Archive for the 'Lead' Category



Playing Around with Toy Makers

Today the Washington Times posted my latest Op Ed piece on overregulation and its costs on society. Let me know what you think. Has your company experienced hardships because of the regulating we’re doing? Have you had to exit the children’s market altogether? As a consumer, have you noticed the options for children’s products has decreased at the stores? I want to hear from you. Here’s the op ed in its entirety:

Regulatory Reform: All Talk, No Action at the CPSC

 The Obama Administration has recognized that excessive and unnecessarily burdensome regulations are a drag on the economy.  As the Administration has worked to promote job creation, it has publicized its efforts directing agencies to eliminate or revise unnecessarily burdensome and inefficient regulations.  Apparently, the Consumer Product Safety Commission (CPSC) has not gotten the word.

The CPSC’s failure to get the word is no more apparent than in its efforts to implement the Consumer Product Safety Improvements Act (CPSIA).  The CPSIA was passed after agency recalls of imported products shined a light on the issue of import safety.  The goal of the law is to assure that products intended for children are safe, a goal for which there is universal agreement.  The devil, of course, is in the details, and the details of implementing this laudable statutory goal are devilish for sure. 

Under the law, permissible levels of lead in children’s products are to be reduced progressively, over time.  Currently, children’s products must be 99.97% lead free, and in August, that level increases to 99.99% lead free, unless the agency finds that achieving that minute trace level is not technologically feasible.  In an unfortunate example of politics driving science, the agency just voted along party lines, determining that there are no technological impediments to achieving that level.  That decision was based on a record that is short on facts but long on speculation.  Let’s look at what we do and do not know. 

The most important issue is public health so let’s look at the risk of lead exposure.  While it is a given that children should not be exposed to lead in their environment, it is also a given that consumer products are not a significant source of lead exposure.  Elevated blood lead levels dropped dramatically from the mid-1970’s when lead paint and leaded gasoline were banned.  According to the EPA, exposure to leaded paint in old houses and contaminated dirt and dust remain the biggest sources of lead exposure.  Other sources of lead include drinking water (because of lead plumbing materials still found in some municipal water systems), certain dietary supplements, and certain kinds of pottery, ceramics and crystal, among other things.  Even chocolate can have up to 10 times more lead than what we are mandating for various consumer products.  CPSC staff has told us that the substantial health benefits from lowering lead in children’s products have already been achieved.  The agency expects that further lowering the lead limits to pick up these trace amounts will result in minimal increased health benefits. 

If the health benefits of this policy are not appreciable, what about the costs of moving from a 99.97% to a 99.99% lead free environment?  Lead can be a trace contaminant in recycled plastics and metals.  Therefore, our staff has advised manufacturers of children’s products that, to meet the new level, they may need to avoid the use of recycled metals and plastics.  We do not know is the extent of the use of recycled materials in children’s products.  We do know that virgin plastic is between 50 and 100 % more expensive than recycled options.  Therefore, contrary to the efforts of other agencies trying to push the use of recyclables, the CPSC is pushing industry away from recyclables to more expensive materials without considering whether there is an appreciable health benefit.

With respect to metals, all of the screws, nuts, bolts, and other metal hardware used in children’s products will need to be 99.99 % lead free.  We know that steel under the statutory limit–such as surgical stainless steel – is available but is substantially more expensive than general use steel.  Lead-free brass alloys will cost manufacturers at least 10 % more than other brass alloys.  Low lead tin is available at a 10 to 15 % price premium.    There are, however, questions about availability and variability of these alloys.  The availability of a low-lead alloy does not necessarily indicate that it is economically suitable for a particular application.  There also is a concern that as we push manufacturers to use higher cost materials, they may use less durable materials, such as substituting plastic for metal. This result would present its own safety issues.  In addition, the costs of testing to assure compliance with the 99.99 % lead free limit are expected to increase significantly.

These cost increases are likely to result in a combination of price increases and reductions in the types and quantities of children’s products made available to consumers.  According to the excellent CPSC staff, some firms may reduce the selection of children’s products they manufacture, may exit the children’s market altogether, and in some cases, may even go out of business.  The CPSC staff notes that these costs will have relatively greater consequences for smaller manufacturers and artisans who have less bargaining power, and more limited production runs over which to spread testing costs. 

These are not speculative costs–they are real.  The bicycle industry has told us that, as a result of the CPSIA, they have experienced a 50 % cost increase for their product components.  They have told us that 10 out of 40 manufacturers – 25 %– have stopped producing children’s bicycles and that they expect even fewer manufacturers producing youth bicycles once the new lead limit goes into effect.  Some all-terrain vehicle manufacturers have responded to the lower lead limits by no longer producing youth ATV’s, leaving children no option but to use the more dangerous adult ATV’s.  The Handmade Toy Alliance, representing small toy makers, actually maintains a growing list of companies that have been driven out of business by this law; the list continues to grow.  This is not just some theoretical exercise; these are real people who have lost real jobs and who are being forced to pay more for products with no real safety benefit.

In brief, this drive to a pure lead-free environment with respect to children’s consumer products, especially those that children cannot mouth or swallow, will not give us more appreciable public health benefits.  No child has gotten lead poisoning from riding a bicycle.  This effort will, however, drive up the costs of materials, drive some producers out of the market, cost jobs, and reduce consumer choice.  All the talk about regulatory reform, if not backed up by action, will not change these results.  Leadership and a sensible regulatory policy that is mindful of the real world consequences of government action perhaps could.

Big Costs + No Health Gains = Crazy Results

Tomorrow, the Commission will consider whether, under the CPSIA, children’s products need to meet a new standard that drives lead content from 99.97% to 99.99% lead free.  Our staff has not told us there are health benefits to be gained from this change.  Our staff has told us that, by regulating at this miniscule trace level, we should expect to drive up costs, limit consumer choice, and drive some businesses out of the market (thereby costing jobs).  I predict that this result will not be an issue for a majority of my colleagues; it should be. 

Last week I got an email from an executive of a company whose product line includes some children’s products.  He told me that his company planned to spend at least $80,000 trying to retrofit two products totaling 16,000 units:

  • In one product, a part that will have to be replaced contains 105 ppm.  That misses the proposed limit by less than one thousandth of one percent. 
  • In this product, a second part contains 179 ppm, so it is 99.9821% lead-free but not 99.99%. 
  • In the second product, a part tested at 114 ppm, making it 99.9886% lead-free but not 99.99%.

One of the products is a small toggle lock used on the top drawstring closure of a sleeping bag.  The other is a similarly innocuous product that kids do not mouth or swallow. 

This expense is just for two products from one company.  Imagine how many others are out there making children’s products that will bear similar or greater cost for no health benefit.  There is no concern in any corner, including here at the agency, that these products may expose children to dangerous levels of lead.  Yet while these products are perfectly legal today, come August 15, they cannot be sold.

The agency had the opportunity to try to stop such a wasteful outcome.  Instead, we are poised to require these kinds of crazy results throughout the economy.  While the law is written in a way that greatly limits our options to stop these crazy results, even within the framework of the law, we have done very little to try to regulate in a more sensible manner. 

We need to direct the agency’s resources to address actually dangerous products. Congressional action to correct the obvious problems with the law is also sorely needed.  In the meantime, the waste continues and the costs we all must bear increase.  Our staff has told us that health benefits to be gained are minimal from this effort but great expense will occur.  Consumers are not benefited by such a result.

New CPSC Lab Opens Today!

  This week the agency is opening our new laboratory facility in Rockville, Maryland.  This is a long awaited move for our staff.  For years we have recognized that the old lab was outdated and needed to be modernized. This is a need I flagged for our Congressional appropriators back when I first assumed the role of acting chairman and, in that role, I was very pleased that we were able to finally sign the lease for 5 Research Place in early 2009.  This came about only because of very hard work on the part of a number of senior career staff and, especially, the agency’s long-time executive director, Patsy Semple.  Even though the time it has taken to finally move in was much longer than anticipated, the move will greatly benefit the agency, and ultimately the consumer. 

It is obvious that, for the agency to move into the 21st century, we need 21st century technology and facilities.  With the new lab, this goal is being realized.  Now our engineers and scientists will be under one roof and better able to communicate with each other, while still having close access to CPSC Headquarters.  The space will allow for more product testing, more kinds of product testing, and quicker turn around on test results.  I am proud that I, together with so many on the lab improvement team, could be a part of furthering our agency’s goal of protecting American consumers.  I look forward to all the great things that will come out of 5 Research Place in the future and congratulate everyone involved in the process of upgrading our research facilities.

Logjam Broken?

 I am glad to see that the House Subcommittee on Commerce, Manufacturing and Trade voted today to support a bill to enhance CPSC’s authorities to prioritize based on risk and thereby protect consumers while reducing some of the unintended consequences of the CPSIA. I hope that momentum for some real reform continues to pick up pace.

 Arguments being made against the bill do not stand up to scrutiny. For example, it is said that this bill will do away with third-party testing: not true. Mandatory third-party testing is preserved for the standards that CPSIA listed as priorities (i.e. lead paint, cribs, pacifiers, small parts, lead content in children’s metal jewelry, baby bouncers, walkers, jumpers and other durable nursery goods). In addition, CPSC is allowed to require third-party testing for other standards as it determines is needed for consumer safety, as well as continued compliance testing. The point is that the expert agency will decide what testing makes the most sense.

 It is said that this bill creates “common toy box” problems, i.e. children playing with older children’s toys. If the “common toy box” problem is the concern that children will use something beyond their age range, where does this theory stop when the child plays with things throughout the house?

Anyone who has raised children recognizes the silliness of the “common toy box” argument. Most parents remember sitting their baby on the kitchen floor with a pan and metal spoon to bang away with. Of course, the lead in these products – used for cooking and eating – is considerably higher than what is specified in the CPSIA. And parents know that 12-year-olds do not tolerate lightly toddlers getting into their stuff. But more importantly, the common toy box argument does not recognize the long standing practice of this agency to regulate products based on the hazard they pose as determined by the age of the child. For example, we recognize that small parts present a choking hazard to small children but that same hazard is not present for older children. Therefore we ban small parts in toys intended for toddlers. We do not take the position that a common toy box means that small parts are banned in all toys. We look at the risk and then regulate as appropriate. Lead exposure in children’s products should not be treated any differently.

Other arguments being made against the bill also do not stand up to examination. It’s good news that this bill is on its way to full committee consideration. The sooner CPSIA reforms are in place, the sooner CPSC can return to focusing its resources on consumer risks that matter most.

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.

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.

At Least the Wall Street Journal Is Listening

The Wall Street Journal got it right with this editorial today…

 

Get the Lead Out, Sir

Nutty test standards give Obama a real chance to help business.

President Obama has been on a campaign to shake his antibusiness reputation, so a good place to start would be to revisit the Consumer Product Safety Improvement Act, a mess of a law that has put new burdens on small businesses.

In 2008, Congress passed the law in a rush to do something after a scare over lead in toys imported from China. Its problems were quickly apparent, sweeping products from books to bicycles into the dragnet for lead standards. But while businesses pleaded, Democrats stood behind it as a pinnacle of consumer protection while blaming the Consumer Product Safety Commission for any enforcement problems.

The CPSC has done what it can to allay the fiasco of unintended costs and disruptions for small businesses, including staying large portions of the law. But as Commissioner Nancy Nord told House Democrats last year, the language of the bill is drafted in such a way that fixing all the problems is impossible because the “exclusions and exemptions process is not workable.”

Instead of being able to focus energy on products that present real risks to kids, the CPSC’s staff has had to regulate products that pose no harm. The likelihood of a toddler swallowing an all-terrain vehicle, for instance, didn’t stop that product from being swept into the maw.

The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called “15 Month Rule,” Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company’s toys and products will cost his company some $15 million per year.

It gets worse. In August, the lead standard is set to go down to 100 parts per million from the current level of 300 parts per million. Like the earlier step down, the new standard is supposed to be retroactive when it goes into effect, meaning that it will apply to toys and children’s products manufactured before that date, which were perfectly legal when they were made. All five CPSC commissioners have said they don’t believe the new standards should be retroactive when they go into effect this summer.

At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as “necessary to protect kids and families across the country.” We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.

Energy and Commerce Chairman Fred Upton and Subcommittee Chair Mary Bono-Mack have said they will soon introduce a bill that would finally end a regime that has clobbered small businesses with ill-conceived regulations. If Mr. Obama wants to help small business job creation, he could agree that the government doesn’t need to mandate a lead testing protocol for every product known to man.

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.

Stay of Enforcement: Let’s Decide Already

I recently wrote about the status of the stay of enforcement (SOE) of the lead content testing and certification requirements of the CPSIA.  Unless the CPSC acts, the SOE lifts on February 10, in 3 weeks.  We have received a number of petitions and requests to extend the stay.  Although specific action has not yet been taken – on either these petitions or my request for a Commission meeting on these issues – I can assure you there have been a lot of conversations going on and serious thought being given to this impending problem.

 I believe that, as we address the SOE, we need to be mindful of its relationship to the component parts proposed rule and the proposed testing and certification rule (the “15 month rule”).  Commissioners have pointed to the availability of component testing as a way of easing the significant testing burden on final product makers, especially small crafters.  We have heard from some component makers that they are not planning to third party test and certify until they understand the rules of the road and can make a rational business-based decision.  It is understandable that a component parts manufacturer would not want to do the initial third party testing and certification without understanding what its continuing testing responsibilities may be.  On the other hand, perhaps there are some component makers who are willing to take on this unknown liability.  We just do not know. 

Whether this is resolved in a public discussion as I requested, or otherwise, we need to reach a decision ASAP.

To Interpret or Not to Interpret? That is the Question…

Today the agency issued its final rule to define children’s products.  While the final rule is miles ahead of the rule we received in late August (read my previous blog about the rule here), it is still miles behind where we should have been.  After hours and hours of staff time in an attempt to come to an agreement on certain issues within the rule, we were still left scratching our heads and nowhere close to being together. 

What we put out today is neither helpful, nor clear.  Our attempt to define what is and is not a children’s product has left a vast expanse of ambiguity.  This rule was not required by the CPSIA, instead we took it upon ourselves to provide guidance.  It was put out with the best of intentions, but in my opinion, may cause more harm than good, confusing an already confused public.  Safety was not advanced today.  This rule should not have been adopted.

Read my statement on the vote here.


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