Archive for the 'Comment Request' Category

Reducing Costs of Third Party Testing While Keeping Safety in Mind

Last August, Congress passed H.R. 2715, a reform that required us to seek public comment and to devise concrete steps towards reducing the costs of third-party testing while continuing our safety efforts. I applaud those that took the time and effort to comment; I myself sent a list of recommendations to staff last December.

We have been in the process of reviewing the public comments and we soon expect to get a staff report addressing those comments. There were over 25 commenters from a wide range of industries and organizations and it has been illuminating to see the different issues experienced by both small and large businesses, domestically and internationally. Among several common themes was the overarching message that the costs of third party testing were severely impacting the global supply chain without a commensurate advancement in safety.

Here is a sample of common themes received.

  • Harmonization: One of the largest complaints from the public is the lack of alignment of international, federal, and state standards. That lack of alignment results in higher costs without additional safety.
  • Small Volume Testing: Many companies still endure high testing costs on their small volume productions simply because they fall into the mid-large manufacturer category.  The result? Companies cease to produce small runs, innovation is thwarted, and the consumer faces fewer useful products.
  • Inter-lab Variability: Commenters from several industries reported inaccuracies among laboratory results, especially with such minute levels as the 100 ppm lead requirement.  How is safety advanced when everyone agrees there are continuing discrepancies?
  • Reducing Testing Redundancies: Many large retailers require testing to be done by specific third party testing laboratories. So if a manufacturer sells to five different retailers, then the manufacturer may be required to perform the same exact test on the same exact product five times.
  • Over-defining  Standards: Unnecessary testing has been required due to overreaching, expansive statutory interpretations, including the over-broad identification of children’s product safety rules.

I look forward to the staff recommendations that should address these issues and others raised by the public. It is vital that we examine our regulations to reduce the costs of third party testing in such a way that safety is not compromised.

Start Your New Year Off Right

As you turn your calendars, there are a few things you should be keeping in mind. The Commission’s stay on the enforcement of the Third-Party Testing and Certification Rule is gone as of January 1st. So you should make doubly sure that your manufacturing program is in compliance if you make a children’s product that is subject to a testing rule.

And, if you’re a small-batch manufacturer, you should hurry up and sign up on the Commission’s Small Batch Manufacturers’ Registry here to give yourself peace of mind that you are exempt from certain testing requirements until the Commission takes further action.

Finally, and most importantly, in all of the regulations that the Commission has put out over the past two years, we have not given any serious consideration to the cost imposed on the economy. Congress, after hearing some loud complaints, decided to fix that with H.R. 2715, the law passed last summer that requires the Commission to consider ways to reduce the burden of third-party testing, among other things. The Commission published a series of questions on the issue in October, and we asked you for your ideas on the ways the Commission can reduce costs. We need your ideas by January 23rd. So submit your comments here!

I will be pushing internally to make sure that the staff and the Commission give serious, thoughtful consideration to the ways we can reduce costs, and your ideas in particular. But we can only be successful in reducing costs if we get serious—and perhaps out-of-the-box—ideas from you on how we can best achieve those reductions. So, please, help us ensure product safety in the most rational, cost-effective manner possible; send us your comments!

Help Wanted: Fixing the Testing Rule

Yesterday, with little fanfare, the agency posted in the Federal Register an announcement that we invite comments from the public on ways to reduce the costs of third-party testing of children’s products required under the Consumer Product Safety Improvement Act.  This inquiry is mandated by a new law (H.R. 2715) passed by Congress this past summer.  After reviewing the comments we receive, we may either implement cost-saving changes to our regulations and/or report to Congress on additional authority we need to reduce costs.  This new law explicitly acknowledges what our staff economists have told us—third-party testing by outside labs is very expensive and will result in increased costs and reduced choices for consumers. 

I remain hopeful (call me naïve!) that, with this push from Congress, my colleagues will finally get serious about addressing the costs of the CPSIA in an honest and forthright manner.  However, the recent vote on the Testing Rule, which imposes expansive and expensive third-party testing requirements beyond what is required by statute, may show this hope is misplaced.  Today I filed a supplemental statement describing why I believe that the CPSIA does not require that all periodic continuing testing of children’s products needs to be done by a third-party lab.  Had my colleagues adopted this interpretation, testing costs would have been lowered without sacrificing safety and without the months of staff time the majority’s piecemeal approach will require.

I challenge readers of this blog to respond to the Federal Register request with comments on how to lower testing costs.  Be creative and constructive in your comments!  All suggestions will be read and considered, and I will be pushing my colleagues and our staff to actually think about ways to drive down costs and adopt the best ideas we get.

Hope you have a Subscription to the Federal Register

Things went according to the majority’s predetermined plan this morning when the CPSC voted to reinterpret the definition of “unblockable drain,” reversing an earlier interpretation and costing states and municipalities significant sums to either reengineer perfectly safe swimming pools or lock the gates. In a small nod to process, the majority did agree to accept comments from the public. But they did not want to hear comments on the wisdom of the reinterpretation, but only on when should we start enforcing the change.  As I said during the meeting this morning, it’s like saying “we’re going to guillotine you, now tell us what day would be convenient.” 

I would urge everyone who is impacted by this action to take the commission up on its offer.  I hope you will comment and I hope you do not limit yourselves to discussing the effective date.  Policymakers need to hear from those who are impacted by what they decide. 

And, by the way, if you are looking for a press release that explains what the Commission did this morning, don’t bother.  Rather than announce our action to the public like we regularly do, some selected few will get an email about this from our press office and everyone else will have to read about it in the Federal Register. 

Read my statement on this vote here.

100 PPM: One More Bite at the Apple

The CPSIA requires that children’s products sold after August 14, 2011 contain no more than 100 parts per million of lead and that requirement applies retroactively to all products in inventory and on store shelves.  The retroactive nature of the law accounts in part for the economic devastation and mindless waste that has resulted over the last two years as companies tried to comply.  The 100 ppm requirement goes into effect unless the CPSC finds that for certain products or classes of products this requirement is not technologically feasible. 

Last month, the agency held a hearing on what constituted technological feasibility.  A webcast of that hearing can be found on our website.  In preparation for that hearing, we asked for comments from the public.  Because Commissioners and agency staff were given little time to ask questions of the witnesses at the hearing, the record of the hearing has been held open so that Commissioners can submit additional written questions to the witnesses.  In addition, any member of the public may submit additional information. 

The Commission voted yesterday to keep the record open for 15 days after the notice is published in the Federal Register. (Publication occurs about a week after the notice is submitted, so effectively you have only three weeks left to respond.)  Therefore, anyone with additional thoughts on the issue of how we manage the migration to 100 ppm needs to let us have your comments and suggestions  asap.

How Low Can We Go?

We have another big CPSIA decision looming on the horizon and therefore need your input and participation.

CPSIA provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible.  The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products.

A hearing is scheduled for Wednesday, February 16th.   In order for me to act from an educated perspective, I need the evidence and data the public supplies, along with staff analysis.  I invite you to speak up and tell us how this lower lead limit will effect you. For details about participating, please refer to the Federal Register notice.  The deadline to sign up to present your remarks in person is February 10th.  You may also submit written comments and watch on webcast.

Last July, we solicited comments and information about manufacturers’ ability to meet the 100 ppm standard. Some commenters stated that source materials, including recycled materials for metal alloys, cannot comply consistently due to the variability of the materials and that plastics could comply only if  virgin plastics are used.  We heard about significant variability among test results due to variations in testing methodology and procedures.  Several people stated there were not demonstrable health effects reducing lead limits from 300 ppm to 100 ppm in light of the relative inaccessibility of lead that is bound in plastic or metal.  Others said there are children’s products in the market now that meet the 100 ppm lead limit, so that it is not only possible, but essential for public health to meet the lowest levels feasible.

The Federal Register notice outlines issues where staff is seeking new or additional information. Questions that are of particular interest to me include:

  • how do we evaluate whether a product that complies with the lower limit is ‘commercially available’;
  • what factors should be considered in an analysis of the public health protections associated with substantially reducing lead in children’s products, and
  • does consideration of technological feasibility include economic implications?

Before we vote to regulate, it is critically important that the Commission understand the practical and safety implications of lowering the lead levels in children’s products. We need your input so we can make an informed decision.

A Wrong Way and A Right Way—Which Will We Choose?

On November 17, the agency will vote on the rule finalizing the blueprint for the public database of consumer complaints mandated by the CPSIA.

Everyone seems to agree that the purpose of the database is to assist consumers in understanding risks, and in making well-informed choices about products they buy and use.  Indeed, in a recent article, an advocate for the database argued that folks should stop fighting about it and that “time would be better spent in ensuring it is as accurate and useful as possible.”  At last, something we can all agree on! 

My colleague, Commissioner Northup, and I agree that the database will be a useful tool for consumers only if it is accurate.  We have spent hours debating this point with the other commissioners.  On November 17, we will once again make the point that the database will not serve its purpose if it is a “garbage in/garbage out” grab bag of unsubstantiated complaints from any source. 

With respect to the database, there is a right way to do it and a wrong way to do it.  Unfortunately, so far a majority of my colleagues have not chosen the right way.  This is unfortunate because the approach insisted upon by the majority will not allow the database to achieve its objective.  While there are a number of objectionable provisions in the draft final rule, here are two issues that are especially problematic:

  • Who can submit complaints—Congress provided us with a list of those whose complaints should go up on the public database.  We have contorted the plain language Congress used into definitions that have no meaning.  For example, Congress told us to accept complaints from “consumers.”  The majority has determined that since everyone consumes something, we need to accept complaints from everyone—no need for any relationship to the product, harm or incident.  Think plaintiff lawyers trolling for clients or unscrupulous competitors wishing to harm a product’s reputation. 
  • Treatment of inaccurate information—Consumers are not served, and could be harmed, by a database with inaccurate information.  While Congress seemed to suggest a process for correcting inaccuracies, the rule has been written so that the agency is under no obligation to address such misinformation.  There is a real chance this could be a “post it and forget it” exercise.    

Since Congress has been clear in its direction to establish a public database, let’s try to do it right.  Commissioner Northup and I have redrafted the proposed rule to try to address the many issues that were raised in the comments the agency received.  If you click here, you will be directed to that redrafted rule.  Time is of the essence since the vote is in a little more than a week.  Please quickly send back your reaction to this draft. Help us get it right.  We intend to offer it as a substitute when the commission takes up this matter on November 17.  Please send me your reaction to the proposal either post it here on the blog or email it to me at

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