Archive for the 'Lead' Category

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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.

New CPSC Lab Opens Today!

Published June 13, 2011 Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Testing Leave a Comment

  This week the agency is opening our new laboratory facility in Rockville, Maryland.  This is a long awaited move for our staff.  For years we have recognized that the old lab was outdated and needed to be modernized. This is a need I flagged for our Congressional appropriators back when I first assumed the role of acting chairman and, in that role, I was very pleased that we were able to finally sign the lease for 5 Research Place in early 2009.  This came about only because of very hard work on the part of a number of senior career staff and, especially, the agency’s long-time executive director, Patsy Semple.  Even though the time it has taken to finally move in was much longer than anticipated, the move will greatly benefit the agency, and ultimately the consumer. 

It is obvious that, for the agency to move into the 21st century, we need 21st century technology and facilities.  With the new lab, this goal is being realized.  Now our engineers and scientists will be under one roof and better able to communicate with each other, while still having close access to CPSC Headquarters.  The space will allow for more product testing, more kinds of product testing, and quicker turn around on test results.  I am proud that I, together with so many on the lab improvement team, could be a part of furthering our agency’s goal of protecting American consumers.  I look forward to all the great things that will come out of 5 Research Place in the future and congratulate everyone involved in the process of upgrading our research facilities.

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.

Finally Movement to Fix a Broken Law

Published April 7, 2011 Certification , Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Risk Analysis , Small Business , Testing 1 Comment

I am pleased that today the House Subcommittee on Commerce, Manufacturing and Trade is holding a hearing to discuss the draft legislation to solve problems with the CPSIA that have been so evident.  The draft bill will go a long way to addressing many of the unintended consequences of the CPSIA.  It’s time to get our agency back on track and focusing on real safety issues, not imagined ones. 

I hope any final legislation will include the following necessary changes:

  • The lead exclusions need to be amended to give agency more flexibility to address unintended consequences.  The amendment needs to recognize the expertise of the agency to define what is an unacceptable risk based on whether the child’s interaction with the product results in measurable increase in blood lead levels.  Migration of lead limit from 300 ppm to 100 ppm (effective in 2011) should be repealed.  The agency can set an appropriate lower level if dictated by safety.  The scope of the lead provisions is too broad.  The law treats all children – from infants to preteens – the same even though product interaction is quite different and risks are different. The scope should be narrowed to apply to products intended for younger children (recognizing that the agency has inherent authority to deal with risks, regardless of source, to older children).

 

  • The lead and phthalates provisions need to be amended so that the law applies prospectively, rather than retroactively.  

 

  • Mandatory third party testing requirements for all children’s products impose a significant burden especially on small businesses.  Testing and labeling provisions need to be amended to minimize the damaging impact on product makers while protecting consumers.  Rather than requiring third party testing in every instance, the agency should be able to set reasonable and appropriate testing and labeling requirements to assure compliance with underlying safety standards.

 

  • Regulations should be subject to cost/benefit analysis.

 

  • The Public Database provisions should be amended to include only complaints from consumers who bought or used the product or relevant public health or other public agencies; enhance the ability of businesses to respond to complaints; and include the duty of the agency to assure accuracy of any information made public. 

 

The discussion draft would go a long way to solving the obvious problems with the CPSIA.  I hope that Congress will move swiftly to pass constructive legislation.

At Least the Wall Street Journal Is Listening

Published March 11, 2011 Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Public Database , Small Business 2 Comments

The Wall Street Journal got it right with this editorial today…

 

Get the Lead Out, Sir

Nutty test standards give Obama a real chance to help business.

President Obama has been on a campaign to shake his antibusiness reputation, so a good place to start would be to revisit the Consumer Product Safety Improvement Act, a mess of a law that has put new burdens on small businesses.

In 2008, Congress passed the law in a rush to do something after a scare over lead in toys imported from China. Its problems were quickly apparent, sweeping products from books to bicycles into the dragnet for lead standards. But while businesses pleaded, Democrats stood behind it as a pinnacle of consumer protection while blaming the Consumer Product Safety Commission for any enforcement problems.

The CPSC has done what it can to allay the fiasco of unintended costs and disruptions for small businesses, including staying large portions of the law. But as Commissioner Nancy Nord told House Democrats last year, the language of the bill is drafted in such a way that fixing all the problems is impossible because the “exclusions and exemptions process is not workable.”

Instead of being able to focus energy on products that present real risks to kids, the CPSC’s staff has had to regulate products that pose no harm. The likelihood of a toddler swallowing an all-terrain vehicle, for instance, didn’t stop that product from being swept into the maw.

The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called “15 Month Rule,” Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company’s toys and products will cost his company some $15 million per year.

It gets worse. In August, the lead standard is set to go down to 100 parts per million from the current level of 300 parts per million. Like the earlier step down, the new standard is supposed to be retroactive when it goes into effect, meaning that it will apply to toys and children’s products manufactured before that date, which were perfectly legal when they were made. All five CPSC commissioners have said they don’t believe the new standards should be retroactive when they go into effect this summer.

At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as “necessary to protect kids and families across the country.” We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.

Energy and Commerce Chairman Fred Upton and Subcommittee Chair Mary Bono-Mack have said they will soon introduce a bill that would finally end a regime that has clobbered small businesses with ill-conceived regulations. If Mr. Obama wants to help small business job creation, he could agree that the government doesn’t need to mandate a lead testing protocol for every product known to man.

How Low Can We Go?

Published February 6, 2011 Certification , Children's Products , Comment Request , Consumer Product Safety , CPSC , CPSIA , Lead , Risk Analysis , Small Business , Testing 2 Comments

We have another big CPSIA decision looming on the horizon and therefore need your input and participation.

CPSIA provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible.  The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products.

A hearing is scheduled for Wednesday, February 16th.   In order for me to act from an educated perspective, I need the evidence and data the public supplies, along with staff analysis.  I invite you to speak up and tell us how this lower lead limit will effect you. For details about participating, please refer to the Federal Register notice.  The deadline to sign up to present your remarks in person is February 10th.  You may also submit written comments and watch on webcast.

Last July, we solicited comments and information about manufacturers’ ability to meet the 100 ppm standard. Some commenters stated that source materials, including recycled materials for metal alloys, cannot comply consistently due to the variability of the materials and that plastics could comply only if  virgin plastics are used.  We heard about significant variability among test results due to variations in testing methodology and procedures.  Several people stated there were not demonstrable health effects reducing lead limits from 300 ppm to 100 ppm in light of the relative inaccessibility of lead that is bound in plastic or metal.  Others said there are children’s products in the market now that meet the 100 ppm lead limit, so that it is not only possible, but essential for public health to meet the lowest levels feasible.

The Federal Register notice outlines issues where staff is seeking new or additional information. Questions that are of particular interest to me include:

  • how do we evaluate whether a product that complies with the lower limit is ‘commercially available’;
  • what factors should be considered in an analysis of the public health protections associated with substantially reducing lead in children’s products, and
  • does consideration of technological feasibility include economic implications?

Before we vote to regulate, it is critically important that the Commission understand the practical and safety implications of lowering the lead levels in children’s products. We need your input so we can make an informed decision.

Stay of Enforcement: Let’s Decide Already

Published January 20, 2011 Certification , Children's Products , Component Testing , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing Leave a Comment

I recently wrote about the status of the stay of enforcement (SOE) of the lead content testing and certification requirements of the CPSIA.  Unless the CPSC acts, the SOE lifts on February 10, in 3 weeks.  We have received a number of petitions and requests to extend the stay.  Although specific action has not yet been taken – on either these petitions or my request for a Commission meeting on these issues – I can assure you there have been a lot of conversations going on and serious thought being given to this impending problem.

 I believe that, as we address the SOE, we need to be mindful of its relationship to the component parts proposed rule and the proposed testing and certification rule (the “15 month rule”).  Commissioners have pointed to the availability of component testing as a way of easing the significant testing burden on final product makers, especially small crafters.  We have heard from some component makers that they are not planning to third party test and certify until they understand the rules of the road and can make a rational business-based decision.  It is understandable that a component parts manufacturer would not want to do the initial third party testing and certification without understanding what its continuing testing responsibilities may be.  On the other hand, perhaps there are some component makers who are willing to take on this unknown liability.  We just do not know. 

Whether this is resolved in a public discussion as I requested, or otherwise, we need to reach a decision ASAP.

To Interpret or Not to Interpret? That is the Question…

Published September 29, 2010 Certification , Children's Products , Consumer Product Safety , CPSC , CPSIA , Lead , Penalties , Risk Analysis , Small Business , Testing 2 Comments

Today the agency issued its final rule to define children’s products.  While the final rule is miles ahead of the rule we received in late August (read my previous blog about the rule here), it is still miles behind where we should have been.  After hours and hours of staff time in an attempt to come to an agreement on certain issues within the rule, we were still left scratching our heads and nowhere close to being together. 

What we put out today is neither helpful, nor clear.  Our attempt to define what is and is not a children’s product has left a vast expanse of ambiguity.  This rule was not required by the CPSIA, instead we took it upon ourselves to provide guidance.  It was put out with the best of intentions, but in my opinion, may cause more harm than good, confusing an already confused public.  Safety was not advanced today.  This rule should not have been adopted.

Read my statement on the vote here.

Better Late Than Never or Better Never Than Late?

Published September 8, 2010 Certification , Children's Products , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing 5 Comments

If Lewis Carroll had not already posed this question, I’m sure he would have when he saw CPSC’s current effort to define the term “children’s product.”

This exercise is important because how we define a children’s product will determine what products are subject to stringent provisions of the CPSIA, including those relating to lead content, third party testing and tracking labels.  While our mission is to protect consumers, the CPSIA has given us little flexibility to do that in a sensible way and, as I have written here and here and here, a majority of my colleagues have chosen to ignore what little flexibility we do have under the statute to come up with sensible solutions. 

In the current proposal up for a vote next week, we are being asked to make a number of nonsensical determinations.  For example:

 How should we treat home furnishings? 

  • A pink lamp on one bedside table in a child’s room is not a children’s product but a pink lamp embellished with a fairy sitting on the other bed side table is.  No difference in use but a very big difference in outcome from the standpoint of the maker.  How does this make sense? 

 What about common everyday products? 

  • Paper clips are not children’s products even if a teacher hands them out to students to clip homework assignments.  If that same paper clip, purchased at an office supply store, is packaged in a “hands-on” science kit to help teach a child about how magnets work, it is miraculously transformed.  How does this make sense? 

 What about DVD’s?

  • Our proposed rule says that DVD’s may be subject to third party testing because of the content embedded on them.  Apparently, “Animal Planet” does not pose a risk of lead poisoning but “Dora the Explorer” does.  How does this make sense?

I could go on and on with other strange examples drawn from the proposed rule.  We are not required by the statute to put out a rule defining children’s products.  We are choosing to do this because we want to add clarity and consistency to a confused process.  I fear we are just making the situation even more muddled.  The proposal we will consider next week could add a whole new chapter to “Through the Looking Glass.” Lewis Carroll would be proud.

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