Archive for April, 2011

Is Third Party Testing All It’s Cracked Up to Be?

Among the many interesting aspects of the recent House hearing on the need for amendments to the CPSIA was testimony about third party testing.  One of the witnesses recounted a client’s experiences sending the same product out for third party testing and getting back varying results.  Variations occurred when product was sent several times to the same lab, as well as when product was sent to several different labs.  This testimony tracked what I have heard from others. 

Variation in testing results can and does occur with disturbing frequency.  These variations happen even when the lab is not doing anything wrong.  Some factors causing these variations in results relate to things as simple as changes in ambient temperature or humidity or the storage conditions of the sample.  But this illustrates the fallacy of one of the foundations of the CPSIA—that third party testing is the only way to assure the safety of children’s products and, therefore, it must be mandated.

A thoughtful discussion of this issue is especially timely now for several issues under consideration at the agency. Concerning the so-called 15 month rule on testing and certification, the agency has been debating for over a year whether ongoing periodic testing of children’s products always needs to be third party testing.   In addition, as the agency struggles with the question of the CPSIA-mandated lead level migration for products from 99.97% lead free to 99.99% lead free (that is, from 300 ppm to 100 ppm), we all recognize that testing variations will occur.  At these minuscule levels they will occur more often.  The expense involved in testing when neither reliability nor real risk is present should give all of us pause.  And it should make us all understand that third party testing is not the “be all and end all” that the CPSIA makes it out to be.

The draft legislation put forward by Rep. Bono Mack returns to the CPSC the important decision of when third party testing is appropriate and should be required.  The CPSC has the scientific expertise for making that decision and that is why we asked for this flexibility in the CPSIA in 2008.  This flexibility is what we need both to advance safety and to minimize unnecessary testing costs that may crush so many small businesses.  The CPSIA took it away; I hope amendments to CPSIA quickly restore such decision-making to the agency.

Better plans mean fewer shovels

What is the saying, “when you’re in a hole, stop digging”? It’s a waste of energy and in this latest example, it’s a waste of taxpayers’ dollars.

Last August the majority over read the CPSIA when they considered the general wearing apparel rule to be a children’s product safety rule requiring third party testing. I voted against that approach because the general wearing apparel standard provides the same level of protection to everyone and does not differentiate children’s wearing apparel from that of adults.

Nonetheless, the majority ‘dug a big hole’ and voted to require third party testing to the general wearing apparel flammability regulations for fabrics that could find their way to be used in children’s garments. Then there was more digging in the hole. At that time, we also issued laboratory accreditation requirements with the third party testing requirement starting 90 days thereafter. Apparently, our action resulted in the need to do redundant testing on fabrics that were already tested prior to when our requirements went into effect. More dirt flying out of the hole.

The industry asked for, and today we granted, a one year grandfathering of testing so that fabrics that were tested in an approved lab up to one year before the requirements went into effect will be deemed to have been tested in accordance with our requirements. This is a good thing though we never should have gotten this deep in the hole in the first place.

We found that our action last August requiring this testing, while not leading to any appreciable increase in safety, led to redundant testing. Therefore we were called upon to correct a problem that should never have come up. While I am glad to see my colleagues step up and take this corrective action, I believe that a more appropriate reading of the statute would have prevented it from the start. (see my statement)

We need to be better stewards of public resources. The reality is that our resources are limited and probably will be reduced in the future. Yet we have spent valuable agency staff time and effort crafting a solution needed for a problem of our own making—a clear example of how not to regulate.

We need to keep this lesson in mind before we dig the next hole.

Finally Movement to Fix a Broken Law

I am pleased that today the House Subcommittee on Commerce, Manufacturing and Trade is holding a hearing to discuss the draft legislation to solve problems with the CPSIA that have been so evident.  The draft bill will go a long way to addressing many of the unintended consequences of the CPSIA.  It’s time to get our agency back on track and focusing on real safety issues, not imagined ones. 

I hope any final legislation will include the following necessary changes:

  • The lead exclusions need to be amended to give agency more flexibility to address unintended consequences.  The amendment needs to recognize the expertise of the agency to define what is an unacceptable risk based on whether the child’s interaction with the product results in measurable increase in blood lead levels.  Migration of lead limit from 300 ppm to 100 ppm (effective in 2011) should be repealed.  The agency can set an appropriate lower level if dictated by safety.  The scope of the lead provisions is too broad.  The law treats all children – from infants to preteens – the same even though product interaction is quite different and risks are different. The scope should be narrowed to apply to products intended for younger children (recognizing that the agency has inherent authority to deal with risks, regardless of source, to older children).


  • The lead and phthalates provisions need to be amended so that the law applies prospectively, rather than retroactively.  


  • Mandatory third party testing requirements for all children’s products impose a significant burden especially on small businesses.  Testing and labeling provisions need to be amended to minimize the damaging impact on product makers while protecting consumers.  Rather than requiring third party testing in every instance, the agency should be able to set reasonable and appropriate testing and labeling requirements to assure compliance with underlying safety standards.


  • Regulations should be subject to cost/benefit analysis.


  • The Public Database provisions should be amended to include only complaints from consumers who bought or used the product or relevant public health or other public agencies; enhance the ability of businesses to respond to complaints; and include the duty of the agency to assure accuracy of any information made public. 


The discussion draft would go a long way to solving the obvious problems with the CPSIA.  I hope that Congress will move swiftly to pass constructive legislation.

The CPSC today is announcing that it is sincerely concerned about the crushing, job killing impact of the CPSIA on small businesses! 

Oops!  I just checked my calendar – it’s April 1.

Many in the agency have been touting the much anticipated component parts testing rule as a real boon for small businesses.  I share this hope.  Therefore, I am more and more perplexed: if it will be so useful, why is the component parts testing rule (proposed 10 months ago) being held hostage to the more complicated, more complex “15 month” testing and certification rule??? That’s what is happening.  While the component parts rule may help businesses cope with their testing requirements, our very cursory assessment of the testing and certification rule shows it will impose several hundred millions dollars of costs on product manufacturers.  Unfortunately neither the costs nor the benefits of this rule have been properly quantified so the agency will be regulating blindly.  Never mind that there is no reason for sitting on the component parts rule and that our words pointing to it as a boon for small business ring hollow by our actions. 

We haven’t been able to put out succinct, helpful rules (see our muddled definition of “children’s products”). When we have the opportunity to do it with component testing, we delay.

Sadly, the real April fool’s joke is on both businesses and consumers.

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