July 23, 2010

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By Product Safety Letter staff

A debate ensued earlier this month among CPSC members about how far the commission should go in mandating third-party testing. The disagreement centered around a unique term used in the CPSIA: children’s product safety rule. What does that mean? Commissioners Anne Northup and Nancy Nord contended that it is a special kind of rule that targets children’s products – items primarily designed for children … things like cribs or toys.

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Not so, said Chairman Inez Tenenbaum and Commissioner Robert Adler. The CPSIA, they said, defined the term in a way that sweeps up children’s versions of any products that are subject to a consumer product safety rule. Thus with Commissioner Thomas Moore joining Tenenbaum and Adler, they voted 3-2 to approve lab accreditation requirements for third-party testing of children’s rugs and carpets and of vinyl plastic film in fabric in children’s products – even though the flammability rules in both cases are the same for adults and children’s versions.

Our premium sister service, Product Safety Letter carried two stories on the disagreement in the July 5 and July 12 editions. Because the stories gave good insight into the partly-line division between the commissioners, we’re making them publically available below. These are the types of stories PSL readers get every week, 50 weeks a year. To subscribe, click here.

More background on the rug/carpet and vinyl plastic film votes are in:

• Chairman Tenenbaum’s statement on both votes.
• Commissioner Anne Northup’s statement on both votes.
• Commissioner Nancy Nord’s statement on carpets and rugs.
• Nord’s statement on vinyl plastic film.
• Nord’s blog.

Meanwhile, here are the stories.

Commissioners Disagree on Breadth of Third-Party Testing
from the July 5, 2010 edition of Product Safety Letter

The Commission appears split on whether Congress, in the CPSIA, intended that third-party testing can be triggered for any CPSC-enforced “rule, regulation, standard or ban” for children’s versions of products – even if requirements are identical for the general and kids’ versions. This division was the overarching concern in a June 30 staff briefing on the proposed lab accreditation rules for third-party testing of children’s carpets and rugs for compliance with the flammability regulations that apply to all carpets and rugs.

The question of congressional intent will hinge on what legislators meant by using the term children’s product safety rule in section 102(a)(2) when they wrote that third-party testing would be required for “any children’s product that is subject to a children’s product safety rule.” Are children’s product safety rules in a subset of consumer product safety rules specially targeting children’s safety? Yes, suggested Commissioner Anne Northup. Otherwise, Congress simply could have written that “any children’s product” is subject to third-party tests for the requirements that apply to it.

However, Commissioner Robert Adler countered that while her argument was reasonable, the CPSIA nonetheless defines a children’s product safety rule as “a consumer product safety rule under this Act or similar rule, regulation, standard, or ban under any other Act enforced by the Commission, including a rule declaring a consumer product to be a banned hazardous product or substance.” That wording, he asserted, suggests that Congress indeed intended for there to be a broad triggering of the third-party testing requirements.

Commissioner Nancy Nord suggested that rather than intending to sweep all “rules, regulations, standards and bans” into third-party testing if children’s products are involved, Congress rather simply was trying to avoid the differences in CPSC powers depending on if products are subject to the Consumer Product Safety Act or the Federal Hazardous Substances Act.

Northup warned that CPSC could be opening a “Pandora’s Box” with the broad interpretation. She raised the possibility that the picture of a child watching a pyrotechnic display on a box of fireworks might trigger the need for third-party testing. CPSC staff, in a discussion of a pending guidance on the definition of children’s products (PSL, 3/29/10, p. 1), had explained that an arguably general-use product – such as a soccer net – might be deemed intended for children 12-and-under, depending on whether children were depicted on packaging.

During the briefing, commissioners avoided asking agency lawyers about the matter until a closed-door executive session that followed the public meeting. The latter event focused on a General Counsel opinion memo. Commissioners are slated to vote July 7 on the lab accreditation rules for the flammability of children’s rugs and carpets as well as on similar rules related to the flammability of children’s products made with vinyl plastic film.

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Ballots on Rugs/Carpets and on Vinyl Will Stand Despite Procedural Delay
from the July 12, 2010 edition of Product Safety Letter

Both July 7 “tentative” votes by CPSC members to pass lab accreditation requirements will stand. The 3-2 votes along party lines covered third-party testing of children’s rugs and carpets and of vinyl plastic film in children’s clothing. The proposals will pass because, as of the PSL deadline, they merely await two moot votes from Commissioner Anne Northup on amendments that already failed, both standing at 1-3, also along party lines.

The unusual situation occurred because Northup and Chairman Inez Tenenbaum were not at the meeting, casting their votes on the main issues beforehand. In their absence, however, Commissioner Nancy Nord proposed amendments to each issue that would have altered when and whether CPSC would set the requirements. CPSC General Counsel Cheri Falvey explained that under CPSC procedural rules, Tenenbaum and Northup had five business days to vote on the amendments. If Northup and Tenenbaum both voted for the amendments, then the ‘tentative’ votes would have been negated.

On carpets and rugs, however, it quickly was clear that Tenenbaum would vote against the amendment based on her written statement on the matter in which she echoed Commissioner Robert Adler’s broad interpretation (PSL, 7/5/10, p. 1) of a children’s product safety standard. She explained:

“There has been some debate on whether rules of general applicability, such as the flammability regulations applicable to carpets, rugs, and vinyl plastic film products, constitute “children’s product safety rules.” I do not view this as an open question. Section 14(f)(1) of the CPSA defines a “children’s product safety rule” as “a consumer product safety rule under this Act or similar, rule, regulation, standard, or ban under any other Act enforced by the Commission, including a rule declaring a consumer product to be a banned hazardous product or substance.” By providing this explicit and expansive definition of “children’s product safety rule,” Congress spoke in plain and unambiguous language on this issue.”

Nord’s proposal would have addressed her and Northup’s concern that CPSC is exceeding its CPSIA mandate for third party testing of children’s products by deeming the law’s term, children’s product safety standards, to cover essentially any children’s products that are subject to consumer product safety standards. This is regardless of whether or not there are different rules for general and children’s versions of products. With rugs, for instance, the flammability rules in question are the same regardless of the intended users.

Nord sought for the panel to delay consideration of the requirements until it finishes work on the pending notice of proposed rulemaking (NPR) on the definition of children’s product (PSL, 4/5/10, p. 1). She said the agency would be sending a confusing message about what is or is not a children’s rug or carpet by basing it on the design woven into it. Is a pink rug for a little girl or for general consumers? She noted that the tack is in contrast with industry’s approach, which, according to a manufacture she spoke with, is to define children’s rugs and carpets based on high durability, low pile, and ease of cleaning. CPSC’s design approach, she asserted, also has nothing to do with flammability.

Adler countered that manufacturers decide how to market and package, so they decide whether an item is for children or not. Nord responded that is true, and indeed, firms could keep selling items by turning “children’s departments” into “novelty departments.” Moreover, with carpets and rugs, a company can avoid testing by labeling an item “flammable.” All that, she suggested, means CPSC is focusing on “form over substance,” which she termed “unfortunate.”

Nord also said that CPSC would be disturbing a testing regime that has existed since before the agency was created and that has worked well. The move, she asserted, thus has nothing to do with safety. Adler responded that indeed there is a safety issue. Otherwise, there would not be a standard.

Alder also stated that he was averse to setting a precedent of waiting until the children’s product guidance comes out to move forward with accreditation requirements. He noted that CPSC set them for lead-testing labs, and the lead rules affect children’s versions of product that also appear as general purpose items. Nord countered that the lead vote was at the explicit direction of Congress in the CPSIA, while the vote for rugs and carpets is not.

On vinyl plastic film, which is covered at 16 CFR 1611, Nord proposed waiting until CPSC also addresses related requirements for 16 CFR 1610, which cover the flammability of adult and children’s apparel generally. The two sections are intermingled, she said, referencing each other, and in at least one place allowing manufacturers to choose which to apply to products. They must be read together, and “1611 almost is a subpart of 1610,” she said, asserting, “Given the relationship between the two, it is very premature to be putting out [requirements] for one category of fabrics.”

Adler countered that he did not see a problem with moving forward because the requirements will not confuse industry. “Manufacturers know whether they are covered,” he said. “They know whether they make children’s products.” On their ability to choose between 1610 and 1611, Adler acknowledged, “If they can opt out, then they will opt out.”

Nord asserted that the agency was issuing “regulations for the sake of regulation … trying to meet deadlines … not looking at the underlying substance … It belies what we’re trying to do as regulators.” She also referred back to the dispute about children’s product safety standards, asserting that the rules at 1611 are not such.

That dispute arose numerous times throughout the meeting. The question hinges on why Congress simply did not write something akin to “any children’s product is subject to third-party tests for requirements that apply to it” if that was its goal. Adler – and now Tenenbaum (see her statement above) – assert that the CPSIA’s definition of children’s product safety rule prompts such a broad reading.