Test the Testing?

Retailers play an important role in helping assure safety, especially under the CPSIA.  Unfortunately, the law’s provisions about retroactivity and general enforcement by state attorneys general, among others, have led many retailers to demand testing beyond what is required.

To help fix that, I have been pushing for a Commission statement to reinforce the fact that retailers may rely on the testing and certification done by their suppliers. 

How would this work? The CPSIA and its regulations require domestic manufacturers and importers of children’s products to have them: 1) tested by a third party testing laboratory approved by the CPSC; and 2) certify compliance with applicable safety regulations based on those tests.  Importers may rely on testing done by foreign manufacturers as long as that testing was done in an approved lab.

My proposal is an enforcement policy to make clear that  retailers may rely on certificates from suppliers and that they would not be subject to penalties for selling products that do not comply with our safety standards if they relied in good faith on those certificates.  Issue a false or misleading certificate or give us a reason to believe the retailer knew or should have known that the certificate was false, and we can come after you. Should the product violate an applicable safety standard, of course it could be recalled.

 Since I hope we can get this policy out next month, help us with your input:

  • If you are a supplier, has a retailer required you to do redundant or excessive testing, or has a retailer refused to accept your test results?
  • If you are a supplier, would such a statement be helpful?  If not, what actions could the Commission take that would be helpful?
  • If you are a retailer, would such a Commission statement be helpful?
  • If you are a supplier or a retailer, what should be in this policy?

Speak up and help write this policy. Thanks!


5 Responses to “Test the Testing?”

  1. 1 Marianne Mullen April 14, 2010 at 1:12 pm

    I own a small childrens retail store and CPSIA has been a nightmare. We have asked our suppliers for GCC’s, statements of good faith, as well as copies of their 3rd party testing. Some have them…many do not because they simply cannot afford compliance with the law because of their small batch status. Our responsibility to our customers as well as our suppliers leaves our hands tied. Our store is liable right now for all products sold, discarded or donated that are not in compliance with the law. The only way we have to protect ourselves is by having “proof” from our suppliers they are complying with law. The problem is for our small batch manufacturers who cannot afford to comply. We have lost many who have closed their businesses based on the penalties that *could* be imposed even though they know their wool, cotton, and embroidered items are lead/phthalate free.

    So would a statement help? Probably not. It is also a clearly explained law that help everyone–retailers, manufacturers and consumers.

  2. 2 Debbie Bernstein April 12, 2010 at 7:00 pm

    Ms Nord-
    Thank you for soliciting responses from suppliers about CPSIA.
    First, the questions you asked:
    •If you are a supplier, has a retailer required you to do redundant or excessive testing, or has a retailer refused to accept your test results?
    Yes on both replies. Jerry Leigh primarily makes screen-printed tee shirts and, to date, we have not found lead in the screen printed coating at all (probably because we use, and have used, lead-free inks for 15+ years in shops in the Western hemisphere). The expense of testing garments to comply has cost people jobs, which, I’m sure you will agree, is the last thing that California or the US needs right now.

    We consider this excessive testing when the ink that is used is inherently lead-free, so testing should be completely exempted for this type of item.

    •If you are a supplier, would such a statement be helpful? If not, what actions could the Commission take that would be helpful?
    I do not think that adding a statement is going to rectify the serious overreach of CPSIA

    While we completely agree that safety compliance is necessary, the issue has been in the toy industry, not in the apparel industry.

    Please reconsider the requests of apparel manufacturers and the AAFA and repeal the screen printing portion of the lead in coatings law (16 CFR 1303). We agree that testing trim items, especially zippers, metal buttons, grommets, rhinestones, and the like, IS necessary.

    Thanks very much

  3. 3 Richard Woldenberg April 11, 2010 at 8:46 pm

    The CPSIA is designed to get at the manufacturer by two means: (a) the market, via the obligation of retailers to patrol the safety efforts of the manufacturers, and (b) the CPSC, to whom manufacturers owe a direct duty to test according to the rules promulgated by the agency and pursuant to statutory requirements under the CPSIA, etc. This is a belts-and-suspenders scheme. The EU, to my knowledge, relies on the market principally.

    The feeding frenzy by retailers under this law stems from their liability obligations under the law. Sadly, a policy by the CPSC may not bring relief to the market, as the CPSC’s policies have no binding authority over zealous and headline-seeking State Attorneys General who tend to focus on children’s products ahead of elections. A good example of this is Jerry Brown, State Attorney General of California and current gubernatorial candidate.

    To bring sense to this scheme, the CPSC DOES need a policy to let retailers off the hook. The reality in the marketplace, which ANYONE selling products today can confirm, is something I call “regulatory compliance exuberance”. Retailers seem to compete these days to see who can comply with the law most vigorously. This competition to see who can be the most holy routinely leads to absurd conflicts with your closest and most valued customers. For instance, a national retailer demanded that we test EVERY item for lead-in-paint. Good idea . . . except that many of our items were unpainted. We had to get our lawyer on the phone with them to get them to back down.

    Another retailer demanded that every one of our items be tested for flammability, including all of our items made of paper. Aside from the common sense objection to this requirement, paper happens to be exempt from the flammability rules. [This exception dates back to a time when Congress still had some common sense.] Another retailer asks us to complete a seven-page safety questionnaire on EACH item we propose to them. We have acheived a sterling safety record for more than two decades – this approach to due diligence redefines “excessive”.

    Few arguments persuade retailers with such irrational fears. We have to frequently resort to conference calls with outside counsel. Frankly, that’s no way to live. It also contributes NOTHING to safety. The time, effort and money spent daily on this torture could be used more profitably in many ways, including better focus on real safety issues. We need help!

    To restore rationality, it is important to limit testing liability exposure to the direct relationship between the CPSC and manufacturers. Does the CPSC want to be in the business of checking forms from now until eternity? I doubt it. I would let retailers rely on the certificates of manufacturers without the need to do deep due diligence, and put the onus on manufacturers to comply. i would also encourage the CPSC to take a more passive approach to patrolling paperwork compliance, too, perhaps limiting its resources to compliance relating only to Section 15 reports or recalls. This might return some balance to the marketplace.

    An inherently technical set of rules focused on the generation of paperwork, rather than on actual issues of safety, is doomed to fail. The agency will NEVER have enough funding to keep up, and will be swamped with administrative duties on paperwork while dealing periodic embarrassing safety lapses. [This same issue was discussed in the context of the public database at last week’s hearing, too, where I believe promises were made for data review that cannot be met, even under the most optimistic (delusional) scenarios.] The current law permits the agency to blame manufacturers each and every time, whack them with higher and higher penalties and even push for tighter rules. All of this misses the point – the agency’s resources are being diverted into highly unproductive activities (that also happen to discourage trade). The rule you propose gives the agency the best fighting chance to survive as an organization devoted to supervising safety, short of an overhaul of the failed legislative constructs of the nasty CPSIA.

    Not only does the CPSC need a policy, it also needs to reach out to retailers and talk them down off the ledge. Your new policy won’t be worth much if you cannot engineer a change in behavior. After all, this mess spawned from the CPSIA and the last two years of zigzagging implementation. The CPSC will need to be engaged in repairing the damage, too. The current environment is not conducive to trade in children’s products. Unless you want all small businesses to go kaput, the agency must change the rules to favor sensible relationships between manufacturers and their dealers. Frankly, most businesses (alrge and small) are UTTERLY unequipped to deal with this law. At this point, the statutes and rules implementing them for basic children’s products (not childcare items) is approaching 2500 pages. NO ONE understands these rules.

    You asked several questions:

    •If you are a supplier, has a retailer required you to do redundant or excessive testing, or has a retailer refused to accept your test results?

    A: Yes to both questions. We are in continual disputes with retailers on our testing determinations. This is not because we are cutting corners. It has a lot to do with our dealers’ fear of liability, combined with their general confusion about the voluminous, changing and convoluted rules promulgated by the CPSC to implement the CPSIA. The most common complaint I get from lawyers is that you cannot get answers from the CPSC. Given the paper blizzard and the inability to identify a discrete list of rules that can be used to govern behavior, it is entirely understandable that well-informed people might disagree about what is required. I imagine this goes on inside the CPSC, too.

    •If you are a supplier, would such a statement be helpful? If not, what actions could the Commission take that would be helpful?

    A: I addressed this above.

    •If you are a retailer, would such a Commission statement be helpful?

    A: We are not a retailer. That said, I believe many retailers will relish this change and will immediately change their rules. Some of our dealers and other national retailers have fundamentally changed their approach to safety and compliance and frankly, it’s unlikely ANY action by the CPSC will get them to turn back the clock. In this sense, the people behind the CPSIA have won a long term victory.

    •If you are a supplier or a retailer, what should be in this policy?

    A: I responded to this above.

  4. 4 Esther April 10, 2010 at 8:22 am

    Such an idea would be nice but I am not sure how practical it is. From what I understand, the CPSIA also holds retailers liable. Until the law changes, I don’t know how we can expect anything different. Even before the CPSIA passed, big box retailers required testing above and beyond existing regulations. The private label programs I worked on required lots of testing because they assumed liability. This proposal will not help retailers who operate private label programs – and that would be nearly all big box retailers.

    This law has created a system of mis-trust up and down the supply chain. We can’t trust anyone because the penalties are so much more severe and the requirements are much more intense. One misstep along the way and your business is over. So while the CPSC may create a policy as you suggest I doubt it will work in the real world.

    Look at Daiso. They probably operated their business in good faith with their suppliers and the CPSC has shut them down for just a few problem products in which NO child was hurt.

    The only real solution is to repeal the stupid law.

  5. 5 Sarah Natividad April 9, 2010 at 5:10 pm

    Such a statement would be extremely helpful. One of the worst aspects of CPSIA is the Sword of Damocles it leaves hanging over the heads of manufacturers and retailers, where they can be fined even when they act in 100% good faith, even when they conduct their own redundant testing. I’d really love to see a statement that let people off the hook for fines and penalties if they act in good faith, collect all their GCCs and test results. If their supplier issues a false certificate and they had no knowledge of it or collusion in it, they shouldn’t be held accountable. Holding them accountable anyway creates an environment in which people either keep their mouths shut and resist the government’s authority, or shamelessly rat each other out to get rid of competitors– or worse, both.

    Too bad you’ll never get the other commissioners to sign off on it though. They and Congress love being able to tell us they’re not going to beat us today, so they can feel really magnanimous and pragmatic.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Enter your email address to subscribe to my blog and receive notifications of new posts by email.

Join 986 other followers


RSS CPSC Breaking News & Recent Recalls

  • An error has occurred; the feed is probably down. Try again later.

Nancy's Photos

  • 80,875 visits

%d bloggers like this: