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Ready…Fire…Aim

Published September 6, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Risk Analysis , Small Business , Testing Leave a Comment

I recently wrote  about my hope that the majority of the Commission would seek and receive public input on our pending periodic testing and certification rule and the costs it will impose before we hand that rule down. I now know that hope was in vain, and three Commissioners will insist on forcing the rule through on the promise that the Commission will fix it as needed over the next year. Perhaps I was naïve to hope that the country’s economic worries, Congress’s direction in H.R. 2715, President Obama’s urging in his Executive Order, our staff’s practical concerns, and just plain common sense might steer the majority away from a course that is both irresponsible government and inconsistent with the spirit of the new law. 

It is now apparent that the final rule will be before us shortly, and the contents of that draft final rule have been predetermined by the majority.  Without getting into the minutiae of the rule, I believe there are fundamental principles it needs to reflect to be effective in balancing consumers’ needs for reliably safe products and businesses’ needs for regulation that places only as much burden as is necessary to meet our duty to consumers.

When the proposed rule came to the Commission in April of 2010, I worried the language did not strike that balance and, actually, made very little attempt to do so.  In fact, when three Commissioners voted down my suggestion that we consider the costs of the proposed rule and regulatory alternatives to meet the objectives of the statute, they declined even to ask about the consequences of the action they are so eager to take.  In the 17 months since, we’ve had clear messages from both Congress and the President that we should consider the costs and benefits of our actions and work to minimize the former while maximizing the latter, but three Commissioners have decided to summarily ignore those calls for common sense.   

The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires that, before a company first introduces a children’s product to the market, it send the product to a third-party lab for compliance testing. It also requires the same third-party testing whenever there is a material change in a product.

The CPSIA further requires periodic testing for children’s products. This means that, as long as a company makes a particular product, it has to test that product at regular intervals to ensure it still complies with all relevant laws and regulations, even if nothing about the product has changed.

The CPSIA, however, gives CPSC the flexibility to decide, based on risk, how and when companies can do their periodic testing in-house and whether they are required to use a third-party lab. Our current proposal requires periodic third-party testing for every children’s product, continuing our recent trend of clumsy, one-size-fits-all regulation that imposes heavy burdens on businesses large and small while doggedly refusing to consider costs, risks, or benefits.

For some categories of children’s products, of course, third-party periodic testing makes sense. It makes sense where the risk is highest, such as for products that very young children are in close contact with for extended periods of time.  However, when a child’s interaction with a product is more distant, intermittent, or incidental, third-party testing may not be necessary or may not need to be done with the same frequency. 

Different treatment for different risks should be intuitive. Any mother would tell you she’s more concerned about the safety of her child’s pacifier than she is about the brass knob on the drawer of a dresser that happens to be in the child’s bedroom. However, three Commissioners are eager to ignore that wisdom and treat the pacifier and the brass knob identically for third-party periodic testing. Not only does this fly in the face of common sense, it also wastes CPSC’s limited resources.

Our new law (H.R. 2715) grasps this common sense. Under it, we can give small businesses exemptions or lower-cost testing alternatives unless they make any of six specific materials or products: lead paint, cribs, pacifiers, small parts, children’s metal jewelry, walkers, and durable infant/toddler products (like high chairs, bath seats, and play yards). In this new law, Congress recognizes that the products on that list are a greater risk and should face more scrutiny. Why shouldn’t we do the same? The CPSIA allows it, common sense suggests it, Congress’s most recent law mirrors it, and resource limitations urge it, so let’s focus the most attention on the biggest risks, rather than setting a bar for the highest risk product and then mandating every other product meet the same demands. 

Regular readers of this blog will know that I am primarily concerned about two things: the safety of consumers, and the unnecessary costs of the regulations we impose.  My concern for costs is at its lowest when risk is at its highest.  If a company is making pacifiers, I want those pacifiers to go through the tests necessary to make sure they’re safe.  I don’t want the tests to be any more expensive or burdensome than they need to be, but whatever costs are necessary are necessary. Conversely, where the risk is lower (if it exists at all), in-house production testing or other QA/QC techniques may be the appropriate way to make sure the products continue to comply.  

This risk-differentiated approach is what I will be looking for in our periodic testing and certification rules.  One-size-fits-all fits no one well.  Let’s tailor the requirements to the risk and require third-party periodic testing where it will make a difference in safety, not just cost.

Look Before You Leap

Published August 17, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Risk Analysis , Small Business , Testing 2 Comments

Much of CPSC’s work under 2008’s Consumer Product Safety Improvement Act (CPSIA) is done, but one giant piece remains: the periodic testing and certification rule. That rule will mandate periodic testing for manufacturers of children’s products, resulting in repeated testing against myriad standards and requirements.  As it was proposed, the rule requires that this ongoing testing be done by third-party laboratories. 

There are more than a few looming questions about how we will design and implement the rule. Perhaps the most fundamental is whether or not we will continue the majority’s approach of handing down needlessly expensive, one-size-fits-all regulations that treat the biggest international corporations, the mid-size companies, the niche businesses, and the one-person crafters the same.

There is reason to hope, however, that we will chart a new course. The CPSC reform law the President signed last Friday (176k PDF) requires us, within two months, to ask the public for information about the costs of third party testing requirements and ways to minimize those costs. A reasonable reading of our new law should lead us to give the public the chance to share their views with us and to give ourselves the chance to understand and consider those views as we develop the final rule. This would lead to a more thoughtful, more collaborative, and more transparent testing rule.  As an added advantage, this would also help us develop a final rule that does not impose unnecessary costs on an already stressed economy.

 My hope is that my colleagues will recognize how invaluable public input is, seek it now, and produce a testing and certification rule that utilizes that input. I’m hopeful the majority has understood the clear message from Congress and the President that we take the time to understand what it is we’re doing before we do it.

It’s Time for a Fresh Start – Will we Take it?

Published August 2, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Small Business , Testing 4 Comments

Last night Congress passed and sent to the President for signature legislation amending the 2008 Consumer Product Safety Improvement Act (CPSIA). While this Congressional action is long overdue, the question I have is will this agency implement the new law with more common sense than we used before Congress acted.

As I thought about how we will act in the future I recalled two notes that I recently received that moved me greatly. They each share themes—both letters relate how our CPSIA regulations are forcing small companies making perfectly safe products to shut their doors, and both authors are mothers.

Here is what one letter said:

…there are way too many casualties of this law—many of them women who are trying to enter the market place and compete.I am a mother of two daughters who was so thrilled to have found what I believe was my life path…this law and the chaos that has surrounded it for the past three years has left me and many others with their business-hungry hands financially tied…

And from another writer:

I am a business owner, mother and lifelong crafter and if anyone would have told me MY government would punish me because of the mistakes of multi-billion dollar toy companies I would never have believed it…I am closing my business…because of the CPSIA.

These business-owners and the many others I hear from who have been most impacted by the oppressive burdens of the CPSIA are women. While we cannot salvage the jobs we have cost and the livelihoods we have ruined, perhaps going forward with the new law, we can be more mindful of the potential damage we do.

It’s tough to put a face to lost jobs and failed businesses. And it’s easy to dismiss the concerns of a faceless entity, especially when the other image is the face of a child. But these companies are not faceless entities; they have real faces too, many of them female.

It is a simple economic reality that many small businesses are women-owned. It is a simple economic reality that the burdens of regulation fall more heavily on small businesses than they do on large corporations. Whether a 10-employee children’s clothing manufacturer or a stay-at-home mom who helps put food on the table by hand-making toys, our regulations, especially for testing, make the chances for survival virtually nil.

We’ve heard these warnings, but always in the abstract. “Some manufacturers may go out of business,” our economists tell us. It is tougher to dismiss that one line when you realize there is no “manufacturer.” There is Susan, who sews handmade dolls. There is Kathy, who makes little girls’ dresses.

The CPSC has been regulating as if it does not care what damage is done if it has the political victory of claiming (with scant evidence) to protect children. How does the majority of Commissioners make children healthier or safer by putting their mothers out of work with regulations of negligible benefit?

This agency has been voting to do whatever has the political appeal of appearing to protect consumers, regardless of how little it actually does to make anyone safer. But the letters I get show who really pays the price – small businesswomen. These aren’t the majority’s boogeymen – big, heartless corporations. These are mothers, who make toys and clothes for your children with all the love and care they have for their own. But we have been punishing them anyway and shutting down what the Small Business Administration has called a key job-creation engine.

The legislation on its way to the President clearly is a compromise and does not address all the problems in the CPSIA. However, it does give the agency the opportunity to take a fresh look at the costs and benefits of the rules we issue, especially as they relate to small business. And, importantly, it will allow us to put a face not only to those we are trying to protect but also to those we crush with overly-burdensome regulation.

It’s time to give up the coy euphemisms (such as “safety delayed is safety denied”), stop talking about the harm we are doing only in impersonal terms like “economic impact,” and give that harm its real face. It is time to think about who we are hurting when we enact stifling regulations that have little benefit. If we’re going to insist on these regulations, then we need to be willing to face the women whose companies we are shutting down and shutting out. We need to look these women in the face and tell them why a mere slogan is more important than their ability to provide for their families by making safe, enjoyable products.

The legislation the Congress just passed gives us the opportunity to regulate more carefully, intelligently, and compassionately; I hope we take it.

Question: When is Children’s Safety a Particular Concern?

Published July 28, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Risk Analysis , Small Business , Testing Leave a Comment

It’s a sad day when the Consumer Product Safety Commission (CPSC) – charged with keeping consumers, especially children, safe from harmful products – can’t even agree that it will demonstrate “particular concern for the safety impacts on children” when it enforces its rules. Yesterday was that sad day.

Two weeks ago, when a majority of the Commission decided to impose a heavy-handed, indiscriminate lead requirement when there were plenty of reasons not to, I suggested that we direct staff to draft an enforcement policy to let people know how we would seek to enforce that rule.  What followed were two weeks of negotiations that resulted in a rather empty “statement” drafted at the Commission level that does little to help the community understand our goals.

I had hoped we could, at least, tell people we will enforce the limit with “particular concern for the safety impacts on children.” This would tell manufacturers of things kids actually use, touch, and mouth that they needed to be extra cautious. I was not able to reach agreement to include this phrase.  Apparently, enforcement with  “a particular concern for the safety impacts on children” isn’t a message we want getting out.

During yesterday’s debate, we heard that we can’t make our enforcement policy public or it will turn into a “How to” manual for getting around our rules. However, such a public policy is not an unusual idea.  Other agencies do it, and, indeed, our own agency has done it before, and we’re still able to enforce our regulations especially when companies get either sloppy or cheap and endanger consumers.

During the debate we also heard that kind of public enforcement policy would be “backdoor rulemaking.” I fail to see how it is anything other than the kind of open, transparent governing we should be doing. We are, after all, supposed to govern in the sunshine, so why not put our policies out front so people know just what it is we’re trying to do? It seems odd to me that it would be “backdoor rulemaking” to talk publicly about what we’re doing privately. It seems to me that, if governing openly is “backdoor rulemaking,” then governing in secret is “trapdoor rulemaking”, and that’s a style of governing I can’t support.*

Instead of a clear, open policy that would put manufacturers of the products most likely to cause harm on notice that they needed to adhere to very tight safety programs, we wound up with the statement we approved yesterday. I agreed to the statement because it does acknowledge that lead testing at the level we’re requiring is, at best, an inexact science, and it assures that staff will consider that fact as appropriate when bringing enforcement actions.

Nonetheless, when we can’t even agree to let people know our enforcement decisions embody “particular concern for the safety impacts on children,” then perhaps it’s time to re-think how we approach regulating.

Here is the statement that we did agree to:

The Consumer Product Safety Commission is cognizant of the claims that some manufacturers have made regarding their difficulty in consistently meeting the 100 ppm requirements because of the inherent variability in testing methods and the variability in materials they use in the manufacturing process.

The Commission always attempts to apply good judgment, common sense and fair and reasonable approaches when it enforces its regulations. The Commission staff will always consider documented claims made by manufacturers regarding their difficulty in consistently meeting the 100 ppm lead content requirements.

*In addition to my concerns on the limited value of the statement we passed, I also believe the majority, in opposing a more substantive policy, is misusing the term “backdoor rulemaking.” In real backdoor rulemaking, agencies establish new rules through procedures other than the familiar (and open) notice-and-comment process the law provides for rulemaking. An example of this would be using enforcement powers to force companies into complying with an agency’s demands, thereby setting a de facto rule without having to go through actual rulemaking.

Playing Around with Toy Makers

Published July 19, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing 4 Comments

Today the Washington Times posted my latest Op Ed piece on overregulation and its costs on society. Let me know what you think. Has your company experienced hardships because of the regulating we’re doing? Have you had to exit the children’s market altogether? As a consumer, have you noticed the options for children’s products has decreased at the stores? I want to hear from you. Here’s the op ed in its entirety:

Regulatory Reform: All Talk, No Action at the CPSC

 The Obama Administration has recognized that excessive and unnecessarily burdensome regulations are a drag on the economy.  As the Administration has worked to promote job creation, it has publicized its efforts directing agencies to eliminate or revise unnecessarily burdensome and inefficient regulations.  Apparently, the Consumer Product Safety Commission (CPSC) has not gotten the word.

The CPSC’s failure to get the word is no more apparent than in its efforts to implement the Consumer Product Safety Improvements Act (CPSIA).  The CPSIA was passed after agency recalls of imported products shined a light on the issue of import safety.  The goal of the law is to assure that products intended for children are safe, a goal for which there is universal agreement.  The devil, of course, is in the details, and the details of implementing this laudable statutory goal are devilish for sure. 

Under the law, permissible levels of lead in children’s products are to be reduced progressively, over time.  Currently, children’s products must be 99.97% lead free, and in August, that level increases to 99.99% lead free, unless the agency finds that achieving that minute trace level is not technologically feasible.  In an unfortunate example of politics driving science, the agency just voted along party lines, determining that there are no technological impediments to achieving that level.  That decision was based on a record that is short on facts but long on speculation.  Let’s look at what we do and do not know. 

The most important issue is public health so let’s look at the risk of lead exposure.  While it is a given that children should not be exposed to lead in their environment, it is also a given that consumer products are not a significant source of lead exposure.  Elevated blood lead levels dropped dramatically from the mid-1970′s when lead paint and leaded gasoline were banned.  According to the EPA, exposure to leaded paint in old houses and contaminated dirt and dust remain the biggest sources of lead exposure.  Other sources of lead include drinking water (because of lead plumbing materials still found in some municipal water systems), certain dietary supplements, and certain kinds of pottery, ceramics and crystal, among other things.  Even chocolate can have up to 10 times more lead than what we are mandating for various consumer products.  CPSC staff has told us that the substantial health benefits from lowering lead in children’s products have already been achieved.  The agency expects that further lowering the lead limits to pick up these trace amounts will result in minimal increased health benefits. 

If the health benefits of this policy are not appreciable, what about the costs of moving from a 99.97% to a 99.99% lead free environment?  Lead can be a trace contaminant in recycled plastics and metals.  Therefore, our staff has advised manufacturers of children’s products that, to meet the new level, they may need to avoid the use of recycled metals and plastics.  We do not know is the extent of the use of recycled materials in children’s products.  We do know that virgin plastic is between 50 and 100 % more expensive than recycled options.  Therefore, contrary to the efforts of other agencies trying to push the use of recyclables, the CPSC is pushing industry away from recyclables to more expensive materials without considering whether there is an appreciable health benefit.

With respect to metals, all of the screws, nuts, bolts, and other metal hardware used in children’s products will need to be 99.99 % lead free.  We know that steel under the statutory limit–such as surgical stainless steel – is available but is substantially more expensive than general use steel.  Lead-free brass alloys will cost manufacturers at least 10 % more than other brass alloys.  Low lead tin is available at a 10 to 15 % price premium.    There are, however, questions about availability and variability of these alloys.  The availability of a low-lead alloy does not necessarily indicate that it is economically suitable for a particular application.  There also is a concern that as we push manufacturers to use higher cost materials, they may use less durable materials, such as substituting plastic for metal. This result would present its own safety issues.  In addition, the costs of testing to assure compliance with the 99.99 % lead free limit are expected to increase significantly.

These cost increases are likely to result in a combination of price increases and reductions in the types and quantities of children’s products made available to consumers.  According to the excellent CPSC staff, some firms may reduce the selection of children’s products they manufacture, may exit the children’s market altogether, and in some cases, may even go out of business.  The CPSC staff notes that these costs will have relatively greater consequences for smaller manufacturers and artisans who have less bargaining power, and more limited production runs over which to spread testing costs. 

These are not speculative costs–they are real.  The bicycle industry has told us that, as a result of the CPSIA, they have experienced a 50 % cost increase for their product components.  They have told us that 10 out of 40 manufacturers – 25 %– have stopped producing children’s bicycles and that they expect even fewer manufacturers producing youth bicycles once the new lead limit goes into effect.  Some all-terrain vehicle manufacturers have responded to the lower lead limits by no longer producing youth ATV’s, leaving children no option but to use the more dangerous adult ATV’s.  The Handmade Toy Alliance, representing small toy makers, actually maintains a growing list of companies that have been driven out of business by this law; the list continues to grow.  This is not just some theoretical exercise; these are real people who have lost real jobs and who are being forced to pay more for products with no real safety benefit.

In brief, this drive to a pure lead-free environment with respect to children’s consumer products, especially those that children cannot mouth or swallow, will not give us more appreciable public health benefits.  No child has gotten lead poisoning from riding a bicycle.  This effort will, however, drive up the costs of materials, drive some producers out of the market, cost jobs, and reduce consumer choice.  All the talk about regulatory reform, if not backed up by action, will not change these results.  Leadership and a sensible regulatory policy that is mindful of the real world consequences of government action perhaps could.

Big Costs + No Health Gains = Crazy Results

Published July 12, 2011 Certification , Children's Products , Component Testing , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Small Business , Testing 2 Comments

Tomorrow, the Commission will consider whether, under the CPSIA, children’s products need to meet a new standard that drives lead content from 99.97% to 99.99% lead free.  Our staff has not told us there are health benefits to be gained from this change.  Our staff has told us that, by regulating at this miniscule trace level, we should expect to drive up costs, limit consumer choice, and drive some businesses out of the market (thereby costing jobs).  I predict that this result will not be an issue for a majority of my colleagues; it should be. 

Last week I got an email from an executive of a company whose product line includes some children’s products.  He told me that his company planned to spend at least $80,000 trying to retrofit two products totaling 16,000 units:

  • In one product, a part that will have to be replaced contains 105 ppm.  That misses the proposed limit by less than one thousandth of one percent. 
  • In this product, a second part contains 179 ppm, so it is 99.9821% lead-free but not 99.99%. 
  • In the second product, a part tested at 114 ppm, making it 99.9886% lead-free but not 99.99%.

One of the products is a small toggle lock used on the top drawstring closure of a sleeping bag.  The other is a similarly innocuous product that kids do not mouth or swallow. 

This expense is just for two products from one company.  Imagine how many others are out there making children’s products that will bear similar or greater cost for no health benefit.  There is no concern in any corner, including here at the agency, that these products may expose children to dangerous levels of lead.  Yet while these products are perfectly legal today, come August 15, they cannot be sold.

The agency had the opportunity to try to stop such a wasteful outcome.  Instead, we are poised to require these kinds of crazy results throughout the economy.  While the law is written in a way that greatly limits our options to stop these crazy results, even within the framework of the law, we have done very little to try to regulate in a more sensible manner. 

We need to direct the agency’s resources to address actually dangerous products. Congressional action to correct the obvious problems with the law is also sorely needed.  In the meantime, the waste continues and the costs we all must bear increase.  Our staff has told us that health benefits to be gained are minimal from this effort but great expense will occur.  Consumers are not benefited by such a result.

Cribs: Good Intentions, Bad Rulemaking

Published June 16, 2011 Certification , Children's Products , Consumer Product Safety , CPSC , CPSIA , Jobs , Risk Analysis , Small Business , Testing 3 Comments

In December 2010, the CPSC unanimously approved a new safety standard for cribs.  The standard, in large part, builds on a voluntary standard that was updated in 2009 and for which there is significant compliance.  The new CPSC standard goes into effect on June 28, 2011 and (as required by the CPSIA) is retroactive, impacting all cribs being sold in the US regardless of when manufactured 

All of the Commissioners are committed to assuring a safe sleep environment for infants and the technical aspects of the new standard demonstrate this commitment.  Having said that, I believe that the Commission also has an obligation to roll out standards in such a way as to minimize disruption in the marketplace.  In that, we have again fallen down in our responsibilities.  The roll-out of the new crib standard has been unnecessarily chaotic. 

Besides the crib standard, there has been only one other major rule issued by this agency in its entire history.  (A major rule is defined as one with an impact on the economy of over $100 million.)  In spite of the crib rule’s significance, no cost benefit analysis was done so we did not have any real information in front of us when voting on the rule, about how the safety benefits of the rule compared to the economic impact of the rule, much less how to minimize that impact. 

The day care industry did protest that the rule, as proposed, would result in approximately a $1/2 billion hit to a group that could not immediately absorb costs of such magnitude, especially on the heels of having just bought new cribs to meet the standards of 2009.  As a result, at the last minute just before finalizing the rule, the Commission agreed to amend the proposed rule to delay the effective date for this group by 18 months.  There was no analysis behind this date; basically, it was pulled out of a hat.  Now, just two weeks before the rule goes into effect, we are hearing from those in the rental industry who cannot get cribs that comply with the new standard and ask that we delay the effective date at it applies to them.  We are also hearing from small retailers who are stuck with stranded inventory that they cannot sell, also asking for a delay. 

We are hearing that a significant number of small retailers will be facing substantial losses.  This is even though the briefing documents we got last December, and on which we relied in voting on this rule, stated that there would be no significant impact on retailers.  I am told that, in reaching this conclusion, no analysis was done on the impact of the rule on this segment of the market. 

At a public briefing this morning it was pretty clear that we do not know the true state of the marketplace.  We heard that some small retailers have been able to accommodate themselves to the effective date of the standard and that a number have not.  (It appears from reading the letters from some of those who believe they are in compliance that their beliefs may be somewhat misinformed.)  The magnitude of the problem is unknown.  An internal survey of 5 retailers found that those companies had at least 100,000 non-complying cribs in inventory.  A survey done by a trade association representing one part of the small retailer community found that 35 companies had 17,500 cribs that cannot legally be sold in two weeks.  The question of whether any of those cribs can be retrofitted is also unclear.  Only 72 hours ago did we finally post some guidance on that subject but the letters we are getting into the agency also show that there continues to be much confusion out there. 

I have no sympathy for those businesses who did not take the steps needed to get ready to comply with this new standard.  However, I have heard from many companies who have tried to comply but still find themselves with inventory valued in the thousands of dollars and soon to be worthless.  Consequently I believe that some relief is warranted. 

The whole crib standard saga is a good illustration of how not to regulate.  We rushed the standard out without doing the hard work upfront to understand the impact of the regulation.  A cost benefit analysis would have shown us how to get the maximum safety impact at the lowest cost.  At the time we finalized the rule we applied a band aid to stop the bleeding of one group – day care centers.  This morning we applied another band aid for those who rent out cribs.  We declined to staunch the bleeding of small retailers.

Our actions today may have the result of driving some retailers selling perfectly safe cribs out of business.  We will never know because we will never bother to find out.  Once again, I find I am repeating myself: this is no way to regulate and the public deserves better.

Calling it Regulatory Reform Doesn’t Make It So

Published June 1, 2011 Certification , Congress , Consumer Product Safety , CPSC , CPSIA , Risk Analysis 2 Comments

There have been a number of news stories in the last few days about the results of the President’s regulatory reform efforts.  The Wall Street Journal published an op-ed by Cass Sunstein, the director of the OMB Office of Information and Regulatory Affairs.  The accomplishments discussed in those stories do not comport to what is happening at this agency.  In response, I wrote a letter to the editor of the Wall Street Journal.  Here is the letter that was published today:

I read with interest Cass Sunstein’s assertion that federal agencies are working to eliminate excessively burdensome regulations (“21st-Century Regulation: An Update on the President’s Reforms,” op-ed, May 26). As a commissioner at the U.S. Consumer Product Safety Commission (CPSC), I can attest that no such activity is happening at this agency. We certainly have not combed through our regulations to eliminate those that are “out-of-date, unnecessary, [or] excessively burdensome,” as he suggests is being done across the government. Instead, we are regulating at an unprecedented pace and have pretty much abandoned any efforts to weigh societal benefits from regulations with the costs imposed on the public.

The CPSC is an independent regulatory agency and therefore, technically, it is not required to follow the president’s executive orders such as the one Mr. Sunstein refers to mandating a “cost-effective approach to regulation.” In past administrations, the agency has always followed the lead of the Office of Information and Regulatory Affairs, which Mr. Sunstein heads, in such matters. However, under this administration, we have ignored the recent direction to look for and eliminate burdensome regulations. We are just too busy putting out new regulations.

I have repeatedly requested that the agency do cost-benefit analysis on our various regulations only to have that request voted down by my fellow commissioners on a party-line basis. Consequently, we are issuing regulations without having done the necessary work to understand the impact of our actions both on those being regulated and on the public. As a result we have imposed regulatory burdens and caused people to lose their livelihoods without a real payback in terms of safety. At the CPSC, common sense regulation doesn’t even get a head-nod.

Nancy A. Nord

Commissioner

Consumer Product Safety Commission

Washington

Spinning Our Wheels When it Comes to Bikes

Published May 18, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

Recently, the Commission voted to adopt amendments to the outdated bicycle regulations (16 CFR 1512) issued decades ago.  These technical amendments were needed to facilitate the testing and certification requirements of the CPSIA as they apply to bikes.  Among other things, these amendments read out of portions of the regulations certain bikes used by professional racers and recumbent bikes that are becoming more popular among some riders. 

This vote is of note because it again presents the issue of what regulations are “children’s product safety rules” and, therefore, require third party testing for the products regulated under them.  The Commission had the opportunity to give some clarity to this issue but, unfortunately, chose to forgo the opportunity and kicked the can down the road. 

The bicycle regulations were issued under the authority of the Federal Hazardous Substances Act (FHSA) in the mid-1970’s.  The FHSA is used to regulate mechanical and other hazards to children.  Because, back in the 1970’s, it was difficult to define the difference between children’s and adult bikes, all bikes were regulated under the FHSA as children’s products.  With the passage of the CPSIA, which requires certifications of compliance for regulated products and third party testing for children’s products – that is products primarily for children 12 and under – the regulatory regime for bikes becomes more complicated.  Why? Because CPSIA makes a distinction between children’s products and adult products but the bike regulation does not.

Since bikes are being regulated as children’s products under the FHSA, one could conclude that all bikes need to be tested by a third party lab.  But, of course, that is a silly result since we know that not all bikes are for children.  Given the CPSIA’s definition of “children’s product” it should be easier to distinguish between a child’s bike and an adult’s bike (and, indeed, we have done that for purposes of lead testing).  Should “adult” bikes, however they are defined, be subject only to the certification requirement or perhaps these “adult” bikes are not subject to the current bike regulations at all, since they are not children’s products.  What was once a simple regulation has now become a convoluted quagmire, thanks to the arbitrariness of the CPSIA, with its absolute third party testing requirement. 

Our excellent staff understands that these and other issues are presented by the intersection between the FHSA and the CPSIA.  They took a first step by proposing technical amendments to the bike regulation exempting from parts of the standard bikes used in velodromes and recumbent bikes.  I proposed language for the preamble of the regulation acknowledging the issue of defining what is an adult bike and a children’s bike.  I am both sorry and perplexed by my majority colleagues’ refusal to include this simple language acknowledging that we have a problem that needs to be fixed. 

On a related issue, while the testing requirement for bike reflectors is now in place, there are no labs accredited to perform the test.  Therefore, I am pleased that the majority did agree with my request that we reinstate a stay of enforcement on third party testing for bike reflectors.  (Such a stay expired in November 2010.)  Without this reinstatement of the stay, we are left with an awkward and messy regulatory situation.  Though the reflector testing problem is temporarily addressed, what is an adult bike and when, if ever, an adult bike is required to be tested and by whom, remains unclear.

Is Third Party Testing All It’s Cracked Up to Be?

Published April 21, 2011 Certification , Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing Leave a Comment

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.

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