June 10, 2009

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By Product Safety Letter staff

Inez Tenenbaum’s confirmation hearing before the Senate Commerce Committee is set for June 16. President Barack Obama June 9 sent the Senate her nomination to be CPSC Chairman and Robert Adler’s nomination to be a fourth commissioner. There is no word on Adler’s hearing. Obama in May announced his intention to nominate the two, signaling that he would return CPSC to a five member panel as provided by the CPSIA. The fifth, as-yet-unnamed commissioner will be a Republican under CPSC rules.

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Expect Tenenbaum’s hearing – at 10:30 in the Senate Russell Building – to focus on CPSIA implementation. Other topical issues that might be on Senators’ minds are the Chinese drywall problem; the Virginia Graeme Baker pool law, which has seen much media attention recently as the swimming season starts with many pools unready; and CPSC’s decade-plus upholstered furniture rulemaking, which last weekend was the focus of a series of articles (1, 2, 3, 4) in the Charleston (South Carolina) Post and Courier. Tenenbaum is from that state.

As well, CPSC just issued a Federal Register notice seeking comment on updating its Strategic Plan for Fiscal 2011 (begins October 1, 2010), and that might provide fodder for Senators' questions.

As for the CPSIA, a March response from CPSC staff to a letter from Rep. John Dingell (D-Mich.) provides a starting point for questions. Staffers urged three main changes to the law:

• Retroactivity: “Limit the applicability of new requirements to products manufactured after the effective date, except in circumstances where the Commission decides that exposure to a product presents a health and safety risk to children.”
• Children’s Product Definition: “Lower the age limit used in the definition of children’s products to better reflect exposure and give the CPSC discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.”
• Discretion: “Allow the CPSC to address certification, tracking labels and other issues on a product class or other logical basis, using risk-assessment methodologies, to establish need, priorities and a phase-in schedule.”

Other highlights of the CPSCers’ reactions include:

• Resources: The CPSIA is not the only new law CPSC is handling, so resource pressure is compounded by the Virginia Graeme Baker Pool and Spa Safety Act and the Children’s Burn Prevention Act. Three examples of areas that are especially resource heavy are 1) the need to process lab accreditation applications; 2) the need to refine guidance on the phthalates limits, especially related to testing methods and compliance questions dealing with chemistry; and 3) engineering and water-quality issues raised by the pool law.
• Deadlines: “The deadlines mandated in the CPSIA have jeopardized our ability to meet Commission priorities and proven to be too much for a relatively small agency to handle all at once,” wrote staff. Moreover, on top of the 40 actions mandated by the law, CPSC must take many other steps that were unanticipated, such as settling on the definitions of toy or childcare products (PSL, 3/16/09, p. 1) before completing each action. “Each of the various initiatives in the Act … will require significantly more time to implement than anyone originally anticipated. Having all of that done simultaneously would have taxed the agency even if we had been given additional funding from the start.” Staffers urged two solutions: 1) use of risk assessment to establish priorities; and 2) extending certain deadlines, especially related to retroactive application of rules to industries that had not anticipated being subject to provisions, such as ATV makers or book sellers.
• Negative Impact: “CPSC staff does not have data on the total value of impacted inventories, lost sales, disposal costs, and other costs likely to be incurred by small manufacturers because of the CPSIA; however, information of an anecdotal nature, that has not been verified by CPSC staff, puts the impact in the billions of dollars range.” Staffers pointed to some industry estimates: Motorcycle Industry Council ($1 billion); American Chamber of Commerce in Hong Kong for children’s wearing apparel ($300 million); “a major mass retailer” ($1.4 million for testing and $30 million in lost inventory); the Toy Industry Association via the Wall Street Journal ($600 million in lost inventory). CPSC staff also estimate that third-party testing will cost “several hundred dollars to several thousand dollars” per product and $50 to $100 per component. It highlighted one estimate of approximately $14,000 to test 233 components at $50 per component.

  Moreover, “retailers continue to move well ahead of the deadlines established in the CPSIA. For example, it is staff’s understanding that Wall-Mart stopped receiving product with more than 300 ppm lead in January 2009.” The 300 ppm limit is not mandated by law until August 2009. Staff suggested that having the ability to apply “risk-based assessments that consider age and exposure” would help CPSC deal with these issues.

• Small Businesses: “Recognizing that the Commission always has the ability to take action to address unsafe products in the marketplace, Congress could take many different approaches to mitigate the effects on small businesses. Congress could apply the new lead and phthalates limits prospectively to mitigate the impact on inventory existing prior to enactment. It could allow for a more flexible exception process based on balancing risks against the burdens of the costs of testing and certification but that could overburden staff. Another option would be to allow the Commission the flexibility to decide what children’s products require testing and certification.”
• Second-Hand Sellers: “The major problem for second-hand stores and other resellers is that the CPSIA prohibits the sale, distribution or export after February 10, 2009, of any children’s products exceeding the applicable lead or phthalate limits regardless of when they were made. Second-hand stores are typically selling items that were manufactured years earlier … Unlike other retailers, resellers generally have little or no control over the compliance of the goods they obtain. Most are donated. Even where they have regular donors, resellers cannot practically establish specifications for children’s products as major retailers can for their regular suppliers.”

  CPSC staff recommended that Congress adjust the retroactive application of the law’s rules against selling products that do not comply: “A law like the CPSIA that outlaws sales of previously lawful products will, by its nature, hurt retailers more than manufacturers and hurt resellers even more than other retailers (given the fact that products are typically in consumers’ hands for several years at least before they reach second-hand stores).” Staffers asserted that it would be most effective to deal with retroactivity “across-the-board,” but if not, then Congress should consider special provisions for second-hand sellers, such as a later effective date or even exemption. Congress could mitigate the risks in such cases by requiring labels or other point-of-sale warnings for products that were made prior to the limits’ effective dates.

• Age Limits: Staffers noted that Congress set the age for defining toys and children’s products high – at 12 years and under – to address the “common toy box problem” by which younger children have access to their older sibling’s toys. The problem has been the unintentional application to items like books and ATVs. CPSCers would like the ability to apply the provisions by product class through considering issues such as the likelihood of exposure and the routes of exposure.
• Motorized Vehicles: “The possibility that children will suffer significant lead exposures from these classes of vehicles appears to be remote at best. First, the vehicles are generally stored outside the home, where younger children would rarely be allowed unsupervised access. The vehicles are generally designed for children of at least 6 years of age or older. These children are far less likely to ingest or mouth components of a motorized vehicle.” Even where there is some exposure – from touching an item and then eating without washing hands for example – “this type of exposure is not likely to result in significant absorption of lead.” Staffers warned that applying the lead bans to youth ATVs could push children to ride adult units where they “would face a far graver and more immediate risk than that of the possible lead exposure.”

  They urged five possible solutions: 1) postponing the sales deadline, 2) lowering the age limit on a product-by-product basis, 3) exempting certain children’s products, especially those not kept in homes, 4) giving CPSC discretion to deem that products or materials pose little or no risk so as to exempt them, and 5) extending the special treatment given to components in electrical devices to other products “when the justification is equally compelling.”

• Books: Book manufacturers said they were unaware that the lead provisions would apply to their products until retailers began asking for certification of compliance, per title in some cases. Staffers said they have not had the time or resources to review the issue comprehensively. Moreover, the retroactively issue is affecting the sale and library loaning of books made prior to 1985. CPSC staff urged lowering the age limit to books intended for children much younger than 12 years to the age group likely to ingest them.
• Discretion: “The breadth of the statute’s reach has made it difficult for the Commission to address industry specific concerns in the few areas where the agency has discretion. The Commission needs room to address toy industry concerns separately from those of the apparel industry, from those of the publishing industry, and separately again from those of industries that make outdoor product for children such as motorized recreational products, playground equipment and bikes. The lead limits and testing and certification provisions could be implemented much more smoothly if the Commission had the discretion to roll out those requirements on a product class basis. The same will be true for tracking labels where each industry has specific concerns about how additional labeling requirements will work given existing and multiple other labeling requirements.” The staffers rejected as too-costly and time-consuming proposals that would allow the agency to give company-specific relief for technically unfeasible requirements.

  They concluded, “The CPSIA forsakes the core strengths of the CPSC’s original statutory framework which has from the beginning allowed the Commission to prioritize its regulation of consumer products by an overall assessment of the risks at stake, the magnitude of those risks and the actual consequences of the hazard. Congress should permit the agency to exempt certain products from the limits established by the CPSIA, to ease the burdens of testing and certification on products unlikely to present more than a negligible health risk, and to regulate on a timetable influenced by the seriousness of the actual risks not artificial deadlines … Given that exceptions would be made on a notice and comment basis, the underlying analysis and support for exceptions will be public allowing for transparency and accountability … Relaxing … deadlines … will allow for better priority setting, which will allow … resources to be put towards the most serious health risks first.”

Portions of this article appeared in the March 30, 2009 edition of our premium sister service, Product Safety Letter. It is just one of the hundreds of similar stories that subscribers read over the course of an annual subscription. Subscription information is here.