The Obama Administration has encouraged agencies to use modern media tools to reach out to the public. In response, the Consumer Product Safety Commission (CPSC) has launched its blog, OnSafety. Using tools such as a blog, YouTube, Facebook and Twitter, the agency is working hard to bring important safety messages to the public.
Since OnSafety does not provide for Commissioner or public comments, today I am launching my own blog as a complement to the official CPSC effort. I welcome comments from the public on important safety issues that are being undertaken by the agency. While I cannot promise to respond to each comment, I can and do promise to read and reflect on each. If comments collectively take on an issue or suggest a new approach, from time to time I will raise that in my blog so that we can have a public discussion on those issues.
This is an incredibly busy time for the CPSC. The agency faces ongoing complex and troubling issues as we work to protect consumers and to implement the new Consumer Product Safety Improvement Act. I am very mindful of the overwhelming challenges the new law presents to businesses, especially small businesses, who strive every day to make safe products. The agency is trying, within the parameters of the new law, to ensure safety for American families and to minimize undue regulatory burdens. Some activities driven by the CPSIA are:
• Component Testing – This issue is of immense importance to all businesses, small and large. In the guidance issued last week on what products do not need to be tested and certified as complying with the new lead standards, we acknowledged that component testing will be accepted in lieu of testing the entire product in certain instances. However, the guidance does not answer the critical question of where in the manufacturing stream can acceptable component testing be done. The agency should provide better guidance to manufacturers who need answers NOW in order to make sourcing decisions. Fashioning such a policy is one of the staff’s highest priorities.
• Periodic Testing – On a related issue, the CPSIA requires that we issue a rule setting out further testing requirements within 15 months of enactment (November, 2009). The agency will not meet that deadline in spite of best efforts to do so. This issue is extremely complex and we need additional input from the affected public before we give answers. The staff will hold workshops on December 10th and 11th to seek public participation. A Federal Register notice will be published with details about the workshop and will also provide details for those who wish to submit written comments. In addition, a draft “Guidance Document on Testing and Certification” will be discussed with the Commission at a public meeting on November 9th. See http://www.cpsc.gov for webcast details.
• Lead Exclusions – Next week the Commissioners are scheduled to vote on a petition asking for an exclusion from the lead provisions for brass–in this case, a brass axle collar to keep the wheel on a small toy car. While the staff does not see any real safety issues with the brass in this product, they also do not believe that the law gives the agency the flexibility to grant the petition. Commissioners’ debate on this petition will take place on November 4th. See http://www.cpsc.gov for webcast details.
These are just some of the CPSIA-related activities on our plate, which are in addition to our ongoing important safety issues affecting the public. One of those important issues is finding answers to the drywall problem. The agency has now released preliminary results of our scientific drywall investigations which were started last spring as a result of reports we received about of this problem. Additional scientific work needs to be done before reaching definitive answers to both the cause of the problem and solutions for homeowners.
Finally no parent needs to be reminded that today is Halloween. But every parent does need to remember that every year we see accidents to our little ghosts, pirates and fairy princesses that could be avoided with just a bit of care. Be sure to check out our safety tips for a Happy Halloween!
Conversations with Consumers 
My only question is why should small crafters, under 500 items a year, be subject to testing when all the small crafters I know, including me, buy our paints and stains from American companies? Places like Lowe’s and Home Depot or craft stores like Hobby Lobby. None of us could afford to buy from overseas companies and the U. S. companies comply with the law on lead content. Often we small crafters are just trying to supplemant our Social Security incomes. I sell at small local farmers markets church bazaars and craft shows and I always use US made finishes. Would presenting the MSDS sheets or testing information from companies whose finishes I use be acceptable in place of my testing because there is no way I can afford the testing.
Dear Commissioner Nord,
Thank you for opening this dialog with those of us who will be most affected by this law. I applaud your efforts to work within the language of the law (which can not be easy) and your willingness to keep small and medium sized businesses in the discussion.
I look forward to further discussion on this forum!
Suzi Lang
Starbright Baby Teething Giraffes
Thank you Nancy for opening a dialogue. I look forward to hearing more of your thoughts.
Dear Commissioner,
First, I applaud your effort to communicate openly, to reach out and get comments on the many critical issues we have to resolve over the coming months. This is a refreshing approach and an encouraging step toward rebuilding the trust between the business community and the CPSC.
I have several comments to share.
* Lead exclusions. It is imperative that the CPSC be given the flexibility by Congress to bring back into our thinking the notion of risk assessment in managing the implementation of the CPSIA. The brass exclusion case that you are referring to is a perfect example. Do the commissioners really want to effectively ban music instruments for young kids? This will surely make for some nice headlines in the press… I am looking forward to following the debate on November 4th on this milestone decision. I hope that with a fullly staffed commissions and both sides of the political landscape represented we can finally put the rhetoric aside and do the important business of keeping our children safe while effectively managing the many details of implementating the CPSIA. Common sense must prevail and the Commissioners have a great opportunity to show real leadership here. An admendment to the CPSIA must be pass by Congress and the CPSC must ask for it.
* Periodic Testing. I am delighted to hear that we might take more time before issuing final guidelines on this critical question. You should know that I recently resigned as a Board Member of the Toy Industry Association (TIA). One of the main reasons for my decision was the misguided TSCP program which was recently presented to the CPSC. The TSCP, like the RILA initiative, both have worthy goals: global harmonization of safety standards and the reduction of unneeded factory audits. Who would not want to support that? However, their designs are completely one-sided in favor of large businesses and retailers. Thus the combination of the CPSIA, TSCP and RILA would literally destruct hundred of thousands of small/medium size businesses with no tangible benefit from a product saftey standpoint. There is nothing new about large companies trying to increase their competitive advantage at all cost, but to see a government agency potentially participate and encourage such anti-competitive behavior is unfair, un-american, and potentially illegal. The CPSC MUST make it clear that it is not “endorsing” these initiatives but rather that it encourages everyone to meet or exceed the saftey standards of the CPSIA.
* A change of tone is urgently required. Part of what is happening in the market place is a direct result of the alarming threatening tone that various CPSC officials have used over the recent months. Large companies, the usual targets of NGOs’ and SAGs’, are now understandably very nervous with their potential liability and are thus creating new standards with zero appreciation or understanding of how small/medium sized businesses function or can sustain themselves in a very competitive market environment.
* Small/medium size businesses are not only a major source of economic force (employment and new jobs) but they are also the primary source of innovation in society. Innovation is important not just as a business concept but also as critical part of our children development process. They need colors, variety and creativity in their toys, educational products or even clothes to promote their own personal growth. Again, a risk assessment thought process is ESSENTIAL in considering the implementation of the CPSIA if we want to create the right kind of society for our children. I, for one, have no interest to be forced to buy the same boring toys with little educational value from a handful of companies at WalMart or a couple of other large outlets. I hope that the CPSC will reflect on the many dramatic implications that the CPSIA will impose on the market if implemented without discretion, an in-depth understanding of all the forces at play or a meaningful dialogue with all the industry players.
* Finally, allow me to make the point that Rick Woldenberg is one of the most valuable assets to the CPSC. I know Rick well as I have been working with him on a daily basis for five years. His integrity is absolute and his in-depth knowledge, track record and industry experience are unparalleled. I hope that you and the other commissioners will indeed consult with him on how to resolve the many questions we are facing. We discussed on many occassions, why we felt so compelled to “fight” for the right implementation at any cost. There are many answers but I thought I would share with you a real insight. Learning Resources’ mission is to provide teachers with innovative hands-on learning products and tools for the classroom that make a difference for kids between 3 and 12 year old. If the CPSIA is implemented without common sense, we will have to discontinue hundreds of perfectly safe products that are making a true difference in someone’s life and growth. That is plainly wrong and we refuse to accept this gross injustice. Be sure that we are committed to children safety and have been for more than 25 years as our impeccable track record shows.
I appreciate the opportunity you gave me and would be thankful if you could share me comments with the other commissioners and their respective staff members.
I am looking forward to hearing from you and willing to work closely with the CPSC in solving the many technical issues we are facing if we can agree on the principle of risk assessment and fairness between the various industry players.
Most sincerely,
Etienne Veber
President/CEO
Learning Resources, Educational Insights, Northpoint Horizons
It’s great to have your insider’s view of the CPSC and to be able to offer feedback. Thank you for doing this.
We MUST have some action by Congress. You already know that, Ms. Nord, and have been an advocate for it from the beginning, but somebody’s gotta make Chairwoman Tenenbaum see it. The law as written does not allow the kinds of exclusions and workarounds that Tenenbaum seems to think it does. Her tautological pronouncements (“Cotton meets the lead standard, unless it doesn’t”) don’t help us any because no tautology can be a legal pronouncement, and this kind of statement just makes her sound like an equivocating weasel who’s been promoted to the level of her incompetence.
PLEASE, if you can get her to understand one thing, make sure she knows this: it doesn’t matter how much mustard you put on a crap sandwich, it’s still a crap sandwich. You can even put capers and wasabi mayo and Asiago cheese on it and serve it on artisan bread in the finest restaurant in our nation’s capital with fluffy-ended toothpicks sticking through it, and it’s still a totally inedible crap sandwich. All her statements and rulings and notices so far have been condiments on the crap sandwich of CPSIA. She seems to have been chosen for that particular talent. Please ask her to stop piling the finest condiments on the crap sandwich and hoping that will make us eat it, and start waving it under the noses of Congress so they can smell what it’s really made of, take it away and give her a sandwich with Black Forest Ham inside instead.
Upstream testing must be allowed for small biz. We need to redefine the term “Manufacturer”. If artist buys item manufactured by other big company, and decorates item, and decorations and item have already been tested by CPSIA approved lab and is compliant, artist should not have to test same item again!!! It is a waste of everyones money and will result in small biz going out of business due to high testing costs, and consumer overpaying for final item.
First of all, thank you for starting this blog, and thank you for your candor. It is very helpful.
On the subject of component testing, please note two perplexing issues that work against the effectiveness of the new (unannounced) component testing rule. First, we are continually being asked for test reports by our customers because of their intense fear of liability under the CPSIA. Our customers want simple test reports that they can use to “check the box”. They are more interested in these test reports than in GCCs notwithstanding the clear language of the law on this topic. I fear that while the component testing rule may relieve us of a legal obligation to perform certain tests, it will not affect the other incentives in the law that drive our customers to request those tests. Their fear of liability is seemingly insatiable and their confusion over what is and is not required under the new law seems unresolvable. I do not think we will satisfy them with a heap of component tests that are difficult to reconcile to the final product. In this sense, the component testing rule promises no real relief. I encourage the Commission to take into account the real world impact (or non-impact) of its decisions and rules.
Second, the CPSIA does not create any leverage over component suppliers to provide testing if the components are not deemed “children’s products”. Thus, if we resell a package of paper clips to schools in a science kit, who will provide the component test reports? The paper clip manufacturer has no obligation to provide the test report, and probably will decline to do so. They will only provide it if they have an economic incentive to do so. In the absence of manufacturer-supplied component tests, the reseller will be stuck with the testing. For these unregulated components where the children’s market represents a small percentage of overall revenue, the component testing rule will not provide effective relief. I hope the Commission recognizes that in a complex economy like the U.S. marketplace, there are many, many such examples. Not every component will be as simple to deal with as a bolt of cloth.
Regarding the delay in the 15 Month Rule, I think the Commission is to be commended for acknowledging that a delay is necessary, and for making a concentrated effort to solicit comments before publishing such an important rule. That said, the consequences of this delay, like the ongoing delay in issuing a final phthalate testing rule, has serious consequences for operating businesses attempting to plan their 2010 activities. Like the chore of turning around the proverbial battleship, we need time to get our work done. Prompt action to extend the stay on testing and certification would be a strong signal to the business community of the CPSC’s sensitivity to their legitimate planning needs. I feel at this point it is clear that manufacturers of children’s products “got the message” about safety, so it is reasonable to assume that the business community’s commitment to broader and fuller compliance will not abate as a result of this reasonable gesture. I hope the Commission will give it prompt consideration as time is of the essence for the business community.
Regarding the brass bushings case, thank you for webcasting this important debate. We in the business community study the decisions of the Commission as precedent. The brass bushings case is expected to be a significant indicator of what we can expect in future rulings and enforcement actions. Of course, the law gives the Commission few options to exercise true “common sense” in this case. I am not personally in favor of twisting the words of the law so severely that they lose their ordinary English meaning – this just creates traps for the unwary, a bad regulatory practice that leads to unintended outcomes and random events. If the brass bushings case cannot be decided on a common sense basis by applying the ordinary English language meaning of the statute, I hope the Commission will table the decision and move to ask Congress to amend the law to permit the common sense decision you prefer to make. The law will serve everyone’s interests better if the plain English meaning of the statutory language corresponds to the Commission’s interpretation of those words.
Thanks again for making your process so transparent!
Rick Woldenberg
Chairman
Learning Resources, Inc.
Chairman
Alliance for Children’s Product Safety