments'' That's only 0.02 percent of the 
        actual data from ER's that is definitively captured. And it's 
        ONLY accounting for injuries severe enough to require an ER 
        visit! It doesn't take a rocket scientist to extrapolate that 
        data and realize this problem is way more pervasive, and tip-
        overs are significantly more common, than the CPSC statistics 
        indicate.

   2.  The cause of death problem. Information is also gathered from 
        death certificates. This is never going to be sufficient unless 
        all medical examiners in the U.S. are required to not only 
        report the medical cause of death, but the attributing factors. 
        For example, Meghan's death certificate states positional 
        asphyxiation due to a fallen bureau. I know of other tip-over 
        deaths where the death certificate simply said ``asphyxiation'' 
        or ``blunt force trauma'' with no documentation of the tip-
        over. Those deaths would never be captured as being due to tip-
        over. Medical examiners also don't always know what the 
        contributing factors to the death were, either.

   3.  Non-ER visit data is not captured. The minor injuries that don't 
        require or are not seen in an ER, but instead are seen in a 
        pediatrician's office or urgent care center are not captured at 
        all unless a rare and savvy doctor knows how and why to report 
        it to the CPSC. The vast majority do not.

   4.  Near misses (furniture that tipped, but the child was not 
        injured) and minor injuries are not captured. The near misses 
        and minor injuries that don't require any medical intervention 
        at all are completely unknown, since there is no official 
        record of them. Other tip-over parents like myself know about 
        them, because those parents tell us about them, and it happens 
        a lot!

   5.  It's not easy to report a tip-over. The average parent, 
        consumer, physician/medical professional, or medical examiner 
        has no idea Saferproducts.gov exists, or why. They don't know 
        how or why to report injuries due to a defective or unsafe 
        product including tip-overs. Even if they are informed about 
        it, it's cumbersome and time consuming and many parents are 
        fearful of talking to a government agency, especially because 
        many parents whose children are injured or killed by a tip-over 
        are investigated by the police and sometimes DCF. They are 
        treated like criminals because of the lack of awareness and 
        sensitivity training out there as to the frequency and 
        prevalence of tip-overs. If you've gone through that, you are 
        understandably skeptical and traumatized when it comes to 
        talking to any other ``agency'' about the tip-over incident. 
        The CPSC needs to find a way to ensure everyone knows how and 
        why to report hazards, injuries and deaths due to products sold 
        in the U.S., to simplify the system and make it user friendly, 
        and to make that widely publicized, easy to access, and 
        encouraged, if not required, by every professional who 
        interacts with children.

   6.  Reports of tip-overs can happen years after the incident, due to 
        the reasons outlined above, and many parents find out from 
        other bereaved parents how and why to report their incident. 
        It's also important to realize that from the time an incident 
        is reported, investigated, and the report completed can also 
        take many months if not years. And while you wait, every 17 
        minutes, another tip-over happens. A tip-over that you could 
        have prevented. A life that you could have saved.

   7.  You'll never be able to get all the data you want about what the 
        child was doing to cause the tip-over because the vast majority 
        of the time, no one was in the room where the tip-over happened 
        except for the child who was the victim. For 99 percent of 
        these injuries and deaths you'll never know exactly how that 
        child was interacting with the furniture. Assumptions can be 
        made, but they are not facts. You'll never be able to know how 
        many drawers were open, if the child was climbing, pulling, 
        reaching, standing in a drawer, leaning on a drawer, or if they 
        simply bumped into it while playing. The answer is simply 
        physics. So, you need to stop asking for and waiting for that 
        data, because you'll never get it and you already know that. 
        The CPSC has told you this as recently as the May 10th meeting 
        of this year. This is why we need to include testing with some 
        and all drawers open, loaded with the things typically in 
        drawers (clothes, toys) and to test with enough test weight to 
        simulate the dynamic force of at least a 72 month old child 
        climbing, pulling, or pushing on open drawers, and to account 
        for the effect of carpet.

   8.  Every single child that died because of a tip-over could have 
        lived, and every single child that was not killed in a tip-over 
        incident could have died. Let that sink in. There was nothing 
        special about any of these situations. Some call it luck, but 
        you and I know it all comes down to physics, and every single 
        situation was different.

   9.  You will never know for sure how many times furniture you (the 
        manufacturer) made has tipped over, and likely will never know 
        about all the injuries and deaths associated with your 
        furniture falling. So, claiming you have no reports, or 
        ``only'' one death (and seriously, if that ``only'' death was 
        your child, how would you feel about me downplaying this topic 
        in that manner), or a handful of minor injuries, is ignorant 
        and dangerous. Why will you never know? In addition to all the 
        reasons I've already pointed out, consumers typically don't 
        know who made their furniture. Nor do they care. They want it 
        to be safe and they want it to be functional and aesthetically 
        pleasing. They might remember where they purchased it, but they 
        probably don't know who the manufacturer was, nor would they 
        care until their child is injured or killed. Thus, you will 
        never have accurate data on that, either.

  10.  Hiding behind the fact your costs will increase has to stop. We 
        understand that changes to the safety standards can result in 
        costly changes to your manufacturing processes. We understand 
        you are businesses and need to make a profit. We get that. But 
        I can tell you that as a parent and a consumer, when we shop, 
        we shop for furniture that is aesthetically pleasing, meets our 
        needs, and is in our price range. Whether I'm paying $100, 
        $500, or $1000 for a dresser or other CSU, I'm going to pay a 
        little more if it means I know it's been tested and passes a 
        stringent safety test. In fact, I might change my mind and 
        choose your furniture instead BECAUSE I have proof that your 
        furniture is compliant or goes above and beyond, what is 
        required for safety. So, you can pass those costs onto the 
        consumer at a reasonable dollar amount and absorb some of the 
        cost for the greater good it will result in.

  11.  Complaining your competition will hurt your sales if you comply 
        with the voluntary standard has to stop. Victim consciousness 
        (as in they won't play nice in the sandbox so why should we) 
        has no place in adulting or in the development and enforcement 
        of safety standards. It's immature, a cop-out, and cowardly. My 
        violin is way too small for that. You do you. Don't worry about 
        your competition. Do the right thing. Own it. Be the change. 
        Lead the way. Do it in the ASTM meeting, do it for your 
        constituents, do it because you want to be ethical and trusted 
        by consumers. Do it to save lives and bring the number of 
        injuries and deaths to zero. Do it because it's the right thing 
        to do. You know how to do it. You know how to market. Market 
        yourselves as the ones who do the right thing, who go above and 
        beyond and put your money where your mouth is. Prove it to us. 
        Educate consumers about the tip-over epidemic and then explain 
        what you have done to address it. Require retailers that sell 
        your furniture to educate consumers as well. Don't mislead 
        consumers. It will come back to haunt you. Trust me.

  12.  No one is immune. Even your friends and family. I bet you all 
        have every single piece of furniture in your home anchored, 
        right? Why? Because you know it's not safe when it's 
        freestanding right now. Until you are willing to allow a child 
        you love freely interact with, climb, and play in a dresser/CSU 
        or lie a child you love in front of any CSU/dresser and apply 
        the current safety test to it, confident that it will remain 
        upright un-anchored, the standard is not strong enough. 
        Consider that. Tip-overs happen to the young and the old, to 
        the wealthy and the poor, the highly educated and the poorly 
        educated, in cities and in rural areas, in private homes and in 
        public places, to people of all races and ethnic backgrounds, 
        to people of all religious and spiritual beliefs, and to all 
        genders. It could even happen to your family. NO. ONE. IS. 
        IMMUNE.

  13.  Tip-over is not a partisan issue. I'm looking at you CPSC and 
        Congress. There is absolutely no reason every member of the 
        CPSC and every member of Congress should not fully support the 
        STURDY Act. This is an issue that affects democrats, 
        republicans and independents. The only common denominator is 
        unsafe furniture because there is no adequate or mandatory 
        safety standard to prevent tip-overs of furniture. We need the 
        STURDY Act to protect consumers, especially the most 
        vulnerable, our children.

  14.  YOU NEED US. Parent advocates and coalitions like Parents 
        Against Tip-Overs and other consumer advocates are a rare 
        breed. For every one of us who are bereaved parent advocates, 
        there are hundreds of others who are not comfortable sharing 
        their stories and their pain publicly, or who can't because of 
        their jobs or other reasons. That doesn't mean they don't 
        exist, and they don't want to see these changes any less than 
        we do. We are here to represent them, too. We are the voice of 
        every person who has ever been the victim of a tip-over, 
        whether it was a near miss, a minor injury, or resulted in a 
        catastrophic injury or death. We are connected to literally 
        thousands of other parents who have had or know someone who has 
        experienced a furniture tip-over incident. We are experts, too, 
        and we bring important perspective, insight, and ideas to the 
        table. You need us and we need you to end this epidemic. We 
        must work together. But waiting for some magical data, some 
        magical number of injured or dead children that will make you 
        finally have a sense of urgency about this will no longer be 
        tolerated.

    It is my greatest wish that all members of the ASTM furniture 
safety sub-committee and the CPSC finally make a commitment to rapid 
and meaningful forward progress with this standard. It needs to be a 
priority and it needs to happen now. There is no reason we can't create 
and implement a stronger standard this year, with the two changes 
supported by the CPSC and Parents Against Tip-Overs, that being a 
change in the height to 27 inches and above and a change in the test 
weight to 60 lbs., and continue to change it for the better as 
additional testing (carpet, dynamic real world tests, open drawers, 
etc.) and innovative designs are created. We have all the data we need 
right now to make a stronger standard.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jerry Moran to 
                         Hon. Ann Marie Buerkle
    Question 1. A consistent criticism of the CPSC is that outdated 
rulemakings are not removed from the agency's docket to reflect 
accurately the agency's efforts. Similarly, I hear criticism that the 
agency is not doing enough to advance burden reduction opportunities 
that do not negatively impact consumer safety. Now that we have all 
five commissioners in place, what are you doing to clean up the 
agency's docket and reduce overly burdensome and outdated regulations 
on industry?
    Answer. Since I have been at the Commission, I have made reducing 
regulatory burdens a priority. I have been Acting Chairman since 
February 2017, however, I have only been serving in the majority for 
nine months. In fact, for approximately eight months, I was the lone 
Republican, serving with three Democrats. With the arrival of a second 
Republican, the agency was spilt 2-2 for five months. Despite these 
challenges, during my time as Acting Chairman the agency reduced 
testing burdens for certain specified plastics from the agency's 
phthalate content requirements, eliminated lead testing requirements 
for certain types of wood and invited comments for ways to further 
reduce regulatory burdens without compromising safety.
    The agency published a Request for Information to solicit input 
from regulated communities to share their concerns regarding reducing 
regulatory burdens and we continue to evaluate those suggestions for 
further action. We are currently considering a rule to reduce testing 
requirements for certain fabrics and examining possible avenues to 
improve processing time for our screening of imports. We are in the 
process of revising the requirements for refrigerators to provide 
relief from an outdated regulation. These initiatives are planned for 
in the annual operating plan and this fall, 2019, will be the first 
time that a Republican majority will plan, and vote for the operating 
plan as well as a Budget.
    One of the misconceptions about the agency, with regard to outdated 
rulemakings, is that they can be quickly rescinded by the Commission. 
In order for a rulemaking to be considered by the Commission for a 
decision, staff must first prepare a briefing package with their 
analysis and possible policy decisions to present to the Commissioners. 
This process takes valuable staff time and must be directed in the 
agency's operating plan which can be amended by the majority of 
Commissioners. With the agency returning to a full Commission, my hope 
is that we can make progress on some of these rulemakings in FY20. 
Final agency actions are subject to judicial scrutiny and must be 
undertaken thoughtfully and in adherence to our statute and 
regulations.

    Question 2. The Commission's FY 2020 budget request included $6.2 
million to address workforce challenges, including potential skills 
gaps resulting from the use of new and emerging technologies like the 
Internet of Things, robotics, artificial intelligence, and other 
innovative consumer products. How would the Commission utilize these 
additional resources to prevent these skills gaps from developing?
    Answer. Staying abreast of emerging and future hazards, and the 
ability to address new hazards presented by Internet connected consumer 
products and other emerging technologies, requires new skill sets and 
innovative approaches. For example, the CPSC does not currently have 
staff expertise to evaluate software as a component part in connected 
consumer products.
    The Commission's FY 2020 budget request included a total of $6.2M 
for Strategic Goal 1 which does not include any additional resources. 
Within these budgeted funds, the Commission will recruit, train, and 
retain a workforce with the knowledge, skills, and abilities to meet 
new, innovative, and emerging, product safety challenges. CPSC will 
utilize training opportunities to train existing staff in the use of 
new and emerging technologies. For example, the CPSC is currently 
sending a mechanical engineer to artificial intelligence training. 
Additionally, as current staff leave, CPSC will use recruitment 
strategies to attract talented, diverse, and committed people who 
possess the skills we need in these gap areas. We will continue to 
examine each vacancy through job analysis to ensure we have targeted 
assessments for applicants in order to recruit for the critical skills 
we need in new and emerging areas. Currently, CPSC rewards creativity 
and innovation through our incentives program to maximize employee 
interest in developing new ideas, exploring new skills and encouraging 
innovation. CPSC also encourages staff to participate in professional, 
governmental, and interagency groups on these subjects.

    Question 3. I am also a member of the Senate Appropriations 
Subcommittee on Financial Services and General Government, which 
oversees funding matters related to the CPSC. I remain committed to 
ensuring that the CPSC has the resources and tools that it needs to 
effectively protect the public from unreasonable risks of injury or 
death due to the use of consumer products. Is the Commission have 
adequate resources to fulfill its mission?
    a. If not, where should additional resources be targeted?
    Answer. CPSC does not have adequate resources to fulfill its 
mission. As I stated at the hearing, CPSC's mission has long dwarfed 
its budget. Even as a fiscal conservative, I have advocated for a 
higher budget. My advocacy for the agency has resulted in Congress and 
this Administration providing increased funding and resources for the 
CPSC each year since I've been Acting Chairman. The House has approved 
an $8.5 million increase in CPSC's budget for FY20. I hope the Senate 
will do the same.
    CPSC needs not only to maintain the capabilities that it currently 
has, but also to expand our effectiveness and efficiency. Each year 
that we do not keep pace with inflation, more and more mission funding 
is redirected to offset cumulative inflation costs. In addition, 
programmatically we need a more robust budget to ensure we are fully 
equipped to deal with a rapidly changing global marketplace where the 
types of products and how consumers buy and interact with those 
products is constantly evolving. All of this requires consistent, 
adequate, and additional funding.

    Question 4. Input with industry and advocacy groups is an essential 
component to fulfilling the Commission's purpose. One area of 
collaboration has been on the issue of preventing consumer injuries 
from portable fuel containers. While workplace safety regulations 
mandate the use of flame arrestors for containers in industrial use, 
there is no similar requirement for consumer containers. For this 
reason, I sponsored the Portable Fuel Container Safety Act that would 
direct the Commission to finalize standards for installing flame 
arrestors in portable fuel containers. Would you please describe the 
importance of collecting stakeholder input in finalizing standards for 
this and other consumer product related issues?
    Answer. Engagement with all stakeholders including consumer groups, 
industry and, most importantly, victims and their families, has been my 
priority during my entire time at the Commission. As Acting Chair, I 
have advanced the concept of ``tech to tech'' meetings with our 
stakeholders. These meetings allow for engineers and technicians to 
discuss safety issues and how they can be resolved. As a result of 
these meetings, critical safety issues have been resolved, including on 
ROV's, portable generators and window coverings. These productive 
meetings allow our staff and the regulated community understand issues 
and seek common ground. These discussions have also been very 
beneficial in the development of voluntary standards.
                                 ______
                                 
  Response to Written Question Submitted by Hon. Marsha Blackburn to 
                         Hon. Ann Marie Buerkle
    Question. Constituents in my state have raised concerns regarding 
recent injuries and deaths related to the introduction of fine mesh 
metal powders with very powerful break charges being used in reloadable 
fireworks shells. I understand that in the past, CPSC has relied on 
what is known as the ``ear test'' to assess fireworks safety standards, 
but has been working on a more objective replacement involving the 
presence of fine mesh metal powders.
    a. Can you provide us with an update on this proposed rule?
    b. Why has the Commission taken so long to update fireworks safety 
standards?
    Answer. The proposed rule is still being considered by the 
Commission. CPSC staff briefed the Commission on October 3, 2018 on 
proposed changes to the fireworks rule. At this time, there does not 
appear to be sufficient consensus among Commissioners to advance or 
amend the current proposed rule. We continue to seek consensus for a 
resolution on the proposed rule.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Todd Young to 
                         Hon. Ann Marie Buerkle
    Question. Chairman Buerkle, last Congress the Consumer Product 
Safety Commission issued a notice of proposal rulemaking regarding 
amendments to fireworks regulations. Included in this proposal is an 
important safety provision to prohibit the usage fine mesh metallic 
powder with a small tolerance to account for manufacturing 
contamination. Can you detail what the Commission's timeline is to move 
forward with amendments to CPSC fireworks regulations?
    Answer. The proposed rule is still being considered by the 
Commission. CPSC staff briefed the Commission on October 3, 2018 on 
proposed changes to the fireworks rule. At this time, there does not 
appear to be sufficient consensus among Commissioners to advance or 
amend the current proposed rule. We continue to seek consensus for a 
resolution on the proposed rule.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Ron Johnson to 
                         Hon. Ann Marie Buerkle
    Question 1. On March 8, 2019, CPSC issued guidance ``describing the 
methodology CPSC staff intends to use to test liquid nicotine 
containers for compliance with the restricted flow provisions.''
    a. What is the cumulative economic impact of CPSC's guidance in 
dollars, the total number of businesses affected by the guidance, and 
the total amount of product affected by the guidance?
    b. In preparation for issuing this guidance, what data and metrics 
did CPSC staff use? Did CPSC look at the total number of e-liquid 
businesses in the United States, the total number of sales by those 
businesses, and the number of sales of e-liquid glass bottles?
        a. If yes, please provide those numbers.
        b. If no, please explain why not.
    Answer. CPSC staff has not estimated the cumulative economic impact 
of the guidance. The Child Nicotine Poisoning Prevention Act of 2015 as 
enacted by Congress did not require CPSC to conduct any economic impact 
of the law.
    CPSC staff did not look at the total number of e-liquid businesses 
in the United States, the total number of sales by those businesses, or 
the number of sales of e-liquid glass bottles. The Child Nicotine 
Poisoning Prevention Act of 2015 as enacted by Congress did not require 
CPSC to conduct any economic impact of the law.

    Question 2. Based on CPSC's guidance, it appears that CPSC will 
test the flow restriction on e-liquid bottles by using a machine that 
squeezes the bottle when it's inverted. How does CPSC plan to test 
glass e-liquid bottles that may break if squeezed?
    Answer. CPSC staff will test in accordance with 16 C.F.R. 
Sec. 1700.15. This regulation includes packaging requirements for 
restrictive flow ``from which the flow of liquid is so restricted that 
not more than 2 milliliters of the contents can be obtained when the 
inverted, opened container is taken or squeezed once or when the 
container is otherwise activated once.''
    Since the guidance was issued, CPSC has received questions about 
the testing protocols for packaging that cannot be squeezed (e.g., 
glass or other rigid materials). The test guidance does not need to 
change to address these type of packages. CPSC tests rigid packages in 
a manner consistent with its published guidance by omitting steps 
related to the application of the squeezing force. Specifically, CPSC 
inverts rigid packages and measures the resulting flow without 
conducting steps 5c, 5d, 8a (release the latch), 8a(ii), and 8b. These 
steps, which relate to applying force (i.e., ``squeezing''), have no 
impact on the flow out of rigid packaging and may, therefore, be 
omitted.
    In order to provide further clarity on this issue, CPSC provided 
further guidance on August 15, 2019 stating that the steps relating to 
applying force may be omitted.

    Question 3. If an e-liquid manufacturer changes its packaging to 
comply with CPSC guidance, it is unclear if that would result in those 
manufacturers having to submit a premarket tobacco application to the 
FDA for approval before marketing and selling those products again.
    a. Is CPSC aware of this lack of clarity?
    b. If so, please describe what steps CPSC plans to take to address 
this issue and provide clarity to e-liquid manufacturers.
    c. Will CPSC and FDA issue a statement to provide clarity to e-
liquid manufacturers?
    Answer. Yes. CPSC has been working in coordination with FDA on the 
issue in order to provide further clarity to the regulated community. 
It is our understanding that FDA is in the process of developing 
guidance on this issue. It is our understanding that FDA is in the 
process of developing guidance on this issue.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                         Hon. Ann Marie Buerkle
    Statement from Acting Chairman Buerkle: Section 6 of the Consumer 
Product Safety Act (CPSA) prohibits the public disclosure of 
manufacturer-specific information and information provided to the 
Agency by manufacturers, distributors and retailers under mandatory 
reporting requirements of Section 15 of the CPSA. This information 
often includes sensitive confidential commercial information and is 
also prohibited from public disclosure by section 6(b) of the CPSA 
unless the Commission has followed specific procedures.
    Section 6(a)(7) of the Consumer Product Safety Act prohibits the 
withholding of information by the Commission from the duly authorized 
committees or subcommittees of the Congress. Consistent with this 
provision the Commission has issued regulations implementing section 6 
at 16 CFR Sec. 1101.12(g) excluding the ``Chairman or ranking minority 
member of Congress acting pursuant to committee business. . .'' from 
the definition of ``public.''
    A few of the responses to the questions by the ranking or committee 
members require disclosure of manufacturer or product-specific 
information or other sensitive or confidential commercial information. 
The questions also seek information on an ongoing criminal case handled 
by the U.S. Department of Justice. Because this information will become 
part of the ``public'' record of the June 20, 2019 hearing, I 
respectfully request that counsel for the subcommittee work with our 
Office of Legislative Affairs to find a mechanism appropriate for 
response without making this sensitive confidential and commercial 
information part of the public record of the hearing.
Electric Scooters:
    Question 1. Acting Chairman Buerkle, please describe the CPSC's 
jurisdiction over electric scooters?
    Answer. Electric scooters that have a maximum speed of 20 mph or 
less are likely to be under CPSC's jurisdiction. The Consumer Product 
Safety Act (CPSA) excludes ``motor vehicles'' from the definition of 
``consumer product.'' Under the National Traffic and Motor Vehicle 
Safety Act of 1966, a ``motor vehicle'' includes ``a vehicle driven or 
drawn by mechanical power and manufactured primarily for use on public 
streets, roads, and highways.'' 49 U.S.C. Sec. 30102(a)(6). The 
National Highway Traffic Safety Administration (NHTSA) has stated that 
to determine whether a vehicle is manufactured primarily for use on 
public streets, the key factor is whether the maximum speed of the 
vehicle exceeds 20 mph. NHTSA also considers whether the vehicle has 
on-road safety equipment such as mirrors, turn signals, and stop lamps, 
but maximum speed is the primary factor. 70 Fed. Reg. 35810 (June 15, 
2005).

    Question 2. What is the CPSC doing to prevent injuries from shared 
electric scooters provided for rent? Please describe the CPSC's 
activities in detail.
    Answer. CPSC is aware of incidents related to electric scooters and 
is assessing all potential hazards associated with these products. CPSC 
has taken action and will continue to take action as appropriate. CPSC 
technical staff continues to work on voluntary standards for these 
products, including with UL on electrical requirements and ASTM for 
mechanical safety issues. CPSC staff is also working to develop safety 
messaging on the use of these products.

    Question 3. How does the CPSC track these incidents? Please 
describe the CPSC's activities in detail.
    Answer. As with incidents related to any consumer product, CPSC 
tracks incident data through reports submitted by consumers through 
SaferProducts.gov, newspaper clippings, state/local authorities, 
medical examiners, advocacy groups, reports from manufacturers and 
retailers, death certificates, as well as CPSC's in-depth 
investigations. CPSC also utilizes the National Electronic Injury 
Surveillance System to sample hospitals nationally where information 
about consumer-product related incidents are coded from medical 
records.

    Please send us a report in 30 days of the CPSC's death and injury 
data associated with electronic scooters and what the CPSC is doing to 
prevent future injuries.
    Answer. We will provide the requested report.
    In the draft FY20 Operating Plan, staff proposes to review incident 
data and samples of electric scooters and work with voluntary standards 
organizations to develop requirements that address the harsh conditions 
electric scooters are exposed to when used for ridesharing 
applications. Staff will also continue developing testing capabilities 
for these products.
Tip Overs:
    Question 1. Please describe why the Commission has chosen not to 
use Section 104 rulemaking to address--at least in part--the tip-over 
issue.
    Answer. A majority of the commissioners did not support an effort 
to use the limited scope of Section 104 authority to address this 
issue.

    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    Answer. I cannot comment on this matter as part of a published 
public hearing record but CPSC staff is available to discuss this issue 
with you privately.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    Answer. CPSC's primary option is to issue a press release in 
consultation with the affected firm to announce a recall or corrective 
action. CPSC strives to maximize direct notification to the best of the 
firm's capabilities when negotiating recalls. When a firm demonstrates 
that they are able to directly contact 95 percent+ consumers who have 
purchased a recalled product, CPSC will pursue a ``Recall Alert'' to 
the affected consumers rather than a press release.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Answer. In February 2019, I called on the ASTM Subcommittee for 
Clothing Storage Units to strengthen their standard by expanding the 
scope of the standard to include shorter units and to increase the 
testing weight for tip-over testing. Changes to expand the scope of the 
standard have already been adopted.
    Commission staff is also conducting tests of many clothing storage 
units currently on the market. Where units do not comply with the 
current voluntary standards, the Office of Compliance is following up 
with manufacturers.
    Staff is also actively engaged with the Subcommittee to improve the 
ASTM standard F2057-17. Improvement efforts are centered on consumer 
interactions with product and consumer use scenarios identified in the 
ANPR. Staff are active members of task groups supporting the 
subcommittee working on issues such as: dynamic testing, multiple/
loaded drawer testing, carpet testing, testing repeatability and 
operational slide length. Staff is researching new test methodologies 
based on available incident data and testing over 185 samples which 
represent a variety of CSUs designs on the market today.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                         Hon. Ann Marie Buerkle
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Yes. This information was previously shared with Congress 
in 2018. Consumer Reports published non-public information on these 
products obtained from CPSC.

    Question 2. Were you aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Yes.

    Question 3. If Consumer Reports had not published its findings 
regarding infant fatalities caused by infant inclined sleepers, do you 
think these products would have been recalled when they were?
    Answer. Unequivocally, yes. The publishing of the figures by 
Consumer Reports had absolutely no bearing on the recalls of inclined 
sleep products.

    Question 4. When do you think these products would have been 
recalled had Consumer Reports not published its findings regarding 
infant fatalities caused by infant inclined sleepers?
    Answer. The publishing of the figures by Consumer Reports had 
absolutely no bearing on the timing of the recalls.

    Question 5. After how many fatalities, do you think these products 
should have been taken off the market?
    Answer. CPSC acts to address any consumer product hazard as soon as 
possible.

    Question 6. How many fatalities must happen before the CPSC 
initiates a recall?
    Answer. None. CPSC routinely announces recalls where the product 
involved is not associated with any fatal incident.
The Safe Sleep Act of 2019
    I have introduced the Safe Sleep Act of 2019. This legislation 
would prohibit the sale, manufacture, and import of infant inclined 
sleep products--a dangerous category of infant products, of which the 
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My 
legislation would also make sure that no new standard can be 
established for a sleep product that is inconsistent with safe sleep 
best practices.
    The American Academy of Pediatrics and safety advocates have long 
been clear that a safe sleep environment is a firm, flat, bare surface. 
It is clear that infant inclined sleep products are incompatible with 
the recommendations of the leading experts on safe sleep.

    Question 7. When it comes to establishing standards for infant 
sleep products, can you commit that you will only support standards 
that are consistent with safe sleep best practices agreed upon by 
pediatricians and safety advocates? If your answer is ``No,'' then why 
not?
    Answer. I have been a steadfast advocate for safe sleep practices 
and have participated in numerous events and campaigns to educate 
parents on proper sleep practices for infants.

    Question 8. Do you believe that infant inclined sleep products are 
a category of products that can be considered safe for sleep?
    Answer. Not in their current form. CPSC is working to eliminate any 
infant sleep product with an incline of more than 10 degrees.
Section 6(b)
    Question 9. What role do you believe Section 6(b) of the Consumer 
Product Safety Act (``CPSA'') play in preventing the CPSC from acting 
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
    \1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits 
the Commission from disclosing information about a consumer product 
that identifies a manufacturer without the permission of the 
manufacturer.
---------------------------------------------------------------------------
    Answer. Section 6(b) of the CPSA is part of our statute as written 
by Congress and a requirement we must follow. In recent years, Congress 
has made significant changes to Section 6(b), including establishing 
Saferproducts.gov, while refraining from removing the provision 
entirely.

    Question 10. Does that mean Section 6(b) is preventing the CPSC 
from fulfilling its stated mission to protect the public from 
unreasonable risks of serious injury or death?
    Answer No.

    Question 11. Do you think Section 6(b) protects consumers?
    Answer. I believe that Congress intended Section 6(b) to protect 
consumers from inaccurate information.
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 12. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    Answer. This statement originated from a WCMA member in a meeting 
between CPSC and WCMA in May 2015. The basis for this statement was a 
2015 KeyStat study. This study was provided to CPSC staff as 
confidential business information by one of the WCMA members.

    Question 13. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC does not possess this data.

    Question 14. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC does not possess this data.

    Question 15. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC does not possess this data.

    Question 16. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    Answer. Any window covering that is available for purchase off-the-
shelf in a store is classified as stock and subject to the stock window 
covering requirements (i.e., cordless, short cord, or inaccessible 
cord).

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    Answer. The window covering standard requires a warning label on 
the website if the website is relied upon for promoting, merchandising, 
and selling online. This way, the consumer is informed about the 
strangulation hazard while placing an order for a corded custom window 
covering. CPSC staff has suggested to the WCMA technical committee that 
a guidance document for online sales of stock and custom products would 
be useful to add to the standard.

    Question 18. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    Answer. CPSC is monitoring the sale of corded window coverings on 
online platforms and developing plans to monitor at ports and in retail 
stores. On June 19, 2019, I sent letters to Alibaba, Amazon, 
Craigslist, eBay and Facebook asking them to make sure they are only 
selling compliant window coverings on their websites.
    In order to comply with the ANSI/WCMA voluntary standard, all 
products should be designated as ``Custom'' or ``Stock'' on the 
manufacturer label, using a ``C'' or the word ``Custom,'' or an ``S'' 
or the word ``Stock'', respectively. Stock products are substantially 
fabricated in advance of being distributed in commerce and in advance 
of any specific consumer request for that product. Such product is 
likely a stock product if it appears online readily available to ship, 
and has limited/specific pre-determined sizing, color, and material 
options.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
    Two years ago, a video went viral showing near-tragedy from a 
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer 
dresser leading it to tip over--one being nearly crushed by it and the 
other miraculously saving him. The parents had posted the video to warn 
others about the danger.\2\ Tragically, five months later, the same 
kind of Ikea dresser fell on another 2-year old boy in his bedroom, 
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
    \2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
    While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions 
of this dresser, it has steadfastly refused to recall the 8-drawer 
dresser. IKEA refuses to recall it because it does not fail the 
existing furniture stability test. They maintain that the product is 
safe--even in the face of clear video evidence that it is not.
    Kids In Danger, Consumer Federation of America, Parents Against 
Tip-overs, and Consumer Reports have all called for the recall of this 
product.

    Question 19. Do you believe that the current standard governing 
furniture stability is inadequate?
    Answer. I believe the standard should be improved. For that reason, 
I called on the ASTM Subcommittee for Clothing Storage Units to 
strengthen their standard by expanding the scope of the standard to 
include shorter units and to increase the testing weight for tip-over 
testing. Changes to expand the scope of the standard have already been 
adopted.

    Question 20. Have you personally had any conversations with Ikea 
urging them to agree to a voluntarily recall of this dangerous product? 
Have you directed CPSC staff to have such conversations? Why or why 
not?
    Answer. I cannot comment on this matter as part of a published 
public hearing record but CPSC staff is available to discuss this issue 
with you privately.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to see too many of 
these products sold on secondary online marketplaces.

    Question 21. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:
   When and how that relationship was established.
    Answer. CPSC has relationships with a number of platforms, some of 
them for well over a decade, including:

       eBay

       Overstock.com

       Alibaba

       Craigslist

       Facebook and Facebook Marketplace

       Oodle

       Shopgoodwill

       Amazon

       Letgo

       Offer Up

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.
   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.

    Answer. None of the platforms has not provided any special tools to 
CPSC; however we have established relationships and ongoing 
discussions.

    Question 22. What more could Internet platforms do to eliminate the 
illegal sale of recalled products on their platforms?
    Answer. On June 19, 2019, I sent letters to Alibaba, Amazon, 
Craigslist, eBay and Facebook reminding them that it is illegal to sell 
recalled products, asking them to block the sale of any recalled 
product on their site and to prevent the listing of recalled goods in 
the first place. In addition, I asked them to provide further 
information on what they are doing to stop the sale of recalled 
products. Conversations with each of these entities are ongoing.

    Question 23. Do you think platforms that facilitate the sale of new 
and used products should have clear policies expressly prohibiting the 
sale of recalled products in the United States?
    Answer. Yes.

    Question 24. Do you think users should be able to specifically flag 
the sale of recalled products?
    Answer. Yes.

    Question 25. What kind of obligation do you believe these companies 
have or should have in making sure recalled products are not illegally 
sold on their platforms?
    Answer. I believe every company should do what it can to prevent 
the sale of recalled products.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan.
    Consumers lose out on important legal protections when recalls 
aren't called what they should be--``recalls.'' For example, they may 
be more susceptible to purchasing second-hand products that haven't 
been repaired.

    Question 26. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    Answer. I do not agree that settlements excluding the word 
``recall'' are increasingly likely. To the contrary, such settlements 
are exceedingly rare and like to remain so. With regard to your more 
specific question, I cannot comment on this matter as part of a 
published public hearing record but as requested in your April 3, 2019 
letter, we are providing you with Britax's information reports.

    Question 27. How does the Consumer Product Safety Improvement Act 
(``CPSIA'') protect consumers from the sale of products that are 
subject to ``information campaigns''?
    Answer. In the Britax case, the information and education campaign 
is part of a Consent Agreement. As part of the agreement, Britax is 
required to submit regular reports on their efforts just as CPSC would 
request any other firm to do under any other corrective action plan 
agreed to with the Commission. CPSC staff review these reports and may 
seek changes to the information and education campaign in order to make 
sure consumers are being protected. In the Britax case, the original 
settlement agreement has already been modified to improve consumer 
protection.

    Question 28. So, without an official recall, consumers who buy 
these strollers second-hand will have no legal remedy against the 
seller for being sold the product without being advised of the 
information campaign or for being sold the product without the ``free 
modified thru-bolt or free modified quick release'' incentive for 
consumers who participate in the information campaign. Is that correct?
    Answer. Generally, consumers do not pursue remedies against a 
seller of a recalled product, although such an action is possible under 
Section 24 of the CPSA in certain cases. The Consent Agreement in this 
case requires that Britax disseminate the Information Campaign to 
consumers and others--including the secondary markets eBay, Craigslist, 
OfferUp, Goodwill Industries, The Salvations Army and The National 
Association of Resale Professionals--and provide remedies upon request. 
Purchasers of second-hand strollers are able to take advantage of the 
Information Campaign and request a remedy, including a Modified Quick 
Release or Modified Thru-Bolt, with a limit of one remedy per stroller. 
Under some circumstances, additional remedies may be available under 
state law.
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 29. What steps should the CPSC take to make this recall 
more effective to prevent other children from being injured or killed 
from these unstable dressers?
    Answer. CPSC reissued its recall notice in November 2017 after an 
additional fatality was reported. CPSC continues to monitor the 
response rate to the recall and will take further action if warranted.

    Question 30. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    Answer. I cannot comment on this matter as part of a published 
public hearing record but CPSC staff is available to discuss this issue 
with you privately.

    Question 31. Have you met with IKEA? When you met with them, how 
did you discuss holding IKEA accountable for this recall?
    Answer. I have had several conversations with Ikea on various 
issues.

    Question 32. What have you done and what are you committed to doing 
to decreasing the numerous amount of deadly dressers still in people's 
homes?
    Answer. I called on the ASTM Subcommittee for Clothing Storage 
Units to strengthen their standard by expanding the scope of the 
standard to include shorter units and to increase the testing weight 
for tip-over testing. Changes to expand the scope of the standard have 
already been adopted. The Commission has also directed the staff to 
develop a proposed rule to set mandatory standards for clothing storage 
units.
    While the changes in the standard will make new dressers safer, 
there are products in consumers' homes that do not meet the standard. 
That's why I continue to make CPSC's Anchor It! campaign a priority and 
work with retailers to make sure furniture anchors are available and 
that consumers are aware of them.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 33. When is this study going to be complete?
    Answer. On July 25, 2019, EPA released its Synthetic Turf Field 
Recycled Tire Crumb Rubber Characterization Research Final Report: Part 
1--Tire Crumb Rubber Characterization.
    The Synthetic Turf Exposure Characterization data collection 
(ATSDR) is still ongoing; the CPSC's Playground Use Survey is 
completed, and a final contractor's report is due to staff by July 26, 
2019. Any CPSC Risk Assessment studies regarding recycled tire rubber 
in playground surfacing will consider the findings of the Tire Crumb 
Characterization and the Synthetic Turf Exposure Characterization. CPSC 
staff anticipates a Risk Assessment for playground surfacing could be 
available about 12 months after we receive the Synthetic Turf Exposure 
Characterization Report.

    Question 34. What is the delay?
    Answer. CPSC staff does not agree that there is a delay. The 
initial Federal Research Action Plan on Recycled Tire Crumb Used on 
Playing Fields and Playgrounds (FRAP) announcement noted that the 
schedule was ambitious. The deliverable described in the February 2016 
FRAP announcement was, ``By the end of 2016, the agencies anticipate 
releasing a draft status report that describes the preliminary findings 
and conclusions of the research through that point in time.'' A draft 
status report was published at the end of 2016; that milestone was met. 
However, because there was still work to be done to answer these 
questions, the partner agencies continued with their research in 
pursuit of quality science and in compliance with time-consuming 
administrative steps required by law (e.g., Paperwork Reduction Act).
    The CPSC's Playground Use Survey is completed, and a final 
contractor's report is due to staff by July 26. This contract is on 
schedule. The survey is the only task specifically assigned to CPSC in 
the FRAP announcement. When the FRAP partner agencies' data are 
available, CPSC staff will act as quickly as possible to apply those 
data in risk assessment activities specific to playground surfaces.

    Question 35. Do you believe the EPA and partner agencies are still 
fully completed to this research? Have you talked to them about it?
    Answer. Work at EPA and ATSDR has been continuous since 2016 (see 
response to Question 33). CPSC staff keeps apprised of the activities 
at EPA and ATSDR. EPA is planning to brief CPSC senior management on 
its Tire Crumb Characterization Report. ATSDR's Synthetic Turf Exposure 
Characterization data collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of Ikea's recall on unstable dressers.\3\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
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    \3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 36. Does it make sense that the CPSC is redacting 
information about public Facebook posts about recalls? Do you think it 
is appropriate that Section 6(b) really limits such information 
disclosures?
    Answer. Section 6(a)(3) of the Consumer Product Safety Act, 15 
U.S.C. Sec. 2055(a)(3), requires the Commission to, prior to the 
disclosure of any information which will permit the public to ascertain 
readily the identity of a manufacturer or private labeler of a consumer 
product, offer such manufacturer or private labeler an opportunity to 
mark such information as confidential and barred from disclosure. The 
Commission will withhold from disclosure information that meets the 
criteria specified at 16 C.F.R. Sec. 1015.18(c). The Commission expects 
firms requesting exemption from disclosure to intend in good faith to 
assist the Commission in the defense of any judicial proceeding that 
might be brought to compel the disclosure of information which the 
Commission determined to be a trade secret or privileged or 
confidential commercial or financial information. 16 C.F.R. 
Sec. 1015.18(e).

    Question 37. Will you commit to making sure the CPSC does not 
restrict the disclosure of information more than is required by 
statute?
    Answer. CPSC will follow the requirements of Section 6(b) and 
applicable regulations.

    Question 38. As long as Section 6(b) is on the books will you 
commit to support the agency restricting disclosure of information 
about a product or company to no greater an extent than required by 
statute?
    Answer. CPSC will follow the requirements of Section 6(b) and 
applicable regulations.
Internet of Things
    Acting Chair Buerkle recently said in reply to a letter in reply to 
consumer privacy organizations, ``CPSC's authority will not generally 
extend to situations solely related to consumer privacy or data 
security, that do not pose a risk of physical injury or illness, or 
property damage.''
    On the contrary, the CPSC should be doing more to recognize that 
consumer privacy and data security pose real and urgent threats to the 
well-being and safety of consumers. Insecure products can be hacked to 
spy on children, trip up smoke detectors, and more.

    Question 39. How can the CPSC leverage its expertise in keeping 
dangerous products off of shelves, to also keep insecure products that 
threaten people's safety out of people's homes?
    Answer. The Internet of Things (IoT) presents new and unique 
challenges and opportunities for the CPSC, because Internet 
connectivity introduces new capabilities over a wide spectrum of 
products. To that end, CPSC is taking a three-pronged approach to 
address the safety of Internet connected consumer products:

   Developing staff expertise in internet-connected devices 
        (workforce development)

   Participation in and development of voluntary standards 
        (domestic and international),

   Collaboration with other Federal agencies, foreign 
        governments, and with a wide range of stakeholders.

    Under my leadership, CPSC staff established an Interagency Working 
Group on Consumer Product Safety of Internet Connected Products. Staff 
also actively participates in the development of consumer product 
consensus-based standards, and voluntary standards for Internet 
connected consumer products.

    Question 40. What is the best way to protect vulnerable consumers 
as new products enter the market without standards--such as connected 
products? Is enough money allocated to compliance and enforcement 
divisions?
    Answer. The constantly evolving marketplace, including the 
introduction of new technologies, requires substantial CPSC staff 
resources with increasingly specialized knowledge to enable the agency 
to protect vulnerable consumers. New products create costs associated 
with new modes of analysis and new tools for technical assessment to 
determine if a substantial product hazards exists or if new standards 
changes are warranted.
    CPSC's budget has not kept pace with inflation, and I believe 
further resources are needed for these and other emerging issues.
Kids in Danger Report: Social Media Practices
    Kids In Danger (KID), a non-profit organization dedicated to 
protecting children by fighting for product safety, released its latest 
report in March.\4\ It found that both the CPSC and manufacturers 
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
    \4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
---------------------------------------------------------------------------
    CPSC posted only 45 percent of 2018 children's product recalls on 
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
    In addition, of the 48 manufacturers that issued recalls in 2018, 
only 31 percent were announced on the company's Facebook page--down 
from 51 percent in 2017.

    Question 41. Why isn't the CPSC using all tools at its disposal to 
make recalls are made known?
    Answer. CPSC strives to maximize direct notification to the best of 
the firm's capabilities when negotiating recalls. CPSC evaluates the 
firm's presence and activity on social media platforms, including 
Facebook, to determine whether a notice should be posted on the 
platform as part of a corrective action plan.

    Question 42. Why isn't the CPSC requiring manufacturers to issue 
notices on the manufacturers' Facebook pages? Why isn't that a standard 
part of the corrective action plan?
    Answer. See reply to question 41.
Can a product that meets an existing standard be defective?
    We are hearing increasingly often from companies that just because 
their product is meeting a safety standard, their product can't be 
defective and can't be subject to a recall. For example, Britax, the 
maker of the B.O.B. jogging stroller argued that a product defect 
required the violation of a safety standard. And the B.O.B. had passed 
a test that required the removal front wheel to stay on after a strong 
pull.
    IKEA has also said the same thing about the Hemnes 8-drawer dresser 
that killed a 2 year-old.

    Question 43. If a product meets an existing standard but is killing 
or seriously injuries children and babies, wouldn't you agree the 
product should be recalled?
    Answer. Dangerous products should be removed from the market. CPSC 
has a number of tools, including recalls, and safety standards 
development, to improve product safety.

    Question 44. Would you agree that the CPSC has the authority to 
recall a product if it believes it poses an unreasonable risk of 
serious injury or contains a defect that presents a substantial product 
hazard--even if the product meets all existing standards?
    Answer. Yes. A product's compliance with a voluntary safety 
standard does not preclude a finding of defect. Specifically, 16 C.F.R. 
Part 1115.8(a) states: ``whether a product is in compliance with 
applicable voluntary safety standards may be relevant to the Commission 
staff's preliminary determination of whether that product presents a 
substantial product hazard under section 15 of the CPSA.''
    Staff may also seek a recall for a defect even if a product 
complies with a mandatory safety standard. Firms are required to report 
to the Commission if their product does not comply with a mandatory 
standard or a voluntary standard upon which the Commission has relied. 
Compliance with a ``relevant mandatory product safety standard does 
not, of itself, relieve a firm from the need to report to the 
Commission a product defect that creates a substantial product hazard 
under section 15 of the CPSA . . . [however] it will be considered by 
staff in making the determination of whether and what type of 
corrective action may be required.'' 16 C.F.R. Sec. 1115.8(b).

    Question 45. Can a product be recalled if it meets an existing 
standard?
    Answer. See reply to question 44.

    Question 46. Wouldn't you agree that if deaths and injuries are 
occurring, the products may still be defective and a recall may be in 
order?
    Answer. See reply to question 44.

    Question 47. What are some examples of companies that have 
voluntarily recalled products that didn't necessarily violate a 
specific product standard?
    Answer. Regulated products may meet a mandatory standard but could 
still create a substantial product hazard for reasons not necessarily 
addressed by the mandatory standard. Below are some recent examples of 
recalled products that did not violate an applicable mandatory 
standard:

    https://www.cpsc.gov/Recalls/2019/Lidl-Recalls-Wooden-Grasping-
Toys-Due-to-Choking-Hazard

    https://www.cpsc.gov/Recalls/2019/Disney-Recalls-the-Forky-11''-
Plush-Toy-Due-to-Choking-Hazard

    https://www.cpsc.gov/Recalls/2019/Electric-Bicycles-Recalled-by-
Faraday-Seat-Post-Poses-Fall-Hazard

    Question 48. What role do you have in encouraging a manufacturer to 
agree to a voluntary recall?
    Answer. CPSC career staff communicate with the affected firm and 
negotiate the terms of the recall. On occasion staff will request that 
I contact the company at the executive level to supports staff's 
efforts.

    Question 49. What role do you have in directing staff to have 
conversations with a manufacturer to encourage a reluctant company into 
agreeing to a voluntary recall?
    Answer. Compliance staff brief me regularly on ongoing matters 
including whether they feel a recall is needed. On occasion staff will 
request that I contact the company at the executive level to supports 
staff's efforts. CPSC career staff communicate with the affected firm 
and negotiate the terms of the recall.

    Question 50. What role do you expect other Commissioners to have in 
encouraging a manufacturer to agree to a voluntary recall?
    Answer. None.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 51. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Answer. Yes, CPSC regularly performs market surveillance including 
collecting samples at retail and on-line to identify non-compliant 
product.

    Question 52. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    Answer. CPSC has notified firms and sought corrective action when 
non-compliant products are identified.

    Question 53. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    Answer. No.
CPSC and DOJ Cooperation: Defective Humidifiers by Gree Electric 
        Appliances
    On March 29, 2019, the Department of Justice announced that it is 
criminally indicting two corporate executives at Gree Electric for 
``their roles in a scheme involving defective and dangerous consumer 
products'' under the Consumer Product Safety Act.\5\ In 2016, the CPSC 
issued a civil penalty against this company, Gree, for failing to 
report deaths and injuries with its dehumidifiers. Acting Chairman 
Buerkle opposed this civil penalty and was the sole dissenting vote 
against the civil penalty at the time.\6\
---------------------------------------------------------------------------
    \5\ https://www.justice.gov/opa/pr/two-corporate-executives-
indicted-first-ever-criminal-prosecution-failure-report-under
    \6\ https://www.cpsc.gov/content/gree-agrees-to-pay-record-1545-
million-civil-penalty-improve-internal-compliance-for-failure
---------------------------------------------------------------------------
    DOJ, on the other hand, clearly thought the violations were so 
egregious that criminal indictments were warranted. The indictment 
describes a failure to report to the CPSC as required under the law and 
a conspiracy to defraud the agency.

    Question 54. Why did you oppose this civil penalty and what is your 
threshold for holding companies accountable when they violate CPSC 
laws?
    Answer. I cannot comment on this pending matter.

    Question 55. I note there is no quote from the CPSC in the DOJ's 
press release announcing these criminal charges under the Consumer 
Product Safety Act. Did you disagree with DOJ's indictment? Do you 
think it was appropriate?
    Answer. I cannot comment on this pending matter.
Authority of the Chairman to Direct CPSC Staff
    The CPSC voted to move forward on pushing for a mandatory recall of 
the BOB jogging strollers in February 2018 by a 3-1 vote, with Acting 
Chairman Buerkle being the lone dissenting vote. After a shift from a 
Democratic majority to a Republican majority, the CPSC voted to settle 
with the company to have a one-year ``information campaign.''
    This happened despite clear guidance from career staff that the 
product should be recalled.

    Question 56. Are there other instances in which CPSC career staff 
has wanted to take public positions on a product hazard--or take action 
on a product hazard--that you, as Acting Chair have played any role in 
preventing?
    Answer. No.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 57. How many FTEs are vacant?
    Answer. As of July 13, 2019 FTE level at CPSC is 544, just over our 
authorized level of 539 for FY19. We have supplemented our permanent 
staff with temporary appointments while we are actively recruiting for 
40 positions.

    Question 58. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Answer. Depending on the exact position and if we have back-up 
expertise available to support the duties for a vacant position, it is 
sometimes difficult to continue to perform certain functions when a 
position is vacant. In the field and at the ports, we have staff 
available throughout the country who can travel and provide support 
while a position is vacant. On a case-by-case basis, we may also 
temporarily detail an employee, reassign duties to another employee, 
contract for services, or delay an activity until a position is filled.

    Question 59. Why are these vacant? When do you anticipate they will 
be filled?
    Answer. Many of our positions are in difficult-to-recruit, highly 
technical positions, such as Mathematical Statistician, Economist, and 
Information Technology Specialists. We are actively recruiting using 
all of our available recruiting methods and tools for all of our career 
vacant positions. We anticipate filling positions as soon as highly 
qualified selectees are identified. Our average time-to-recruit is just 
under 83 days.
    Question 60. Is there anything preventing these FTEs from being 
filled?
    Answer. No.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                         Hon. Ann Marie Buerkle
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (``FDA'') policy 
could undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    Answer. CPSC has notified firms and sought corrective action when 
non-compliant products are identified.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Answer. Yes, CPSC has communicated with FDA to discuss each 
agency's respective requirements.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    Answer. CPSC has issued guidance on the restricted flow 
requirements.
    https://www.cpsc.gov/s3fs-public/
NoticeofRestrictedFlowTP.March82019.pdf
Children's Cosmetics:
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4,300 children are treated in emergency 
departments for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    Answer. The definition of ``consumer product'' in the Consumer 
Product Safety Act (CPSA) excludes ``cosmetics'' as that term is 
defined in the Federal Food Drug and Cosmetic Act. The personal care 
products specified in the question (nail care, hair care, skin care, 
and fragrance products) are likely to be cosmetics and fall under FDA's 
authority.
    CPSC does have authority over one aspect of cosmetics. Under the 
Poison Prevention Packaging Act (PPPA), CPSC can require special 
packaging (sometimes called child resistant packaging) for household 
substances, including cosmetics, if such packaging is necessary to 
protect children from serious injury or illness resulting from 
handling, using or ingesting the substance.

    Question 2. Could product safety standards be developed that would 
reduce the risk of injury to children from personal care products?
    Answer. Yes.

    Question 3. Do you believe warning letters are effective at 
reducing injury? Why or why not?
    Answer. Warning letters can be an effective tool to educate 
consumers in order to reduce the chance of injury. CPSC often discusses 
``hidden hazards'' associated with consumer products where the risk of 
injury may not be apparent to the consumer. Educating consumers about 
such hazards can allow them to make safe choices.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                         Hon. Ann Marie Buerkle
    Question 1. As an Independent Regulatory Agency, the Consumer 
Product Safety Commission's (``CPSC'') rulemaking activities do not 
include compliance with Executive Order 12866's cost benefit analysis 
requirements. Instead, only a small subset of rulemakings conducted by 
the CPSC are directed to consider costs and benefits--those regulations 
promulgated under section 9 of the Consumer Product Safety Improvement 
Act (CPSIA). An important component of Executive Order 12866 is the 
centralized review significant rules by the Office of Information and 
Regulatory Affairs (``OIRA''). While OIRA is not called upon to review 
`significant' rules, which include a cost benefit analysis, they are 
present in other activities performed by the CPSC, mainly compliance 
with the Paperwork Reduction Act (``PRA'') and the Congressional Review 
Act (``CRA'').
    a) For activities performed by the CPSC that require OIRA 
engagement under the PRA and CRA, what have you experienced in the 
CPSC's dialogue with OIRA? Has the CPSC experienced delays in action 
timelines due to OIRA review? How have disputes with OIRA been 
resolved?
    Answer. OIRA's review of CPSC's final rules to determine whether 
they are ``major'' rules under the CRA has been quite prompt and has 
not created any delays for CPSC. Regarding the PRA, OIRA sometimes 
raises questions about aspects of some of CPSC's proposed collections 
of information. In those circumstances, CPSC staff meets or has 
telephone conferences with CPSC's OMB desk officer and OIRA staff to 
resolve outstanding questions.

    b) For rulemakings promulgated under Section 9 of the CPSIA, what 
are the benefits and costs of not submitting a cost-benefit analysis 
for OIRA review?
    Answer. Section 9 of the Consumer Product Safety Act (CPSA) 
requires the Commission to conduct a regulatory analysis that includes 
a description of the anticipated benefits and costs of consumer product 
safety rules issued under that section. Because the Commission has 
never been required to submit its regulatory analyses to OIRA for 
review, it is difficult to assess the costs and benefits of such a 
review.

    Question 2. Under Section 3507(c) of the Paperwork Reduction Act, 
the commission of an Independent Regulatory Agency can overrule `the 
Director's disapproval or exercise of authority'' via a majority vote.
    a) What has been your experience, as a commissioner and acting-
chairwoman, in the willingness of the CPSC to vote to override the 
decision of the Director?
    Answer. This issue has not arisen while I have been a commissioner 
or acting chair. Since the enactment of the PRA, the CPSC has not taken 
any actions to overrule any Director's decisions. CPSC staff works with 
CPSC's OMB desk officer, as necessary, before any PRA submissions to 
obtain approval.

    b) Would it be beneficial to the functioning of the CPSC to expand 
the scope of the language in Section 3507 (c) to other situations that 
require engagement with the Executive, such as the CRA?
    Answer. Currently, under the CRA, the only aspect that OIRA reviews 
is whether a CPSC final rule is a ``major'' rule. Most of the 
Commission's rules are not major and their non-major status is usually 
quite clear. To date, OIRA has not disagreed with CPSC staff on the 
question of whether a particular rule is major.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Tammy Duckworth to 
                         Hon. Ann Marie Buerkle
    While much progress was made on sudden unexplained infant death 
(``SUID'') in the 1990s, little progress has been made in reducing SUID 
over the past decade. In some high-risk groups, rates are going in the 
wrong direction. The U.S. Centers for Disease Control and Prevention 
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in 
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants 
sleep. The FDA has warned against sleep positioners and safe sleep 
advocates warn against the use of crib bumper pads. Many of these 
products meet no standard--mandatory or voluntary. The CPSC is in a 
unique position to help address the public health problem of SUID 
through its jurisdiction over infant products and opportunities to 
communicate with families, caregivers and health care providers.

    Question. What will you do, beyond education and awareness, to push 
CPSC to use its authority to increase safe sleep among high-risk 
families and to reduce the hazard posed by certain infant sleep 
products such as crib bumpers and other untested products?
    Answer. In addition to our safe sleep campaign, which has been a 
priority of mine, we have a number of standards that we work on to 
protect infants. In addition, the CPSC is moving forward with a 
rulemaking on inclined sleep products and will be addressing crib 
bumpers soon to prevent injuries and deaths.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jerry Moran to 
                          Hon. Robert S. Adler
    Question 1. Consumers Union was one of the recipients of consumer 
PII and 6(b)-protected information from the Clearinghouse. You have a 
long record with this organization, including serving as a director for 
20 years. While the Ethics Pledge from the Obama Administration only 
prohibits participation in agency matters involving former employers 
for two years, Federal ethics regulations require specific 
authorization before participating in matters where your impartiality 
is likely to be questioned. You have committed to the Senate that you 
would resolve potential conflicts according to the terms of your ethics 
agreement. Have you consulted the Commission's designated agency 
official about your participation in matters relating to Consumers 
Union and the unauthorized disclosure?
    Answer. My ethics pledge regarding Consumers Union was to recuse 
myself from any decision-making that involved Consumers Union for one 
year, which I did. Since then, I have treated CU as I do all other 
stakeholders--business and public citizen groups alike--with 
transparency and fairness.
    Other than being briefed on the Commission's efforts to retrieve 
the data, I have not been involved in the agency's response to the 
information disclosure. Accordingly, I see no potential conflict that 
would require consultation with the Commission's designated ethics 
official.

    Question 2. I understand that the safety of older Americans has 
always been one of your top priorities while on the Commission. I share 
your concerns and appreciate your leadership on this issue. What more 
can the CPSC do to ensure seniors are protected?
    Answer. Thank you for the question and for your concern. There are 
several things the agency can and must do.
    First and foremost, we must gather and disseminate data regarding 
products that disproportionately injure and kill seniors. We know, for 
example, that loose fluffy robes that many seniors wear all too often 
can catch on fire with tragic results. Although CPSC has occasionally 
published studies on senior hazards, I believe that we should do so on 
an annual basis.
    Second, where products have been identified that disproportionately 
harm seniors, I believe Congress should provide CPSC with streamlined 
rulemaking authority to provide protection for this vulnerable 
population on a timely basis. Congress provided such authority to CPSC 
in 2008 in the Consumer Product Safety Improvement Act for infant 
products because of its concerns for these involuntary risk takers. 
Similarly, impaired senses can undermine seniors' awareness of risks, 
thereby placing them in an analogous high-risk setting to children.
    Third, CPSC should undertake more outreach to the business 
community to stimulate the development of innovative products that 
enhance the safety of seniors. For example, at a recent International 
Consumer Health and Safety Organization (ICPHSO) conference, we saw a 
number of products that could make seniors' lives safer. One particular 
device seemed extremely creative. A manufacturer has developed a razor 
for caretakers to use to more safely shave seniors who lack the 
capacity to shave themselves. Approaches like this can make a big 
difference in seniors' lives.
    Finally, where CPSC has identified products that disproportionately 
harm seniors, but do not rise to the level of presenting an 
unreasonable risk, we should, at a minimum, warn seniors of the 
enhanced risk of these products and, where warranted, require special 
warnings to seniors.
    All in all, there are many things that CPSC and the Congress can do 
to protect this growing demographic.

    Question 3. I am also a member of the Senate Appropriations 
Subcommittee on Financial Services and General Government, which 
oversees funding matters related to the CPSC. I remain committed to 
ensuring that the CPSC has the resources and tools that it needs to 
effectively protect the public from unreasonable risks of injury or 
death due to the use of consumer products. Does the Commission have 
adequate resources to fulfill its mission?
    a. If not, where should additional resources be targeted?
    Answer. As I mentioned during my Senate testimony on June 20, 2019, 
I believe that the Commission is in dire need of additional funding 
given the enormous safety mandate that we carry. For example, as I 
understand it, given CPSC's diminished funding in recent years, we have 
had to move funds otherwise available for safety projects to cover 
inflation costs and pay increases for agency staff.
    In addition, below is a list of critical safety projects that my 
colleague, Elliot Kaye and I, recently identified as projects that will 
not be funded without additional resources. Postponing or eliminating 
them will put consumers unnecessarily at risk.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                          Hon. Robert S. Adler
    Commissioner Kaye has testified that Section 6(b) of the Consumer 
Product Safety Act, which prohibits the Commission from releasing data 
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
    Recent history shows that 6(b) ties the hands of the agency because 
it prevents the agency from acting when it believes dangerous products 
are in the marketplace but the company making the products won't agree 
to voluntarily take it out of circulation.

    Question 1. Do you agree with Commissioner Kaye that we should 
eliminate 6(b)? If not, what other tools does the Commission have to 
deal with bad actors? Will you commit to supporting the use of those 
tools as a CSPC Commissioner?
    Answer. Yes. I strongly believe Congress should repeal section 
6(b). As I have said for years, these burdensome requirements, which 
apply only to CPSC--and no other Federal agency--hamper the public's 
ability to make informed choices about dangerous products. I agree with 
Commissioner Kaye when he said that ``[p]eople die because of section 
6(b).''
    In my experience, manufacturers rarely invoke section 6(b) to 
improve the accuracy or fairness of proposed CPSC information releases. 
Instead, they use the threat of litigation under section 6(b)(3)(A) to 
try to water down Commission press releases designed to warn the public 
of dangerous products.
Tip Overs
    Question 1. Please describe why the Commission has chosen not to 
use Section 104 rulemaking to address--at least in part--the tip-over 
issue.
    Answer. I cannot speak for other CPSC Commissioners on this topic, 
but I can state my strongly held view (and that of Commissioner Elliot 
Kaye) that the agency should have directed CPSC staff to begin the 
process of drafting a safety standard for children's clothing storage 
units (CSU). Commissioner Kaye and I offered an amendment to the 
Midyear Review in March of 2019 that would have begun this process. Our 
reasons were as follows: First, tipovers continue to kill and maim 
young children. Second, the furniture industry has shown extreme 
reluctance to address tipover hazards. Third, section 104 rulemaking, 
although not addressing all products that present a tipover risk to 
children, could eliminate a substantial portion of the hazard in a far 
more expeditious manner than the cumbersome procedures of rulemaking 
under sections 7 and 9 of the Consumer Product Safety Act. On this 
point, I note that CPSC has drafted roughly 20 safety standards for 
children's products under rule 104 in the last 10 years, while the 
agency has drafted only one standard under the time-consuming 
provisions found in sections 7 and 9 in the same time period (that 
standard was drafted under the Flammable Fabrics Act, which contains 
similar provisions to the CPSA).
    I have attached a dissenting statement that Commissioner Kaye and I 
submitted on March 20, 2019 in response to our colleagues' vote not to 
proceed with a section 104 rule in parallel with the agency's 
development of a tipover rule under sections 7 and 9.

    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    Answer. Please see attached CSPC staff response.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    Answer. Please see attached CSPC staff response.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Answer. Please see attached CSPC staff response.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                          Hon. Robert S. Adler
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Please see attached CSPC staff response.

    Question 2. Were you aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. I was aware of some infant deaths related to the Fisher-
Price Rock `n Play inclined sleeper before Consumer Reports published 
its article. It was my understanding that CPSC staff was investigating 
whether this product presented a ``substantial product hazard'' under 
section 15 of the Consumer Product Safety Act. At the time, I fully 
supported the publication of a general warning to the public about the 
hazards of inclined sleepers, although I do not think that initial 
warning was strong or effective enough. That is why I strongly 
supported the Commission issuing a unilateral press release warning 
consumers about the specific Fisher-Price sleeper--a move that was 
superseded by the publication of the Consumer Reports story and the 
firm's subsequent cooperation in a recall. Alas, I believe that the 
restrictions on information disclosure in section 6(b) slowed the 
Commission's ability to warn specifically about the hazards of Fisher-
Price's sleeper.

    Question 3. If Consumer Reports had not published its findings 
regarding infant fatalities caused by infant inclined sleepers, do you 
think these products would have been recalled when they were?
    Answer. Although I have no knowledge of the internal deliberations 
that led the firm to agree to undertake a recall, I think it is likely 
that Consumer Reports' story played a part in increasing public 
pressure and persuading the firm that the product should be recalled.

    Question 4. When do you think these products would have been 
recalled had Consumer Reports not published its findings regarding 
infant fatalities caused by infant inclined sleepers?
    Answer. This is not an easily answered question because before CPSC 
can order a mandatory recall, the agency must find, after an 
adjudicative hearing, that the product is a ``substantial product 
hazard.'' At the time of Consumer Reports' publication, CPSC staff was 
investigating whether the Rock `n Play constituted such a hazard. 
Absent such a finding, a recall could only take place with the 
manufacturer's approval. See my answer to Question 3 above.

    Question 5. After how many fatalities do you think these products 
should have been taken off the market?
    Answer. The Consumer Product Safety Act does not require a ``body 
count'' of injuries or fatalities in order for the agency to take 
remedial action. The agency should act whenever it acquires sufficient 
information to conclude that a product presents an unacceptable risk of 
injury.

    Question 6. How many fatalities must happen before the CPSC 
initiates a recall?
    Answer. See my answer to Question 5 above.
The Safe Sleep Act of 2019
    I have introduced the Safe Sleep Act of 2019. This legislation 
would prohibit the sale, manufacture, and import of infant inclined 
sleep products--a dangerous category of infant products, of which the 
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My 
legislation would also make sure that no new standard can be 
established for a sleep product that is inconsistent with safe sleep 
best practices.
    The American Academy of Pediatrics and safety advocates have long 
been clear that a safe sleep environment is a firm, flat, bare surface. 
It is clear that infant inclined sleep products are incompatible with 
the recommendations of the leading experts on safe sleep.

    Question 7. When it comes to establishing standards for infant 
sleep products, can you commit that you will only support standards 
that are consistent with safe sleep best practices agreed upon by 
pediatricians and safety advocates? If your answer is ``No,'' then why 
not?
    Answer. As a Commissioner, I am uncomfortable adopting a blanket 
endorsement of all such advice, even from a source I greatly admire. 
The data, science, and medical opinions of pediatricians and safety 
advocates do carry significant weight in my decision-making.

    Question 8. Do you believe that infant inclined sleep products are 
a category of products that can be considered safe for sleep?
    Answer. I find myself increasingly skeptical that sleep products 
that permit inclined surfaces for infants are safe. CPSC is currently 
re-thinking its prior support for such products, and I strongly support 
this re-examination.
Section 6(b)
    Question 9. What role do you believe Section 6(b) of the Consumer 
Product Safety Act (CPSA) plays in preventing the CPSC from acting 
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
    \1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits 
the Commission from disclosing information about a consumer product 
that identifies a manufacturer without the permission of the 
manufacturer.
---------------------------------------------------------------------------
    Answer. Section 6(b) requires the Commission, at least 15 days 
prior to issuing any information that would enable the public to 
identify a particular manufacturer (or private labeler), to provide a 
summary of the information that the Commission plans to release to the 
subject firm and to provide the firm a reasonable opportunity to 
comment on the proposed information release. This section requires the 
Commission to take reasonable steps to assure that the information to 
be released is accurate and that disclosure of the information is fair 
in the circumstances and reasonably related to effectuating the 
purposes of the Consumer Product Safety Act.
    No other agency in the Federal government operates under such 
restrictions. In practice, section 6(b) adds unnecessary time and 
expense to the Commission's operations. Although this section may look 
benign on its face, it hampers the timely release of critical safety 
information to the public with few, if any, corresponding benefits. In 
my experience, manufacturers rarely invoke section 6(b) to improve the 
accuracy or fairness of proposed CPSC information releases. Instead, 
they use the threat of expensive and lengthy litigation under section 
6(b)(3(A) to try to water down Commission press releases designed to 
warn the public of dangerous products.

    Question 10. Does that mean Section 6(b) is preventing the CPSC 
from fulfilling its stated mission to protect the public from 
unreasonable risks of serious injury or death?
    Answer. Yes, the existence of 6(b) increases the unreasonable risks 
of serious injury and death to which the public is exposed.

    Question 11. Do you think Section 6(b) protects consumers?
    Answer. Absolutely not. Section 6(b) endangers consumers by 
depriving them of the information they need to keep them and their 
families safe. Sadly, safety delayed too often is safety denied.
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 12. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    Answer. Please see attached CSPC staff response.

    Question 13. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    Answer. Please see attached CSPC staff response.

    Question 14. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. Please see attached CSPC staff response.

    Question 15. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. Please see attached CSPC staff response.

    Question 16. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    Answer. Please see attached CSPC staff response.

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    Answer. Please see attached CSPC staff response.

    Question 18. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    Answer. Please see attached CSPC staff response.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
    Two years ago, a video went viral showing near-tragedy from a 
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer 
dresser leading it to tip over--one being nearly crushed by it and the 
other miraculously saving him. The parents had posted the video to warn 
others about the danger.\2\ Tragically, five months later, the same 
kind of Ikea dresser fell on another 2-year old boy in his bedroom, 
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
    \2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
    While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions 
of this dresser, it has steadfastly refused to recall the 8-drawer 
dresser. IKEA refuses to recall it because it does not fail the 
existing furniture stability test. They maintain that the product is 
safe--even in the face of clear video evidence that it is not.
    Kids In Danger, Consumer Federation of America, Parents Against 
Tip-overs, and Consumer Reports have all called for the recall of this 
product.

    Question 19. Do you believe that the current standard governing 
furniture stability is inadequate?
    Answer. Yes. The standard fails to account for the fact that 
children in 2019 are bigger on average and engage in hanging and 
climbing activities on furniture in ways not addressed in the standard. 
I am greatly disappointed that the industry has failed to act to 
address these serious hazards in a timely manner.

    Question 20. Have you personally had any conversations with Ikea 
urging them to agree to a voluntarily recall of this dangerous product? 
Have you directed CPSC staff to have such conversations? Why or why 
not?
    Answer. I have not had any conversations with Ikea about the 
voluntary recall. As a general rule, I do not meet with companies to 
discuss the specifics of recalls because that is a job of CPSC staff 
under the executive and administrative direction of the Chairman.
    Section 4 of the Consumer Product Safety Act vests the Office of 
the Chairman with administrative and executive responsibility for 
directing CPSC staff. Accordingly, I generally lack the authority to 
direct staff's work. That said, I have strongly urged both the Chairman 
and staff to continue to work with Ikea to undertake a broader approach 
to its recall.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to see too many of 
these products sold on secondary online marketplaces.
    Question 21. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:

   When and how that relationship was established.

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.

   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.

    Answer. Please see attached CSPC staff response to all of the 
above.

    Question 22. What more could Internet platforms do to eliminate the 
illegal sale of recalled products on their platforms?
    Answer. This important issue should be part of the CPSC's ongoing 
efforts to improve recall effectiveness. As part of the agency's 
continued research on methods of protecting consumers from unsafe 
products, CPSC should partner with platforms and other technology 
providers to better coordinate in the interest of consumer safety.

    Question 23. Do you think platforms that facilitate the sale of new 
and used products should have clear policies expressly prohibiting the 
sale of recalled products in the United States?
    Answer. Yes. CPSA Section 19(a)(2)(B) prohibits the sale of 
recalled products, therefore CPSC should advise platforms to provide 
sellers with clear policies informing them of that prohibition.

    Question 24. Do you think users should be able to specifically flag 
the sale of recalled products?
    Answer. Yes. Platforms should provide a simple and recognizable 
method for consumers to ``flag'' recalled products. CPSC has numerous 
data sources, including a recall app and its product safety database 
that help platforms identify recalled products.

    Question 25. What kind of obligation do you think these companies 
have or should have in making sure recalled products are not illegally 
sold on their platforms?
    Answer. Currently, CPSC does not have jurisdiction over online 
platforms that do not sell goods themselves but only offer a 
marketplace for the sale or resale of goods. CPSC should partner with 
these platforms to create strong policies to prevent the sale of 
recalled goods.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan.
    Consumers lose out on important legal protections when recalls 
aren't called what they should be--``recalls.'' For example, they may 
be more susceptible to purchasing second-hand products that haven't 
been repaired.

    Question 26. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    Answer. Please see attached CSPC staff response.

    Question 27. How does the Consumer Product Safety Improvement Act 
(CPSIA) protect consumers from the sale of products that are subject to 
``information campaigns''?
    Answer. I believe that the public is unlikely to be alerted to the 
hazards of products in the market unless the Commission can properly 
refer to a Corrective Action Plan (CAP) as a ``recall.'' As 
Commissioner Elliot Kaye and I wrote in our dissent to Britax's 
``information campaign'' such an approach to remediation in the market 
is aggressively misleading. I deeply regret that the Commission's 
majority has offered its blessing to such an approach. Please see the 
attached dissenting opinions by Commissioner Kaye and me.

    Question 28. So, without an official recall, consumers who buy 
these strollers second-hand will have no legal remedy against the 
seller for being sold the product without being advised of the 
information campaign or for being sold the product without the ``free 
modified thru-bolt or free modified quick release'' incentive for 
consumers who participate in the information campaign. Is that correct?
    Answer. This is one of the many concerns I have with the CAP. 
Please see the attached dissent that Commissioner Kaye and I wrote.

    Question 29. Why is it so problematic that the CPSC's settlement 
with Britax is not characterized as a ``recall''?
    Answer. Britax's settlement with CPSC should have been 
characterized as a recall. Please see the attached dissent that 
Commissioner Kaye and I wrote.
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 30. What steps should the CPSC take to make this recall 
more effective to prevent other children from being injured or killed 
from these unstable dressers?
    Answer. CPSC should continue to work with IKEA to persuade them to 
develop a more comprehensive approach to alerting parents of the 
hazards of the IKEA dressers. While not all the hazardous dressers can 
be removed from consumers' homes, a better response rate should be 
sought. A company with IKEA's marketing expertise in selling these 
dressers should be able to take more effective recall measures.

    Question 31. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    Answer. Please see attached CSPC staff response.

    Question 32. Have you met with IKEA? When you met with them, how 
did you discuss holding IKEA accountable for this recall?
    Answer. I have met with IKEA to see their progress in improving the 
safety of their dressers and other easily tipped furniture.
    I have not met with IKEA about their recall of the hazardous 
dressers. As a general rule, I do not meet with companies to discuss 
the specifics of recalls because that is the job of CPSC staff under 
the executive and administrative direction of the Chairman. I closely 
monitor the progress of recalls and provide strong policy advice to 
both staff and the Chairman.

    Question 33. What have you done and what are you committed to doing 
to decreasing the numerous amount of deadly dressers still in people's 
homes?
    Answer. I have been and remain extremely concerned about the 
hazards associated with the tipover of furniture. Specifically, I have 
joined with my colleague, Commissioner Elliot Kaye, in seeking 
Commission approval for the development of a safety standard for 
children's clothing storage units (CSU) under section 104 of the 
Consumer Product Safety Improvement Act. We have argued--unsuccessfully 
so far--that CPSC needs to draft a rule under the streamlined 
provisions of section 104 to protect infants. We also support the 
Commission's direction to staff to develop a safety standard under 
sections 7 and 9 of the Consumer Product Safety Act for a broader rule 
to address tipover hazards. We are concerned, however, that relying 
solely on the latter approach will take many years for the standard to 
be drafted, whereas an effective 104 rule can be developed in a much 
shorter time frame. I note, for example, that CPSC has written roughly 
20 safety standards under section 104 in the past 10 years, whereas we 
have managed to eke out only one standard under the more cumbersome 
provisions found in sections 7 and 9 in that same time period.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 34. When is this study going to be complete?
    Answer. Please see attached CSPC staff response.

    Question 35. What is the delay?
    Answer. Please see attached CSPC staff response.

    Question 36. Do you believe the EPA and partner agencies are still 
fully completed to this research? Have you talked to them about it?
    Answer. Please see attached CSPC staff response.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of IKEA's recall on unstable dressers.\3\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
    \3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 37. Does it make sense that the CPSC is redacting 
information about public Facebook posts about recalls? Do you think it 
is appropriate that Section 6(b) really limits such information 
disclosures?
    Answer. Section 6(b) requires the Commission, at least 15 days 
prior to issuing any information that would enable the public to 
identify a particular manufacturer (or private labeler), to provide a 
summary of the information that the Commission plans to release to the 
subject firm and to provide the firm a reasonable opportunity to 
comment on the proposed information release. This section requires the 
Commission to take reasonable steps to assure that the information to 
be released is accurate and that disclosure of the information is fair 
in the circumstances and reasonably related to effectuating the 
purposes of the Consumer Product Safety Act.
    As noted in the question, no other agency in the Federal government 
operates under such restrictions. In practice, section 6(b) adds 
unnecessary time and expense to the Commission's operations. Although 
this section may look benign on its face, it hampers the timely release 
of critical safety information to the public with few, if any, 
corresponding benefits. In my experience, manufacturers rarely invoke 
section 6(b) to improve the accuracy or fairness of proposed CPSC 
information releases. Instead, they use the threat of expensive and 
lengthy litigation under section 6(b)(3)(A) to try to water down 
Commission press releases designed to warn the public of dangerous 
products.
    With respect to the propriety of redacting publicly available 
information on Facebook, I see no basis whatsoever for doing that. Once 
a recall is approved by CPSC and a subject firm, information that the 
parties have agreed to release about the recall should be available to 
the public in all settings and places. That said, as I understand it, 
manufacturers and private labelers almost always insist that 
effectiveness information specific to their recalls be treated as 
confidential business information pursuant to section 6(a)(2) of the 
Consumer Product Safety Act. Whether such claims are valid is an open 
question.

    Question 38. Will you commit to making sure the CPSC does not 
restrict the disclosure of information more than is required by 
statute?
    Answer. I am committed to working with my colleagues on the 
Commission to limit the harmful effects of 6(b). When I was acting 
chairman, in February 2014, the Commission published a Notice of 
Proposed Rulemaking (NPR) to modernize and streamline our regulations 
relating to 6(b). I continue to support those amendments and continue 
to engage my fellow commissioners on finding the best path forward. 
Please see the attached statement I issued upon approval of the NPR.

    Question 39. Do you think Section 6(b) hinders the agency's safety 
mission (yes or no) and as long as that provision is on the books will 
you commit to support the agency restricting disclosure of information 
about a product or company to no greater an extent than required by 
statute?
    Answer. Yes, 6(b) hinders CPSC's safety mission. As discussed 
above, I believe CPSC's regulations should be amended so that the 
disclosure of information is no more than required by statute.

    Question 40. What Internet platforms does CPSC have established 
relationships with?
    Answer. Please see attached CSPC staff response.

    Question 41. What special tools do CPSC staff have to review and 
flag violative products sold on the Internet?
    Answer. Please see attached CSPC staff response.
Internet of Things
    Acting Chair Buerkle recently said in reply to a letter in reply to 
consumer privacy organizations, ``CPSC's authority will not generally 
extend to situations solely related to consumer privacy or data 
security, that do not pose a risk of physical injury or illness, or 
property damage.''
    On the contrary, the CPSC should be doing more to recognize that 
consumer privacy and data security pose real and urgent threats to the 
well-being and safety of consumers. Insecure products can be hacked to 
spy on children, trip up smoke detectors, and more.

    Question 42. How can the CPSC leverage its expertise in keeping 
dangerous products off of shelves, to also keep insecure products that 
threaten people's safety out of people's homes?
    Answer. If an unsafe product creates an unreasonable risk of 
injury, the CPSC can either write a safety standard to reduce or 
eliminate the unreasonable risk or, in an appropriate case, ban the 
product. If a product in the market presents a substantial product 
hazard, CPSC has the authority to pursue a recall of the product.

    Question 43. What is the best way to protect vulnerable consumers 
as new products enter the market without standards--such as connected 
products? Is enough money allocated to compliance and enforcement 
divisions?
    Answer. The best way to protect consumers from the risks of new 
products entering the market without standards is through enhanced 
market surveillance. I believe that the agency needs added resources to 
monitor and address the numerous safety issues that arise with respect 
to unsafe connected products that fall under our jurisdiction.
Kids in Danger Report: Social Media Practices
    Kids In Danger (KID), a non-profit organization dedicated to 
protecting children by fighting for product safety, released its latest 
report in March.\4\ It found that both the CPSC and manufacturers 
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
    \4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
---------------------------------------------------------------------------
    CPSC posted only 45 percent of 2018 children's product recalls on 
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
    In addition, of the 48 manufacturers that issued recalls in 2018, 
only 31 percent were announced on the company's Facebook page--down 
from 51 percent in 2017.

    Question 43. Why isn't the CPSC using all tools at its disposal to 
make sure recalls are made known?
    Answer. CPSC should be using all available communication strategies 
to publicize recalls. While the agency is unfairly limited in many of 
its communications by section 6(b)'s restrictions on information 
disclosure, there are times when the agency could and should do more to 
warn consumers of risks from product categories. In those instances 
where 6(b) is not implicated, I continue to urge our Communications 
division to think creatively about ways to notify consumers about 
hazardous products.

    Question 44. Why isn't the CPSC requiring manufacturers to issue 
notices on manufacturers' Facebook pages? Why isn't that a standard 
part of the corrective action plan?
    Answer. Firms that do not voluntarily agree to use social media are 
not required to do so by our regulations. Our regulations should be 
modernized to address the use of social media and other available 
technologies to alert consumers about recalled products.
Can a product that meets an existing standard be defective?
    We are hearing increasingly often from companies that just because 
their product is meeting a safety standard, their product can't be 
defective and can't be subject to a recall. For example, Britax, the 
maker of the B.O.B. jogging stroller argued that a product defect 
required the violation of a safety standard. And the B.O.B. had passed 
a test that required the removal front wheel to stay on after a strong 
pull.
    IKEA has also said the same thing about the Hemnes 8-drawer dresser 
that killed a 2 year-old.

    Question 45. If a product meets an existing standard but is killing 
or seriously injuries children and babies, wouldn't you agree the 
product should be recalled?
    Answer. Yes. Safety rules can sometimes fall short in fully 
protecting the public or can become obsolete in light of new 
technologies. That a product complies with an existing standard should 
never be an impediment to corrective action. On this point, I note that 
the law has long been clear that compliance with either a government or 
voluntary standard may provide some evidence of due care in a product 
liability case, but is not dispositive.
    In other words, one hopes that safety standards will reduce or 
eliminate injuries and fatalities, but they should never be relied upon 
as an exclusive approach to safety.

    Question 46. Would you agree that the CPSC has the authority to 
recall a product if it believes it poses an unreasonable risk of 
serious injury or contains a defect that presents a substantial product 
hazard--even if the product meets all existing standards?
    Answer. Yes. See my answer to question 45.

    Question 47. Can a product be recalled if it meets an existing 
standard?
    Answer. Yes. See my answer to question 45.

    Question 48. Wouldn't you agree that if deaths and injuries are 
occurring, the products may still be defective and a recall may be in 
order?
    Answer. Yes. See my answer to question 45.

    Question 49. What are some examples of companies that have 
voluntarily recalled products that didn't necessarily violate a 
specific product standard?
    Answer. I am reluctant to single out specific companies. Suffice it 
to say, one of the major building blocks of CPSC authority is section 
15, which specifically authorizes the agency to seek recalls when their 
product contains defects that present a substantial product hazard even 
when there is no applicable safety standard.
    Question 50. What role do you have in encouraging a manufacturer to 
agree to a voluntary recall?
    Answer. As a general rule, I do not meet with companies to discuss 
the specifics of recalls because that is a job of CPSC staff under the 
executive and administrative direction of the Chairman. I believe that 
manufacturers who distribute dangerous products in the market should 
take strong and timely measures to recall them.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 51. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Answer. Please see attached CPSC staff response.

    Question 52. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    Answer. Please see attached CSPC staff response.

    uestion 53. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    Answer. Please see attached CSPC staff response.
Keeping Fellow Commissioners in the Dark
    I am troubled by reporting that Acting Chairman Buerkle withheld 
information from fellow Commissioners about defect investigations and 
incident data--even when briefings have been requested. All 
commissioners must have fair access to the information they need in 
order to make informed and educated decisions--especially when voting 
on matters.
    For example, The Washington Post has already publicly reported on 
how Democratic Commissioners felt in the dark about the Britax jogging 
stroller investigation and frustrated by Acting Chairman Buerkle's 
control of the flow of information.

    Question 54. Did you feel like you were adequately informed and 
briefed prior to your vote agreeing on the Britax settlement, and in 
retrospect?
    Answer. After a formal staff briefing on the matter, which my 
fellow Commissioners and I sought, I feel that I was adequately 
informed and briefed prior to the Britax vote. However, I do not 
believe I was adequately informed prior to the briefing. The only 
notice I had received was a one-line summary in a report by Compliance 
staff that simply noted that staff had opened a defect investigation to 
address ``front wheel detachment'' on Britax strollers. The report 
failed to indicate that staff had been negotiating with the firm for 
many months and had reached an impasse. I believe that the Commission 
should have been alerted to the impasse and briefed about the issues.

    Question 55. What do you need to do your job better?
    Answer. The agency needs additional resources to monitor and 
address the numerous safety issues that arise with respect to the 
roughly 15,000 product categories that fall under our jurisdiction.

    Question 56. Do you feel like you have access to CPSC staff 
expertise necessary to faithfully perform your job duties?
    Answer. Generally, yes. There have been occasions, however, where I 
had to pursue information from staff that should have been more readily 
available.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 57. How many FTEs are vacant?
    Answer. Please see attached CSPC staff response.

    Question 58. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Answer. Please see attached CSPC staff response.

    Question 59. Why are these vacant? When do you anticipate they will 
be filled?
    Answer. Please see attached CSPC staff response.

    Question 60. Is there anything preventing these FTEs from being 
filled?
    Answer. Please see attached CSPC staff response.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                          Hon. Robert S. Adler
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (FDA) policy could 
undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    Answer. Please see attached CSPC staff response.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Answer. Please see attached CSPC staff response.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    Please see attached CSPC staff response.
Children's Cosmetics
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4300 children are treated in emergency departments 
for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    Answer. Although CPSC compiles data regarding such injuries, 
section 3(a)(5)(H) of the Consumer Product Safety Act generally 
excludes cosmetics from CPSC jurisdiction. Please also see attached 
CSPC staff response.

    Question 2. Could product safety standards be developed that would 
reduce the risk of injury to children from personal care products?
    Answer. Yes, although I do not believe that CPSC has the authority 
to address cosmetics.

    Question 3. Do you believe warning letters are effective at 
reducing injury? Why or why not?
    Answer. Depending on the nature of the warning letters, I believe 
they can play a role in reducing injury. Eliminating hazards from the 
market through recalls is much more effective, and we should always 
seek to do that first.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Tammy Duckworth to 
                          Hon. Robert S. Adler
    While much progress was made on sudden unexplained infant death 
(``SUID'') in the 1990s, little progress has been made in reducing SUID 
over the past decade. In some high-risk groups, rates are going in the 
wrong direction. The U.S. Centers for Disease Control and Prevention 
(CDC) estimate that in 2017 there were about 3,600 SUID cases in the 
U.S. Many products--everything from crib bumpers, nests or pillow--like 
products and sleep positioners--are made and sold to help infants 
sleep. The FDA has warned against sleep positioners and safe sleep 
advocates warn against the use of crib bumper pads. Many of these 
products meet no standard--mandatory or voluntary. The CPSC is in a 
unique position to help address the public health problem of SUID 
through its jurisdiction over infant products and opportunities to 
communicate with families, caregivers and health care providers.

    Question 1. What will you do, beyond education and awareness, to 
push CPSC to use its authority to increase safe sleep among high-risk 
families and to reduce the hazard posed by certain infant sleep 
products such as crib bumpers and other untested products?
    Answer. Although education and awareness campaigns have a place in 
CPSC's regulatory toolbox, I generally support what is widely known as 
the ``safety hierarchy,'' \5\ which prioritizes approaches to product 
hazards as follows:
---------------------------------------------------------------------------
    \5\ See Marc Green, Safety Hierarchy: Design versus Warnings (2000) 
https://www.visual
expert.com/Resources/safetyhierarchy.html

---------------------------------------------------------------------------
   First, redesign products to eliminate the hazard.

   Second, shield the hazard to place it away from the 
        consumer.

   Third and last resort, warn about the hazard if redesign and 
        shielding are not feasible.

    I particularly support safety standards (and bans, where necessary) 
in instances where infants are at risk. Young children are involuntary 
risk takers and deserve the highest care and attention that CPSC, as a 
safety agency, can provide.

    Question 2. The CPSC is currently working with the American Society 
for Testing and Materials (ASTM) and the Juvenile Products 
Manufacturing Association (JPMA) on a standard for crib bumper pads, 
despite the broad view that these products are unnecessary and unsafe. 
However, rather than looking at the evidence that bumpers reduce the 
flow of air in a crib, CPSC is working on testing the firmness of 
bumpers. Are you at all worried that this will not address the hazard 
pattern and put CPSC's stamp of approval on a dangerous product?
    Answer. I have been particularly concerned about the hazards 
associated with crib bumpers for quite a long time. I have no objection 
to staff testing the firmness of bumpers, but my understanding is that 
the main hazard associated with this product is reduced airflow to 
infants who roll over and place their mouths and noses next to the 
bumpers.
                                 ______
                                 
                              Attachments
                U.S. CONSUMER PRODUCT SAFETY COMMISSION
DISSENTING OPINION OF COMMISSIONERS ROBERT S. ADLER AND ELLIOT F. KAYE 
 ON MOTION TO ADD A PROJECT ON CHILDREN'S FURNITURE TIPOVER TO FY 2020 
                 PERFORMANCE BUDGET REQUEST TO CONGRESS
                             MARCH 20, 2019
    On March 13, 2019, we proposed an amendment to the FY 2020 Budget 
Request to Congress that would have added the drafting of a Notice of 
Proposed Rulemaking (NPR) for Children's Clothing Storage Units 
(CSU)\1\ under section 104 of the Consumer Product Safety Improvement 
Act (CPSIA).\2\ To our great disappointment, the Commission, by a vote 
of 3-2, opposed our amendment.
---------------------------------------------------------------------------
    \1\ We use the term Clothing Storage Unit (CSU) as a broad term to 
describe chests, bureaus, and dressers.
    \2\ 15 USC Sec. 2056a.
---------------------------------------------------------------------------
                          Injuries and Deaths
    Our reason for proposing such an amendment is our grave concern for 
the safety and welfare of young children who face severe risks from 
CSUs toppling over on them. We believe the need for prompt action to 
protect vulnerable kids from death and injury is overwhelming. Even a 
brief review of tipover fatalities and injuries to young children shows 
that clothing storage units constitute one of the most tragic and 
compelling safety issues at CPSC.

   From January 2, 2000 to December 31, 2016, roughly 75 
        children 5 years of age or younger died from tipovers of 
        chests, bureaus, or dressers.

   From January 1, 2006 to December 31, 2016, roughly 39,600 
        children 6 years of age or younger went to emergency rooms for 
        injuries sustained when a chest, bureau, or dresser fell on 
        them.

   In fact, the majority (approximately 80 percent) of all 
        furniture tipover deaths involve children 5 years or younger, 
        and this percentage has not changed over time.
              What We Proposed--and What We Didn't Propose
    We think it important to state precisely what we proposed and what 
we did not propose. Here is what we proposed: a simple, quick 
development of a proposed safety rule for Commission consideration 
under section 104 of CPSIA--a time-tested and efficient approach to 
protecting children. Here is what we did NOT propose--to halt or slow 
ongoing work on the development of a broader rule under sections 7 and 
9 of CPSA \3\ to address furniture tipovers. To the contrary, we fully 
understand that our proposal is limited to a subset--children's CSUs. 
We think it is a substantial subset, but a subset nonetheless, of the 
clothing storage units that present a hazard to children. But, just 
because we can't protect all kids immediately doesn't mean that we 
shouldn't protect as many as we can as quickly as we can.\4\
---------------------------------------------------------------------------
    \3\ 15 USC Sec. 2056 and 15 USC Sec. 2058.
    \4\ On that point, we acknowledge work in the Congress that is 
currently underway to pass what is known as the STURDY Act. If enacted, 
the STURDY Act will authorize the Commission to promulgate, under the 
streamlined procedures of section 553 of the Administrative Procedure 
Act (APA), a broad-based consumer product safety standard for clothing 
storage units beyond those specifically intended for children. To say 
the least, passage of the STURDY Act would cover a larger group of 
furniture while permitting the Commission to use procedures currently 
available to the agency only for children's products under section 104 
of CPSA.
---------------------------------------------------------------------------
             Inadequacies of the Current Voluntary Standard
    We offered an amendment to take an ASTM voluntary standard, F2057-
17, for clothing storage units as a foundation, under section 104 of 
the CPSIA, to draft a proposed standard for children's clothing storage 
units. At the moment, ASTM F2057-17 is under review and revision.\5\ 
Regrettably, we see little progress and much foot-dragging in current 
deliberations towards a meaningful upgrade in safety. Among the 
problems with the current standard--
---------------------------------------------------------------------------
    \5\ ASTM F2057 was first approved in 2000 and has been revised 
several times, with the most recent revision published on October 1, 
2017.

   The test weight for stability is a specially-configured 50 
        pound weight hung gently on an open drawer to see if the 
        clothing storage unit will tip over. Unfortunately, this 
        requirement fails to account for the recent increase in size of 
        children in recent years, which means that many fewer children 
---------------------------------------------------------------------------
        are being protected by this standard.

   Equally disturbing is the unrealistic nature of the test 
        protocol. Alas, children do not gently hang from open drawers. 
        In fact, they climb up quickly and often swing from open 
        drawers, thereby exerting stronger downward pressure and 
        enhanced stability challenges to dressers and other CSUs.

   Another shortcoming in the current standard is the height 
        restriction. ASTM F2057-17 covers only dressers 30 inches or 
        higher while current fatality data show that children have died 
        under dressers shorter than 30 inches.

   Yet another shortcoming is the failure of the test protocol 
        to replicate real-world conditions in homes where furniture is 
        often placed on top of carpeting and carpet tack strips. These 
        conditions present different risks than the hard, flat, level 
        surfaces called for in the ASTM test protocol.

    CPSC staff has shared these and other concerns with the ASTM 
working group currently working on revising ASTM F2057-17. 
Unfortunately, we have little reassurance that these concerns are being 
addressed. To the contrary, we have the strong impression that the 
working group simply will not take meaningful safety steps unless and 
until they are convinced that CPSC will take mandatory action. To us, 
that is unacceptable.
Advantages of Section 104 Rulemaking Versus Sections 7 and 9 Rulemaking
    Our motion would apply the technical and engineering research 
currently underway for a rule under sections 7 and 9 of the CPSA to 
protect children under 104 rulemaking because the latter is 
demonstrably faster and more efficient than the extremely cumbersome 
procedures required by sections 7/9.\6\ We note, for example, in the 
ten years that section 104 has been part of the CPSA, the agency has 
drafted roughly 20 safety standards under this section to protect our 
youngest and most vulnerable consumers. In sharp contrast, CPSC has 
drafted precisely one standard under sections 7 and 9.
---------------------------------------------------------------------------
    \6\ We reiterate that our approach should not slow or delay the 
Commission's work on developing a rule under sections 7 and 9 since the 
engineering and technical approaches will be the same for both 
rulemaking efforts.
---------------------------------------------------------------------------
    Even a quick glance at the procedures and findings required to 
undertake rulemaking under a 7/9 approach versus those under section 
104 dramatically illustrates the burdens of rulemaking under sections 7 
and 9. By our count, the Commission has to make well over a dozen 
statutorily mandated findings in the course of taking numerous separate 
regulatory steps in order to promulgate a safety standard when we write 
7/9 rules. And, any slip or technical violation of these requirements 
exposes the rule to legal challenge--which almost inevitably follows 
when we write such rules. And, frankly, we have yet to see a single 
standard that has been improved by following these extra steps.
    In sharp contrast, drafting a 104 rule requires only that the 
Commission follow the traditional informal requirements of section 553 
of APA with one additional step (consulting with representatives of 
consumer groups, juvenile product manufacturers, and independent child 
product engineers and experts to examine the efficacy of existing 
voluntary standards) and one additional finding (that the requirements 
of a 104 rule be substantially similar to the voluntary standard or be 
more stringent if the Commission determines that a more stringent 
standard would further reduce the risk of injury). And, we note, to 
date, the Commission has faced no legal challenges to our 104 rules.
                               Conclusion
    We believe that the time for more decisive action is before us. In 
making this point, we continue to hold out the hope that the ASTM 
process will quickly and effectively produce a good voluntary standard 
that is substantially complied with.
    If CPSC is to carry out our critical mandate to protect our most 
vulnerable consumers, we believe it essential that the Commission 
declare now our intention to use the full panoply of tools available to 
us to meet this mandate.
                                 ______
                                 
    The following responses were prepared by CPSC staff for all 
Commissioners. They are provided here without edit or comment. Any 
subjective information represents the view of CPSC staff and may or may 
not reflect Commissioner Adler's view. Factual and/or objective 
information is presumed to be accurate.
    In addition, the CPSC Office of the General Counsel has provided 
the following statement for the Subcommittee:

        Section 6 of the Consumer Product Safety Act (CPSA) prohibits 
        the public disclosure of manufacturer specific information 
        provided to the Agency by manufacturers, distributors and 
        retailers under mandatory reporting requirements of Section 15 
        of the CPSA. This information often includes sensitive 
        confidential commercial information and is also prohibited from 
        public disclosure by section 6(b) of the CPSA unless the 
        Commission has followed specific procedures for advance notice 
        and comment.

        Section 6(a)(7) of the Consumer Product Safety Act prohibits 
        the withholding of information by the Commission or any officer 
        or employee under its control from the duly authorized 
        committees or subcommittees of the Congress. Consistent with 
        this provision the Commission has issued regulations 
        implementing section 6 at 16 CFR Sec. 1101.12(g) excluding the 
        ``Chairman or ranking minority member of Congress acting 
        pursuant to committee business. . .'' from the definition of 
        ``public.''

        A few of the responses to the questions by the ranking or 
        committee members require disclosure of product specific and 
        sensitive confidential commercial information. Because this 
        information will become part of the ``public'' record of the 
        June 20, 2019 hearing [I] would respectfully request that 
        counsel for the subcommittee work with our Office of 
        Legislative Affairs to find a forum appropriate for response 
        without making this sensitive confidential and commercial 
        information part of the public record of the hearing.

    Commissioner Adler will reply to these Section 6-implicated 
questions with the following statement, drafted by CPSC staff:

    I cannot comment on this matter as part of a published public 
hearing record but CPSC staff is available to discuss this issue with 
you privately.
                                 ______
                                 
  Responses to Written Questions Submitted by Hon. Maria Cantwell to 
                       Commissioner Robert Adler
Tip Overs:
    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    I cannot comment on this matter as part of a published public 
hearing record but CPSC staff is available to discuss this issue with 
you privately.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    CPSC strives to maximize direct notification to the best of the 
firm's capabilities when negotiating recalls. When a firm demonstrates 
that they are able to directly contact 95 percent+ consumers who have 
purchased a recalled product, CPSC will issue a Recall Alert rather 
than a Press Release.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Staff is actively engaged with ASTM 15.42 Subcommittee for Clothing 
Storage Units to improve the ASTM standard F2057-17. Improvement 
efforts are centered on consumer interactions with product and consumer 
use scenarios identified in the ANPR. Staff are active members of task 
groups supporting the subcommittee working on issues such as: dynamic 
testing, multiple/loaded drawer testing, carpet testing, testing 
repeatability and operational slide length. Staff is researching new 
test methodologies based on available incident data and testing over 
185 samples which represent a variety of CSUs designs on the market 
today.
                                 ______
                                 
Responses to Written Questions Submitted by Hon. Richard Blumenthal to 
                       Commissioner Robert Adler
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Yes
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 12. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    This statement originated from a WCMA member in a meeting between 
CPSC and WCMA in May 2015. The basis for this statement was a 2015 
KeyStat study. This study was provided to CPSC staff as confidential 
business information by one of the WCMA members.

    Question 13. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    We do not have data that provide a stock versus custom breakout for 
daycares/preschools.

    Question 14. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    We do not have data that provide a stock versus custom breakout for 
affordable housing.

    Question 15. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    We do not have data that provide a stock versus custom breakout for 
military housing.

    Question 16. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    If consumer intends to purchase a window covering off-the-shelf in 
a store, those products are classified as stock are subject to the 
stock window covering requirements (i.e., cordless, short cord, or 
inaccessible cord).

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    The window covering standard requires a warning label on the 
website if the website is relied upon for promoting, merchandising, and 
selling online. This way, the consumer is informed about the 
strangulation hazard while placing an order for a corded custom window 
covering. CPSC staff has suggested to the WCMA technical committee that 
a guidance document for online sales of stock and custom products be 
useful to add to the standard.

    Question 18. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    CPSC is monitoring the sale of corded window coverings on online 
platforms and developing plans to monitor at ports and in retail 
stores.
    In order to comply with the ANSI/WCMA voluntary standard, all 
products should be designated as ``Custom'' or ``Stock'' on the 
manufacturer label, using a ``C'' or the word ``Custom,'' or an ``S'' 
or the word ``Stock'', respectively. Stock products are substantially 
fabricated in advance of being distributed in commerce and in advance 
of any specific consumer request for that product. Such product is 
likely a stock product if it appears online readily available to ship, 
and has limited/specific pre-determined sizing, color, and material 
options.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to see too many of 
these products sold on secondary online marketplaces.

    Question 21. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:

   When and how that relationship was established.

     CPSC has relationships with a number of platforms, 
            some of them for well over a decade including:

       eBay

       Overstock.com

       Alibaba

       Craigslist

       Facebook and Facebook Marketplace

       Oodle

       Shopgoodwill

       Amazon

       Letgo

       Offer Up

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.

    No special tools, however we have established CPSC relationships 
and ongoing discussions.

   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.

    No special tools, however we have established CPSC relationships 
and ongoing discussions.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan. Consumers lose out on important legal protections when 
recalls aren't called what they should be--``recalls.'' For example, 
they may be more susceptible to purchasing second-hand products that 
haven't been repaired.

    Question 26. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    I cannot comment on this matter as part of a published public 
hearing record but CPSC staff is available to discuss this issue with 
you privately.
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 31. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    I cannot comment on this matter as part of a published public 
hearing record but CPSC staff is available to discuss this issue with 
you privately.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 34. When is this study going to be complete?
    On July 25, 2019, EPA released its Synthetic Turf Field Recycled 
Tire Crumb Rubber Characterization Research Final Report: Part 1--Tire 
Crumb Rubber Characterization.
    The Synthetic Turf Exposure Characterization data collection 
(ATSDR) is still ongoing; the CPSC's Playground Use Survey is 
completed, and a final contractor's report is due to staff by July 26, 
2019. Any CPSC Risk Assessment studies regarding recycled tire rubber 
in playground surfacing will consider the findings of the Tire Crumb 
Characterization and the Synthetic Turf Exposure Characterization. CPSC 
staff anticipates a Risk Assessment for playground surfacing could be 
available about 12 months after we receive the Synthetic Turf Exposure 
Characterization Report.

    Question 35. What is the delay?
    CPSC staff does not agree that there is a delay. The initial FRAP 
announcement noted that the schedule was ambitious. The deliverable 
described in the February 2016 FRAP announcement was, ``By the end of 
2016, the agencies anticipate releasing a draft status report that 
describes the preliminary findings and conclusions of the research 
through that point in time.'' A draft status report was published at 
the end of 2016; that milestone was met. However, because there was 
still work to be done to answer these questions, the partner agencies 
continued with their research in pursuit of quality science and in 
compliance with time-consuming administrative steps required by law 
(e.g., Paperwork Reduction Act).
    The CPSC's Playground Use Survey is completed, and a final 
contractor's report is due to staff by July 26. This contract is on 
schedule. The survey is the only task specifically assigned to CPSC in 
the FRAP announcement. When the FRAP partner agencies' data are 
available, CPSC staff will act as quickly as possible to apply those 
data in risk assessment activities specific to playground surfaces.

    Question 36. Do you believe the EPA and partner agencies are still 
fully completed to this research? Have you talked to them about it?
    Work at EPA and ATSDR has been continuous since 2016 (see response 
to Question 33). CPSC staff keeps apprised of the activities at EPA and 
ATSDR. EPA is planning to brief CPSC senior management on its Tire 
Crumb Characterization Report. ATSDR's Synthetic Turf Exposure 
Characterization data collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of Ikea's recall on unstable dressers.\1\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
    \1\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 40. What Internet platforms does CPSC have established 
relationships with?
    CPSC has relationships with a number of platforms, some of them for 
well over a decade including:

   eBay

   Overstock.com

   Alibaba

   Craigslist

   Facebook and Facebook Marketplace

   Oodle

   Shopgoodwill

   Amazon

   Letgo

   Offer Up

    Question 41. What special tools do CPSC staff have to review and 
flag violative products sold on the Internet?
    No special tools, however we have established CPSC relationships 
and ongoing discussions.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 51. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Yes, CPSC regularly performs market surveillance including 
collecting samples at retail and on-line to identify non-compliant 
product.

    Question 52. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    CPSC has notified firms and sought corrective action when non-
compliant products are identified.

    Question 53. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    No.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 57. How many FTEs are vacant?
    The current (as of July 13, 2019) FTE level at CPSC is 544.3 (just 
over our authorized level of 539 for FY19). We have supplemented our 
permanent staff with temporary appointments while we are actively 
recruiting for 40 positions.

    Question 58. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Depending on the exact position and if we have back-up expertise 
available to support the duties for a vacant position, it is sometimes 
difficult to continue to perform certain functions when a position is 
vacant. In the field and at the ports, we have staff available 
throughout the country who can travel and provide support while a 
position is vacant. On a case-by-case basis, we may also temporarily 
detail an employee, reassign duties to another employee, contract for 
services, or delay an activity until a position is filled.

    Question 59. Why are these vacant? When do you anticipate they will 
be filled? When do you anticipate they will be filled?
    Many of our positions are in hard-to-recruit, highly technical 
positions, such as Mathematical Statistician, Economist, and 
Information Technology Specialists. We are actively recruiting using 
all of our available recruiting methods and tools for all of our career 
vacant positions. We anticipate filling positions as soon as highly 
qualified selectees are identified. Our average time-to-recruit is just 
under 83 days.

    Question 60. Is there anything preventing these FTEs from being 
filled?
    There is nothing preventing the recruitment for our vacant 
positions.
                                 ______
                                 
     Responses to Written Questions Submitted by Hon. Tom Udall to 
                       Commissioner Robert Adler
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (``FDA'') policy 
could undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    CPSC has notified firms and sought corrective action when non-
compliant products are identified.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Yes, CPSC has communicated with FDA to discuss each agency's 
respective requirements.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    CPSC has issued guidance on the restricted flow requirements.
    https://www.cpsc.gov/s3fs-public/
NoticeofRestrictedFlowTP.March82019.pdf
Children's Cosmetics
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4300 children are treated in emergency departments 
for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    The definition of ``consumer product'' in the Consumer Product 
Safety Act (CPSA) excludes ``cosmetics'' as that term is defined in the 
Federal Food Drug and Cosmetic Act. In general, cosmetics are products 
that are applied to the body to cleanse or beautify. The personal care 
products specified in the question (nail care, hair care, skin care, 
and fragrance products) are likely to be cosmetics and fall under FDA's 
authority. An FAQ page on FDA's website provides some general 
information: https://www.fda.gov/cosmetics/resources-consumers-
cosmetics/cosmetics-safety-qa-personal-care-products. The fact that a 
product is intended for children does not keep it from being a 
cosmetic. For example, FDA considers ``novelty makeup'' such as face 
paints for children to be cosmetics: https://www.fda.gov/cosmetics/
cosmetic-products/novelty-makeup.
    CPSC does have authority over one aspect of cosmetics. Under the 
Poison Prevention Packaging Act (PPPA), CPSC can require special 
packaging (sometimes called child resistant packaging) for household 
substances, including cosmetics, if such packaging is necessary to 
protect children from serious injury or illness resulting from 
handling, using or ingesting the substance.
                                 ______
                                 
                U.S. CONSUMER PRODUCT SAFETY COMMISSION
                              STATEMENT OF
                    ACTING CHAIRMAN ROBERT S. ADLER
             ON THE NOTICE OF PROPOSED RULEMAKING REGARDING
        AN AMENDMENT TO THE REGULATION ON INFORMATION DISCLOSURE
         UNDER SECTION 6(b) OF THE CONSUMER PRODUCT SAFETY ACT
                           February 13, 2014
    This week, the Commission voted to publish in the Federal Register 
a Notice of Proposed Rulemaking (NPR) regarding an amendment to the 
CPSC's regulation (16 C.F.R. part 1101) of information disclosure under 
section 6(b) of the Consumer Product Safety Act (CPSA). I believe this 
proposed rule will modernize and streamline our regulation--and, more 
importantly, better align it to comply with our statutory obligations 
to assure the accuracy and fairness of information the agency discloses 
to the public.
    I have never hidden my dislike for section 6(b) of the CPSA. I have 
long believed it inappropriately puts the agency in the role of a 
national data nanny of vital consumer product safety information. To 
cite only a few problems with this section:

   Section 6(b)'s cumbersome procedures and unnecessary delays 
        put consumers' lives and limbs at risk by requiring the CPSC to 
        restrict the flow of critical safety information to the public.

   The Commission, unlike any of our sister agencies, must 
        spend hundreds of thousands of dollars a year following 
        wasteful 6(b) procedures--procedures that were visited 
        exclusively on the CPSC 40 years ago and have never been 
        imposed on any other agency since then.

   Section 6(b) has been interpreted by the U.S. Supreme Court 
        to apply to FOIA requests for information in agency files. This 
        means that information that no one would ever think carried the 
        agency's blessing or imprimatur still must be run through 
        section 6(b) procedures--adding time and expense to the 
        process.

   One particularly bad example: A document that simply lists 
        the names of the 50 firms in an industry must be processed 
        through section 6(b) by sending 50 different notices--each with 
        the other 49 names redacted (especially since the firms likely 
        already know all of the names on the list).

   The Commission cannot post information on its website that 
        has been previously disclosed simply and solely because we have 
        given firms the right to be notified again before it's released 
        again--especially when most companies don't even bother to file 
        comments when they're re-notified.

   The average time to process section 6(b) requests is roughly 
        four times as long as the time to process non-6(b) requests.

   Read literally, section 6(b) prevents CPSC staff from saying 
        even favorable or nice things about manufacturers unless we 
        follow the cumbersome procedures of the Act.

    To be clear, the NPR we passed today removes none of the agency's 
responsibility to follow the law when it comes to information that it 
has obtained under the Act or disclosed to the public in connection 
with the Act. Yet, it also stays within the parameters of the statute 
because there is simply no safety reason to expand its reach.
    The changes the Commission has proposed to section 1101 of our 
regulations are quite modest--and long overdue. In thirty years, the 
Commission has revised this regulation only once--and that was to make 
technical changes required by the Consumer Product Safety Improvement 
Act of 2008. The changes proposed in this amendment will bring us into 
the modern age and account for the reality that we live in an era where 
most communication takes place electronically.
    Our proposal will have one major effect--to remove the agency's 
unnecessary and unjustifiable ``renotification'' provision. This 
provision is not required by our statute and has provided no safety 
benefit to the public. To the contrary, it has provided firms an 
absolute right to demand that the agency follow the time consuming and 
cumbersome procedures of 6(b) over and over again for information the 
Commission has previously released to the public. Under current 
Commission procedures, once information has been processed through 
6(b), the information is then eligible for public release, including 
being posted on our website. Under our current renotification rule, 
however, if a firm demands notification each time the Commission 
proposes to re-release information in which the manufacturer is 
identified, the information is effectively embargoed. That is, it is 
not made available to the public until someone requests it and the 
agency goes through 6(b) procedures again. To say the least, this 
completely undermines the concepts of transparency and openness so 
carefully nurtured at the CPSC.\1\
---------------------------------------------------------------------------
    \1\ Even here, the Commission's NPR retains protections for firms. 
The staff draft still provides for renotification to manufacturers if 
the Commission has reason to question the accuracy of the information 
we are re-releasing.
---------------------------------------------------------------------------
Four Amendments to the Staff Draft NPR
    While I believe the CPSC staff drafted a thoughtful package, my 
colleague, Commissioner Robinson, and I proposed amendments to the 
staff draft rule to address several valid concerns of our colleague 
Commissioner Buerkle. I commend Commissioner Buerkle for raising 
concerns that led to greater clarity in the proposal (keeping in mind 
that she still disagreed with most of our amendments).
    I will briefly explain our amendments. First, we clarified that 
while section 1101.11(a)(2) will now track the statute by using only 
the word ``obtained'' rather than adding the words ``generated'' and 
``received'' when explaining the scope of the information that it will 
process through section 6(b),\2\ amended Sec. 1101.2 has not been 
narrowed, only streamlined.
---------------------------------------------------------------------------
    \2\ This provision currently reads as follows:
    The information must be obtained, generated or received by the 
Commission as an entity or be individual members, employees, agents, 
contractors or representatives of the Commission acting in their 
official capacity. (Sec. 1101.11(a)(2)) (emphasis added). Staff 
recommended deleting the words ``generated or received'' as they did 
not track the words of the statute. We concurred.
---------------------------------------------------------------------------
    Second, our amendment expanded on staff's clarification that 
section 6(b) does not apply to information already publicly available 
or disseminated in a manner intended to reach the public.\3\ We added 
language to the preamble of the NPR to remove any doubt that, 
notwithstanding the inapplicability of 6(b), existing agency policy and 
Federal law require the CPSC to assure that information disclosed by 
the agency to the public is presented in an accurate, clear, complete, 
and unbiased manner. Moreover, we pointed out that other Federal health 
and safety agencies that do not operate under 6(b)'s restrictions 
generally coordinate the release of information identifying specific 
manufacturers with those manufacturers in the interest of accuracy and 
fairness. Needless to say, we wholly endorse such an approach whether 
or not 6(b) applies to the agency.
---------------------------------------------------------------------------
    \3\ See Sec. 1101.11(b)(7) of the staff draft.
---------------------------------------------------------------------------
    Third, we added language to make clear that staff's proposed 
deletion of a confusing and subjective standard for determining when 
the Commission would follow 6(b) procedures made perfect sense.\4\ Our 
amendment clarified that the Commission will continue to use the well-
established ``reasonable person standard'' when analyzing whether one 
can readily ascertain from information proposed to be disclosed the 
identity of the manufacturer or private labeler of a particular 
product. In the interest of clarity, our amendment added a sentence to 
the preamble to make clear that while this unnecessary language was 
removed from the rule, in practice, the reasonable person standard as 
described in section 1101.13 errs in favor of providing notice to 
manufacturers and private labelers.
---------------------------------------------------------------------------
    \4\ The deleted sentence reads as follows:
    The Commission will provide the advance notice and opportunity to 
comment if there is a question whether the public could readily 
ascertain the identity of a manufacturer or private labeler. 
(Sec. 1101.13).
    Staff correctly pointed out that the words ``a question'' did not 
necessarily comport with the ``reasonable person'' standard that our 
regulation calls for in the requirement for deciding whether 
information should be processed through 6(b).
---------------------------------------------------------------------------
    Finally, our amendment clarified our understanding of staff's 
recommendation to revise the Commission's current policy of 
automatically withholding comments, upon request, from firms about 
information the Commission proposes to release.\5\ In fact, this policy 
goes well beyond the requirements of 6(b), which generally grants a 
firm the right to have its comment included in a release. It does not, 
however, grant a firm the absolute right to have its comment withheld 
from release. Therefore, the staff's proposed revision requires a firm 
to demonstrate why its comment should be withheld from the public when 
the Commission releases information the firm has commented on. 
Commissioner Robinson and I added our substitute amendment to clarify 
that the change in the staff's draft seeks to find a balance between 
the public interest in transparency and the rights of the identified 
firm to be assured that disclosure is fair under the circumstances.
---------------------------------------------------------------------------
    \5\ See Sec. 1101.31(b)(5).
---------------------------------------------------------------------------
                               Conclusion
    In sum, the amendments offered by Commissioner Robinson and me and 
the staff's draft NPR taken as a whole are intended to make CPSC's 
enforcement of the statutory requirements under section 6(b) more 
efficient and effective for all concerned.
    Finally, I note the Commission has and will continue to enforce 
section 6(b) of our statute and no one, least of all me, opposes taking 
steps to check the accuracy and fairness of information about 
manufacturers when we initiate the release of information and vouch for 
it. Every agency that I know of--none of whom have 6(b) restrictions--
takes care to be certain that its press releases and other affirmative 
disclosures of information have been run by the firms named in the 
press releases. That is a far cry, however, from the broad restrictions 
in our section 6(b) regulations.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jerry Moran to 
                           Hon. Dana Baiocco
    Question 1. The Commission's decision to launch a recall app has 
been particularly well-received, both by consumer groups and industry 
alike. I understand you were the driving force behind this concept and 
appreciate your work in this area. What more can the Commission do to 
modernize and connect with consumers?
    Answer. Thank you for recognizing the CPSC Recall App. 
Significantly, the CPSC Recall App required nominal expenditure because 
it leveraged data the Agency already had on its website; we merely had 
to ``scrape'' that data and repackage it in a new delivery system. This 
concept was, to me, a ``no-brainer'' given that consumers receive more 
information electronically today than ever before. Our smart phones and 
tablets occupy a central place in our lives. Indeed, one source reports 
that there are over 5 billion mobile users in the world, with a 57 
percent global Internet penetration. Thus, when considering how to 
reach consumers, particularly with something as important as a product 
recall notice, it would be irresponsible to ignore these real-world 
facts. Consumers are using the App and, in June alone, we recorded a 13 
percent user increase.
    In all instances, the Commission must know and understand how 
consumers receive and process information before it may effectively 
connect with them. The two most important steps the Commission can take 
to modernize are to educate and to motivate. First, we must ensure that 
the Agency leadership understands technology in more than just a 
superficial way. We cannot capitalize on the benefits of ever-evolving 
technology if we do not understand it and do not keep up with it. 
Second, we must recruit and motivate qualified individuals, who can 
assist leadership in its education efforts and implement programs that 
facilitate the Agency's mission in practical ways. I am enthusiastic 
about the introduction of S. 1858--CPSC CIO Parity Act, a bipartisan 
bill, which endorses as essential a Chief Data Officer and Chief 
Technologist for the Agency. The Agency needs those qualified 
individuals to help the Agency navigate today's product safety 
challenges.
    The Agency should also work with Industry to bridge its 
modernization gap. Simply stated, manufacturers, retailers and e-
platforms already have sophisticated hazard identification and consumer 
outreach programs and the CPSC should not reject the opportunity to 
harness such established and proven intelligence. I have met with a 
number of representatives from trade organizations, consumer groups, 
and e-commerce companies, all of whom have expressed a willingness to 
share with the CPSC best practices so that we may pursue safety in a 
coordinated way. We must not delay any longer in harnessing these 
important opportunities.
    The Agency should also implement, forthwith, an enterprise data 
analytic strategy, which incorporates artificial intelligence. We need 
to study how machine learning can inform predictive modelling that, for 
example, can assist our Import Surveillance team in identifying suspect 
shipments for inspection and, when appropriate, confiscation. The 
Agency also needs to be prepared to address consumer product safety 
issues that will inevitably surface via the Internet of Things (IoT).
    These goals must be met. The Agency must modernize and connect with 
consumers in real and measurable ways to fulfill its Mission. We must 
be now and continue to be nimble.

    Question 2. The Commission's voluntary Fast Track Recall Program 
was intended to encourage businesses to efficiently remove potentially 
hazardous products from the marketplace via a corrective action plan, 
including a consumer-level recall, without preliminary determinations 
of defects and lawsuits. Would you please describe the effectiveness of 
this tool in protecting consumers from potential product defects?
    Answer. The CPSC's Fast Track Recall Program (``Fast Track'') is an 
award-winning program that works quite well, when implemented as 
intended. The Fast Track was developed to streamline a recall process 
and to promote a non-judgmental way for CPSC to complement a 
responsible manufacturer's choice to remove a blemished product from 
the market at the earliest possible stage. Using the Fast Track, a 
recalling firm would simply notify the CPSC of its intent to 
voluntarily recall its product and the proposed remedy. The CPSC will 
work with the firm to announce this plan and serve as a partner in the 
firm's safety efforts. The Fast Track eliminates the need for a lengthy 
CPSC analysis or preliminary determination of whether the product at 
issue actually presents a ``hazard,'' as that term is legally defined. 
Indeed, the Fast Track is designed encourage a firm to respond to the 
first sign of a potential product issue and initiate public notice 
within 20 days. In so many cases, a recalling firm recognizes the need 
to initiate a recall before the CPSC even becomes aware of a product 
issue and the Fast Track program promotes what a responsible 
manufacturer wants to do. The Fast Track, when executed as designed, 
will minimize delays in public notification, will facilitate a quick 
removal of a product from the market, will reduce the likelihood of 
injuries, and will provide a swift and easy path to remedy consumers.
    Unfortunately, several firms have expressed recent (and justified) 
frustrations with certain internal CPSC processes that have resulted in 
unnecessary delay and have diluted the intent of the Fast Track. To be 
blunt, once CPSC staff attempts to opine or control, for example, which 
photo to use in the recall announcement, or language that the firm 
plans to use in its press release or on its website, the Fast Track 
necessarily becomes an entirely different process and one which the 
Program was designed to avoid. Such micromanagement will and has indeed 
prompted a few firms to initiate recalls without the CPSC, which they 
are legally permitted to do.
    It is imperative that the Agency update its internal protocols to 
reinvigorate the Fast Track Recall Program. It is a valuable program 
that benefits the American public.

    Question 3. I am also a member of the Senate Appropriations 
Subcommittee on Financial Services and General Government, which 
oversees funding matters related to the CPSC. I remain committed to 
ensuring that the CPSC has the resources and tools that it needs to 
effectively protect the public from unreasonable risks of injury or 
death due to the use of consumer products. Is the Commission have 
adequate resources to fulfill its mission?
    a. If not, where should additional resources be targeted?
    Answer. There are several areas where the Agency could use 
additional resources to smartly invest. Fundamentally, we must 
modernize our equipment, upgrade outdated software, and enhance our 
data capabilities. Our current systems are just woefully inadequate. By 
securing modern IT infrastructure, the Agency can better address 
emerging trends and impending issues affirmatively rather than 
constantly playing a game of ``catch up.'' Correspondingly, the Agency 
needs to recruit qualified and creative personnel with the expertise to 
capitalize on these new systems. We must also train our current staff 
so they are fully equipped and energized with the knowledge to utilize 
these tools.
    Additional resources should be targeted generally on expanding the 
workforce necessary to carry out the Agency's full mission. The 
Agency's current size is significantly out of proportion with its 
charge and its jurisdiction. The CPSC must be empowered to respond 
quickly and thoroughly to safety issues generated by a global consumer 
product market. In the same way, the Agency needs human resources who 
can study, anticipate, and prepare for new dynamics that appear in the 
marketplace.
    We should also commit additional resources to improving programs 
that demonstratively yield successful results. This is especially true 
of our Import Surveillance Program, which has teams at our Nation's 
ports, who work alongside our Customs and Border Protection colleagues. 
Together, they are on the front lines trying to intercept dangerous 
products before they reach consumers. Their efforts have proved to be a 
smart investment. But, as the volume of imports increase, and more bad 
actors attempt to flood our markets with dangerous products, we must 
allocate more resources to the Import Surveillance Program as it has a 
direct and demonstrable relationship to protecting consumers from 
unreasonable risks of injury or death associated with the use of 
consumer products.
    I would also like to explore with you the possibility of 
designating the CPSC as a testing ground, where appropriate, for the 
study and evaluation of new technologies and/or programs that the 
government is otherwise considering. This Agency, with its bipartisan 
mission and its manageable environment, makes it a prime candidate on 
which to pilot and measure the effectiveness of new tools that could be 
applied in larger agencies and organizations. In this role, the CPSC 
can contribute to and benefit from the robust study, evaluation, and 
testing of emerging tools and systems that will be appraised in any 
event. It's a rough concept, but one that is worth investigating.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                           Hon. Dana Baiocco
    On April 8th of this year I sent Acting Chair Buerkle a letter 
requesting documents and a further explanation of why the Commission 
did not recall the BOB jogging stroller. In the information I received 
back, it seems that the Commission knew of almost 200 incidents related 
to the stroller, including some very serious injuries, because of the 
front-wheel detachments problem.
    We also learned that in late September 2017 the CPSC's Office of 
Compliance did a presentation listing a litany of injuries that could 
occur as a result of defects in the stroller, and stated that the 
Commission should push for a recall. Acting on this information, the 
Commission voted 3-1 in February 2018 to file an administrative lawsuit 
against the stroller's manufacturer, Britax, asking for a finding that 
the strollers presented a substantial product safety hazard and 
demanding a recall. In October 2018, the composition of the Commission 
changed and you voted with two other Members of the Commission to 
terminate the administrative case and settle with Britax to avoid a 
recall. This settlement only required the company to do an 
``information campaign,'' and provide some replacement parts for 
certain customers who recently bought a BOB stroller.
    Furthermore, other customers with older strollers, were only 
eligible for a 20 percent off coupon for a new BOB stroller.

    Question 1. Do you think this settlement adequately protected 
consumers?
    Answer. The Commission voted to initiate a lawsuit against Britax 
before I joined the Commission, and CPSC Litigation Counsel was already 
proceeding against Britax in that lawsuit. I cannot comment on the 
underlying facts that gave rise to the Commission's reasoning to 
proceed against Britax in litigation. Britax and CPSC disagreed on the 
issues and exercised their respective legal rights through litigation. 
Because of the adjudicatory rules that govern ongoing proceedings, I 
was not permitted to conduct my own analysis of the matter.
    I was asked to vote to approve a settlement of that litigation as 
required by law. CPSC Litigation Counsel and Britax negotiated and 
jointly presented their proposed settlement to the Commission for 
approval. I understand that CPSC Counsel negotiated the best possible 
terms for consumers in settling the lawsuit. The proposed settlement 
was consistent with the remedies sought by CPSC in the underlying 
litigation Complaint. If CPSC Counsel believed that she could have 
obtained additional, material, and legally sustainable remedies for 
Britax consumers by not settling the lawsuit, she was certainly charged 
with doing so. Based on the information provided to me at the time of 
the settlement, the settlement was adequate particularly when compared 
to the potential that: (1) CPSC may not have been ultimately successful 
in proving its case against Britax in the lawsuit; or (2) it would have 
taken a significant amount of time for consumers to receive the benefit 
of remedies beyond those negotiated in settlement, if any at all, that 
CPSC might have obtained if it was ultimately successful in litigation, 
given the time necessary to complete litigation and any appeal process 
that might have been invoked.

    Question 2. Would you have structured the remedy in this case 
differently? Do you believe a free repair for all impacted strollers or 
a cash refund would have been more effective?
    Answer. It would be inappropriate to comment on a matter that could 
come back before the Commission, or to pre-judge such an issue. 
Further, it is pure speculation to say whether the remedy--or the 
case--would have been structured differently if I had personally 
handled it. I have no basis to comment on what the Britax product 
users, the ultimate beneficiaries of any remedy, would have considered 
more effective.

    Question 3. Is the Commission tracking corrective action completion 
statistics for this recall? If so, please state whether these 
statistics indicate, in your view, a successful corrective action.
    Answer. The Britax settlement agreement requires Britax to provide 
periodic updates regarding its compliance with the settlement terms. It 
has been represented to me and, therefore, it is my understanding that, 
Britax is providing those statistics, which have been and continue to 
be reviewed. The settlement terms also give the Commission jurisdiction 
to resolve any disputes that arise out of the agreement. Thus, until or 
unless the parties raise for the Commission's determination a 
legitimate dispute that requires the Commission to determine an issue 
arising out of those statistics, our rules do not permit Commissioners 
to pre-judge this (or any other) issue.
    In May 2018, the Commission released a vague alert about deaths 
involving inclined sleep products for infants. Then, nearly a year 
later, Consumer reports published a story noting at least 32 deaths 
associated with the Fisher-Price Rock `n Play infant sleeper. At the 
time of the Consumer Reports disclosure, the Commission still had not 
yet issued a recall regarding the Rock `n Play sleeper.

    Question 4. Do you agree with the way Acting Chair Buerkle handled 
the Rock 'n Play Recall?
    Answer. No.

    Question 5. If Section 6(b) of the Consumer Product Safety Act 
restricts the agency's ability to disclose information, how can we 
ensure that consumers get the information they need to better protect 
themselves and their families?
    Answer. Section 6(b) does not restrict, impede, or bar CPSC's 
overall mission and it does not interfere with the Agency's ability to 
carry out its mission in a legal and responsible way. Section 6(b) 
enables the Commission to receive information freely and with the 
understanding under the law that the information is presented 
confidentially. Section 6(b) should not be read as, and it is not 
intended to be, a bar to providing consumers with accurate information. 
To illustrate, Section 6(b) requires the CPSC to ``take reasonable 
steps'' to ensure that any information released is accurate. Thus, when 
CPSC has made a determination, based on sustainable data, that there is 
an unreasonable risk of injury from a potential product defect, CPSC 
may act on that information and take all steps to get that information 
to consumers.
    Commissioner Kaye has testified that Section 6(b) of the Consumer 
Product Safety Act, which prohibits the Commission from releasing data 
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
    Recent history shows that 6(b) ties the hands of the agency because 
it prevents the agency from acting when it believes dangerous products 
are in the marketplace but the company making the products won't agree 
to voluntarily take it out of circulation.

    Question 6. Do you agree with Commissioner Kaye that we should 
eliminate 6(b)? If not, what other tools does the Commission have to 
deal with bad actors? Will you commit to supporting the use of those 
tools?
    Answer. No, I do not. I do not see the provisions of Section 6(b) 
as ``t[ying]'' the hands of the Agency'' or promoting ``anti-consumer 
safety'' or being ``anti-transparen[t].'' The language of Section 6(b) 
does not lend itself to that interpretation. Further, there is no 
language in Section 6(b) that prevents the Agency from properly 
addressing ``bad actors.'' Section 6(b) does not undermine, for 
example, CPSC's authority under the CPSA to file an action against an 
imminently hazardous consumer product for seizure of such product under 
against any person who is a manufacturer, distributor, or retailer of 
such product, or against both. 15 U.S.C. Sec. 2061. Rather, Section 
6(b) ensures that the Agency addresses the bad actors (and/or their 
products) and not actors unfairly or prematurely accused.
    Section 6(b) protects the public from receiving incorrect 
information and it protects against the dissemination of irresponsible 
or unfounded conclusions that might, because of inaccuracies, cause 
harm. There are Due Process protections built into the CPSA, such as 
the related notice requirements, to provide check points to ensure that 
the Agency is taking ``reasonable steps to assure'' that 1) the 
information is accurate; 2) that disclosure of the information is fair 
in the circumstances; and 3) that disclosure of the information is 
reasonably related to effectuating the purposes of the CPSA and all 
other laws administered by the Commission.
    There are exceptions to Section 6(b)'s disclosure limitations that 
provide the Agency means by which it can act more aggressively, if and 
when legally warranted. For example, 6(b) allows the Commission to 
shorten 6(b)'s notice period if the Commission finds that the public 
health and safety requires a lesser period of notice. See, e.g., 15 
U.S.C. Sec. 2055(b)(1), (2) and (5)(D) (providing the Agency with the 
ability to shorten notice requirements if there are factual findings 
that support it; the Commission also has the ability issue a unilateral 
statement). Together, these provisions encourage candor between CPSC 
and the regulated community while also providing means by which the 
public can be confident that it is receiving accurate information. 
Congress codified these procedures and restrictions, recognizing that 
``the Commission has a responsibility to assure that the information 
which it disseminates is truthful and accurate.'' (See H.R. Rep. No. 
1192, 92 Cong., 2nd Sess. 31, 32 (1972)).
    While suggesting a change in the existing law is certainly within a 
sitting Commissioner's right, I disagree with the reasons stated by 
Commissioner Kaye for doing so. Section 6(b) does not interfere with 
the Agency's ability to carry out its mission and to effectively and 
efficiently exercise all of its responsibilities under the CPSA.
Tip Overs:
    Question 1. Please describe why the Commission has chosen not to 
use Section 104 rulemaking to address--at least in part--the tip-over 
issue.
    Answer. I cannot speak for any other Commissioner. Section 104 
applies directly and specifically to durable infant goods that is 
intended for use, or that may be reasonably expected to be used by 
children under the age of 5 years, and any attempt to classify only a 
small subset of some dressers as durable infant goods requires a 
subjective determination that will inevitably result in disagreement 
that will preclude the very advancement that the idea of using Section 
104 was intended to make. It is my understanding that no adequate 
voluntary standard has been reached or expanded because, in part, of 
disagreements among Standards Committee Members on how certain terms 
will be defined. That past history suggests that any attempt to use 
Section 104 to advance the matter likely will be ineffective.
    CPSC should move forward to invoke a mandatory standard given that 
there is no adequate voluntary standard. For these reasons, 
Commissioner Feldman and I jointly proposed an amendment to the FY 2020 
Performance Budget Request to Congress for a Notice of Proposed 
Rulemaking be a deliverable for Children's Clothing Storage Units and 
reflected in the FY 2020 Operating Plan. This amendment was unanimously 
adopted by the Commission.

    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    Answer. Consistent with the terms of my ethics agreement and the 
advice of the CPSC's Designated Agency Ethics Officer, I have recused 
myself from Commission matters relating to IKEA dressers.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    Answer. CPSC uses traditional media and social media to reach 
consumers with recall information. CPSC often works directly with a 
recalling firm using data collected through sales records, product 
registrations, and data brokers to effectuate direct notice of a recall 
to consumers. In addition to traditional direct notice practices, the 
CPSC recently developed a recall app that is used for this purpose. I 
also believe that the Agency should designate more personnel who are 
dedicated to working with retailers, manufacturers, and e-platforms to 
facilitate a more detailed and comprehensive approach.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Answer. Consistent with the terms of my ethics agreement and the 
advice of the CPSC's Designated Agency Ethics Officer, I have recused 
myself from Commission matters relating to IKEA dressers and thus do 
not comment here on any IKEA dresser specifically.
    It is my understanding that, generally, CPSC Staff is reviewing and 
interacting with ASTM 15.42 Subcommittee for Clothing Storage Units, 
which is working to improve the ASTM standard F2057-17 by improving, 
among other things, consumer interactions with product and use 
scenarios, dynamic testing, multiple/loaded drawer testing, carpet 
testing, testing repeatability and operational slide length. I 
understand that CPSC Staff is also researching new test methodologies 
based on available incident data and is currently testing nearly 200 
product samples to assess the status of the market's compliance with 
the current standard.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                           Hon. Dana Baiocco
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. It is my understanding that infant fatalities had been 
reported to the CPSC before Consumer Reports published its figures.

    Question 2. Were you aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. I had been informed that infant fatalities had been 
reported to the CPSC before Consumer Reports published its figures. I 
had also been informed that the Agency contracted with an outside 
biomechanical expert to study the matter and to obtain data and 
information about infant inclined sleep products and any causal 
relationship concerning the reported fatalities.

    Question 3. If Consumer Reports had not published its findings 
regarding infant fatalities caused by infant inclined sleepers, do you 
think these products would have been recalled when they were?
    Answer. For the reasons set forth in response to Question 2, I have 
no basis to conclude one way or another.

    Question 4. When do you think these products would have been 
recalled had Consumer Reports not published its findings regarding 
infant fatalities caused by infant inclined sleepers?
    Answer. I have no basis on which to craft such a guess.

    Question 5. After how many fatalities, do you think these products 
should have been taken off the market?
    Answer. Product hazards involving fatalities warrant the highest 
level of attention. The Consumer Product Safety Act, however, does not 
provide authority for removing products from the market based solely on 
a specific number of fatalities. Rather, under Section 15 of the 
Consumer Product Safety Act, if the Commission determines (after 
appropriate hearing) that a product distributed in commerce presents a 
substantial product hazard and that notification is required in order 
to protect the public from such substantial product hazard, or if the 
Commission determines a product to be an imminently hazardous consumer 
product and has filed an action under Section 12, the Commission may 
order the manufacturer or any distributor or retail of the product to, 
among other things, cease distribution of the product.. See 15 U.S.C. 
Sec. 2064, et seq.

    Question 6. How many fatalities must happen before the CPSC 
initiates a recall?
    Answer. As noted above, CPSC's authority to initiate a recall is 
set forth in 15 U.S.C. Sec. 2064, et seq., and is rooted in a 
substantial product hazard determination.
The Safe Sleep Act of 2019
    I have introduced the Safe Sleep Act of 2019. This legislation 
would prohibit the sale, manufacture, and import of infant inclined 
sleep products--a dangerous category of infant products, of which the 
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My 
legislation would also make sure that no new standard can be 
established for a sleep product that is inconsistent with safe sleep 
best practices.
    The American Academy of Pediatrics and safety advocates have long 
been clear that a safe sleep environment is a firm, flat, bare surface. 
It is clear that infant inclined sleep products are incompatible with 
the recommendations of the leading experts on safe sleep.

    Question 7. When it comes to establishing standards for infant 
sleep products, can you commit that you will only support standards 
that are consistent with safe sleep best practices agreed upon by 
pediatricians and safety advocates? If your answer is ``No,'' then why 
not?
    Answer. The medical community instructs that a flat and bare 
surface is best for unattended infant sleep environments. The medical 
community is critical to the development of standards for infant sleep 
products. There are also many individual determinations made by 
physicians who are treating infants and making recommendations for 
those infants with specific needs that should not be ignored. With 
regard to consumer product safety standards, I commit to following the 
statutory requirements set forth in the Consumer Product Safety Act, 
including the requirement that such standards be reasonably necessary 
to prevent or reduce an unreasonable risk of injury associated with a 
product. 15 U.S.C. Sec. 2056.

    Question 8. Do you believe that infant inclined sleep products are 
a category of products that can be considered safe for sleep?
    Answer. The Commission is charged with protecting the public 
against unreasonable risk of injury associated with consumer products, 
including infant sleep products. There are differing opinions on 
whether certain infant sleep products meet the definition of a 
``durable infant or toddler product'' as defined under the Danny Keysar 
Child Product Safety Notification Act, often referred to as ``section 
104.'' [See Sec. 104 of the Consumer Product Safety Improvement Act of 
2008, amended by H.R. 2715]. Even if inclined sleep products are 
classified as infant sleep products under Section 104, the statute 
requires the Commission to promulgate a mandatory standard that is 
substantially the same as or more stringent than the voluntary 
standard, but only if the Commission determines that more stringent 
standards would further reduce the risk of injury associated with a 
product. CPSC has been reviewing the information on potential hazards 
posed by inclined sleep products. Because the Commission is currently 
considering these and other issues relating to inclined sleep products, 
it would be inappropriate to comment on or pre-judge this matter. The 
Staff will continue to review and evaluate new data and research on 
these products. Any action the Commission takes must be based on sound 
science and data to adequately protect infants and children.
Section 6(b)
    Question 9. What role do you believe Section 6(b) of the Consumer 
Product Safety Act (CPSA) play in preventing the CPSC from acting 
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
    \1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits 
the Commission from disclosing information about a consumer product 
that identifies a manufacturer without the permission of the 
manufacturer.
---------------------------------------------------------------------------
    Answer. Section 6(b) does not prevent CPSC from recalling any 
product that presents a substantial product hazard. There is nothing in 
the language of Section 6(b) that supports an interpretation that there 
is any relationship between death and Section 6(b). Section 6(b) does 
not undermine CPSC's authority under the CPSA to file an action against 
an imminently hazardous consumer product for seizure of such product 
under against any person who is a manufacturer, distributor, or 
retailer of such product, or against both. 15 U.S.C. Sec. 2061. Rather, 
Section 6(b) ensures that the Agency addresses substantial product 
hazards after according to the statutory directive and not based on 
inaccurate or premature conclusions.
    Section 6(b) also provides the Agency means by which it can act 
more aggressively, if and when legally warranted. For example, 6(b) 
allows the Commission to shorten 6(b)'s notice period if the Commission 
finds that the public health and safety requires a lesser period of 
notice. See, e.g., 15 U.S.C. Sec. 2055(b)(1), (2) and (5)(D) (providing 
the Agency with the ability to shorten notice requirements if there are 
factual findings that support it; the Commission also has the ability 
issue a unilateral statement). Together, these provisions encourage 
candor between CPSC and the regulated community while also providing 
means by which the public can be confident that it is receiving 
accurate information. Section 6(b) does not and should not be used to 
interfere with the Agency's ability to carry out its mission in a legal 
and responsible way and to effectively and efficiently exercise all of 
its responsibilities under the CPSA.

    Question 10. Does that mean Section 6(b) is preventing the CPSC 
from fulfilling its stated mission to protect the public from 
unreasonable risks of serious injury or death?
    Answer. No, for the same reasons set forth in response to Question 
No. 10.

    Question 11. Do you think Section 6(b) protects consumers?
    Answer. Section 6(b) is just one provision of a larger statute that 
is applicable to the Commission and, as such, it should not be 
considered in isolation. I do believe that Section 6(b) encourages the 
free flow of information and protects consumers from incorrect 
information or the dissemination of irresponsible or unfounded 
conclusions.
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 12. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    Answer. Thank you for your questions on window covering safety. I 
was not on the Commission at the time this claim was made, and was 
provided the following information from our Staff. According to Staff, 
this information was provided to CPSC by a trade association member and 
was premised on a 2015 KeyStat study. I was not privy to the discussion 
and have not seen this study.

    Question 13. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    Answer. I have been informed that the Agency does not have data 
that establishes a stock versus custom statistic that addresses 
daycares/preschools.

    Question 14. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. I have been informed that the Agency does not have data 
that establishes a stock versus custom statistic that addresses 
``affordable housing units.''

    Question 15. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. I have been informed that the Agency does not have data 
that establishes a stock versus custom statistic for military housing 
units.

    Question 16. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    Answer. I have been informed that if consumer intends to purchase a 
window covering off-the-shelf in a store, those products are classified 
as stock and are subject to the stock window covering requirements 
(i.e., cordless, short cord, or inaccessible cord).

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    Answer. I understand that the window covering standard requires 
that an on-line seller post a warning label on its website when the 
sellers uses a website to promote, merchandise, and sell online. 
Through this standard, the consumer should be informed about the 
strangulation hazard while placing an order for a corded custom window 
covering. I have also been informed that CPSC Staff has suggested to 
the WCMA technical committee that a guidance document for online sales 
of stock and custom products would be a useful, in addition to the 
current standard.

    Question 18. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    Answer. According to Staff, CPSC is monitoring the sale of corded 
window coverings on online platforms and developing plans to monitor at 
ports and in retail stores. To comply with the ANSI/WCMA voluntary 
standard, all products should be designated as ``Custom'' or ``Stock'' 
on the manufacturer label, using a ``C'' or the word ``Custom,'' or an 
``S'' or the word ``Stock'', respectively. Stock products are 
substantially fabricated in advance of distribution in commerce and in 
advance of any specific consumer request for that product. A product is 
likely a stock product if it appears online readily available to ship, 
and has limited/specific pre-determined sizing, color, and material 
options.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
    Two years ago, a video went viral showing near-tragedy from a 
furniture tipover: twin brothers climbing on the Ikea HEMNES 8-drawer 
dresser leading it to tip over--one being nearly crushed by it and the 
other miraculously saving him. The parents had posted the video to warn 
others about the danger.\2\ Tragically, five months later, the same 
kind of Ikea dresser fell on another 2-year old boy in his bedroom, 
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
    \2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
    While Ikea has recalled the HEMNES 2,3,5, and 6-drawer versions of 
this dresser, it has steadfastly refused to recall the 8-drawer 
dresser. IKEA refuses to recall it because it does not fail the 
existing furniture stability test. They maintain that the product is 
safe--even in the face of clear video evidence that it is not.
    Kids In Danger, Consumer Federation of America, Parents Against 
Tip-overs, and Consumer Reports have all called for the recall of this 
product.

    Question 19. Do you believe that the current standard governing 
furniture stability is inadequate?
    Answer. Consistent with the terms of my ethics agreement and the 
advice of the CPSC's Designated Agency Ethics Officer, I have recused 
myself from Commission matters relating to IKEA dressers. To the extent 
this question is intended to apply generally to furniture stability, 
regardless of manufacturer, my answer is Yes.

    Question 20. Have you personally had any conversations with Ikea 
urging them to agree to a voluntarily recall of this dangerous product? 
Have you directed CPSC staff to have such conversations? Why or why 
not?
    Answer. No. Consistent with the terms of my ethics agreement and 
the advice of the CPSC's Designated Agency Ethics Officer, I have 
recused myself from Commission matters relating to IKEA dressers.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to [sic] many of these 
products sold on secondary online marketplaces.

    Question 21. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:

   When and how that relationship was established.

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.

   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.
    Answer. CPSC works with a number of platforms, including: eBay, 
Overstock.com, Alibaba, Craigslist, Facebook and Facebook Marketplace, 
Oodle, Shopgoodwill, Amazon, Letgo, and OfferUp. Our Internet 
surveillance team also scans the online marketplace to flag recalled 
products and works directly with sellers to immediately stop sale of 
recalled products and monitor the platform going forward. The Agency 
does not have any special tools, per se, in place regarding recalls for 
these platforms. This is just one example of the modernization that 
must take place at the Agency. I also believe that the Agency should 
implement a designed department charged solely with addressing and 
maintaining best practices regarding these and other Internet platforms 
and sellers.

    Question 22. What more could Internet platforms do to eliminate the 
illegal sale of recalled products on their platforms?
    Answer. The types of e-platforms on the market are expansive and 
varied. Several platforms have developed their own internal processes 
for flagging recalled products that incorporate new technology to scan 
for recalled products, as well as using blockchain technology for 
inventory management. I would encourage all Internet platforms that 
have even the potential to sell recalled products to use all available 
resources to ensure that recalled products are not sold on their 
platforms.

    Question 23. Do you think platforms that facilitate the sale of new 
and used products should have clear policies expressly prohibiting the 
sale of recalled products in the United States?
    Answer. Yes.

    Question 24. Do you think users should be able to specifically flag 
the sale of recalled products?
    Answer. Yes.

    Question 25. What kind of obligation do you think these companies 
have or should have in making sure recalled products are not illegally 
sold on their platforms?
    Answer. There is a legal obligation to comply. The Consumer Product 
Safety Improvement Act makes it unlawful for any person to sell, offer 
for sale, manufacture for sale, distribute in commerce, or import into 
the United States any consumer product or substance that is subject to 
a voluntary corrective action taken by the manufacturer in consultation 
with the Commission. 15 U.S.C. Sec. 2068. This law applies to both 
voluntary recalls and recalls ordered by Commission, and requires the 
firm to conduct monitoring of product recalls including the submission 
of monthly progress reports to CPSC until it has been determined that 
the corrective action has been implemented to the best of the firm's 
ability and as many products as possible have been removed from their 
marketplace. In addition to the statutory requirements, many firms have 
implemented their own unique systems to flag recalled products in their 
supply chain, or have developed ways to directly notify consumers. I 
encourage firms to take these additional steps in ways that work best 
for their business to comply with their obligations, and to improve 
recall monitoring processes generally.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan.
    Consumers lose out on important legal protections when recalls 
aren't called what they should be--``recalls.'' For example, they may 
be more susceptible to purchasing second-hand products that haven't 
been repaired.

    Question 26. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    Answer. No ``evidence'' has been provided to the Commission. The 
Britax settlement agreement requires Britax to provide periodic updates 
regarding its compliance with the settlement terms. It has been 
represented to me and, therefore, it is my understanding that, Britax 
is providing those statistics, which have been and continue to be 
reviewed. The settlement terms also give the Commission jurisdiction to 
resolve any disputes that arise out of the agreement. Thus, until or 
unless the parties raise for the Commission's determination a 
legitimate dispute that requires the Commission to determine an issue 
arising out of those statistics, our rules do not permit Commissioners 
to pre-judge this (or any other) issue.

    Question 27. How does the Consumer Product Safety Improvement Act 
(``CPSIA'') protect consumers from the sale of products that are 
subject to ``information campaigns''?
    Answer. Under the CPSIA, CPSC and the recalling firm negotiate the 
terms of a Correction Action Program (CAP), including the most 
effective way to notify the public of the relevant recall. While direct 
notice to customers contributes most to a recall's effectiveness rate, 
this is often not a, or the only, viable option due to privacy laws. A 
key function of any successful recall is to reach the consumer and 
motivate them to participate in a recall. Information campaigns can 
reach not only directly impacted consumers, but can also serve to 
educate others on safety issues generally. In addition, a reporting 
requirement incorporated into an ``information campaign'' provides an 
express means by which CPSC can receive statistics relating to 
information campaigns. CPSC also has the authority to amend or require 
amendment of a CAP.

    Question 28. So, without an official recall, consumers who buy 
these strollers second-hand will have no legal remedy against the 
seller for being sold the product without being advised of the 
information campaign or for being sold the product without the ``free 
modified thru-bolt or free modified quick release'' incentive for 
consumers who participate in the information campaign. Is that correct?
    Answer. The terms of the Britax settlement were agreed upon after 
months of failed negotiations between CPSC and Britax on a voluntary 
corrective action plan. During this time, consumers were left with no 
warning or remedy for the jogging strollers at all. And, if CPSC would 
have been unsuccessful in its litigation, that scenario would have 
remained the same. As with any recall or information campaign, the 
first step is to reach or inform consumers. Putting as much information 
in the public domain is essential.
General Counsel Patricia Hanz (for Commissioner Baiocco)
    At the most recent CPSC Commission Meeting on May 22, 2019, you 
said to Acting Chairman Buerkle:

        ``I am aware that our General Counsel [Patricia Hanz] is not 
        independent, is controlling the information that we get, and 
        the last few pieces of legal advice that I have gotten from our 
        General Counsel have been flat wrong.''

    Question 29. Can you explain in detail what you meant when you said 
this? What legal advice were you seeking?
    Answer. The context of this statement arose out of information and 
analysis regarding the major data breach sustained by the Agency, which 
was reported to the Commission in April 2019. Additionally, bare 
conclusions or result oriented directives from OGC, without supporting 
legal analysis, are woefully inadequate.
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 30. What steps should the CPSC take to make this recall 
more effective to prevent other children from being injured or killed 
from these unstable dressers?
    Answer. Consistent with the terms of my ethics agreement and the 
advice of the CPSC's Designated Agency Ethics Officer, I have recused 
myself from Commission matters relating to IKEA dressers.

    Question 31. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    Answer. Consistent with the terms of my ethics agreement and the 
advice of the CPSC's Designated Agency Ethics Officer, I have recused 
myself from Commission matters relating to IKEA dressers.

    Question 32. Have you met with IKEA? When you met with them, how 
did you discuss holding IKEA accountable for this recall?
    Answer. Shortly after joining the Commission, I informally met 
representatives from IKEA during an ICPHSO Conference in Washington, 
DC, which was attended by hundreds of stakeholders. I did not, during 
this introduction or any other time, discuss with IKEA its dressers. 
Consistent with the terms of my ethics agreement and the advice of the 
CPSC's Designated Agency Ethics Officer, I have recused myself from 
Commission matters relating to IKEA dressers.

    Question 33. What have you done and what are you committed to doing 
to decreasing the numerous amount of deadly dressers still in people's 
homes?
    Answer. The Commission has publicly expressed its concern that the 
current standard does not adequately address or eliminate the risk of 
tip-overs generally. For these reasons, Commissioner Feldman and I 
jointly proposed an amendment to the FY 2020 Performance Budget Request 
to Congress for a Notice of Proposed Rulemaking be a deliverable for 
Children's Clothing Storage Units and reflected in the FY 2020 
Operating Plan. This amendment was unanimously adopted by the 
Commission. These products must be designed and tested so that the tip-
over hazard can be resolved in the best possible way.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 34. When is this study going to be complete?
    Answer. This project was designed to be completed in stages. The 
EPA was responsible for the first part of the study, which it completed 
and released to the public on July 25, 2019. The CDC will be releasing 
its portion shortly. CPSC is responsible for final component of the 
project, which is dependent on the results of the EPA and CDC portions. 
It is my understanding that CPSC has completed a survey of playground 
use and related behavior by children using playground, and the results 
of that survey are currently being reviewed by Staff. It is likely that 
the Staff's analysis will be released in the Fall. For reference, there 
is a CPSC website,\3\ FAQ,\4\ and an EPA \5\ on-line site, all of which 
provide updates on the status of the project, and links to the multiple 
Federal Register notices and public webinars.
---------------------------------------------------------------------------
    \3\ https://www.cpsc.gov/Safety-Education/Safety-Education-Centers/
Crumb-Rubber-Safety-Information-Center
    \4\ https://www.cpsc.gov/Safety-Education/Safety-Education-Centers/
Crumb-Rubber-Safety-Information-Center/status-report-on-tire-crumb-
rubber-full-questions-and-answers
    \5\ https://www.epa.gov/chemical-research/federal-research-
recycled-tire-crumb-used-playing-fields

    Question 35. What is the delay?
    Answer. I cannot comment on the timeliness. This is a multi-part 
project initiated in 2016 that required extensive coordination between 
three different government agencies. The project includes multiple 
studies, surveys, and analytic reviews. Federal surveys of public 
citizens require extensive planning and approval by many authorities 
including, but not limited to, OMB. The first 10 months of the project 
were dedicated to stakeholder input in the form of FR comments, 
webinars, and direct meetings. Each part must to be completed in 
succession according to a pre-determined schedule, as each agency's 
research is built on the work done by the others.
    The portions of the project delegated to the EPA and CDC were sent 
out for external peer-review to ensure scientific integrity. There were 
several Federal Register notices that required public input, 
necessitating additional time built in stakeholder comments. The EPA 
posted a voluminous status update \6\ in December 2016 that outlined 
the continued progress of the project, including that of CPSC. Given 
all of these circumstances, the project will inevitably require an 
investment of time.
---------------------------------------------------------------------------
    \6\ https://www.epa.gov/sites/production/files/2016-12/documents/
federal_research_action_
plan_on_recycled_tire_crumb_used_on_playing_fields_and_playgrounds_statu
s_report.pdf

    Question 36. Do you believe the EPA and partner agencies are still 
fully completed [sic] to this research? Have you talked to them about 
it?
    Answer. I have not discussed this project generally, or each 
Agency's commitment to this project, directly with any of the 
participating partner agencies. The EPA has already published a portion 
of the study and the CDC is on track to complete its portion. I have no 
indication that our partner agencies are not completing or committed to 
the work. I am encouraged that three different health-and-safety 
agencies are able to come together for a project impacting the well-
being of our Nation's citizens and are on track to completing it.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of Ikea's recall on unstable dressers.\7\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
    \7\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 37. Does it make sense that the CPSC is redacting 
information about public Facebook posts about recalls? Do you think it 
is appropriate that Section 6(b) really limits such information 
disclosures?
    Answer. I am not involved in redacting information about public 
posts about recalls and, therefore, it would be inappropriate for me to 
comment on it. Regarding the appropriateness of the law, we are duty-
bound to uphold it. To the extent that this question is directed to my 
personal comments regarding Section 6(b), please see my previous 
responses addressing Section 6(b).

    Question 38. Will you commit to making sure the CPSC does not 
restrict the disclosure of information more than is required by 
statute?
    Answer. I commit to following the directives set forth in the 
statute.

    Question 39. As long as Section 6(b) is on the books will you 
commit to support the agency restricting disclosure of information 
about a product or company to no greater an extent than required by 
statute?
    Answer. I commit to following the directives set forth in the 
statute.
Internet of Things
    Acting Chair Buerkle recently said in reply to a letter in reply to 
consumer privacy organizations, ``CPSC's authority will not generally 
extend to situations solely related to consumer privacy or data 
security, that do not pose a risk of physical injury or illness, or 
property damage.''
    On the contrary, the CPSC should be doing more to recognize that 
consumer privacy and data security pose real and urgent threats to the 
well-being and safety of consumers. Insecure products can be hacked to 
spy on children, trip up smoke detectors, and more.

    Question 40. How can the CPSC leverage its expertise in keeping 
dangerous products off of shelves, to also keep insecure products that 
threaten people's safety out of people's homes?
    Answer. IoT expands significantly the types of connectivity based 
products on the market. IoT developments in this area are fast-paced 
and evolving. CPSC must study the potential safety aspects that may 
arise from this type of connectivity. However, because CPSC is not 
charged with regulating privacy, it must coordinate with other 
governmental agencies to limit duplication and to coordinate studies to 
be most effective. CPSC must also invest its resources in this 
important area. So much more needs done internally to close the 
knowledge gap so that the Agency can carry out its mission as it 
relates to IoT.

    Question 41. What is the best way to protect vulnerable consumers 
as new products enter the market without standards--such as connected 
products? Is enough money allocated to compliance and enforcement 
divisions?
    Answer. The Agency must be prepared to address consumer product 
safety issues that will inevitably surface via the Internet of Things 
(IoT). The Agency must modernize and secure modern IT infrastructure 
and equipment, to meet the issues related to IoT. The Agency needs to 
recruit qualified and creative personnel with the expertise to 
capitalize on emerging technologies and new products. We must also 
train our current staff so they are fully equipped and energized with 
the knowledge to utilize these tools.
Kids in Danger Report: Social Media Practices
    Kids In Danger (``KID''), a non-profit organization dedicated to 
protecting children by fighting for product safety, released its latest 
report in March.\8\ It found that both the CPSC and manufacturers 
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
    \8\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
---------------------------------------------------------------------------
    CPSC posted only 45 percent of 2018 children's product recalls on 
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
    In addition, of the 48 manufacturers that issued recalls in 2018, 
only 31 percent were announced on the company's Facebook page--down 
from 51 percent in 2017.

    Question 42. Why isn't the CPSC using all tools at its disposal to 
make recalls are made known?
    Answer. With regard to the statistics, I am unable to comment as 
posts to social media are outside the jurisdiction of the Commission. 
The government, consumer advocates, and the private sector, have 
competing philosophies about how to make the best use of rapidly 
changing technology. Social Media is a prime example. The Agency 
attempts to use all available outlets to reach consumers with recall 
information. In addition to Facebook, vital recall information is 
disseminated, when appropriate, via Twitter, television, traditional 
print media, SaferProducts.gov, our new Recall App, and other 
appropriate platforms. There has also been positive public attention on 
the big things accomplished by our small Communications team. Testimony 
received at the hearing on how to improve SaferProducts.gov that the 
CPSC hosted in March, and the Agency's new Recall App demonstrate the 
dedication CPSC has to improving how all safety information is 
disseminated. The CPSC's use of social media to share important 
information with stakeholders is an evolving process and we will 
continue to examine and change our dissemination policies to better 
meet the public's needs. The Agency should always be working to ensure 
that recall information reaches as many impacted consumers as possible.

    Question 43. Why isn't the CPSC requiring manufacturers to issue 
notices on manufacturers' Facebook pages? Why isn't that a standard 
part of the corrective action plan?
    Answer. Corrective Action Plans, or CAPs, are generally negotiated 
between CPSC and a firm as part of a voluntary recall process. If CPSC 
determines a product presents a substantial product hazard and 
notification is required to adequately protect the public from such 
substantial product hazard, or if the Commission, after notifying the 
manufacturer, determines a product to be an imminently hazardous 
consumer product and has filed an action under section 12 of the CPSA, 
the Commission may order the manufacturer, or any distributor or 
retailer to give public notice on its website of the defect or failure 
to comply, and provide to any third party Internet website on which 
such manufacturer, retailer, distributor, or licensor has placed the 
product for sale. Those announcements must be in languages other than 
English and on radio and television where the Commission determines 
that a substantial number of consumers to whom the recall is directed 
may not be reached by other notice. See 15 U.S.C. Sec. 2064(c)(1)(D). 
Inclusion of a recall notice on social media is part of a larger 
negotiation process around distribution of recall notices in a CAP's 
communications component. Therefore, while negotiating a Facebook 
posting requirement in a CAP may very well be preferred by some, CPSC 
cannot require a company to do so, nor is it always a feasible or 
effective option.
Can a product that meets an existing standard be defective?
    We are hearing increasingly often from companies that just because 
their product is meeting a safety standard, their product can't be 
defective and can't be subject to a recall. For example, Britax, the 
maker of the B.O.B. jogging stroller argued that a product defect 
required the violation of a safety standard. And the B.O.B. had passed 
a test that required the removal front wheel to stay on after a strong 
pull.
    IKEA has also said the same thing about the HEMNES 8-drawer dresser 
that killed a 2 year-old.

    Question 44. If a product meets an existing standard but is killing 
or seriously injuries children and babies, wouldn't you agree the 
product should be recalled?
    Answer. Meeting a product safety standard does not guarantee the 
absence of a defect. The Agency is charged with determining whether a 
substantial product hazard exists, and, if so, with taking appropriate 
action. 15 U.S.C.Sec. 2064, et seq.

    Question 45. Would you agree that the CPSC has the authority to 
recall a product if it believes it poses an unreasonable risk of 
serious injury or contains a defect that presents a substantial product 
hazard--even if the product meets all existing standards?
    Answer, Yes.

    Question 46. Can a product be recalled if it meets an existing 
standard?
    Answer. Yes.

    Question 47. Wouldn't you agree that if deaths and injuries are 
occurring, the products may still be defective and a recall may be in 
order?
    Answer. Yes.

    Question 48. What are some examples of companies that have 
voluntarily recalled products that didn't necessarily violate a 
specific product standard?
    Answer. It would be inappropriate to provide or comment on active, 
company specific enforcement actions or investigations. While firms 
have a legal obligation under Section 15 of the CPSA to report products 
that do not necessarily violate a specific product safety standard that 
does not mean the Commission will automatically conclude the product 
creates a substantial product hazard or that a corrective action is 
necessary. However, firms may choose to voluntarily recall a product 
without CPSC involvement.

    Question 49. What role do you have in encouraging a manufacturer to 
agree to a voluntary recall?
    Answer. As a Commissioner, my fundamental role is to work together 
with my fellow Commissioners, consistent with our governing statutory 
authorities, to enforce the laws we have been charged with enforcing. 
None of those charges is personal, including voluntary recalls. All 
activities as a Commissioner are governed by law. By way of example, 
Section 15 of the CPSC provides the Commission with the authority to 
take action to protect the public from products which are found to 
present substantial product hazards. 15 U.S.C. Sec. 2064. To that end, 
16 C.F.R. Sec. 1115.20(a)(3) provides the Commission the power to 
approve, reject, or take any other action necessary to ensure that a 
proposed voluntary corrective action plan (CAP) is adequate. The 
Commission delegated the authority to approve CAPs to the Executive 
Director, with the exception in cases where CPSC staff's preliminary 
determination of a product was a ``Class A'' as defined in the Hazard 
Priority and Corrective Action Guidelines or if there is a death 
involved with a product. (See U.S. Consumer Product Safety Commission, 
Office of Compliance and Field Operations, Division of Defect 
Investigations, Section 15 Defect Investigation, Procedures Manual, p. 
52 (April 2014)). Requiring CAPs for products that fall under hazard 
``Class A'' or where a death has occurred to be approved by Commission 
vote is appropriate and necessary. The Commission also reserves the 
authority to reclaim the delegation of authority of any other CAPs by 
majority vote. Final Commission approval empowers the Agency to 
negotiate the best possible CAP for high risk products, and for the 
Commissioners to work together, consistent with our governing statutory 
authorities, to enforce the laws. Satisfying these and related 
directives in a legally appropriate manner is an immense 
responsibility.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 50. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Answer. It would be inappropriate to provide information or comment 
on active, company specific enforcement actions or investigations.

    Question 51. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    Answer. It would be inappropriate to provide information or comment 
on active company specific enforcement actions or investigations.

    Question 52. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    Answer. It is my understanding that the Agency is using all 
available authorities to address products and packaging under its 
jurisdiction, including liquid nicotine, which pose hazards.
Keeping Fellow Commissioners in the Dark
    I am troubled by reporting that Acting Chairman Buerkle withheld 
information from fellow Commissioners about defect investigations and 
incident data--even when briefings have been requested. All 
commissioners must have fair access to the information they need in 
order to make informed and educated decisions--especially when voting 
on matters.
    For example, The Washington Post has already publicly reported on 
how Democratic Commissioners felt in the dark about the Britax jogging 
stroller investigation and frustrated by Acting Chairman Buerkle's 
control of the flow of information.

    Question 53. Did you feel like you were adequately informed and 
briefed prior to your vote agreeing on the Britax settlement, and in 
retrospect?
    Answer. I was not part of the Commission at the time referenced by 
the Democratic Commissioners and as reported in the article you 
mention. When I joined the Commission, the applicable adjudicatory 
rules in place contributed, unintendedly but significantly, to the 
limited information I possessed regarding the Britax matter. However, I 
have experienced situations where I was not provided complete 
information or, in some cases, specific information that I requested 
regarding a matter on which I was asked to vote or oversee.

    Question 54. What do you need to do your job better?
    Answer. Keeping my response in context to this set of questions, 
the full, complete, and accurate dissemination of information is 
essential. I also think that Commission briefings, where appropriate, 
would assist and benefit the entire Commission and our stakeholders so 
that information and competing positions may be presented at one time 
and all Commissioners can listen to everyone's input. I also believe 
that all Commissioners should to be involved in the operation of the 
Agency. Too often, critical Agency decisions are made without the input 
of the full Commission which disrupts the Agency's ability to function 
as effectively as possible.

    Question 55. Do you feel like you have access to CPSC staff 
expertise necessary to faithfully perform your job duties?
    Answer. No.

    Question 56. Are your requests for briefings from CPSC staff being 
approved efficiently? Please list all briefing requests that have been 
denied or postponed to a later date.
    Answer. No. Despite repeated requests, the free and fully accurate 
flow of information necessary to generate reasonable Commission input, 
has been unnecessarily and unacceptably restricted.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 57. How many FTEs are vacant?
    Answer. The current FTE level has been in constant flux. We have 
supplemented our permanent staff with temporary appointments while 
actively recruiting for 40 vacant positions. Suffice it to say that 
there are too many FTE vacancies in critical positions.

    Question 58. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Answer. The Agency cannot efficiently, effectively or responsibly 
carry out its mission without a full complement of qualified FTEs.

    Question 59. Why are these vacant? When do you anticipate they will 
be filled?
    Answer. The Acting Chair's office solely oversees the personnel 
issues and has not shared any specifics with my office on this point. 
Based on my own perceptions, discussions with some colleagues who have 
departed, and briefings from our executive offices, the circumstances 
giving rise to these vacancies are, in many cases, individual, varied, 
and related to ordinary attrition and a few well-deserved retirements. 
In addition, a search for advancement and personal career growth has 
caused some dissatisfied employees to pursue better opportunities. In 
my estimation, it may take more time than is desirable to fill these 
vacancies with individuals possessing qualifications that support the 
Agency's mission. CPSC, like other Federal agencies and the private 
sector, vies for highly in-demand candidates. A strong economy with a 
significantly low unemployment rate makes the labor market highly 
competitive. All of these factors, combined with the Agency's finite 
resources, make CPSC's FTE needs and goals quite daunting.

    Question 60. Is there anything preventing these FTEs from being 
filled?
    Answer. The Acting Chair's office solely oversees the personnel 
issues and has not shared any specifics with my office on this point. 
As mentioned in my response to the previous question, there are several 
factors that impact the Agency's FTE vacancies. Also, and specific to 
the Agency, the Commission is currently in a state of flux regarding 
its leadership and the direction that the Agency will head in the short 
term remains uncertain.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                           Hon. Dana Baiocco
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (``FDA'') policy 
could undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    Answer. CPSC has notified firms and sought corrective action when 
non-compliant products are identified.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Answer. I am aware only that communications between CPSC and FDA 
have occurred, but despite my repeated requests for more information, I 
have not received any substantive information that would allow me to 
adequately respond to your inquiry.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    Answer. It is my understanding that communications between CPSC and 
FDA have occurred, but as I stated in my response to Question 2, I do 
not have sufficient details. The CPSC has issued guidance on the 
restricted flow requirements (available at: https://www.cpsc.gov/s3fs-
public/NoticeofRestrictedFlowTP.March82019
.pdf?), which the industry has challenged.
Children's Cosmetics:
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4300 children are treated in emergency departments 
for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    Answer. Section 3(a)(5)(H) of the Consumer Product Safety Act, 15 
U.S.C. Sec. 2052, excludes drugs, devices, or cosmetics (as such terms 
are defined in section 201 (g), (h), and (i) of the Federal Food, Drug, 
and Cosmetic Act
    [21 U.S.C. Sec. 321 (g), (h), and (i)]) from CPSC's jurisdiction. 
However, CPSC can, where appropriate, take action on these products 
under the Poison Prevention Packaging Act (``PPPA''), 15 U.S.C. 
Sec. 1471. Section 2 of the PPPA includes within its definition of 
``household substance,'' any substance which is customarily produced or 
distributed for sale for the consumption or use, or customarily stored, 
by individuals in or about the household and which is--a food, drug, or 
cosmetic as those terms are defined in section 201 of the Federal Food, 
Drug, and Cosmetic Act, 21 U.S.C. Sec. 321. Thus, under the PPPA, the 
Commission may, according to the provisions of the Act, establish 
special packaging standards to protect children under five years of age 
from opening or obtaining toxic or harmful amounts of a substance. The 
Commission has issued rules under the PPPA that extend to household 
substances that include cosmetics and personal care products.

    Question 2. Could product safety standards be developed that would 
reduce the risk of injury to children from personal care products?
    Answer. Yes. Safety standards requiring child-resistant packaging 
for personal care products can and have been issued under the Poison 
Prevention Packaging Act.

    Question 3. Do you believe the warning letters are effective at 
reducing injury? Why or why not?
    Answer. Warning letters are a viable tools, but I am unaware of any 
study that has measured the efficacy of such measures. Warning labels 
are another tool, which is expressly addressed in the PPPA. Section 
4(a)(2) of the PPPA requires manufacturers to bear conspicuous labeling 
stating ``this package for households without young children'' if 
elderly or handicapped persons are unable to use a household substance 
with special (child-resistant) packaging. We must balance the 
regulation of a product, or in this case, the packaging of a product, 
with the utility and make sure the regulation is appropriate and 
effectively protects the consumer. The labeling requirement is a 
limited exemption under the PPPA that warns parents and caregivers to 
consider a different product or properly store the product away from 
young children.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Tammy Duckworth to 
                           Hon. Dana Baiocco
    While much progress was made on sudden unexplained infant death 
(``SUID'') in the 1990s, little progress has been made in reducing SUID 
over the past decade. In some high-risk groups, rates are going in the 
wrong direction. The U.S. Centers for Disease Control and Prevention 
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in 
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants 
sleep. The FDA has warned against sleep positioners and safe sleep 
advocates warn against the use of crib bumper pads. Many of these 
products meet no standard--mandatory or voluntary. The CPSC is in a 
unique position to help address the public health problem of SUID 
through its jurisdiction over infant products and opportunities to 
communicate with families, caregivers and health care providers.

    Question. What will you do, beyond education and awareness, to push 
CPSC to use its authority to increase safe sleep among high-risk 
families and to reduce the hazard posed by certain infant sleep 
products such as crib bumpers and other untested products?
    Answer. CPSC has been reviewing the information on potential 
hazards posed by certain infant sleep products such as crib bumpers for 
a number of years. While numerous studies on these products have been 
completed and shared with our technical staff, the studies convey 
conflicting conclusions that yield a range of recommendations. Because 
the Commission is currently considering issues relating to inclined 
sleep products, it would be inappropriate to comment on or pre-judge 
this matter. The Staff will continue to review and evaluate new data 
and research on these products. Any action the Commission takes must be 
based on sound science and data to adequately protect infants and 
children.
    Meanwhile, our State and Local program has been successful in 
targeting areas to augment our safety message, including safe sleep. By 
working with state and local leaders and health care providers, we can 
make significant strides in reaching high risk families to address safe 
sleep.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jerry Moran to 
                         Hon. Peter A. Feldman
    Question 1. You have been a strong advocate on efforts to modernize 
the agency, including reexamining how the Commission processes data and 
new challenges associated with emerging technologies. The CPSC Chief 
Information Officer Parity Act, which I introduced with the Ranking 
Member last week, would enhance the role of the agency's CIO in agency 
planning and management decisions. Have you had an opportunity to 
review this bill?
    a. What more can the CPSC do to improve its data processing 
capabilities and keep consumers safe?
    Answer. Yes. I have reviewed this bill and recognize your 
leadership in introducing similar legislation that has been successful 
at other independent agencies. I am grateful for your efforts, 
alongside Ranking Member Blumenthal, to modernize CPSC. The CPSC CIO 
Parity Act is a strong bipartisan bill and I believe it will bring 
needed enhancements to CPSC's data processing capabilities, among other 
things.
    As the CPSC CIO Parity Act addresses, we must ensure that CPSC has 
the resources to function appropriately in the 21st Century. That 
includes the agency's IT resources and data processing capabilities. It 
is important that the agency CIO be empowered to play an active role in 
the agency's mission. I am also pleased to see that this legislation 
includes provisions with respect to a chief data officer and a chief 
technologist. These are roles that many of our sister agencies have 
implemented effectively and would expand CPSC's expertise in a way that 
would be helpful.

    Question 2. On March 25, 2019, you sent letters to California's 
Attorney General and state legislators regarding the California 
Consumer Privacy Act and its ``Right to Delete'' provision. Your 
letters expressed concern with this provision impact on the ability of 
retailers, manufacturers, and others to conduct efficient recalls of 
hazardous consumer products. Would you please describe those concerns 
to this Subcommittee?
    Answer. We know that direct-notice recalls are more effective. CPSC 
will often work with a recalling firm to leverage the data it collects, 
through sales records, product registrations, and data brokers, to 
effect direct notice. In March, I sent letters to California officials 
to draw attention to a provision in the state's new data privacy law 
and the impact I believe it may have on recall effectiveness. The 
California law contains a ``right to delete'' provision under which 
consumers can wipe this data from a firm's systems. I'm concerned that 
this deletion may limit the effectiveness of future recalls. I am 
including copies of these letters for the record, along with my 
responses. See ADDENDUM 1.

    Question 3. I am also a member of the Senate Appropriations 
Subcommittee on Financial Services and General Government, which 
oversees funding matters related to the CPSC. I remain committed to 
ensuring that the CPSC has the resources and tools that it needs to 
effectively protect the public from unreasonable risks of injury or 
death due to the use of consumer products. Is the Commission have 
adequate resources to fulfill its mission?
    a. If not, where should additional resources be targeted?
    Answer. CPSC is a small agency with a broad mission and limited 
resources. There are specific areas where additional funding would be 
helpful and the agency's most recent budget request to Congress 
reflects that. See ADDENDUM 2. Simply throwing more money at an agency 
isn't always the right answer. I welcome the opportunity to collaborate 
with you on exploring how the agency can operate more efficiently to 
better utilize the resources we have. Currently, the agency does not 
keep sufficient internal metrics on which to gauge efficiencies. 
Similar to your CIO Parity Act, I proposed investments to strengthen 
the agency's data science expertise in our FY 2020 Budget Request to 
Congress. I believe such investment is useful not only to gauge 
efficiencies, but also to support the agency's critical safety mission 
in general.

    Question 4. Input with industry and advocacy groups is an essential 
component to fulfilling the Commission's purpose. One area of 
collaboration has been on the issue of preventing consumer injuries 
from portable fuel containers. While workplace safety regulations 
mandate the use of flame arrestors for containers in industrial use, 
there is no similar requirement for consumer containers. For this 
reason, I sponsored the Portable Fuel Container Safety Act that would 
direct the Commission to finalize standards for installing flame 
arrestors in portable fuel containers. Would you please describe the 
importance of collecting stakeholder input in finalizing standards for 
this and other consumer product related issues?
    Answer. Consumer injuries associated with fuel containers are 
serious and number in the thousands. We know that flame arrestors 
significantly mitigate this risk. I believe the additional authorities 
provided in the Portable Fuel Container Safety Act are helpful and I 
thank you for your leadership on this important issue.
    With respect to stakeholder input to further the goal of agency 
transparency, I maintain an open door and encourage all stakeholders to 
share their concerns with me. This invitation applies to consumer 
groups, trade groups, legislators, companies, individual consumers, and 
others.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Marsha Blackburn to 
                         Hon. Peter A. Feldman
    Question 1. The structure of the CPSC's authorizing statue is 
critical--it recognizes having open lines of communication with the 
industry that CPSC regulates. I know that some are attempting to 
discredit these open lines of communication between the agency and 
regulated industries.
    a. Can you speak to how you work with industry to develop voluntary 
standards?
    b. Can you speak to the work CPSC does in partnership with Customs 
and Border Protection in intercepting illegal products coming in 
through our Nation's ports?
    Answer. A core purpose of CPSC is to develop uniform standards for 
consumer products and to minimize conflicting regulations. Through the 
course of this work CPSC must assess whether voluntary standards 
address or eliminate a particular risk and whether the agency can 
expect substantial compliance from industry. The purpose of stakeholder 
engagement, including with advocacy groups, affected families and 
regulated industry, is to increase safety and better identify priority 
risk areas. CPSC should endeavor to communicate more plainly with all 
these groups. Better engagement beings with clarity about agency 
expectations. To further the goal of agency transparency, I maintain an 
open door and encourage all stakeholders to share their concerns with 
me. This invitation applies to consumer groups, trade groups, 
legislators, companies, individual consumers, and others.
    CPSC's Office of Import Surveillance works closely with U.S. 
Customs and Border Protection (CBP) to identify and examine imported 
shipments of consumer products. As part of this effort, CPSC has co-
located investigators at ports of entry who work side-by-side with CBP 
staff.
    While this remains a close and important interagency partnership, I 
continue to be concerned about our surveillance and interception 
capabilities with respect to e-commerce. The trend line of e-commerce 
sales suggest they will continue to grow as a percentage of overall 
retail sales, and an increasing number of these sales enter the United 
States under de minimus exemptions or otherwise avoiding traditional 
ports of entry. I welcome the opportunity to collaborate with you on 
how CPSC might modernize its import surveillance and monitoring efforts 
to include direct-to-consumer shipments.

    Question 2. Mr. Feldman, you mentioned in your testimony your work 
to modernize the Commission's data collection capabilities, 
specifically with regards to new and emerging technologies in consumer 
products.
    a. What are the current gaps at the agency in this area, and how 
can they be addressed?
    b. Can you speak to how you coordinate with other Federal agencies 
to tackle issues such as IoT, connected devices, and counterfeit 
products in e-commerce?
    Answer. IoT makes all sorts of connectivity possible and there have 
been some exciting developments in this area. CPSC has a role to play 
with respect to connected devices that present an unreasonable risk of 
injury to consumers. However, CPSC is not a privacy or security 
regulator. Therefore it is important that CPSC coordinate with other 
relevant governmental agencies to ensure vigilance, preserve 
innovation, and avoid duplication. That is why I worked to create a 
first-of-its-kind IoT interagency working group earlier this year. The 
purpose of this working group is interagency coordination, not 
regulation. It is important that agencies be aware of their respective 
efforts on connected devices across the Federal government. It is also 
important that agencies be mindful of the jurisdictional limitations 
that exist. To minimize burdens and maximize innovation, a series of 
MOUs may be appropriate to clarify overlapping jurisdictions. This 
working group is an important first step to that end.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Ron Johnson to 
                         Hon. Peter A. Feldman
    Question. On February 20, 2019, you tweeted, ``I'm told that as 
much as 100 percent of liquid nicotine containers do not comply fully 
with the requirements of the Child Nicotine Poisoning Prevention Act, 
including the use of flow restrictors.'' What data supports this 
assertion? Please provide the data.
    Answer. This figure referenced in the tweet is a compliance 
estimate from career agency enforcement staff based on their market 
surveillance activities at the time. The Child Nicotine Poisoning 
Prevention Act of 2015 (CNPPA) generally requires, among other things, 
that liquid nicotine be packaged in accordance with the standards 
provided in 16 C.F.R. 1700.15. This regulation includes various special 
packaging requirements, including with respect to child resistance and 
flow restriction. Because the CNPPA explicitly treats these 
requirements as a standard under the Poison Prevention Packaging Act of 
1970, 15 U.S.C. 1472(a), the statute makes applicable additional 
requirements, including that manufacturers, importers, and others 
certify compliance to these special packaging requirements in a General 
Certificate of Conformity (GCC). In February 2019, while the Commission 
was aware of varying degrees of compliance with the regulation's 
restricted flow requirement, staff was unware of any GCC that fully 
certified to the special packaging requirements, including those 
pertaining to restricted flow.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                         Hon. Peter A. Feldman
    On April 8th of this year I sent Acting Chair Buerkle a letter 
requesting documents and a further explanation of why the Commission 
did not recall the BOB jogging stroller. In the information I received 
back, it seems that the Commission knew of almost 200 incidents related 
to the stroller, including some very serious injuries, because of the 
front-wheel detachments problem.
    We also learned that in late September 2017 the CPSC's Office of 
Compliance did a presentation listing a litany of injuries that could 
occur as a result of defects in the stroller, and stated that the 
Commission should push for a recall. Acting on this information, the 
Commission voted 3-1 in February 2018 to file an administrative lawsuit 
against the stroller's manufacturer, Britax, asking for a finding that 
the strollers presented a substantial product safety hazard and 
demanding a recall. In October 2018, the composition of the Commission 
changed and you voted with two other Members of the Commission to 
terminate the administrative case and settle with Britax to avoid a 
recall. This settlement only required the company to do an 
``information campaign,'' and provide some replacement parts for 
certain customers who recently bought a BOB stroller.
    Furthermore, customers with older strollers, were only eligible for 
a 20 percent off coupon for a new BOB stroller.

    Question 1. Do you think this settlement adequately protected 
consumers?
    Answer. I voted to approve the settlement in this matter based on 
the recommendation of CPSC's career complaint counsel. Complaint 
counsel, after having the benefit of the discovery process and a better 
perspective on the merits of the case, made the determination that a 
settlement was appropriate. As a result, I voted to accept the 
settlement based on this staff recommendation.

    Question 2. Would you have structured the remedy in this case 
differently? Do you believe a free repair for all impacted strollers or 
a cash refund would have been more effective?
    Answer. Because the Commission ultimately sits as an administrative 
appellate body in agency litigation, due process dictates that 
Commissioners are prohibited from participating directly in settlement 
negotiations. Accordingly, internal agency procedures require an 
ethical wall between the Commissioners and the CPSC attorneys and 
technical staff who investigate and prosecute proceedings. The purpose 
of the ethical wall is to prevent bias or prejudgment by decision 
makers regarding the merits of a pending adjudication, and ensuring 
that prosecutorial and investigative staff do not advise the Commission 
on a pending adjudication. Under the ethical wall restrictions, 
together with the agency prohibitions on ex parte communications, the 
Commission cannot directly influence settlement negotiations. This 
consent agreement, consistent with the recommendation of complaint 
counsel, represents the strongest possible position for the agency. 
That is why I voted to accept it.

    Question 3. Is the Commission tracking corrective action completion 
statistics for this recall? If so, please state whether these 
statistics indicate, in your view, a successful corrective action.
    Answer. The settlement agreement requires the firm to provide 
periodic updates regarding recall completion. The Commission's review 
of these statistics remains ongoing.

    In May 2018, the Commission released a vague alert about deaths 
involving inclined sleep products for infants. Then, nearly a year 
later, Consumer reports published a story noting at least 32 deaths 
associated with the Fisher-Price Rock `n Play infant sleeper. At the 
time of the Consumer Reports disclosure, the Commission still had not 
yet issued a recall regarding the Rock `n Play sleeper.

    Question 4. Do you agree with the way Acting Chair Buerkle handled 
the Rock 'n Play Recall?
    Answer. Where agency staff is able to make a preliminary 
determination that a product contains a defect that presents a 
substantial product hazard, the agency should move expeditiously to 
enforcement. Product hazards involving fatalities warrant the highest 
level of agency attention. That is why, at the time, I believed that 
staff should proceed to immediate reconsideration of the data before it 
to make a determination with respect to whether the Rock `n Play 
presented a substantial product hazard. If so, the Commission should 
have called on the firm to take immediate, comprehensive, and expansive 
corrective action measures, including proceeding with a mandatory 
recall if necessary. To date, staff has not determined whether a 
substantial product hazard exists with respect to this product.

    Question 5. If Section 6(b) of the Consumer Product Safety Act 
restricts the agency's ability to disclose information, how can we 
ensure that consumers get the information they need to better protect 
themselves and their families?
    Answer. CPSC's ability to execute on its safety mission depends on 
our ability to be open, transparent, and accurate with consumers about 
dangerous products. Section 6(b) requires that CPSC ``take reasonable 
steps'' to ensure the information we release is accurate.

    Commissioner Kaye has testified that Section 6(b) of the Consumer 
Product Safety Act, which prohibits the Commission from releasing data 
about potentially unsafe products, is ``anti-consumer safety and anti-
transparency'' and that people die because of it.
    Recent history shows that 6(b) ties the hands of the agency because 
it prevents the agency from acting when it believes dangerous products 
are in the marketplace but the company making the products won't agree 
to voluntarily take it out of circulation.

    Question 6. Do you agree with Commissioner Kaye that we should 
eliminate 6(b)? If not, what other tools does the Commission have to 
deal with bad actors? Will you commit to supporting the use of those 
tools as a CSPC Commissioner?
    Answer. If a product represents a danger to the consumer, the 
public has a right to be told about it and the Government should not be 
permitted to conceal that information from the public. Accordingly, 
while Section 6(b) generally requires 15-days prior notice before CPSC 
can disseminate information about a manufacturer, it also provides 
important exceptions. CPSC may expedite notification to consumers if 
the Commission determines that public health and safety require a 
lesser period of notice. The Commission is under no prior notice 
requirement where a consumer product represents an imminent hazard or 
where the Commission has reasonable cause to believe a product violates 
the agency statutes. I take this issue seriously and believe the law 
should be enforced as robustly as possible to protect consumers.
Tip Overs:
    Question 1. Please describe why the Commission has chosen not to 
use Section 104 rulemaking to address--at least in part--the tip-over 
issue.
    Answer. Furniture tip over incidents are a serious issue and I am 
aware of fatalities. Product hazards involving fatalities warrant the 
highest level of agency attention. That is why I support moving forward 
with a mandatory standard that adequately reduces this risk. Although 
there is a current voluntary standard, I am concerned that it does not 
adequately address or eliminate the risk. Because of this, I introduced 
language to accelerate a mandatory standard to protect children. This 
language was adopted unanimously and on a bipartisan basis by the 
Commission. A similar amendment, directing the Commission to proceed 
via Section 104, failed because such a standard would apply only to a 
small subsection of the product category and would have diverted 
critical agency resources away from a stronger and more comprehensive 
standard.

    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15 
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of 
information that is provided to the CPSC in carrying out its 
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064 
(relating to consumer product recalls). Section 6(b) also prohibits 
public disclosure of any information that could identify a specific 
product manufacturer unless the Commission has taken reasonable steps 
to ensure that it is fair and accurate and has given the manufacturer 
of the product(s) in question 15 days advance notice (of the 
information to be disclosed) and an opportunity to comment. The 
information called for in this question pertains to a specific 
manufacturer and retailer. Accordingly, I cannot lawfully provide these 
responses to the general public without going through the agency's 6(b) 
notification process. Nevertheless, and consistent with our rules 
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the 
expectation that these materials are kept confidential, we are 
permitted by law to provide that information to the Chairman or Ranking 
Member of the committee or subcommittee of jurisdiction acting pursuant 
to committee business. Subject to these legal concerns, I would be 
happy to work with the Committee to provide this information.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    Answer. We know that direct-notice recalls are the most effective 
recalls. CPSC will often work with a recalling firm to leverage the 
data it collects through sales records, product registrations, and data 
brokers to effect direct notice.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Answer. Yes. Agency staff remains actively engaged with ASTM 15.42 
Subcommittee for Clothing Storage Units to improve the ASTM standard 
F2057-17. Improvement efforts are centered on consumer interactions 
with product and consumer use scenarios identified in the ANPR. Staff 
are active members of task groups supporting the subcommittee working 
on issues such as: dynamic testing, multiple/loaded drawer testing, 
carpet testing, testing repeatability and operational slide length. 
Staff is researching new test methodologies based on available incident 
data and testing over 185 samples which represent a variety of CSUs 
designs on the market today.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                         Hon. Peter A. Feldman
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Yes.

    Question 2. Were you aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. I was unaware of the full extent of fatalities associated 
with and linked to this product. On multiple occasions I requested, and 
was denied, closed compliance briefings with agency staff to discuss 
what the agency knew, including staff's progress in identifying a 
defect and determining whether a substantial product hazard exists.

    Question 3. If Consumer Reports had not published its findings 
regarding infant fatalities caused by infant inclined sleepers, do you 
think these products would have been recalled when they were?
    Answer. It is possible these products would have been recalled 
absent the publication by Consumer Reports of its findings. Under 
Section 15 of the Consumer Product Safety Act and pursuant to agency 
procedures, the Commission may order manufacturers, distributors, and 
retailers to cease distribution of a product and to take other 
appropriate corrective actions, if it determines that a product 
presents a substantial product hazard. Among other things, a 
``substantial product hazard'' exists where there is a product defect 
which, because of the pattern of defect, the number of defective 
products distributed in commerce, the severity of the risk, or 
otherwise, creates a substantial risk of injury to the public.

    Question 4. When do you think these products would have been 
recalled had Consumer Reports not published its findings regarding 
infant fatalities caused by infant inclined sleepers?
    Answer. See response to Question 3, supra.

    Question 5. After how many fatalities, do you think these products 
should have been taken off the market?
    Answer. Product hazards involving fatalities warrant the highest 
level of agency attention. In order to recall a product, the 
Commission's analysis under its statute does not precondition such 
action on a specific number of fatalities, but rather whether a product 
presents a ``substantial product hazard.'' Specifically, Section 15 of 
the Consumer Product Safety Act, 15 U.S.C. Sec. 2064, provides that the 
Commission may order manufacturers, distributors, and retailers to 
cease distribution of a product and to take other appropriate 
corrective actions, if it determines that a product presents a 
substantial product hazard. Among other things, a ``substantial product 
hazard'' exists where there is a product defect which, because of the 
pattern of defect, the number of defective products distributed in 
commerce, the severity of the risk, or otherwise, creates a substantial 
risk of injury to the public.

    Question 6. How many fatalities must happen before the CPSC 
initiates a recall?
    Answer. See response to Question 5, supra.
The Safe Sleep Act of 2019
    I have introduced the Safe Sleep Act of 2019. This legislation 
would prohibit the sale, manufacture, and import of infant inclined 
sleep products--a dangerous category of infant products, of which the 
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My 
legislation would also make sure that no new standard can be 
established for a sleep product that is inconsistent with safe sleep 
best practices.
    The American Academy of Pediatrics and safety advocates have long 
been clear that a safe sleep environment is a firm, flat, bare surface. 
It is clear that infant inclined sleep products are incompatible with 
the recommendations of the leading experts on safe sleep.

    Question 7. When it comes to establishing standards for infant 
sleep products, can you commit that you will only support standards 
that are consistent with safe sleep best practices agreed upon by 
pediatricians and safety advocates? If your answer is ``No,'' then why 
not?
    Answer. With respect to consumer product safety standards, I commit 
to follow the statutory requirements set forth in the Consumer Product 
Safety Act, including the requirement that such standards be reasonably 
necessary to prevent or reduce an unreasonable risk of injury 
associated with a product. See 15 U.S.C. Sec. 2056.

    Question 8. Do you believe that infant inclined sleep products are 
a category of products that can be considered safe for sleep?
    Answer. The Commission's job is to protect the public against 
unreasonable risk of injury associated with consumer products, 
including infant sleep products. This includes deciding whether 
mandatory standards are necessary. The Commission is currently aware of 
fatalities associated with this product class. Product hazards 
involving fatalities warrant the highest level of agency attention. 
Because the Commission is currently examining the safety of infant 
inclined sleep products as a product class, I don't want to prejudge 
the matter. I also don't want to foreclose the possibility that a 
mandatory standard may be necessary. The key question is whether the 
current voluntary standard, which allows for infant inclined sleep 
products, eliminates or adequately mitigates the risk and whether the 
agency can expect substantial compliance from industry.
Section 6(b)
    Question 9. What role do you believe Section 6(b) of the Consumer 
Product Safety Act (CPSA) play in preventing the CPSC from acting 
sooner to recall these deadly products? \1\
---------------------------------------------------------------------------
    \1\ Note: Section 6(b) of the Consumer Product Safety Act prohibits 
the Commission from disclosing information about a consumer product 
that identifies a manufacturer without the permission of the 
manufacturer.
---------------------------------------------------------------------------
    Answer. CPSC's ability to protect consumers and execute on its 
safety mission depends on the agency's ability to be open, transparent, 
and accurate with consumers about dangerous products. Section 6(b) 
requires that CPSC ``take reasonable steps'' to ensure the information 
we release is accurate. If a product represents a danger to the 
consumer, the public has a right to be told about it and the Government 
should not be permitted to conceal that information from the public. 
Accordingly, while Section 6(b) generally requires 15-days prior notice 
before CPSC can disseminate information about a manufacturer, it also 
provides important exceptions. CPSC may expedite notification to 
consumers if the Commission determines that public health and safety 
requires a lesser period of notice. The Commission is under no prior 
notice requirement where a consumer product represents an imminent 
hazard or where the Commission has reasonable cause to believe a 
product violates the agency statutes.

    Question 10. Does that mean Section 6(b) is preventing the CPSC 
from fulfilling its stated mission to protect the public from 
unreasonable risks of serious injury or death?
    Answer. No. See response to Question 9, supra.

    Question 11. Do you think Section 6(b) protects consumers?
    Answer. Yes. See response to Question 9, supra.
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 12. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    Answer. This market segmentation data was provided to CPSC by the 
Window Covering Manufacturers Association (WCMA) in 2015. This type of 
information is generally treated as confidential commercial information 
that is protected from disclosure by CPSC under Section 6 of our 
statute. Nevertheless, and consistent with our rules concerning public 
disclosure of information, the agency is permitted by law to provide 
such information to the Chairman or Ranking Member of the committee or 
subcommittee of jurisdiction acting pursuant to committee business. 
Subject to these legal concerns, I would be happy to work with the 
Committee to provide this information.

    Question 13. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    Answer. To my knowledge, CPSC does not collect data regarding 
percentages of stock or custom window coverings in daycares and 
preschools.

    Question 14. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. To my knowledge, CPSC does not collect data regarding 
percentages of stock or custom window coverings in affordable housing 
units.

    Question 15. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. To my knowledge, CPSC does not collect data regarding 
percentages of stock or custom window coverings in military housing 
units.

    Question 16. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    Answer. The current American National Standards Institute (ANSI)/
Window Covering Manufacturers Association, Inc. (WCMA) standard, ANSI 
A100.1-2018, defines the term ``Stock Blinds, Shades, and Shadings'' as 
follows:

        A specific stock keeping unit or SKU, which is completely or 
        substantially fabricated (as defined below) in advance of being 
        distributed in commerce (as that term is defined in 15 U.S.C. 
        Sect. 2052(a)(7) and in advance of any specific consumer 
        request for that product. The SKU can either be sold ``as is'' 
        or modified or adjusted by the seller, manufacturer, or 
        distributor before or after being distributed in commerce and 
        it would still be considered a Stock Blind, Shade and Shading.

        ``Substantially fabricated'' would include products pre-
        assembled in advance of a consumer order or purchase. Pre-
        assembled products that are modified or adjusted by the seller, 
        manufacturer or distributor before or after being distributed 
        in commerce will still be considered as ``substantially 
        fabricated'' if they require, but is not limited to, any of the 
        following: adjustments to size, attachment of the top rail and/
        or bottom rail, and/or tying of Cords to secure the Bottom Rail 
        to finish the assembly of the product.

        Stock Blinds, Shades and Shadings shall not be considered 
        Custom Blinds, Shades, and Shadings solely because of the 
        method of distribution (e.g., Internet sales) or the size of 
        the purchasing order (e.g., for multi-housing developments).

    Conversely, the standard defines the term ``Custom Blinds, Shades, 
and Shadings'' as ``any window covering that is not classified as a 
stock window covering.''
    Among other ways, in-store purchasers can differentiate between a 
custom and stock window covering based on the manufacturer label. 
Custom products require a permanent label or marking that includes 
customer order information, such as customer name or customer order 
number to match the product with a specific order. This label is to be 
located within or on the headrail or on the roller tube so it can 
easily be referenced by the user or inspecting agency.

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    Answer. The current ANSI A100.1-2018 Standard requires labels on 
merchandizing for custom corded products. Specifically, a warning label 
is to be placed on product merchandizing materials which includes, but 
is not limited to, the sample book and the website (if the website is 
relied upon for promoting, merchandizing, or selling on-line). The 
required warning label must include pictograms that represent the 
hazard of a cord wrapping around a young child's neck. The warning 
label must be placed conspicuously, and in the United States, be both 
in English and Spanish.

    Question 18. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    Answer. CPSC monitors online retail platforms for product that does 
not comply with the current ANSI A1000.1-2018 standard. The agency is 
currently developing monitoring plans for ports and in retail stores.
    ANSI A1000.1-2018 requires all products to be designated as 
``Custom'' or ``Stock'' on manufacturing labels. These designations are 
coded in the following manner: ``C'' represents ``Custom'' products and 
``S'' represents ``Stock'' products.
    Furthermore, custom products require a permanent label or marking 
that includes customer order information, such as customer name or 
customer order number to match the product with a specific order. This 
label is to be located within or on the headrail or on the roller tube 
so it can easily be referenced by the user or inspecting agency.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
    Two years ago, a video went viral showing near-tragedy from a 
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer 
dresser leading it to tip over--one being nearly crushed by it and the 
other miraculously saving him. The parents had posted the video to warn 
others about the danger.\2\ Tragically, five months later, the same 
kind of Ikea dresser fell on another 2-year old boy in his bedroom, 
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
    \2\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
    While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions 
of this dresser, it has steadfastly refused to recall the 8-drawer 
dresser. IKEA refuses to recall it because it does not fail the 
existing furniture stability test. They maintain that the product is 
safe--even in the face of clear video evidence that it is not.
    Kids In Danger, Consumer Federation of America, Parents Against 
Tip-overs, and Consumer Reports have all called for the recall of this 
product.

    Question 19. Do you believe that the current standard governing 
furniture stability is inadequate?
    Answer. Yes. Accordingly, I support the adoption of a mandatory 
standard that adequately mitigates or eliminates this risk.

    Question 20. Have you personally had any conversations with Ikea 
urging them to agree to a voluntarily recall of this dangerous product? 
Have you directed CPSC staff to have such conversations? Why or why 
not?
    Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15 
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of 
information that is provided to the CPSC in carrying out its 
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064 
(relating to consumer product recalls). Section 6(b) also prohibits 
public disclosure of any information that could identify a specific 
product manufacturer unless the Commission has taken reasonable steps 
to ensure that it is fair and accurate and has given the manufacturer 
of the product(s) in question 15 days advance notice (of the 
information to be disclosed) and an opportunity to comment. The 
information called for in this question pertains to a specific 
manufacturer and retailer. Accordingly, I cannot lawfully provide this 
response to the general public without going through the agency's 6(b) 
notification process. Nevertheless, and consistent with our rules 
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the 
expectation that these materials are kept confidential, the agency is 
permitted by law to provide that information to the Chairman or Ranking 
Member of the committee or subcommittee of jurisdiction acting pursuant 
to committee business. Subject to these legal concerns, I would be 
happy to work with the Committee to provide this information.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to see too many of 
these products sold on secondary online marketplaces.

    Question 21. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:

   When and how that relationship was established.

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.

   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.

    Answer. CPSC maintains relationships with many platforms, including 
eBay, overstock.com, Alibaba, Craigslist, Facebook and Facebook 
Marketplace, Oodle, Shopgoodwill, Amazon, Letgo, and Offer Up. To the 
extent that any special tools employed by these platforms represent 
confidential commercial information that is protected from disclosure 
under Section 6 of our statute, I am unable lawfully to provide this 
response to the general public without going through the agency's 6(b) 
notification process. Nevertheless, and consistent with our rules 
concerning public disclosure of information, the agency is permitted by 
law to provide such information to the Chairman or Ranking Member of 
the committee or subcommittee of jurisdiction acting pursuant to 
committee business. Subject to these legal concerns, I would be happy 
to work with the Committee to provide this information.

    Question 22. What more could Internet platforms do to eliminate the 
illegal sale of recalled products on their platforms?
    Answer. I believe Internet platforms are an important stakeholder 
in the fight to eliminate the illegal sale of recalled products. I 
would like to learn more from the platforms about their current 
practices and capabilities, before recommending additional actions. I 
would also like to examine how Section 230 of the Communications 
Decency Act, 47 U.S.C. Sec. 230, impacts the ability and willingness of 
platforms to restrict third-party content relating to such sales.

    Question 23. Do you think platforms that facilitate the sale of new 
and used products should have clear policies expressly prohibiting the 
sale of recalled products in the United States?
    Answer. Yes.

    Question 24. Do you think users should be able to specifically flag 
the sale of recalled products?
    Answer. Yes.

    Question 25. What kind of obligation do you think these companies 
have or should have in making sure recalled products are not illegally 
sold on their platforms?
    Answer. See Response to Question 22, supra.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan.
    Consumers lose out on important legal protections when recalls 
aren't called what they should be--``recalls.'' For example, they may 
be more susceptible to purchasing second-hand products that haven't 
been repaired.

    Question 26. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    Answer. The settlement agreement requires the firm provide periodic 
updates regarding its compliance with the settlement terms. The 
Commission's review of these statistics remain ongoing.

    Question 27. How does the Consumer Product Safety Improvement Act 
(``CPSIA'') protect consumers from the sale of products that are 
subject to ``information campaigns''?
    Answer. Corrective Action Plans are negotiated under CPSIA on a 
case-by-case basis. With respect to this Information Campaign, among 
other things, the terms of the settlement agreement require the firm to 
undertake a robust, intensive campaign to instruct consumers how to 
operate the Quick Release mechanism safely and correctly on the subject 
products. To encourage consumer participation, the settlement agreement 
further provides free parts, accessories, discounts and other 
incentives to consumers.

    Question 28. So, without an official recall, consumers who buy 
these strollers second-hand will have no legal remedy against the 
seller for being sold the product without being advised of the 
information campaign or for being sold the product without the ``free 
modified thru-bolt or free modified quick release'' incentive for 
consumers who participate in the information campaign. Is that correct?
    Answer. The incentives called for in the Corrective Action Plan are 
available to each consumer who self-identifies as having concerns about 
their ability to safely and correctly operate the Quick Release 
mechanism, regardless of whether it was purchased in the secondary 
market.
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 29. What steps should the CPSC take to make this recall 
more effective to prevent other children from being injured or killed 
from these unstable dressers?
    Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15 
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of 
information that is provided to the CPSC in carrying out its 
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064 
(relating to consumer product recalls). Section 6(b) also prohibits 
public disclosure of any information that could identify a specific 
product manufacturer unless the Commission has taken reasonable steps 
to ensure that it is fair and accurate and has given the manufacturer 
of the product(s) in question 15 days advance notice (of the 
information to be disclosed) and an opportunity to comment. The 
information called for in this question pertains to specific 
manufacturers and retailers. Accordingly, I cannot lawfully provide 
this response to the general public without going through the agency's 
6(b) notification process. Nevertheless, and consistent with our rules 
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the 
expectation that these materials are kept confidential, the agency is 
permitted by law to provide that information to the Chairman or Ranking 
Member of the committee or subcommittee of jurisdiction acting pursuant 
to committee business. Subject to these legal concerns, I would be 
happy to work with the Committee to provide this information.

    Question 30. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    Answer. See response to Question 29, supra.

    Question 31. Have you met with IKEA? When you met with them, how 
did you discuss holding IKEA accountable for this recall?
    Answer. See response to Question 29, supra.

    Question 32. What have you done and what are you committed to doing 
to decreasing the numerous amount of deadly dressers still in people's 
homes?
    Answer. Furniture tip over incidents are a serious issue and I am 
aware of fatalities. Product hazards involving fatalities warrant the 
highest level of agency attention. That is why I support moving forward 
with a mandatory standard that adequately reduces the risk of furniture 
tip over. Although there is a current voluntary standard, I am 
concerned that it does not adequately address or eliminate the risk. 
Because of this, I introduced language to accelerate a mandatory 
standard to protect children. This language was adopted unanimously and 
on a bipartisan basis by the Commission.
    I also voted to approve publication of a draft notice proposing a 
survey to evaluate consumer awareness to evaluate CPSC's ``Anchor It!'' 
campaign. These metrics will gauge the effectiveness of our safety 
messaging on this issue and inform our ongoing efforts.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 33. When is this study going to be complete?
    Answer. In February 2016, the CPSC, together with the United States 
Environmental Protection Agency (EPA), and the Centers for Disease 
Control and Prevention (CDC) announced a multi-agency research effort 
to improve the understanding of potential health effects of 
recreational exposures to crumb rubber. According to the Federal 
Research Action Plan on Crumb Rubber, CPSC's portion of this research 
was to study exposures of children to crumb rubber. This survey has 
been completed and is currently being reviewed by CPSC staff, who 
estimate the survey results could be released as early as fall 2019. 
CPSC will continue its work by conducting a risk assessment of 
children's exposure to playground surfaces and tire rubber. This work 
will use the CPSC survey results as well as data from the EPA portion 
of the Federal Research Action Plan regarding characterization of the 
chemicals and materials in tire rubber crumb, which was released on 
July 25, 2019, and CDC's portion regarding characterization of 
potential exposures for those who use turf fields containing tire 
crumb, after it is released. CDC's work is still ongoing. Any CPSC risk 
analysis pertaining to recycled tire rubber used in playground surfaces 
will consider the findings of the Tire Crumb Characterization and the 
Synthetic Turf Exposure Characterization. CPSC staff projects a Risk 
Assessment for playground surfacing could be available within 12 months 
of completion of the Synthetic Turf Exposure Characterization.

    Question 34. What is the delay?
    Answer. CPSC has completed its survey of the Federal Research 
Action Plan on Crumb Rubber and is continuing its work as described 
above. I have stated previously that I believe this multi-agency 
research effort is important and support the study's completion as soon 
as possible.

    Question 35. Do you believe the EPA and partner agencies are still 
fully completed to this research? Have you talked to them about it?
    Answer. Yes.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of Ikea's recall on unstable dressers.\3\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
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    \3\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 36. Does it make sense that the CPSC is redacting 
information about public Facebook posts about recalls? Do you think it 
is appropriate that Section 6(b) really limits such information 
disclosures?
    Answer. CPSC's ability to execute on its safety mission depends on 
the agency's ability to be open, transparent, and accurate with 
consumers about dangerous products. Section 6(b) requires that CPSC 
``take reasonable steps'' to ensure the information we release is 
accurate. If a product represents a danger to the consumer, the public 
has a right to be told about it and the Government should not be 
permitted to conceal that information from the public.

    Question 37. Will you commit to making sure the CPSC does not 
restrict the disclosure of information more than is required by 
statute?
    Answer. Yes.

    Question 38. As long as Section 6(b) is on the books will you 
commit to support the agency restricting disclosure of information 
about a product or company to no greater an extent than required by 
statute?
    Answer. Yes.
Internet of Things
    Acting Chair Buerkle recently said in reply to a letter in reply to 
consumer privacy organizations, ``CPSC's authority will not generally 
extend to situations solely related to consumer privacy or data 
security, that do not pose a risk of physical injury or illness, or 
property damage.''
    On the contrary, the CPSC should be doing more to recognize that 
consumer privacy and data security pose real and urgent threats to the 
well-being and safety of consumers. Insecure products can be hacked to 
spy on children, trip up smoke detectors, and more.

    Question 39. How can the CPSC leverage its expertise in keeping 
dangerous products off of shelves, to also keep insecure products that 
threaten people's safety out of people's homes?
    Answer. The Internet of Things (IoT) makes all sorts of 
connectivity possible and there have been some exciting developments in 
this area. CPSC has a role to play with respect to connected devices 
that present an unreasonable risk of injury to consumers. However, CPSC 
is not a privacy or security regulator. Therefore it is important that 
CPSC coordinate with other relevant governmental agencies to ensure 
vigilance, preserve innovation, and avoid duplication. That is why I 
worked to create a first-of-its-kind IoT interagency working group 
earlier this year. The purpose of this working group is interagency 
coordination, not regulation. It is important that agencies be aware of 
their respective efforts on connected devices across the Federal 
government. It is also important that agencies be mindful of the 
jurisdictional limitations that exist. To minimize burdens and maximize 
innovation, a series of MOUs may be appropriate to clarify overlapping 
jurisdictions. This working group is an important first step to that 
end.

    It is also important that CPSC have appropriate resources to 
address hazards associated with emerging technology, including IoT 
devices. More can be done to close the agency's skill gap in this 
regard. I believe the Commission should explore the creation of a Chief 
Technologist to expand staff expertise, as many of our sister agencies 
have done. I am encouraged to see that your bill, the CPSC CIO Parity 
Act, would do the same. I agree with this approach and thank you for 
your leadership on this important legislation.

    Question 40. What is the best way to protect vulnerable consumers 
as new products enter the market without standards--such as connected 
products? Is enough money allocated to compliance and enforcement 
divisions?
    Answer. It is important that CPSC has the resources to function 
appropriately in the 21st Century. That includes our IT resources and 
data processing capabilities. That is why I introduced a proposal to 
hire a Chief Data Officer. This proposal was approved by my fellow 
commissioners on a bipartisan basis; however, more work remains to 
ensure the position is funded and implemented appropriately.
    Similar to your CIO Parity Act, I proposed further investments to 
strengthen the agency's data science expertise in our budget request. I 
believe such investment is useful not only to gauge efficiencies at the 
agency and to inform allocation decisions with respect to existing 
resources, but also to support the agency's safety mission in general.
Kids in Danger Report: Social Media Practices
    Kids In Danger (``KID''), a non-profit organization dedicated to 
protecting children by fighting for product safety, released its latest 
report in March.\4\ It found that both the CPSC and manufacturers 
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
    \4\ https://kidsindanger.org/2019/03/kid-releases-annual-report-on-
recalled-childrens-products/
---------------------------------------------------------------------------
    CPSC posted only 45 percent of 2018 children's product recalls on 
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
    In addition, of the 48 manufacturers that issued recalls in 2018, 
only 31 percent were announced on the company's Facebook page--down 
from 51 percent in 2017.

    Question 41. Why isn't the CPSC using all tools at its disposal to 
make recalls are made known?
    Answer. It is important that CPSC tailor corrective action plans to 
maximize recall effectiveness. We know that direct-notice recalls, in 
general, are most effective. In other instances, recall announcements 
via social media may be called for. These decisions are made on a case-
by-case basis. I will continue to advocate that the agency use the 
tools at its disposal, as appropriate, to publicize recall notices in 
the most effective way possible.

    Question 42. Why isn't the CPSC requiring manufacturers to issue 
notices on manufacturers' Facebook pages? Why isn't that a standard 
part of the corrective action plan?
    Answer. Corrective action plans are negotiated on a case-by-case 
basis. We know that direct notice-recalls, in general, are most 
effective. In other instances, recall announcements via social media 
may be called for.
Can a product that meets an existing standard be defective?
    We are hearing increasingly often from companies that just because 
their product is meeting a safety standard, their product can't be 
defective and can't be subject to a recall. For example, Britax, the 
maker of the B.O.B. jogging stroller argued that a product defect 
required the violation of a safety standard. And the B.O.B. had passed 
a test that required the removal front wheel to stay on after a strong 
pull.
    IKEA has also said the same thing about the Hemnes 8-drawer dresser 
that killed a 2 year-old.

    Question 43. If a product meets an existing standard but is killing 
or seriously injuries children and babies, wouldn't you agree the 
product should be recalled?
    Answer. Furniture tip over incidents are a serious issue and I am 
aware of fatalities. Product hazards involving fatalities warrant the 
highest level of agency attention. Section 15 of the Consumer Product 
Safety Act (15 U.S.C. Sec. 2064) provides that the Commission may order 
manufacturers, distributors, and retailers to cease distribution of a 
product and to take other appropriate corrective actions, if it 
determines that a product presents a substantial product hazard. Among 
other things, a ``substantial product hazard'' exists where there is a 
product defect which, because of the pattern of defect, the number of 
defective products distributed in commerce, the severity of the risk, 
or otherwise, creates a substantial risk of injury to the public.

    Question 44. Would you agree that the CPSC has the authority to 
recall a product if it believes it poses an unreasonable risk of 
serious injury or contains a defect that presents a substantial product 
hazard--even if the product meets all existing standards?
    Answer. Yes.

    Question 45. Can a product be recalled if it meets an existing 
standard?
    Answer. Yes.

    Question 46. Wouldn't you agree that if deaths and injuries are 
occurring, the products may still be defective and a recall may be in 
order?
    Answer. See response to Question 43, supra.

    Question 47. What are some examples of companies that have 
voluntarily recalled products that didn't necessarily violate a 
specific product standard?
    Answer. Section 6(b) of the Consumer Product Safety Act (CPSA), 15 
U.S.C. Sec. 2055(b), generally prohibits the public disclosure of 
information that is provided to the CPSC in carrying out its 
responsibilities under section 15 of the CPSA, 15 U.S.C. Sec. 2064 
(relating to consumer product recalls). Section 6(b) also prohibits 
public disclosure of any information that could identify a specific 
product manufacturer unless the Commission has taken reasonable steps 
to ensure that it is fair and accurate and has given the manufacturer 
of the product(s) in question 15 days advance notice (of the 
information to be disclosed) and an opportunity to comment. The 
information called for in this question pertains to specific 
manufacturers and retailers. Accordingly, I cannot lawfully provide 
this response to the general public without going through the agency's 
6(b) notification process. Nevertheless, and consistent with our rules 
implementing section 6(b), 16 C.F.R. Sec. 1101.12(g), and with the 
expectation that these materials are kept confidential, the agency is 
permitted by law to provide that information to the Chairman or Ranking 
Member of the committee or subcommittee of jurisdiction acting pursuant 
to committee business. Subject to these legal concerns, I would be 
happy to work with the Committee to provide this information.

    Question 48. What role do you have in encouraging a manufacturer to 
agree to a voluntary recall?
    Answer. My role as Commissioner is to make sure that our laws are 
enforced as robustly as possible to protect consumers. I have pledged 
to execute the law faithfully, without fear or favor, and I take this 
commitment seriously.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 49. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Answer. I share your concerns about the CPSC's enforcement of the 
Child Nicotine Poisoning Prevention Act. Based on CPSC's market 
surveillance, I am told that as recently as March 2019, as many as 100 
percent of the liquid nicotine containers on the market did not comply 
fully with the requirements of this statute, including the use of flow 
restrictors and requirements with respect to general certificates of 
conformity. While the agency has made incremental progress in its 
enforcement efforts, more work is needed.

    Question 50. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    Answer. Because CPSC's enforcement efforts with respect to the 
Child Nicotine Poisoning Prevention Act remain ongoing, I am concerned 
that my public testimony not prejudice any such proceeding. The 
information called for in this question may also implicate specific 
manufacturers and retailers that I cannot lawfully discuss publicly 
without going through the agency's 6(b) process. Nevertheless, and 
consistent with our rules concerning the public disclosure of 
information, and with the expectation that these materials are kept 
confidential, the agency is permitted by law to provide this 
information to the Chairman or Ranking Member of the committee or 
subcommittee of jurisdiction acting pursuant to committee business. 
Subject to these legal concerns, I would be happy to work with the 
Committee to provide this information.

    Question 51. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    Answer. To my knowledge, the agency is bringing to bear all 
existing resources to enforce the Child Nicotine Poisoning Prevention 
Act.
Keeping Fellow Commissioners in the Dark
    I am troubled by reporting that Acting Chairman Buerkle withheld 
information from fellow Commissioners about defect investigations and 
incident data--even when briefings have been requested. All 
commissioners must have equal access to the information they need in 
order to make informed and educated decisions--especially when voting 
on matters.
    For example, The Washington Post has already publicly reported on 
how Democratic Commissioners felt in the dark about the Britax jogging 
stroller investigation and frustrated by Acting Chairman Buerkle's 
control of the flow of information.

    Question 52. Did you feel like you were adequately informed and 
briefed prior to your vote agreeing on the Britax settlement, and in 
retrospect?
    Answer. While I was not here at the time, it was the Commission's 
position that sufficient evidence existed to support a preliminary 
determination of the existence of a substantial product hazard in the 
Britax matter. The company disagreed and the Commission ultimately 
voted to bring an action. Because the Commission sits as an appellate 
body in agency litigation, Commissioners are walled off from 
litigation, including being able to review actual discovery or cross 
examine witnesses.

    Question 53. What do you need to do your job better?
    Answer. As a Commissioner, I have a duty to conduct due diligence 
on matters before the Commission. I have concerns about the constraints 
on the agency that limit our ability to operate efficiently as a 
collegial body, including under the Sunshine Act. Congress has sought 
to revisit Sunshine Act Requirements for some of our sister agencies, 
including FCC and FTC. I'm interested in working with my fellow 
Commissioners and with this Subcommittee to point out areas where I 
think this process can be improved.

    Question 54. Do you feel like you have access to CPSC staff 
expertise necessary to faithfully perform your job duties?
    Answer. I believe all Commissioners would benefit from increased 
access to agency staff.

    Question 55. Are your requests for briefings from CPSC staff being 
approved efficiently? Please list all briefing requests that have been 
denied or postponed to a later date.
    Answer. I routinely request briefings from CPSC staff including 
closed briefings relating to compliance matters before the agency. 
These briefing requests are not always approved. Such requests include, 
but are not limited to, the following:

   Request for closed compliance briefing on enforcement of the 
        Child Nicotine Poisoning Prevention Act (February 2019)

   Request for Closed Compliance Briefing on inclined sleep 
        product enforcement (March 2019)

   Request for Closed Compliance Briefing on inclined sleep 
        product enforcement (April 2019)

   Request for Closed Compliance Briefing on inclined sleep 
        product enforcement (April 2019)

    When briefing requests are approved, the CPSC General Counsel has 
sought to limit the information conveyed, including through application 
of privilege or narrowly defining the scope of the briefing.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 56. How many FTEs are vacant?
    Answer. The CPSC's current budget includes 539 FTEs. As of July 13, 
2019, there were 37.9 FTE vacancies.

    Question 57. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Answer. The current number of FTE vacancies significantly affects 
CPSC's ability to carry out its mission.

    Question 58. Why are these vacant? When do you anticipate they will 
be filled?
    Answer. The circumstances surrounding these FTE vacancies are 
varied. It is my hope that CPSC will return to full strength as soon as 
possible.

    Question 59. Is there anything preventing these FTEs from being 
filled?
    Answer. I am aware of no legal impediments to filling the current 
FTE vacancies. Nevertheless, in order to attract top talent, CPSC must 
compete not only with other Federal agencies, but also with the private 
sector, including major law firms, Silicon Valley and the financial 
sector which are top draws for the Nation's best legal and engineering 
candidates.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                         Hon. Peter A. Feldman
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (``FDA'') policy 
could undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    Answer. Because CPSC's enforcement efforts with respect to the 
Child Nicotine Poisoning Prevention Act remain ongoing, I am concerned 
that my public testimony not prejudice any such proceeding. The 
information called for in this question may also implicate specific 
manufacturers and retailers that I cannot lawfully discuss publicly 
without going through the agency's 6(b) process. Nevertheless, and 
consistent with our rules concerning the public disclosure of 
information, and with the expectation that these materials are kept 
confidential, the agency is permitted by law to provide this 
information to the Chairman or Ranking Member of the committee or 
subcommittee of jurisdiction acting pursuant to committee business. 
Subject to these legal concerns, I would be happy to work with the 
Committee to provide this information.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Answer. I am aware that conversations between CPSC and FDA have 
occurred, at least on a staff-to-staff basis. I have requested a 
readout of these conversations but have yet to receive it.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    Answer. While I believe it is important that CPSC and FDA work 
together to provide clarity to ensure manufacturers follow the CNPPA 
flow restrictor requirements, it is my understanding that discussions 
between CPSC and FDA remain ongoing.
Children's Cosmetics:
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4300 children are treated in emergency departments 
for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    Answer. CPSC's jurisdiction with respect to cosmetics and personal 
care products is generally limited under our statute. Specifically, 
cosmetics are excluded from the definition of ``consumer product.'' See 
15 U.S.C. Sec. 2052(a)(5). CPSC retains jurisdiction over non-cosmetic 
personal care products and is authorized to protect the public, 
including young children, against unreasonable risks of injury 
associated with such products and to develop uniform safety standards, 
among other things, consistent with the agency's statutory procedures. 
The agency is also authorized under the Poison Prevention Packaging 
Act, 15 U.S.C. Sec. Sec. 1471-1477, to require child-resistant 
packaging for certain household substances. Under this authority, which 
does not exclude cosmetics, CPSC requires packaging for a number of 
personal care products that is designed or constructed to be 
significantly difficult for children under five years of age to open 
within a reasonable time, and not difficult for normal adults to use 
properly.

    Question 2. Could product safety standards be developed that would 
reduce the risk of injury to children from personal care products?
    Answer. Yes. See response to Question 1, supra.

    Question 3. Do you think believe warning letters are effective at 
reducing injury? Why or why not?
    Answer. Warning letters can be an effective tool, but are not the 
only tool available to the agency. See response to Question 1, supra.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Tammy Duckworth to 
                         Hon. Peter A. Feldman
    While much progress was made on sudden unexplained infant death 
(``SUID'') in the 1990s, little progress has been made in reducing SUID 
over the past decade. In some high-risk groups, rates are going in the 
wrong direction. The U.S. Centers for Disease Control and Prevention 
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in 
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants 
sleep. The FDA has warned against sleep positioners and safe sleep 
advocates warn against the use of crib bumper pads. Many of these 
products meet no standard--mandatory or voluntary. The CPSC is in a 
unique position to help address the public health problem of SUID 
through its jurisdiction over infant products and opportunities to 
communicate with families, caregivers and health care providers.
    Question. What will you do, beyond education and awareness, to push 
CPSC to use its authority to increase safe sleep among high-risk 
families and to reduce the hazard posed by certain infant sleep 
products such as crib bumpers and other untested products?
    Answer. I am aware of SUID fatalities and share your concern that 
little progress has been made in reducing these incidents over the past 
decade. The Commission's job is to protect the public against 
unreasonable risk of injury associated with consumer products, 
including infant sleep products. Product hazards involving fatalities 
warrant the highest level of agency attention. This includes deciding 
whether mandatory standards are necessary. The key question is whether 
the current voluntary standard, which allows for infant inclined sleep 
products, eliminates or adequately mitigates the risk and whether the 
agency can expect substantial compliance from industry.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jerry Moran to 
                          Hon. Elliot F. Kaye
    Question 1. Based on your statement on ending persistent hazards 
from April 3, 2019, you included drownings as one of the ``10 
persistent hazards'' that continue to lead to unintentional deaths 
among American consumers. This Subcommittee remains interested in 
ensuring the effective implementation of the Virginia Graeme Baker Pool 
and Spa Safety Act, which aims to enhance the safety of public and 
private pools and spas, reduce child drownings, reduce the number of 
suction entrapment incidents, injuries and deaths, and educate the 
public on the importance of constant supervision of children in and 
around water. What recommendations do you have for this Subcommittee to 
reduce drownings in the country?
    Answer. There is a tremendous need for targeted public education 
regarding pool safety based on epidemiological research of high-risk 
populations. This type of research needs grant money to be made 
available to scientists to fill gaps in our current knowledge. 
Furthermore, technological innovations should be encouraged to help 
with prevention of drownings. Isolation barriers--those that extend 
completely around a pool--are known to provide better protection 
against drownings, but consumers resist installing them for many 
reasons. Encouraging innovations in pool barriers so that they are 
easier to operate, install and activate would help consumers accept 
them. Submersion detection systems are currently costly, but 
innovations could make them more affordable and effective.

    Question 2. You identified sports-related brain injuries as a 
priority issue of yours in your statement on ending persistent hazards. 
Would you please describe the current efforts of the CPSC and its 
partners in researching brain injuries, including CTE, traumatic brain 
injuries, and concussions?
    a. What role should research into consumer products like helmet 
technologies have in addressing this issue?
    Answer. Research into helmet technologies is critical to 
understanding the effectiveness of protective gear and ensuring that 
consumers make informed decisions about the sports and recreational 
activities they let their children pursue. CPSC staff monitors the 
development of helmet technologies through its participation in 
industry standards for helmets and other protective sports gear. 
However, beyond tracking industry standards and reported incidents 
associated with head injuries, the CPSC staff does not engage in 
research in brain injury causes or treatments. Such research is 
absolutely necessary to inform our work on helmet safety and is carried 
out independently by NINDS/NIH and academia: https://www.ninds.nih.gov
/Disorders/All-Disorders/Traumatic-Brain-Injury-Information-Page/2732/
publications/1297.

    Question 3. I am also a member of the Senate Appropriations 
Subcommittee on Financial Services and General Government, which 
oversees funding matters related to the CPSC. I remain committed to 
ensuring that the CPSC has the resources and tools that it needs to 
effectively protect the public from unreasonable risks of injury or 
death due to the use of consumer products. Is the Commission have 
adequate resources to fulfill its mission?
    a. If not, where should additional resources be targeted?
    Answer. Thank you for your commitment to funding our agency with 
the necessary resources to fulfill our critical safety mission. 
Unfortunately, the CPSC is truly underfunded. Our current budget of 
$127 million is just not enough. As stated in my testimony, we lack 
funding for much needed research and demonstration projects. We lack 
funding for adequate coverage of dangerous products coming into the 
country through our ports. We lack funding to adequately monitor online 
sales channels. We lack funding to maintain our data infrastructure so 
it operates smoothly and securely well into the future. We lack funding 
to recruit and to retain talented investigators, enforcement officers, 
engineers, scientists, economists, communication specialists, lawyers 
and support staff.
    When the Commission voted on its FY 2020 Congressional budget 
request, I offered an amendment to increase our budget request amount 
to $135 million from $127 million. Unfortunately, my amendment was not 
adopted.
    In my view, $135 million reflects the bare minimum needed to 
continue operations at our previous years' levels. I have attached a 
list of critical initiatives that both Commissioner Adler and I 
support. If Congress were to increase our budget, I would target 
additional resources in these identified areas.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                          Hon. Elliot F. Kaye
    On April 8th of this year I sent Acting Chair Buerkle a letter 
requesting documents and a further explanation of why the Commission 
did not recall the BOB jogging stroller. In the information I received 
back, it seems that the Commission knew of almost 200 incidents related 
to the stroller, including some very serious injuries, because of the 
front-wheel detachments problem.
    We also learned that in late September 2017 the CPSC's Office of 
Compliance did a presentation listing a litany of injuries that could 
occur as a result of defects in the stroller, and stated that the 
Commission should push for a recall. Acting on this information, the 
Commission voted 3-1 in February 2018 to file an administrative lawsuit 
against the stroller's manufacturer, Britax, asking for a finding that 
the strollers presented a substantial product safety hazard and 
demanding a recall. In October 2018, the composition of the Commission 
changed and voted 3-2 to terminate the administrative case and settle 
with Britax to avoid a recall. This settlement only required the 
company to do an ``information campaign,'' and provide some replacement 
parts for certain customers who recently bought a BOB stroller.
    Furthermore, consumers with older strollers, were only eligible for 
a 20 percent off coupon for a new BOB stroller.

    Question 1. Do you think this settlement adequately protected 
consumers?
    Answer. No. Please see the attached dissenting opinions that I 
issued with Commissioner Adler in this matter expressing our concerns 
with the Consent Agreement and subsequent ``Addendum to the Consent 
Agreement.''

    Question 2. Would you have structured the remedy in this case 
differently?
    Answer. Yes, beginning with insisting the remedies be pursuant to a 
genuine recall. For more specifics, please see the attached dissenting 
opinions that I issued with Commissioner Adler in this matter 
expressing our concerns with the Consent Agreement and subsequent 
``Addendum to the Consent Agreement.''

    Do you believe a free repair for all impacted strollers or a cash 
refund would have been more effective?
    Answer. Yes, of course.

    Question 3. Is the Commission tracking corrective action completion 
statistics for this recall?
    Answer. Under the terms of the Consent Agreement, Britax was 
required to report to the Commission on a quarterly basis the number of 
consumers who had viewed the ``information campaign'' and requested any 
of the ``incentives'' through January 2020. Beginning in July 2019, the 
subsequent ``Addendum to the Consent Agreement'' requires that Britax 
report this information to the Commission on a monthly basis rather 
than quarterly basis through January 2021, and also report any consumer 
complaints or reported incidents or injuries related to the 
``incentives'' or replacement parts it provided.
    If so, please state whether these statistics indicate, in your 
view, a successive corrective action.
    To date this has been a failed effort, as predicted. For more 
information about my concerns, please see the attached dissenting 
opinions that I issued with Commissioner Adler in this matter 
expressing our concerns with the Consent Agreement and subsequent 
``Addendum to the Consent Agreement.''

    In May 2018, the Commission released a vague alert about deaths 
involving inclined sleep products for infants. Then, nearly a year 
later, Consumer reports published a story noting at least 32 deaths 
associated with the Fisher-Price Rock `n Play infant sleeper. At the 
time of the Consumer Reports disclosure, the Commission still had not 
yet issued a recall regarding the Rock `n Play sleeper.

    Question 4. Do you agree with the way Acting Chair Buerkle handled 
the Rock 'n Play Recall?
    Answer. No.

    Question 5. If Section 6(b) of the Consumer Product Safety Act 
restricts the agency's ability to disclose information, how can we 
ensure that consumers get the information they need to better protect 
themselves and their families?
    Answer. As long as Section 6(b) continues to exist, the agency will 
be limited in its ability to provide consumers with the information 
they need to protect themselves and their families. However, even with 
Section 6(b), the agency has room to be more assertive on behalf of 
consumers. Unfortunately, we have stopped using tools available to us.

    The settlement the Commission approved with Britax on the BOB 
jogging stroller seems structured specifically to allow the 
manufacturer of the stroller, Britax, to avoid calling the settlement a 
recall. Specifically, language in the settlement states: ``We are 
pleased to report that we have resolved this litigation without a 
recall by developing and launching an information campaign.''

    Question 6. Does this type of settlement adequately inform 
consumers of a safety problem with the BOB jogging stroller?
    Answer. Of course not. Please see the attached dissenting opinions 
that I issued with Commissioner Adler in this matter expressing our 
concerns with the Consent Agreement and subsequent ``Addendum to the 
Consent Agreement.''

    Question 7. Is industry incentivized to downplay the safety risks 
in these types of notices?
    Answer. Yes. If consumers do not fully understand the nature of a 
safety risk and the available remedies, they are less likely to respond 
to a notice. If fewer consumers respond to a notice, a firm will have 
to issue fewer refunds, repairs and retrofit supplies.

    Question 8. Does it make sense to provide industry more authority 
over recalls and corrective action plans?
    Answer. Absolutely not. That would be a disaster for consumer 
safety. The Consumer Product Safety Act, including Section 6(b), 
already gives firms too much control over voluntary recalls and 
corrective action plans, and makes it difficult for the Commission to 
act quickly when a firm is refusing to recall a hazardous product or a 
firm's proposed corrective action plan is inadequate.

    Question 9. Do you believe that the CPSC has been successful at 
achieving acceptable recall return and repair rates on children's 
products? Yes or no? What do you base that on?
    Answer. No. We know that recall effectiveness rates for children's 
products are poor.

    Question 10. Do we need more data?
    Answer. No. We already know that recall effectiveness rates for 
children's products are poor.

    Question 11. What can we do to ensure that recalls are effective?
    Answer. On July 19, 2017, I issued a statement setting forth the 
six basic principles that I believe are necessary to ensure that 
recalls are effective.\1\ At a minimum, recalls must: (1) be simple and 
easy-to-understand for everyone who uses the product; (2) make the 
remedy available to consumers right away; (3) make the remedy 
completely free to consumers, both financially and in terms of time and 
resources spent; (4) be complete and remove the hazard all at once; (5) 
give consumers choices; and (6) involve no less time, money, energy, 
creativity and personnel than went into selling the product in the 
first place, and use all available forms of reaching consumers, 
including social media, paid advertising and direct notice, if 
possible. However, the Consumer Product Safety Act, including Section 
6(b), gives firms too much control over voluntary recalls and 
corrective action plans, and makes it difficult for the Commission to 
act when firm's proposed corrective action plan is inadequate.
---------------------------------------------------------------------------
    \1\ https://www.cpsc.gov/about-cpsc/commissioner/elliot-f-kaye/
statements/statement-of-com
missioner-elliot-f-kaye-on-consumer.

    Are you familiar with shareable electric scooters?
    Answer. Yes.

    These vehicles are now everywhere in Washington, DC, Seattle, 
Washington, and many other cities across the country. The perception is 
that the scooters are safe and easy to use. But, scooter injuries are 
piling up. Consumer Reports found that over 1,500 people have been 
injured in e-scooter crashers since late 2017. One hospital in Austin, 
Texas, in a six-month period, reported 66 severe traumas including 19 
head injuries, 38 orthopedic injuries and 13 facial injuries. The 
concern is so great that the CDC is now investigating the rise of these 
injuries.

    Question 12. What is the CPSC doing to prevent injuries from shared 
electric scooters provided for rent?
    Answer. My understanding from CPSC staff is that the CPSC is 
engaged in a very limited way in some voluntary standards and 
compliance related activities. However, I believe that the CPSC can and 
should be doing much more to address safety issues related to e-
scooters.

    Question 13. Is the CPSC adequately tracking these incidents?
    Answer. Injuries and incidents involving e-scooters are reported to 
the CPSC using all of the reporting methods available to the agency, 
including hospital reporting, coroners' reports and consumer reporting 
through our online portal. These methods undoubtedly represent an 
undercount of true number of incidents in the U.S. The agency overall 
is moving too slowly and too tentatively when it comes to this serious 
safety issue. It is representative of a large cultural shift away from 
putting safety first.
Tip Overs:
    Question 1. Please describe why the Commission has chosen not to 
use Section 104 rulemaking to address--at least in part--the tip-over 
issue.
    Answer. On March 13, 2019, at the decisional meeting for the 
Commission's Fiscal Year 2020 Performance Budget Request to Congress, 
Commissioner Adler and I introduced a joint amendment to direct staff 
to draft a Notice of Proposed Rulemaking (NPR) under the Commission's 
Section 104 rulemaking authority to address children's clothing storage 
units, but it was defeated by a vote of 3 to 2. Commissioner Adler and 
I issued a statement explaining our proposal.\2\ The reasons that our 
colleagues gave for voting against using our Section 104 rulemaking 
authority can be found in the Commission's meeting minutes.\3\ If the 
Commission genuinely wants to accelerate addressing this serious 
hazard, it would use all of the tools available to us, including moving 
under Section 104.
---------------------------------------------------------------------------
    \2\ https://cpsc.gov/s3fs-public/
FINAL%20DISSENTING%20OPINION%20of%20ADLER.KAYE
%20on%20TipOver%20104.pdf?FoCMPSLBPIjVbn2nO.18ptIu9cwxmgE0.
    \3\ https://cpsc.gov/s3fs-public/
2020%20Performance%20Budget%20%20Comm.%20Meeting%20
Minutes.pdf?dFRVaoE_tIxvibk4RKK6apwMI_ME5gL9.

    Question 2. Has the Commission reviewed safety issues associated 
with Ikea's 8-drawer HEMNES Dresser? Please share the details of any 
such review.
    Answer. I cannot comment on this matter as part of a published 
public hearing record, but CPSC staff is available to discuss this 
issue with you in a different setting.

    Question 3. What activities does the Commission take to ensure that 
consumers who own recalled products are directly notified of a 
potential safety issue (as opposed to general education campaigns)? 
Please describe these activities in detail.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC strives to maximize direct notification to the best of the 
        firm's capabilities when negotiating recalls. When a firm 
        demonstrates that [it is] able to directly contact 95 percent+ 
        consumers who have purchased a recalled product, CPSC will 
        issue a Recall Alert rather than a Press Release.

    Beyond CPSC staff's answer, the agency should require companies to 
work harder at reaching their own customers about recalls.

    Question 4. Has the Commission reviewed any voluntary standards 
associated with dressers? Please share the details of any such review. 
Does the Commission have any planned activities to improve the safety 
of dressers? If so, please describe such activities in detail.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Staff is actively engaged with ASTM 15.42 Subcommittee for 
        Clothing Storage Units (CSUs)] to improve the ASTM standard 
        F2057-17. Improvement efforts are centered on consumer 
        interactions with product and consumer use scenarios identified 
        in the [Advance Notice of Proposed Rulemaking]. Staff are 
        active members of task groups supporting the subcommittee 
        working on issues such as: dynamic testing, multiple/loaded 
        drawer testing, carpet testing, testing repeatability and 
        operational slide length. Staff is researching new test 
        methodologies based on available incident data and testing over 
        185 samples which represent a variety of CSUs designs on the 
        market today.

    Beyond CPSC staff's answer, I continue to believe that F2057-17 
does not adequately address the worst-case scenarios associated with 
furniture tip-overs. To that end, on May 21, 2019, at the decisional 
meeting for the Fiscal Year 2019 Midyear Review and Proposed Operating 
Plan Adjustments, Commissioner Adler and I offered the following 
proposal, which was adopted by a majority of the Commission:

        Staff shall work with ASTM voluntary standards committees on 
        the applicable furniture tip-over related standards to develop 
        a better performance requirement that prevents furniture tip-
        over in worst-case scenarios. This work shall include updating 
        the test weight and working to develop better, more dynamic 
        test methods that mimic real-life scenarios including 
        replicating the forces seen as a child climbs on a drawer. 
        Staff shall work to develop test methods that account for the 
        weight of 95th-percentile children of the oldest reported child 
        victim age, always using the most current weight data; the full 
        extension of multiple drawers that are realistically weighted 
        with reasonably foreseeable loads; reasonably foreseeable 
        dynamic impulses observed in stepping onto an elevated surface, 
        such as those recorded in previous CPSC studies of oven 
        stability; and the effects of carpeted surfaces with carpet 
        tack strips under the back legs of a dresser. Surrogate methods 
        could be used to address these parameters. A dynamic approach 
        could be used as the basis for a static test.\4\
---------------------------------------------------------------------------
    \4\ My full statement on this proposal is available here: https://
www.cpsc.gov/s3fs-public/Kaye-Statement-Midyear-
FY19.pdf?15GNbsKhQ.mz43y6JoDGrunCqFyQ5FHj.
---------------------------------------------------------------------------
                                 ______
                                 
                           DISSENTING OPINION
      COMMISSIONER ROBERT S. ADLER AND COMMISSIONER ELLIOT F. KAYE
               IN THE MATTER OF BRITAX CHILD SAFETY, INC.
                            CPSC Docket 18-1
                            NOVEMBER 9, 2018
    CPSC Complaint Counsel and Respondent in the above titled matter 
have proposed a settlement of the case brought by Complaint Counsel 
regarding the alleged hazards of single and double occupant strollers 
sold by Britax under the name, B.O.B. On November 9, 2018, by a vote of 
3-2, the Commission voted to accept the proffered settlement. Although 
we commend the parties for reaching agreement after what appears to be 
a lengthy and exhaustive negotiation, we respectfully and reluctantly 
dissent from approving the agreement.
    In any negotiation each party must compromise to reach an 
agreement. We have no problem with appropriate compromises, and we are 
well aware of the maxim that we should not let the perfect be the enemy 
of the good. Alas, to us, despite the best efforts of talented counsel 
on both sides, this agreement falls short of the good.
                               Background
    The B.O.B. strollers in question were introduced into commerce in 
1997 and sold by a company known as B.O.B. until December 2011, when 
Respondent Britax merged with B.O.B. Thereafter, Britax sold numerous 
models of the strollers under the original B.O.B. name.
    On February 16, 2018, Complaint Counsel filed an administrative 
complaint against Britax, seeking a recall of the subject strollers 
pursuant to section 15 of the Consumer Product Safety Act (CPSA), 15 
U.S.C. Sec. 2064. Complaint Counsel alleged that a Quick Release 
mechanism on the strollers failed to secure the front wheel to the 
fork, allowing the front wheel to detach suddenly and unexpectedly 
during use. Staff further alleged that this defect constituted a 
Substantial Product Hazard under section 15 of the CPSA, leading to a 
number of serious injuries both to caregivers pushing the strollers and 
to children sitting in the strollers.
    As of the date of filing the complaint, staff alleged that 
approximately 200 consumers had reported front wheel detachments while 
using the strollers, resulting in at least 50 injuries to children and 
47 adults. Among the injuries alleged to have occurred to children: a 
concussion, injuries to the head and face requiring stitches, dental 
injuries, contusions and abrasions. Among the injuries alleged to have 
occurred to caregivers: torn labrum, fractured bones, torn ligaments, 
contusions and abrasions.
    The Commission authorized the issuance of the complaint after 
Britax declined to recall or repair the strollers.
                             The Agreement
    Briefly described, under the terms of the Agreement, Respondent 
will undertake what is termed a ``robust, intensive'' information 
campaign to instruct consumers how to safely and correctly operate the 
Quick Release on the strollers. One of the main features of the 
information campaign will be an instructional video for consumers 
demonstrating and describing how to safely operate the Quick Release. 
As part of the information campaign, Respondent will e-mail notice of 
the campaign to all known dealers and retailers of the strollers 
located in the United States.
    In addition to the information campaign, the Agreement, inter alia, 
calls for Respondent to supply free parts, accessories, discounts and 
incentives to consumers who ``self-identify'' as having concerns about 
their ability to safely and correctly operate the Quick Release on 
strollers manufactured between January 1, 2009 and September 30, 2015. 
Respondent will do so through one of three options:

  1.  A new Quick Release mechanism that has a lever that operates only 
        90 degrees, thereby permitting consumers easily, by visual 
        inspection, to know whether the mechanism is properly fastened;

  2.  A new ``thru-bolt'' (with installation tools) which is 
        permanently fastened, thereby precluding any unexpected release 
        of the wheel, but which defeats the Quick Release function of 
        the stroller; or

  3.  A 20 percent discount off the Manufacturer's Suggested Retail 
        Price (MSRP) of any new BOB Gear stroller, subject to 
        availability of the new strollers.

    For strollers manufactured prior to January 1, 2009, the Agreement 
will offer owners a 20 percent discount off the MSRP, subject to 
availability of the new strollers. However, Respondent will not offer 
the mechanical repairs described in paragraphs 1 and 2 above to such 
owners.
    Although we applaud the good faith and spirit of the Agreement, 
upon careful reflection, we cannot support it for at least two major 
reasons:

The Misleading Nature of the Agreement: In virtually every Corrective 
Action Plan the Commission enters into, we insist that it be described 
to the public as a ``recall.'' The reason is simple. Consumers know 
that this term signals that a manufacturer has agreed to take some kind 
of corrective action to fix a safety problem with its product. The 
media knows that this term will typically command consumers' instant 
attention and concern without the need for more elaborate explanations. 
Of course, the fact that consumers' attention is drawn to this news is 
only a first step in removing or repairing hazardous products, but 
without such a flag, the task of protecting consumers is made much 
harder. Consumers need to know that safety concerns are afoot in order 
to decide whether to avail themselves of such protections.

    By its terms, this Consent Agreement explicitly rejects 
characterizing this Corrective Action Plan as a recall. Paragraph 20 of 
the Agreement leaves no doubt on the point:

        The parties agree that the actions taken pursuant to this 
        Consent Agreement and Order shall not be construed as a recall 
        pursuant to section 15 of the Consumer Product Safety Act, 15 
        U.S.C Sec. 2064. (emphasis added)

    Underscoring this point is the notice that Respondent intends to 
send to dealers and retailers, which states as follows:

        In February, we notified you that the U.S. Consumer Product 
        Safety Commission had sued Britax to compel a recall of certain 
        BOB strollers manufactured prior to September 2015. We are 
        pleased to report that we have resolved this litigation without 
        a recall by developing and launching an information campaign to 
        further instruct consumers how to safely and correctly operate 
        the Quick Release on the BOB strollers manufactured prior to 
        September 2015. Consumers will be offered incentives to 
        participate in the information campaign, which are more fully 
        described in the links below. If any of your customers ask you 
        about this issue, please direct them to [INSERT HYPERLINKS TO 
        CPSC PRESS RELEASE AND INSTRUCTIONAL VIDEO].'' (emphasis added)

    To say the least, this notice is aggressively misleading. What 
Respondent is (too) quietly offering goes beyond a mere information 
campaign; it is a program for corrective action to modify and repair 
strollers for those consumers dogged enough to pursue a remedy that 
would actually make their strollers safer. Yet, the notice to the 
public and to the firm's distribution chain neglects to point this out 
in any clear or meaningful fashion. Needless to say, without being 
fully informed that relief from the hazard extends to repairs, 
consumers may well ignore an information campaign that is fairly 
complex to follow and understand.
    In making this point, we need to add some further thoughts. As much 
as we would prefer to use the term ``recall,'' as a matter of 
compromise, we would have been cautiously open to a different way of 
describing the relief offered in this case. A more accurate description 
of the relief carefully offered and fully explained would have 
satisfied us. But, describing the Agreement as an information campaign 
``without a recall'' misleadingly directs the public's attention away 
from the actual terms agreed to by the parties. It's not quite 
analogous to a tree falling in a forest with no one to hear it, but 
it's close. Having an agreement that provides relief without anyone 
being fully alerted to the nature of the relief is pretty much no 
relief at all.
    Compounding the problem is the fact that the parties have provided 
no explanation why the term ``recall'' was rejected nor have they 
explained why this alternative approach would be acceptable. We surmise 
that rejecting the term ``recall'' was a point that Respondent insisted 
upon. If so, they needed to explain why this point was so important to 
them and, more importantly, to provide some evidence that this revised 
approach would provide sufficient protection to consumers that it would 
be acceptable to proceed with it.\1\
---------------------------------------------------------------------------
    \1\ Additionally, it is unclear what enforcement authorities the 
parties refer to in the Agreement when they state that ``[t]he 
Commission shall retain jurisdiction to enforce the provisions of the 
Consent Agreement and Order.'' Any violation of an order issued under 
Section 15(c) or (d) would be a prohibited act under Section 19(a)(5) 
and may subject a violator to civil or criminal penalties, see 15 
U.S.C. Sec. Sec. 2069-70. We are concerned that this language does not 
specify whether this provision applies to this settlement, and it may 
be difficult for the Commission to meaningfully enforce the Agreement.
---------------------------------------------------------------------------
    Limited Scope of Relief: As we stated at the outset, the B.O.B. 
strollers were first introduced into commerce beginning in 1997. So, 
the allegedly hazardous strollers were produced over a period of 
roughly 18 years. Yet, the mechanical fix for the strollers offered by 
Respondent extends back only to 2009--a period of just six years. 
Nowhere in the Agreement is there any explanation why the fix is so 
limited in time. If the pre-2009 strollers do not contain the alleged 
defect, the parties should have explained this. If, on the other hand, 
the parties believe that few, if any, pre-2009 strollers remain in use, 
we would like to see evidence of this. It's our understanding that 
there is a substantial secondary market for these strollers and that 
large numbers of them remain in use. If so, we can see no reason for 
refusing to extend the offer of a mechanical repair to what constitutes 
two-thirds of the years of production.
    Summarily limiting full remedies to all purchasers of these 
allegedly hazardous products without explanation constitutes a fatal 
flaw in this Agreement to us.\2\
---------------------------------------------------------------------------
    \2\ We also note that the Agreement limits the information campaign 
to a period of 24 months from its announcement and limits the 
availability of parts and accessories, discounts, or other incentives 
to a period of 12 months from the information campaign's announcement. 
As a general matter, relief to consumers should not have such a short 
expiration date. There is no explanation for why Respondent should not 
provide the same safety information and remedy to all consumers who may 
have concerns about their ability to safely and correctly operate the 
Quick Release, regardless of when those concerns may arise.
---------------------------------------------------------------------------
                               Conclusion
    Despite offering a number of very positive features, this 
Corrective Action Plan falls short of what we believe the Commission 
should approve. We regret this not only because we believe consumers 
will come up short in terms of safety, but also because we fear that 
other respondents will invoke this agreement as a precedent in future 
recalls, thereby lessening safety for far more consumers than are 
affected by this agreement.
                                 ______
                                 
                           DISSENTING OPINION
      COMMISSIONER ROBERT S. ADLER and COMMISSIONER ELLIOT F. KAYE
               IN THE MATTER OF BRITAX CHILD SAFETY, INC.
                            CPSC Docket 18-1
                             July 19, 2019
    CPSC Complaint Counsel and Respondent in the above titled matter 
have come before the Commission for our approval of an ``Addendum to 
the Consent Agreement'' regarding the alleged hazards of single and 
double occupant strollers sold by Britax under the name, BOB. Once 
again, we must vigorously dissent. Regrettably, this new proposal 
continues the errors of the previous consent agreement.
    Without repeating the full details of the previous consent 
agreement between Complaint Counsel and Respondent, we note that 
Complaint Counsel alleged in an administrative complaint against the 
company that the quick release mechanism on certain of its strollers 
failed to secure the front wheel to the fork, allowing the front wheel 
to detach suddenly and unexpectedly during use. Staff further alleged 
that this defect constituted a Substantial Product Hazard under section 
15 of the Consumer Product Safety Act (CPSA), leading to a significant 
number of serious injuries both to caregivers pushing the strollers and 
to children occupying them. After the case was filed, the parties 
reached a negotiated settlement to which we objected.
    Our objection to the consent agreement rested on at least two 
grounds: (i) the agreement between the parties was misleadingly 
described as an ``information campaign'' when, in fact, it was a recall 
with specific repairs available to those who managed to slog their way 
through the misdirection and obfuscation contained in the public 
announcement of the corrective action and (ii) the corrective action 
was offered only to a fraction of those who owned a BOB stroller--
arguably only about a third of the owners.\1\
---------------------------------------------------------------------------
    \1\ We also objected to the limited time period of 24 months for 
the ``information campaign'' coupled with the limit of 12 months for 
the availability of parts and accessories, discounts, and other 
incentives from the date of the announcement of the information 
campaign.
---------------------------------------------------------------------------
       Implementation Problems with the ``Information Campaign''
    Compounding the problems with the ``information campaign,'' when 
Britax sent out replacement parts for the BOB stroller, the parts 
turned out to be defective. Specifically, a new metal bolt meant to 
replace the strollers' quick release bolt turned out to be prone to 
easy breakage. According to a story in the Washington Post,\2\ 
consumers who installed the new bolts almost immediately discovered how 
easily they broke. In one instance, a consumer who installed the 
replacement bolt found that it split into two pieces the day after he 
installed it.
---------------------------------------------------------------------------
    \2\ Todd C. Frankel, ``Britax sent defective fix to customers in 
deal to avoid safety recall of its BOB strollers,'' Washington Post 
(May 3, 2019). https://www.washingtonpost.com/business/economy/britax-
sent-defective-fix-to-customers-in-deal-to-avoid-safety-recall-of-its-
bob-strollers/2019/05/03/f6db7c7c-6da9-11e9-be3a-
33217240a539_story.html?utm_term=.278be93ee95b
---------------------------------------------------------------------------
    To say the least, replacing a problem part of a product with 
another problem part raises serious questions about the company's 
quality control procedures as well as its commitment to the safety of 
its customers.
                         The Revised Agreement
    At the outset, we note that the addendum to the consent agreement 
between Complaint Counsel and Britax contains additional relief for 
some of the owners of BOB strollers. That said, we cannot help but 
notice that these extra provisions came about only after a critical 
front-page article in the Washington Post highlighted the deficiencies 
in the original agreement.\3\ Whether the firm would have been amenable 
to strengthening the terms of the consent agreement without the added 
pressure of such negative publicity is highly iffy.
---------------------------------------------------------------------------
    \3\ Todd Frankel, ``After hundreds of crashes, this Britax jogging 
stroller faced recall. Then Trump appointees stepped in.'' Washington 
Post (April 2, 2019). https://www.washingtonpost
.com/business/economy/after-hundreds-of-crashes-this-britax-jogging-
stroller-faced-recall-then-trump-appointees-stepped-in/2019/04/02/
faf23c20-4c06-11e9-b79a-961983b7e0cd_story.html?no
redirect=on&utm_term=.e6c2c0e85497.
---------------------------------------------------------------------------
    We would summarize the most significant features of the addendum to 
the consent agreement as follows:

   Britax will add new graphics and text to the home page for 
        its BOB Gear that further directs consumers to the 
        ``Information Campaign.''

   Britax will add tabs to its website that will attempt to 
        improve the user experience with engaging the quick release 
        mechanism of its stroller.

   Britax will increase the frequency of confidential reporting 
        information to CPSC on the results of its information campaign.

   Britax will extend its incentives offer until January 10, 
        2021.

   Britax will re-send direct notice to consumers for whom it 
        has registration data.

   Britax will provide substitute thru-bolts to replace the 
        defective bolts it sent to consumers under the original consent 
        agreement.

    While we welcome the additional protections for consumers in the 
addendum, we fail to see how it does much to improve the overall 
weakness of the original consent agreement. The addendum does nothing 
to fix these problems with the original consent agreement:

    The Corrective Action Plan is Not Just An Information Campaign; 
It's a Recall: Those owners of BOB strollers who read about Britax's 
``Information Campaign'' may well not realize that Britax obligated 
itself to provide mechanical fixes to eligible consumers who requested 
such fixes. This is a direct result of the company's refusal to 
acknowledge that its agreement constitutes a recall as well as an 
``Information Campaign.'' Nothing in the addendum agreement provides 
the necessary clarity for consumers to understand their rights to 
remedial action. Accordingly, we continue our belief that the original 
consent agreement is aggressively misleading. As we said previously, 
without being fully informed that remedial action is available, 
consumers may ignore an information campaign that is fairly complex to 
follow and understand.
    Providing Enhanced Remedies to a Limited Set of Consumers Does 
Nothing to Protect Those Excluded From the Corrective Action Plan: As 
much as we applaud Britax's offer to enhance certain aspects of the 
consent agreement for the small subset of consumers for whom it is 
willing to provide some remedial relief, we remain dissatisfied with 
the firm's refusal to include those who purchased strollers during two-
thirds of the years of the product's sale to the public. The BOB 
strollers were manufactured beginning in 1997, yet, without any 
explanation in the record, Britax refuses to provide remedies for pre-
2009 strollers. We see no indication that the hazard miraculously 
appeared in 2009 with no danger associated with earlier years of 
production. Certainly, to imagine that the pre-2009 strollers are all 
off the market is unreasonable given the sizable secondary market for 
these strollers. Yet, that is the implicit message in the firm's 
refusal to extend its remedies to earlier years of production.
                               Conclusion
    Our test for whether to approve the addendum to the consent 
agreement is a simple one. If the consent agreement with the addendum 
had been presented to us as an original proposal in November 2018, 
would we have approved it? Our answer is an emphatic, no. The addendum 
may put more lipstick on the pig, but the underlying object remains as 
porcine as ever.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                          Hon. Elliot F. Kaye
Infant Inclined Sleepers
    On April 6, Consumer Reports reported there have been at least 32 
infant deaths linked to the Fisher-Price Rock `n Play, a popular baby 
product that belongs to a category of products known as ``infant 
inclined sleepers.'' On April 11, Consumer Reports reported there have 
been at least 4 infant deaths linked to a similar product manufactured 
by Kids II. It was only after the publication of these two articles and 
the ensuing public outrage that the manufacturers involved agreed to 
work with CPSC to recall these deadly products.

    Question 1. Was the CPSC aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Yes.

    Question 2. Were you aware of these infant fatalities before 
Consumer Reports published these figures?
    Answer. Yes, and I was pushing aggressively for at least a year for 
a stop sale and a recall.

    Question 3. If Consumer Reports had not published its findings 
regarding infant fatalities caused by infant inclined sleepers, do you 
think these products would have been recalled when they were?
    Answer. It is difficult to say with any certainty how Consumer 
Reports' publication affected the timing of the recall.

    Question 4. When do you think these products would have been 
recalled had Consumer Reports not published its findings regarding 
infant fatalities caused by infant inclined sleepers?
    Answer. It is difficult to say with any certainty how Consumer 
Reports' publication affected the timing of the recall.

    Question 5. After how many fatalities, do you think these products 
should have been taken off the market?
    Answer. Fatalities should not have to occur before any hazardous 
product is taken off the market. In this case, sadly the agency knew 
for at least a year that there were a number of deaths associated with 
the product, but it failed to move with urgency.

    Question 6. How many fatalities must happen before the CPSC 
initiates a recall?
    Answer. Fatalities are not a requirement for initiating a recall. 
Once a hazard pattern is identified, CPSC staff can and should 
immediately begin negotiations for a strong and effective voluntary 
recall and corrective action plan with the firm.
The Safe Sleep Act of 2019
    I have introduced the Safe Sleep Act of 2019. This legislation 
would prohibit the sale, manufacture, and import of infant inclined 
sleep products--a dangerous category of infant products, of which the 
recalled Fisher Price Rock `n Play and Kids II sleepers belonged. My 
legislation would also make sure that no new standard can be 
established for a sleep product that is inconsistent with safe sleep 
best practices.
    The American Academy of Pediatrics and safety advocates have long 
been clear that a safe sleep environment is a firm, flat, bare surface. 
It is clear that infant inclined sleep products are incompatible with 
the recommendations of the leading experts on safe sleep.

    Question 7. When it comes to establishing standards for infant 
sleep products, can you commit that you will only support standards 
that are consistent with safe sleep best practices agreed upon by 
pediatricians and safety advocates? If your answer is ``No,'' then why 
not?
    Answer. I support evidence-based safe sleep best practices. I 
believe that infant sleep products should be made consistent with those 
practices.

    Question 8. Do you believe that infant inclined sleep products are 
a category of products that can be considered safe for sleep?
    Answer. I am deeply concerned by the incidents and deaths 
associated with inclined sleep products and believe that the Commission 
should consider amending the scope of 16 C.F.R. Part 1218, Safety 
Standard for Bassinets and Cradles, to include infant inclined sleepers 
and propose making any necessary amendments to that standard to address 
the risks associated with this product category.

    Question 9. How would you have handled this issue differently, and 
how do you think the agency should proceed to prevent further infant 
deaths associated with these products?
    Answer. I am deeply concerned by the incidents and deaths 
associated with inclined sleep products. To that end, on May 21, 2019, 
at the decisional meeting for the Fiscal Year 2019 Midyear Review and 
Proposed Operating Plan Adjustments, Commissioner Adler and I offered a 
proposal to direct staff to work with the appropriate voluntary 
standard bodies to develop evidence-based performance requirements to 
eliminate the hazard patterns associated with infant inclined sleepers 
and to survey the marketplace, including imports, for infant inclined 
sleepers and, if appropriate, pursue corrective actions with respect to 
those products that pose a safety hazard to infants. Unfortunately, 
this proposal was not supported by our colleagues and it was defeated 
by a vote of 3 to 2.\5\ This failed vote was and remains inexplicable 
to me.
---------------------------------------------------------------------------
    \5\ My full statement on this proposal is available here: https://
www.cpsc.gov/s3fs-public/Kaye-Statement-Midyear-
FY19.pdf?15GNbsKhQ.mz43y6JoDGrunCqFyQ5FHj.
---------------------------------------------------------------------------
Section 6(b)
    Question 10. What role do you believe Section 6(b) of the Consumer 
Product Safety Act (``CPSA'') play in preventing the CPSC from acting 
sooner to recall these deadly products? \6\
---------------------------------------------------------------------------
    \6\ Note: Section 6(b) of the Consumer Product Safety Act prohibits 
the Commission from disclosing information about a consumer product 
that identifies a manufacturer without the permission of the 
manufacturer.
---------------------------------------------------------------------------
    Answer. Section 6(b) is the primary obstacle to informing the 
public about hazards associated with specific consumer products and 
often results in protracted negotiations over recalls and press 
releases. As I have stated before, people die because of Section 6(b).

    Question 11. Does that mean Section 6(b) is preventing the CPSC 
from fulfilling its stated mission to protect the public from 
unreasonable risks of serious injury or death?
    Answer. No doubt about that. Section 6(b) significantly impairs the 
agency's ability to communicate known risks of serious injury or death 
to the public. Because of this, consumers cannot make informed 
decisions about their products. In addition, Section 6(b) gives firms 
too much control over voluntary recalls and corrective action plans and 
makes it difficult for the Commission to act quickly when a firm is 
refusing to recall a hazardous product or firm's proposed corrective 
action plan is inadequate.

    Question 12. Do you think Section 6(b) protects consumers?
    Answer. No. Section 6(b) harms consumers. It is anti-consumer 
safety and anti-transparency.
Window Covering Safety
    In December 2018, a new window covering standard went into effect 
that bans cords on stock products.

    Question 13. Please provide detailed market data underlying the 
claim that the new window covering standard, which applies to stock 
products sold in stores and online, actually accounts for more than 80 
percent of all window covering products sold in the United States.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        This statement originated from a [Window Covering Manufacturers 
        Association (WCMA)] member in a meeting between CPSC and WCMA 
        in May 2015. The basis for this statement was a 2015 KeyStat 
        study. This study was provided to CPSC staff as confidential 
        business information by one of the WCMA members.

    I have seen no proof that these numbers are accurate, nor do I 
believe it is appropriate to rely on such unverified and old data.

    Question 14. Do most daycares and preschools have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        We do not have data that provide a stock versus custom breakout 
        for daycares/preschools.

    Question 15. Do most affordable housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        We do not have data that provide a stock versus custom breakout 
        for affordable housing.

    Question 16. Do most military housing units have stock or custom 
window coverings? Please provide data for your answer.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        We do not have data that provide a stock versus custom breakout 
        for military housing.

    Question 17. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing in stores.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        If [a] consumer intends to purchase a window covering off-the-
        shelf in a store, those products are classified as stock [and] 
        are subject to the stock window covering requirements (i.e., 
        cordless, short cord, or inaccessible cord).

    However, it is important to note that once installed, there is no 
readily discernable difference between stock and custom products, 
except that custom products may have hazardous accessible cords that 
can kill children.

    Question 18. Please explain in detail how consumers can tell the 
difference between a custom and stock window covering product when they 
are purchasing online.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        The window covering standard requires a warning label on the 
        website if the website is relied upon for promoting, 
        merchandising, and selling [custom corded product] online. This 
        way, the consumer is informed about the strangulation hazard 
        while placing an order for a corded custom window covering. 
        CPSC staff has suggested to the WCMA technical committee that a 
        guidance document for online sales of stock and custom products 
        [would] be useful to add to the standard.

    Again, however, it is important to note that once installed, there 
is no readily discernable difference between stock and custom products, 
except that custom products may have hazardous accessible cords that 
can kill children. Your question gets to how absurd this supposed 
distinction is.

    Question 19. What is the CPSC doing to monitor compliance with the 
new window covering standard? How can the CPSC enforce when it's 
unclear whether a product is stock or custom?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC is monitoring the sale of corded window coverings on 
        online platforms and developing plans to monitor at ports and 
        in retail stores.

        In order to comply with the ANSI/WCMA voluntary standard, all 
        products should be designated as ``Custom'' or ``Stock'' on the 
        manufacturer label, using a ``C'' or the word ``Custom,'' or an 
        ``S'' or the word ``Stock'', respectively. Stock products are 
        substantially fabricated in advance of being distributed in 
        commerce and in advance of any specific consumer request for 
        that product. Such product is likely a stock product if it 
        appears online readily available to ship, and has limited/
        specific pre-determined sizing, color, and material options.

    I have been requesting for a year that the CPSC aggressively 
monitor compliance with the new window covering standard since it first 
went into effect in 2018. Although long overdue, I am pleased that CPSC 
staff now reports that they are monitoring online platforms and are 
developing plans to monitor corded window coverings at ports and in 
retail stores.
Furniture Tip-over and the Ikea HEMNES 8-drawer dresser
    Two years ago, a video went viral showing near-tragedy from a 
furniture tip-over: twin brothers climbing on the Ikea Hemnes 8-drawer 
dresser leading it to tip over--one being nearly crushed by it and the 
other miraculously saving him. The parents had posted the video to warn 
others about the danger.\7\ Tragically, five months later, the same 
kind of Ikea dresser fell on another 2-year old boy in his bedroom, 
killing him. This dresser still has not been recalled.
---------------------------------------------------------------------------
    \7\ https://www.consumerreports.org/furniture/ikea-still-sells-
hemnes-dresser-linked-to-childs-death/
---------------------------------------------------------------------------
    While Ikea has recalled the HEMNES 2, 3, 5, and 6-drawer versions 
of this dresser, it has steadfastly refused to recall the 8-drawer 
dresser. IKEA refuses to recall it because it does not fail the 
existing furniture stability test. They maintain that the product is 
safe--even in the face of clear video evidence that it is not.
    Kids In Danger, Consumer Federation of America, Parents Against 
Tip-overs, and Consumer Reports have all called for the recall of this 
product.

    Question 20. Do you believe that the current standard governing 
furniture stability is inadequate?
    Answer. It is totally inadequate. This standard needs to be 
significantly updated.

    Question 21. Have you personally had any conversations with Ikea 
urging them to agree to a voluntarily recall of this dangerous product? 
Have you directed CPSC staff to have such conversations? Why or why 
not?
    Answer. I cannot comment on this matter as part of a published 
public hearing record, but I am available to discuss this issue with 
you in a different setting.
Illegal Sale of Recalled Products
    As yard sales and garage sales move online, the CPSC must keep up 
with the times and work with online platforms that facilitate the sale 
of used products to make sure they have strong policies in place that 
protect consumers from unwittingly purchasing hazardous recalled 
products. It is important that the CPSC continue to vigorously enforce 
the prohibition on the sale of recalled products, pursuant to the 
Consumer Product Safety Improvement Act of 2008. In the wake of the 
recall of Fisher Price Rock `n Play, we continue to see too many of 
these products sold on secondary online marketplaces.

    Question 22. Please provide a list of all Internet platforms (i.e., 
Facebook, Craigslist, EBay, Amazon, etc.) that the CPSC has established 
relationships with. For each platform, please describe:
   When and how that relationship was established.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC has relationships with a number of platforms, some of them 
        for well over a decade including:

       eBay

       Overstock.com

       Alibaba

       Craigslist

       Facebook and Facebook Marketplace

       Oodle

       Shopgoodwill

       Amazon

       Letgo

       Offer Up

   Any special tools the platform has provided to the CPSC to 
        help monitor the illegal sale of recalled products on the 
        platform.

    CPSC staff has provided the Commissioners with the following 
response to this question:

        No special tools, however we have established CPSC 
        relationships and ongoing discussions.

   Any special tools the platform has provided to the CPSC to 
        report the illegal sale of recalled products on the platform.

    CPSC staff has provided the Commissioners with the following 
response to this question:

        No special tools, however we have established CPSC 
        relationships and ongoing discussions.

    Question 23. What more could Internet platforms do to eliminate the 
illegal sale of recalled products on their platforms?
    Answer. I believe that Internet platforms could better utilize 
existing technology and implement policies and procedures to help 
prevent consumers from purchasing recalled products. There are likely 
technologies companies are using to attract customers to purchase their 
products that could also be deployed for the recall of products.

    Question 24. Do you think platforms that facilitate the sale of new 
and used products should have clear policies expressly prohibiting the 
sale of recalled products in the United States?
    Answer. Yes.

    Question 25. Do you think users should be able to specifically flag 
the sale of recalled products?
    Answer. Yes.

    Question 26. What kind of obligation do you think these companies 
have or should have in making sure recalled products are not illegally 
sold on their platforms?
    Answer. I believe that companies have a serious and ongoing 
obligation to ensure that recalled products are not available for sale 
on their platforms.
Information Campaigns vs. Recalls
    The CPSC seems to increasingly likely to agree to settlements with 
companies that exclude the word ``recall''--like its recent settlement 
with Britax jogging strollers in which the company was ``pleased to 
announce'' a resolution that didn't include a recall or formal 
correction plan.
    Consumers lose out on important legal protections when recalls 
aren't called what they should be--``recalls.'' For example, they may 
be more susceptible to purchasing second-hand products that haven't 
been repaired.

    Question 27. What evidence do you have that the Britax jogging 
stroller information campaign has adequately addressed the hazard? What 
percentage of the strollers have been removed from use or repaired with 
a fix that actually works?
    Answer. I have no evidence that this campaign has been effective 
and believe to date it has been the failure we predicted it would be. 
In terms of specifics on the number of units removed or repaired, I 
cannot comment on this matter as part of a published public hearing 
record, but CPSC staff is available to discuss this issue with you in a 
different setting.

    Question 28. How does the Consumer Product Safety Improvement Act 
(``CPSIA'') protect consumers from the sale of products that are 
subject to ``information campaigns''?
    Answer. The CPSIA made the sale of a product subject to a voluntary 
corrective action or mandatory recall ordered by the Commission a 
prohibited act under Section 19 of the Consumer Product Safety Act, 
which can subject a violator to civil or criminal penalties. See 15 
U.S.C. Sec. Sec. 2068-70. It is unclear what enforcement authorities, 
if any, would apply to a product subject to an ``information 
campaign.''

    Question 29. So, without an official recall, consumers who buy 
these strollers second-hand will have no legal remedy against the 
seller for being sold the product without being advised of the 
information campaign or for being sold the product without the ``free 
modified thru-bolt or free modified quick release'' incentive for 
consumers who participate in the information campaign. Is that correct?
    Answer. Please see the attached dissenting opinions that I issued 
with Commissioner Adler in this matter expressing our concerns with the 
Consent Agreement and subsequent ``Addendum to the Consent Agreement.''

    Question 30. Why is it so problematic that the CPSC's settlement 
with Britax is not characterized as a ``recall''?
    Answer. It is problematic for a number of reasons, please see the 
attached dissenting opinions that I issued with Commissioner Adler in 
this matter expressing our concerns with the Consent Agreement and 
subsequent ``Addendum to the Consent Agreement.''
Recall Effectiveness of IKEA Dressers
    The CPSC is in the midst of overseeing the IKEA dresser recall that 
currently involves 17 million dressers. We now know of at least 9 
deaths attributable to these dressers and an additional death in a non-
recalled IKEA dresser. We also know that the response rate--for refunds 
and removal of the dressers from use--has been hovering at about 1 
percent and we know that at least one death occurred after the recall 
was announced, with no reported knowledge by the parents of the recall.

    Question 31. What steps should the CPSC take to make this recall 
more effective to prevent other children from being injured or killed 
from these unstable dressers?
    Answer. The CPSC should ask IKEA to dedicate the same resources it 
uses to sell these products to also recall them.

    Question 32. The IKEA furniture recall involves at least 17 million 
dressers. What percentage of those recalled dressers are out of 
people's homes?
    Answer. I cannot comment on this matter as part of a published 
public hearing record, but CPSC staff is available to discuss this 
issue with you in a different setting.

    Question 33. Have you met with IKEA?
    Answer. Yes.

    When you met with them, how did you discuss holding IKEA 
accountable for this recall?
    Answer. I cannot comment on this matter as part of a published 
public hearing record, but I am available to discuss this issue with 
you in a different setting.

    Question 34. What have you done and what are you committed to doing 
to decreasing the numerous amount of deadly dressers still in people's 
homes?
    Answer. I am committed to doing everything within the agency's 
legal authority to ensure that consumers know about this deadly hazard. 
As warranted, the CPSC must aggressively pursue robust, consumer-
friendly recalls for the dangerously unstable furniture already on the 
market. In addition, the Commission should continue its rulemaking 
process to promulgate a mandatory safety standard to address this 
hazard.
Update on Crumb Rubber Study
    It has now been more than three years since the CPSC, in 
coordination with the EPA and CDC, first announced it would be studying 
crumb rubber.

    Question 35. When is this study going to be complete?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        The Synthetic Turf Exposure Characterization data collection 
        (ATSDR) is still ongoing; the CPSC's Playground Use Survey is 
        completed, and a final contractor's report [was] due to staff 
        by July 26, 2019. Any CPSC Risk Assessment studies regarding 
        recycled tire rubber in playground surfacing will consider the 
        findings of the Tire Crumb Characterization and the Synthetic 
        Turf Exposure Characterization. CPSC staff anticipates a Risk 
        Assessment for playground surfacing could be available about 12 
        months after we receive the Synthetic Turf Exposure 
        Characterization Report.

    Question 36. What is the delay?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC staff does not agree that there is a delay. The initial 
        [Federal Research Action Plan (FRAP)] announcement noted that 
        the schedule was ambitious. The deliverable described in the 
        February 2016 FRAP announcement was, ``By the end of 2016, the 
        agencies anticipate releasing a draft status report that 
        describes the preliminary findings and conclusions of the 
        research through that point in time.'' A draft status report 
        was published at the end of 2016; that milestone was met. 
        However, because there was still work to be done to answer 
        these questions, the partner agencies continued with their 
        research in pursuit of quality science and in compliance with 
        time-consuming administrative steps required by law (e.g., 
        Paperwork Reduction Act).

        The CPSC's Playground Use Survey is completed, and a final 
        contractor's report [was] due to staff by July 26. This 
        contract is on schedule. The survey is the only task 
        specifically assigned to CPSC in the FRAP announcement. When 
        the FRAP partner agencies' data are available, CPSC staff will 
        act as quickly as possible to apply those data in risk 
        assessment activities specific to playground surfaces.

    I believe that clearly there has been a delay. I do not see the 
same commitment in the government to get answers to these questions as 
I did during the prior administration.

    Question 37. Do you believe the EPA and partner agencies are still 
fully completed to this research? Have you talked to them about it?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Work at EPA and ATSDR has been continuous since 2016 (see 
        response to Question 33). CPSC staff keeps apprised of the 
        activities at EPA and ATSDR. EPA is planning to brief CPSC 
        senior management on its Tire Crumb Characterization Report. 
        ATSDR's Synthetic Turf Exposure Characterization data 
        collection is still ongoing.
Section 6(b) of the Consumer Product Safety Act
    The CPSC, alone among safety agencies, has a provision--Section 
6(b) of the Consumer Product Safety Act--that typically prevents the 
CPSC from sharing product specific safety information with consumers 
without express permission from the company in question.
    It is often felt that this delays consumers from getting vital 
information they could use to keep their families safe. For example, 
the Fisher-Price Rock `n Play recall was preceded by a vague warning 
that did not identify the product a year before the recall.
    However, the CPSC seems to be going out of its way to make it 
difficult for consumer advocates and researchers to evaluate risk to 
consumers and even whether companies are doing their job in executing 
effective recalls.
    For example, Nancy Cowles of Kids in Danger says she has submitted 
Freedom of Information Act requests documents to shed light on the 
recall effectiveness of Ikea's recall on unstable dressers.\8\ However, 
those documents are redacted completely, down to the number of Facebook 
posts a company will share about a recall. As she is quoted saying in 
article: ``I could just go count that. How could that be protected?''
---------------------------------------------------------------------------
    \8\ https://www.fastcompany.com/90298511/ikeas-killer-dressers-and-
americas-hidden-recall-crisis

    Question 38. Does it make sense that the CPSC is redacting 
information about public Facebook posts about recalls? Do you think it 
is appropriate that Section 6(b) really limits such information 
disclosures?
    Answer. The purpose of the Freedom of Information Act (FOIA) is to 
hold the agency accountable to the public, with a strong presumption of 
openness and transparency. To be clear, the FOIA authorizes us to 
balance the public right to information with our need to protect 
certain sensitive information, including requiring the agency to 
withhold information if its disclosure is otherwise prohibited by law. 
However, I strongly believe that any redactions the agency makes must 
be narrowly tailored and consistent with the law. I do not think that 
it is appropriate for the agency to withhold information from the 
public under the auspices of Section 6(b), confidential business 
information or any other FOIA exemption unless those provisions 
actually apply to the information in question.

    Question 39. Will you commit to making sure the CPSC does not 
restrict the disclosure of information more than is required by 
statute?
    Answer. I am committed to following the law. I believe that 
additional Congressional oversight is needed to prevent the agency from 
inappropriately withholding information from the public.

    Question 40. As long as Section 6(b) is on the books will you 
commit to support the agency restricting disclosure of information 
about a product or company to no greater an extent than required by 
statute?
    Answer. I am committed to following the law. I believe that 
additional Congressional oversight is needed to prevent the agency from 
inappropriately withholding information from the public.

    Question 41. What Internet platforms does CPSC have established 
relationships with?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC has relationships with a number of platforms, some of them 
        for well over a decade including:

       eBay

       Overstock.com

       Alibaba

       Craigslist

       Facebook and Facebook Marketplace

       Oodle

       Shopgoodwill

       Amazon

       Letgo

       Offer Up

    Question 42. What special tools do CPSC staff have to review and 
flag violative products sold on the Internet?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        No special tools, however we have established CPSC 
        relationships and ongoing discussions.
Internet of Things
    Acting Chair Buerkle recently said in reply to a letter in reply to 
consumer privacy organizations, ``CPSC's authority will not generally 
extend to situations solely related to consumer privacy or data 
security, that do not pose a risk of physical injury or illness, or 
property damage.''
    On the contrary, the CPSC should be doing more to recognize that 
consumer privacy and data security pose real and urgent threats to the 
well-being and safety of consumers. Insecure products can be hacked to 
spy on children, trip up smoke detectors, and more.

    Question 43. How can the CPSC leverage its expertise in keeping 
dangerous products off of shelves, to also keep insecure products that 
threaten people's safety out of people's homes?
    Answer. The CPSC can investigate and research connected products 
and collaborate with industry and other agencies to ensure that 
vulnerabilities are addressed in a timely manner. My staff and I wrote 
a paper outlining a safety framework for IoT products.\9\
---------------------------------------------------------------------------
    \9\ For more specific steps to take, see our paper outlining a 
framework for safety across the Internet of Things at: https://
cpsc.gov/s3fs-public/A_Framework_for_Safety_Across_the_Inter
net_of_Things_1-31-2019_0.pdf?1KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.

    Question 44. What is the best way to protect vulnerable consumers 
as new products enter the market without standards--such as connected 
products? Is enough money allocated to compliance and enforcement 
divisions?
    Answer. It is vitally important for the CPSC to actively monitor 
and evaluate in-coming consumer reports of harm to identify and respond 
to emerging hazards. The agency needs more resources to hire subject 
matter experts and the necessary support staff to identify and respond 
to emerging hazards. My staff and I wrote a paper outlining a safety 
framework for IoT products.\10\
---------------------------------------------------------------------------
    \10\ For more specific steps to take, see our paper outlining a 
framework for safety across the Internet of Things at: https://
cpsc.gov/s3fs-public/A_Framework_for_Safety_Across_the_Inter
net_of_Things_1-31-2019_0.pdf?1KJ.t4Tn04v9OtEBr2s0wyLAP.KsuuQ3.
---------------------------------------------------------------------------
Kids in Danger Report: Social Media Practices
    Kids In Danger (``KID''), a non-profit organization dedicated to 
protecting children by fighting for product safety, released its latest 
report in March.\11\ It found that both the CPSC and manufacturers 
posted recalls on Facebook at lower rates in 2018 compared to 2017.
---------------------------------------------------------------------------
    \11\ https://kidsindanger.org/2019/03/kid-releases-annual-report-
on-recalled-childrens-products/
---------------------------------------------------------------------------
    CPSC posted only 45 percent of 2018 children's product recalls on 
its Facebook page. This was a sharp decrease from 75 percent in 2017--
when the CPSC first began using Facebook.
    In addition, of the 48 manufacturers that issued recalls in 2018, 
only 31 percent were announced on the company's Facebook page--down 
from 51 percent in 2017.

    Question 45. Why isn't the CPSC using all tools at its disposal to 
make recalls are made known?
    Answer. I believe that the CPSC should use social media tools as 
effectively and as often as possible to communicate with the public. 
Generally, the agency of late has stopped using many of the tools it 
has to protect consumers. This is deeply disturbing.

    Question 46. Why isn't the CPSC requiring manufacturers to issue 
notices on manufacturers' Facebook pages?
    Answer. I believe that we should be doing so, but if a firm 
disagrees, the agency cannot compel the firm to do if it is a voluntary 
recall. The agency needs additional authorities to make recalls 
stronger and more effective.

    Why isn't that a standard part of the corrective action plan?
    Answer. It should be, but if a firm disagrees, the agency cannot 
compel the firm to do if it is a voluntary recall.
Can a product that meets an existing standard be defective?
    We are hearing increasingly often from companies that just because 
their product is meeting a safety standard, their product can't be 
defective and can't be subject to a recall. For example, Britax, the 
maker of the B.O.B. jogging stroller argued that a product defect 
required the violation of a safety standard. And the B.O.B. had passed 
a test that required the removal front wheel to stay on after a strong 
pull.
    IKEA has also said the same thing about the Hemnes 8-drawer dresser 
that killed a 2 year-old.

    Question 47. If a product meets an existing standard but is killing 
or seriously injuries children and babies, wouldn't you agree the 
product should be recalled?
    Answer. Of course.

    Question 48. Would you agree that the CPSC has the authority to 
recall a product if it believes it poses an unreasonable risk of 
serious injury or contains a defect that presents a substantial product 
hazard--even if the product meets all existing standards?
    Answer. Yes.

    Question 49. Can a product be recalled if it meets an existing 
standard?
    Answer. Yes.

    Question 50. Wouldn't you agree that if deaths and injuries are 
occurring, the products may still be defective and a recall may be in 
order?
    Answer. Yes.

    Question 51. What are some examples of companies that have 
voluntarily recalled products that didn't necessarily violate a 
specific product standard?
    Answer. Yes, for example recalls have happened with cribs, 
bassinets and strollers.

    Question 52. What role do you have in encouraging a manufacturer to 
agree to a voluntary recall?
    Answer. Very few voluntary recalls are voted on by the Commission. 
Most voluntary recalls are negotiated and agreed to by CPSC staff 
pursuant to the Commission's delegation of authority to the staff.
Enforcement of the Child Nicotine Poisoning Prevention Act
    I am very concerned about the CPSC's enforcement of the Child 
Nicotine Poisoning Prevention Act, which became law three years ago and 
gave the CPSC the authority to enforce a requirement for child-
resistant packaging and flow restrictors on liquid nicotine containers. 
The agency has moved slowly to enforce this law, and public action has 
primarily consisted of sending notices to industry about the 
requirements.

    Question 53. Is the agency doing any market surveillance on this 
issue to identify non-compliant products? Have you done any surveys of 
industry?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Yes, CPSC regularly performs market surveillance including 
        collecting samples at retail and on-line to identify non-
        compliant product.

    Question 54. Have you taken any enforcement action or enforced 
civil penalties for failure to comply with the law? If not, why not?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC has notified firms and sought corrective action when non-
        compliant products are identified.

    Question 55. Are there authorities the agency is not using that it 
should be to address products that pose a child health hazard like 
liquid nicotine?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        No.
Keeping Fellow Commissioners in the Dark
    I am troubled by reporting that Acting Chairman Buerkle withheld 
information from fellow Commissioners about defect investigations and 
incident data--even when briefings have been requested. All 
commissioners must have fair access to the information they need in 
order to make informed and educated decisions--especially when voting 
on matters.
    For example, The Washington Post has already publicly reported on 
how Democratic Commissioners felt in the dark about the Britax jogging 
stroller investigation and frustrated by Acting Chairman Buerkle's 
control of the flow of information.

    Question 56. Did you feel like you were adequately informed and 
briefed prior to your vote agreeing on the Britax settlement, and in 
retrospect?
    Answer. I voted against the Britax Consent Agreement. In general, I 
have had very serious and ongoing concerns the past few years regarding 
the extremely restricted flow of information to the Commission. It is a 
major issue.

    Question 57. What do you need to do your job better?
    Answer. It is critical that as a Commissioner I have timely access 
to all pertinent information to assist me in making agency decisions.

    Question 58. Do you feel like you have access to CPSC staff 
expertise necessary to faithfully perform your job duties?
    Answer. Not always and definitely not in a timely and unmonitored 
setting.

    Question 59. Are your requests for briefings from CPSC staff being 
approved efficiently?
    Answer. No. On a number of occasions, we experienced an unnecessary 
and lengthy delay in getting a requested briefing.

    Please list all briefing requests that have been denied or 
postponed to a later date.
    Answer. I would like to have a fuller discussion with you on this 
topic at your convenience.
CPSC FTE Vacancies
    As so many of you have noted, the CPSC does a lot on a tiny budget. 
However, I'm concerned by a growing number of vacancies at the CPSC and 
how this might be affecting the agency's ability to fulfill its 
important mission.

    Question 60. How many FTEs are vacant?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        The current (as of July 13, 2019) FTE level at CPSC is 544.3 
        (just over our authorized level of 539 for FY19). We have 
        supplemented our permanent staff with temporary appointments 
        while we are actively recruiting for 40 positions.

    We requested additional information from CPSC staff and were 
provided the following, which clarifies CPSC staff's original answer:

        The 544.3 [FTE] figure includes interns. We have 45 Pathways 
        interns onboard, so the total not including interns would be 
        499.3 [FTE].

    Question 61. How do these vacancies affect the CPSC's ability to 
carry out its critical safety mission?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Depending on the exact position and if we have back-up 
        expertise available to support the duties for a vacant 
        position, it is sometimes difficult to continue to perform 
        certain functions when a position is vacant. In the field and 
        at the ports, we have staff available throughout the country 
        who can travel and provide support while a position is vacant. 
        On a case-by-case basis, we may also temporarily detail an 
        employee, reassign duties to another employee, contract for 
        services, or delay an activity until a position is filled.

    Question 62. Why are these vacant? When do you anticipate they will 
be filled?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Many of our positions are in hard-to-recruit, highly technical 
        positions, such as Mathematical Statistician, Economist, and 
        Information Technology Specialists. We are actively recruiting 
        using all of our available recruiting methods and tools for all 
        of our career vacant positions. We anticipate filling positions 
        as soon as highly qualified selectees are identified. Our 
        average time-to-recruit is just under 83 days.

    Beyond CPSC staff's response, I believe that the number of 
vacancies is historically high and of significant concern.

    Question 63. Is there anything preventing these FTEs from being 
filled?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        There is nothing preventing the recruitment for our vacant 
        positions.

    Question 64. Can you comment on why there are so many vacancies?
    Answer. I do not know why, but again, I believe that the number of 
vacancies is historically high and of significant concern.

    Question 65. Can you describe morale at the agency by CPSC staff? 
How can this be addressed?
    Answer. The 2018 Federal Employee Viewpoint Survey shows that CPSC 
staff have reported significant decreases in employee satisfaction in 
many areas since 2017.\12\ These areas include senior leadership, 
feelings of personal empowerment and overall job satisfaction. The 
agency's most negatively rated items were satisfaction with upward 
advancement opportunities, the availability of merit-based pay raises 
and promotions and the generation of high levels of motivation and 
commitment in the workforce by senior leaders.
---------------------------------------------------------------------------
    \12\ A summary of the survey results is available here: https://
www.cpsc.gov/s3fs-public/
2018FederalEmployeeViewpointSurveyResults.pdf?oWipa9Y4yQVZDCJ.F4xvdpU4BC
uxRgbP.
---------------------------------------------------------------------------
    In terms of how morale at the CPSC can be addressed, I would like 
to have a fuller discussion with you on this topic at your convenience.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Amy Klobuchar to 
                          Hon. Elliot F. Kaye
    According to the Centers for Disease Control and Prevention, there 
are over 400 deaths and 20,000 emergency room visits due to carbon 
monoxide poisoning each year. I introduced a bill with Senator Hoeven 
to encourage states to require carbon monoxide detection devices in 
homes and schools, and to create a grant program to help states educate 
people about these risks.

    Question 1. How can these programs be an effective tool in reducing 
the number of deaths and injuries due to carbon monoxide poisoning?
    Answer. Any injury prevention effort should be based on peer-
reviewed scientific evidence and have an evaluation of outcomes built 
into the effort from the beginning. Also, efforts should consider 
targeting the most high-risk communities.
    Studies have estimated that flammable liquids igniting within their 
containers cause about 160,000 fires and 4,000 injuries each year. I 
introduced the Portable Fuel Container Safety Act with Senator Moran to 
require these containers to have flame arrestors to prevent these 
accidents.

    Question 2. In your view, what should be done to help prevent these 
kinds of accidents?
    Answer. Flame arrestors are a good solution to prevent further 
injuries.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                          Hon. Elliot F. Kaye
    I appreciate that on March 8, CPSC clarified in a letter for 
industry that the Child Nicotine Poisoning Prevention Act (``CNPPA'') 
requires both child resistant packaging and flow restrictors for liquid 
nicotine containers. Both of these product safety requirements are 
important for preventing unintentional child ingestion of liquid 
nicotine. CPSC had previously advised industry about the law's 
requirements for child resistant packaging, but had not yet also 
communicated the law's requirement for flow restrictors, despite the 
reference to that requirement in the law's statutory language. However, 
I am concerned that current ambiguity about the interaction of this 
requirement with U.S. Food and Drug Administration (``FDA'') policy 
could undermine the successful enforcement of the CNPPA.
    As part of its process to assert its jurisdiction over electronic 
cigarettes, FDA's 2016 ``Deeming Rule'' made all affected products 
introduced after the August 8, 2016, effective date immediately subject 
to the requirement for FDA authorization through the Premarket Tobacco 
Product Application process. This includes both new products and 
modified versions of previously marketed products. It is therefore 
unclear whether changes to liquid nicotine containers to comply with 
the flow restrictor requirements could potentially result in FDA 
considering the product to be a new product, requiring Premarket 
Tobacco Product Application authorization. While Congress clearly 
provided this regulatory authority to CPSC before the FDA Deeming Rule, 
I am concerned that ambiguity on the overlap of authority between the 
agencies could lead to industry noncompliance with the CNPPA's flow 
restrictor requirement, putting children at risk. In order to address 
that possibility, I would appreciate your responses to the following 
questions:

    Question 1. Has the CPSC taken any enforcement action for liquid 
nicotine containers for noncompliance with either the child resistant 
packaging or flow restrictor requirements? If so, please provide 
details on the extent of those enforcement actions.
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC has notified firms and sought corrective action when non-
        compliant products are identified.

    Question 2. Have the CPSC commissioners or staff communicated with 
FDA about the potential interaction of the CNPPA flow restrictor 
requirement and the FDA Deeming Rule?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        Yes, CPSC has communicated with FDA to discuss each agency's 
        respective requirements.

    Question 3. Do the CPSC and FDA have plans to take any action to 
provide clarity that ensures manufacturers follow the flow restrictor 
requirements in CNPPA?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        CPSC has issued guidance on the restricted flow requirements. 
        (https://www.cpsc.gov/s3fs-public/
        NoticeofRestrictedFlowTP.March82019.pdf)
Children's Cosmetics:
    A recent study by Nationwide Children's Hospital and Ohio State 
University examined injuries from cosmetics and other personal care 
product--including nail care, hair care, skin care, and fragrance 
products--to children under the age of 5 years old.
    The authors used the CPSC's National Electronic Injury Surveillance 
System to estimate that, nationwide, about 64,000 children had visited 
hospital emergency departments for these injuries between 2002 and 
2016.
    Each year, about 4300 children are treated in emergency departments 
for these injuries.
    From this analysis, we know that these injuries happen at home and 
that ingestion is the main route of exposure. But chemical burns and 
eye injuries from children spraying fragrance into their faces are also 
notable types of injury.
    In light of this study, I have a few questions:

    Question 1. What can the CPSC do to protect young children from 
harm caused by personal care products?
    Answer. CPSC staff has provided the Commissioners with the 
following response to this question:

        The definition of ``consumer product'' in the Consumer Product 
        Safety Act (CPSA) excludes ``cosmetics'' as that term is 
        defined in the Federal Food Drug and Cosmetic Act. In general, 
        cosmetics are products that are applied to the body to cleanse 
        or beautify. The personal care products specified in the 
        question (nail care, hair care, skin care, and fragrance 
        products) are likely to be cosmetics and fall under FDA's 
        authority. An FAQ page on FDA's website provides some general 
        information: https://www.fda.gov/cosmetics/resources-consumers-
        cosmetics/cosmetics-safety-qa-personal-care-products. The fact 
        that a product is intended for children does not keep it from 
        being a cosmetic. For example, FDA considers ``novelty makeup'' 
        such as face paints for children to be cosmetics: https://
        www.fda.gov/cosmetics/cosmetic-products/novelty-makeup.

        CPSC does have authority over one aspect of cosmetics. Under 
        the Poison Prevention Packaging Act (PPPA), CPSC can require 
        special packaging (sometimes called child resistant packaging) 
        for household substances, including cosmetics, if such 
        packaging is necessary to protect children from serious injury 
        or illness resulting from handling, using or ingesting the 
        substance.

    Question 2. Could product safety standards be developed that would 
reduce the risk of injury to children from personal care products?
    Answer. Yes, but it would depend on the product and the CPSC's 
jurisdiction.

    Question 3. Do you think believe warning letters are effective at 
reducing injury? Why or why not?
    Answer. I believe that the agency should use all of its tools to 
address hazards, including corrective action plans, standards, 
interagency cooperation, public health communications and academic 
research and grants.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Tammy Duckworth to 
                          Hon. Elliot F. Kaye
    While much progress was made on sudden unexplained infant death 
(``SUID'') in the 1990s, little progress has been made in reducing SUID 
over the past decade. In some high-risk groups, rates are going in the 
wrong direction. The U.S. Centers for Disease Control and Prevention 
(``CDC'') estimate that in 2017 there were about 3,600 SUID cases in 
the U.S. Many products--everything from crib bumpers, nests or pillow--
like products and sleep positioners--are made and sold to help infants 
sleep. The FDA has warned against sleep positioners and safe sleep 
advocates warn against the use of crib bumper pads. Many of these 
products meet no standard--mandatory or voluntary. The CPSC is in a 
unique position to help address the public health problem of SUID 
through its jurisdiction over infant products and opportunities to 
communicate with families, caregivers and health care providers.

    Question 1. What will you do, beyond education and awareness, to 
push CPSC to use its authority to increase safe sleep among high-risk 
families and to reduce the hazard posed by certain infant sleep 
products such as crib bumpers and other untested products?
    Answer. I have and will continue to support efforts by the 
Commission to use its rulemaking authority to propose mandatory safety 
standards to address hazards posed by products that create unsafe sleep 
environments for infants.

    Question 2. The CPSC is currently working with the American Society 
for Testing and Materials (``ASTM'') and the Juvenile Products 
Manufacturing Association (``JPMA'') on a standard for crib bumper 
pads, despite the broad view that these products are unnecessary and 
unsafe. However, rather than looking at the evidence that bumpers 
reduce the flow of air in a crib, CPSC is working on testing the 
firmness of bumpers. Are you at all worried that this will not address 
the hazard pattern and put CPSC's stamp of approval on a dangerous 
product?
    Answer. My office has produced an extensive analysis of padded crib 
bumpers.\13\ In addition, I issued a statement along with Commissioners 
Adler, Robinson and Mohorovic recommending that caregivers and parents 
not use crib bumpers.\14\ As a result of many proposals that I have 
offered during the past few years, the Commission has given direction 
to CPSC staff to evaluate and address possible requirements for facial 
conformity and airflow characteristics.\15\ A Notice of Proposed 
Rulemaking (NPR) on Crib Bumpers is due to the Commission for its 
consideration this Fiscal Year. I remain hopeful that the proposed NPR 
will address the issue of airflow as well as firmness.
---------------------------------------------------------------------------
    \13\ My policy paper on the hazards of padded crib bumpers is 
available here: https://cpsc.gov/s3fs-public/
CBStatement.pdf?dhFXWQNHUqQ2yV4xuY654JrJ3K0Towc.
    \14\ The joint statement from Commissioners Adler, Robinson, 
Mohorovic and myself recommending against the use of padded crib 
bumpers is available here: https://cpsc.gov/s3fs-public/
Joint%20Statement%20on%20Padded%20Crib%20Bumpers%20FINAL%2011.3.16.pdf.
    \15\ A copy of my amendment to the Fiscal Year 2017 Operating Plan 
is available here: https://www.cpsc.gov/s3fs-public/
MinutesCommissionMeetingFiscal2017OperationsPlan.pdf.
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