Archive for March, 2010

Notes from China

Over the past week I have traveled to Hong Kong and to Guangzhou,China to talk with representatives of the apparel and toy industry about CPSIA implementation issues. Because of the complexity of this law, it is so important that we make ourselves available to those who are actually making consumer products for the US market to educate them about their safety obligations under the law. In no particular order, here are some of the things I heard:
• I heard consistent complaints about the very short comment periods being made available to those who want to have input into our various regulations. The observation was made more than once that perhaps the agency did not really welcome public comment because the comments periods where typically too short for thoughtful input. I want you to know I have been pushing for longer comment periods because your insights are both welcome and needed.
• Another theme I heard was the need for more flexibility to be built into the testing requirements. Many believe they are spending money with no real safety gain when the funds could be targeted to the areas of actual risk.
• For industries with rapidly changing inventory, such as the fashion industry, requiring random statistical sampling for all changes in product lines will result in enormous costs. There is a great deal of concern about how our soon-to-be-published proposed rule on periodic testing will impact this industry.
• There is great hope that component testing will offer some solutions to decrease costs and increase efficiencies. However, I got conflicting messages about whether this will actually result in developing a market for third party tested component parts. In some instances, this is already happening. However, I heard complaints that, for certain commodity-type products, such as wire, there is no real way for component testing to be helpful.
• With respect to phthalates testing, the agency’s change in test methods has resulted in significantly increased costs and our list of products with either a high or low risk of phthalates has caused confusion.
• A constant theme was the need for greater harmonization. The cost of testing and complying with various standards around the world is a burden on the manufacturing process and impacting consumer choice.
• More than one company told of sending the same product for testing at various accredited labs only to get different test results back, as well as conflicting advice on what testing is required.
Talking directly to those who are trying to implement this law is an invaluable experience. I continue to welcome your thoughts as we try to roll out new requirements imposed by the law. With safety as our constant goal, we are trying to get it right but we need your input to make that happen.

One Step Forward, Two Steps Back

On March 15, I wrote that the Commissioners were asked for their views on a draft bill to fix problems that have become so apparent with the CPSIA.  Here are the comments that I have given to Chairman Waxman and the members of the House Energy and Commerce Committee and the House Appropriations Committee.

Does the Fix Need a Fix?

On February 5, I wrote here that the Congress was considering making changes to the CPSIA. That’s moved to the next step: the five CPSC Commissioners have now been asked to comment on draft legislation to address the unintended consequences of the CPSIA.  Because it has not yet been introduced, it is not officially available but you can read the draft bill analyzed in several blogs including Learning Resources and Shopfloor.

For almost two years we have been talking about the problems with this well-intended but flawed legislation.  I am so pleased that Congress is now willing to begin the process of fixing some of the problems with this law.  While some proposed language is helpful,  my reading overall is the fixes do not meet the mark with respect to focusing on the real safety risk.

I would like to hear from you about this draft legislation—both its strengths and shortcomings , as well as what needs to be done to make this law the helpful consumer protection tool it was envisioned to be.

Baby Slings: A Warning and What to Do

Today, the Commission is warning families and caregivers about hazards associated with the use of baby slings.  While forms of slings have been used for hundreds of years, they have become especially popular in recent years as a way to keep your baby close and connected to you.  Tragically, a number of babies have died while being carried in slings.  Therefore, the agency is warning the public about this risk and emphasizing the proper use of these products. 

This raises a problem that we grapple with at the agency on a regular basis—that is, how to sort through all the details of a tragic incident to determine if the product actually caused the death or the death was caused by something else while the product was being used.  We do not know the complete answer to this question with respect to baby slings. We do know, however, that slings can pose two different types of suffocation hazards to babies.  We also know many of the babies who died in slings were of a low birth weight, were born prematurely, or had breathing issues such as a cold. (see press release)

The other question we struggle with regularly is how much information do we need to make a general warning like the one we are issuing today.  We have an obligation to warn the public about risks, and tell them how to avoid those risks.  The agency is providing this warning so that families and caregivers can be made aware of incidents that we have received and are provided advice from the agency’s technical experts so they can make an educated decision about how to properly use these products.    

In the case of baby slings, information that we were considering a warning was publicly discussed several days before the warning came out without any detail about how parents and caregivers could avoid the risk.  Many news stories were written about the future warning that we would be issuing.  The concern is that this kind of situation can alarm parents without arming them with the needed information about the risk and how to avoid it.

The CPSC has a public trust to protect consumers from unreasonable risk.  That trust includes providing warnings about proper use of products.  Ours is a twofold responsibility: when we give a warning, we should also give advice about how to deal with it.

“Carrots and Sticks”

This morning the Commission adopted a rule setting out things we will consider when imposing penalties for those who violate the law. This rule is important because in the Consumer Product Safety Improvement Act the Congress authorized penalties up to $15 million for violations and made many more things illegal. In other words, it will be a lot easier to find yourself in violation and if you are, it will probably cost you a lot more.

We all want to ensure compliance with the law but I believe that this needs to be both a “carrot and a stick” process. My concern with the original proposal was that it had only ‘sticks’ and no ‘carrots’ in it. I am pleased that the Commission agreed to a series of amendments that I offered to make the final rule a more balanced one. While this rule is not an ideal example of clarity, from my perspective it is much better than what was originally proposed.

To avoid penalties, industry needs to comply with the law. Manufacturers need to make sure that they have in place effective quality assurance and safety compliance programs. They need to know what goes into the components they are using and have appropriate processes to assure that they are in compliance with all relevant standards.

“Let’s put the money where the risk is”

If it’s springtime in Washington, then it’s time for the annual appropriations process, when federal agencies testify before Congress about funding for the next fiscal year. And so yesterday the CPSC appeared before a House appropriations subcommittee to explain our budget request.

The subcommittee asked to hear from Chairman Tenenbaum and myself. I took the opportunity to highlight my concern about using scarce public resources to regulate products that do not present real risks–yet that is what we are doing because of the CPSIA. I argued that the agency needs flexibility to help us respond appropriately to real world situations and avoid consequences that we do not believe most Members of Congress intended.

I was gratified that both subcommittee Chairman Jose Serrano (D-NY) and the ranking subcommittee member, Rep. Joanne Emerson (R-MO), agreed that we need to balance aggressive consumer protection with sensible regulation. Rep. Emerson was especially interested in whether we have done any economic analysis of the CPSIA rules we have been issuing. Unfortunately, in spite of best efforts by Commissioner Northup and me for such studies, I had to report that the agency has not done that kind of analysis. I hope that with Rep. Emerson’s encouragement, we can take a closer look at the economic impact of the numerous rules coming out of the agency.

One member of the subcommittee did argue that concern for protecting small businesses from excessive and poorly-conceived regulation was at odds with consumer protection. That member also stated that we need to remove all lead from children’s environments–asking how expensive could it be, for example, to remove the lead from the ball point pen tip. Unfortunately this argument misses the point that the lead in the pen tip (and many of the other products we are regulating) does not present a real risk of lead poisoning to children and therefore is not something we should be spending the public’s resources regulating.

Hopefully, the positions expressed by members such as Chairman Serrano and Rep Emerson for balance and flexibility will win the day. We are now regulating products that do not present real risks and imposing excessive testing costs that do not necessarily advance safety. This raises the question of best use of scarce public resources; the answer to that question concerns us all, especially our Congressional appropriators.

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