Archive for the 'Component Testing' Category

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.

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.

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 (3)

Published September 8, 2011 Certification , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing 1 Comment

My last two blogs have discussed shortcomings in the soon-to-be-voted-on testing and certification rule.  A third aspect of this testing and certification rule that concerns me is how it has mired another rule in an arbitrary process: our voluntary component testing rule.

The component testing rule clarifies that testing done by a component part manufacturer can be relied upon by the manufacturer of the final product.  The rule would allow component part manufacturers (like the company that makes the plastic for the teddy bear’s nose) to test and certify those component parts themselves. The final manufacturers of consumer products (here, the teddy bears) could then pass through the compliance maze more quickly by relying entirely on components that were already tested and certified. The goal of the component testing rule is to mitigate the burden of testing by spreading those costs across the supply chain.  It recognizes that, from a safety standpoint, the whole really is just the sum of its parts. And, it effectively pushes safety up the supply chain.

The component testing rule could have been issued months ago.  Indeed, all year long I have been asking the majority why they were holding back this rule and have yet to receive a satisfactory answer.  Apparently, their thinking is that if this is tied to the testing and certification rule, it will make the whole indigestible package more palatable.  They are wrong in thinking this.  And they are wrong, by holding the component parts rule hostage, to regulate with such disregard for how their actions impact those who have to live with them.

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.

Logjam Broken?

Published May 12, 2011 Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Risk Analysis , Small Business , Testing 1 Comment

 I am glad to see that the House Subcommittee on Commerce, Manufacturing and Trade voted today to support a bill to enhance CPSC’s authorities to prioritize based on risk and thereby protect consumers while reducing some of the unintended consequences of the CPSIA. I hope that momentum for some real reform continues to pick up pace.

 Arguments being made against the bill do not stand up to scrutiny. For example, it is said that this bill will do away with third-party testing: not true. Mandatory third-party testing is preserved for the standards that CPSIA listed as priorities (i.e. lead paint, cribs, pacifiers, small parts, lead content in children’s metal jewelry, baby bouncers, walkers, jumpers and other durable nursery goods). In addition, CPSC is allowed to require third-party testing for other standards as it determines is needed for consumer safety, as well as continued compliance testing. The point is that the expert agency will decide what testing makes the most sense.

 It is said that this bill creates “common toy box” problems, i.e. children playing with older children’s toys. If the “common toy box” problem is the concern that children will use something beyond their age range, where does this theory stop when the child plays with things throughout the house?

Anyone who has raised children recognizes the silliness of the “common toy box” argument. Most parents remember sitting their baby on the kitchen floor with a pan and metal spoon to bang away with. Of course, the lead in these products – used for cooking and eating – is considerably higher than what is specified in the CPSIA. And parents know that 12-year-olds do not tolerate lightly toddlers getting into their stuff. But more importantly, the common toy box argument does not recognize the long standing practice of this agency to regulate products based on the hazard they pose as determined by the age of the child. For example, we recognize that small parts present a choking hazard to small children but that same hazard is not present for older children. Therefore we ban small parts in toys intended for toddlers. We do not take the position that a common toy box means that small parts are banned in all toys. We look at the risk and then regulate as appropriate. Lead exposure in children’s products should not be treated any differently.

Other arguments being made against the bill also do not stand up to examination. It’s good news that this bill is on its way to full committee consideration. The sooner CPSIA reforms are in place, the sooner CPSC can return to focusing its resources on consumer risks that matter most.

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.

Published April 1, 2011 Certification , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

The CPSC today is announcing that it is sincerely concerned about the crushing, job killing impact of the CPSIA on small businesses! 

Oops!  I just checked my calendar – it’s April 1.

Many in the agency have been touting the much anticipated component parts testing rule as a real boon for small businesses.  I share this hope.  Therefore, I am more and more perplexed: if it will be so useful, why is the component parts testing rule (proposed 10 months ago) being held hostage to the more complicated, more complex “15 month” testing and certification rule??? That’s what is happening.  While the component parts rule may help businesses cope with their testing requirements, our very cursory assessment of the testing and certification rule shows it will impose several hundred millions dollars of costs on product manufacturers.  Unfortunately neither the costs nor the benefits of this rule have been properly quantified so the agency will be regulating blindly.  Never mind that there is no reason for sitting on the component parts rule and that our words pointing to it as a boon for small business ring hollow by our actions. 

We haven’t been able to put out succinct, helpful rules (see our muddled definition of “children’s products”). When we have the opportunity to do it with component testing, we delay.

Sadly, the real April fool’s joke is on both businesses and consumers.

Health Benefits in Check

Published February 16, 2011 Certification , Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Small Business , Testing 5 Comments

Last week I received a letter from a father of a child with juvenile diabetes who told me of his efforts to raise money to support scientific research to prevent this terrible childhood disease.  I will leave it to you to reach your own conclusions as to whether public health is benefited from his experience:

“Commissioner Nord:

I have learned of the controversy surrounding the Consumer Product Safety laws regarding lead in children’s products.  I wanted to bring to your attention a plan I had been developing to collect and market used denim jeans, with the proceeds to benefit the Juvenile Diabetes Research Foundation (JDRF).  I have now learned that my planned sale of used denim jeans would be in violation of Consumer Product Safety laws as they relate to lead.  I have therefore, halted all efforts to develop this charitable plan.

[Using] girl and boy scouts and local young people interested in community service, we…expected to raise several thousand dollars for the JDRF.  Not huge sums of money -but denim jeans are a “renewable” resource.  If successful, this effort could be renewed regularly in the same or different areas, communities and cities.  The garments would be recycled (always a plus) and the JDRF, and other charities could financially benefit.  It appeared to me to be a “win” for everybody. 

Unfortunately, what I assume are unintended consequences have conspired to deny me the opportunity to make this effort.  While it baffles me how this prohibition can be realistically justified, I respect that it is the law and I will of course, make no attempt to pursue this charitable endeavor…”.

In a world of scarce resources, we have to be smart about the requirements that are imposed on the public. I question whether the health benefit, if any, from prohibiting sale of used kids jeans offset those flowing from efforts like that described above but which do not pass muster under CPSIA.

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