Archive for December, 2009

“Sit, Stay.”

Today the Commission is taking very significant action to further implement those provisions of the CPSIA dealing with testing and certification.  In the agreed-to Federal Register Notice (see CPSC website), we are setting out a schedule for lifting the stay of enforcement we adopted in February, 2009.  This action impacts a number of different products in a number of different ways.  However, the action that will be of most interest across industry lines is our decision to extend for one additional year, until February 10, 2011, the stay on testing and certification to the lead content standards. 

The stay was needed because the deadlines set out in the CPSIA were wildly unrealistic and their enforcement would have resulted in even more chaos in the marketplace than we have already seen over the past year without increasing safety.  Since the stay of enforcement did not negate the need to comply with the underlying requirements of the law, it provided relief to regulated industry without impacting consumer safety.

The stay was adopted so that the Agency would have the time to issue guidance and rules addressing what products must be tested, when testing is required and how it is to be conducted.   Even thought agency staff has been working diligently, the issues presented are extraordinarily complex since the statute basically requires a reordering of the manufacturing processes for a vast number of industries.  As a result, and in spite of our best efforts, many of those foundational rules are still under development.  They must be finalized and given a chance to be absorbed by impacted industries before we lift the stay with respect to lead content testing. 

Over the next year we must define what is a children’s product since that will determine what products are subject to independent third party testing.  Component testing offers the potential for reducing the cost and burden of the third party testing requirements while still addressing our concerns for safety.  Therefore we must put those rules in place and assess whether component testing actually works to relieve the significant cost burdens the law places on small manufacturers and crafters.  Finally, as Chairman Tenenbaum recognized at our meeting yesterday, we must adopt the “15 month” testing rule and allow adequate time for industry to implement it and that this action is a prerequisite for lifting the stay on lead content.  I agree with the bipartisan majority on this.

The agency will need to work aggressively to complete this regulatory schedule within the next year.  I stand ready to assist as our staff of seasoned (but severely overworked) professionals steps up to this challenge.  I call on industry and other impacted stakeholders to help us accomplish this task and actively participate in the comment process. 

Last but not least, it is important to note that our action extending the stay for lead content comports to the Congressional direction recently given us to minimize the burdens imposed on small businesses especially with respect to the enforcement of the lead provisions of the CPSIA.  The entire commission is directed to come forward with suggested changes to make the CPSIA work better. Keeping the stay in place is in keeping with Congressional direction, and is keeping further unnecessary chaos from implementation of the CPSIA.

“Secret Santa”

In the spirit of the holidays, Congress has given the CPSC several gifts which we are now unwrapping. But as is sometimes true at holiday time, the Congress did not get the gift request quite right. On the positive side, Congress is promising the agency additional funds. Like all federal agencies, we want and will gratefully accept every new dollar we can get for consumer safety.

However, this past weekend, we also were given two additional “gifts.” The first is a pending amendment to the CPSIA which contains a narrow exception from the lead provisions apparently designed to aid the ATV, bicycle and book industries. While the amendment is less than clear legislative drafting, with its passage, Congress does acknowledge, for the first time, what many of us at the agency have been saying for many months–the inflexible nature of the CPSIA has limited the ability of the CPSC to minimize the unintended consequences of the law–hurting product sellers and limiting consumer choice while not advancing safety. This amendment was drafted in a closed and partisan process, without input from relevant stakeholders and its shortcomings reflect this flawed process. However, in the spirit of the season, let us hope that this is a first step in correcting the problems with the CPSIA.

The second “gift” is a direction from the Congress to consider the impact of the testing and certification provisions of the law on small businesses, to consider exemptions from the statute where there is no real risk of lead exposure to children and to present to Congress by mid-January, 2010, recommendations for ways the statute could be improved. I hope that all Commissioners will be part of this process. At a recent Commission meeting, my colleague, Commissioner Northup, and I raised the possibility of writing to Congress about the need to give the CPSC more flexibility. While the Commission failed to reach out to Congress, Congress has reached out to the Commission, thus giving us the opportunity to work together to craft something that improves safety for the American consumer, and that would be a gift that keeps on giving.

…repeat: testing 1,2,3…

As every business that sells products in the U.S. should know, the CPSIA puts in place “bright line” standards for lead and phthalates, mandates a number of other safety regulations, and requires that product sellers show compliance by following prescribed testing and certification procedures.  Sellers of children’s products must do this testing at CPSC approved independent third party testing laboratories.  The statutory deadlines for these requirements proved to be unrealistic and to forestall chaos in the marketplace, the CPSC, in February 2009, stayed enforcement of the testing and certification requirements for a number of types of products for at least one year  (February 2010) and until the Commission affirmatively votes to lift the stay.   At its meeting this morning, the Commission began a public discussion of a timeline for lifting the stay and implementing the testing and certification requirements of the CPSIA. 

A critical part of the discussion of testing and certification involves how we are going to treat component parts used in children’s products (remember that children’s products must be third party tested) when those component parts are not themselves children’s products.  We now have under active consideration an enforcement policy for lead paint and lead content that would allow certification based on component part testing.  Component part testing could work in one of two ways:

  • First, a children’s product manufacturer could send component samples out for testing at a CPSC approved third party lab.  As an example, a children’s garment manufacturer could send samples of buttons out for testing and then use those buttons on all garments that it makes. 
  • Second, a children’s product manufacturer could rely on a certificate from another person certifying that the component had been third party tested and met the lead limits.  As an example, a home-based producer of little girls’ dresses could go to a local hobby store and purchase buttons certified as having been third party tested by a CPSC approved lab.


We anticipate that smaller manufacturers, specialized producers and crafters will find the second option of use.   However, since there is currently no requirement that components be tested, the question arises as to how long it will take for market forces to produce components that are being third party tested on a voluntary basis.  Without this general availability of tested components, our vision to maintain safety while relieving some testing and certification burdens, will not be realized. 

The answer to this question also will inform us with respect to when to lift the stay for lead content.  If we lift the stay prematurely, then the chaos we were trying to forestall a year ago will still be at our door.  In this case, consumer safety will not be advanced, consumer choice will be curtailed and businesses, especially small businesses, will suffer unduly. 

The Commission’s discussion on these issues was webcast and I recommend that anyone interested in this issue watch the webcast.  On December 10 and 11, CPSC will be having workshops to better inform the agency on these and related issues.  Though registration for attendance is closed, you can view the proceedings on CPSC’s website.

I would welcome feedback from you on what other actions the Commission can take to make component testing a useful tool for ensuring safety while lessening the testing burdens imposed by the CPSIA.

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