Among the many interesting aspects of the recent House hearing on the need for amendments to the CPSIA was testimony about third party testing. One of the witnesses recounted a client’s experiences sending the same product out for third party testing and getting back varying results. Variations occurred when product was sent several times to the same lab, as well as when product was sent to several different labs. This testimony tracked what I have heard from others.
Variation in testing results can and does occur with disturbing frequency. These variations happen even when the lab is not doing anything wrong. Some factors causing these variations in results relate to things as simple as changes in ambient temperature or humidity or the storage conditions of the sample. But this illustrates the fallacy of one of the foundations of the CPSIA—that third party testing is the only way to assure the safety of children’s products and, therefore, it must be mandated.
A thoughtful discussion of this issue is especially timely now for several issues under consideration at the agency. Concerning the so-called 15 month rule on testing and certification, the agency has been debating for over a year whether ongoing periodic testing of children’s products always needs to be third party testing. In addition, as the agency struggles with the question of the CPSIA-mandated lead level migration for products from 99.97% lead free to 99.99% lead free (that is, from 300 ppm to 100 ppm), we all recognize that testing variations will occur. At these minuscule levels they will occur more often. The expense involved in testing when neither reliability nor real risk is present should give all of us pause. And it should make us all understand that third party testing is not the “be all and end all” that the CPSIA makes it out to be.
The draft legislation put forward by Rep. Bono Mack returns to the CPSC the important decision of when third party testing is appropriate and should be required. The CPSC has the scientific expertise for making that decision and that is why we asked for this flexibility in the CPSIA in 2008. This flexibility is what we need both to advance safety and to minimize unnecessary testing costs that may crush so many small businesses. The CPSIA took it away; I hope amendments to CPSIA quickly restore such decision-making to the agency.