…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.


7 Responses to “…repeat: testing 1,2,3…”

  1. 1 Ed Loewenton January 24, 2010 at 2:56 pm

    Dear Ms. Nord,
    What a pleasant surprise to find someone in your position who offers so much really useful information about regulatory activities in her domain, and is so accessible to interaction with the informed public. I had some interaction regarding CPSIA 2008 with the House Commerce committee legal counsel in 2008, but did not follow up with comments I was invited to offer. I see that I do have reasonably orderly MS-Word doc from that time that I still agree with, and will send it by email attachment if I can find your email address. Further thoughts and a summary recap are below.

    I have been writing about safety, especially toxicity hazards in children’s and other consumer products since 1998.
    My original work on the hazards of PVC is still valid as a basic reference,
    except that the understanding of the potential problems of phthalates has evolved a great deal since then, with newer information about the potential harm to the male reproductive system.
    I have historically been critical of what I have always seen as lax regulation and enforcement of lead and cadmium content in children’s products. I wrote this article before I fully understood the CPSIA2008 and its impact on small businesses:

    Since the Fall of 2008, I have given a lot of thought to how children may be reasonably safeguarded by regulation of commercial activities, without imposing unsustainable burdens on any of the participants. The following concepts and variables should be used in formulating a regulation that is both reasonable and sufficiently effective.

    No regulation can at the same time guarantee consumers absolute safety from hazard and producers and retailers from any cost or inconvenience:
    Risk is part of life. Parents have come to expect that they should be absolved of all responsibility for their children’s safety. With that said, evaluation chemical safety is uniquely difficult for the lay person to ensure compared with other hazards. Producers and retailers must recognize that they have chosen to share an economic space with some truly bad actors, both foreign and domestic.With this recognition, they are obliged to contribute to building a safe space for buyers of their products, according to their resources and to the extent to which their products may in theory pose hazards to users.

    Regulation should be shaped by empirical science and the examples of other regulatory structures that have been seen to work well in minimizing societal harm without imposing unsustainable burden.
    The law as written by congress appears to be a response to a public hysteria that arose largely from the constant stream of news in 2007 about dangerous products from China. That, along with media failure to explain phthalate risk in an intelligent manner, has resulted in law which appears to have been produced in ignorance of very much science. You comment that the CPSC is preventing by the law from exercising scientific expertise to shape the actual regulatory framework. The result is that much of the regulation misses much of the core hazard, while doing a great deal of damage to the outliers, the producers whose actions present a risk that is marginally incremental.
    As always, the smallest players, or those who do not enjoy a privileged place in the cultural climate, bear the brunt of enforcement. Currently, it appears that players who can afford lobbying are winning exceptions. The scientifically rational methods of determining targets of enforcement are less in evidence.

    Fact-based regulation:
    You note that phthalates should be considered differently than lead. I would go further, to suggest they ought to be under entirely separate regulatory frameworks.
    Lead is well understood as an acute poison. Its cumulative nature and especially harmful effects in children dictate stringent controls on its use in manufacturing. But let’s also note that damage to intellect is not notably apparent in people of my generation and earlier, who were toddlers in a lead-saturated environment. The science of epidemiology should also inform sensible regulation.
    Lead-beaing products disseminate lead into the enviromnent on a continous basis, and is mostly available for ingestion. It should be eliminated from the manufacturing supply chain except for special uses where the hazard is securely contained or presents minimal risk. And it must be noted that children’s toys are not necessarily always the prime source of lead hazard to children; they are just an easier target.
    Phtalates are a different matter. After several years of watching Pub Med for clear evidence of harm in humans from phthalate ingestion, I still cannot find it. (Am I missing it?) Harm to the male reproductive system is clearly documented in rodents with high dosages, and phthalates are detected in infant urine, as well as amniotic fluid and urine of pregnant women, and they are known to cross the placental barrier. So where is the epidemic of male genital malformation?
    It is reasonable to pursue a least-risk policy where children are involved, and assuming a continuity of effect from rodents to humans, it makes sense to try to eliminate phthalates from the environment of fetuses and younger children.
    First, what is a “younger child”? Behavioral observations should determine that. CPSC’s own definition that would be relevant here is probability of mouthing objects. The cutoff seems to be at 3 years, after which children stop refexly putting everything into their mouths. It seems to me that little more except cost of compliance is added by banning phthalates from products for children ages 3 to 12. On the other hand, prenatal exposure, the most dangerous according to rodent studies, is not even addressed by CPSIA 2008. It makes one think that the law is intended not so much as a safeguard for children as a diversion of public anger to a conveniently aggregated target.
    Further, there is at least as much risk from paint and vinyl products other than toys (phthalate vapors) and food wrappers on cheese and meats. How about its presence in cosmetics used by pregnant women?
    Along with regulation, it would be good at long last to make it clear where phthalates are found (predominantly pvc/vinyl) and where not (polyolefins, for a major example). The media have done a great job of obscuring these distinctions.

    A regulatory framework
    All producers of goods for sale to the public should be required to state compliance at some level with applicable safety regulations. Whether or not something is made in USA is irrelevant. I am aware of a US manufacturer who discovered through testing that a purchased plastic part, made in the USA, contained lead.
    The fact that CE certification was obtained in some prior year should also not be a consideration. A certificate is a snapshot of a moment in time. Product content can vary, and in fact is more likely to vary in products by smaller manufacturers. I have actually detected the presence of lead in one area of a hand-painted puzzle and not in another are of the same color on the same puzzle!
    Used products offered for resale present a difficult issue. The older a toy, the more likely it is to contain lead or to be hazardous in some other way. Lead paint and lead-alloyed castings were the rule until fairly recently, not the exception. Toys like this should be labeled at yard sales as possibly unsuitable for young children.

    Whether third-party testing is required should be determined by several factors.
    The principle variable determining whether a producer is required to document compliance with regulation should be the materials used in manufacture. Other variables would include annual sales volume, a good proxy for total public exposure to risk from one producer.
    Products made only of minimally processed naturally materials should be exempt from third-party testing and require only a statement of materials used. In the case of the smallest crafts businesses, this could be produced annually and kept on file at the producer’s location, or perhaps filed online. They could have the same legal status as IRS returns: signature is a swearing subject to penalty of perjury. These would be available to any prospective retailer. A good working example is the transaction security compliance statements now required by the credit card companies. Small online businesses such as myself need only to download and fill out a form, keep it on file, and furnish it to our payment processors when asked.
    Manufacture of products that incorporate materials likely to contain banned substances should require further documentation. Such materials include plastics, colorants and surface coatings, metals, and liquids. It seems reasonable to require lab-certification to come from the supplier of the added material. It is their product, and they should provide the testing. Industrial suppliers are usually much larger than the small producers who use their products, so there is an economic justification for this change. Such a scheme would also reduce the number of tests required, since only each variation of the ingredient would be tested, not every instance of use by every manufacturer of the supply. As an example, a shipment of Sherwin-Williams “Red #xyz batch #abc” would be accompanied by batch test data. Users of the supply would be required to keep this information on file, and also to provide a statement of compliance for each of their products similar to the one previously outlined, but including an expanded statement of materials.
    If a manufacturer creates their own supplies – mixes paints or polymer resins – than they become responsible for third-party lab certification.
    It seems reasonable to base level of reporting also on annual gross sales. As noted, this variable determines level of compliance and certification for online payment security, as it is sensitive to total public risk from each participant.

  2. 2 Ron Stuart December 9, 2009 at 12:04 pm

    Thank you for your reasonableness. May all the commisioners think with the same clarity. The whole CPSA has created severe challenges for all childrens product manufacturers. The least we can do is to allow us to spread the burden by having the component suppliers responsible for there products. If the burden of testing all components rested solely on the end manufacturer the CPSA would effectively eliminate hundreds of manufacturers of quality products, and would effectively strengthen the position in the market place of the larger manufacturers who caused the problems in the first place. Let common sense prevail.

  3. 3 cmmjaime December 5, 2009 at 10:24 pm

    All of the above sounds like a step in the right direction for NEW products, which I do applaud. But what about us poor resellers? Since the lead requirements of this law were retroactive, massive numbers of perfectly safe items that are already in homes across the country have now become illegal for us to sell — whether through yard sales, on-line, or resell shops. We are already getting hammered by this law — and children are not ONE bit safer as a result of it!

    • 4 Nancy Nord December 15, 2009 at 8:43 am

      Thanks for the comment. The retroactive nature of the law is one of the fundamental flaws with the CPSIA. As an agency our choices are to either enforce the law or look the other way–that is put resellers way down on our list of enforcement priorities. Neither is a good alternative for resellers. This is something that Congress must fix but Congress only fixes “sqeaky wheels”. The problem will not be fixed unless voters demand it.

  4. 5 jennifer December 3, 2009 at 10:21 am

    Some component part manufacturers, if they care, are waiting on a ruling before deciding what to do. If the stay is lifted there would have to be a timeline to allow for these manufacturers to get things in order. While it is easy for the CPSC to make a ruling over night and say something should be, in the manufacturing world things take time.

    Making a ruling and then setting REASONABLE dates, like 6 months at minimum to a year, would also give time to the end producer to get their process in order and coordinate with the component manufacturer.

    An option could be to allow manufacturers to test their components with XRF technology. Many of these items that are required to be tested do not pose a risk in the first place and have never harmed children so XRF would seem like a common sense solution.

    A stay cannot be lifted without interim guidelines and alternatives, if you want compliance and want to avoid the avalanche of companies that would arrive at your door.

    • 6 Nancy Nord December 15, 2009 at 10:54 am

      Jennifer, thanks for your thoughts. I agree about the need to lift the stay in a way that gives the market leadtime. I am very concerned that the law imposes costs that threaten sellers without really advancing safety. We are struggling with how to implement the law without doing damage to responsible product sellers.

  1. 1 CPSIA – An Open Letter on the Testing Stay : Trackback on December 8, 2009 at 3:45 am

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