Archive for the 'Children’s Products' Category

Start Your New Year Off Right

Published January 6, 2012 Certification , Children's Products , Comment Request , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

As you turn your calendars, there are a few things you should be keeping in mind. The Commission’s stay on the enforcement of the Third-Party Testing and Certification Rule is gone as of January 1st. So you should make doubly sure that your manufacturing program is in compliance if you make a children’s product that is subject to a testing rule.

And, if you’re a small-batch manufacturer, you should hurry up and sign up on the Commission’s Small Batch Manufacturers’ Registry here to give yourself peace of mind that you are exempt from certain testing requirements until the Commission takes further action.

Finally, and most importantly, in all of the regulations that the Commission has put out over the past two years, we have not given any serious consideration to the cost imposed on the economy. Congress, after hearing some loud complaints, decided to fix that with H.R. 2715, the law passed last summer that requires the Commission to consider ways to reduce the burden of third-party testing, among other things. The Commission published a series of questions on the issue in October, and we asked you for your ideas on the ways the Commission can reduce costs. We need your ideas by January 23rd. So submit your comments here!

I will be pushing internally to make sure that the staff and the Commission give serious, thoughtful consideration to the ways we can reduce costs, and your ideas in particular. But we can only be successful in reducing costs if we get serious—and perhaps out-of-the-box—ideas from you on how we can best achieve those reductions. So, please, help us ensure product safety in the most rational, cost-effective manner possible; send us your comments!

Tumbling into a Registry

Published December 30, 2011 Children's Products , CPSC , Small Business , Testing 2 Comments

Remember when you were a kid and you really wanted nothing more than to go out and play, but your parents said you couldn’t until you cleaned your room? Did you try to get by with just shoving everything in the closet? That worked right up until the door was opened and everything tumbled out, revealing the sloppiness of your effort. Now replace the child with a federal agency, and replace parental orders with congressional mandates. That’s what’s happening at the CPSC.

Like a child who “cleans” his room by stuffing everything into the closet, the CPSC rushed through a congressionally-mandated small-batch–manufacturers registry sloppily and at the last minute. As a result the agency may be failing to protect the very people the registry was supposed to protect. Last week, we finally issued a press release to let small batch manufacturers (SBMs) of children’s products know how they can take advantage of the testing relief Congress provided SBMs last August. Left unclear was whether an SBM had to be on the registry not to be required to perform certain tests that are mandated to begin in January 2012.

There is no new rule, and there was no Commission action. We shoved everything into a press release and called it a day. And to make matters worse, we issued our press release on December 23, during the holidays and just days before the new testing requirement kicks in. Our insincerity is obvious.

Another policy question not discussed by the Commission was this: Should the registry be public? There are reasonable arguments that it should be. However, there are also reasons why it should not be public since, by publishing the registry, we are implicitly releasing confidential information. (To register, a company has to be below certain revenue and product-quantity thresholds. Commissioner Northup has detailed the problems with publicizing this information, and I won’t belabor them here.) My key concern is there was no Commission-level discussion of this important policy issue.

Instead of working to find a compromise or a solution that would accommodate both points of view—something that could have been accomplished—the concerns of half of the Commission were ignored. The Chairman decided to call the process of establishing the SBM Registry and the attendant issues surrounding it “operational” rather than policy in order to act unilaterally through staff, instead of through a Commission vote.

They have told companies to use the complicated Freedom of Information Act (FOIA) exemption process if they want to keep the CPSC from telling their financial particulars to the whole world. That process requires time and legal expertise, and I believe our retreat to FOIA is contrary to the spirit of the law.

Congress wanted to relieve the product-testing burden for companies least able to bear it and to protect America’s vital small business job-creation engine. Do we really think Congress meant for these businesses to save money on testing just to spend it on lawyers? All these points could and should have been part of a Commission discussion, so people understand the reasoning behind these important decisions.

Will there occasionally be some substantial, fundamental disagreements about the best course of action? Of course there will be, but we owe to each other and the public to work to make those as infrequent as possible and to resolve them as best we can when they occur. I know we can do better, and I hope we will, but I’ll need some help from my Democratic colleagues to build a bridge.

Making a List, Checking it Twice

Published November 23, 2011 Children's Products , Consumer Product Safety , CPSC , Retailers Leave a Comment

As you get started on your holiday shopping this weekend–Black Friday and Cyber Monday are upon us–you’ll want to keep your eyes open for a lot of things: a great deal, that can’t-miss gift, a parking spot that isn’t in the next county. There are, however, some other things you’ll need to keep an eye out.

  •  Look out for drawstrings on children’s clothes. They can easily get caught in playground equipment, furniture, or other objects and pose an entrapment or strangulation hazard. Earlier this year, at my urging, CPSC found that neck drawstrings in children’s clothes sized 2T to 12 are substantial product hazards. They shouldn’t be on the shelves anymore. If they are, they certainly shouldn’t be on your children.
  •  When you’re choosing toys and clothes, make sure they’re age appropriate for the child. Working with CPSC and industry groups, manufacturers have gone to great lengths to decide the right age range for their products, and those should be noted right on the packaging. Look for the label and take it seriously.
  •  A big part of those ratings is choking hazards. Always remember one simple rule: If kids can put something in their mouths, they will. Make sure toys for younger children do not have small parts that can easily pop off or break off. Small magnets and tiny button batteries pose special hazards. If swallowed, magnets can stick together inside the body and injuries like punctured intestines or blood poisoning can result.  Button batteries, if swallowed, can also result in severe internal injuries. 
  •  If a new TV is on your list, look for a good, safe place to put it. Children have been injured and killed from TVs tipping over and falling on them. A professionally-installed wall mount might be the best plan, but, if your new set will be standing on furniture, make sure to pick up some anchor straps. They’re an inexpensive way to prevent an unimaginable tragedy.
  •  If you’re picking up a tree to put those goodies under, keep a few things in mind. For natural trees, green is good. Not only will a fresher, greener tree look and smell nicer for longer, it will also be less of a fire risk. For artificial trees, look for “Fire Resistant” on the label. For either kind of tree, keep it away from heat sources.
  •  When you’re putting the lights up, check them for bare wires, loose connections, or cracked or broken sockets. If it’s time to replace them, look at the labels. Make sure they’re lab tested and make sure they’re certified for the use you’re planning: Outdoor displays need outdoor lights.
  •  Finally, if a power outage turns a bright holiday into a dark one, use care when you pick your solution. Keep candles away from flammable surfaces, and do not use a generator indoors. The carbon monoxide fumes can build up and suffocate quickly.

As much as CPSC, manufacturers, and retailers have worked , and continue to work, to make every product on the shelves as safe as it can be, there will always be some risks, and people will make some mistakes. We have put out a lot of new rules this year, and, while I haven’t agreed with all of them, I will always support the goal of making products safer. But safety is a joint effort shared by regulators and consumers. In many ways, you can do more to keep your family safe than my colleagues and I ever could, just by staying informed and making sound, responsible decisions.

The holiday season should be a time for family and fun, not emergency room visits or worse. A little information and a good dose of caution can help ensure your holiday is a safe and happy one.  Have a wonderful Thanksgiving and a safe and joyful holiday season!

The Song That Never Ends

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

If you’re a close watcher of the CPSC Commissioner’s Statements page (and, really, who isn’t?) you may have noticed that my good friend and colleague Commissioner Adler and I have had another round on our perpetual motion statement ride. Back when we took the vote on our lead standard, we got a glimpse of this dynamic, as Commissioner Adler waited a couple weeks after the vote and my written statement explaining my vote, then issued a statement of his own, directly attempting to rebut the arguments I made in my statement.  He has done the same thing with respect to the recently-issued Testing Rule.  We are now on our third round of statements responding to each other.

As I have pointed out, I believe that the purpose of a commissioner’s written statement is to explain why a commissioner voted in a particular way.  If we use our statements as vehicles to respond to arguments made in other written statements, then the commissioner who writes last has the last word.  By using statements to explain ourselves, rather than directly to rebut others, we can guarantee that we do not find ourselves where we are now, trapped on a spinning merry-go-round.

Commissioner Adler does not share this view. In his most recent addition to the dialogue, he explained his rationale. He views these statements as an opportunity for “robust discussion and debate on the critical policy issues that come up before the Commission.” Discussion and debate are wonderful things, but, with all due respect, the time for them is before a vote. That way, the discussion actually has a chance to shape the policy issues. Statement after statement after the fact provides no such opportunity.  It risks becoming repetitive very quickly with the potential for descending into the petty.

The astute reader will no doubt be asking why I have responded to Commissioner Adler’s statements—both the Supplemental and the Further Supplemental—if I believe the entire exercise is such a misuse of the forum. The answer is simple: Unilateral disarmament may be noble, but it looks the same as surrender. If I don’t respond to Commissioner Adler’s arguments, no matter how fallacious they are, it will appear that I have conceded them. That is not so, and it would be inconsistent with my public policy role to allow such a misconception to exist.

That reality—that a Commissioner cannot let the conversation be one-sided, even if she feels it is hopelessly misplaced—is precisely why the CPSC statement format works best when it is kept to an explanation of the author’s perspective and decision. If we all stick to that approach, we give the public a clear, concise view of the arguments surrounding each CPSC action (or inaction) and an opportunity to provide informed comment on future debates on similar issues. If just one of us abandons this approach, we will all be inevitably sucked into a potentially endless exchange that leaves the reader confused, annoyed, or both.

I love Lambchop, but The Song That Never Ends is best sung on children’s television, not by the leadership of a Federal agency.

Help Wanted: Fixing the Testing Rule

Published November 9, 2011 Certification , Children's Products , Comment Request , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

Yesterday, with little fanfare, the agency posted in the Federal Register an announcement that we invite comments from the public on ways to reduce the costs of third-party testing of children’s products required under the Consumer Product Safety Improvement Act.  This inquiry is mandated by a new law (H.R. 2715) passed by Congress this past summer.  After reviewing the comments we receive, we may either implement cost-saving changes to our regulations and/or report to Congress on additional authority we need to reduce costs.  This new law explicitly acknowledges what our staff economists have told us—third-party testing by outside labs is very expensive and will result in increased costs and reduced choices for consumers. 

I remain hopeful (call me naïve!) that, with this push from Congress, my colleagues will finally get serious about addressing the costs of the CPSIA in an honest and forthright manner.  However, the recent vote on the Testing Rule, which imposes expansive and expensive third-party testing requirements beyond what is required by statute, may show this hope is misplaced.  Today I filed a supplemental statement describing why I believe that the CPSIA does not require that all periodic continuing testing of children’s products needs to be done by a third-party lab.  Had my colleagues adopted this interpretation, testing costs would have been lowered without sacrificing safety and without the months of staff time the majority’s piecemeal approach will require.

I challenge readers of this blog to respond to the Federal Register request with comments on how to lower testing costs.  Be creative and constructive in your comments!  All suggestions will be read and considered, and I will be pushing my colleagues and our staff to actually think about ways to drive down costs and adopt the best ideas we get.

Regulatory Malpractice

Published October 19, 2011 Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Risk Analysis , Small Business , Testing 1 Comment

In a decision that surprised few, the CPSC voted today to ignore common sense and regulatory conscience. We witnessed a majority putting its last grasp of political power ahead of doing what was right.

In 2008, Congress required that we put in place a rule telling the regulated community how to test and certify that the products they make meet the relevant standards. The deadline Congress imposed has long since passed, but we all agreed that the details of the rule proved much harder to write than its basic idea did. Staff put much time and effort into a rule with some solid pieces that I could support. Then the majority, all behind closed doors, summarily dismissed these changes and determined they knew better than our experts. I cannot support their changes, and I cannot ignore their tactics.

The way the majority has handled this rule is, in my opinion, regulatory malpractice. They ultimately didn’t listen to staff, they really didn’t listen to Congress, they didn’t sincerely listen to the regulated community, and they certainly didn’t listen to their fellow Commissioners. All parties pointed in the direction of re-proposal so that we could hear and learn from public comment on the significantly changed rule and the new law surrounding it. Instead, the majority seemingly pushed this through because they soon would not be a majority.

Their reckless disregard for the value of public input in writing regulations is stunning. Other agencies have sought extra public comment when proposals or facts changed. Here, we had a new law change the framework supporting a rule, and, still the majority said we will listen to public comment only after we vote out the thing the public will be commenting on.

The majority is quick to suggest that seeking re-proposal is seeking delay. That’s pure fiction. I offered an amendment to re-propose this rule in light of the statutory changes Congress made, to make the rule better and more likely to stand up in court. Under my proposal, the rule still would have taken effect within the same timeframe as the rule passed today. The majority had a chance to get this done better and faster. Instead, they blew it.

My heart aches for any family who has lost a child due to a faulty consumer product. The pain they feel can never be dismissed or diminished. That pain, however, cannot justify irrational decision-making or misuse of power.

There’s an old lawyer adage: When you have the law on your side, pound the law; when you have the facts on your side, pound the facts; when you have neither the law nor the facts on your side, pound the table. The table-pounding by my colleagues today speaks for itself.

This arrogant dismissal of input from both peers and the public on such an important vote betrays the public trust we bear to implement statutes fairly, openly, and responsibly.

Major Rule, Major Costs

Published October 18, 2011 Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing 1 Comment

For those of you who aren’t experts in the field of administrative law, when an agency issues a significant new rule, it has to do what’s called a Regulatory Flexibility Act analysis, also known as “Reg Flex”. That’s not Calisthenics for Commissioners (though that’s not a bad idea). It’s a report that examines the impact a new rule will have on the economy, and specifically on small businesses.

The Reg Flex analysis for the testing rule we will vote on tomorrow looked at the costs of this rule, especially on small businesses.  Here is some of what our staff is telling us:

  •  This rule “will have a significant impact on all firms” making children’s products.  For example, the staff estimates that for large firms, increased testing costs will be approximately 1.2% of revenues.  For small firms, testing costs as a percent of revenues could be expected to increase to a staggering 11.7%. 
  •  The rule will have this financial impact on all manufacturers and importers of children’s products.  While we do not have a good handle on precisely how many firms this may be, it will be in the hundreds of thousands of firms.
  •  The testing rule “could be a barrier that inhibits new firms from entering . . . the market.”
  •  Impacted companies may “forgo or delay implementing improvement to products’ design or manufacturing processes in order to avoid the costs of third party testing.”
  •  Firms may be able to mitigate “the adverse impacts if they are able to raise their prices to cover their costs.”
  •  “The impact is expected to be disproportionate on small and low-volume manufacturers.”

At a recent briefing on this rule, one of my colleagues suggested that we already have done everything we can to reduce the costs of this rule.  What I believe he was saying is that we have done everything three Commissioners are willing to do to reduce the rule’s cost.  There are a number of things we could actually do to bring down the testing costs imposed by this rule.  Some of those things are even suggested in the Reg Flex analysis.  And we could still have a robust testing rule to address safety concerns. 

We know that this rule will burden our economy.  Our staff says so.  Because Congress was concerned about the high costs of testing, it recently told us to seek out ways to reduce the testing costs in this rule.  Therefore, before issuing this rule, we should do as Congress asked and look at ways to reduce the costs of testing consistent with assuring compliance with our safety standards. 

Unfortunately, politics often trumps good policy here at the CPSC, so tomorrow we will issue a final testing rule and then look for ways to reduce costs of the rule we are issuing.  Talk about putting the cart before the horse!  And this approach certainly raises the question of how sincere the effort to reduce costs will be. 

While we all agree on the goal of child product safety, I am convinced we can achieve that without incurring the staggering costs identified by our staff.

Solid Floor or Trap Door

Published October 17, 2011 Certification , Children's Products , Component Testing , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing Leave a Comment

Government shouldn’t be in the trap door business. The idea is to let people know what the law is, so that we have the moral ground to penalize violations. I’m worried the CPSC’s looming testing and certification rule has at least one giant trap door built in, and it creates opportunities for abuse. 

Along with initial and material change testing by an independent third party testing lab, this rule tells manufacturers to third-party test each product periodically for as long as it’s sold. What worries me is how we’ve structured the periodic testing.

Our rule tells manufacturers to third-party test at least once a year, or once every two years if they have production testing, or once every three years if they have their own lab certified by ISO. That sounds simple enough, but we’ve left a trap door.

Those intervals are ceilings, but the rule doesn’t have a floor. Manufacturers may have to test much more often than what is outlined above, but we’re going to put all the risk on them for making the right judgment call. What the rule actually says is that products need to be tested often enough to give a “high degree of assurance” of compliance, and then it gives ten factors – all of them judgment calls – we think manufacturers should consider.

This creates a situation where a well-intentioned manufacturer could set an interval it thinks is appropriate based on our factors. Then, when we step in to investigate an issue, we get to decide on our own with the benefit of 20/20 hindsight if that was good enough, with no limits on our discretion.

The obvious uncertainty that means for manufacturers is bad enough, but, worse, it’s an avenue for abuse. When a manufacturer – again, trying to do things the right way – is negotiating with us the remedies for a problem, including monetary penalties, we could stack on extra “violations” for its failure to read our minds accurately on the testing interval.

My colleagues have told me my fears aren’t real, and there’s no way we would use our rule like this. If that’s the case, why write it this way at all? Why not just make it clear: If you don’t do production testing and don’t have an ISO-certified lab and you third-party test at least once a year, you’re fine; if not, you’re in violation of this aspect of the rule. Period. No mind reading. No guessing games. No trap doors. Just a clear rule and clear enforcement, the way it’s supposed to be.

Majority’s Plan: Ram it through while we can

Published September 9, 2011 Certification , Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Risk Analysis , Small Business , Testing 1 Comment

The past three days in this blog I have discussed my disagreements with the three-member majority on the Commission about the pending testing and certification rule they plan to ram through in October.

  • The proposed rule applies a one-size-fits-all approach to third-party testing that is guaranteed to be a misfit rather than requiring third-party testing where it is the most necessary (i.e., where the risk is highest);
  • The proposal needlessly sets detailed definitions of a “reasonable testing program” in regulatory stone; and
  • The voluntary component part testing rule—which holds the promise of actually lowering costs and for which work was completed some time ago—has been needlessly held back while we work on the testing rule.

I also question the insistence on rushing this flawed product through. H.R. 2715, passed just weeks ago, expressly instructed us to consider the costs of our testing rules and get public feedback on how to mitigate those costs while still ensuring the safety of children’s products.  It would make sense to get that information before we issue the rule, but the three-member majority doesn’t want to do that. I have to ask: If we don’t have time to get it right the first time, when are we going to have time to fix it?

Congress addressed another problem that I had with our proposed testing rule. The CPSIA required companies to submit “random” samples of their products for testing, but didn’t define the term “random.” It would have been good for the Commission to interpret “random” to mean that manufacturers couldn’t rig the game by choosing “golden samples” they knew would comply.

Our proposal, however, did not take that plain-language approach. It read “random” in a much more technical, complicated sense that might have meant lots of money for statisticians but little or no safety benefits beyond those of a common-sense reading.

In H.R. 2715, Congress resolved this dispute. The new law makes clear that Congress intended to prevent the cherry picking of samples by striking the word “random” and replacing it with “representative.” We could have done this by interpretation, but we chose to let others clean up our mess after the fact. Sound familiar?

 So:

  • Congress has expressly informed us that the majority was mistaken on at least one key aspect of the testing rule.
  • The new law re-shapes the landscape to require us to look at ways to reduce costs. 
  • The proposed testing rule has serious flaws that will make it more burdensome than it has to be and less effective than it could be.

Given all this, prudence indicates the path forward. We should take a few moments to re-examine what we’re trying to accomplish and how we’re trying to accomplish it. If we do that openly and sincerely, we will arrive at a better product.

Instead, because three members of the Commission want to do all they can while they still have their majority, they are poised to foist a misguided, misconceived, and likely expensive regulation on an already fragile economy. All with the promise that sometime in the future it could be fixed.  Man up and fix it now.

Ready…Fire…Aim (2)

Published September 7, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

Yesterday, I talked about how the final rule for testing and certification will be up for Commission vote shortly. This, in spite of directions from President Obama and Congress, our staff’s opinion, and the common sense judgment that we should pause and consider the costs and benefits of the testing rule. This rushed timetable and the contents of the draft final rule were decided by the majority, in defiance of those express concerns. 

I said that we should take a risk-differentiated approach, tailoring the requirements of the rule to risk so that it will make a difference in safety, not just increase cost. Today, I want to talk about another major piece of the testing rule that troubles me—the setting of “reasonable testing program” requirements for all products (not just children’s products). The law requires that manufacturers of non-children’s products use reasonable testing programs for their safety and compliance obligations.  The law neither defines the features of a reasonable testing program, nor requires us to do so in rulemaking. This makes sense. The pending proposal would change that, issuing detailed requirements for a reasonable testing program and—similar to many of our recent actions—apply those requirements “one size fits all.” It’s a step we don’t have to and shouldn’t take, for several reasons.

  • Including reasonable testing program requirements in the current testing rule is unnecessary and further complicates an already complicated regulation.
  • It is irrational to suggest that a reasonable testing program is the same for every product and irresponsible to cement that program in regulations that have the force of law.
  • Companies can tailor their compliance testing programs to be effective for particular products. There are plenty of best practices sources they can lean on, including guidance from our own talented employees.
  • Companies always have the obligation to meet statutory requirements, whether that is for lead content, phthalates, flammability, or any other requirement.

Defining a reasonable testing program through regulation is unnecessary, ineffective, and an irresponsible use of our safety resources. The provisions defining a reasonable testing program should come out of the rule.

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