Real Talk About Real Problems

As I discussed in a recent blog, the Commission 3 weeks ago sent to the Congress suggestions for amendments to the CPSIA.  Although these suggested changes were modest, they were supported by all five CPSC Commissioners and represent the agency’s first unanimous statement that changes need to be made in the law.  (Individual Commissioners made additional suggestions.) While there has been no official response to our suggestions, there has been much behind the scenes activity to try to craft some amendments to the CPSIA. 

As an example, last week, my colleague, Commissioner Northup, and I met with the staffs of a number of Republican Senators who wanted to hear firsthand about implementation problems with the CPSIA.  It is my impression that the Republican Senators represented at the meeting want the agency to be addressing safety issues actually facing consumers, not spending public resources regulating products that do not present a real risk of injury. 

In addition, the Commissioners’ staffs have been discussing our recommendations with the House and Senate Commerce Committee staff.  My sense from these discussions is that there is genuine interest in identifying some statutory fixes. The challenge of course is one person’s fix is another person’s problem.  As yet, we are not close to consensus on amendments. 

In his State of the Union speech, the President emphasized the need to create jobs.  We know that the CPSIA has been responsible for many businesses incurring tremendous economic loses and, in some cases, shutting their doors all together.  Fixing the problems with the CPSIA should be part of the Administration’s jobs program.  It appears that Congress is considering making changes to the law.  The question now is what changes will be effective.  Part of the answer to that question depends on what Congress hears from those impacted by this law.  A public hearing would help identify real problems and help craft real solutions.

Smart Move for Small Business

The CPSIA gives the agency little flexibility to ameliorate its impact on small manufacturers and crafters. However, I believe that the CPSC has a real obligation to help small businesses who are trying their best to navigate the choppy regulatory waters surrounding the CPSIA. Therefore, last week, I proposed that the agency create a full time position of small business ombudsman to provide both assistance and information to small businesses trying to understand how to comply with the law. I am pleased to report that my colleagues agreed that such a position is needed.

It almost goes without saying that the impact of the CPSIA has fallen much more heavily on our country’s small business community. In a recent issue of Product Safety Letter, representatives of the giant toy company, Mattel, described efforts to comply with the CPSIA, including the number of outside lawyers the company has hired to supplement its in-house legal staff, concluding “the law…is unclear…difficult to decipher…It’s a lot of work. I don’t know how smaller companies do it.” While I recognize that a dedicated agency resource will not equalize the disproportionate burden faced by small businesses, at least there will be a place to go for help. Our challenge now will be to get the position filled as quickly as possible.

Experience Counts

I received the following comment  on my recent blog “Conversations FOR Consumers”.   The commenter brings an interesting, real-life perspective to the discussion about third party testing, and I appreciate his taking time to comment. I would really like to hear from others who have real-life insights to share like this one. This kind of conversation is exactly why I started blogging. As Commissioners we don’t get to hear enough about how things like the third party testing requirement are working.  

One of my fellow commissioners, in a recent statement, dismissed the value of such anecdotal experience, stating that “the plural of anecdote is not data.”  I disagree with this attitude—it’s critical for us to hear from those who make and sell  products,  live with the regulations and laws coming out of Washington, and  who have to meet a weekly payroll to support jobs and families.  We need to hear your experiences and suggestions.  

Commissioner Nord,

I am a quality & compliance engineer for a small to mid sized family owned business in Virginia. We sell products in all of the major retail outlets in the US and Canada. Having experience working for a 3rd party consumer product safety laboratory and in the manufacturing sector, there are difficulties with the testing certification requirements in CPSIA, that certainly don’t add up.

Although my company has policies and processes in place, and relationships with factories that date back decades, our situation isn’t like most importers of Chinese produced goods. I am not one to point the finger at China and declare that all factories there produce hazardous products, because I know this isn’t true. However, I do understand the Chinese manufacturing culture and know first hand from past positions I have held, that if given the opportunity, many factories will “roll the dice” and ship merchandise that contains chemicals and elements regulated by CPSIA and other consumer product Act’s. Fortunately for me, I have a close knit group of factories, whose interest is in shipping safe and fully compliant products. It goes way beyond financial investment.

Where I do see the confusion is in the testing certification. On one side, components are allowed to be tested and proof of compliance available upon request. The other hand, full products are tested and proof of compliance available upon request. Either way, a test report from a CPSC approved 3rd party lab is only as good as the samples the lab received; it doesn’t always reflect what was actually shipped. Those factories willing to roll the dice will ship what they have or what is cheapest, if no one is looking. If there is no market enforcement, they will continue to do so until they are caught. This is precisely what happened with Mattel. Their factories weren’t policed prior, during or after production. They probably got away with shipping this merchandise with lead for years before the recalls.

I dont think 3rd party testing is necessarily the answer or proof that either the CPSC or Congress expects. The theory is a good one, but the execution and reliability of that theory aren’t a true reality. Of course, CPSC product procurement and testing, which results in recalls (mandatory or voluntary) and civil penalties, will have everyone scrambling to ensure a compliant product is shipped.

I think the mandates for compliance are possible; they can be met in every consumer product category, but the responsibility lies with the owner of that product; the person who imports and brands the product. They are responsible for implementing the proper systems and procedures far in advance of a production run, to ensure that no product is contaminated. No 3rd party test lab report will identify what “truly” goes on in a factory. Testing is not necessary to ship product, because it doesn’t always reflect what is actually inside of the container.

I appreciate the work you have done with the commission and I contiually look for your blog updates and have been present at several of your speaking engagements over the past several years. Keep up the good work Mrs. Nord, we appreciate you!

Crib Safety

At a hearing yesterday before the House Subcommittee on Oversight and Investigations, CPSC Chairman Tenenbaum provided an excellent overview of the actions the Commission is taking to ensure the safety of cribs. Crib safety has always been a critical priority at the Commission. From the beginning of the agency, CPSC has done important work to drive down the number of tragic deaths and injuries of infants associated with defective and unsafe cribs.

In 2007, when I was acting chairman, we recognized that we needed a system to more quickly identify emerging nursery product hazards. To do this, we established a special initiative, called the Early Warning System (EWS), which is a multidisciplinary team of technical, legal and investigative staff who meet weekly to review all incident reports involving cribs, bassinets and play yards. It is their ongoing work that has generated recalls involving millions of cribs, play yards and bassinets. In 2008, we initiated rulemaking to develop a mandatory safety standard to better address the issues we saw coming out of the work of the EWS team. As a tandem activity, CPSC staff has been working with ASTM to obtain necessary improvements to the consensus crib standard to better address issues such as durability and faulty hardware. Because of the requirements of Section 104 of the CPSIA, which call for making appropriate voluntary consensus standards mandatory under an aggressive timeline, ASTM action was needed before the agency could escalate the timeline and put in place a standard more quickly.

The success of staff’s diligent efforts to obtain necessary improvements to the voluntary crib standard enables the agency to move more quickly toward implementation of a mandatory crib rule as required under Section 104 of CPSIA. I heartily endorse the Chairman’s initiative to move up the timeline and expand the crib safety program.

CPSIA implementation requirements drove us to devote significant resources to such things as writing rules for lead exclusions, working to figure out how not to ban kid’s bikes and books and other resource intensive activities that do not relate to real safety concerns. Recently all five Commissioners requested more flexibility from Congress to deal with lead exclusions. Hopefully, such flexibility would allow us to better allocate resources to priorities such as the serious safety concerns surrounding the sleep environment for our littlest consumers.

Conversations FOR Consumers

I applaud the fact that the CPSC and Congress have entered today into a formal dialogue on what needs to be done to address serious unintended consequences of the CPSIA.  The agency report  sent to Congress today touches on several important issues and contains some very helpful recommendations. All five Commissioners believe these recommendations will facilitate more orderly implementation of the CPSIA and enhance Commission enforcement efforts.  The report:

•  acknowledges that the agency needs additional flexibility to implement the lead provisions of the CPSIA, though it does not address how that flexibility should be crafted (since we could not reach agreement on that point);
• acknowledges that books probably were not intended to be regulated under the CPSIA and suggests that Congress may want to consider addressing this issue;
• recommends that the retroactive nature of the law be repealed as the lead limits move from 300ppm to 100ppm; and
• outlines the efforts the agency has made to date to assist small manufacturers and artisans in complying with the CPSIA and states our willingness to work with Congress to address the problems small manufacturers continue to face. 

While this report is a good start, there are additional changes that need to be made and I have discussed some of those in a separate statement I filed with the report.

Congress sent a clear message to the CPSC in its recent conference agreement for the FY 2010 omnibus appropriations bill.  They expressed concerns surrounding implementation of the CPSIA.

• Congress urged the agency to continue considering exemptions that present no real risk of lead exposure for children.
  • I am recommending the scope of the CPSIA needs to be adjusted so that unintended consequences are not swept into its net in the first place. Whether by listing product categories not meant to be covered by CPSIA due to their very low risk factor, or by modifying the age limit to focus the scope of the bill on the children most at risk, either approach would dramatically increase the effectiveness of the law and decrease needless unintended consequences and burdensome regulation.

 

• Congress noted problems for small manufacturers and crafters regarding CPSIA third-party testing requirements.
  • I am recommending small manufacturers and crafters should get appropriate relief now from certain certification and testing requirements. The agency should have the ability to assure that reasonable testing by manufacturers of small volumes or some other appropriate criteria can provide assurances of safety compliance without driving them out of business. 

 

• Congress asked for recommendations for improvement of the statute.
  • Among other things, I am recommending the CPSIA should not hinder thrift shops, charities, and secondhand stores from selling used children’s apparel and other products. It’s crazy if people are not able to buy winter coats for their children at a thrift store because of the CPSIA. 

 While the report’s recommendations may seem modest to those who have been trying to comply with the CPSIA on a daily basis, please remember that this is a step forward and provides a foundation on which to build.  Filed with the report is my statement making additional recommendations.

The focus is now on what Congress will do with this information. I stand ready to help in any way that I can.

View the report sent to Congress here.

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STATEMENT OF COMMISSIONER NANCY NORD ON THE COMMISSION REPORT TO CONGRESS PURSUANT TO STATEMENT OF MANAGERS ACCOMPANYING P.L. 111-117

January 15, 2010

My fellow Commissioners and I, together with the agency’s staff experts, have been working diligently to respond to the request of Congress for recommendations on how to change the CPSIA. Our bipartisan approach has produced a report that is a good step in the right direction.  While the report identifies several recommendations with which all the CPSC Commissioners agree, it stops short of addressing all the issues that need to be considered before the CPSIA can truly become the constructive force for consumer protection envisioned by the Congress when it passed the legislation.  The law contains a number of useful new tools, many of which were requested by the agency, to better position the CPSC to act more quickly and effectively to protect consumers.  However, there are aspects of the law that limit the flexibility of the agency to act appropriately and, as a result, we have seen unfortunate, unintended consequences flowing from the law’s implementation.  I have been requesting for some time that the Congress address these problems and I appreciate the opportunity to contribute to that process.  The recommendations in the report represent a good start, but the conversation about how to fix the problems with the CPSIA needs to go further.  I have listed below some of the critical changes that need to be made to the law.  

 1.   Lead Exclusions and the Process for Granting Exclusions

 There is absolutely no disagreement over the need to limit children’s exposure to lead.  However, the language of the CPSIA is drafted so tightly that the exclusions process in the law, which Congress intended for the agency to use, is not workable.  The law limits the agency’s ability to focus on products that present actual injury or harm to children.  The CPSC scientific staff has told us that they are not aware of any product that could meet the exceptions requirements of the law and hence have had to recommend denial of each of  the petitions for exclusions that have been considered.  This is in spite of the fact that staff has told us with each petition for exclusion that the products in question do not present a risk of harmful exposure to lead.

Over the past 18 months, staff has taken thousands of hours away from dealing with ongoing, significant safety concerns to consider issues such as the following:

• Determining whether to exempt ball point pens, which have a tiny brass tip that holds the ball.  That brass tip contains lead over the statutory limit.  After much deliberation, the Commission decided that a pen that is used by both adults and children is not a children’s product and is not subject to the law but if that same pen is decorated with brightly colored cartoon characters it may fall within the reach of the law and if so, could not be sold.
• Determining that it is illegal to sell children’s products containing crystals or rhinestones which, by necessity, contain more than the statutory amount of lead and for which there is no suitable substitute.  This is true even though the lead in rhinestones and crystals does not easily leach out and even though a child could be exposed to more lead from products that meet the statutory requirements than from exposure to rhinestones and crystals. 
• Determining how to allow for the continuing sale of children’s bicycles even though some parts contain lead, e.g. the Schrader valve used to put air in the tire.  Many bicycles are made with recycled metal that also may contain lead at levels that are unpredictable and not easily controllable but which may exceed the statutory limits.  In this case, a stay of enforcement was the only way to avoid an unacceptable regulatory result – banning children’s bicycles – flowing from applying the statute to this product.
• Determining that a brass collar and other brass components of die-cast toys are prohibited even though staff reported there is no real risk of harmful lead exposure.  The implications of this decision for other products containing brass, not only those in the home, but also in our schools – such as desk hinges, locker handles and coat hooks – are significant and far-reaching.

 The agency needs flexibility to deal with products that contain lead over the statutory limits but which do not present a risk to children.  The Congress specifically asked the agency to look at risk and exposure in crafting a solution to this problem.  To solve the problems we have had in applying the exclusions language of the current statute, Congress needs to give the agency the flexibility to look at whether there is a real risk of lead exposure based on the child’s interaction with the product and the extent to which that interaction results in a measurable increase in the child’s blood lead levels, rather than the absolute language that is now in the statute.  This would address the conferees direction to look at risk and exposure and the many concerns expressed by individual members of Congress, including primary sponsors of the law, who have indicated that they thought the statute contained this flexibility.  As we do this analysis, it is important to look at how other jurisdictions and agencies address lead exposure so that we consider consistent requirements where appropriate.

In addition, additional thought should be given to the scope of the law.  There are certain products – most toys and children’s metal jewelry, for example – that warrant aggressive regulation with respect to lead.  There may be others – books, educational products, sporting equipment and apparel, for example – where there is less concern.  Congress should either write the law specifically to spell out what they want included and excluded, or they should give the agency sufficient flexibility to regulate appropriately.  This could be done either by product category or by age.  With respect to age, the agency has extensive experience in dealing with the ways that children of different ages interact with consumer products.  The CPSIA does not allow flexibility for the agency to utilize this expertise.  It treats all children – infants to pre-teens – the same, and, as a result, our regulatory decisions cannot be tailored to meet the requirements of the age of the child and thereby apply the most effective solution for the greatest risk and exposure.  Lowering the age requirements of the statute and making clear the agency’s ability to regulate upward as safety circumstances warrant, would go a long way to solving many of the problems in the law and keeping the agency’s resources focused on providing real protection for consumers.

2.   Testing and Certification/Small Manufacturer and Crafter Concerns 

 The agency and the Congress have heard from many small manufacturers and crafters that are being severely and adversely impacted by the CPSIA.  Indeed, a website has been established that tracks the demise of businesses attributed to the law.  The testing and certification requirements are at the heart of the complaints being made by small manufacturers and crafters.  The agency has worked hard, within the confines of the statute, to deal with the issues small manufacturers and crafters are facing as they struggle to meet CPSIA’s requirements, but our options are limited.  Our report points to the guidance booklets we have published, the component testing enforcement guidance and possible regulatory relief in the so-called ‘15-month rule’ dealing with frequency of ongoing testing.  It is not clear that the problems small manufacturers and crafters are having now can be adequately addressed with more education, a policy on components that is still unimplemented and unproven, and by the promise of future regulatory action, months from now, that treats only part of the problem. 

While independent third party testing is the most robust way to provide assurance of compliance, it is also the most costly and least efficient.  The requirement that all children’s products be third party tested has raised the cost and added to the complexity for many small producers of children’s products.  The application of this requirement to handcrafted products made by individual artisans has raised serious concerns about their continued viability.  While we hope that our component testing enforcement policy will address some of this concern, we have been told that this is not a panacea and more must be done.  In addition, small producers face higher testing costs, are receiving conflicting information from testing labs about what must be tested, and are facing barriers from retailers who are requiring redundant testing or additional testing to be done by laboratories they specify, often at prohibitive cost. 

Given all this, Congress should consider whether child safety can be served by other testing alternatives that will assure adequate compliance testing without the cost and complexity of third party testing.  Specifically, the agency should have the ability to establish, by rule, alternative testing requirements for certification under section 102 of the CPSIA for manufacturers based on small volume or other appropriate criteria, as long as the requirements provide for a reasonable testing program and such other provisions as the Commission deems necessary to provide reasonable assurance of compliance with underlying consumer product safety rules.

 3.   Retroactivity

 The report’s recommendation that retroactivity not apply when the lead provisions of the statute transition from 300 ppm to 100 ppm is the minimum that must be done to address the significant losses that businesses have incurred because of the retroactive nature of the statute.  The problems with retroactivity have been exacerbated by retailers who have required the lower limits ahead of their implementation dates in the statute, stranding safe inventory that cannot be sold.  Although it is unfortunate that a recommendation could not have been made and acted upon a year ago to forestall the economic losses that have already been suffered, it is imperative that it be implemented as soon as possible.

We are seeing the same phenomenon occur with respect to phthalates, where the testing process to determine the presence of phthalates is much more difficult than is that for lead.  The CPSIA permanently banned three types of phthalates and banned, on an interim basis, three other types until more health data could be assembled and analyzed.  A Chronic Hazard Advisory Panel is being convened according to the timetable set out in the CPSIA, to look at the health effects of the various phthalates banned on an interim basis by the statute.  The Commission is trying to define the universe of products to which the phthalate ban is applicable, is still working on a test method to determine the presence of phthalates in those products, and has not yet approved a laboratory accreditation process.  Unlike lead, there is no screening test to more easily determine the presence of phthalates.  It is unreasonable to require that retailers and resellers either face potential liability or go back through their inventory to try to determine the presence of phthalates when we do not even have a test method in place, putting aside questions of testing practicality and affordability.  Congress should consider clarifying that this provision will not apply in a retroactive manner.  At the very least, retroactivity should apply only to the three permanently banned phthalates. 

Finally, the recommendation with respect to retroactivity does not go far enough since it does not treat sales by charities, consignment shops and other resellers.  For example, we have been told that many of the charities are not selling children’s apparel because of the potential liability imposed by this law.  Obviously, it is crazy for people not to be able to buy their children winter coats or boots at a Goodwill store or at a yard sale.  Yet that is where the CPSIA leads us and I doubt Congress really intended this result.  The agency has an excellent working relationship with charities such as Goodwill and the Salvation Army, and our regulation of these groups should focus on stopping the sale of recalled products.  Congress should act to assure that the products parents need to buy are available in the resale market. 

Conclusion

This statement is not intended to be a comprehensive description of all the implementation issues we have seen with respect to the CPSIA. I have focused for the past 18 months on the major challenges we have faced in implementing this law.  As Congress reflects on the implementation issues presented by the CPSIA, there are a number of other things – both technical and substantive – that should be considered, including coordination with the state attorneys general in enforcing the law and issues related to improving the agency’s database. 

Please be confident that the Commission shares the commitment of the Congress to assure American families that products on store shelves do not present an unreasonable risk of injury.  These recommendations are given in the spirit of finding a path forward that, while minimizing unnecessary regulation, assures parents that the products they buy are as safe as possible for their families.

Sunshine Doesn’t Shine Through Closed Doors

Congress has directed us to report back to them by January 15, 2010 on ways to minimize undue impact on small business with respect to testing and certification requirements; consider risk and exposure of children to lead when considering exemptions; and asked for our recommendations for changes to the law. The way in which the Commission is now developing these recommendations, however, is not a win for the public. This is because the Commission voted at its public meeting yesterday to adopt a ‘closed door policy’ rather than meeting in open to discuss recommendations. The debate was interesting. Some reasons given for the ‘closed door’ approach: this is a routine report and does not warrant public debate; one-on-one conversations can do all this; public meeting discussions will just be grandstanding speeches.

Ask yourself: can five people gain the same knowledge through only individual conversations as they can if they add a team dialogue where everyone hears everyone else’s comments and exchange of ideas? The five-member Commission has taken the ‘open door’ team meeting approach time and time again on individual issues related to the CPSIA and yet now, when it is time to look at CPSIA issues and make recommendations at the request of Congress, the Commission chose to be non-transparent and to splinter off exclusively into one-on-one conversations. Don’t get me wrong: private one-on-one conversations have a benefit, but they don’t have the benefit of an open group review and analysis. It’s hard to have a meeting of the minds, if the minds don’t meet.

On an issue as critical as the implementation challenges of the CPSIA, the public has a right to hear and understand each Commissioner’s views and rationale for the positions they will now have discussed only in closed offices. Yesterday the Commission, by a 2-2 vote, failed to follow the essential goal of The Sunshine Act: to have important government policy decisions debated, deliberated, and decided by the Commission in a public meeting so all can understand. Our deliberations will now be done behind closed doors, without allowing each Commissioner the benefit of a combined conversation, without allowing the public the benefit of knowing how the Commissioners came up with their final recommendations.

There’s a reason quality teams discuss issues as a team, not just through staff. A quality team meets as a team to gain from their combined dialogue based on their combined experience and expertise. It’s a shame that just won’t happen here, at one of the more important moments in dealing with one of the most important consumer statutes.

CPSIA gave the agency important tools and new responsibilities. However, it also created a number of unintended consequences that many Members of Congress now agree need to be addressed. I’m concerned about our report back to Congress. The CPSIA has many good provisions and I want only to improve it. I hope it does improve and I will be working hard, albeit behind closed doors, to try to assure that it does.

Want to talk about CPSIA protection for consumers? If you’re a consumer, we can talk anytime, anywhere. If you’re a Commissioner, guess I’ll be talking with you privately.

Watch the webcast here. Click on ”Commission Public Briefing/Meeting (Wednesday, January 6, 2010, 9:00 a.m. – 10:00 a.m. ET).”

“Sit, Stay.”

Today the Commission is taking very significant action to further implement those provisions of the CPSIA dealing with testing and certification.  In the agreed-to Federal Register Notice (see CPSC website), we are setting out a schedule for lifting the stay of enforcement we adopted in February, 2009.  This action impacts a number of different products in a number of different ways.  However, the action that will be of most interest across industry lines is our decision to extend for one additional year, until February 10, 2011, the stay on testing and certification to the lead content standards. 

The stay was needed because the deadlines set out in the CPSIA were wildly unrealistic and their enforcement would have resulted in even more chaos in the marketplace than we have already seen over the past year without increasing safety.  Since the stay of enforcement did not negate the need to comply with the underlying requirements of the law, it provided relief to regulated industry without impacting consumer safety.

The stay was adopted so that the Agency would have the time to issue guidance and rules addressing what products must be tested, when testing is required and how it is to be conducted.   Even thought agency staff has been working diligently, the issues presented are extraordinarily complex since the statute basically requires a reordering of the manufacturing processes for a vast number of industries.  As a result, and in spite of our best efforts, many of those foundational rules are still under development.  They must be finalized and given a chance to be absorbed by impacted industries before we lift the stay with respect to lead content testing. 

Over the next year we must define what is a children’s product since that will determine what products are subject to independent third party testing.  Component testing offers the potential for reducing the cost and burden of the third party testing requirements while still addressing our concerns for safety.  Therefore we must put those rules in place and assess whether component testing actually works to relieve the significant cost burdens the law places on small manufacturers and crafters.  Finally, as Chairman Tenenbaum recognized at our meeting yesterday, we must adopt the “15 month” testing rule and allow adequate time for industry to implement it and that this action is a prerequisite for lifting the stay on lead content.  I agree with the bipartisan majority on this.

The agency will need to work aggressively to complete this regulatory schedule within the next year.  I stand ready to assist as our staff of seasoned (but severely overworked) professionals steps up to this challenge.  I call on industry and other impacted stakeholders to help us accomplish this task and actively participate in the comment process. 

Last but not least, it is important to note that our action extending the stay for lead content comports to the Congressional direction recently given us to minimize the burdens imposed on small businesses especially with respect to the enforcement of the lead provisions of the CPSIA.  The entire commission is directed to come forward with suggested changes to make the CPSIA work better. Keeping the stay in place is in keeping with Congressional direction, and is keeping further unnecessary chaos from implementation of the CPSIA.

“Secret Santa”

In the spirit of the holidays, Congress has given the CPSC several gifts which we are now unwrapping. But as is sometimes true at holiday time, the Congress did not get the gift request quite right. On the positive side, Congress is promising the agency additional funds. Like all federal agencies, we want and will gratefully accept every new dollar we can get for consumer safety.

However, this past weekend, we also were given two additional “gifts.” The first is a pending amendment to the CPSIA which contains a narrow exception from the lead provisions apparently designed to aid the ATV, bicycle and book industries. While the amendment is less than clear legislative drafting, with its passage, Congress does acknowledge, for the first time, what many of us at the agency have been saying for many months–the inflexible nature of the CPSIA has limited the ability of the CPSC to minimize the unintended consequences of the law–hurting product sellers and limiting consumer choice while not advancing safety. This amendment was drafted in a closed and partisan process, without input from relevant stakeholders and its shortcomings reflect this flawed process. However, in the spirit of the season, let us hope that this is a first step in correcting the problems with the CPSIA.

The second “gift” is a direction from the Congress to consider the impact of the testing and certification provisions of the law on small businesses, to consider exemptions from the statute where there is no real risk of lead exposure to children and to present to Congress by mid-January, 2010, recommendations for ways the statute could be improved. I hope that all Commissioners will be part of this process. At a recent Commission meeting, my colleague, Commissioner Northup, and I raised the possibility of writing to Congress about the need to give the CPSC more flexibility. While the Commission failed to reach out to Congress, Congress has reached out to the Commission, thus giving us the opportunity to work together to craft something that improves safety for the American consumer, and that would be a gift that keeps on giving.

…repeat: testing 1,2,3…

As every business that sells products in the U.S. should know, the CPSIA puts in place “bright line” standards for lead and phthalates, mandates a number of other safety regulations, and requires that product sellers show compliance by following prescribed testing and certification procedures.  Sellers of children’s products must do this testing at CPSC approved independent third party testing laboratories.  The statutory deadlines for these requirements proved to be unrealistic and to forestall chaos in the marketplace, the CPSC, in February 2009, stayed enforcement of the testing and certification requirements for a number of types of products for at least one year  (February 2010) and until the Commission affirmatively votes to lift the stay.   At its meeting this morning, the Commission began a public discussion of a timeline for lifting the stay and implementing the testing and certification requirements of the CPSIA. 

A critical part of the discussion of testing and certification involves how we are going to treat component parts used in children’s products (remember that children’s products must be third party tested) when those component parts are not themselves children’s products.  We now have under active consideration an enforcement policy for lead paint and lead content that would allow certification based on component part testing.  Component part testing could work in one of two ways:

• First, a children’s product manufacturer could send component samples out for testing at a CPSC approved third party lab.  As an example, a children’s garment manufacturer could send samples of buttons out for testing and then use those buttons on all garments that it makes. 
• Second, a children’s product manufacturer could rely on a certificate from another person certifying that the component had been third party tested and met the lead limits.  As an example, a home-based producer of little girls’ dresses could go to a local hobby store and purchase buttons certified as having been third party tested by a CPSC approved lab.

 

We anticipate that smaller manufacturers, specialized producers and crafters will find the second option of use.   However, since there is currently no requirement that components be tested, the question arises as to how long it will take for market forces to produce components that are being third party tested on a voluntary basis.  Without this general availability of tested components, our vision to maintain safety while relieving some testing and certification burdens, will not be realized. 

The answer to this question also will inform us with respect to when to lift the stay for lead content.  If we lift the stay prematurely, then the chaos we were trying to forestall a year ago will still be at our door.  In this case, consumer safety will not be advanced, consumer choice will be curtailed and businesses, especially small businesses, will suffer unduly. 

The Commission’s discussion on these issues was webcast and I recommend that anyone interested in this issue watch the webcast.  On December 10 and 11, CPSC will be having workshops to better inform the agency on these and related issues.  Though registration for attendance is closed, you can view the proceedings on CPSC’s website.

I would welcome feedback from you on what other actions the Commission can take to make component testing a useful tool for ensuring safety while lessening the testing burdens imposed by the CPSIA.

“Incredible India” meets the CPSIA

The philosopher George Santayana wrote: “If we do not learn from the mistakes of others, we are bound to repeat them”.  With that in mind, this week I am in India talking with apparel, textile and footwear manufacturers and exporters about the challenges of the CPSIA.  As exports to the U.S. from India continue to grow, Indian manufacturers are determined not to repeat the experiences of their counterparts in China. 

I have made several speeches about the new law and held meetings to discuss its requirements with apparel and other business representatives in New Delhi as well as in Chennai, which is the center of the Indian leather industry.  I also met with representatives of several Indian consumer organizations.

Indian exporters are aware that there is a new safety law in place in the U.S. but know few of the details. My task here is to explain to them both the requirements of the law and the reasons behind it — and that is no easy task.  Like those in the U.S., Indian apparel and footwear manufacturers view safety as a core value.  However, I have heard the point made repeatedly that manufacturers make products to the specifications they are given by those importing products into the U.S.  This emphasizes the key responsibility of those U.S. companies who source their products overseas.   Safety and quality assurance must be integrated links in the entire supply chain. 

Like their U.S. counterparts, the Indian businesses with whom I have been talking are very anxious about the testing and certification requirements in the new law.  They are concerned about both the cost and availability of testing laboratories.  They need the CPSC to clarify testing and certification requirements as early as possible and in a manner that minimizes burdens and gives them plenty of lead time to adjust to those requirements.  In this respect, they are no different from their U.S. counterparts.

Many manufacturers here were unaware that the new law now calls for non-complying imported products to be destroyed rather than be re-exported.  One of my core messages to them:  the CPSC wants to work with them to help them get it right to avoid violations. 

The challenges that U.S. companies face in complying with the CPSIA are shared by businesses around the world that make and export products to the U.S.  In this world, what goes around does indeed come around.  And we want it made with safety in mind.