Conversations with Consumers

What is the saying, “when you’re in a hole, stop digging”? It’s a waste of energy and in this latest example, it’s a waste of taxpayers’ dollars.

Last August the majority over read the CPSIA when they considered the general wearing apparel rule to be a children’s product safety rule requiring third party testing. I voted against that approach because the general wearing apparel standard provides the same level of protection to everyone and does not differentiate children’s wearing apparel from that of adults.

Nonetheless, the majority ‘dug a big hole’ and voted to require third party testing to the general wearing apparel flammability regulations for fabrics that could find their way to be used in children’s garments. Then there was more digging in the hole. At that time, we also issued laboratory accreditation requirements with the third party testing requirement starting 90 days thereafter. Apparently, our action resulted in the need to do redundant testing on fabrics that were already tested prior to when our requirements went into effect. More dirt flying out of the hole.

The industry asked for, and today we granted, a one year grandfathering of testing so that fabrics that were tested in an approved lab up to one year before the requirements went into effect will be deemed to have been tested in accordance with our requirements. This is a good thing though we never should have gotten this deep in the hole in the first place.

We found that our action last August requiring this testing, while not leading to any appreciable increase in safety, led to redundant testing. Therefore we were called upon to correct a problem that should never have come up. While I am glad to see my colleagues step up and take this corrective action, I believe that a more appropriate reading of the statute would have prevented it from the start. (see my statement)

We need to be better stewards of public resources. The reality is that our resources are limited and probably will be reduced in the future. Yet we have spent valuable agency staff time and effort crafting a solution needed for a problem of our own making—a clear example of how not to regulate.

We need to keep this lesson in mind before we dig the next hole.

In case you missed it, my letter to the editor of the Washington Post, published yesterday, cites some reasons why Representative Pompeo is right to hit the ‘pause’ button on the public database. Here’s the letter, with its headline in print and its headline online.

Missing the merits of Rep. Pompeo’s questions on a federal database

A profile that didn’t further the debate about consumer safety

Rep. Mike Pompeo (R-Kan.) raises legitimate questions about the Consumer Product Safety Commission’s new public database [“Pompeo turns to Koch in business, politics,” news story, March 21]. It was unfortunate that you focused on motives instead of the valid merits of his concerns, which The Post reported Feb. 27.

The congressman rightly questions whether this database will help consumers. Because of its design, the database could become  just another “yelp.com” — an Internet site for complaints — but with the apparent “seal of approval” that comes from being a federal government Web site. The public will never know which complaints have merit, which do not and which are totally off base. Congress needs to look at how the agency spends scarce public dollars to construct something that could well mislead consumers and undermine our safety mission.

The Post is hyping politics over safety. Consumer safety is not advanced by such a result.

Nancy A. Nord, Washington
The writer is a commissioner of the Consumer Product Safety Commission.

The Commission has now voted (4-1) to extend the stay of enforcement on third party testing for lead content—until December 31, 2011. Although the recommendation before us was to extend the stay until the middle of September, this would have imposed an expensive testing burden on small manufacturers during one of their busiest seasons.

This extension will also give the agency more time to complete the component testing proposed rule and the testing and certification proposed rule. Both these rules need to be in place before the stay of enforcement is lifted. While I would have preferred to specifically tie the lifting of the stay to the issuance of these rules, the December date gives everyone—the agency and manufacturers–a bit more time to prepare.

The stay of enforcement does not relieve anyone from complying with the underlying lead regulations. Therefore, consumer safety is not impacted by the agency’s action. Instead we have pushed off for a bit longer this burdensome third-party testing requirement. However, unless Congress changes the law, the testing requirement will go into effect at the end of December.

Concerning the Stay of Enforcement on lead content third party testing, there is both good news and bad news. 

First the good news:  We have a recommendation from the CPSC staff to extend the stay of enforcement – now slated to expire on February 10, 2011 – until September 14, 2011.  This gives product makers a seven month reprieve from one of the most expensive, job-killing provisions of the CPSIA.  Since the agency is required to identify a level lower than 300 ppm that is technologically feasible to become effective August 14, 2011,  it is unfair to require products to be tested to the 300 ppm standard and then again potentially to some other standard shortly thereafter.  This delay will also give the agency more time to finalize both the testing and certification proposed rule (the 15 month rule) and the component testing proposed rule.  Both these rules are linked with the lifting of the stay. 

Now the bad news:  The recommendation before the Commission is for a delay only until September 14, 2011.  While this extension is certainly better than nothing, I question whether this extension is long enough to accomplish all we and the marketplace need to do before the stay lifts.  It is unclear when we will issue the final 15 month rule and the component testing rule.  While, right now, I anticipate that we will issue both sometime this spring or summer, in particular the 15 month rule is proving to be more expensive and more complex than we initially thought. 

Ideally, both these rules should be in place before we lift the stay of enforcement.  As I stated in an earlier blog post, the component testing concept cannot work without its underlying rules being in place.  Component manufacturers reasonably may not take on the responsibility without knowing what their continuing testing obligations would be.  And without component testing, the final product makers will be burdened with the entire testing regime required by the CPSIA. 

It is my understanding that while large manufacturers gear up for holiday manufacturing in late winter and spring to complete this work by summer, that is not true for medium and small product makers. The September date falls right when small manufacturers are finishing up their work for the holiday season.  We are imposing a requirement in a way that unduly penalizes small businesses.  Why would we do this?

As we debate the appropriate date for extending the stay, it should be kept in mind that an extension is just that – only an extension.  The CPSIA requires third party testing and the Commission cannot change that requirement.  Our responsibility is to impose it in a way that does the least amount of damage to those who must live with this law.  Our responsibility is to try to smooth out the speed bumps and also let Congress know of the issues we are seeing with respect to this law.  However, at the end of the day, third party testing was mandated by Congress and Congress needs to decide whether or not to change that mandate. 

The Commission will soon be voting on the staff recommendation.  Let me know how the September date impacts you.

A year ago we extended until February 2011 our stay of enforcement on lead content testing and certification of children’s products. Well, we’re almost there and it’s slated to disappear in six weeks.

Recently, I received an inquiry from a major consumer products manufacturer asking when the commission would be meeting to consider whether to lift or extend this stay of enforcement.  This manufacturer, like many others, did not realize that, absent commission action, the stay will be lifted automatically on February 10, 2011. 

I am concerned that imposing lead testing on the hundreds of thousands of products subject to this requirement raises serious questions at this time.  I am particularly concerned about the very significant issue of economic impact on small manufacturers of children’s products.  In addition, the agency has not yet addressed the availability of XRF technology for lead content testing, which would lessen the economic burden of this requirement.  We have not finalized our policy with respect to frequency and component testing. We are still struggling with a less-than-clear definition of children’s products.  (Witness our about-face on whether glasses with cartoon characters are or are not children’s products and the resulting confusion over the issue.)  We have not yet begun the process of determining how we will deal with the lowering, yet again, of the lead limit scheduled for August, 2011. 

I have asked for a public briefing on lead testing and consideration of a formal commission vote on whether the stay should be extended.  I’ll keep you posted as to whether the Commission will meet to address the stay.

When it comes to toy safety, I believe that the CPSC, industry players and consumers all need to recognize their responsibilities to assure that our children are protected from unreasonable risks.  In this holiday season, this is a message we should all take to heart.

As an agency we must be disciplined enough to stay focused on the real risks that children face, even though we have pressure from the other quarters to redirect scarce safety resources to whatever is the “crisis de jour.”  Industry must continually be assessing both their product design and production processes to assure that any problems are caught before a toy goes to market.  And consumers must share the responsibility for safety by following instructions and labels, by supervising children at play and by making sure that toys are being used properly and as intended.  The statistics tell us we all have work to do.  Our new year’s resolution should be to get that work done.

During last week’s debate over the public database, my colleagues claimed the need to do an end run around a provision in the Consumer Product Safety Act known as section 6(b).  The majority’s official statement specifically  asserts that the database “is a dramatic and positive change from the current system (commonly known as ‘section 6(b) procedure’), where the Commission is required to consult with manufacturers before warning the public about critical product safety hazards, and seek their approval before releasing the name of the potentially dangerous item.”  The majority suggests that information cannot be released without approval of the manufacturer, but this is materially inaccurate.  Whether the majority lacks understanding how the law reads or intentionally seeks to confuse the issue, the result is the same: the public is misled. 

Section 6 (b) of the Consumer Product Safety Act states that before we release information that identifies a product or manufacturer, the agency must take reasonable steps to assure the accuracy of the information, including giving the manufacturer 15 days notice of a proposed release of information.  If we decide to release the information over the objection of the manufacturer, we must notify the manufacturer of our decision five days before our release.  In theory, the manufacturer then can go to court to block it.  In the last twenty years at the commission, we have released much information on countless occasions and I am aware of only two attempts to block release;  neither succeeded.  Additionally, if we determine that public safety warrants, we may release the information immediately without providing 15 day notice. 

The majority’s misstatements have now been picked up in the media where I have read several stories that make the inaccurate assertion that information will not be released without manufacturer approval.  For example, in a Bloomberg story last week, an incorrect statement, attributed to a fellow Commissioner, said  “The agency has been required to get company permission to make such information public. . .”. Though the publication may not be well-versed in our intricate laws, my fellow Commissioner should be.

Press reports misstating the law tend to be repeated as absolute fact.  Of course this example of turning fiction into fact is the same concern that has been expressed about the database itself.  Once information is published on a federally-sanctioned web site, it becomes “true” regardless of the actual facts.  The majority knows this.  Accidental or intentional, a misstatement is a misstatement nevertheless.  And nevertheless, it is now repeated as fact.   A bit more fact checking would do all of us good; most of all, the consumer.