Archive for the 'Testing' Category



CPSC & Birthday Suits

Few images in life are more innocently adorable than a toddler scampering about in the buff, enjoying life at its simplest and freest. The good news from the CPSC is that you might be seeing that image a lot more. The bad news is that parents might not have much choice in the matter. (A bit of overstatement I will admit, but the principle holds. See below.) 

As I mentioned last week, at least some apparel manufacturers are opting to exit the children’s market rather than brave our labyrinthine minefield of children’s product rules. These requirements, which are arcane to trained lawyers and incomprehensible to most other people, have also forced micro-businesses focused on children’s clothing to cut back or to shut down completely. Thanks to our staff, we knew this sort of thing was coming, and with little if any benefit, but my colleagues decided to forge ahead anyway.

No one should be surprised when business slows or even stops under a regime in which a company must send out even the safest product for round after round of testing, destroying stacks of samples in the process, to make sure each product complies with rules that may have no real bearing on safety, then fell entire electronic forests to document the process.  After all this a company must still live with the risk that our own post hoc judgment is the final arbiter of whether you tested enough.

The entrepreneurial spirit will keep some business owners searching for a solution. We’ve heard of some small businesses that are banding into buying cooperatives to spread the cost of testing. While it is encouraging that the fierce perseverance of American entrepreneurs will seek to overcome the challenges we throw at them, we should not forget that every dollar these companies spend trying to meet our demands is a dollar they can’t spend on any other part of their business, including research to improve product safety. This is a solution to a problem we caused with our testing rule that, in many respects, was its own solution in search of a problem. We required far more than was necessary to ensure compliance with our safety rules, and we left it to the businesses we regulate to figure out how to make it work.

We’ve already missed several opportunities to fix this. We paid lip service (if even that) to the President’s suggestion that we look in our universe of rules for ones we could stand to lose, and we were too modest in our congressionally-mandated examination of our testing rule, the 300-pound gorilla in our regulations. I hope we’ll heed the cries from the market before they turn to silence and kids’ clothes racks—and kids themselves—are bare.

When Two Times Three Occasionally Equals Seven

Think back to when you took exams in school. Now imagine if your exam was sent to two different teachers of the same subject for grading and you ended up with a passing grade from one and a failing grade from the other. You would rightly wonder what is going on, wouldn’t you? This is the same situation that manufacturers and retailers have to deal with: the same children’s product is tested by two different testing labs and it produces two different test results. Since test results can mean the difference between whether you can legally sell your product or have to destroy it, this is not inconsequential.

The Consumer Products Safety Improvement Act (CPSIA) requires that children’s products be tested by a CPSC-accepted third-party laboratory to determine compliance with all applicable regulations.  Congress, concerned about the costs of this testing, asked that we come up with ways to reduce costs. Members of the public have given us comments for reducing the costs of third party testing, and according to studies submitted in several of these comments, it appears standardized testing is not the touted safety panacea due to test result variability.

Below are some problems mentioned in the public comments.

“This represents a major risk for the supply chain if testing in different parts of the world provides different results . . . . The industry experiences test result discrepancy due to different sample preparation methods in laboratories” –Global Apparel, Footwear and Textile Initiative

 “Eight different CPSC-firewalled laboratories found the samples’ lead content to range between less than 50 ppm to 262 ppm . . . .Each laboratory reported different results.
“. . . .
“[N]early 50% of FJATA’s members reported that when products failed, the test results were just over the target limit. In total, almost 90% reported that test results were within 10% of target limits.”
–Fashion Jewelry and Accessories Trade Association

“The Commission should take action to establish some statistical level of testing error.  This will help reduce retesting costs and avoid the need to destroy a batch or lot of consumer products that fails by a margin within the statistical level of error.”  –Society of the Plastics Industry, Inc.

These comments and others like them are troubling since they raise basic questions about the reliability of the testing that is a basis for much of our recent regulatory work. We need to recognize the existence of inter-laboratory testing variability and find a solution that is practicable in the marketplace. One way to get at this issue is to publicly recognize a margin of error. By staying silent on this issue, we force businesses to absorb the costs of borderline failed test results. This translates into destroyed product, lost sales, and, ultimately, price
increases for consumers.

I look forward to the staff evaluations on this issue, particularly because they themselves attest to the variability of test results. Staff found certain lead content results “represent the compliance dilemma surrounding any regulatory lead limit” [1]. I hope that we can reform these requirements to remove the confusion and burden our regulations have created.

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.

End Government by Guesswork

Regulators need good data to make good policy. As President Obama made clear yesterday in his speech to Congress, it’s important to reform regulations that are “unnecessary[] or too costly.” He demanded that federal agencies “eliminate rules that don’t make sense.”

But over the last two and a half years, the Commission hasn’t taken the time to make sensible rules. Instead, we crystal-balled benefits and ignored costs that we refuse to measure. And since our rules came into effect, costs for consumers have gone up needlessly as companies pass their costs on or leave markets entirely. These results are unnecessary and do not benefit consumers. We could have minimized them by performing cost-benefit analyses. Today, Politico posted my op-ed explaining in more detail why cost-benefit analysis makes for smart regulation and why the CPSC needs to get back to competent, sensible regulating. You can read it here.

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!

Tumbling into a Registry

Remember when you were a kid and you really wanted nothing more than to go out and play, but your parents said you couldn’t until you cleaned your room? Did you try to get by with just shoving everything in the closet? That worked right up until the door was opened and everything tumbled out, revealing the sloppiness of your effort. Now replace the child with a federal agency, and replace parental orders with congressional mandates. That’s what’s happening at the CPSC.

Like a child who “cleans” his room by stuffing everything into the closet, the CPSC rushed through a congressionally-mandated small-batch–manufacturers registry sloppily and at the last minute. As a result the agency may be failing to protect the very people the registry was supposed to protect. Last week, we finally issued a press release to let small batch manufacturers (SBMs) of children’s products know how they can take advantage of the testing relief Congress provided SBMs last August. Left unclear was whether an SBM had to be on the registry not to be required to perform certain tests that are mandated to begin in January 2012.

There is no new rule, and there was no Commission action. We shoved everything into a press release and called it a day. And to make matters worse, we issued our press release on December 23, during the holidays and just days before the new testing requirement kicks in. Our insincerity is obvious.

Another policy question not discussed by the Commission was this: Should the registry be public? There are reasonable arguments that it should be. However, there are also reasons why it should not be public since, by publishing the registry, we are implicitly releasing confidential information. (To register, a company has to be below certain revenue and product-quantity thresholds. Commissioner Northup has detailed the problems with publicizing this information, and I won’t belabor them here.) My key concern is there was no Commission-level discussion of this important policy issue.

Instead of working to find a compromise or a solution that would accommodate both points of view—something that could have been accomplished—the concerns of half of the Commission were ignored. The Chairman decided to call the process of establishing the SBM Registry and the attendant issues surrounding it “operational” rather than policy in order to act unilaterally through staff, instead of through a Commission vote.

They have told companies to use the complicated Freedom of Information Act (FOIA) exemption process if they want to keep the CPSC from telling their financial particulars to the whole world. That process requires time and legal expertise, and I believe our retreat to FOIA is contrary to the spirit of the law.

Congress wanted to relieve the product-testing burden for companies least able to bear it and to protect America’s vital small business job-creation engine. Do we really think Congress meant for these businesses to save money on testing just to spend it on lawyers? All these points could and should have been part of a Commission discussion, so people understand the reasoning behind these important decisions.

Will there occasionally be some substantial, fundamental disagreements about the best course of action? Of course there will be, but we owe to each other and the public to work to make those as infrequent as possible and to resolve them as best we can when they occur. I know we can do better, and I hope we will, but I’ll need some help from my Democratic colleagues to build a bridge.

The Song That Never Ends

If you’re a close watcher of the CPSC Commissioner’s Statements page (and, really, who isn’t?) you may have noticed that my good friend and colleague Commissioner Adler and I have had another round on our perpetual motion statement ride. Back when we took the vote on our lead standard, we got a glimpse of this dynamic, as Commissioner Adler waited a couple weeks after the vote and my written statement explaining my vote, then issued a statement of his own, directly attempting to rebut the arguments I made in my statement.  He has done the same thing with respect to the recently-issued Testing Rule.  We are now on our third round of statements responding to each other.

As I have pointed out, I believe that the purpose of a commissioner’s written statement is to explain why a commissioner voted in a particular way.  If we use our statements as vehicles to respond to arguments made in other written statements, then the commissioner who writes last has the last word.  By using statements to explain ourselves, rather than directly to rebut others, we can guarantee that we do not find ourselves where we are now, trapped on a spinning merry-go-round.

Commissioner Adler does not share this view. In his most recent addition to the dialogue, he explained his rationale. He views these statements as an opportunity for “robust discussion and debate on the critical policy issues that come up before the Commission.” Discussion and debate are wonderful things, but, with all due respect, the time for them is before a vote. That way, the discussion actually has a chance to shape the policy issues. Statement after statement after the fact provides no such opportunity.  It risks becoming repetitive very quickly with the potential for descending into the petty.

The astute reader will no doubt be asking why I have responded to Commissioner Adler’s statements—both the Supplemental and the Further Supplemental—if I believe the entire exercise is such a misuse of the forum. The answer is simple: Unilateral disarmament may be noble, but it looks the same as surrender. If I don’t respond to Commissioner Adler’s arguments, no matter how fallacious they are, it will appear that I have conceded them. That is not so, and it would be inconsistent with my public policy role to allow such a misconception to exist.

That reality—that a Commissioner cannot let the conversation be one-sided, even if she feels it is hopelessly misplaced—is precisely why the CPSC statement format works best when it is kept to an explanation of the author’s perspective and decision. If we all stick to that approach, we give the public a clear, concise view of the arguments surrounding each CPSC action (or inaction) and an opportunity to provide informed comment on future debates on similar issues. If just one of us abandons this approach, we will all be inevitably sucked into a potentially endless exchange that leaves the reader confused, annoyed, or both.

I love Lambchop, but The Song That Never Ends is best sung on children’s television, not by the leadership of a Federal agency.


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