Archive for December, 2010

It’s That Time of Year (and I don’t mean the holidays…)


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.

Everyone’s Wish List

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.

What Were They Thinking?

Throughout the debate on the public database, the majority referred to Congressional intent to support a number of their dubious policy decisions. Indeed. What kinds of things indicate Congressional intent?

How about a letter received last week by the agency from Representative Joe Barton, one of the principal Members of Congress involved in drafting the CPSIA.   While during the debate the majority disavowed knowledge of his letter, Representative Barton stated emphatically that the majority’s interpretation of Congressional intent was wrong on a number of fronts.  In other words, the majority’s take on what Congress intended is not quite in sync with what some actual Members of Congress have to say.

 Here is Congressman Barton’s letter in full (Representative Barton Letter on Congressional Intent of Database). You read and you decide what was intended.

“Due Process is a flexible concept. . .” Huh?!

When our agency is considering rules, we are required by the Administrative Procedure Act to give the public notice and opportunity to comment. If we change fundamentally the ideas we put out for comment, due process requires us to re-propose the rule so the public can comment on these major changes.

With respect to the public database vote last week, the majority did not take this approach. Instead the majority simply dismissed due process with the hollow statement, in the preamble to the rule, that “due process is a flexible concept.” Brushed aside were facts: the definitions of who can submit complaints disregarded the public comments we had received and fundamentally changed a core definition; the posting of materially inaccurate information was fundamentally changed from what had been proposed. No comment was sought on these major changes.

When it comes to due process, that’s not flexibility. That’s inexcusability. It’s regulation by surprise.

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