Commissioners Will Look at Imports and Recall Cards
Next Wednesday, CPSC will begin what Chairman Inez Tenenbaum has characterized as a return to a long-lapsed practice of regular commission hearings. Topic will include a recent Government Accountability Office (GAO) report on import safety, the substantial hazard status of drawstrings and hair dryers, and the registration card project. See the current CPSC Public Calendar for more information on the hearing. Meanwhile, here’s what our premium sister service, Product Safety Letter, had to say recently about the GAO report and the registration card project, both of which were prompted by the CPSIA:
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The Government Accountability Office’s (GAO) August 14 report on CPSC’s import safety activity has three recommendations for the agency: ensure speedy CPSIA implementation, enhance its ability to target problem shipments, and update its strategic plan. Section 225 of the CPSIA mandated the study. The congressional office urged these steps after concluding that although CPSC’s potential effect on import safety is great, the actual effect is less due to competing priorities, constrained resources, limited presence at U.S. ports, and Customs and Border Protection (CBP) pressure to move shipments quickly through ports.
GAO points to the Food and Drug Administration and the U.S. Department of Agriculture as similar government agencies with “more robust border surveillance activities than CPSC because they obtain more data on incoming shipments, have more staff working at U.S. ports, use more developed programs to target risks, and use information technology systems that are integrated with other agency-based and CBP systems to effectively leverage their enforcement priorities with CBP.”
CPSIA Implementation: GAO suggested that important issues, besides generally completing rulemakings prompted by the law, include establishing a substantial product hazard list and implementing the testing and certification requirements that are under an enforcement stay until February 2010 (PSL, 2/2/09, p. 1).
Targeting Problem Shipments: The congressional reviewers urged that CPSC update its agreements with CBP to clarify each agency’s roles and to resolve any data access problems. They also suggested that decision making and risk analysis would be improved if CPSC were to work with Customs to improve the tools for reviewing advance shipment data and to incorporate into these tools the data obtained in surveillance and international outreach activities.
Updating the Strategic Plan: The office recommended that CPSC include consideration of the impact of greater port surveillance on the U.S. economy and whether enough staff are available at the ports. It also urged that CPSC’s Office of International Programs and Intergovernmental Affairs work with other governments to educate about standards and best practices and to develop international product safety frameworks. CPSC August 25 will hold a hearing at its Bethesda, Md. headquarters on its agenda, priorities and strategic plan. It is seeking public input. See the August 11 Federal Register to learn more.
CPSC goals for fiscal 2010 (begins October 1, 2009) include screening 1,800 samples of suspect imports, revising its compliance policy guide to reflect its import surveillance procedures, cross-training with other federal agencies on identifying hazardous imports, evaluating its efforts with Customs, conducting outreach and training efforts with those who import into the U.S., and other plans (PSL, 5/25/09, p. 4).
CPSC June 29 said it will consider whether retailers, private labelers and distributors can take responsibility for the recall registration programs under CPSIA section 104 rules for manufacturers of durable nursery products. In its notice of proposed rulemaking for that section (see the June 29 Federal Register), the agency explained,
“Neither the CPSIA nor the proposed regulation requires the retailer of a durable infant or toddler product to establish or maintain a registration program. The Commission recognizes that, in some instances, a retailer may be the direct importer of a product and/or may be the only contact in the United States. In such circumstances, it may be most effective for the retailer to collect registration information and notify the consumer in the event of a recall or safety alert. While the Commission is not proposing to require retailers of durable infant and toddler products to conduct a registration program, it is considering whether any final rule based on this proposal should expressly allow other parties, such as retailers, distributors or private labelers, to establish and maintain a registration program. The Commission is interested in comments on whether and how it might allow a private labeler or retailer to assume the responsibility to establish and maintain a registration program, particularly when a product is produced by a foreign manufacturer and imported into the United States.”
The definition of a durable infant product is not yet firm, but the agency showed how it is thinking. It pointed to a Department of Commerce definition of durable good: “Tangible products that can be stored or inventoried and that have an average life of at least three years.” It said that the “economic opposite” also gives clues, noting, “Nondurable goods [is] a category that includes such items as food, clothing, drugs and services … Thus, clothing, blankets and such textile products would not be considered durable.”
Section 104 does give a list of examples of such products, and the agency explained that considering this list in the context of ASTM subcommittees gives further indication of what will be covered. It wrote, “While a changing table is not listed, it is similar to other nursery products such as cribs and cradles, which are listed, and is under the same ASTM subcommittee (F15.18) as cribs, toddler beds, play yards, bassinets and cradles.”
On the other hand, observed CPSC, “Some other types of products, such as sports equipment, playground equipment, or toys would not appropriately be considered durable infant or toddler products. These are broad categories of products that are not like the nursery-type of products specified in the examples.”
Some products, like infant slings, may prove troublesome. Are they textile product and thus nondurable goods, or are they infant carriers, which are listed in section 104? CPSC also would exempt items that already are covered by similar NHTSA recall registration rules, such as infant carriers that also are elements of child safety seats.
The Federal Register notice (comment by September 14) also gave a mockup of a possible registration card. CPSC would require that the cards comply with text and format requirements, be in English, be attached to the product so consumers are likely to notice them, bear the manufacturer’s name, have an internet option, and include a privacy statement. Juvenile product manufacturers in June (PSL, 6/29/09, p. 1) urged CPSC staff to be sure to address design flexibility and consumer privacy. Commissioners voted to move on the rules a week earlier (PSL, 6/22/09, p. 1), and Thomas Moore praised the activity as a return to recall effectiveness as a formal CPSC project.
Design flexibility and consumer privacy concerns need to be addressed to make consumer registration cards for children’s products more effective, juvenile product manufacturers said in a meeting with CPSC on June 25. Presenting to Compliance Director Gib Mullan and other CPSC staff, the group offered suggestions aimed at ensuring more cooperation from consumers and making it more cost effective for manufacturers.
Among the recommendations were having some amount of flexibility in card design to accommodate manufacturers’ needs; including privacy statements on the cards to assure consumers that the information collected would be used for recall purposes only, and promoting online consumer registration.
Erika Jones, of Mayer Brown and the regulatory representative of the manufacturers, urged that CPSC adopt some of the guidelines listed by the National Highway Traffic Safety Administration (NHTSA), which mandates that manufacturers of car seats for toddlers provide standardized postage-paid registration cards to consumers. They can be filled in freehand and returned by mail. Alternatively, consumers can register online.
A NHTSA study shows that the average return rate of registration cards increased from 3% to 27% after registration cards were made mandatory. “We have seen that the NHTSA regulation is well-established and working well,” Jones said.
For card design, Jones recommended using the NHTSA guidelines and to allow for some flexibility so that manufacturers can use the cards for more than one purpose. The team also asked CPSC to include more stringent and clear definitions of products under Section 104 to avoid ambiguity among manufacturers.
Under CPSIA section 104, manufacturers of children’s products will be required to provide standardized registration cards to consumers for ensuring effective product recalls. Commissioners last week voted to move forward toward a rulemaking for the cards. Acting Chairman Thomas Moore’s comments on his vote (PSL, 6/22/09, p. 1) included that he was pleased that the action was raising recall effectiveness above an informal CPSC action, where, he said, it had set since the commission in 2003 denied a petition seeking such cards. The agency made Commissioner Nancy Nord’s comments available after the previous PSL deadline. Highlights of her views include:
“Is the scope of the requirement adequately described? The legislation defines the requirement for registration cards and permanent labels by including a non-exclusive list of examples of products that are covered. Are the other products that fall under the requirement well understood or do we need to define the scope with more specificity? If so, how do we do that without excluding products that should be included?
What issues are raised by the mandatory on-line registration requirement, especially with respect to small business? The law requires that manufacturers of durable infant and toddler products have an on-line presence in order to sell their products. This is perhaps one of the first examples of Congress forcing technology on a company that sells products to the public. While I recognize that many small business people are innovators in their use of technology, I am also concerned that there may be smaller, regional companies or artisans who make these products but who do not have a web presence and therefore may not be able easily to set up a mechanism for managing product registrations on-line in addition to off-line registrations. Nevertheless, the law seems to require this result. We have tried to address this by requiring an email address (rather than a web site) which may or may not be adequate to meet the requirements of the law.
The apparently duplicative labeling requirements of Section 104 for durable infant and toddler products and the tracking label requirements for all children’s products, including durable infant and toddlers products needs further thought. Information specified in the law must be permanently affixed to the products covered by Section 104 but this information and more needs to be included on tracking labels required by Section 103. I am especially interested in hearing suggestions on how these labeling requirements will work without imposing undue burdens, especially on smaller manufacturers and importers.”
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