```

[Senate Hearing 111-1106]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 111-1106

                            OVERSIGHT OF THE
                  CONSUMER PRODUCT SAFETY COMMISSION:
                  PRODUCT SAFETY IN THE HOLIDAY SEASON

=======================================================================

                                HEARING

                               before the

   SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 2, 2010

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

                  U.S. GOVERNMENT PRINTING OFFICE
71-129 PDF                WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas, 
JOHN F. KERRY, Massachusetts             Ranking
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California            JOHN ENSIGN, Nevada
BILL NELSON, Florida                 JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey      ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas                 GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri           JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota             DAVID VITTER, Louisiana
TOM UDALL, New Mexico                SAM BROWNBACK, Kansas
MARK WARNER, Virginia                MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
                    Ellen L. Doneski, Staff Director
                   James Reid, Deputy Staff Director
                   Bruce H. Andrews, General Counsel
                 Ann Begeman, Republican Staff Director
             Brian M. Hendricks, Republican General Counsel
                  Nick Rossi, Republican Chief Counsel
                                 ------                                

   SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE

MARK PRYOR, Arkansas, Chairman       ROGER F. WICKER, Mississippi, 
BYRON L. DORGAN, North Dakota            Ranking
BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 JIM DeMINT, South Carolina
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota             JOHNNY ISAKSON, Georgia
TOM UDALL, New Mexico                DAVID VITTER, Louisiana

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on December 2, 2010.................................     1
Statement of Senator Pryor.......................................     1
Statement of Senator Wicker......................................     3
Statement of Senator Udall.......................................     5
Statement of Senator Klobuchar...................................    27

                               Witnesses

Hon. Inez M. Tenenbaum, Chairman, U.S. Consumer Product Safety 
  Commission.....................................................     5
    Prepared statement...........................................     7
Hon. Anne M. Northup, Commissioner, U.S. Consumer Product Safety 
  Commission.....................................................    11
    Prepared statement...........................................    13
Rachel Weintraub, Director of Product Safety and Senior Counsel, 
  Consumer Federation of America.................................    32
    Prepared statement...........................................    34
Stephen Lamar, Executive Vice President, American Apparel & 
  Footwear Association...........................................    40
    Prepared statement...........................................    41
H. Garry Gardner, MD FAAP, on Behalf of the American Academy of 
  Pediatrics.....................................................    46
    Prepared statement...........................................    48
Jill Chuckas on Behalf of the Handmade Toy Alliance..............    52
    Prepared statement...........................................    54

                                Appendix

The Printing Industries of America, Book Manufacturers' 
  Institute, Inc., and the Association of American Publishers, 
  Inc., prepared statement.......................................    63
Letter dated December 2, 2010 to Hon. Mark Pryor and Hon. Roger 
  Wicker from Stephanie Lester, Vice President--International 
  Trade, Retail Industry Leaders Association.....................    65
Richard M. Woldenberg, Chairman, Learning Resources, Inc., 
  prepared statement.............................................    67
Paul C. Vitrano, General Counsel, Motorcycle Industry Council, 
  prepared statement.............................................    71
Response to written questions submitted to Hon. Inez M. Tenenbaum 
  by:
    Hon. Mark Pryor..............................................    72
    Hon. Maria Cantwell..........................................    77
    Hon. Frank R. Lautenberg.....................................    79
    Hon. Amy Klobuchar...........................................    80
    Hon. Tom Udall...............................................    83
    Hon. Kay Bailey Hutchison....................................    84
    Hon. Roger F. Wicker.........................................    85
    Hon. Johnny Isakson..........................................    90
Response to written questions submitted to Hon. Anne M. Northup 
  by:
    Hon. Mark Pryor..............................................    91
    Hon. Kay Bailey Hutchison....................................   104
    Hon. Roger F. Wicker.........................................   105
    Hon. Johnny Isakson..........................................   123
Response to written questions submitted to Rachel Weintraub by:
    Hon. Maria Cantwell..........................................   131
    Hon. Tom Udall...............................................   133
Response to written questions submitted by Hon. Roger F. Wicker 
  to Stephen Lamar...............................................   133

 
                            OVERSIGHT OF THE
                  CONSUMER PRODUCT SAFETY COMMISSION:
                  PRODUCT SAFETY IN THE HOLIDAY SEASON

                              ----------                              

                       THURSDAY, DECEMBER 2, 2010

                               U.S. Senate,
      Subcommittee on Consumer Protection, Product 
                             Safety, and Insurance,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:05 a.m. in 
room SR-253, Russell Senate Office Building, Hon. Mark Pryor, 
Chairman of the Subcommittee, presiding.

             OPENING STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. I will go ahead and call our hearing to 
order here, in the Consumer Protection, Product Safety, and 
Insurance Subcommittee, on the oversight of the Consumer 
Product Safety Commission.
    I want to join my--I want to thank my fellow Senators for 
joining us today--and I want to join all my fellow Senators in 
thanking the Commission and the other witnesses for being here 
today. We really appreciate your time and your attention to 
these very important issues.
    This is a timely discussion, in light of the current 
holiday shopping season, a time when the safety of products on 
store shelves is paramount.
    I'd like to express my gratitude to Chairman Rockefeller 
for allowing me to hold this hearing, and to his excellent 
staff for all the great things that they've done in preparation 
of this, and also, of course, of the minority staff, because 
they've been great to work with, as well.
    Each year, billions of toys are purchased by consumers and 
end up in the hands of children. Unfortunately, not all these 
toys are safe. Last year, 12 children died as a result of 
injuries related to toys, and thousands ended up in emergency 
rooms. While it's difficult to prevent all such injuries, it is 
the mission of the Consumer Product Safety Commission to 
protect the general public against unreasonable risk of injury 
and death associated with toys and other consumer products, and 
to assist consumers in evaluating the comparative safety of 
those products.
    Each year, on average, over 28,000 deaths related to 
consumer products under the agency's jurisdiction occur. 
Researchers estimate the cost of deaths, injuries, and property 
damage associated with consumer products totals more than $800 
billion annually in the United States. Consequently, the 
importance of this agency and the efforts to reduce these 
statistics while building safer communities and a safer 
marketplace cannot be overstated.
    I welcome the new leadership of the Consumer Product Safety 
Commission. Chairman Tenenbaum took the helm in June 2009, and, 
since then, she's demonstrated impressive initiative and energy 
in implementing the law and addressing product safety problems. 
I look forward to hearing her testimony and exploring 
activities under her direction.
    Just last week, the Commission voted to adopt a final rule 
establishing the CPSC's publicly available product safety 
information database, as mandated by Congress. A repository of 
consumer complaints and incident reports, the database is 
designed to grant all of us timely access to critical product 
safety information, allowing us to scan for trends or patterns 
of potentially hazardous product in the marketplace.
    As one of the lead authors of the database revision and the 
law, I support the Commission's final rule, and I'm pleased 
that the Commission has crafted the rule in a manner that will 
make this information available widely to the general public. 
In particular, I endorse the Commission's effort to empower all 
consumers who have verified information regarding a product 
safety hazard to report that incident.
    I applaud Chairman Tenenbaum's leadership in this area, 
which is in keeping with congressional intent behind the 
provision to maximize reporting of product safety incidents and 
to make this information accessible to the general public as 
quickly as possible. And I look forward to its official launch 
in March 2011.
    Just as a reminder: Before the Congressional overhaul, the 
CPSC was an agency in distress. Its staffing levels and funding 
levels had been choked, over time. On numerous occasions, it 
lacked a full quorum of commissioners, inhibiting its ability 
to conduct important official business. Public notification of 
public hazards was inadequate. The marketplace was replete with 
dangerous and, in many instances, toxic products that were 
compromising the safety of American families, not least of all 
our children. By 2007, news reports were exposing millions of 
defective toys in the stream of commerce: lead-tainted 
children's jewelry; tiny magnets posing ingestion hazards; 
Aquadots that converted to the date-rape drug, once ingested. 
The CPSC was slow to act to protect Americans, and it was only 
after newspapers shown a spotlight on infant deaths and 
injuries that the Commission chose to take action.
    Congress, and in particular this committee, responded to 
the crisis in product safety by overhauling the agency, 
granting it essential new tools and authorities to enable it to 
properly execute its mission and protect members of the public. 
The Consumer Product Safety Improvement Act was the first 
significant overhaul of the federal Consumer Product Safety 
laws since the CPSC's inception.
    I'd like to now turn it over to the Ranking Member, my 
neighbor and friend from Mississippi, and say that we look 
forward to revisiting the CPSIA over the course of this next 
Congress. And we always have open doors to listen to industry 
and advocacy groups, to talk about some of the--maybe some of 
the things we got right and some of the things maybe we didn't 
get so right when we passed the legislation.
    But, Ranking Member Wicker, thank you for being here. Look 
forward to your opening statement.

              STATEMENT OF HON. ROGER F. WICKER, 
                 U.S. SENATOR FROM MISSISSIPPI

    Senator Wicker. Thank you, Mr. Chairman. And thank you for 
that concluding statement, which I think is very valuable and 
helpful. And I do look forward to revisiting this issue during 
the next Congress, should you and I be allowed to continue in 
this capacity. And thank you for holding this hearing.
    The CPSC is a small agency with a large but important 
mission: to regulate more than 15,000 consumer products, 
keeping the public safe from preventable injuries and deaths 
caused by unsafe and defective products. As the title of our 
hearing suggests, we are especially reminded of the importance 
of this charge during the increased consumer buying that comes 
with the Christmas season. I thank the Chairman for taking this 
opportunity to provide oversight and for his commitment to 
consumer safety.
    The CPSC is currently involved in many areas that affect 
American consumers. From its efforts looking into dangers in 
certain types of cribs to the continuing investigation into 
tainted drywall that has significantly impacted many of my 
constituents, there are many Commission activities which 
deserve our attention. However, for the last 2 years nothing 
has dominated the Commission more than the implementation of 
the CPSIA. The CPSIA was enacted in August 2008, largely in 
response to concerns over numerous toy recalls for violations 
of existing lead limits in paint. It represents the most 
significant changes to the Commission's regulatory environment 
since it was first created.
    The intention was a noble one that I think we all support 
efforts to improve safety. The law attempts to do so by 
tightening the regulations over children's products, focused 
primarily on reducing the content of lead and phthalates. 
Unfortunately, despite the hard work that was put into the law 
and the Commission's efforts to implement it, the result has 
not been what was intended.
    The last 2 years have seen this law increase costs and 
create uncertainty for businesses, requiring significantly 
increased compliance requirements and unnecessary testing of 
``safe'' products. Some affected businesses report that, prior 
to the CPSIA, they were responsible for complying with less 
than 200 pages of rules, but now that number has grown to 
nearly 3,000 pages. From 200 to 3,000. This will continue to 
increase as more rules are implemented and rewritten.
    For many small businesses, the burden is overwhelming and 
the cost of trying to comply is simply too much to bear. During 
a time when unemployment, nationally, hovers near 10 percent, 
our government should be doing everything possible to promote 
job creation along with safety. This law has had the exact 
opposite effect, particularly on small business. The CPSIA has 
reduced the ability of many businesses to make a profit and 
create new jobs.
    Our second panel today includes Jill Chuckas, who will 
testify on behalf of the Handmade Toys Alliance, the HTA, about 
the impact on their members. The HTA provided us with a 
document called CPSIA Business Casualties, which lists 24 small 
businesses that cited CPSIA as their reason for closing down, 
and 11 others that cited the CPSIA as one of the factors in 
their decision to close.
    We will also hear about the numerous other businesses that 
have barely been able to continue operating under the bill's 
requirements, many of whom will be forced to close in the next 
year as different provisions of the law come into effect. 
Further, the CPSIA has reduced the incentive to innovate and 
invest in new markets, because it increased the cost of doing 
business through burdensome and expensive testing requirements.
    Another list, compiled by one business feeling the burden 
of this law, shows 22 different small businesses that have 
dropped children's product lines because of this Act, limiting 
computer--consumer options and eliminating jobs.
    Neither of these lists includes every business that has 
been affected. They are simply a small representation of the 
negative effect of the CPSIA on businesses. These numbers are 
particularly troubling because the impact has mostly been felt 
by businesses and products that are not, and have never been, a 
threat to child safety.
    One of the primary concerns with the bill remains its 
removal of the Commission's ability to use risk assessment in 
their determinations. Even if the Commission determines that a 
product is not harmful, no exemption for a product that could 
result in the absorption of ``any'' lead, can be used.
    I'm concerned with the upcoming end to the stay on third-
party testing and the next reduction and retroactive 
application of the lead standard. Both of these will have 
significant impacts on small businesses.
    I also hope to discuss, with Chairman Tenenbaum and 
Commissioner Northup, certain decisions that the Commission has 
made in implementing the law. In some places, where the law 
actually does allow flexibility to provide needed relief, the 
Commission has instead chosen to expand the law's reach and 
requirements, further complicating an already confusing set of 
rules and regulations. The application of third-party testing 
under certain general product safety rules the definition of a 
``children's product,'' and last week's implementation of the 
database are three such examples.
    While concentrating on the Act, it is easy to forget that, 
along with these mandates, CPSC must still fulfill the rest of 
its charges and address other defective products that appear in 
the marketplace. We need to make sure that the Commission's 
resources are being used appropriately and are not being forced 
to focus solely on implementing this law, to the exclusion or 
detriment of the Commission's other important work. I'm very 
interested to hear how the CPSC is coping with this challenge.
    So, thank you all.
    And thanks, to our witnesses, for agreeing to appear today 
and sharing their expertise with us.
    I look forward to a productive hearing.
    Thank you, Mr. Chairman.
    Senator Pryor. Thank you.
    Senator Udall.

                 STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you, Chairman Pryor. And thank you 
very much for holding this hearing today, and for your 
leadership in consumer protection.
    I think all of us remember the notorious ``summer of 
recalls'' and all the problems with imported toys. And, thanks 
to your efforts, and especially the landmark 2008 Consumer 
Product Safety Improvement Act, parents can have more 
confidence, this holiday season, that their children's toys are 
safe.
    While we still had plenty of other recalls this summer, I'm 
pleased that there is a new emphasis on consumer protection and 
new leadership at the CPSC.
    It's good to see CPSC Chairman Tenenbaum here, and 
Commissioner Northup, who I served in the House of 
Representatives with. I think they're both here for the first 
time since Senate confirmation. And it's good to have you here 
today with us.
    I look forward to hearing about the implementation of the 
2008 consumer safety legislation.
    There is one issue, though, that I would like to focus on, 
and I'll be more indepth on it in my questioning, but I wanted 
to raise a pressing safety issue affecting millions of young 
athletes. And that's the issue of football helmet safety. It's 
an area where I think the CPSC could help improve children's 
safety. And I'll get--as I said, I'll get into more detail of 
that in my questioning.
    But, I want to thank our witnesses today, and thank Senator 
Pryor once again for this hearing.
    Senator Pryor. Thank you, Senator Udall.
    Both of our witnesses on the first panel have long and very 
impressive resumes. But, what I'd like to do, with the 
Committee's indulgence, is dispense with the reading of those 
resumes and just stipulate that they're very well qualified and 
we're very honored to have them here today. But, we have 
chairman of the Consumer Product Safety Commission, Inez 
Tenenbaum; and then we have one of the newer commissioners, 
Anne Northup.
    So, Chairman Tenenbaum, would you mind leading off?
    Thank you.

STATEMENT OF HON. INEZ M. TENENBAUM, CHAIRMAN, CONSUMER PRODUCT 
                       SAFETY COMMISSION

    Ms. Tenenbaum. Good morning, Chairman Pryor and Ranking 
Member Wicker, members of the Subcommittee on Consumer 
Protection, Product Safety, and Insurance.
    I'm pleased to have the opportunity to testify before the 
Committee and share with you what the CPSC has done over the 
past year to make this holiday shopping season safe for 
families and safe for children. I will provide more details 
later in my remarks, but parents and consumers should know that 
there are new safeguards in place that give them more 
confidence in the children's products for sale, and that they 
have fewer hazards than in the past.
    Since becoming the Chairman of the CPSC in June 2009, I 
have focused on specific goals that I want to share with you:
    The CPSC has focused on fair and effective implementation 
of the CPSIA. In less than 2 years, the Commission has 
published more than 50 rules and interpretive policy statements 
implementing the CPSIA.
    Strategic planning. We recently released the Commission's 
new 5-year strategic plan, which lays out our goals and 
objectives that will allow the CPSC to establish itself as the 
global leader in consumer product safety.
    The Commission has created a new Office of Education, 
Global Outreach, and Small Business Ombudsman to provide 
various stakeholders, domestic and international, including 
manufacturers, retailers, resellers, small business, and 
foreign government, more information. We will have a full- time 
small-business ombudsman, who will be dedicated to serving the 
nation's many smaller manufacturer, in the area of product 
safety.
    The Commission's import surveillance division is working 
more closely with Customs and Border Protection to keep 
dangerous products out of the United States. The CPSC has 
increased the number of employees at the ports of entry from 5 
to 19, located in 15 different ports.
    In addition to these efforts to expand the overall 
capabilities of the CPSC, we have also focused substantial 
resources on several specific hazards.
    One of the most important is addressing hazards in the 
infant sleep environment. By the end of this year we will have 
a new cribs safety rule that will prohibit dangerous drop-side 
cribs from ever being sold again in the United States. The new 
standard requires higher quality wood and hardware.
    We also have continued our efforts to implement and enforce 
the Virginia Graeme Baker Pool and Spa Safety Act. Earlier this 
year, the CPSC kicked off its Pool Safely education campaign, 
as part of a national effort to reduce child drownings and 
entrapment in pools and spas. During this past year alone, 
there have been more than 100 million views of broadcasts and 
print materials relating to the Pool Safety campaign.
    The CPSC is also aggressively continuing efforts to provide 
relief to homeowners impacted by contaminated drywall. Since 
becoming the chairman, I have personally visited impacted homes 
in Florida and Virginia and know the frustration these 
homeowners are facing. To deal with this, the Commission has 
conducted the most extensive investigation in history. And I 
look forward to sharing that with you later on in our question 
and answer period.
    Finally, we have redoubled our efforts to provide rapid 
response to new and emerging hazards; we have taken aggressive 
action to police the market for children's products that may 
contain harmful levels of cadmium. And we will also be glad to 
share that in detail with you later.
    IT modernization. In March 2011, we will also unveil our 
new public database on the safety of consumer products, which 
was mandated by the CPSIA. The database will provide a powerful 
source of information for consumers, allowing them to quickly 
determine whether the products they already own or are 
considering purchasing are associated with safety hazards or 
recalls.
    In this holiday season, the true measure of our success at 
the CPSC is how we can help a young mother or father, who's out 
shopping for toys, a crib, or a highchair, find safe, reliable 
consumer products. Here's what the CPSC can promise them: that 
the toys they buy are now covered by mandatory safety 
standards; that the lead content and lead paint limits for toys 
and children's products are among the lowest in the world now; 
that children's products are now required to be tested for lead 
by an independent, third-party laboratory; that the infant bath 
seats and baby walkers they buy are now covered by mandatory 
safety standards; that the most durable in infant/toddler 
products, such as cribs, strollers, and play yards, now have to 
have postage-paid registration cards so that the consumers can 
fill out and return to be automatically notified for future 
recalls involving these products; that all children's products, 
to the extent practical, now have to have tracking labels that 
make it easier for parents to determine if a product is subject 
to a recall, even long after the packaging is thrown away.
    And, Mr. Chairman, in the past 18 months, we have made the 
CPSC into a regulatory agency that consumers can trust. We are 
putting the interest of families first in making sure that the 
public knows that the CPSC stands for safety.
    Thank you again for allowing me to provide this testimony 
today. I now look forward to answering any questions that you 
or members of the Subcommittee may have.
    [The prepared statement of Ms. Tenenbaum follows:]

        Prepared Statement of Hon. Inez M. Tenenbaum, Chairman, 
                U.S. Consumer Product Safety Commission
    Good morning, Chairman Pryor, Ranking Member Wicker, and members of 
the Subcommittee on Consumer Protection, Product Safety, and Insurance. 
I am pleased to be here today to provide an update to the Subcommittee 
on the specific actions the U.S. Consumer Product Safety Commission 
(CPSC) has taken over the past 18 months and the progress we have made 
to protect American children and families from both existing and 
emerging product safety hazards.
    In August 2008, Congress passed the Consumer Product Safety 
Improvement Act of 2008 (CPSIA) by overwhelming bipartisan majorities. 
Passage of the CPSIA sent a strong message to both the Commission and 
the consumer product manufacturing community: the old, reactive 
approach to consumer product safety was not working. Instead, CPSIA 
directed the Commission to pursue a new proactive approach focused on 
keeping harmful products out of this country and--most importantly--out 
of the hands of infants and children.
    Chairman Pryor, I know you and many other members of this 
Subcommittee spent untold hours working on this landmark legislation. 
Since assuming the Chairmanship of the Commission in July 2009, I have 
worked diligently to implement the CPSIA and use that Act's new 
authorities in a manner that is both highly protective of consumers and 
fair to industry stakeholders. In addition, I have focused on changing 
the CPSC's internal business processes, so that the agency is more 
assertive and more capable of addressing safety challenges presented by 
thousands of types of consumer products imported from all over the 
world.
    Here are some specific examples of these efforts:

        CPSIA Implementation: In less than 2 years, the Commission has 
        published more than 50 rules and interpretive policy statements 
        implementing the CPSIA. These rules included the implementation 
        of several significant provisions of the CPSIA, such as new 
        durable infant and toddler product standards, new product 
        registration cards that accompany many juvenile products, and 
        implementation of new mandatory toy safety standards. As part 
        of this process, the Commission has also issued several policy 
        statements designed to provide additional information on CPSIA 
        requirements to the regulated community, including small 
        businesses.

        New CPSC Strategic Plan: During my confirmation hearing last 
        summer, I noted that one of my key goals for the Commission was 
        to align its priorities to the challenges we face in the global 
        economy. To address this, the CPSC launched a comprehensive 
        strategic planning initiative earlier this year to update the 
        Commission's outdated 2003 Strategic Plan. Out of this effort, 
        we recently released the Commission's new 2011-2016 Strategic 
        Plan, which lays out five key goals and also details 
        programmatic objectives that will allow the CPSC to establish 
        itself as the global leader in consumer product safety.

        New Office of Education, Global Outreach and Small Business 
        Ombudsman: As Chairman, I have heard from many small businesses 
        and crafters who have asked for additional outreach and support 
        from the Commission as they work to produce safe products and 
        comply with the requirements of the CPSIA. I take these 
        concerns very seriously, and have made providing support and 
        outreach to small business entities and other industry 
        stakeholders a key priority.

        On September 22, 2010, the Commission voted to create a new 
        office to coordinate and provide outreach to various domestic 
        and international stakeholders, including manufacturers, 
        retailers, resellers, small businesses, and foreign 
        governments. Within this office, we have a full-time Small 
        Business Ombudsman who is dedicated to serving the nation's 
        many smaller manufacturers in the area of product safety. In 
        particular, special attention will be given to developing 
        information tailored to small businesses and small batch 
        manufacturers so that they can understand and comply with new 
        standards.

        Hazards in the Infant Sleep Environment: The overall safety of 
        cribs and the infant and toddler sleep environment is a 
        critical concern of the CPSC and a personal priority of mine. 
        Parents across the country expect cribs to be a sanctuary for 
        their children, regardless of price or size. Unfortunately, 
        that is not always the case. In the past 9 years, there have 
        been at least 32 deaths attributed to drop-side crib failures. 
        That, in and of itself, is a tragic number. However, the 
        majority of crib deaths are still directly linked to the use of 
        soft bedding in the crib.

        To address this, I directed Commission staff to embark on a 
        two-prong action strategy. The first prong was to recall old, 
        dangerous drop-side cribs in the marketplace and promulgate new 
        mandatory crib safety rules that will prohibit dangerous drop-
        side cribs from ever being sold again in the United States. I 
        am pleased to say that the Commission is currently in the final 
        process of reviewing a new mandatory crib safety rule, and it 
        should be approved by the end of the year. This is a promise I 
        have made to parents across the country.

        The second prong of this initiative is education: teaching 
        parents and caregivers how to keep the inside of cribs free 
        from suffocation risks like stuffed animals, comforters, and 
        pillows. In partnership with the American Academy of Pediatrics 
        and a child advocacy group called Keeping Babies Safe, we have 
        a wonderful new Safe Sleep video that we are working to have 
        shown in maternity wards and pediatrician's offices around the 
        country. This video is currently available on the CPSC's 
        website, and I urge Members of the Subcommittee to view the 
        video and see its powerful message.

        Import Surveillance: Traditionally, the Commission has spent 
        the bulk of its resources investigating harmful products in the 
        marketplace. This will always form a substantial part of the 
        CPSC's activities, but I believe the more effective approach is 
        ensuring that harmful products never even enter the country.

        To that end, I have taken a number of steps to add additional 
        technological and human resources to the Commission's Import 
        Surveillance Division. This Division works directly with the 
        Department of Homeland Security (DHS) and Customs and Border 
        Protection (CBP) to keep dangerous products out of the United 
        States.

        On the technological side, the CPSC recently executed two 
        interagency Memorandums of Understanding (MOUs) with CBP that 
        allow us to access additional ``real time'' importer 
        information, and target the most dangerous incoming shipments. 
        The first of these MOUs, signed in April, allows CPSC personnel 
        to work at CBP's Commercial Targeting and Analysis Center 
        (CTAC) in Washington, D.C., and access manifest entry data 
        collected by CBP. This, in turn, allows Import Surveillance 
        Division personnel at the ports to target high-risk shipments 
        prior to their entry into the domestic stream of commerce.

        The second MOU, signed with CBP this past August, gives the 
        CPSC access to information in the Treasury Enforcement 
        Communications System (TECS). This will assist CPSC Import 
        Surveillance staff at the ports by providing them with 
        additional information to improve local targeting and 
        interdiction of dangerous products.

        The CPSC is also actively involved in supporting the Importer 
        Self Assessment--Product Safety (ISA-PS) initiative that is 
        currently being piloted by CBP. The ISA-PS is intended as a 
        partnership between CBP, CPSC, and importers to ensure product 
        safety compliance. It is based on a voluntary approach that 
        provides meaningful benefits for importers who demonstrate 
        readiness to assume additional responsibility for managing and 
        monitoring their own product safety compliance.

        We have also taken steps to increase CPSC's physical presence 
        at ports of entry. In Fiscal Year (FY) 2008, the Import 
        Surveillance Division only had five full-time employees (FTEs), 
        and of those only three FTEs were actually stationed at ports 
        of entry. During FY 2010, we expanded staffing in the Division 
        to 18 FTEs, with 14 FTEs actually stationed at ports of entry. 
        I am very pleased to announce that, as of November 11, 2010, 
        the Division now has 25 FTEs, with 19 FTEs collocated at 15 
        different ports of entry. Subject to appropriations, we hope to 
        put CPSC staff at even more ports of entry in the future.

        Putting more ``cops on the beat'' has already yielded 
        substantial positive results. In FY 2010, we performed 6,953 
        screenings at ports, collected 1,776 samples for testing, and 
        of those found 987 that violated CPSC standards. At the same 
        time, we have also seen the number of recalls start to drop--
        from 563 in FY 2008 to 428 in FY 2010. Maintaining those 
        positive trends is a key goal for the upcoming year.

        Pool and Spa Safety: Earlier this year, the CPSC kicked off its 
        ``Pool Safely'' education campaign as part of a national effort 
        to reduce child drownings and entrapments in pools and spas. As 
        part of this campaign, we partnered with families who lost 
        their children in pool and spa accidents and Members of 
        Congress at events in Florida, Texas, Minnesota, and 
        Washington, D.C. to spread the word that simple safety steps 
        can save lives in and around the water. We also unveiled a new 
        website, PoolSafely.gov, as well as new public service 
        announcements to provide the public with information aimed at 
        preventing child drownings and entrapments, as well as 
        educating public pool and spa operators about the requirements 
        of the Virginia Graeme Baker Pool and Spa Safety Act (Pool and 
        Spa Safety Act). During this past year alone, there were more 
        than 100 million views of broadcast and print materials related 
        to the Pool Safely campaign.

        In addition to education and outreach, we have also conducted 
        an extensive series of inspections to verify compliance with 
        the Pool and Spa Safety Act. In 2010, the CPSC entered into 
        contracts with local health departments in a number of states, 
        including Florida, Missouri, Kentucky, and Washington, to 
        conduct public pool inspections. Under these contracts, 2,440 
        pools, spas, wading pools, and water activities at 1,557 sites 
        were inspected. I am pleased to announce that the compliance 
        rate observed was approximately 89 percent, which is higher 
        than the rate observed last year. It also demonstrates that the 
        Commission's outreach, education, and enforcement efforts are 
        having a meaningful effect in the overall effort to prevent 
        pool and spa deaths and injuries.

        Contaminated Drywall Investigation: The Commission is 
        aggressively continuing its efforts to provide relief to 
        homeowners impacted by contaminated drywall. Since becoming 
        Chairman, I have personally visited impacted homes in Florida 
        and Virginia and know the frustration that these homeowners are 
        facing.

        To deal with this issue, the Commission has conducted the most 
        extensive investigation in its history. As a result of the 
        science produced by this investigation, the Commission, working 
        in conjunction with the Department of Housing and Urban 
        Development, released impacted home identification guidelines 
        in January as well as interim remediation guidance this April. 
        These guidelines have allowed some of the impacted homeowners 
        to start repairing their homes and rebuilding their lives.

        To assist in those efforts, the Commission worked with the 
        Internal Revenue Service on a recent Revenue Ruling declaring 
        that contaminated drywall is eligible for a casualty loss. The 
        CPSC's scientific data was also used as part of a recent 
        partial settlement agreement in the Drywall Multi-District 
        Litigation (MDL) in New Orleans, Louisiana. Under the terms of 
        the partial settlement, a demonstration remediation program has 
        been established that will remediate problem drywall for up to 
        300 homes in Alabama, Florida, Louisiana, and Mississippi that 
        contain drywall produced solely by Knauf Plasterboard Tianjin.

        At the same time, however, I know that these initiatives will 
        not help all of the impacted homeowners. For that to happen, we 
        need the foreign manufacturers involved to come to the table 
        and do the right thing to assist homeowners. On October 26, I 
        personally discussed this issue with Zhu Shuping, Minister of 
        China's General Administration of Quality Supervision, 
        Inspection and Quarantine (AQSIQ) during the Second Triennial 
        United States--European Union--China Product Safety Summit in 
        Shanghai, and remain optimistic that Chinese manufacturers will 
        come to the table to resolve this matter. I also appreciate the 
        efforts of several members of this Subcommittee, including 
        Senators Nelson, Warner, Wicker, and Vitter, to provide 
        assistance on this issue.

        Rapid Response to New and Emerging Hazards: The Commission has 
        increased its efforts to provide a rapid response to new and 
        emerging hazards. One example of this response is the CPSC's 
        efforts to stop the use of toxic metals in children's products. 
        Earlier this year, it came to our attention that some foreign 
        manufacturers might be using cadmium or other toxic metals as 
        an effort to get around the lead limits for children's 
        products. I sent a strong message to Asian manufacturers and 
        regulators that this was unacceptable and that we would not 
        allow there to be an influx of products with cadmium like we 
        saw a few years ago with lead. The Chinese government sent out 
        a directive a few weeks later on cadmium that used language 
        similar to mine. It appears that we have stayed ahead of this 
        issue.

        Despite this early success, however, the Commission will remain 
        vigilant in this area. In response to the possible threat, the 
        CPSC has taken aggressive action to police the market for 
        children's products that may contain harmful levels of cadmium. 
        In addition, Commission staff recently released a guidance 
        document providing Acceptable Daily Intake (ADI) limits for 
        cadmium. We also sent this document to several standards 
        setting bodies--including the Committee that oversees the ASTM 
        F963 toy safety standard--with instructions to take action on 
        this issue. In the coming year, we will also look at the use of 
        other toxic metals such as barium and antimony, and the CPSC 
        will not hesitate to take further action in this area if 
        voluntary efforts prove insufficient.

    The year 2010 has been extremely busy for the Commission, but we 
are not done with our work. As we enter the heart of the holiday 
shopping season this year, we will remain vigilant to identify 
hazardous products in the marketplace. In December, we also hope to 
roll out the first part of our new and improved CPSC.gov home page, 
which will make it easier than ever for consumers to find information 
on product recalls and common sense tips to keep their families safe.
    In March 2011, we will also unveil our new publicly available 
database on the safety of consumer products, which was mandated by 
section 212 of the CPSIA. This database will provide a powerful source 
of information for consumers, allowing them to quickly determine 
whether products they already own, or are considering purchasing, are 
associated with safety hazards or recalls. It will also allow consumers 
to play a critical role in safety by empowering them to report 
potential product hazards directly into the database.
    I recognize that the rollout of this database has caused concern 
among some in the manufacturing community who believe that it will 
present ``unfiltered'' information that will be harmful to the business 
community. I want to assure this Subcommittee that CPSC staff has 
worked tirelessly to address these concerns and to ensure that the 
database is fair to all stakeholders while also fulfilling the 
intentions of Congress.
    First, the database will not include reports of harm submitted 
anonymously. Any reports filed must include contact information for the 
CPSC's internal use. Second, the CPSC will give the product 
manufacturer 10 business days to respond to a report of harm, to 
provide comment on the report, and to let the Commission know if the 
submission contains confidential or materially inaccurate information. 
The rule also requires the Commission to remove or correct information 
in the database it has determined to be materially inaccurate within 7 
business days. Manufacturers also have the right to comment on the 
reports and to have those comments as part of the publicly accessible 
record.
    At the same time, however, I think it is important to provide a 
reminder of just how critical a resource this database will be for 
consumers. Rather than use my words, I would like to repeat the words 
of Lisa Olney, whose daughter died in a defective portable crib just 
after her first birthday in 2002. Ms. Olney posted the following on the 
Kids in Danger web blog:

        On December 19, 2002, my daughter Elizabeth, just 13 months 
        old, died in a poorly designed play yard. I live my life often 
        looking back through ``what ifs'' and ``should haves,'' but 
        I've learned to give most of that up in order to save myself 
        from being a horribly miserable individual. Instead, I realize 
        the importance of focusing on efforts to protect our children 
        so that no parent has to suffer what I have, along with too 
        many other victims of unsafe children's products. The CPSC 
        database is going to protect millions of children, because it 
        provides a place to go when considering the choices parents 
        make when purchasing products, especially those products 
        intended to be beneficial to our children's safety.

    This database will prevent injuries and save lives. Congress 
recognized this when it added section 212 to the CPSIA, and I look 
forward to seeing this important tool implemented next March.
    Finally, I realize that a lot of the issues I just discussed are 
fairly technical and involve internal Commission operations. In the 
end, I know the true measure of success is how each of these items will 
help the young mother or father find safe, reliable consumer products 
as they are out shopping this holiday season for a crib, high chair, or 
toys.
    Here's what the CPSC promises them:

   the toys they buy are now covered by mandatory safety 
        standards;

   children's products are now required to be tested for lead 
        by an independent, third-party laboratory;

   the infant bath seats and baby walkers they buy are now 
        covered by mandatory safety standards;

   most durable and infant toddler products, such as cribs, 
        strollers, and play yards, now have postage paid registration 
        cards that consumers can fill out and return so they can be 
        automatically notified of any future recall involving these 
        products;

   all children's products, to the extent practicable, now have 
        tracking labels that make it easier for parents to determine if 
        a product is subject to a recall--even long after the packaging 
        is thrown away; and

   our inspectors will be hard at work in the ports and at 
        retailers, looking for hazards like high levels of lead paint 
        on toys or small parts that can break off and pose a choking 
        hazard.

    Mr. Chairman, thank you again for allowing me to provide this 
testimony today. I now look forward to answering any questions you or 
other members of the Subcommittee may have.

    Senator Pryor. Thank you.
    Commissioner Northup.

STATEMENT OF HON. ANNE M. NORTHUP, COMMISSIONER, U.S. CONSUMER 
                   PRODUCT SAFETY COMMISSION

    Ms. Northup. Thank you, Mr. Chairman Pryor and Ranking 
Member Senator Wicker. I'm delighted to be with you today.
    This is, of course, my first visit since I had the 
confirmation hearing, about a year and a half ago, and I have 
learned a lot and have been very impressed with the work of the 
CPSC. It certainly is incredibly important. And our Chair has, 
just, managed and juggled a lot of responsibilities, assessing 
emerging hazards and setting up a customs program that--Customs 
and Border Patrol--that intercepts, before they ever get to our 
shelves, products that might be hazardous to families and 
children.
    But, today I feel like I would be remiss if I didn't focus 
most of my comments on what is preoccupying the overwhelming 
amount of money and time at the Consumer Product Safety 
Commission--and that is the implementation of the Consumer 
Product Safety Improvement Act--and to share with you some of 
the unintended consequences that we have been asked about, both 
by Members of the Senate and by Members of the House, certainly 
by the public, and give you an idea of, sort of, the challenges 
that we face.
    Let me start with the question of lead. We all know that 
lead is dangerous if it is absorbed by a child. That means in 
paint, that means in dirt that was--that gasoline--lead-based 
gasoline got into the dirt, tracked into a house, a child can 
absorb that lead. We know that it's dangerous if it is a lead 
charm that is small enough that a child can swallow; and, in 
fact, it can be fatal.
    But, we can't treat all lead alike. And that's the problem 
with the CPSIA. It treats every component that contains lead 
exactly the same. It is not dangerous for a child to have lead 
in their handlebars. It is not dangerous for a child to have 
lead in a screw that provides strength and machinability and it 
makes that a more secure product. And so, what we have done in 
this law, by establishing a lead limit in every single 
component of every single child's product, is to equate lead in 
paint with lead in things that are not dangerous.
    This has caused a huge disruption of the marketplace. First 
of all, it has cost jobs. Senator Wicker mentioned some of 
those, but I would be happy to submit for the record a list of 
businesses that have closed entirely, businesses that have left 
the children's product market, and businesses that tell us 
that, when we lift the stay, in February, for third-party 
testing and tracking, that--and labeling--that they will be 
closing their doors.
    Senator Pryor. Without objection.
    Ms. Northup. Thank you.
    The--it has also caused a huge disruption in choice.
    Parents cannot go into stores they went into before and see 
all the items, many that have been on our shelves for years and 
are not--have not been dangerous to children, but have not 
either been able to be remade with lead-free components or the 
people that make them have just decided to sell them in stores 
all around the world, including the EU, which has very high 
standards, but just not endure the expense of complying with 
our limitations. And let me just say that none of these--many 
of these companies that have left, have left because they ever 
had a risky product on the market.
    When I was confirmed, Mr. Chairman and all the members of 
this committee, when I spoke with you, you talked about 
flexibility and looking for flexibility in the law. But, I can 
tell you that, in many parts of this law, there simply is no 
flexibility. And even in the areas where there is some 
flexibility, usually by a 3-to-2 vote, the Commission has 
chosen not to exercise that flexibility, out of caution. And 
so, without changes by the Congress, this law is going to 
continue to be--to cost jobs, choice, and raise the cost to 
consumers.
    When I was confirmed, I promised you that I would work 
every day at the Consumer Product Safety Commission as if I 
were protecting my own six children. And today I have four 
grandchildren that I'm also thinking of every day. And, while 
many of the initiatives that our Chairman just delineated for 
you will make an important difference in our children's and our 
grandchildren's safety, the--many of the provisions in the 
CPSIA that are so costly, so complicated, and that are costing 
jobs, would not be things that I would have welcomed for the 
sake of my children. And if my husband or I had lost our job 
because of a business that closed their doors for no--without 
any regard to safety, I would be heartsick.
    Thank you very much.
    [The prepared statement of Ms. Northup follows:]

       Prepared Statement of Hon. Anne M. Northup, Commissioner, 
                U.S. Consumer Product Safety Commission
    Chairman Pryor and Ranking Member Wicker, thank you for the 
opportunity to provide testimony to this Subcommittee regarding 
oversight of the Consumer Product Safety Commission (CPSC). This 
Commission has a proud history of assessing risk and providing 
leadership in consumer product safety issues across a variety of 
industries.
    As a Commissioner since August of 2009, I now have a tremendous 
appreciation for the work that goes on in an agency, including the time 
and effort that agencies expend implementing the laws Congress passes. 
It is not a simple task, and my colleague, Chairman Tenenbaum, has put 
in countless hours to ensure that the Commission meets its deadlines 
and fulfills the difficult tasks it has been given.
    Chairman Tenenbaum has been a strong advocate in working with our 
partners in China to elevate the priority of product safety and to 
ensure that manufacturers can implement safety measures as far back in 
the manufacturing process as possible. She has made progress in our 
import safety objectives, including an agreement with Customs and 
Border Protection to allow our staff to view shipment documents earlier 
in the process before potentially hazardous shipments enter the United 
States. The Chairman's staff also continues to find creative, useful 
ways to use social media outlets to advertise product safety messages 
for families and parents. These achievements are impressive.
CPSIA
    Despite areas of progress, I would be remiss as a Commissioner if I 
failed to mention that the central focus of the agency's time and 
resources in both 2009 and 2010 has been on implementing a law that has 
almost nothing to do with improving safety--the Consumer Product Safety 
Improvement Act of 2008, or CPSIA. Although the Commission is a 
relatively small agency (FY 2010 funding of $118 million), its budget 
has grown by nearly 48 percent since the law's passage in 2008, with 
both old and new resources shifted away from more risk-based priorities 
to implement the arbitrary, non risk-based priorities of the CPSIA, 
including the leadin-substrate ban, phthalates ban, consumer database, 
and third-party testing, certification and labeling requirements. 
Today's hearing provides an excellent opportunity to shed light on many 
of the unintended consequences of this law, its impact on our agency 
and, more importantly, the economy.
    As a bit of background, while we know the context in which the 
CPSIA was passed in 2008, Members of Congress on both sides of the 
aisle today acknowledge the need for the law's reform. Both Democrat 
and Republican Members of Congress have introduced bills to fix the 
CPSIA. The House Energy and Commerce Committee held a hearing earlier 
this year on potential CPSIA amendments, and the Appropriations 
Committees of the House and Senate requested a Report from the five 
Commissioners back in January on ways to amend the CPSIA to avoid its 
many unintended consequences. (See the following link for the Report to 
Congress and the Commissioners' five statements: www.cpsc.gov/about/
cpsia/cpsiareport01152010
.pdf). Thus, to say that the law enjoys the broad support it held in 
2008 is simply untrue.
    The Commission continues to hear from manufacturers, retailers, and 
Members of Congress that the CPSIA has impacted products that no one 
anticipated would be affected and which this Commission would not 
consider unsafe. For example, the law impacts furniture, bikes, 
recreational equipment, books, rugs, nuts and bolts used to make these 
products, clothing, school equipment and supplies--and a host of other 
categories that fall under the rubric of ``children's products.'' The 
law has caused companies to have to reengineer products to be lead-free 
(with no measurable benefit to safety) to leave the children's market, 
or to close altogether. I have brought with me a list of such 
businesses which I will submit for the record.
Risks Associated with Lead
    It is important to clarify the risks associated with lead. Some 
advocates, including witnesses in your second panel today, will say 
that ``there is no safe level of lead'' which implies that none of us 
can ever spend enough time and money to reduce or eliminate lead 
everywhere. However, an important fact to follow up this statement 
would be that there exists an unsafe level of lead, which has been 
established by our leading scientific agencies, the National Institutes 
of Health, the Centers for Disease Control and the Environmental 
Protection Agency. The fact is, lead that is ``absorbable'' at greater 
than minimal levels is dangerous, especially to children ages five and 
under.
    In order to determine risk, it is necessary to make a distinction 
between lead that is absorbable and lead that is not absorbable, at 
least not in meaningful amounts. In many other laws relating to 
absorbable lead levels, standards exist to allow for such minimal 
absorption. For example, the Food and Drug Administration allows for 
0.1 microgram of lead in a one-gram piece of candy.\1\ The Safe 
Drinking Water Act declares ``zero lead'' to be the objective for the 
amount of lead in water, but the pipes themselves are permitted to be 
80,000 parts per million (8 percent) lead--allowing for negligible, 
trace amounts to exist in the water we drink.\2\ California Proposition 
65 \3\ as well as the European Union \4\ allow for a negligible amount 
of absorbable (or soluble) lead in children's products. People often 
are surprised to learn that all children are born with a certain blood 
lead level, depending on the blood lead level of the mother. Some 
additional amount of lead (roughly one microgram per kilogram of body 
weight) \5\ is then taken into the body every day through just the food 
we eat and the air we breathe.
---------------------------------------------------------------------------
    \1\ ``Supporting Document for Recommended Maximum Level for Lead in 
Candy Likely To Be Consumed Frequently by Small Children,'' Food and 
Drug Administration, November 2006: http://www.fda.gov/Food/FoodSafety/
FoodContaminantsAdulteration/Metals/Lead/ucm172050.htm.
    \2\ Environmental Protection Agency, Safe Water Drinking Act, Fact 
Sheets: http://www.epa
.gov/safewater/sdwa/basicinformation.html.
    \3\ California Office of Environmental Health Hazard Assessment 
(OEHHA), Proposition 65--http://www.oehha.org/prop65.html, Children's 
Health at OEHHA--http://oehha.ca.gov/public_info/public/kids/
schools041707.html.
    \4\ European Committee for Standardization (CEN), EN 71-3 Safety of 
Toys--Part 3: Migration of certain elements. CEN, Brussels, Belgium, 
1994: http://ec.europa.eu/enterprise/policies/european-standards/
documents/harmonisedstandards-legislation/list-references/toys/.
    \5\ Centers for Disease Control, Agency for Toxic Substances and 
Disease Registry, Toxic Substances Portal: Lead: http://
www.atsdr.cdc.gov/PHS/PHS.asp?id=92&tid=22.
---------------------------------------------------------------------------
    So what lead is actually risky? Lead is risky when it is absorbable 
into the bloodstream at significant levels. The experts at the CDC and 
NIH have found that lead paint in old houses as well as lead in dirt 
\6\ near old gas stations can be very dangerous for small children 
(http://www.cdc.gov/nceh/lead/.) In other words, the risk of 
absorbability with lead paint in an old home that becomes chipped and 
may be inhaled or ingested is quite high. In the same vein, a lead-
laden metal charm or piece of jewelry that can be swallowed presents a 
danger since such an item could get caught in the stomach and absorbed. 
However, none of these agencies, including the CPSC, has ever found 
that a child touching a brass musical instrument, touching a vinyl 
lunchbox, or riding a bicycle, could ever rub off enough lead, day 
after day, year after year, to affect his or her health.
---------------------------------------------------------------------------
    \6\ Although lead in dirt is a proven hazard for small children 
nearby to old gas stations that used leaded gasoline or certain 
pesticides, it is notable that the Environmental Protection Agency 
standard for lead in soil is 400 ppm. http://www.epa.gov/lead/ This 
standard for safety is less strict than the current lead content 
standard provided in the CPSIA for children's products, which is 300 
ppm and scheduled to fall to 100 ppm in August of 2011.
---------------------------------------------------------------------------
    Now let us look at the CPSIA's lead requirements in comparison to 
these known lead hazards in the environment today. The CPSIA's 
arbitrary lead content limits (currently 300 ppm, and moving to 100 ppm 
by next August) remove the ability of the Commission to assess risk, or 
the absorbability that exists for a particular product. In other words, 
the law's lead content levels dictate that the metal handle bars of a 
bike that pose no health risk to a child be outlawed right alongside 
lead paint or a solid-lead charm on a piece of children's jewelry that 
is dangerous.
    The effect of the CPSIA has been to outlaw children's books 
published before 1985 that are likely to have lead in the inks, for 
example, which both the Commission and Congress now feel was an 
overreach because children are not likely to eat the pages of old books 
or ingest more than miniscule amounts of lead after touching their 
pages. Likewise, youth ATVs and bicycles are outlawed or must be 
reengineered even though the lead that is in the hood, handlebars, or 
hubcaps will not become ingested and absorbed at any discernable level 
(from hand to mouth touching where miniscule amounts of lead may rub 
off--not from actually eating the hood, handlebars or hubcaps). Other 
everyday products such as school lockers, the hinges on a child's 
dresser, or jackets with zippers and buttons are outlawed if they 
contain tiny levels of lead in the substrate. Even ball point pens may 
be outlawed if they have a toy or game attached to them and are 
marketed to children, due to the brass found on the tip.
    Finally, children do not live cooped up inside of their rooms 
surrounded only by ``children's products.'' Children live throughout 
the house, run around outside, and are exposed to lead in their 
everyday environment. In fact, they are surrounded by it: in the car 
(adult seat belts, window cranks) and in their homes (pots, pans, 
furniture knobs, door handles, appliances, lamps). These products do 
not threaten a child's health because the lead in them is not 
absorbable. Hence, it makes little sense that the CPSIA bans products 
with higher than 300 ppm lead content in such products as children's 
furniture, children's rugs, toys and children's clothing--while 
children themselves are likely to spend more time outside their room 
handling the TV remote (an adult product), playing on their parents' 
furniture, or playing with just about anything else.
The Costs to the Economy
    While there have been no tangible benefits resulting from the 
CPSIA's arbitrary lead limits, the costs to businesses have been 
tremendous--and continue to pile up. In March 2009, the Commission 
estimated that the economic costs associated with the law would be ``in 
the billions of dollars range.'' \7\ Industry associations from 
furniture and mattress manufacturers to handmade toy makers have told 
us how they will be saddled with enormous costs since every component 
of every product they make (down to the screws in the furniture) will 
have to be sent to a third-party lab to be tested for lead and all 
other applicable standards. We have heard from businesses that have had 
to cut jobs to be able to afford the new testing and compliance costs, 
reduce product lines, leave the children's market completely, or 
close--all of this, when the full effects of the law (and I would 
argue, the most costly mandates) have yet to be felt.\8\
---------------------------------------------------------------------------
    \7\ Letter from Acting CPSC Chairman Nancy Nord to Representative 
John Dingell, March 20, 2009.
    \8\ Currently, the Commission has put in place a stay on the lead 
content testing requirements until February of 2011. A stay was first 
enacted in February of 2009 following the confusion that ensued after 
the law's passage. The Commission voted 5-0 in December of 2009 to 
continue the stay for another year (until February of 2011). 
Additionally, the Commission has yet to accredit labs for testing to 
the phthalates ban or the toy standard, which will impose even greater 
testing burdens. While these three major testing requirements have not 
even kicked in, many businesses have been forced to plan ahead for the 
new costs and have already determined they cannot maintain their 
business and also comply with the CPSIA.
---------------------------------------------------------------------------
    The entire process companies must go through to produce a toy or 
children's product has drastically changed. Take, for instance, a 
child's doll. To be compliant with the law, a company must pay to have 
the doll's body, hair, each color of paint on the lips or eyes, and the 
doll's clothing tested in an independent lab for lead content--and soon 
will have to do the same for phthalates and to every applicable 
component of the ASTM F-963 toy standard. According to a brief small 
business analysis by our agency, the cost to test one toy could range 
from $3,712 to $7,348--not taking into account that the toy will likely 
change to stay competitive for the next Christmas season, or sooner, 
and every material change triggers a whole new set of tests.\9\ These 
costs also do not include the cost to add a tracking label, to certify 
to these third-party tests, and to maintain the data and paperwork to 
be able to trace each and every component and material back to its 
specific test and lot number. All of these steps are required by the 
CPSIA without any regard for the actual risk of a product.
---------------------------------------------------------------------------
    \9\ Regulatory Flexibility Analysis: Testing and Labeling 
Pertaining to Product Certification, 16 CFR Part 1107, Notice of 
Proposed Rulemaking, CPSC Docket No. CPSC-2010-0038. May 20, 2010.
---------------------------------------------------------------------------
    In fact, while the costs to companies to reengineer products to 
meet the lead limits has been steep, many tell us that the ongoing 
costs to third party test, label and track every component have been 
much higher--and without any measurable benefit. For example, one 
furniture manufacturing company informed us they spent upwards of $13 
million putting together a testing, tracking, and labeling system for 
their children's furniture while discovering that not one of their 
components was in violation of the new lead limits and needed to be 
replaced. There was clearly no safety benefit, yet they have faced 
enormous costs. Large and small companies alike have to hire a lawyer 
or other outside expert just to ensure they understand the extent to 
which their products may or may not be impacted by various provisions 
of the law.\10\ This is what happens when regulations do not have to be 
cost-benefit justified.
---------------------------------------------------------------------------
    \10\ ``Mattel Finds CPSIA to be a Challenge,'' Product Safety 
Letter, November 9, 2009.
---------------------------------------------------------------------------
    The CPSIA fails to make any distinction between large and small 
businesses, or foreign and domestic manufacturing, thus giving an 
obvious competitive advantage to large manufacturers who produce items 
overseas, where manufacturing and testing costs are cheaper. As a 
result, large toy manufacturers have turned a corner to become 
supportive of the new regulations and clearly see the competitive 
advantage that the law gives them over their smaller competitors. 
Meanwhile, the backbone of our economy, small businesses--from screen 
printers to manufacturers of chemistry sets for schools--are being 
forced to cut jobs or take other drastic measures due to the cost of 
compliance. Given the urgency of our economic situation, this 
Commission would benefit today from hearing from Members of this 
Committee on whether these results are what you expected.
Role of the Commission
    While the Commission has the authority to provide flexibility 
regarding the frequency of third-party testing requirements under the 
law, it does not have the ability to exempt companies altogether from 
burdensome testing requirements that do not improve safety. More 
specifically, the Commission lacks the authority to exempt 
manufacturers of otherwise safe products from the following: (1) the 
initial, third-party test of every product or component to the law's 
lead, phthalates and other mandatory standards; (2) a new, third-party 
test of any product or component after any ``material change'' in the 
product; or (3) the cost to certify, provide tracking labels, and 
maintain the data to trace each and every component. Without changes to 
the statute, the Commission's hands are tied in addressing these 
arduous requirements, the main CPSIA costs burdening small businesses.
    When I was confirmed, every Senator with whom I met asked me to 
look for flexibility in the CPSIA in order to reduce the impact of the 
law where safety was not compromised. I have taken those conversations 
to heart. However, given that the majority of Commissioners so far has 
interpreted this law in an even more sweeping manner than required, I 
now believe that our ability to reduce the law's economic impact has 
waned. It is imperative that we inform you of these challenges and 
encourage the Congress to alleviate any unnecessary economic impacts on 
small businesses and families.
    Thus, in this Committee's consideration of reforms to the CPSIA, I 
would recommend various ways to give the Commission authority to 
provide needed flexibility, including: (1) allowing for de minimis, 
absorbable lead in children's products, which, as mentioned previously, 
would by itself remove harmless products from most all of the 
burdensome requirements of the law (and would allow us to harmonize our 
standards with the European standards); (2) allowing small businesses 
the option of a ``reasonable testing program'' rather than a third-
party test; (3) providing discretion to the Commission to determine the 
need for any third-party testing or tracking label requirements at all 
for various product categories; and (4) lower the age range for the 
types of products impacted by the law to focus on age groups (e.g., 
under age 6) at risk of meaningful lead exposure. Any of these reforms 
would improve the existing law and allow the Commission to focus its 
energy where we know the risks lie.
Costs to the Commission
    Not only has the implementation of the CPSIA continued to burden 
small businesses and derail job growth, but the law clearly has taken 
us away from our core mission of safety. As a result, this Commission 
is spending millions in limited resources in implementing and enforcing 
a law that is not helping consumers--a worrisome situation given the 
state of our economy and the need for all of us to find ways to reduce 
Federal spending.
    A prime example of wasted taxpayer resources--$29 million worth in 
fact--will be the consumer database that the Commission is tasked with 
implementing early next year. The CPSIA requires that the Commission 
establish and maintain a database on the safety of consumer products 
that is publicly available and searchable on the Commission's website. 
Unfortunately, the majority of the Commission adopted a rule just last 
week that will make the database useless or worse. Among other 
problems, the rule defines consumers to include just about everyone, so 
that reports of harm can be submitted by people with ulterior motives 
rather than just the actual consumers who suffered harm and have 
firsthand information about the consumer product. In addition, the rule 
has interpreted a 10-day deadline in the statute to require agency 
staff to post reports of harm even though the agency has received 
credible claims of material inaccuracy, even if the staff has not had 
time to resolve those claims yet. Finally, since groups with ulterior 
motives (trial lawyers, competitors, groups wanting to sell a 
``remedial'' product, or an association wanting to lobby Congress for a 
new mandate) can submit reports into this database without providing 
the consumer's name, it is unlikely that the Commission will be able to 
ascertain critical facts related to a product. Such blatant disregard 
for accurate data will undermine the whole purpose of the database--to 
assist consumers trying to purchase safe products. It will also raise 
prices, kill jobs, and damage the reputations of safe and responsible 
manufacturers indiscriminately.
Chairman Henry Waxman's Proposal to Add a ``Functional Purpose'' 
        Exemption
    It is important to note that Chairman Waxman of the House Energy 
and Commerce Committee has proposed a very limited ``fix'' to the 
problems of the CPSIA, known as a ``functional purpose'' exemption. 
Specifically, the proposal would entail giving the Commission authority 
to exempt a company's products from the CPSIA's lead limits if the 
company can show that the lead in the product serves a ``functional 
purpose.'' Unfortunately, this ``fix'' would do more harm than good.
    Adding a ``functional purpose'' exemption to the Commission's 
authorities would not provide the kind of broad exclusion flexibility 
that the Commission unanimously sought in our January Report to 
Congress. The concept is too narrow, expensive, and uncertain to 
provide much relief, particularly for small businesses that are 
unlikely to have the resources available to determine available lead 
substitutes or even to put together as successful petition to a Federal 
agency. Most companies will not have the in-house expertise 
(metallurgic, etc.) to make the kind of showings that would be required 
to meet the burden of proof for an exception. So just as the exorbitant 
testing costs of the CPSIA favor large companies (who manufacture 
overseas) over small ones, so too will the exemption process favor the 
large companies with greater ability to spread their costs. 
Furthermore, forcing a component-by-component review of exceptions to 
the law does nothing to enhance safety, and it converts the Commission 
from a safety oversight agency (like the FAA) into a product approval 
agency (like the FDA). That will slow the pace of innovation and 
dramatically increase the cost and lead time for bringing new products 
to market.
Conclusion
    Today, Americans still enjoy a marketplace that is brimming with 
new products and a variety of choices in color, cost and complexity--
but we are steadily diminishing these opportunities. As a Commissioner, 
I strive to maintain and expand the type of marketplace that Americans 
consumers want--vibrancy, choice, and the confidence that consumer 
products are safe. All of this is possible in a successful market, 
where consumers demand ever more innovative products from a variety of 
sources and businesses look for opportunities to meet those demands. 
However, the CPSIA has and will continue to drastically reduce the 
number of inherently safe products available in our country. I hope the 
Congress will restore the responsibility of assessing risk to the 
experts at the CPSC and allow us to keep our markets both safe and 
dynamic.
    Thank you, Mr. Chairman and members of the Committee for calling 
this oversight hearing and for inviting me to testify today.

    Senator Pryor. Thank you.
    Chairman Tenenbaum, let me start with you, if I may. And I 
know you've really had your hand full--hands full with the 
implementation of the CPSIA, and it's just been more than a 
full-time job for you and the Commission and all of your 
staffs, and I would say, overall, I think people understand the 
effort that you put into this, and you guys have done a great 
job. Not that everybody always agrees on everything, but you 
guys have worked very, very hard to implement the law.
    But, I would like to ask you, Madam Chairman, about your 
Safe Sleep campaign. And I'm curious about what prompted that, 
and how it's going, and what kind of results you're seeing 
around the country.
    Ms. Tenenbaum. Thank you, Mr. Chairman.
    The Safe Sleep campaign was an effort that we created 
because of the numerous cribs that were recalled because of the 
drop-sides. And, getting further into the data, it wasn't just 
the drop-side cribs where children were being suffocated. The 
number-one reason why children are suffocated is because of 
soft bedding, not having anything to do with the product. 
People fill up a baby bed with comforters, toys, and pillows, 
and the child can roll into these items and suffocate.
    So, what we wanted to do was to create this Safe Sleep 
campaign along with having a new crib standard.
    We created a new Safe Sleep team, at the Commission, in the 
wake of all of the recalls, because the drop-side problems were 
going back years, even before I came into the Commission. And 
what this Safe Sleep campaign did was notify the public of 32 
deaths reported to the CPSC in the past 10 years attributable 
to the drop-side. In less than 9 months we negotiated the crib 
manufacturer and retailers to bring about 18 voluntary crib 
recalls across all kinds of companies.
    So, this month, in December, we will have a new crib 
standard. We have not had a new one in 20 years. There will be 
no more traditional drop-sides, those are banned now; we will 
have new wood strength; mattress support requirements, so the 
mattress won't fall down; and stronger hardware requirements.
    We also joined with the American Academy of Pediatrics and 
Keeping Babies Safe, a nonprofit organization, and we made a 
video. Joan Lunden, who used to be on the Good Morning America, 
hosted the video. The video discusses how to keep your own 
child safe, not only from a defective product, but also safe 
bedding. We launched this video last month in New York at one 
of the hospitals. We'd like to continue to seek private funding 
so we can have this video in physicians' offices, 
pediatricians, anyplace--in airports, where you have video 
playing constantly--so people will know how to keep their own 
baby safe.
    Senator Pryor. Commissioner Northup, you mentioned, in your 
testimony a few moments ago, that many parts of the law, of 
this CPSIA law--many parts of the law have no flexibility in 
there. Now, you spent some time on lead. What else, in your 
opinion, has no flexibility with it?
    Ms. Northup. Well, let me get to, specifically, one of the 
questions that I believe you asked me, and also questions that 
the other members of the Committee asked. And that is about 
absorbability; it goes to lead. But, you provided exclusions in 
the law for products that could contain lead. And one of them 
was lead that was in products where the--where lead could not 
be absorbed. This would be handlebars; this would be ATVs for 
example.
    Senator Pryor. Right.
    Ms. Northup. And what the Commission has decided is that 
there's not one single product that would benefit from that 
exclusion; that the fact that you could rub your hands on a 
handlebar and get one molecule on your--and that one-tenth of a 
percent--of 1 percent of that molecule is lead, then you could 
put it--your hand in your mouth--that that would be 
absorbability. And so, absolutely no component would qualify 
for that flexibility.
    Now, I guess I presume that, when you write--when you wrote 
that exclusion into the law, you meant for it to actually mean 
something, that there actually would be components that would 
qualify for that exclusion. But, the majority has decided that 
not one single component does qualify. And that's why every 
snap, every spoke of a bicycle, every hinge on a dresser, 
every----
    And let me just carry that a little further and point out 
that a child doesn't stay in a bubble in--with children's 
products. They get in a car and--for millions of dollars, they 
refashioned the car seat so that the buckle no longer has lead 
in it. It provided strength and protection, so reengineering it 
was very expensive. But, the child can reach right down on the 
seat and pick up the adult seatbelt and play with it, and it's 
loaded with lead. And a child is going to crawl right out of 
their room into the--onto the carpet of the house, into the 
kitchen, open the drawer, with door handles that have lead on 
them. And none of this raises our concern, because when lead, 
in very small amounts, is embedded in metal, it's not going to 
be absorbable at any measurable level. So, that would be one of 
the areas.
    Senator Pryor. Right. Well--but, my question was----
    Ms. Northup. Yes. Let me give you----
    Senator Pryor. You covered lead----
    Ms. Northup.--another one.
    Senator Pryor. You covered----
    Ms. Northup. Definition of a ``child's product''----
    Senator Pryor. OK.
    Ms. Northup.--would be another one. All of the requirements 
of the CPSIA are extremely expensive; not just that you have to 
comply with the lead, but also that you have to third-party 
test, that you have to certify to those third-party tests, that 
you have to provide tracking labels that make sure--that show 
every single test that was relevant. So, when it comes to 
carpet and all these other things, the question is, are you 
going to put a fence around children's products that capture as 
many products as you can, including lamps, including, say, 
something that spins on the ceiling the child could never 
touch, or are you going to put a fence around fewer products 
that would be determined to be children's products?
    And I guess I felt that we should--if there was no risk 
involved, that we should have put that fence around the 
definition of a ``children's product'' more narrowly so that 
things like--beyond the tests that are required in the CPSIA--
tests for flammability of rugs, tests for other components--now 
not only are people that make children's products going to have 
to test them to all the lead/phthalate standards--coating 
standards--they're now also going to have to do third-party 
tests for any other applicable standard, that wasn't really 
clearly mandated in the law. And now we have captured as many 
of these products as we possibly can in this trap by setting a 
very broad fence instead of a more narrow fence that might have 
just focused on risky products.
    Senator Pryor. All right. Let me ask one more thing about 
your testimony. And I'm--I've overstayed my time, here, but I 
would like to ask one more question and----
    In your written testimony, on page 2, you said that, ``It's 
a law that has almost nothing to do with improving safety.'' 
And, to me, that's an astounding statement, because when we've 
added staff there--don't you agree that that has to do with 
improving safety?
    Ms. Northup. Let me say that I think that the CPSC has done 
a fabulous job in----
    Senator Pryor. Now, answer----
    Ms. Northup.--improving safety.
    Senator Pryor.--my question.
    Ms. Northup. The CPSIA----
    Senator Pryor. Answer--OK, yes.
    Ms. Northup.--in particular, what we are working on, which 
is--we haven't even gotten to phthalates--which is lead, it has 
not been focused on risk. There's no focus on risk.
    Senator Pryor. Well, that's not what you said here. You 
said, ``a law that has almost nothing to do with improving 
safety.'' And my point is that part of the CPSIA was to 
increase the staff level so that the Consumer Product Safety 
Commission staff could do more research----
    Ms. Northup. Yes.
    Senator Pryor.--to improve your facilities. I would think 
that you would agree with me that that improves safety. To do 
all the things that the CPSC is now authorized under the CPSIA 
to deal with imports--we were--we've been flooded with imports 
in this country, and many of those have not been safe. And the 
Commission has taken the lead role in the world to go and make 
sure that those products coming into the U.S. are safe. And I 
know you may disagree with some of the lead issues, but, still, 
those are designed to improve safety. In fact, part of the 
CPSIA is the ATV rule, which probably predates you being on the 
Commission, I know, but to get some of these cheap imported 
ATVs off the market that didn't meet any safety standards that 
the other ATVs met. I think all of that has to do with 
improving safety. But, in your statement, you said this law has 
almost nothing to do with improving safety.
    Ms. Northup. I probably should have clarified that. I 
agree, that is not a well worded statement.
    And let me just say that almost every provision in the law 
was meant to address a real risk, and I recognize that. And I 
think that the agency has done a good job at addressing risks. 
But, when it comes to technically implementing the components 
of this law because of some of the very narrow language or the 
narrow interpretation, what we're doing has less to do with 
safety than complying with very regimented requirements that 
gets away from risk, gets away from an agency that is--has such 
a proud history. I mean, every night, we get the overnight 
incident reports of children that have died. And you do see 
trends and you do see ways of spending our resources in 
intervening. And the chair, with the Safe Sleep, has been very 
creative in this. But, that's not what the CPSIA primarily is 
focused on. It's focused on very regimented requirements that--
--
    You know, I'll give you one other example with the Safe 
Sleep. The drop-side cribs is--has been masterfully handled, in 
my opinion. It did risk children's lives. And we did recalls. 
It's been a very step-by-step implementation. Unfortunately, 
when we did recalls of drop-side cribs, every single daycare 
center had to replace, immediately, their cribs that they used 
that were drop-side cribs. So, they have brand new cribs. Sixty 
days after we pass this new standard, or if we give them an 
extension in a year--up to a year, which we possibly might do--
they're going to have to carry those brand new cribs out the 
door and throw them in the trash, because--even though there's 
no determination that any of them are unsafe--because the bill 
has an immediate effect rather than saying ``just what's 
purchased in the market or what has been determined to be 
risky.'' I sort of wonder if that's what you intended. That is 
hundreds of thousands of cribs that will be obsolete the day it 
goes into effect.
    Senator Pryor. Well, I don't know how that's going to play 
out, but what--I've overstayed my time--but, we--the CPSI did 
have a--CPSIA did have a mandatory rulemaking on cribs, and I 
appreciate you all doing it. But, we need to probably talk 
about this, you and I, offline at some point. And I know the 
Ranking Member and I have talked about this before, and we 
mentioned it a few moments ago, about--we recognize that, you 
know, this law on the books probably needs to be looked at 
again. And there are probably some areas that, you know, maybe 
we should give some more flexibility to CPSC. And the Chairman 
and I have talked about that a few times. And I know that she's 
had discussions on the House side. And I actually talked to Joe 
Barton yesterday about a little bit of this as well, assuming 
he's the Chairman over there. It's something that, you know, we 
will work through.
    But, anyway, I've over-----
    Ms. Northup. Thank you.
    Senator Pryor.--overstayed my time. So, Senator Wicker.
    Senator Wicker. I actually don't mind at all that the Chair 
overstayed his time, because I thought it was a very 
interesting and informative line of questioning.
    I want to talk about the budget, the ``appropriations'' 
level that you've requested over time, and see what we can do 
about that, in light of the federal government's deficit, 
during the past fiscal year of $1.3 trillion. In 2 short fiscal 
years, this government has added over $3 trillion to the 
national debt. There is a hue and cry from the public for us to 
do something about that. And I think every agency's going to 
have to be involved in that. There was a Debt Commission report 
yesterday that should trouble every American and every 
policymaker.
    During the last 2 years, the appropriation for CPSC has 
increased 47 percent. And I know the Chairman and Ms. Northup 
talked about personnel; I assume that was a large part of that. 
But, the Fiscal Year 2008 appropriation was $80 million. That 
increased some $25.4 million, to $105 million, in 2009. The 
figure reached $118.2 million Fiscal Year 2010. And there is a 
request for another $400,000 more.
    With that thought in mind, I'd like to ask both of you what 
suggestions you can give us of ways the CPSC can actually 
reduce its budget and be a part of the solution of reducing our 
federal deficit.
    Ms. Tenenbaum. Thank you----
    Senator Wicker. Ms. Tenenbaum?
    Ms. Tenenbaum.--Senator Wicker. One of the things that was 
brought about when the Congress passed the CPSIA was the fact 
that the CPSC was cut so many times that it was unable to 
fulfill its statutory duties. And so, rather than just have 
three commissioners, it was decided that five commissioners 
would be funded, and that we would have a higher authorization, 
and we would also be encouraged to hire more people.
    In fact, our FTE goal this year--and every time I have 
testified in front of Congress, people want to know, ``Where 
are you?''--was to be at 530. We are now at 520 FTEs and we 
have 19 conditional hires. That is because we had the new law, 
the CPSIA. Not only were we required to pass all these new 
rules, we also are required to enforce them.
    We also needed a new laboratory, and we are opening that 
new laboratory in April. And we'd love for you and your staff 
to come tour the new laboratory.
    Senator Wicker. I'll certainly do that.
    Ms. Tenenbaum. OK, please. Thank you.
    We also need more outreach into China. The FDA has put 
people in China because so much of our food is coming from 
China. We just opened our office at the U.S. Embassy in China, 
and have two staff members working with the Chinese on 
products.
    We've asked to be held harmless, in terms of budget cuts, 
because of the fact that we are just now implementing this very 
complex law. And we are now seeing a reduction in the number of 
recalls. Our presence in the ports has gone from 5 people at 
the ports to 19 people at the ports.
    But, all that said and done, we realize that we're a small 
agency and that we have to contain our budget. And so, what 
we've done is be much more creative in working with other 
agencies. Our relationship with Customs and Border Patrol is 
closer than ever before. We work with them to stop products 
from coming into the United States.
    We also are reaching out to colleges and universities. I've 
made visits to one university--we're going to another one--to 
ask them if they could work with us on research, and providing 
professors to train manufacturers in foreign countries so that 
they will know what the rules are for products coming into the 
United States.
    We have identified certain line items that could be cut if 
we need to be cut, and we'll be glad to provide that to you--
for you and your staff. We can send it----
    Senator Wicker. Could I----
    Ms. Tenenbaum.--after----
    Senator Wicker.--ask that you provide it for the record?
    Ms. Tenenbaum. Sure. We will provide it for the record. We 
have already sent it----
    Senator Wicker. When----
    Ms. Tenenbaum.--to OMB.
    [The information referred to follows:]

           United States Consumer Product Safety Commission
                                     Bethesda, MD, December 2, 2010
Hon. Roger F. Wicker,
Ranking Member,
Subcommittee on Consumer Protection, Product Safety, and Insurance,
U.S. Senate,
Washington, DC.

Dear Ranking Member Wicker:

    Thank you for your questions at today's hearing regarding the U.S. 
Consumer Product Safety Commission's (CPSC) budget priorities, 
implementation of the Consumer Product Safety Improvement Act of 2008 
(CPSIA), and ongoing activities to reduce injuries and deaths caused by 
defective or unsafe consumer products. 1 appreciated the opportunity to 
discuss these issues with you, and the progress we have made 
strengthening the Commission over the past year.
    As discussed at the hearing, I believe that any reduction in the 
amounts proposed in our Fiscal Year (FY) 2011 budget request would be 
detrimental to the agency's mission, and that the CPSC should he ``held 
harmless'' in this year's budgetary process. Actual full time employee 
(FTE) staffing levels at the Commission dropped from a high of 978 in 
1980 to a low of 396 FTE equivalents in 2008. This decline in staffing, 
combined with annual funding, was devastating to the agency's overall 
effectiveness--as was illustrated by the ``Summer of Recalls'' in 2008.
    In the last 2 years, the agency has made great strides rebuilding 
and working to ensure that the consumer products used by American 
families are safe. We are extremely grateful for the funding increases 
provided by the appropriators and have used this funding wisely and 
judiciously. While our proposed FY 2011 funding level is still almost 
30 percent below the 1980 level (adjusted for inflation), I believe the 
current level positions the agency for success in the future.
    Although we have exercised fiscal restraint, 1 am keenly aware that 
Congress may consider across-the-board cuts for agencies. Therefore, 
pursuant to your request. attached please find a list of preliminary FY 
2011 budget items that Commission staff have identified should any 
across-the-board cuts be implemented by Congress. I would note that 
these items were identified by staff, and have not been approved by the 
full Commission.
    Thank you in advance for your support of the CPSC. Should you or 
your staff have any questions, please do not hesitate to contact me or 
Christopher Day, Director of Congressional Relations.
            Very truly yours,
                                         Inez M. Tenenbaum,
                                                          Chairman.

    FY 2011 CPSC Budget Request Summary Adjusted to Reflect Potential
                     Mandatory Across the Board Cuts
                         [Dollars in Thousands]

2011 Request                                                   $118,600
                                                            ============
  Reductions in 2011 Current Services Changes:
    Federal Pay Increase with Related Benefits     ($937)
    Consumer Hotline                               ($266)
    IT Help Desk                                   ($266)
  Reductions From Base
    Operating Expense                              ($225)
Total Potential Mandatory Across the Board                     ($1,694)
 Cuts
Total Potential Revised Requirements                           $116,906
                                                            ============

    Senator Wicker.--do we normally get those, Mr. Chairman?
    Senator Pryor. We can hold the record open for as long as 
we want. But, if we want to try to get something----
    Senator Wicker. How soon could you provide that----
    Ms. Tenenbaum. We could----
    Senator Wicker.--list, Ms. Tenenbaum?
    Ms. Tenenbaum.--this today.
    Senator Wicker. OK.
    Ms. Tenenbaum. We can provide----
    Senator Wicker. Wonderful.
    Ms. Tenenbaum.--it today.
    Senator Wicker. Ms. Northup, I wonder this: What if every 
agency asked to be held harmless? We wouldn't be able to do 
anything about the budget deficit, would we?
    Ms. Northup. Well, I'm reminded that you and I sat next to 
each other on appropriations committees for years, so I'm not 
surprised I got this question.
    Let me make a creative suggestion. I would--if--here's sort 
of an off-the-wall suggestion: Go from five commissioners to 
one administrator. I have so much faith in Inez Tenenbaum's 
ability to chair this agency. I'm probably the only person who 
will come before you and suggest putting me out of a job. But, 
each one of us have a staff. And it is--the rulemaking is very, 
very complicated. But, what happens is that we find ourselves, 
you know, investing greats amount of time and effort and 
research, and our staffs are involved in how to research, say, 
this rulemaking. On the other side, the Democrats are involved 
in the same way. And so, rather than the chair being able to 
just work with the general counsel and the professionals that 
are at the agency, she is pulled by the Democrat mayor--members 
to one side; we pull to the side of flexibility. And so, 
there's great polarization.
    And I actually think that her ability to balance the 
initiatives, all the ones that she has brought up, are probably 
the things that have had the--made the most difference in 
safety. They are the things that she is able to do 
individually, as opposed to the rulemaking. And I think the 
rulemaking would go smoother; and, quite honestly, I think it 
would have been more balanced, had it not been five 
commissioners.
    So, I would just say that you have a chance to debate the 
pros and cons of every single bill. You have people that--on 
both side of the aisle, that have different opinions, and 
people that come from different perspectives. Once you write 
the bill, I'm not sure it's so helpful to have four more 
commissioners that are debating these same things for hours and 
hours and hours, hiring their own staff, taking up a lot of 
office space, keeping the office of the general counsel and the 
professional staff busy answering all of our questions, when 
maybe the Administrator should be charged with that 
responsibility.
    Senator Wicker. How large is your staff, Ms. Northup?
    Ms. Northup. I have three people to--one that's paid 
$150,000 a year, one that's paid $100,000 a year, and one 
that's paid $50,000 a year.
    Senator Wicker. Well, I've followed the Chair's example and 
overstayed my time. Let me just say this. We hear a lot of talk 
about moving the appropriation level back to the 2008 level of 
expenditure. What the Chair, Chairman Tenenbaum, has suggested 
is that this agency be exempted from that. Ms. Northup has 
suggested what I think would probably amount to modest savings.
    I just have to say this. If we're going to be serious about 
this, and if there are ways that we can provide flexibility, 
keep people employed in the private sector, and quit talking 
about products that have never been unsafe and toys that have 
never caused a problem and lead-containing handlebars that have 
never harmed one single human being in the history of their 
manufacture, then we need to think about those solutions. And, 
if we don't, we're going to have a real problem with doing the 
simple things of cutting back on discretionary expenditures, 
much less the excruciating and much more difficult issue of the 
entitlements.
    And I thank you, Mr. Chairman.
    I thank these witnesses.
    Senator Pryor. Thank you.
    Senator Udall, I believe, has to leave here----
    Senator Udall. Thank you.
    Senator Pryor.--in a few minutes. So----
    Senator Udall. Thank you. Well, thank you, Chairman Pryor.
    And it was a very good exchange. But, I think one of the 
important things, Ranking Member Wicker--when we talk about 
safety and talk about budgets at the same time, I think it is 
very important that we give the agency the budget they need in 
order to protect consumers and to protect safety. And I think 
that's what the Chairwoman is talking about.
    Let me thank you, Chairman Tenenbaum, for your testimony 
today, and CPSC's work to protect consumers from unsafe 
products. And I have some additional questions for the record, 
but I'd like to focus on the safety issue that I brought up in 
my opening statement.
    Senator Udall. You know, fall is football time in America. 
And every year, more than a million high school kids put on 
their gear and take to the gridiron, including about 8,000 in 
my home state of New Mexico. This weekend, in fact, teams from 
our larger high schools will compete for the State 
Championship.
    Football is a uniquely American tradition. But, football is 
a contact sport, and thousands of student athletes are injured 
every year. Many of those injuries are concussions. For young 
people between the age of 15 and 24 years old, playing sports 
is the second leading cause of traumatic brain injury, second 
only to motor vehicle crashes.
    New Mexico actually has one of the nation's best school 
sports concussion laws. We require athletes--and it was 
authored by a fine young state senator, named Senator Michael 
Sanchez--we require athletes who suffer a concussion to sit on 
the sidelines for one week and until a medical professional 
approves their return to play.
    But, I'm concerned that our young athletes may not be using 
the best safety equipment. Traditional football helmets--I had 
a couple here, but I don't want to bring--first, I was just 
going to bring one up, and then my staff said, ``Well, you''--
this is our--two-college football----
    [Laughter.]
    Senator Udall.--and you can imagine, they compete with each 
other. And so, they--and I said, ``Well, we just need one.'' 
And they said, ``No, you can't put up one without putting the 
other.'' New Mexico--University of New Mexico and New Mexico 
State. So, anyway----
    Senator Klobuchar. And where's the Gopher?
    Senator Udall.--these helmets----
    Senator Klobuchar. The Gopher.
    Senator Udall. Where's the----
    Senator Klobuchar. Minnesota Gophers.
    Senator Udall. Well, these are Lobos. These----
    Senator Klobuchar. Yes.
    Senator Udall. You got a----
    Senator Klobuchar. Yes, I know. But----
    Senator Udall.--Lobo and an Aggie----
    Senator Klobuchar. Yes, well----
    Senator Udall.--right here. So, yes.
    Senator Klobuchar.--you know----
    Senator Udall. OK.
    Senator Klobuchar.--we should expand.
    Senator Udall. You can bring your helmets in----
    Senator Klobuchar. OK.
    Senator Udall.--if you want.
    Senator Klobuchar. Thank you.
    [Laughter.]
    Senator Udall. These helmets are primarily designed to 
prevent serious injury from a severe direct blow that can crack 
one's head open. However, football helmets are designed to a 
safety standard that specifically addresses the dangers from 
less severe impacts and indirect hits that can cause a 
concussion. More advanced football helmet designs are 
available, but the voluntary industry standard has not kept up 
with the latest technology. The current helmet standard is also 
a one-size-fits-all approach, from kids playing Pop Warner, the 
youngest kids, to the pros in the NFL. So, one size fits all.
    I believe that the CPSC has a responsibility to ensure that 
football helmets meet safety standards that address concussion 
hazards and reflect the state-of-the-art helmet technology. And 
there's a lot of discussion out there with neurosurgeons and 
other experts.
    And really my question to you--I guess I have two 
questions: Will you review whether the voluntary football 
helmet standard and certification practices adequately protect 
high school and younger athletes from concussion? And will you 
follow up with the football helmet standards organization, 
NOCSAE, to make sure they address these safety concerns, 
especially complaints that the standard is out of date?
    Please, go ahead.
    Ms. Tenenbaum. Thank you, Senator Udall. I completely share 
your concerns. And I want to provide you and the rest of the 
members of this subcommittee with some specifics on what we are 
going to do on this issue going forward.
    First of all, in keeping with this mission of protecting 
consumers from unreasonable risk of serious injury or death 
from consumer products, including sports equipment such as 
football helmets, CPSC is committed to working within the 
standards development community to improve helmet safety 
standards and testing. More specifically, I felt that it was 
vital for the CPSC staff to establish contact with the 
personnel of NOCSAE, the standards-setting body. And we've 
already made contact with them, and we will continue working 
with them.
    So, based on this initial outreach, the CPSC technical 
staff will be joining NOCSAE's standards development process in 
January in order to monitor and help accelerate their efforts 
to update the appropriate standards. So, we have already 
started that.
    In addition, we continue to consider other avenues to 
augment this effort. I will use the bully pulpit as Chairman of 
the Consumer Product Safety Commission, and we will do all that 
we can to make sure that the standards-making organization is 
looking at all the best engineering and science.
    Every man in my family played football. I still have 
pictures of my father, in high school and college, wearing his 
leather football helmet. And we are great football fans. We're 
looking forward to University of South Carolina playing Auburn 
for the SEC Championship on Saturday.
    But, I'm very concerned, as you are, about the safety of 
people and the number of concussions. I've followed the news 
stories about how many people are hurt, and particularly high 
school students who are just learning how to tackle and can get 
hurt more seriously. So, we are with you on this and want you 
to know that we will keep you updated periodically on our 
progress.
    Senator Udall. Thank you very much. And I went over, a 
little bit, in my time----
    Ms. Tenenbaum. I did, too.
    Senator Udall.--so, I appreciate the courtesies from the 
Chairman.
    But, I really appreciate you moving ahead aggressively, and 
doing what you've done already, and really look forward to 
working with you and all of the people, out there across the 
country, that I think have a great concern about these serious 
safety issues.
    Thank you. Thank you very much.
    Ms. Tenenbaum. Thank you.
    Senator Pryor. Senator Klobuchar.

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you very much.
    Thank you, to both of you, for your service.
    I just remember, back in the early days, when I got here, 
which is not that long ago, and the issues, as I know Chairman 
Pryor remembers, with the CPSC, and our frustrations with a lot 
of the toys that were coming in from China. We had everything 
from the Aquadots, that were making kids go into a coma, to the 
little charm that was swallowed by a little boy in Minneapolis; 
a 4-year-old boy, whose mom had gotten a pair of tennis shoes, 
swallows the charm and dies. And when they tested the charm, it 
was 99 percent lead. That kid didn't ask for that charm. The 
mom didn't ask for that charm. It was given free with a pair of 
tennis shoes.
    And so, we realized, at that point, that we need to update 
our statutes. And I think, at the same time, with legislation 
as detailed and sweeping as the CPSIA, it should come as no 
surprise that certain clarifications and adjustments need to be 
made, especially as many small manufacturers, retailers, 
secondhand stores, as well as ATV/bicycle enthusiasts, have 
been trying to comply with the law, and that there are issues 
that need to be handled in a pragmatic way.
    I know that the Commission granted a one-year stay of 
enforcement of the testing requirements, and a two-year stay of 
enforcement for the lead-content limits on youth-model ATVs, 
snowmobiles, and motorcycles. And so, that is where some of my 
questions are.
    I guess the first one would just be a general question for 
you, Chairman Tenenbaum. How would you compare the safety of 
toys today versus in 2007, before the bill was passed? And what 
kind of information do you think parents should now have 
available as they go into the holiday season?
    Ms. Tenenbaum. Well, thank you, Senator Klobuchar.
    We have worked very hard to impress upon manufacturers that 
they need to get lead out of children's products. And we are 
seeing the number of recalls decline; we've seen the number of 
recall products with lead decline. And that is why we think 
that given the resources and the renewed vigor that you've 
provided in the CPSIA, you're going to see even more 
improvements over time.
    I'll focus on just your question and not the issue of lead 
content. In my earlier statement, I said consumers are safer. 
One, we have third-party testing. It is onerous for people to 
have to third-party test. But, you have products coming in from 
China; 80 percent of all the toys that we sell in the United 
States are manufactured in China. I have toured factories in 
China, with American brand names--and they said, ``We need the 
third-party testing because we have a complex supply chain, and 
it protects us and removes our risk.''
    Two, we now have tracking labels. We didn't have a one-
size-fits-all approach. We took into account small 
manufacturers. But, tracking labels will help a consumer, a 
parent, know where that product was manufactured, if there are 
problems with them.
    We also have worked very hard with small businesses, we've 
provided seminars, we've had outreach. I have an open-door 
policy. The first year of my tenure, I had meeting after 
meeting with all kinds of industry to hear their concerns.
    Senator Klobuchar. You know, and--could I just follow up on 
that a bit? Because, again, I appreciate the work that has been 
done is--there were a lot of businesses involved in getting 
this law done, including the ATV industry, which is major in my 
state. And they actually, as Chairman Pryor mentioned, were 
very concerned about some of the imports that were coming in 
from other countries that didn't meet our safety standards. 
But, what they didn't expect, because of some provisions added 
at the last minute, that this bill was going to cover, like, 
thinking kids were going to, like, suck on brake pedals or 
something. So, I just want to get to some of those concerns----
    Ms. Tenenbaum. OK.
    Senator Klobuchar.--as well--as you know, I was supportive 
of this bill, in general. But, I'll start--maybe I'll start 
with some of the ATV issues. And I do appreciate the stay, with 
regard to enforcing the CPSIA, against ATVs built for the youth 
market, until this April. But, what has happened now is, four 
out of eight major manufacturers have, nonetheless, removed 
themselves from the youth market. And maybe some people think 
that's good, but the problem is that I'm afraid that kids are 
going to ride adult ATVs now. And even the CPSC's own studies 
show that 90 percent of ATV-related injuries to children occur 
while riding the larger ATVs.
    And so, what do you think we can do to get a permanent 
solution, here? I know the electronics industry got itself 
exempted out of this. ATV was supportive of this bill, because 
of the import issue, and it's ironic, indeed, that there isn't 
some way to resolve this. And do you think we need legislation? 
Or what do you think we need to do to fix this?
    Ms. Tenenbaum. Well, on a temporary basis, we've asked the 
ATV industry to provide us with information, because the stay 
for testing does lift in May for ATVs and bicycles. And we 
asked them to provide us information on how they intend to 
comply. If these manufacturers believe they're not going to be 
able to comply with the requirements, then they can submit a 
petition to the Commission asking us to extend the stay. But in 
meeting several times with the ATV industry, they need a 
permanent solution.
    And so, what--when we all work together--and Commissioner 
Northup and I disagree on this approach, on a functional-
purpose exemption. Under the Federal Hazardous Substance Act, 
we had a functional purpose exemption. So, if you came with a 
chemistry set, you had to have types of chemicals in the set in 
order to make it a functional purpose. So, you were given an 
exemption by the CPSC, under the FHSA.
    We want a functional-purpose exemption. Instead of just 
wholesale gutting the CPSIA, let's do some surgery on it. Under 
the functional-purpose exemption, if you came in with an ATV 
and said, ``Look, we need lead in this machine to make it 
stronger. Children are not going to mouth or swallow any of 
these components. And it's not going to pose a risk to the 
health of anyone who rides it, in terms of lead exposure.'' We 
could give you an exemption, a blanket exemption for the whole 
industry, a blanket exemption for bicycles. However, we do not 
want--to make it more complicated--and Commissioner Northup has 
pointed this out--you don't need regulations on this. If we 
have to write rules to have a functional purpose, it will bog 
us down, and we'll have to go through all this extensive 
rulemaking.
    Just let us give the exemption. We don't have to make it 
overly burdensome. We don't want people to have to spend 
thousands of dollars coming up with this petition and proving 
to us that it's too costly to have something else in the 
market. Just file the petition, we'll look at it, we'll make a 
determination.
    And that's how we thought we could get ATVs and bicycles 
and products that are not a high risk out of the lead 
requirements. But, if you make us do the rulemaking and make it 
overly burdensome, it's going to be too expensive for industry 
to comply with the CPSIA.
    Senator Klobuchar. OK.
    I know Ms. Northup wants to respond. And were we going to 
have a second round here? Because I have----
    Senator Pryor. I wasn't going to----
    Senator Klobuchar. OK.
    Senator Pryor.--but why don't we let her respond----
    Senator Klobuchar. OK. All right. Northup.
    Ms. Northup. Let me say that I think our goal is the same 
here, some sort of realistic--allowing the lead content to be 
whatever it is that's necessary to hold the ATV or the bike or 
whatever together. But functional- purposes, as it has been 
proposed, any proposal I have seen for it, has said, ``if there 
is another--no alternative material that'll provide this same 
thing, if there's no harm to the children.''
    Well, first of all, I'd just say, if there's no harm to the 
child, why would there be any other reason anyway to outlaw 
this screw, nut, bolt, whatever. But, it means that big 
industries, like ATV--and I respect how important it is to you, 
particularly--they can summon the money and the metallurgical 
studies to show that there's nothing that meets that standard, 
or whatever. But, small businesses or businesses like--that 
make school science kits, they don't have the number of 
products and the price range in order to spread out the cost of 
a petition, and especially for toys or for science kits that 
may evolve.
    You know, the ATV may get an exemption across the industry, 
but, so many other companies, this would be far too 
complicated, far too expensive for them to file a petition, to 
wait until we can act on it. The petitions we've acted on so 
far have taken months, and we've turned every one of them down.
    So, I would just say, there are people that believe you 
should never give an exemption, if there is any possibility you 
don't have to, regardless of risk and--because of the 
precedent-setting. And you're going to continue that debate if 
it's just a functional-purpose exemption.
    Senator Klobuchar. And I know the Chairman wants to 
respond, but I am heartened somewhat; you both have the same 
intent to try----
    Ms. Tenenbaum. We do.
    Senator Klobuchar.--to be pragmatic about how to respond to 
this. OK.
    Ms. Tenenbaum. We do. And Commissioner Northup gets into, 
``If it's not a risk, then just exempt it.'' You can also 
exempt it. If you want to exempt ATVs out of a piece of 
legislation--or bicycles--you have the power to do that. If you 
ask the Commission to go back and look at risk of every product 
to determine whether or not there's any lead absorbed and 
whether it changes the blood lead level, we will be back where 
we were before the CPSIA.
    You decided, in Congress, that you would go with a content 
standard--300 parts per million, it's going to be reduced to 
100 parts per million. You did not do a solubility standard, 
because there were so many variables and there are no known 
safe levels of lead. An article in this morning's Washington 
Post, was about the lead pipes here in Washington D.C. There is 
no blood lead level that is considerable safe for children. And 
so, that's where we are. We go back and forth about, ``Well, 
this isn't a risk.'' Well, if it's not a risk, and 
manufacturers have to have it in their product, then we will 
give them a functional-purpose exemption. We don't have to make 
it expensive or complicated.
    But, you chose the total lead limit instead of solubility, 
for several reasons. One, bioavailability, which Commissioner 
Northup talked about, on how much lead you can get by rubbing a 
bicycle depends on the child. Every child is different. If 
you're a young child, you're going to absorb more lead. If 
you're a----
    Senator Klobuchar. OK.
    Ms. Tenenbaum.--malnutritioned child--I'm sorry, I'm using 
your time.
    Senator Klobuchar. No----
    Ms. Tenenbaum. It also depends on the product. Vinyl 
degrades with age and produces more lead, and also the 
viability tests are diverse. And so, there----
    Senator Klobuchar. OK. Now----
    Ms. Tenenbaum.--were so many variables.
    Senator Klobuchar. But----
    Ms. Tenenbaum. And that's why you stopped at 300----
    Senator Klobuchar. So--right--so, is there some degree of, 
until we solve this, which approach we want to take here to 
address these pragmatic concerns? And is another extension a 
possibility, then? And that's what we'll----
    Ms. Tenenbaum. It is a number--a strong possibility----
    Senator Klobuchar. OK.
    Ms. Tenenbaum.--if we can start this conversation in 
Congress about making these changes to the law.
    Senator Klobuchar. OK----
    Ms. Northup. Let me----
    Ms. Tenenbaum. It is a strong
    Senator Klobuchar. OK----
    Ms. Tenenbaum.--possibility.
    Senator Klobuchar. Why don't we--do you want to--what I'll 
do is put some questions in writing, so that we can continue 
this discussion, and maybe in my office as well, because I know 
we have another panel waiting. And then I also had some follow-
ups, which I can do in writing, of the--Dan Marshall, from my 
state, is the owner of Pea Pods Natural Toys and Baby Care 
store, in Saint Paul. They obviously have some concerns with 
the third-party testing and how that applies to small 
businesses. And I will raise those in writing, as well.
    Senator Klobuchar. And then, the last thing that I wanted 
to follow up on was, again, to thank the Commission for its 
work on the Graeme Baker Pool and Spa Safety Act, something I 
worked very hard on, Senator Pryor worked hard on.
    And I know that we're seeing some good compliance rates 
with the Pool Safety Act, and I wanted to thank you for that, 
both of you and the Commission, and the work that's going on. 
It's a very important thing. We had a little girl die in 
Minnesota, and that bill has meant a lot to the people of our 
state and that family.
    So, thank you.
    Ms. Tenenbaum. Thank you.
    Senator Pryor. Thank you, Senator Klobuchar. Thank you for 
being here.
    And our time for this panel is up, so what we will do is, 
we will leave the record open, because I have some follow-up 
questions as well, and I know Senator Klobuchar does, and, I 
want to say, Senator Wicker and a few others that couldn't be 
here because there's a lot going on today in the Senate. They 
have the Armed Services Committee hearing, but lots of other 
things, as well.
    So, we'll leave the record open, and we will send you 
written questions and--how long will we leave it open--we'll 
leave it open for 2 weeks, but we'd love to get those responses 
as quickly as possible.
    Senator Pryor. And, as we alluded to before, there'll 
probably be some other dialogue that happens here, not just in 
the next couple of weeks, but over the next few months, I'm 
sure.
    But, anyway, thank you all for being here.
    I'm going to go ahead and introduce our second panel, but--
--
    Ms. Tenenbaum. Thank you, Senator----
    Senator Pryor.--thank you both----
    Ms. Northup. Thank you----
    Senator Pryor.--very much----
    Ms. Tenenbaum.--Mr. Chairman.
    Senator Pryor.--for your time and your service.
    The second panel, I'm going to go ahead and just read their 
names and give a super-short introduction for them.
    Like the first panel, they all come with great credentials 
and a great background. But, what I will do, as the staff is 
rearranging here, and as the folks are coming and going here--
--
    Our first panelist will be Ms. Rachel Weintraub. She's 
Director of Product Safety and Senior Counsel at the Consumer 
Federation of America. Second is Mr. Steve Lamar. He's 
Executive Vice President of American Apparel and Footwear 
Association. Third is Dr. Garry Gardner, American Academy of 
Pediatrics Chair, Committee on Injury Violence and Poison 
Prevention. And, fourth, Ms. Jill Chuckas, Board Member, 
Handmade Toy Alliance and, I believe, the Owner of Crafty Baby, 
LLC.
    So, what I'd like to do is just do a 5-minute introduction 
for each one of you all. Then we'll have questions.
    So, Ms. Weintraub, you want to lead off, here?
    Thank you.

                 STATEMENT OF RACHEL WEINTRAUB,

         DIRECTOR OF PRODUCT SAFETY AND SENIOR COUNSEL,

                 CONSUMER FEDERATION OF AMERICA

    Ms. Weintraub. OK. Thank you.
    Thank you, Chairman Pryor.
    I'm Rachel Weintraub, Director of Product Safety and Senior 
Counsel with Consumer Federation of America. CFA is an 
association of nearly 300 nonprofit consumer organizations that 
was established in 1968 to advance the consumer interests 
through research, advocacy, and education.
    I offer this testimony on behalf of CFA as well as 
Consumers Union, Kids in Danger, and the U.S. Public Interest 
Research Group.
    Thank you very much for inviting me to testify before you 
today.
    Today is the first day of Chanukah, Christmas is just 23 
days away, and the holiday buying season has officially begun. 
Our country's tradition of gift-giving provides a useful 
perspective through which to comment on the Consumer Product 
Safety Improvement Act in particular, and the Consumer Product 
Safety Commission in general.
    While consumers should think about how the child interacts 
with the product, if there are other children in the house, or 
whether the product has been previously recalled, before a 
product is purchased, there are some issues that no amount of 
planning or thought can detect. It is this realm of hidden 
hazards that the CPSIA and the CPSC have sought to detect and 
to prevent.
    Before passage of the CPSIA, Congress undertook a year-long 
process to consider the implications of this Act, and the 
leadership of this subcommittee was an essential and important 
part of that process. The CPSIA's passage followed a period of 
a record number of recalls of hazardous products that injured, 
sickened, or killed vulnerable consumers and sought to repair a 
weakened oversight agency that failed in its meager efforts to 
protect public health and safety.
    In response, Congress passed the CPSIA, which makes 
consumer products safer by banning lead and phthalates in toys, 
creating a publicly accessible consumer incident database, 
giving the CPSC more resources, increasing civil penalties, and 
requiring that toys and infant products be tested for safety to 
strong standards before they are sold and in our children's 
hands. This proactive approach will benefit the public as well 
as manufacturers by avoiding costly recalls.
    There have been numerous successes in implementing the 
CPSIA. The mandatory crib standard, close to being finalized, 
that's required by Section 104, is an important example. We 
applaud the CPSC for prioritizing the safety of infant sleep 
environments, in light of the deaths of many children due to 
poorly designed cribs, bassinets, and cradles, which have led 
to the recall of more than 7 million cribs over the past 2 
years. Only since passage of the CPSA--CPSIA--has an effort 
been made to strengthen crib standards.
    Another success of the CPSIA is last week's passage of the 
final rule implementing the Consumer Product Safety Information 
Database. As a result of the CPSC staff's leadership and 
commitment, consumers will have access to lifesaving 
information. And the agency will more nimbly be able to 
identify and act upon safety hazards. The final rule is 
consistent with Congressional intent, responsive to the public-
interest need for disclosure, and protective of a 
manufacturer's effort to protect their brand and confidential 
business information.
    When consumers purchase toys for children online this year, 
the same choking-hazard warnings that appear on toy packaging 
will also appear online. That's an important consumer 
protection, considering today's shopping trends. The CPSIA 
requires that infant-durable products, such as cribs, 
strollers, and highchairs, include a product registration card 
in their packaging and provide an opportunity to register 
online. This will give manufacturers information necessary to 
directly communicate with consumers, the consumers who bought 
the product, in the event of a recall or other product safety. 
And this will greatly increase recall effectiveness.
    Since passage of the CPSIA there have been challenges: a 
CPSC that initially moved slowly and gave out confusing 
information, an economic downturn that has affected businesses, 
the realization that lead and other heavy metals, such as 
cadmium, are more pervasive in consumer products than had been 
expected, as well as concern about the laws implementation 
consistently raised by manufacturers, small businesses, 
crafters, and thrift stores.
    CPSC has been managing these challenges. They've held 
numerous public meetings and hearings. CPSC has provided clear 
information to stakeholders, through numerous publications. In 
addition, CPSC is establishing a new Office of Education Global 
Outreach and Small Business Ombudsman to carryout education/
outreach activities to stakeholders. The CPSC also issued an 
interim enforcement policy, related to component testing, that 
should be finalized soon.
    But, some efforts in response to these challenges go too 
far and would open a series of gaping loopholes in the CPSIA 
that would allow more lead into a host of children's products.
    First, some have argued, or some will argue, that the 
CPSIA's scope should be limited to children under 6, from what 
it--it's now 12 years and younger. The reality is that children 
of younger ages play with their older siblings' toys all the 
time, and the voluntary standard goes up to 14. Many companies 
are already applying with those voluntary safety standards.
    Second, some have proposed that risk analysis be applied 
for regulating lead in products. Requiring a piecemeal approach 
for lead, which is a known toxin, would be wasteful of taxpayer 
money and government resources. It would reverse the 
presumption for safety of products and allow all products to be 
sold and be exempt from testing for lead unless CPSC finds 
otherwise. This would be a return to the state of the law 
before CPSIA was passed. CPSC would not act until a child had 
been harmed by a lead-laden product. This would result in an 
unreasonable risk to children.
    Cadmium has been another challenge. And there is now a 
voluntary standard that is moving, that hopefully will be 
proactive. And if that is not proactive enough, CPSC should 
move on a mandatory standard for cadmium.
    We thank you, Chairman Pryor, for your important leadership 
on product safety issues. We look forward to working together 
to protect the public from harms posed by hazardous products. 
And I wish everyone a happy and safe holiday season.
    [The prepared statement of Ms. Weintraub follows:]

Prepared Statement of Rachel Weintraub, Director of Product Safety and 
             Senior Counsel, Consumer Federation of America
    Chairman Pryor and members of the Subcommittee on Consumer 
Protection, Product Safety and Insurance, I am Rachel Weintraub, 
Director of Product Safety and Senior Counsel at Consumer Federation of 
America (CFA). CFA is an association of nearly 300 nonprofit consumer 
organizations that was established in 1968 to advance the consumer 
interest through research, advocacy and education. I offer this 
testimony on behalf of Consumer Federation of America as well as 
Consumers Union, Kids in Danger, and the U.S. Public Interest Research 
Group. Thank you for inviting me to testify before you today.
    Today is the first day of Chanukah, Christmas is just 23 days away, 
and the holiday buying season officially began last Friday. The holiday 
season, with our country's tradition of gift giving, provides a useful 
perspective through which to observe and comment on the Consumer 
Product Safety Improvement Act of 2008 (CPSIA) in particular and the 
Consumer Product Safety Commission in general. Whenever we make a 
purchase for our family and friends, most people assume that the 
product they are considering is safe. While purchasers think about what 
the person would like, what they want or need or what they requested, 
an underlying assumption is that the product we are choosing will not 
cause harm. While consumers do need to think about how the child 
interacts with the product, if there are other children in the house 
who may play with the product, or whether the product has been 
previously recalled, there are some issues that no amount of thought or 
planning can detect. It is the realm of hidden hazards that the CPSIA 
and CPSC have sought to detect and prevent.
    The bipartisan Consumer Product Safety Improvement Act passed 
overwhelmingly in the House on July 30, 2008 by a vote of 424-1, in the 
Senate on July 31, 2008, by a vote of 89-3 and was signed into law by 
President Bush on August 14, 2008. Before this law passed, Congress 
undertook a year-long deliberative process to consider the implications 
of this act: there were approximately 15 hearings and markups in the 
House and Senate covering issues and products related to the CPSIA, and 
once each chamber passed its version of the bill, there was a 
conference in regular order between both Houses of Congress. The 
leadership of this subcommittee was significant and much needed as this 
law was moving through Congress. This law institutes the most 
significant improvements to the Consumer Product Safety Commission 
(CPSC) since the agency was established in the 1970s.
CPSIA's Significance, New Requirements and Implementation
    The CPSIA's passage followed a period of a record number of recalls 
of hazardous products from the market that injured, sickened, or killed 
vulnerable consumers. The bill's passage was also in response to a 
weakened Federal oversight agency that failed in its meager efforts to 
protect the public's health and safety.
    Before the CPSIA was passed, CPSC's past as well as its future was 
bleak. In 1972, when CPSC was created, the agency was appropriated 
$34.7 million and 786 full time employees (FTEs). Before the CPSIA 
passed, the agency's budget had not kept up with inflation, had not 
kept up with its deteriorating infrastructure, had not kept up with 
increasing data collection needs, had not kept up with the fast-paced 
changes occurring in consumer product development, and had not kept 
pace with the vast increase in the number of different types of 
consumer products on the market. CPSC's staff had suffered severe and 
repeated cuts during the last two decades, falling from a high of 978 
employees in 1980 to just 401 in 2007--a loss of almost 60 percent.
    For example, CPSC's 2008 Performance Budget document painted a grim 
picture of the CPSC's future work. The budget document was full of 
statements such as, ``while the CPSC has thus far been successful at 
facing these new and evolving challenges with diminishing resources, 
the 2008 funding level will challenge the Commission's ability to 
maintain its existing level of standards development, enforcement, 
public information, and international activities.'' \1\ The 2008 
Performance Budget document was replete with staffing cuts, limitations 
to programmatic goals and the absence of previous goals and projects. 
CPSC's efforts to reduce product hazards to children and families were 
hindered by the forced reductions in FTEs.
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    \1\&& U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page vii. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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    In response to this dismal picture, Congress infused the CPSC with 
new authority and more resources. It has been over 2 years since the 
CPSIA was passed. This relatively new law will make consumer products 
safer by requiring that toys and infant products be tested for safety 
before they are sold, and by banning lead and phthalates in toys 
(although implementation of the testing requirement has been twice 
delayed by the CPSC). The law also authorizes the first comprehensive 
publicly accessible consumer complaint database due to be launched next 
March; gives the CPSC the resources it needs to protect the public, 
such as enabling it to hire additional staff; increases civil penalties 
that the CPSC can assess against violators of consumer product safety 
laws; and protects whistleblowers who report product safety defects.
    Many consumers believed that products were tested before they were 
sold--that some entity issued stamps of approval for products before 
they were sold in the store. However, that was never true. Before 
passage of the CPSIA, the CPSC for the most part had authority only 
over products after they were sold. If a problem was identified as 
posing a risk of harm to consumers, the CPSC could recall the product, 
but that was only after the hazardous product was already in consumers' 
homes and in their children's hands. The CPSIA significantly changes 
the reactive nature of the CPSC by requiring that children's products 
subject to mandatory standards be tested for safety before they are 
sold. A proactive safety system should benefit the public as well as 
manufacturers by avoiding costly recalls.
CPSC and CPSIA Successes
Mandatory Crib Standard
    While there have been challenges there have also been successes in 
implementing the CPSIA. One of the most notable examples is the 
mandatory crib standard that is required by section 104 of the CPSIA. 
The CPSC is close to finalizing the final rule for cribs. We applaud 
the CPSC for prioritizing the safety of infant sleep environments in 
light of the deaths of many children due to poorly designed cribs, 
bassinets, and play yards. Pervasive design flaws have lead to the 
recall of more than 7 million cribs over the past 2 years. It was 
essential that the CPSC place safe sleep environments at the top of 
their mandatory standards-setting list as part of that initiative.
    Recalls and corrective actions for cribs have been issued for non-
compliance with safety standards; strangulation hazards; risk of head 
entrapment when side rails, spindles, and slats in side rails become 
loose; risk of suffocation; choking hazards; risk of falling; and 
danger of laceration when fingers become trapped in folding drop 
gates.\2\
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    \2\ Kids in Danger, http://www.kidsindanger.org/prodhazards/
recalls/cribs.asp.
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    While the current voluntary crib standards ban the drop-side design 
in new cribs, only since passage of the CPSIA has there been an effort 
made to strengthen the voluntary and mandatory standards and require 
testing and verification of new cribs. The final CPSC crib standard 
incorporates many provisions that consumer advocates have been 
supporting for years that replicate the real world use of cribs, such 
as durability tests, mattress support tests, and tests for the 
effectiveness of hardware. The resulting proposed CPSC standard is a 
strong one and is a successful consequence of the CPSIA. In addition, 
Chairman Tenenbaum and her staff have been successfully reaching out to 
consumers through the Safe Sleep Campaign and have made it clear to all 
stakeholders that creating safe cribs and sleep environments is an 
imperative.
    Section 104(c) of the CPSIA seeks to address hazards posed by older 
model cribs by removing them from the market. This section applies to 
cribs sold new and used, cribs used in child care facilities, and cribs 
used in public accommodations such as hotels and motels. The 
application of this provision means that older cribs that pose 
significant risks to children will be taken out of the stream of 
commerce. This provision is based upon laws already in existence in 
numerous states including: Arizona, Arkansas, California, Colorado, 
Illinois, Louisiana, Michigan, Minnesota, Oregon, Pennsylvania, Vermont 
and Washington. This provision extends the protections previously 
offered in just these states to the entire nation to ensure that 
children sleep in cribs that meet the most recent and most protective 
crib safety standards.
    We support the CPSC's current language in its proposed crib rule 
\3\ regarding a six-month effective date as it applies to 
manufacturers. The customary 6 months gives manufacturers adequate time 
to comply with the new crib standards. In addition, we will support an 
additional 6-month compliance period for child care facilities, 
allowing them to phase in replacement of non-compliant cribs over the 
course of 1 year following the publication of the final rule.
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    \3\ Safety Standards for Full-Size Baby Cribs and Non-Full-Size 
Baby Cribs; Notice of Proposed Rulemaking; Proposed Rule,'' Federal 
Register Vol. 75, No. 141, July 23, 2010.
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Database
    Another success of the CPSIA is last week's passage of the final 
rule implementing the consumer product safety information database. 
CPSC is required by Section 212 of the CPSIA to establish the database. 
As a result of the CPSC staff's leadership and commitment to the 
effectiveness of the database, consumers will have access to lifesaving 
information and the agency will more nimbly be able to identify and act 
upon safety hazards. CPSC staff worked hard to formulate CPSC's final 
rule in a manner that is consistent with Congress' intent, responsive 
to the public interest need for disclosure, and protective of a 
manufacturer's effort to protect their brand and confidential business 
information. The database includes more checks on the information and 
more opportunities for a manufacturer to comment than other similar 
databases.
    Consumers have been in the dark about the dangers of products 
regulated by CPSC. CPSC currently collects incident data from consumers 
in a manner similar to how it will be collected as part of the new 
database. However, the difference is that now, when consumers go to 
CPSC's website to look for information, it is not available. All that 
they can usually find relates to a previous recall. If the Commission 
has been alerted to the dangers of a product but has not conducted a 
recall, the product's hazard may never be known to the public.
    The database will help change that. Public access to information is 
vital to safety. Simply allowing consumers access to the safety record 
of products will increase safety and encourage the speedy removal or 
redesign of unsafe products. Making it simple for consumers to report 
into a single database the problems they encounter with products will 
also help the Commission to do its job of protecting the public from 
unsafe products more efficiently, which can help save Commission 
resources.
Online Toy Hazard Warnings
    When consumers purchase toys for children online this year, because 
of the CPSIA, the same choking hazard warnings that appear on the toy 
packaging will also appear online. This is an important consumer 
protection considering today's shopping trends. For years, consumers 
who purchased toys online were at a safety disadvantage because they 
did not receive all the information they would have received, had they 
made the purchase in a store. This concern has been solved by the 
CPSIA.
Product Registration
    The CPSIA requires that infant durable products, such as cribs, 
strollers and high chairs, include a product registration card in their 
packaging and provide an opportunity to register online. This will give 
manufacturers information necessary to directly contact consumers in 
the event of a recall or other product safety issue.
    The requirements for the product registration cards and an online 
registration program are contained in Section 104 of the CPSIA, which 
incorporates the Danny Keysar Child Safety Notification Act. Danny, 
whose parents founded Kids In Danger, died in 1998 when the portable 
crib he slept in at a child care center collapsed and strangled him. 
The crib had been recalled 5 years earlier, but no one at the child 
care center, including the mom who donated the crib, had heard of the 
recall. Too many consumers never hear about a recall of a product that 
they have in their home. Registering products is an important step that 
will increase the number of consumers who hear about a recall.
7Mandatory Toy Standards
    Despite the fact that many conformity assessment bodies have not 
yet received accreditation to conduct full-scale testing, with the 
expectation of tighter enforcement down the road, many manufacturers 
are already adopting robust testing procedures and the safety of toys 
has been enhanced. The CPSC continues to work on ways to help small 
manufacturers who have raised concerns about the costs associated with 
such testing ensure that their toys are just as safe.
Reviewing Past Data
    CPSC has also been reviewing old records and taking long-overdue 
action. Earlier this year, CPSC announced the recall of two million 
Graco strollers: the Quattro TM and MetroLite TM 
because of entrapment and strangulation risks. CPSC and Graco had 
``received four reports of infant strangulations that occurred in these 
strollers between 2003 and 2005. In addition, CPSC was aware of five 
reports of infants becoming entrapped, resulting in cuts and bruises, 
and one report of an infant having difficulty breathing.'' \4\ While 
these strollers should have been recalled years ago, we applaud CPSC 
for taking the right action now to remove these potentially hazardous 
products from the market.
---------------------------------------------------------------------------
    \4\ U.S. Consumer Product Safety Commission Press Release, ``Graco 
Recalls Quattro TM and MetroLite TM Strollers Due 
to Risk of Entrapment and Strangulation, Four Infant Strangulation 
Deaths Reported,'' October 20, 2010, available on the web at http://
www.cpsc.gov/cpscpub/prerel/prhtml11/11015.html.
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CPSC and CPSIA Challenges
    Since passage of the CPSIA, there have been many challenges to 
implementation: a CPSC that initially moved slowly and gave out 
confusing information; an economic downturn that has affected 
businesses; the realization that lead and other heavy metals such as 
cadmium are more pervasive in consumer products than had been expected; 
and concerns about the law's implementation consistently raised by 
manufacturers, small businesses, crafters and thrift stores.
    The current CPSC has been managing these challenges. The CPSC has 
held numerous public meetings and hearings about issues such as the 
consumer product safety information database and product testing. CPSC 
has sought to provide clear information to various stakeholders through 
publications such as the Guide to the CPSIA for Small Businesses, 
Resellers, Crafters and Charities and the Handbook for Resale Stores 
and Product Resellers. In addition, CPSC is establishing a new Office 
of Education, Global Outreach, and Small Business Ombudsman to 
``coordinate and carry out education and outreach activities to 
domestic and international stakeholders, including manufacturers, 
retailers, resellers, small businesses, foreign governments, and 
consumers.'' \5\
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    \5\ CPSC Press Release, ``CPSC Creates New Office of Education, 
Global Outreach, and Small Business Ombudsman,'' September 23, 2010, 
available on the web at http://www.cpsc.gov/CPSCPUB/PREREL/prhtml10/
10352.html.
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    The CPSC also issued an Interim Enforcement Policy related to 
component testing for lead content and lead in paint last December and 
is working on finalizing the ``component part'' rule as part of the 
Testing and Certification Rule that should be finalized next year. The 
components part rule would especially benefit small manufacturers by 
allowing the use of certified component parts. In Chairman Tenenbaum's 
statement on the Proposed Rules for Testing and Labeling Pertaining to 
Product Certification and Component Part Testing, she stated that ``the 
Commission is unanimous in its desire to see this rule provide 
significant relief from testing requirements for both small and large 
manufacturers while simultaneously moving safety upstream in the 
manufacturing process. By allowing testing to be performed by component 
part suppliers and designating component part certificates as 
certificates issued under section 14 of the CPSA, the Commission has 
provided great incentive for manufacturers to start utilizing component 
part testing. At the same time, the Commission has established 
safeguards such as requiring all component parts to be traceable to 
their original manufacturers and expressly requiring that manufacturers 
exercise due care when relying on component part testing 
certificates.'' \6\
---------------------------------------------------------------------------
    \6\ Statement of Chairman Inez M. Tenenbaum on the Proposed Rules 
for Testing and Labeling Pertaining to Product Certification and 
Component Part Testing, May 5, 2010, available on the web at http://
www.cpsc.gov/PR/tenenbaum05052010.pdf.
---------------------------------------------------------------------------
    The CPSC has been responding to the concerns raised by 
stakeholders.
Responses to CPSIA Challenges
    Some responses to these challenges, however, go much too far and 
include two proposals that if implemented, would serve to considerably 
weaken public health. They would open a series of gaping loopholes in 
the CPSIA that would allow more lead into a host of toys and other 
products meant for children. We reject these efforts to weaken the 
CPSIA.
Protections Must Remain for Children 12 and Younger
    First, some have argued that the CPSIA should not apply to 
children's products for children 12 years and younger but rather should 
cover only those products for children 6 and younger. This approach was 
rejected by Congress when it passed the CPSIA. Congress embraced the 
belief that there is a ``shared toy box'' in many families' homes. We 
agree with this view, as it reflects the reality of what we know to be 
true in many homes across the United States. Children of younger ages 
play with the toys of their older siblings. Younger children mouth 
their older siblings' toys with frequency. Further, the voluntary 
standard for toys--ASTM F 963--includes an even broader scope to cover 
toys intended for children 14 and younger. This means that many 
companies are already complying with voluntary safety standards that 
encompass toys intended for children 14 and younger. Thus, the reality 
that children's toys and products are often shared by children within a 
family, plus the fact that many within the industry are already 
complying with a higher age standard, requires the scope of the CPSIA 
to remain as it is.
No Known Safe Level of Lead
    Second, some have proposed that a risk analysis be applied for 
regulating lead in products. Requiring the CPSC to conduct risk 
analysis for lead is not acceptable. In this era of criticism over 
``government waste,'' requiring a piecemeal risk analysis for lead, a 
known toxin, would be a wasteful and inefficient use of taxpayer money 
and government resources.
    Significantly, a risk analysis would reverse the presumption for 
the safety of products and allow all products to be sold and be exempt 
from testing for lead unless the CPSC finds otherwise. This would mean 
a return to the state of the law before the CPSIA was passed--i.e., 
CPSC wouldn't act until a child had been harmed by a lead-laden 
product. As we witnessed in the years before the CPSIA, the record 
number of lead-laden products that were recalled from the market proves 
that this approach resulted in an unreasonable risk of injury to 
consumers. It will amount to a waste of Commission resources, has been 
rejected by Congress previously as not being sufficiently protective of 
public health, and far exceeds the flexibility that the CPSC requested 
to regulate lead.
    The American public demands that children's products not pose risks 
for the children who will play with or sleep in those products. Lead is 
a well-documented neurotoxin that has a wide range of effects on a 
child's development, including delayed growth and permanent brain 
damage. There is no known safe level of exposure. As a society, we have 
spent years trying to reduce lead levels in our air, soil and homes. We 
must continue to work to reduce lead in other products where it is not 
necessary. While some might argue that we should seek to remove lead 
from all household products, Congress in the CPSIA focused on the 
products most likely to be in contact with children. Nearly all toys 
and infant durable products do not require lead, should not contain 
lead and can be made effectively without lead. In the rare instance 
that children's products require lead, the CPSIA provides for a 
targeted exemption for functional purpose. This exemption is drafted 
tightly to ensure that children remain protected from harms of lead 
exposure. We would have grave concerns if any of the limiting factors 
were removed.
Cadmium
    Cadmium has been recently identified in numerous children's 
products beginning in January 2010. CPSC has issued five recalls and 
one warning about six products that contained high levels of 
cadmium.\7\ Five of these recalls/warnings involved children's jewelry 
while one involved a drinking glass.
---------------------------------------------------------------------------
    \7\ See, CPSC Press Releases announcing recalls of products with 
excessive levels of cadmium: http://www.cpsc.gov/CPSCPUB/PREREL/
prhtml10/10162.html; http://www.cpsc.gov/CPSC
PUB/PREREL/prhtml10/10297.html; http://www.cpsc.gov/CPSCPUB/PREREL/
prhtml10/10
287.html; http://www.cpsc.gov/CPSCPUB/PREREL/prhtml10/10227.html; 
http://www.cpsc
.gov/CPSCPUB/PREREL/prhtml10/10257.html; and http://www.cpsc.gov/
CPSCPUB/PRE
REL/prhtml10/10127.html.
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    According to the Agency for Toxic Substances and Disease Registry, 
cadmium affects the following organ systems: Cardiovascular (Heart and 
Blood Vessels), Developmental (effects during periods when organs are 
developing), Gastrointestinal (Digestive), Neurological (Nervous 
System), Renal (Urinary System or Kidneys), Reproductive (Producing 
Children), and Respiratory (From the Nose to the Lungs).\8\
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    \8\ Agency for Toxic Substances and Disease Registry, toxic 
substances--cadmium, available on the web at http://www.atsdr.cdc.gov/
substances/toxsubstance.asp?toxid=15.
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    Toxic materials like cadmium should not be present in children's 
products and children should not be exposed to dangerous heavy metals 
when they play with toys, drink from a glass or engage in dress up 
play.
    Earlier this year, CPSC issued a guidance report on cadmium and 
urged ASTM to issue a voluntary standard for cadmium beyond paints and 
surface coating. By relying on ASTM to develop appropriate standards to 
address cadmium hazards in toys and children's jewelry, it allows many 
stakeholders to participate in the standards-development process.
    CPSC should be involved in the voluntary standard-setting process 
and should issue a mandatory standard limiting the cadmium content in 
children's products if the voluntary standard fails to be adequately 
protective of children's health. A mandatory standard enables CPSC to 
use enforcement tools to ensure compliance with the standard. Finally, 
mandatory standards provide clear rules for industry to follow as they 
seek to comply with CPSC rules.
    The scope of CPSC's efforts to ban the use of cadmium should be 
focused on children's products as defined in the CPSIA. Initially, as 
CPSC begins to limit cadmium in consumer products, CPSC should focus on 
product categories that are known to be of risk to children: children's 
jewelry, children's dinnerware, and children's toys.
    In addition, the ban on cadmium should be based upon a total 
cadmium level (not solubility), which, similar to the lead regulations, 
offers clarity and consistency to manufacturers, CPSC, and testing 
bodies and offers public health protections to consumers.
    CPSC should examine efforts in states such as California, 
Washington, Connecticut, Illinois, and Minnesota that have restricted 
cadmium in children's jewelry. While these laws tend to focus on 
solubility standards rather than total cadmium content and also focus 
on children's jewelry rather than children's products, they serve as a 
useful guide. Since laws have passed in five states and with bills 
pending in at least five other states, it is clear that consumers are 
asking for mandatory rules to limit cadmium in children's products.
    Finally, we urge CPSC to utilize the work it is undertaking to ban 
cadmium to address bans of other toxic heavy metals in children's 
products. We hope CPSC efforts effectively stem the tide of 
substituting one heavy metal for another and curb the use of heavy 
metals in the manufacturing of children's products.
Congress Must Support CPSC's Mission
    CPSC plays an incredibly crucial role in ensuring that consumer 
products are safe and is responsible for implementing the critical 
protections of the CPSIA. It is imperative that the agency be 
appropriately funded at all times to do its job properly. Diminishing 
CPSC's budget or its authority at this time would hamper the agency 
from carrying out its primary mission to protect consumers from 
unreasonable risk of injury caused by hazardous products.
    We thank Chairman Pryor for the important leadership role he has 
played on product safety issues and we look forward to continuing to 
work together to protect the public from harms posed by hazardous 
products.
    I wish everyone a happy and safe holiday season.

    Senator Pryor. Thank you.
    Mr. Lamar.

STATEMENT OF STEPHEN LAMAR, EXECUTIVE VICE PRESIDENT, AMERICAN 
                 APPAREL & FOOTWEAR ASSOCIATION

    Mr. Lamar. Hi. Good morning.
    My name is Steve Lamar. I'm Executive Vice President of the 
American Apparel & Footwear Association. We're the national 
trade association of the apparel and footwear industry and its 
suppliers.
    Thank you, Chairman Pryor, for providing us this 
opportunity to appear before you on this important topic.
    At the outset, let me state our very strong support for a 
product safety regulatory system that ensures that only safe 
and compliant products are designed, produced, marketed, and 
sold. At AAFA, we take our role in product safety education and 
advocacy efforts seriously. We view this obligation as key to 
the success of the industry, not only because such an approach 
is the right thing to do, but because we're also consumers and 
parents and grandparents ourselves.
    I'd like to focus my remarks on the Consumer Product Safety 
Improvement Act and offer several recommendations for the 
Subcommittee to consider in the weeks and months ahead.
    The CPSIA was a dramatic overhaul to the nation's product 
safety regulatory regime. While this had a positive impact 
through increased funding and awareness, it has also led to 
many unintended consequences that have caused confusion, 
created compliance burdens, and adversely impacted the business 
community. Tight deadlines, rigid definitions, retroactively 
applied standards, requirements that do not reflect risk, and a 
one-size-fits-all approach are among the many problems that 
have made CPSIA implementation challenging.
    AAFA, as with others in the regulated community, has 
actively worked the regulatory process to make sure the rules 
can be understood and implemented. We've had some success in 
working with the CPSC to use the limited regulatory flexibility 
that the CPSIA does permit to make some important 
determinations. In my written testimony, I detailed one such 
example--the determination that there is no lead in textiles--
but, I also pointed out how the fix is still incomplete, and it 
came at considerable expense to prove what everybody already 
knew.
    The more common experience is that relief is either denied 
or that the regulatory process proves too burdensome to achieve 
a truly commonsense result. The stays of enforcement on testing 
and certification have provided some relief. And we would 
strongly encourage that they be continued while the rules and a 
path forward are still being worked out. But, it is becoming 
clearer every day that Congress needs to step in and make some 
legislative fixes to address the many concerns that have been 
raised from all across the private sector. And, because the 
timetables mandated by the CPSIA are unforgiving, Congressional 
action is needed immediately.
    A number of legislative fixes have been proposed over the 
past 2 years by stakeholders across the business community, by 
Members of Congress from both parties and both chambers, and 
even by commissioners and CPSC staff alike. They include 
changes to the lead and phthalate rules, the definition of 
``children's product,'' more flexible testing and certification 
provisions, stronger preemption to prevent proliferation of 
contradictory rules at the state level, and clearer mandates 
for the public database. I could go on. It's our hope that 
Congress can immediately begin work with all stakeholders to 
fully identify and implement these fixes.
    With a nod toward Chanukah, which began last night, I would 
like to make eight recommendations for the Subcommittee to 
consider going forward:
    Number one, ensure that all product safety decisions are 
based on risk and supported by data.
    Number two, give the CPSC more flexibility to interpret the 
CPSIA.
    Number three, ensure that new regulations do not contradict 
existing ones.
    Number four, ensure prospective application of all rules.
    Number five, establish deadlines that permit and encourage 
compliance.
    Number six, publicize all pending regulatory developments.
    Number seven, avoid one-size-fits-all approaches.
    And, finally, number eight, remember that there is more to 
the CPSC than CPSIA.
    The most effective product safety system we can have is one 
that recognizes that the regulated companies are active 
partners of the CPSC. But, if these companies are constantly 
subjected to burdensome, costly, and, in some cases, silly 
requirements, that partnership is severely strained and the 
public's interests are not served. Ultimately, product safety 
takes a blackeye.
    Mr. Chairman, the CPSC and the regulated community have 
come a long way since Congress passed the CPSIA. Thanks to your 
leadership, we now have five commissioners and an agency that 
is more fully funded. The CPSIA was, indeed, a wake-up call for 
the agency and for many in the business community to tighten 
their own product safety regimes. But, the CPSIA also created 
extraordinary problems for companies who were already doing the 
right thing in ensuring product safety. In many cases, those 
problems came with little gain for public safety.
    With an eye to maximizing public health and safety, it is 
our hope that, with a legislative amendment, continued 
Congressional oversight, and continued dialogue between the 
agency, industry and other product safety stakeholders, we can 
create a stable, predictable, risk-based regulatory 
environment.
    Thank you again for providing us this opportunity to 
testify. I'm available to take any questions.
    [The prepared statement of Mr. Lamar follows:]

    Prepared Statement of Stephen Lamar, Executive Vice President, 
                American Apparel & Footwear Association
    Good morning.
    My name is Steve Lamar and I'm Executive Vice President of American 
Apparel & Footwear Association (AAFA)--the national trade association 
of the apparel and footwear industry, and its suppliers. Thank you for 
providing us this opportunity to appear before you this morning on this 
important topic.
    At the outset, let me state our very strong support for a product 
safety regulatory system that ensures that only safe and compliant 
products are designed, produced, marketed, and sold. At AAFA, we take 
our role in product safety education and advocacy efforts seriously. We 
view this obligation as key to the success of the industry, not only 
because such an approach is the right thing to do, but because we are 
also consumers, parents, and grandparents ourselves. We believe very 
strongly that we should only wear safe and compliant clothes, shoes, 
and other products. At the end of my testimony I included additional 
information about AAFA and some of our product safety initiatives, 
including our extensive global education efforts.
    Although product safety is a year-round job, it is appropriate to 
have this oversight hearing as we enter the holiday season. The focus 
on consumer spending during the holidays is a natural time to reflect 
on product safety and compliance. Furthermore, as Congress begins to 
think through its agenda for the next 2 years, this is a good 
opportunity to identify what changes can be made to ensure that our 
Nation's product safety regulatory system is operating effectively. As 
this is the first oversight Subcommittee hearing on the Consumer Safety 
Product Commission (CPSC) since passage of the Consumer Product Safety 
Improvement Act (CPSIA) in 2008--and with more than 2 years of industry 
experience with implementation of this important law--I'd like to focus 
my remarks on the CPSIA and offer several recommendations for the 
Subcommittee to consider in the weeks and months ahead.
    The CPSIA was a dramatic overhaul of the Nation's product safety 
regulatory regime. Its passage put a spotlight on product safety 
concerns, propelling consumers, regulators and businesses to refocus on 
making product safety a top priority. Among other things, the 
legislation provided the CPSC--long an underfunded agency--with much-
needed resources to carry out product safety enforcement and 
educational efforts. It mandated the CPSC to work with other agencies 
like Customs and Border Protection (CBP) to develop risk assessment 
methodologies to efficiently target and block potentially unsafe 
imports. It also ensured that all five CPSC leadership positions were 
filled--for the first time in years--in an effort to secure a renewed 
dialogue and healthy debate on how to effectively and efficiently 
approach and enforce safety regulations. Finally, new content and 
testing requirements have helped companies better understand the 
chemicals used in children's products and evaluate and improve their 
quality control processes to ensure that only safe products are sold. 
It goes without saying that industry, consumer advocacy groups, 
bloggers, the media, and various other stakeholders across the spectrum 
have become more engaged than ever in product safety.
    Regrettably, the legislation also mandated a series of 
controversial changes to the Nation's product safety rules that have 
created endless confusion, extensive burdens, huge costs, job losses, 
and irreparable damage to the business community. In many cases, these 
adverse consequences have come without improvements in product safety 
or public health. Among other things, the law mandated very strict lead 
and phthalate content restrictions. It required certifications of 
compliance for all consumer products for all safety standards, 
mandating third-party testing for those standards involving children's 
products (defined as 12 and under). It created a public database of 
product safety incidents. It authorized enforcement by state attorneys 
general and created whistleblower provisions. While many of these 
provisions reflect good intentions, the language of the CPSIA makes 
many of them difficult, if not impossible, to implement and enforce. 
Tight deadlines, rigid definitions, retroactively applied standards, 
requirements that do not reflect risk, and a ``one-size-fits-all 
approach'' are all among the many problems that have made CPSIA 
implementation challenging.
    AAFA, as with others in the regulated community, have actively 
worked the regulatory process to make sure the rules can be understood 
and implemented. We have had some success in working with the CPSC to 
use the limited regulatory flexibility that the CPSIA does permit to 
make some important determinations and offer some clarifying opinions. 
And while we commend the Commissioners and the staff who have worked 
tirelessly for more than 28 months to craft regulations that reflect 
``common sense,'' many problems either have not or cannot be fixed 
through the regulatory process. The surrogate for some of these fixes 
has come in the form of a series of stays of enforcement. And while 
these stays have provided welcome relief, and should remain in force, 
they cannot provide a long term solution.
    Let me offer one experience--related to the lead substrate 
standard--to illustrate these points.
    Per the CPSIA, the lead restriction applies equally to any 
component of a children's product. Initially, this was interpreted to 
include all the fabrics, yarns, threads, accessories, and trimmings 
even though it was commonly understood, and has been known for decades, 
that there is no lead in textiles and only isolated occurrences of lead 
in other components, such as buttons, snaps, and zippers. Eventually, 
and after input from the industry and other stakeholders, the CPSC 
issued a determination that indeed there is no lead in textiles, 
regardless of whether the fabric is dyed. And while we were pleased 
with this determination, please consider the following:

   The determination required the submission of thousands of 
        test results costing hundreds of thousands of dollars. 
        Including the tests that were not submitted, but which 
        companies had to perform because their customers were insisting 
        upon them as a result of their understanding of the CPSIA, the 
        cost rises into the millions.

   The determination was not made until more than 6 months 
        after the initial retroactive lead standard took effect and 
        several weeks after the second (and current) lead standard took 
        effect.

   Since most garments are not made entirely of just fabric, 
        most garments still have to undergo testing for possible lead 
        in most trimmings, even though tests from pre-CPSIA inventories 
        showed that lead occurred in these components in only 3-5 
        percent of the time. Moreover, in many of these cases, the 
        positive lead tests occurred with components that present no 
        risk, but which are nonetheless covered. The example often 
        cited is the zipper stop at the bottom of the fly in a child's 
        pair of trousers.

   The determination is not complete. Even though the 
        determination applies to dyed fabrics, it does not apply to 
        certain kinds of after treatment processes, such as prints. Yet 
        some of the print processes excluded by this determination have 
        the same non risk of lead as dyes.

   The determination depends on a component part testing rule 
        to operate effectively. That rule, while proposed, has not yet 
        been finalized.

   Testing relief that companies are currently using to 
        navigate through these rules goes away once the stay of testing 
        and certification has been lifted because a company's own 
        reasonable testing efforts--such as the use of XRF style 
        machines--will be insufficient to meet third party 
        requirements.

   These requirements exist along side other rules that were 
        created by the CPSIA or which were strengthened by the CPSIA. 
        So while the fabric in a child's pajama may not have to meet 
        lead testing rules for fabric, it does have to meet 
        requirements for flammability, lead substrate testing in 
        zippers, lead in paint testing for any coatings, and possibly 
        phthalate testing for the non-stick surfaces on the pads of the 
        feet.

   State rules impose a myriad of additional, and 
        contradictory, requirements that are not preempted by these 
        determinations.

    It is for this reason that we have been strong supporters of 
Congressional initiatives to amend the CPSIA and to ensure the proper 
implementation of the CPSIA. And because the timetables mandated by the 
CPSIA are unforgiving, Congressional action is needed immediately.
    Many throughout the stakeholder community have identified a number 
of provisions in the CPSIA that need to be amended through either a 
``tweaking'' or through ``major surgery.'' It would appear that many in 
Congress, the Commissioners, and the CPSC professional staff also share 
this view to different degrees. During the 111th Congress, several 
hundred Senators and Representatives from both parties and both 
Chambers have written letters or sponsored legislation that seek 
amendments to the CPSIA. A provision in last year's omnibus spending 
bill asked the Commission for its advice on legislative changes. 
Commissioner Nord, during her tenure as Acting Chair, forwarded to 
Congress a list of professional CPSC staff recommendations for CPSIA 
changes.
    Some proposed changes have focused on specific industries--such as 
books or ATVs or small batch manufacturers. Others have sought to 
provide broader industry relief, such as provisions that would apply 
next year's tighter lead restriction in a prospective manner or which 
would permit inaccessible components to be exempt from phthalate 
limits. An incomplete list of other changes needed involve revisiting 
the definition of children's product, more flexible testing and 
certification provisions, stronger preemption to prevent proliferation 
of contradictory rules at the state level, and clearer mandates for the 
public database.
    This is not an exhaustive list. But it is important to note that, 
with more than 2 years of CPSIA implementation and experience, the 
regulated community and the regulators have both found significant 
problems with the law. There appears to be a growing consensus that the 
CPSIA created many unintended consequences that, if left unaddressed, 
will continue to do damage to the very entities that bear the burden 
for compliance. Our hope is that Congress can immediately begin work 
with all stakeholders to fully identify and implement these fixes.
    Going forward, I would like to make 8 recommendations. Many of 
these will require specific legislative changes or clear direction from 
Congress that the CPSC shall interpret the CPSIA, using its existing 
authorities, with more flexibility. All these suggestions are intended 
to strengthen product safety and public health.
1. Ensure that all product safety decisions are based on risk and 
        supported by data
    The CPSIA makes a number of product safety mandates that simply do 
not reflect risk. Prohibitions against lead in the spokes of a child's 
bicycle is just one obvious example. Not only does this contradict 
common sense but it undermines an effective product safety regime and 
creates confusion among the regulated community and consumers alike. If 
all products, regardless of the risk, are deemed equally hazardous, 
valuable resources and time will be spent validating and regulating 
already safe products. Businesses will not understand which hazards 
they are trying to prevent if the regulations appear arbitrary, as they 
currently do under the CPSIA. Moreover, consumers will become so 
overwhelmed by product safety warnings that they will tune out when 
real and legitimate concerns do appear. A better approach would be to 
focus time and energy on those products, components, and materials that 
do present risk of injury, harm, or death. Then, based on the fact 
pattern behind that risk, we can construct a regulatory regime to erase 
or mitigate the hazard. In this vein, the public database scheduled to 
go live in only a few months raises significant problems because it 
will inundate the public with erroneous and unsubstantiated claims 
instead of legitimate product safety problems.
2. Give the CPSC more flexibility to interpret CPSIA
    At numerous points during the past 2 years, the regulated community 
has heard that the CPSIA ties the Cask's hands. In these cases, the 
professional staff, and even Commissioners, agreed that a particular 
outcome is not correct but pointed to the law as the source of their 
helplessness to address the issue. In some cases, the agency has 
resorted to contorted opinions or guidance that, although well 
intended, have often complicated the business community's understanding 
of the law. The CPSC should be able to respond, quickly, to imminent 
threats and respond smartly and appropriately to longer term and fact 
based concerns. In all cases, the rules should be easy to understand so 
they can be effortlessly implemented and communicated up and down the 
supply chain. Currently, CPSIA, as interpreted by many at the CPSC and 
others, does not allow this flexibility.
3. Ensure that new regulations do not contradict existing ones
    The CPSIA mandates new testing and certification requirements that 
alter existing regulations that pre-date the CPSIA, that have worked 
extremely well and which the industry understands. For many of these 
standards (including those addressing flammability, small parts, and 
sharp points and edges), pre-existing quality control programs and 
regulations were crafted in such a way that they did not hinder the 
ability of companies to make safe and compliant products. But because 
the new CPSIA mandates do not efficiently plug into the existing 
regulatory requirements, considerable confusion has been created with 
regard to these regulations. This will only be exacerbated as the now 
delayed 15-month rule and the new third-party testing requirements 
begin to take effect. On a similar note, incomplete preemption language 
in the CPSIA means that Federal rules and state rules often work at 
cross purposes.
4. Ensure prospective application of all rules
    The CPSIA imposed new lead and phthalate requirements in a 
retroactive manner. This caused untold chaos, confusion, and costs as 
companies were forced to cancel orders, reformulate products, and 
destroy inventory. Regrettably, the CPSIA's retroactive mandates 
continue to create chaos. For example, some products lawfully produced 
today under the CPSIA 300 ppm standard will become banned hazardous 
substances if they are sold after August 14, 2011, when the standard 
drops to 100 ppm (and is applied retroactively). Regulations should 
take effect prospectively, and implemented only after the Commission 
publishes clear and comprehensive regulatory guidance. The retroactive 
application of regulations unfairly punishes businesses for making 
products in good faith, especially when they were made in compliance 
with a previous product safety standard. It also goes against sound 
business practices which build product safety requirements into the 
design at the beginning of the production process rather than treat 
them as an afterthought at the end.
5. Establish deadlines that permit and encourage compliance
    The CPSIA's mandate to the CPSC to undertake dozens of rulemakings 
in a short period of time has been challenging for both the agency and 
industry. In many cases, the changes were tied to specific deadlines 
that have proved hopelessly unrealistic. A proposed 15-month rule, 
which was supposed to provide some relief in the form of component part 
testing, is now more than a year late and has been delayed 
indefinitely. Other deadlines have had to be delayed or stayed. Rather 
than rely on strict deadlines, the CPSIA should recognize that well 
thought out and implementable product safety rules take time. A single 
garment can take nearly a year to travel down the supply chain. New 
regulations must give industry enough time to adapt these long supply 
chains so all parties can understand and clearly communicate changes to 
all their partners involved in production. Furthermore, time is 
necessary so the regulatory agency can work with the affected industry 
to properly develop and implement the regulations.
6. Publicize all pending regulatory developments
    The regulated community continues to have a difficult time 
understanding when various rules and regulations are due to be 
developed under the CPSIA. The agency is currently in the process of 
lifting of the stay of enforcement of testing and certification for the 
children's product safety standards. Yet this is being done in a manner 
that is catching many by surprise. Product safety standards that work 
best are those that are created through a transparent and predictable 
process, especially when they involved technical testing and 
certification protocols. The product safety community involves a range 
of stakeholders, all of whom need to participate. If one group appears 
shut out, the final result may not be credible or accepted by all. 
This, in the long run, leads to a product safety regime that is not 
sustainable.
7. Avoid ``One-Size-Fits-All Approaches''
    One major problem is that the CPSIA treats all products, 
components, and companies equally, even though there are different 
risks involved. Product safety rules that were in effect before the 
CPSIA recognized these differences by tailoring the rules to those 
products and consumers where the risk of injury or death are greatest. 
Similarly, while all companies, regardless of size, should be subject 
to product safety rules, different sized companies can demonstrate 
compliance using different methods. Not recognizing these differences 
continues to be one of the major flaws of the CPSIA.
8. There is more to the CPSC than CPSIA
    The CPSC should be commended for the enormous amount of work they 
are doing in implementing the CPSIA. But we are concerned that the 
resources and time spent on implementing the CPSIA has detracted from 
other important product safety initiatives, including enforcement of 
existing standards. Giving the CPSC flexibility to properly implement 
product safety priorities in the CPSIA will inevitably free up time for 
the agency to focus resources on the rest of its product safety 
mission.
Conclusion
    Over the past 2 years, AAFA and others have worked closely with the 
CPSC to implement the CPSIA and we applaud the agency's efforts to work 
with and educate industry during the rulemaking process.
    The most effective product safety system we can have is one that 
recognizes that the regulated companies are active partners of the 
CPSC. But if these companies are constantly subjected to burdensome, 
costly, and, in some cases, silly requirements, that partnership is 
severely strained and the public's interests are not served. 
Ultimately, product safety takes a black eye.
    Mr. Chairman, the CPSC and the regulated community have come a long 
way since Congress passed the CPSIA. Thanks to your leadership we now 
have five Commissioners and an agency that is more fully funded. The 
CPSIA was indeed a ``wake-up'' call for the agency and for many in the 
business community to tighten their own product safety regimes. But the 
CPSIA also created extraordinary problems for companies who were 
already doing the right thing in ensuring product safety. In many 
cases, those problems came with little gain for public safety.
    With an eye to maximizing public health and safety, it is our hope 
that with a legislative amendment, Congressional oversight and 
continued dialogue between the agency, industry and other product 
safety stakeholders, we can create a stable, predictable, risk-based 
regulatory environment.
    Thank you again for providing us this opportunity to testify. I am 
available to take questions.
                                Appendix
Background on AAFA Product Safety Initiatives
    AAFA is the national trade association for the apparel and footwear 
industries, and their suppliers. Our members own, produce for, or 
market hundreds and hundreds of brands of clothing and footwear. AAFA 
has about 400 member companies who own, produce for, or market more 
than 700 brands of clothing, footwear, and other fashion products. 
Nearly all stakeholders in the industry supply chain are represented in 
our membership, including large, medium, small, and micro businesses; 
retailers of all sizes; designers; manufacturers; importers; 
wholesalers; private label; brand owners; and suppliers of inputs and 
services. AAFA members produce and sell in virtually every country in 
the world.
    Educating the apparel and footwear industry supply chain on product 
safety compliance initiatives has been a top priority for AAFA for 
decades. The AAFA Product Safety Council, which addresses specifically 
with product safety issues, is one of our more active Committees. It 
now boasts over 400 members. AAFA uses the Product Safety Council to 
distribute information, develop industry positions, create best 
practices, and keep members up to date on the ever changing product 
safety landscape.
    AAFA is an active participant in legislative and regulatory 
initiatives involving product safety. Since the passage of the CPSIA, 
AAFA has participated in numerous regulatory proceedings focused on the 
apparel and footwear industries, or affecting the broader regulated 
community.
    Over the past 2 years alone, AAFA has conducted nearly a hundred 
webinars, briefings, conferences and trainings, throughout the United 
States and on four continents on the CPSIA, restricted substances, and 
other product safety topics. Just last month, AAFA conducted a CPSIA 
training session with over 200 factory and compliance personnel in Ho 
Chi Minh City, Vietnam. AAFA will be returning to China in April of 
2011 for our 6th compliance program in that country.
    Since 2007 AAFA has published a free, publicly available, peer-
reviewed, industry-wide Restricted Substances List (RSL) that helps 
companies understand international product safety standards and 
implement a chemical management program. The RSL is updated once every 
6 months to ensure the most current information is available for 
companies in a manner that is digestible and easy to implement. The 7th 
release of the RSL was most recently published in Vietnamese to 
coincide with the recent product safety seminar held in Vietnam. Future 
editions will be published in other languages, including Spanish and 
Chinese. The RSL is available on the AAFA website--
www.apparelandfootwear.org--where AAFA staff also post extensive 
product safety compliance information on the CPSIA and other product 
safety initiatives, such as REACH and individual state laws, including 
California Proposition 65. Keeping this information updated is a never 
ending challenge, particularly in the past several years in light of 
the rapidly changing regulatory environment.

    Senator Pryor. Thank you.
    Mr. Lamar. Thanks.
    Senator Pryor. Dr. Gardner.

   STATEMENT OF H. GARRY GARDNER, MD FAAP, ON BEHALF OF THE 
                 AMERICAN ACADEMY OF PEDIATRICS

    Dr. Gardner. Good morning.
    My name is Dr. Garry Gardner, and I am proud to represent 
the American Academy of Pediatrics at this hearing today.
    The AAP was pleased to work closely with members and staff 
of this committee and subcommittee over the course of the 
development and passage of the Consumer Product Safety 
Improvement Act. Over a period of close to 2 years, the AAP 
provided expertise and input on a range of child health and 
safety issues, including the proposed limitations on lead 
content and the definition of a children's product. As passed, 
the CPSIA ultimately rejuvenated a flagging CPSC, gave it 
additional tools and authority to achieve its mission, and 
helped improve the safety of consumer products for children.
    Let us take a moment to reflect back upon the state of 
product safety and the CPSC during the 2007 holiday season. Our 
nation had just experienced a flood of product recalls, 
including several involving some of the best known and most 
loved brands and toys. Many Americans were shocked to learn 
that the majority of toy safety standards were voluntary and 
not mandatory, with few or no consequences for violations of 
those voluntary standards. The CPSC was struggling to perform 
its mission with limited statutory authority and atrophied 
staff and a budget of only $62 million-- less than one-quarter 
of what Congress had allocated for the Hubble Space Telescope, 
and slightly less than what was spent on Pacific coastal salmon 
habitat restoration.
    Three years later, the state of consumer product safety is 
very different. The CPSIA has already created a range of new 
safety standards for toys and other children's products, 
including strict limits on lead content in all materials. The 
CPSC has increased its staff, and its budget has almost 
doubled. Manufacturers will soon be required to test for, and 
document compliance with, a range of safety standards, giving 
retailers and consumers a high degree of confidence in the 
safety of these products. Unsafe cribs have been recalled and 
dangerous drop-side cribs will soon be banned.
    These new safety standards are having a meaningful impact 
on the lives of children and families, though sometimes in all 
but invisible ways. We cannot readily see that a toy is now 
lead-free or that a dangerous feature on a stroller has been 
reengineered to be safe. It may seem, perhaps, that these are 
unimportant changes that cause only minor or incremental 
improvements in safety, but it would be a mistake to fall into 
the trap of believing that these small changes cannot also be 
significant. These changes save lives and prevent life-altering 
injuries. The loss of a few IQ points across the child 
population has marked impacts on educational spending and 
future potential.
    Over my 37 years in practice, I have seen a dramatic change 
in the injuries suffered by my patients due to unsafe products. 
Many of the injuries that used to be relatively common simply 
do not occur anymore. As a pediatrician, I am grateful to 
Congress and the CPSC for your ongoing work to make products 
safer for our children.
    I'd like to offer some very brief comments on the subjects 
of lead, Safe Sleep, cadmium, and emerging hazards.
    The AAP has been supportive of CPSC's efforts to implement 
Section 101 of the CPSIA, which set the first-ever 
comprehensive limits on lead in children's products. The new 
lead limits are being phased in over 3 years to allow 
manufacturers and retailers sufficient time to ensure that 
their products comply with the new rules. The AAP looks forward 
to the completion of the standard's implementation when the 
total lead limit drops to 100 parts per million in August 2011. 
The CPSIA, and Section 101 in particular, is truly a 
significant step in protecting children from the real hazards 
of lead.
    Safe Sleep. The AAP is pleased to have partnered with 
Chairman Tenenbaum and the CPSC on its Safe Sleep initiative, a 
multifaceted campaign aimed at reducing deaths and injuries 
associated with unsafe sleep environments. As part of this 
campaign, the CPSC collaborated with the AAP, Keeping Babies 
Safe, and journalist Joan Lunden to produce a video, to be 
aired in hospital and physician waiting rooms, providing 
recommendations and information to parents and families on safe 
sleep practices. AAP supports and has submitted extensive 
comments on rulemaking processes to establish new mandatory 
safety standards for bunkbeds, cradles, bassinets, and full-
size and non-full-size cribs.
    Finally, the AAP has consistently recommended that parents 
not use sleep positioners. And we fully support CPSC and FDA's 
recent warning to parents about the dangers of these products.
    Cadmium. Recent press reports have brought to light the 
potential danger of another heavy metal in consumer products: 
cadmium. It appears that some manufacturers have begun adding 
cadmium to children's products because the CPSIA limited the 
use of lead. This is clearly a case of abiding by the letter, 
but not the spirit, of the law. Congress hardly intended for 
companies to substitute one poison for another.
    The AAP urges the establishment of a systematic, 
transparent process by which CPSC should review the literature 
and data, consult with experts, and update each of the heavy-
metal standards found in the ASTM F 963 toy standard. This 
process should not be delegated to nongovernmental entities or 
be inaccessible to the public or stakeholders. Moreover, the 
standards established should apply to all children's products, 
and not just toys. The AAP looks forward to engaging with the 
CPSC throughout such a process and making our members' 
expertise available to the agency.
    And finally, emerging product safety hazards. Ensuring the 
safety of consumer products requires constant vigilance as the 
marketplace changes and new products, and sometimes new 
hazards, are created. Small powerful magnets continue to be a 
concern, as they can cause serious injuries if more than one is 
swallowed. The AAP's Committee on Injury is also learning of 
increasing numbers of reported injuries caused by children's 
ingestion of so-called ``button batteries.'' The AAP is 
interested in working with the CPSC and industry to require 
secure closures on devices that require button batteries, as 
well as appropriate packaging.
    In conclusion, the AAP appreciates the opportunity to offer 
testimony today. We commend you, Chairman Pryor and the 
subcommittee, for your leadership on consumer product safety 
issues. And we look forward to working with you to ensure the 
health and safety for all children. I'll be pleased to answer 
any questions you may have.
    [The prepared statement of Dr. Gardner follows:]

   Prepared Statement of H. Garry Gardner, MD FAAP, on Behalf of the 
                     American Academy of Pediatrics
    Good morning. I appreciate this opportunity to testify today before 
the Commerce, Science, and Transportation Subcommittee on Consumer 
Protection, Product Safety, and Insurance at this hearing, ``Oversight 
of the Consumer Product Safety Commission: Product Safety in the 
Holiday Season.'' My name is H. Garry Gardner, MD, FAAP, and I am proud 
to represent the American Academy of Pediatrics (AAP), a non-profit 
professional organization of more than 60,000 primary care 
pediatricians, pediatric medical sub-specialists, and pediatric 
surgical specialists dedicated to the health, safety, and well-being of 
infants, children, adolescents, and young adults. I chair the AAP's 
Committee on Injury, Violence and Poison Prevention, which is 
responsible for advising the Academy and drafting its policies on a 
wide range of injury prevention issues, including consumer product 
safety. I have been in private pediatric practice since 1973 and am a 
Professor of Clinical Pediatrics at Northwestern University Feinberg 
School of Medicine.
Creating Safe, Healthy Products for Children
    The AAP was pleased to work closely with the Members and staff of 
this committee and subcommittee over the course of the development and 
passage of the Consumer Product Safety Improvement Act of 2008 (CPSIA). 
Over a period of close to 2 years, the AAP provided expertise and input 
on a range of child health and safety issues, including the proposed 
limitations on lead content and the definition of a children's product. 
As passed, the CPSIA ultimately rejuvenated a flagging Consumer Product 
Safety Commission (CPSC), gave it additional tools and authority to 
achieve its mission, and helped improve the safety of consumer products 
for children.
    Today's hearing provides a valuable opportunity to discuss the 
CPSIA 2 years after its signature into law. Many of the directives 
under the law have already been implemented, either in whole or in 
part, while others remain to come. The AAP appreciates this opportunity 
to reflect on the successes of the CPSIA to date and opportunities for 
improvements in the coming months and years.
    Let us take a moment to reflect back upon the state of product 
safety and the CPSC during the 2007 holiday season. Our nation had just 
experienced a flood of product recalls, including several involving 
some of the best-known and most-loved brands and toys. Many Americans 
were shocked to learn that the majority of toy safety standards were 
voluntary, not mandatory, with few or no consequences for violation of 
those voluntary standards. Even for a highly toxic substance like lead, 
the Federal limit was an unacceptably high 600 parts per million, and 
applied only to paint on children's products. The CPSC was struggling 
to perform its mission with limited statutory authority, an atrophied 
staff, and a budget of $62 million--less one-quarter of what Congress 
allocated for the Hubble Space Telescope that year, and slightly less 
than was spent on Pacific coastal salmon habitat restoration.
    Three years later, the state of consumer product safety is very 
different. The CPSIA has already created a range of new safety 
standards for toys and other children's products, including strict 
limits on lead content in all materials. The CPSC has increased its 
staff, and its budget has almost doubled. Manufacturers will soon be 
required both to test for and document compliance with a range of 
safety standards, giving retailers and consumers a high degree of 
confidence in the safety of these products. Unsafe cribs have been 
recalled, and dangerous drop-side cribs will soon be banned.
    These new safety standards are having a meaningful impact on the 
lives of children and families, though sometimes in all-but-invisible 
ways. We cannot readily see that a toy is lead-free, or that a 
dangerous feature on a stroller has been re-engineered to be safe. It 
may seem perhaps that these are unimportant changes that cause only 
minor or incremental improvements in safety. But it would be a mistake 
to fall into the trap of believing that small changes cannot also be 
significant. These changes save lives and prevent life-altering 
injuries. The loss of a few IQ points or a small increase in the 
proportion of children with behavioral problems in the population of 
U.S. children has marked impacts on educational spending and future 
potential.\1\ Over my 37 years in practice, I have seen a dramatic 
change in the injuries suffered by my patients due to unsafe products. 
Many of the injuries that used to be relatively common simply do not 
occur any more. As a pediatrician, I am grateful to Congress and the 
CPSC for your ongoing work to make products safer for our children.
---------------------------------------------------------------------------
    \1\ Bellinger DC. What is an adverse effect? A possible resolution 
of clinical and epidemiological perspectives on neurobehavioral 
toxicity. Environ Res. 2004; 95(3):394-405.
---------------------------------------------------------------------------
    The CPSIA has allowed the CPSC to make strides in two particular 
areas I would like to highlight: lead and Safe Sleep. Additional work 
remains to be done with regard to cadmium and other heavy metals, as 
well as emerging hazards. The American Academy of Pediatrics would like 
offer the following comments on each of these subjects.
Limiting Children's Exposure to Lead
    Lead is well-established as a potent neurotoxin and a particular 
threat to the developing brain of the fetus, infant, and young child, 
with documented negative effects on behavior and permanent loss of IQ 
points. Studies have shown that lead has no normal function in the 
human body, and that a ``normal'' blood lead level is zero. There is no 
``safe'' level of lead exposure; no threshold for the toxic effects of 
lead has been identified. When lead accumulates in the body, it is 
tightly bound to bones and then released slowly over years or decades. 
Therefore, exposures that may be separated by significant gaps in time 
have an additive effect on the body's burden of lead.
    Damage done by small amounts of lead may be hard to measure and 
even harder to understand. Children who accumulate lead in their body 
may not have any physical symptoms, but low lead levels cause a wide 
array of negative effects, including cognitive, motor, behavioral, and 
physical harm.\2\ The vulnerability of children to lead poisoning 
during development of their brain and nervous system has been amply 
demonstrated, and the literature is very consistent. On average, 
children whose blood lead levels (BLLs) rise from 10 to 20 micrograms 
per deciliter (mcg/dL) lose two to three IQ points. More recent studies 
have shown an even greater impact on IQ of BLLs under 10 mcg/dL. The 
effects of lead on health do not stop once the child's brain and 
nervous system mature or the BLL falls. A recent study found that in a 
group of 7-year-old children exposed to lead before the age of 3 years, 
IQ continued to fall even after the BLL had declined.\3\
---------------------------------------------------------------------------
    \2\ Bellinger D. Lead. Pediatrics. 2004; 113(4 (Supplement)):1016-
1022.
    \3\ Chen A, Dietrich KN, Ware JH, Radcliffe J, Rogan WJ. IQ and 
blood lead from 2 to 7 years of age: are the effects in older children 
the residual of high blood lead concentrations in 2-year-olds? Environ 
Health Perspect. 2005; 113(5):597-601.
---------------------------------------------------------------------------
    The AAP has been supportive of CPSC's efforts to implement Section 
101 of the CPSIA, which set the first-ever comprehensive limits on lead 
in children's products. The new lead limits are being phased in over 3 
years to allow manufacturers and retailers sufficient time to ensure 
that their products comply with the new rules. As of February 2009, 
products designed or intended primarily for children age 12 years and 
younger could contain no more than 600 parts per million (ppm) of lead. 
This standard was then lowered to 300 ppm in August 2009. The AAP looks 
forward to the completion of the standard's implementation when the 
total lead limit drops to 100 ppm in August 2011. Any children's 
product on the market that does not comply with the new lead standards 
will be considered a banned hazardous substance. The CPSIA, and Section 
101 in particular, is a truly significant step forward in protecting 
children from the hazard of lead in toys and other products designed 
for children.
Creating Safe Sleep Environments for Infants and Children
    Cribs, cradles, bassinets, and other infant sleep environments are 
designed for a parent or caregiver to leave a baby unattended safely 
for hours at a time. Unfortunately some sleep environments may pose a 
serious threat to a child's health and safety, thereby negating their 
intended purpose. Between November 2007 and April 2010, almost 150 
fatalities and 1,675 injuries associated with full-size cribs and 6 
fatalities and 28 injuries associated with non-full-size cribs were 
reported to CPSC. Since 2007, CPSC has issued 40 separate crib recalls 
involving more than 11 million products. Parents deserve the confidence 
of knowing the crib they purchase is held to the highest safety 
standards possible. The AAP has worked strenuously to reduce injuries 
and deaths from unsafe sleep environments by establishing guidelines 
for parents to use in evaluating these products and we fully support 
CPSC's efforts to establish strong, mandatory safety standards for 
cribs.
    The AAP is pleased to have partnered with Chairman Tenenbaum and 
the CPSC on its Safe Sleep Initiative, a multi-faceted campaign aimed 
at reducing deaths and injuries associated with unsafe sleep 
environments. As part of this campaign, CPSC collaborated with AAP, 
Keeping Babies Safe, and journalist Joan Lunden to produce a video to 
be aired in hospital and physician waiting rooms providing 
recommendations and information to parents and families on safe sleep 
practices. In the video, AAP President O. Marion Burton, MD FAAP shared 
AAP's strong recommendation that all babies be put to sleep on their 
backs, which has helped reduce the rate of Sudden Infant Death Syndrome 
(SIDS) by 50 percent over the last 20 years. In addition, Dr. Burton 
highlighted the importance of never placing pillows, bumpers, sleep 
positioners, blankets or other fluffy items in cribs, and the need for 
cribs to have firm mattresses with tightly fitted sheets.\4\
---------------------------------------------------------------------------
    \4\ Video available online at http://www.healthychildren.org/
English/news/pages/A-Safe-Sleep-for-Babies.aspx.
---------------------------------------------------------------------------
    Over the past year, CPSC has undertaken rulemaking processes to 
establish new mandatory safety standards for bunk beds, cradles, 
bassinets, full-size and non-full-size cribs, among many other 
categories of children's products as part of the Safe Sleep Initiative 
and as directed by Section 104(b) of the CPSIA. AAP strongly supports 
CPSC's efforts to establish mandatory safety standards for infant and 
children's sleep environments and has submitted extensive comments on 
each of these proposed rules.
    The AAP has encouraged CSPC to make mandatory the new voluntary 
ASTM standard for full-size and non-full size cribs, which includes a 
requirement that sides of a crib be fixed in place, effectively banning 
drop-side cribs, (a crib design where the side of the crib can be 
raised and lowered). The AAP is extremely pleased that CPSC has 
proposed adopting this standard, as failures in this product design 
have resulted in numerous infant injuries and fatalities. If this 
proposed rule is made final, it will be unlawful to sell, lease, or 
otherwise provide a full-size or non-full-size crib that does not meet 
mandatory CPSC standards. As a result, many establishments will be 
required to purchase new cribs and/or eliminate their inventory of 
noncompliant cribs, including child care centers (including family 
child care homes), hotels, motels and inns, resale and consignment 
shops, and crib retailers. While the AAP recognizes the demands the new 
safety standards may place on child care centers, retailers, and 
others, these considerations must be balanced against the cost to 
children, families, and society when preventable injuries and deaths 
occur in these cribs. The AAP supports CPSC in implementing the new 
mandatory safety standards in an expeditious, but sensible, timeframe.
    Finally, the AAP was pleased that CPSC and the Food and Drug 
Administration (FDA) recently issued a warning to consumers urging 
parents not to use infant sleep positioners.\5\ Infant sleep 
positioners are flat mats with side bolsters or inclined (wedge) mats 
with side bolsters used to prevent an infant from rolling or turning 
while asleep. Over the past 13 years, CPSC and FDA received 12 reports 
of infants who died when they suffocated in sleep positioners or became 
trapped between a sleep positioner and the side of a crib or bassinet. 
These products represent a serious risk to the health and safety of 
sleeping babies. Sleep positioners do not prevent SIDS and in fact can 
increase the risk of infant suffocation. Manufacturers typically claim 
these products aid in food digestion to ease colic or the symptoms of 
gastroesphageal reflux disease and prevent flat head syndrome; however, 
these claims have not been reviewed and approved by the FDA. AAP has 
consistently recommended parents not to use these products and we fully 
support CPSC and FDA's efforts to prevent further deaths or injuries as 
a result of using infant sleep positioners.
---------------------------------------------------------------------------
    \5\ Announcement available online at http://www.cpsc.gov/cpscpub/
prerel/prhtml10/10358
.html.
---------------------------------------------------------------------------
Limiting Cadmium and Other Heavy Metals
    Recent press reports have brought to light the potential danger of 
another heavy metal in consumer products: cadmium. Cadmium is a soft 
heavy metal used in a variety of industrial and consumer applications. 
Like lead, with which it shares certain properties, cadmium causes a 
range of well-documented adverse human health effects. Oral exposure to 
cadmium is associated with effects on the kidney, liver, bones, immune 
system, blood and nervous system. Acute cadmium exposure can lead to 
vomiting, diarrhea and other effects. Long-term exposure to cadmium can 
cause kidney disease, developmental and neurological deficits, and bone 
fragility. Cadmium is a known carcinogen.
    It appears that some manufacturers have begun adding cadmium to 
children's products because the CPSIA limited the use of lead. The 
presence of cadmium at high levels has been found in a range of 
children's products, most notably toy jewelry and drinking glasses. 
This is clearly a case of abiding by the letter but not the spirit of 
the law--Congress hardly intended for companies to substitute one 
poison for another.
    The ASTM's F-963 toy safety standard currently contains voluntary 
standards for eight heavy metals known to be highly toxic: antimony, 
arsenic, barium, cadmium, chromium, lead, mercury and selenium. As part 
of the CPSC's review of the adoption of the F-963 standard as a 
mandatory standard, each of these standards * should undergo 
rigorous review, along with the associated testing protocols. The AAP 
urges the establishment of a systematic, transparent process by which 
the agency should review the literature and data, consult with experts, 
and update each of the heavy metal standards. This process should not 
be delegated to non-governmental entities or be inaccessible to the 
public or stakeholders. Moreover, the standards established should 
apply to all children's products, not solely toys. The AAP looks 
forward to engaging with the CPSC throughout such a process and making 
our members' expertise available to the agency.
---------------------------------------------------------------------------
    \*\ Not including lead, which is already covered by the CPSIA.
---------------------------------------------------------------------------
Emerging Product Safety Hazards
    As Americans prepare to exchange gifts this holiday season, we 
should all be able to have confidence in the safety of toys and 
children's products. As a pediatrician and injury expert, however, I 
also find myself anxiously awaiting the next emerging product safety 
hazard. Ensuring the safety of consumer products requires our constant 
vigilance as the marketplace changes and new products--and sometimes, 
new hazards--are created.
    Small, powerful magnets continue to be a concern, as they can cause 
serious injuries if more than one is swallowed. These abdominal 
injuries tend to mimic stomach ailments or other minor illnesses, and 
can be difficult to properly diagnose. The CPSC is aware of this hazard 
and has recalled numerous sets of magnetic toys. Given that these 
magnets are being used in increasing numbers of children's products, 
however, continued attention to this problem is necessary.
    AAP's Committee on Injury is also learning of increasing numbers of 
reported injuries caused by children's ingestion of so-called ``button 
batteries.'' Roughly the size of a dime or nickel, these batteries 
closely resemble a coin when seen on scans. Unlike a swallowed coin, 
however, a battery must be removed from the body immediately to prevent 
serious harm. If lodged in the esophagus, severe tissue damage can 
occur in as little as 2 hours. Button batteries have been identified as 
the cause of 13 deaths. Between 1990 and 2008, 8,648 battery ingestion 
cases were reported, of which 62 percent were button batteries 
swallowed by children under the age of 6 years. Among children in this 
age group, 12 percent of those who ingest a 20 to 25mm battery can be 
expected to experience serious complications or death.\6\ The AAP is 
interested in working with the CPSC and industry to require secure 
closures for devices that require button batteries as well as 
appropriate packaging.
---------------------------------------------------------------------------
    \6\ Litovitz, et al. ``Preventing Battery Ingestions: An Analysis 
of 8648 Cases.'' Pediatrics 2010; 125:1178-1183.
---------------------------------------------------------------------------
    In conclusion, the AAP deeply appreciates the opportunity to offer 
testimony today on the implementation of the Consumer Product Safety 
Improvement Act of 2008. We commend you, Chairman Pryor, and the 
subcommittee for your leadership on consumer product safety issues, and 
we look forward to working with you to ensure the health and safety of 
all children.

    Senator Pryor. Thank you.
    Ms. Chuckas.

    STATEMENT OF JILL CHUCKAS ON BEHALF OF THE HANDMADE TOY 
                            ALLIANCE

    Ms. Chuckas. Good morning.
    Thank you, Chairman Pryor, for having me before this 
committee today. It's an honor.
    My name is Jill Chuckas, and I own a small handcrafted 
children's accessory business, located in Stamford, 
Connecticut, called Crafty Baby.
    For the last 12 years, I've been crafting children's 
products from my home-based studio. When Congress first spoke 
of toy safety legislation, I applauded your efforts. In 
December 2008, though, I began to read the fine print. I became 
acutely aware that this law, meant to regulate large multi-
billion dollar companies that had betrayed the country's trust, 
could effectively put me out of business. Not because my 
products are unsafe, but because I simply cannot afford the 
mandatory third-party testing and labeling requirements, which 
disproportionately affect small-batch manufacturers and 
specialty retailers. I quickly joined a rising grassroots 
effort to amend the CPSIA and took on a leadership role within 
the newly formed Handmade Toy Alliance.
    So, today I come before you to speak, not just for myself, 
but as a board member of the Handmade Toy Alliance, an 
organization that owes its very existence to the CPSIA. The HTA 
now represents 592 member businesses, including specialty 
retail stores, toymakers, and children's product manufacturers 
from across the country. I'm here today with fellow board 
members Kate Glynn of a Child's Garden and Impish, in 
Massachusetts, and Randy Hertzler of euroSource, in 
Pennsylvania.
    The deadline for third-party testing is February 10, 2011, 
just 10 weeks from now. After that point, our member businesses 
face extinction. Although many of us have already paid for XRF 
testing of our products, we simply cannot afford to pay for the 
services of a CPSC-certified lab. Throughout the last 2 years, 
we have slowly witnessed many of our members close their 
businesses or change their business models as to not include 
children's products.
    I have with me today a few examples of these businesses:
    First, you see a wooden toy airplane. This toy, made by our 
member, John Greco, in New Jersey, is made solely from wood. 
The coming requirement for ASTM testing, in the CPSIA, makes it 
economically impossible to produce items like this in small 
batches. Rather than continue to make children's products, Mr. 
Greco decided to close that aspect of his business this past 
September. As he shared with me, ``I was never looking to get 
rich making wooden toys. I did it because I enjoyed making toys 
that made kids happy.''
    Second, you see an award-winning, custom-designed fabric 
toy monster created by Stephanie and Michael Estrin, owners of 
Curly Q Cuties, in Texas. Children and their parents can go 
online and design their own personal monster. After much 
research, Curly Q Cuties found that they could never afford to 
test each unique design to ASTM standards, and decided to close 
their business at the end of this year. Ms. Estrin cites the 
reason for the company's closing due, ``a law that does not 
address our particular manufacturing scenario.'' Put simply, 
the CPSIA makes no allowances for one-of-a-kind items.
    Third, my fellow board member, Randy Hertzler's family 
business focuses on often hard to find toys, primarily imported 
from the European Union. These toys, that represented 44 
percent of his sales in 2006 to 2007, have disappeared from the 
U.S. market altogether, because of the CPSIA's lack of 
alignment with European standards. Many quality European toy 
companies will no longer sell to companies--to American 
retailers, like Randy. He fears that he will have to liquidate 
and close in 2011.
    We find it hard to believe that it was Congress's intent, 
with the CPSIA, to remove products and businesses like these 
from the marketplace.
    While the HTA has worked closely with the CPSC, submitting 
comments on pending rules, attending CPSC-sponsored workshops, 
regular e-mail and phone contact with CPSC staff, we feel 
strongly that the current legislation does not grant the CPSC 
the flexibility to address our members' needs.
    We have offered a number of suggestions that we feel will 
ensure the safety of children's products, yet amend the CPSIA 
to be more workable for the businesses we represent. We are 
more than happy to further discuss these suggestions throughout 
the day, today.
    Two needed changes I'd like to bring up at this time 
include granting the CPSC the authority to use risk analysis to 
allow enforcement flexibility of third-party testing and 
hazardous content limits. High-risk items, like paint or metal 
jewelry, should be held to higher verification standards than 
low-risk products, like bike valve stems and brass zippers on 
children's garments. And, just as the Senate included language 
in the new food safety bill to exempt small farmers making 
under 500,000 per year, we ask that Congress make similar 
allowances for manufacturers who produce in small batches, 
exempting them from the third-party testing requirements. It's 
important to point out that these manufacturers would not be 
exempted from the standards themselves, only from the third-
party testing protocol.
    Over the last 2 years, we've been told countless times that 
the CPSIA was never meant to adversely affect our businesses. 
We have worked tirelessly, along with many others, to enact 
commonsense changes within this legislation, always holding 
onto the fact that the products we create are safe.
    On behalf of our members, I thank this committee for 
addressing this important issue, and urge you to quickly pass 
meaningful reform of the CPSIA, correcting these unintended 
consequences.
    Thank you.
    [The prepared statement of Ms. Chuckas follows:]

          Prepared Statement of Jill Chuckas on Behalf of the 
                         Handmade Toy Alliance
    Hello. My name is Jill Chuckas and I own a small hand crafted 
children's accessories business called Crafty Baby. For the last 12 
years, I have been crafting children's products from my home based 
studio in Stamford, CT. When Congress first spoke of toy safety 
legislation, I applauded your efforts. In December of 2008, though, I 
began to read the fine print. I became acutely aware that this law, 
meant to regulate large, multi billion dollar companies that had 
betrayed the countries trust, could effectively put me out of business. 
Not because my products are unsafe, but because I simply could not 
afford the mandatory third-party testing and labeling requirements, 
which disproportionately affect small batch manufacturers and specialty 
retailers. I quickly joined a rising grass roots effort to amend the 
CPSIA and took on a leadership role within the newly formed Handmade 
Toy Alliance.
    So today I come before you to speak, not just for myself, but as a 
Board member of the Handmade Toy Alliance, an organization that owes it 
very existence to the CPSIA. The HTA now represents 592 member 
businesses, including specialty retail stores, toymakers and children's 
product manufacturers from across the United States. I am here today 
with fellow Board members Kate Glynn of A Child's Garden and Impish in 
Massachusetts and Randy Hertzler of euroSource in Pennsylvania.
    The deadline for third-party testing is February 10 of next year--
just 10 weeks from now. After that point, our member businesses face 
extinction. Although many of us have already paid for XRF testing of 
our products, we simply cannot afford to pay for the services of a 
CPSC-certified lab. Throughout the last 2 years, we have slowly 
witnessed many of our members who manufacture products close their 
businesses, or change their business models as to not include 
children's products. These equate to lost jobs, not because the company 
couldn't make safe product, but because the companies couldn't navigate 
the costly and burdensome regulations the CPSIA puts forth to prove 
that their products are safe. I have brought with me today a few 
examples of these businesses.
    First, you see before you a wooden toy airplane. This toy, made by 
our member John Greco in New Jersey, sold for $110 and is made from 
Cedar, Oak, Poplar, Birch, and Maple. It is unfinished, so it doesn't 
need to be tested for lead, but quotes from labs to perform ASTM F963 
Use & Abuse testing makes it too costly to continue making. Just one 
round of testing requires 12 toys to be sent to the lab for destructive 
testing, resulting in $1,320 in lost gross sales--and this does not 
include shipping and lab fees. Rather than continue to make children's 
products, Mr. Greco decided to close that aspect of his business this 
past September. As he shared with me, ``I was never looking to get rich 
making wooden toys--I did it because I enjoyed making toys that made 
kids happy.''
    Second, you see before you an award winning custom designed fabric 
toy monster created by Stephanie and Michael Estrin, owners of Curly Q 
Cuties in Texas. Children and their parents can go on line and design 
their own personal monster. After much research, Curly Q Cuties found 
that they could never afford to test each unique design to ASTM 
standards and decided to close their business at the end of this year. 
Mrs. Estrin cites the reason for the company's closing due to ``a law 
that does not address our particular manufacturing scenario.'' Put 
simply, the fact that this is a one of a kind item, makes it impossible 
to adhere to all the stipulations within the CPSIA.
    Third, my fellow board member Randy Hertzler's family business 
focuses on often hard to find toys, primarily imported from the 
European Union. These toys, that represented 44 percent of his sales in 
2006-2007, have disappeared from the U.S. market because of the CPSIA's 
lack of alignment with European standards. Many quality European toy 
companies will no longer sell to American retailers like Randy. He 
fears that he will have to liquidate and close in 2011.
    While the HTA has worked closely with the CPSC--submitting comments 
on pending rules, attending CPSC sponsored workshops, regular e-mail 
and phone contact with CPSC staff--we feel strongly that the current 
legislation does not grant the CPSC the flexibility to address our 
members' specific needs. This was most recently shown by the CPSC 
definition of a children's product. The final rule was issued in 63 
pages of text that we now understand to mean ``if it can be construed 
as a children's product, it is.'' Our view was that the CPSC could have 
offered relief to countless small businesses, but the ambiguity of 
their definition, rather than exempting product categories and 
providing guidance, has only served to create additional market 
confusion.
    We have offered a number of suggestions that we feel will ensure 
the safety of children's products, yet amend the CPSIA to be more 
workable for the businesses we represent. The majority of these ideas 
were outlined in our January 2010 letter to the CPSC. We are more than 
happy to further discuss these suggestions throughout this hearing.
    Most importantly, Congress should grant the CPSC the authority to 
use risk analysis to allow flexibility of third-party testing 
requirements and hazardous content limits. High risk items like paint 
or metal jewelry should be held to higher verification standards than 
low-risk products like bicycle valve stems and brass zippers on 
children's garments.
    Second, the definition of what is a children's product should be 
changed to items intended for children 6 years or younger, except where 
the CPSC identifies a product requiring a higher age limit based on 
risk analysis.
    Third, educational products intended for use in a classroom 
environment should be excluded from the definition of a children's 
product.
    Fourth, harmonize CPSIA standards with the European Union's EN-71 
standards to remove the regulatory trade barrier which the CPSIA 
created between the U.S. and the EU. This would include changing the 
lead content standard from an untenable total lead standard to an 
absorbable lead standard.
    Fifth, exempt manufacturers who make less than 10,000 units per 
year from all third-party testing requirements and allow them to comply 
instead with the `reasonable testing program' requirements which apply 
to manufacturers of non-children's products under the CPSA. This would 
protect small batch manufacturers and specialty product manufacturers, 
including companies that make adaptive products for children with 
disabilities. These manufacturers would not be exempted from the 
standards themselves, only from the third party verification 
requirements.
    Sixth, tracking labels should be voluntary except for durable 
nursery items and products which are most likely to be passed down to 
younger siblings or resold where the CPSC's risk analysis determines 
that tracking labels would be most likely to prevent harm. 
Manufacturers who choose to implement tracking labels would benefit 
from a lesser burden in the event of a recall.
    Seventh, instruct the CPSC to not lower the lead content limit from 
300 parts per million to 100 parts per million, a standard so low that 
it multiplies the difficulties of compliance.
    Over the last 2 years, we have been told countless times that the 
CPSIA was never meant to adversely affect my business or the member 
businesses the HTA represents. We have worked tirelessly, along with 
many others, to enact common sense change within this legislation, 
always holding on to the fact that the products we create are safe. On 
behalf of our members, I thank this committee for addressing this 
important issue and urge you to quickly pass meaningful reform of the 
CPSIA, correcting these unintended consequences. Thank you.
    A full list of our 592 member businesses can be found at http://
www.hand
madetoyalliance.org.

    Senator Pryor. Thank you.
    Ms. Weintraub, let me start with you, if I may.
    On our first panel, we had some discussion about budgets. 
And folks pointed out some of the concerns with the CPSIA and, 
you know, some of the bumps in the road on how we drafted it or 
how it's trying to be implemented. But, you know, one thing, I 
think, that was missing from that discussion was a context of 
what life was like before two things happened: before we passed 
the CPSIA and before Chairman Tenenbaum came on board.
    Could--do you mind, sort of, painting--just very briefly, 
kind of painting a landscape for us of what it looked like 
before those two things happened?
    Ms. Weintraub. Sure, I'd be happy to.
    I described what CPSC had suffered as ``death by a thousand 
cuts.'' The CPSC's budget had been decimated and had never been 
restored. In 1972, when the CPSC was first created, the agency 
was appropriated $34.7 million; they had a staff of 786 full-
time employees. The agency's budget, since that time, did not 
keep up with inflation, did not keep up with its deteriorating 
infrastructure, did not keep up with the changes in consumer 
products, and did not keep up with the increasing data-
collection needs. The agency suffered repeated and severe cuts 
during the last 2 decades, falling from a high of 970 
employees, in 1980, to just 401, in 2007, a loss of almost 60 
percent.
    So, what we were all faced with as we were looking to make 
CPSC more robust was a beleaguered agency that was starved of 
resources, of legislative authority, and appropriate resources 
to do what it needed to do to protect the American public. And 
it's only with CPSIA that the Commission has been given a boost 
of all of these things.
    Senator Pryor. Let me ask about one of the things, in the 
CPSIA, that they're still in the process of doing. They're 
getting closer on it. But, it's the database. What is your 
perception of how that has gone? And what the--how useful the 
database might be, come, what is it, March of next year?
    Ms. Weintraub. Yes. The database, thanks to your leadership 
and the leadership of your staff and this committee--
subcommittee and full Committee--will be implemented in March 
2011. It is a very important resource for consumers, because--
again, looking at the state of the product safety world before 
CPSIA passed, consumers were, and right now are, in the dark. 
Because of Section 6(b) of the Consumer Product Safety Act, 
which is still in effect, CPSC, unlike any other government 
agency, has to basically ask permission from the manufacturer 
of a particular product before they can disclose information 
about that product to the public. That has hampered the agency. 
That has kept critical safety information, that affects life 
and death, out of the hands of consumers. And it has really put 
consumers under a veil of ignorance.
    What this database will do, because it is out of Section 
6(b), will provide a very useful resource that--consumers, when 
they have a problem, they can report it, as they do now. 
However, they can report it online, and it will be public.
    Importantly, as was prescribed by this committee and by 
Congress generally, there's very specific criteria that is 
required before a posting can be made. So, the concerns that 
have been raised about the definition of a ``consumer'' being 
broad, all of that is narrowed very much by the fact that, if 
there is not essential information about the product, about the 
harm, then the posting will not be available.
    So, I think that the impact of this database will be 
profound.
    Senator Pryor. I must say that yesterday I went on the 
NHTSA website to look up--I have a 19--I mean--excuse me--I 
have a 2003 Ford Taurus. And I had looked it up on the NHTSA 
database, on their website, because I was having a problem with 
it, and I wanted to see if others were having the same problem, 
and if they could give me some direction. So, I found that very 
helpful.
    Dr. Gardner, let me ask you something that--follow up on 
something that you said in your testimony. You talk about how, 
you know, you've been a physician, I think you said, for 37 
years----
    Dr. Gardner. Yes.
    Senator Pryor.--Correct?--and that you're seeing different 
types of injuries today. Or, I guess what you're saying is, 
there were injuries that you used to see in children that you 
just don't see much anymore. Could you elaborate on that?
    Dr. Gardner. Yes, let me give you a specific example, and 
that's the issue of walkers. A while back, walkers had wheels, 
they were small in size, they were mobile. Children loved them, 
because it made them mobile. Parents loved them, because it was 
hands-free--they could turn their back on the kids for a 
minute. The problem was that toddlers are drawn like magnets to 
stairs. An open stairway is a magnet and pulls them forward. 
And, unfortunately, when they're in a walker, they'll just go 
down the stairs in their walker, and often land on their head.
    It was very common for me to see significant head injuries, 
not just concussions, but skull fractures, intracranial bleeds. 
And the most common cause of head injuries in toddlers--this 
was several years ago--was, clearly, walkers. And we were 
forever warning parents that the walkers were dangerous and 
that they should always supervise, and preferably just never 
have their child in a walker.
    So, that's one example where now walkers are no longer 
either mobile. They're a stationary object that the child can 
bounce and play in, but it's not going to move anywhere, or 
they're so wide that they won't fit through a doorway and allow 
them to go down the stairs. We still would prefer children not 
to be in walkers, but they don't create the risk of head injury 
that they did several years ago.
    Senator Pryor. Right. So, based on, you know, your area of 
practice, are you seeing fewer injuries to children, based on 
children's products? Or, can you say that?
    Dr. Gardner. It keeps changing. And I referred to that, a 
little bit, with emerging hazards. I think we see new risks, 
and we need to be aware of that. For example, the button 
battery. There's this new generation of lithium button 
batteries----
    Senator Pryor. Right.
    Dr. Gardner.--that children perceive as toys or--they 
swallow coins, and they are very easy to confuse on an X-ray, 
with a coin. If this lithium button battery is entrapped in the 
esophagus for a minimum of 2 hours, it causes irreversible 
damage to the esophagus, can perforate the esophagus or cause 
bleeding, and that's difficult to recognize. The leading source 
of those batteries is the TV remote. The TV remote is dropped, 
pops open, and the battery falls out. That's the leading source 
of ingestion for children. That's an injury I never saw before. 
And that's just an example of a new emerging hazard.
    Senator Pryor. Thank you.
    Ms. Chuckas, I'm really interested in what you said a few 
moments ago. And it may be hard to believe, but we did try to, 
you know, draft legislation in a way that--we were trying to 
find the balance of--just because a small company, a craftsman, 
maybe one person, maybe makes one toy at time and just sells 
them at, you know, crafts fairs, et cetera, or maybe they sell 
them in retail stores--but, just because it has made by one 
person in a--his or her shop, doesn't mean that it's 
automatically safe. I mean, that toy can injure a kid, just 
like something made by, you know, one of the big companies.
    So, we're trying to find that balance of, you know, How do 
we provide a safe marketplace and children's safety, but also 
understand that--you know, we try not to make this too 
burdensome on smaller companies. And I'm not sure that we got 
that balance exactly right, but we have tried to do that. And 
your testimony has been very important.
    Also, I was going to ask you--and you may not know, there 
may not be any way to answer this question--but, I understand, 
in this very difficult recession, some of these small companies 
are going to go out of business anyway. Do you have a sense of 
how many are going out of business because of the economy, 
versus the changes in the consumer protection laws? Can you 
gauge that?
    Ms. Chuckas. It is a hard thing to gauge, because certainly 
the economy of everything has been a factor within these 
businesses, as well. But, I think what has happened is that the 
drive to continue to try to do what one loves has left, because 
the overwhelming sense of this legislation is something people 
can't get past. So, it becomes the ``straw that broke the 
camel's back'' kind of thing.
    Senator Pryor. Yes.
    Ms. Chuckas. It was just one more thing they couldn't deal 
with.
    Senator Pryor. Now, the CPSC has a list of, you know, 
products that say--they know don't contain lead. And it's--my 
understanding is that you don't have to do any third-party 
testing. And wood, I think, is one of those. You--am I wrong on 
that?
    Ms. Chuckas. For the lead content, you're correct.
    Senator Pryor. OK.
    Ms. Chuckas. The issue with the toy is the ASTM safety 
standards. I submitted, within my written testimony, some 
quotes from--this wooden toy, for example, sells for $110. When 
John contacted a CPSC-approved lab, which--it was difficult for 
him to find a lab, actually, that he could work with, to begin 
with, in the United States. He found one. He had to send 12 of 
this toy. He made 20 of them. So, 12 of them had to be sent, in 
order to comply with the toy safety standard aspect. And so, 
that was roughly around $1,300 worth of inventory he wasn't 
going to get back, in addition to the shipping, in addition to 
the lab fees, which--he didn't even get that far with them, 
what the actual lab costs would be for the multitude of tests 
that would have to be done on this wooden toy airplane.
    Senator Pryor. When you and your members contact the CPSC 
about this issue, is it your perception that they're listening, 
that they're trying to work with you? Or, maybe do they give 
you a sense that their hands are tied because of the law? I 
mean, how's the--how responsive has the----
    Ms. Chuckas. Extremely responsive. We've spoken directly 
with four out of five of the commissioners. Chair Tenenbaum, 
Commissioner Northup, Commissioner Nord, and Commissioner Adler 
have made them all--have made themselves readily available. 
Their staffs have been readily available. And, within a week 
after they appointed the new small business ombudsman, we had a 
conference call with him. Very readily available. They've been 
great working with us.
    Senator Pryor. Has it translated into action, though? Or 
relief?
    Ms. Chuckas. To some extent. We're waiting, still, on the 
component safety certification rules to come down. We had 
really hoped that that would have been done a long time ago, 
but we recognize the massive rulemaking undertaking that is.
    So, we feel that they are listening to our concerns. It 
hasn't always articulated itself into a ruling that was going 
to be helpful. But, we do feel that they're listening. They're 
trying.
    Senator Pryor. Yes. OK, good.
    Mr. Lamar, let me ask you, if I may--kind of follow up on 
that same question. I know that your industry has had a lot of 
contact with the CPSC. And I'm curious about, you know, if your 
perception is that they've been receptive and willing to 
listen. And, even if they have, do they, kind of, come back and 
say that their hands are tied? So, it's the same question.
    Mr. Lamar. I think they've been extraordinarily responsive. 
I would agree with Jill, we've had conversations--multiple 
conversations with commissioners or staff. Several of the 
commissioners have come and presented at training workshops 
that we've held throughout the United States and around the 
world. They've been very eager to help out when they can. Many 
times the reaction we get is, ``You raise some good points, we 
don't know if we can go that far,'' or, ``You've raised some 
good points, the legislation doesn't allow us to accommodate it 
the way you might request so you have to recalculate your 
proposal.''
    Sometimes, even when they want to be responsive, they're 
not able to be as responsive, because there are a lot of other 
industries asking the same question. Behind me, there are a ton 
of industry representatives, representing everybody from books 
to ATVs to science kits to, you name it, and they're all asking 
the exact same questions; many times, on the same kinds of 
issues. And there are only so many people at the agency, and I 
think their ability to respond to all of these questions coming 
in makes it difficult for them to be as responsive to everybody 
as quickly as they probably could be.
    Senator Pryor. Right.
    Let me ask--you said--one reason I wanted to ask you that 
question is, you said--in your written testimony, you said, 
``Product safety standards that work best are those that are 
created through a transparent and predictable process. If one 
group appears shut out, the final result may not be credible or 
accepted by all.'' And, from that, I guess I was inferring that 
you guys felt like you'd been shut out or had not been listened 
to.
    Mr. Lamar. No. I think what I'm trying to describe there is 
sort of their Nirvana. I think that you want to have a 
situation where everybody has an opportunity to comment. I 
think Chair Tenenbaum mentioned, when she was discussing the 
cadmium approach--is that they were going to work with the 
voluntary standards-setting community, so that everybody would 
have an opportunity to participate, that would focus on the 
products and the specific risk, rather than trying to create 
something that's out there. I think that kind of goes back to 
the comments I made before in some of those eight points.
    Senator Pryor. And one of the things I think you've talked 
about is zipper testing. Have there been problems with zippers 
having high lead content? Has that been an issue, either now or 
in the past?
    Mr. Lamar. Yes. I'm glad you asked that question. There's a 
lot of confusion. We presented a lot of data to the agency--5- 
or 6,000 test results, I think it was--it came out to. This was 
when we did our determination that there was no--or, were 
seeking the determination that there was no lead in textiles. 
And, in addition to proving that there was no lead in textiles, 
we found--and this was pre-CPSIA inventory, so this was 
inventory that had been produced before people knew what the 
new lead rules were going to be, even before they even knew 
that they were being discussed--and the incidents of lead in 
things like zippers, buttons, snaps, other kinds of accessories 
on clothing, was about 3 to 5 percent. So, what we found was 
that it's not in textiles. It may be, in a very, very small, 
isolated, rare set of circumstances, in some kinds of 
components. Moreover, what we found is, if it were, like, in a 
zipper, it might be in the stop at the bottom of the zipper; it 
wasn't in the pull, the slider, the teeth, all these other 
aspects of the zipper machinery or equipment. So, you found 
these very isolated, rare circumstances.
    The problem is, this translated, as implementation began--
is that the zipper stop, for example--and I brought a pair of 
pants that illustrates it--might be violative. If that was 
above the 600 parts per million, then that meant the entire 
zipper was above 600 parts per million, which meant the entire 
pair of pants was above 600 parts per million, which meant a 
whole shipment might be above it. So, it's kind of in a--in a 
reference to the old children's parable, you know, ``For want 
of a nail, the kingdom was lost''--for want of the zipper stop 
that was compliant, the entire shipment and the order was lost. 
And so, a lot of inventory had to get destroyed, because you 
might find that, in one zipper stop, there was a problem. And 
that was a significant problem that we had in our industry.
    I think, as people knew these rules, they've now started to 
produce zippers that are compliant. They're going through 
making sure that the metal used, the processes used, in the 
future and for future shipments, is going to be compliant with 
that limit--with the 100 parts per million now, because you're 
looking down the road.
    Senator Pryor. We actually saw that as we were working on 
the CPSIA through the process. Some of the companies--
manufacturers, retailers--were already making changes, in 
anticipation of the--you know, the law taking effect. And, you 
know, hopefully what it does is--in Dr. Gardner's world, it 
helps create a safer place for everybody.
    But, Dr. Gardner, let me ask you about something that was 
touched on more in the previous panel, but a little bit here, 
about lead. There was a lot of discussion, in the first panel, 
about lead. And I assume that you would say that there is no 
safe level of lead. I mean, we've kind of talked about that 
before. But, is the real issue with lead solubility or, you 
know, what--if we're looking at some modification of the 
existing CPSIA, when it comes to lead, and maybe giving a 
little more flexibility or a little more direction on this--you 
know, I guess I--from your standpoint, what are the two, three 
things we need to know about lead?
    Dr. Gardner. Yes. I think the most important thing for 
people to realize about lead, in very simple terms, is that 
it's a neurotoxin that, in simple language, causes brain damage 
that's permanent and irreversible. The other important medical 
aspect of lead is that it's accumulative.
    Senator Pryor. It's--does that mean children are more 
susceptible to it?
    Dr. Gardner. Yes. Particularly younger children, as their 
brain is developing and they're acquiring their skills, and 
early brain development. There's a long-lasting impact on their 
subsequent development and behavior and IQ and function.
    Senator Pryor. Right. So, tell us about the cumulative 
aspect of----
    Dr. Gardner. Part of the issue is that lead stays in your 
body for many years, if not decades. And it accumulates. So, 
one of the difficult issues is that an exposure to a small 
amount of lead, in and of itself, may not be harmful, but as 
that adds on, and it's additive, and it continues over a period 
of time, you can easily reach levels that are harmful, even 
though those individual exposures are small.
    The other thing that's hard to monitor and measure is the 
starting point of a child's lead exposure. If they're starting 
with a blood lead level of 8, and they're exposed to small 
amounts that, over a period of time, take them over 10--as 
opposed to the child that starts with a blood lead level of 1 
and goes to 3. Bioavailability or the absorption is a moving 
target, in terms of how much is being absorbed and stored over 
time, and what the vulnerability is of that child or 
adolescent, or even adult, absorbing that lead.
    Lead is a poison. And it's very difficult to talk about 
safe levels when there, essentially, isn't one.
    Senator Pryor. Right. It has been a difficult topic within 
the CPSIA and the CPSC, trying to implement this, because, you 
know, there's a lot of lead in products out there. And, you 
know, some products, it's just a necessary ingredient, and it's 
been used for different things at different times. And, you 
know, some of these parts are not accessible at all. And the 
CPSC has really been struggling with this and working through a 
lot of these issues, over time. So, we'll continue that 
discussion with all of you all----
    Dr. Gardner. There's background lead----
    Senator Pryor. Yes.
    Dr. Gardner.--as well.
    Senator Pryor. Right.
    Dr. Gardner. And you can't eliminate all of the background 
lead----
    Senator Pryor. Right.
    Dr. Gardner.--so that's adding just the ``lead load,'' if 
you will.
    Senator Pryor. But, I guess the idea would be, if you can 
lessen the load, especially in children's products----
    Dr. Gardner. Yes.
    Senator Pryor.--that's a good thing to do, because they do 
have this other----
    Dr. Gardner. It's essential.
    Senator Pryor. Yes.
    Well, listen, you guys have been great. I want to thank all 
the panelists.
    We're going to leave the record open for 2 weeks. We, I'm 
sure, will have lots of follow-up questions, because I have 
several more pages. I just don't want to keep you all day. But, 
I'm sure we'll have some follow-up questions and other 
questions from the Committee members who couldn't be here 
today.
    So, I want to thank all of you all for everything that you 
do. And, like we said before, as we go through 2011, we will 
continue this dialogue, whether it be here in the Subcommittee 
or in, you know, our offices or just informally, or whatever. 
But, your input is very important.
    We appreciate all of you for being here, and thank you. And 
have a great holiday season.
    [Whereupon, at 12 p.m., the hearing was adjourned.]
                            A P P E N D I X

    Prepared Statement of The Printing Industries of America, Book 
    Manufacturers' Institute, Inc., and the Association of American 
                            Publishers, Inc.
                                                   Petition
                                                  December 16, 2010
Office of the Secretary,
U.S. Consumer Product Safety Commission,
Bethesda, MD.

Re: Request to Extend the Current Stay of Enforcement for Certain CPSIA 
            Testing and Certification Requirements for Books and Other 
            Printed Material Children's Products

Dear Mr. Stevenson:

    The Printing Industries of America,\1\ the Book Manufacturers' 
Institute, Inc.,\2\ and the Association of American Publishers \3\ 
(hereinafter ``Joint Requesters'') hereby request the Consumer Product 
Safety Commission to extend its current stay of enforcement for certain 
provisions of Subsection 14(a) of the Consumer Product Safety 
Improvement Act (``CPSIA'') for books and other printed material 
children's products for an additional 12 months from the February 10, 
2011 expiration date of the current stay.
---------------------------------------------------------------------------
    \1\ Printing Industries of America (PIA) is the world's largest 
graphic arts trade association, representing an industry with 
approximately one million employees. It serves the interests of more 
than 10,000 member companies involved in every stage of the printing 
industry from materials to equipment to production to fulfillment. Over 
80 percent of the printing operations in Printing Industries of 
America's membership have less than 20 employees, which makes printing 
a prime example of small business involved in manufacturing.
    \2\ The Book Manufacturers' Institute, Inc. (BMI) is the leading 
nationally recognized trade association of the book manufacturing 
industry. Our membership is comprised of 80 companies ranging in size 
of those with less than a hundred employees to those employing 
thousands. BMI member companies annually produce the great majority of 
books ordered by the U.S. and Canadian book publishing industries. 
While our members produce the majority of books used in all publishing 
markets, our members do manufacture over 95 percent of the books used 
in the elementary school market.
    \3\ The Association of American Publishers (AAP) is the principal 
national trade association for the U.S. book industry, representing 
some 300 member companies and organizations that include most major 
commercial book and journal publishers in the United States, as well as 
many small and non-profit publishers, university presses and scholarly 
societies. AAP members include large and small publishers of children's 
books in the consumer marketplace, as well as publishers of 
instructional and assessment materials for students at all levels of 
education.
---------------------------------------------------------------------------
    An extended stay is necessary because the Commission to date has 
not completed several pending rulemaking proceedings, specifically the 
Testing and Labeling Pertaining to Product Certification (75 FR 28336) 
and Conditions and Requirements for Testing Component Parts of Consumer 
Products (75 FR 28208) rules, that are required for implementation of 
and compliance with Sections 101, 102, and 108 of the Consumer Product 
Safety Improvement Act of 2008 (``CPSIA'') before the current stay 
expires. Even if the Commission were to publish the final rules today, 
the effective dates of the rules would not allow for sufficient time 
for companies to implement these provisions properly.
    Over the course of the prior and current stays, the Commission has 
worked in a determined manner to implement CPSIA, including the 
publication of more than 50 rules and interpretive policy statements 
implementing the law. The Commission has also issued several policy 
statements designed to provide guidance to industry. However, serious 
implementation problems still exist, particularly in the application of 
CPSIA to books and other printed children's material, even as the clock 
ticks down to the current stay's expiration date.
    For more than 2 years, the Joint Requesters have been engaged in 
meetings, discussions and other communications with the Commission and 
its staff in an effort to clarify the applicability of the requirements 
in the various sections of CPSIA to books and other printed material 
children's products. These efforts have involved the exchange of 
letters, development and provision of online access to a test results 
database, and multiple in-person meetings with the Commission's 
technical, legal, and enforcement staff.
    The Joint Responders' interaction with the Commission has been 
productive in a number of ways, including an August 26, 2009 final rule 
announcing determinations (74 FR 43031) that certain component 
materials, such as paper, animal-based glues, and any product printed 
with four color process inks (CMYK) and others, used in books and other 
printed material children's products are not required to be tested for 
lead content under Subsection 102 of the CPSIA.
    However, to date many other component materials included in the 
initial request for determinations made by the Joint Requesters have 
not received determinations for exclusion by the Commission. These 
include spot inks, saddle stitching wires, and laminates, among other 
components.
    The Joint Requesters understand the significance of such 
determinations and deeply appreciate the efforts of the Commission 
staff to work with us on our additional exclusion determination 
requests. However, since the typical components of most books and other 
printed material children's products are comprised of the materials 
that did not receive exclusion determinations from the Commission, the 
practical result is that any of these children's products that includes 
a component of non-excluded material will have to be tested for 
certification under the statutory requirements. As a result, the needed 
relief from the accredited third-party laboratory testing requirement 
is unavailable for virtually all such products.
    Other aspects of CPSIA, such as the stringent conditions that must 
be met in order to demonstrate the ``non-accessibility'' of certain 
component materials as a basis for their exclusion from the Section 102 
testing requirement, as described by the Commission in its final rule 
issued on August 7, 2009 (74 FR 39535) have proven too restrictive for 
virtually any books with covers to avoid the testing requirement and 
remain problematic.
    Yet another example of the practical limitation of the current 
exclusion determinations for component materials involves textbooks. 
Almost every textbook cover is laminated to maintain product quality 
and longevity. Since laminates are not included in the list of 
component materials determined to not have lead contents that could 
ever exceed the statutory limit, every textbook must be tested for lead 
content to support the required certification. Considering the millions 
of textbooks printed each year and the lead-time required to test and 
deliver them to students in a timely manner, this presents an 
unrealistic situation for the companies represented by the Joint 
Requesters. In addition, a large percentage of soft-cover books, which 
includes the testing books that are required under the No Child Left 
Behind Act, are printed with spot inks. All of these would also require 
testing to support the required certification.
    Certainly, all stakeholders are aware of these and other examples 
that have proven challenging in the implementation of CPSIA. In its 
January 2010 ``Report to Congress,'' the Commission stated it believed 
it could ``more effectively fulfill its mandate under section 101(a) if 
it were allowed greater flexibility in granting exclusions from the 
section 101(a) lead limits,'' particularly as the regulation related to 
``ordinary books.'' The report also highlighted the Congressional 
statement of managers attached to the FY 2010 omnibus bill, in which 
the Conferees noted their belief that CPSIA may not have been intended 
to subject ordinary children's books to certain provisions of the law.
    Congress has also taken action to address the implementation and 
compliance challenges surrounding CPSIA. In the 110th Congress, 
legislation to amend CPSIA was introduced by both Democrat and 
Republican Members of Congress. The House Energy & Commerce Committee 
held a hearing on potential revisions to CPSIA April 29, 2010 and the 
Appropriation Committees of the House and Senate requested the ``Report 
to Congress'' referenced above, which was designed to solicit 
suggestions from Commissioners on possible ways to amend CPSIA to avoid 
unintended consequences and make the law work in a practical way.
    The most recent Congressional examination of CPSIA was on December 
2 in a Senate hearing held by the Committee on Commerce, Science, and 
Transportation. At this hearing, Chairman Rockefeller acknowledged that 
the Commission ``continues to grapple with a few outstanding issues'' 
and stated that the Senate is ``taking a hard look at those concerns 
and recommendations.'' The Joint Responders are encouraged by this 
statement, but realize that such action is not reasonably likely to 
occur until after the 112th Congress convenes next month.
    Industry, too, continues to develop for submission additional 
information supporting further exclusion determinations for component 
materials used in books and other printed material children's products. 
For those component materials that will ultimately require testing, 
extension of the stay would allow the necessary time to develop and 
implement a sampling and testing program, based on the yet to be issued 
final regulations, that would minimize product delays and burdensome 
costs.
    With this in mind, we are asking the Commission to extend the stay 
on enforcement of the testing and certification provisions for books 
and other printed material children's products, until February 10, 
2012. Taking such an action now will provide the Commission, Congress, 
and industry time to work together to develop additional revisions, 
policies, and interpretations that maximize the prospects for a useful 
and cost-effective solution for all stakeholders. During the period of 
the extended stay, the prohibition against commerce in children's 
products containing total lead content exceeding the prescribed 
statutory limits will, of course, remain fully in force. Extending the 
stay with respect to ordinary paper-based children's books and other 
printed material children's products will in no way endanger the health 
and safety of children, as the total lead content of such children's 
products currently is well below the most stringent statutory limits 
and publishers and printers will continue to ensure that it remains so.
    During the extended stay of enforcement, the book printing, 
manufacturing, and publishing industries--represented by the Joint 
Requesters--will continue to work with the Commission and its technical 
staff on additional exclusion determinations for certain component 
materials that are used to manufacture books and other printed material 
children's products, and with Congress as it seeks to remedy unintended 
consequences of CPSIA.
    We would be happy to respond to any questions that the Commission 
or its staff may have about this request.
            Respectfully submitted,
                                          Lisbeth A. Lyons,
                              Vice President of Government Affairs,
                                        Printing Industries of America.

                                            Daniel N. Bach,
                                          Executive Vice President,
                                    Book Manufacturers' Institute, Inc.

                                        Allan Robert Adler,
                   Vice President for Legal and Government Affairs,
                                    Association of American Publishers.
                                 ______
                                 
                       Retail Industry Leaders Association,
                                    Arlington, VA, December 2, 2010
Hon. Mark Pryor, Chairman,
Hon. Roger Wicker, Ranking Member,
Senate Commerce Committee,
Subcommittee on Consumer Protection, Product Safety, and Insurance,
Washington, DC.

Dear Chairman Pryor and Senator Wicker:

    The Retail Industry Leaders Association (RILA) welcomes the 
Committee's hearing on oversight of the Consumer Product Safety 
Commission (CPSC) and product safety in the holiday season, and we 
appreciate this opportunity to showcase the steps that our members are 
taking to ensure product safety and integrity all along the supply 
chain--during the holiday season and throughout the year. RILA members 
place the highest priority on the safety and quality of the products 
they sell to their customers, particularly toys and other children's 
products. RILA also supported the sweeping Consumer Product Safety 
Improvement Act (CPSIA) when it was enacted in 2008, and our members 
have worked aggressively to implement the law's many new requirements. 
While implementing the CPSIA, it has become apparent that there are 
some provisions in the law which that do not coincide with best 
practices and have resulted in unintended consequences. As Congress 
begins to consider its agenda for 2011, RILA hopes the Senate Commerce 
Committee will make it a priority to advance legislation to facilitate 
better implementation of the CPSIA.
    By way of background, RILA promotes consumer choice and economic 
freedom through public policy and industry operational excellence. Our 
members include the largest and fastest growing companies in the retail 
industry which together provide millions of jobs and operate more than 
100,000 stores, manufacturing facilities and distribution centers 
domestically and abroad.
RILA/British Retail Consortium Consumer Product Standard
    Retailers have vigorous quality assurance programs and enforcement 
mechanisms for their suppliers. In addition to these efforts and 
implementation of the CPSIA, RILA is seeking to advance product safety 
efforts by partnering with the British Retail Consortium (BRC) to 
implement a factory capability assessment of suppliers of consumer 
products sold in North America. This effort will create a harmonized 
standard that will be consistently evaluated by a third party-assessed 
scored audit. RILA believes the RILA/BRC standard will effectively 
promote global product safety by seeking to ensure that suppliers 
receive a detailed measurement of their quality management systems.
Improvements to the CPSIA
    While RILA recognizes that the CPSIA has had a profound impact in 
reinvigorating the Consumer Product Safety Commission (CPSC) and 
enhancing consumer product safety, RILA also believes the 2008 law 
could be improved. Most importantly, RILA strongly supports the 
unanimous preference of the CPSC Commissioners to prospectively apply 
the August 2011 100 ppm lead limit. As currently interpreted by the 
CPSC, the CPSIA will make it unlawful to sell products that exceed a 
100 ppm limit after August 2011, regardless of when the products were 
manufactured, unless the CPSC determines that the lower limit is not 
technologically feasible. The retroactive application of this provision 
creates substantial problems for manufacturers and retailers with large 
inventories of children's products, as well as for resellers such as 
charitable thrift stores, and leads to wasteful destruction of safe 
products because confirmation of compliance for products already on 
retail shelves often cannot be done in a cost effective manner. 
Retailers will incorporate new safety standards into their guidance to 
suppliers so as to ensure compliant products, but it is very difficult 
to implement new standards on the basis of a sell-by date, particularly 
when there is uncertainty on whether the CPSC could make a 
determination that 100 ppm is not technologically feasible. There is 
significant historical precedent to implement new safety standards on a 
prospective basis, and RILA has urged the CPSC to implement the August 
2011 lead limit on a prospective basis. Nevertheless, Congressional 
action to clarify its intent for a prospective application would be 
very helpful for smooth implementation of the law.
    RILA also believes the CPSIA should be modified to clarify that 
inaccessible component parts are excluded from the law's phthalate 
restrictions. Section 101(b)(2)(A) of the CPSIA clarifies that the lead 
limits do not apply to any component part of a children's product that 
is not accessible to a child through normal and reasonably foreseeable 
use and abuse of such product. Section 108 of the CPSIA does not 
currently make a similar exception for inaccessibility for phthalates, 
and RILA understands this omission was inadvertent. RILA believes the 
prohibition on phthalates should only apply to accessible parts similar 
to the lead policy. As an example of the problem, phthalates are used 
in the plasticized coating of internal wiring in electronic toys, such 
as remote controlled helicopters. The phthalates help to keep the 
plastic coating soft and pliable to better encase and protect the 
wires, but does not present a risk of exposure to a child playing with 
the helicopter because the wires are inaccessible. An clarification 
that inaccessible component parts are excluded from the phthalates 
limits would prevent the need for costly and unnecessary testing, and 
confirm that the remote-controlled helicopter would be CPSIA compliant.
    RILA also believes the CPSC should be granted expanded authority to 
except certain products or materials from the CPSIA's lead limits based 
on functional purpose of the lead in the product or component whenever 
the CPSC can also determine that the presence of lead will not affect 
public health and safety.
    In conclusion, retailers work tirelessly to ensure the safety and 
quality of the products they sell, and to fully implement all the new 
requirements under the CPSIA. We also hope the Congress will advance 
legislation in early 2011 to improve the effectiveness of the CPSIA and 
reduce unnecessary costs for businesses that do not provide additional 
product safety benefits. We look forward to continuing to work with you 
on this and other important product safety issues. If you have any 
questions or concerns, please contact Stephanie Lester, Vice President, 
International Trade.
            Sincerely,
                                          Stephanie Lester,
                               Vice President, International Trade.
                                 ______
                                 
             Prepared Statement of Richard M. Woldenberg, 
                   Chairman, Learning Resources, Inc.
    As an operator of a small business making educational products and 
educational toys, I have had a front row seat for the implementation of 
the Consumer Product Safety Improvement Act of 2008 (CPSIA) by the 
Consumer Product Safety Commission (CPSC). On the occasion of your CPSC 
oversight hearing, I want to highlight the economic damage wrought by 
the CPSIA without achieving any material improvement in safety 
statistics. I also want to bring to your attention the open hostility 
of the CPSC toward the corporate community in the implementation and 
enforcement of the CPSIA, and conclude with my recommendations for 
legal reforms to restore common sense to safety administration without 
reducing children's safety.
    Children are our business. As educators, as parents and as members 
of our community, we have always placed the highest priority on safety. 
We would not be in the business of helping children learn if we didn't 
care deeply about children and their safety. The CPSIA has dramatically 
impacted our business model, reduced our ability to make a profit and 
create jobs, pared our incentive to invest in new products and new 
markets, and generally made it difficult to grow our business. We would 
gladly accept these burdens if the law made our products safer, but the 
fact is that it hasn't. Our company, Learning Resources, Inc., has 
recalled a grand total of 130 pieces since our founding in June 1984 
(all recovered from the market). Our management of safety risks was 
highly effective long before the government intervened in our safety 
processes in 2008.
    The precautionary approach of the CPSIA attempted to fill perceived 
``gaps'' in regulation by making it illegal to sell children's products 
unless proven safe prior to sale. Yet the law has yielded few 
quantifiable safety benefits other than a reduction in recent recall 
rates for lead-in-paint (already illegal in children's products for 
decades). Ironically, this progress in reducing recalls has taken place 
in a 27-month period in which, like the time before the CPSIA, testing 
of children's products prior to sale was not mandatory. Consumer 
confidence wasn't dented by the lack of mandatory testing. The 
justifications for the over-arching and excessively expensive CPSIA 
regulatory scheme just don't hold water.
    In any event, the reduction in recall rates is only a minor triumph 
and was not due to mandatory testing or harsh new lead standards, but 
most likely a (hyper) energized regulator and a great deal of 
publicity. Recall statistics can be highly misleading because the rate 
and number of recalls depend on many factors and do not generally 
correlate to injuries to children. In other words, product recalls are 
not tantamount to childhood injuries. The purpose of the CPSIA is to 
reduce injuries, not product recalls--yet CPSC recall statistics show 
that there have been almost no reported injuries from lead or 
phthalates in children's products in the last decade (one death and 
three unverified injuries from 1999-2010, all from lead or lead-in-
paint). The billions of dollars now being spent by the corporate 
community annually on testing and other compliance activities have not 
reduced injuries--there weren't any to reduce. Whatever peace of mind 
has been generated by lower recall rates comes at a very high price.
    The CPSIA significantly broadened the reach of Federal safety 
regulation well beyond what was needed to deal with the lead-in-paint 
toy violations of 2007 and 2008. Under the CPSIA, the definition of a 
``Children's Product'' subject to regulation now encompasses ALL 
products designed or intended primarily for a child 12 years of age or 
younger (15 U.S.C.  2052(a)(2)). This definition ensures that 
virtually anything marketed to children will be subject to the 
restrictions of the Consumer Product Safety Act (CPSA), irrespective of 
known or quantifiable risk of injury. Put another way, this definition 
ensures that many product categories with a long tradition of safety 
are now subject to the withering requirements of this law for the first 
time simply because they fall within the overly broad definition of a 
Children's Product. The affected safe products span the U.S. economy 
books, t-shirts and shoes, ATVs, bicycles, donated or resale goods, 
musical instruments, pens and educational products. The CPSC declined 
to use its discretion to narrow this definition in its recent ``final 
rule'' interpreting ``Children's Product,'' thus ensuring continued 
market chaos and economic waste.
    The consequences of the change in the consumer safety laws to a 
precautionary posture has had notable negative impacts and promises to 
create further problems, namely:

        a. Increased Costs. The new law creates a heavy burden for 
        testing costs. From 2006 to 2009, our company's testing costs 
        alone jumped more than eight-fold. We estimate that our testing 
        costs will triple again after the CPSC (as anticipated) lifts 
        its testing stay in 2011, and could multiply again if the CPSC 
        enacts (as anticipated) its draft ``15 Month Rule'' on testing 
        frequency and ``reasonable testing programs.'' Testing costs 
        are often thousands of dollars per product. Having employed one 
        person to manage safety testing and quality control for many 
        years, we now have a department of five, including me, plus an 
        outside lawyer on retainer. These jobs are funded by 
        discontinuing sales, marketing and product development jobs--
        the CPSIA is NOT an ersatz stimulus program. Personnel, legal 
        and other out-of-pocket safety expenses (besides testing) have 
        more than quadrupled in the last 3 years--all without any 
        change in our super-low recall rates or injury statistics.

        b. Increased Administrative Expenses. The CPSIA requires that 
        all products include tracking labels on both the packaging and 
        the product itself. Rationalized as ``analogous'' to date 
        labels on cartons of milk, tracking labels are in reality 
        nothing but pure economic waste as applied to the vast array of 
        ``Children's Products'' under the CPSIA. As noted, our company 
        has a virtually unblemished 26-year track record of safety so 
        tracking labels promise to add little value in the event of 
        recalls that are unlikely to occur. Ironically, with the strict 
        new rules governing product safety, we believe the already low 
        chance of a product recall has been reduced further. As noted 
        above, the money to pay for all this administrative busy work 
        comes from foregone business opportunities. We are being forced 
        to shrink our company to apply tracking labels that no one will 
        use.

        An equally frustrating bureaucracy has sprung up around 
        recordkeeping under this law. Burdensome requirements spawned 
        by the government's new involvement in our quality control 
        processes forced us to make large new investments in 
        information technology with no return on our investment. In 
        addition, the pending CPSC draft policy on component testing 
        promises to convert the simple task of obtaining a complete 
        suite of safety test reports into a major recordkeeping chore. 
        We will now be forced to manage each component separately, 
        tracking test reports on each component one-by-one. This 
        promises to multiply our recordkeeping responsibilities--and 
        the related risk of liability for failing to comply--by more 
        than an order of magnitude.

        c. Reduced Incentive to Innovate. The increased cost to bring a 
        product to market under the CPSIA will make many viable--and 
        valuable--products uneconomic. To cover the cost of developing, 
        testing and safety-managing new products, the prospective sales 
        of any new item (``hurdle rate'') is now much higher than under 
        prior law. This means that low volume ``specialty market'' 
        items are less likely to come to market and many new small 
        business entrants may find themselves priced out of the market. 
        The CPSIA makes it much harder to start a new business serving 
        the children's market because the rules so heavily favor big 
        business. Because of CPSIA transactional costs, high volume 
        items now have a huge cost advantage over low volume items. 
        This will hurt many small but important markets like 
        educational products for disabled children. Our company, with 
        its 1,500 catalog items, is probably now a dinosaur under the 
        CPSIA -the law provides a strong economic incentive to 
        restructure our business around 50-150 items and to focus on 
        high volume markets only. Schools would suffer from the loss of 
        niche educational products.

        d. Crippled by Regulatory Complexity. Our problems don't end 
        with testing costs or increased staffing. We are being crippled 
        by regulatory complexity. Almost 28 months after passage of the 
        CPSIA, we still don't have a comprehensive set of regulations. 
        Please consider how mindboggling the rules have become. There 
        were fewer than 200 pages of safety law and CPSC rules that 
        pertained to our business until 2008. These rules clearly 
        defined our responsibilities and could be taught to our staff 
        (in fact, many were rarely applicable to us). Today, the 
        applicable laws, rules and interpretative documents exceed 
        3,000 pages. As a practical matter, it is simply not possible 
        to master all of these documents--and yet it's potentially a 
        felony to break any of these rules. Sadly for us, the rules and 
        CPSC staff commentary keep changing, are still being written 
        and are rarely if ever conformed. How can we master and re-
        master these rules and teach them to our staff while still 
        doing the full-time job of running our business? Ironically, 
        the recalls of 2007 and 2008 were never a ``rules'' problem--
        those famous recalls were clearly a compliance problem. Imagine 
        what will happen now with an unmanageable fifteen-fold increase 
        in rules. No small business ``ombudsman'' can make that problem 
        go away.

        e. Small Business Will Certainly Suffer. The CPSIA was written 
        in response to failings of big companies, but hammers small and 
        medium-sized companies with particular vengeance. Our small 
        business has already lost customers for our entire category on 
        the grounds that selling toys is too confusing or too much of a 
        ``hassle.'' This is our new reality. The highly-technical rules 
        and requirements are beyond the capability of all but the most 
        highly-trained quality managers or lawyers to comprehend. Small 
        businesses simply don't have the skills, resources or business 
        scale to manage compliance with the CPSIA. For this reason, 
        small businesses bear the greatest risk of liability under the 
        law, despite being responsible for almost no injuries from lead 
        in the last decade. The double whammy of massive new regulatory 
        obligations and the prospect of devastating liability are 
        driving small businesses out of our market.

        In implementing and administering the CPSIA, the CPSC created a 
        harsh regulatory environment for the business community over 
        the past 28 months. Consider the following:

                1. Unjustified Recalls. In June, in response to an 
                inquiry by a Congressman and followed up by media 
                inquiries, the CPSC pressed McDonalds to recall 12 
                million Shrek glasses for ``high'' cadmium content, 
                despite the agency's admission on Twitter that the 
                glasses were not toxic. The recall effort was justified 
                as being done ``out of an abundance of caution'', a 
                frightening regulatory standard when applied to 
                products acknowledged to be safe by the regulator 
                itself. McDonalds lost millions of dollars as a result, 
                not to mention suffering from widespread and persistent 
                bad publicity.

                2. Unjustified Penalties and Coercive Tactics. The CPSC 
                assessed a $2.05 million penalty against a hapless 
                Japanese dollar store chain (Daiso) for five separate 
                tiny recalls involving 698 units and 19 items. These 
                items sold for between $1 and $4 each. There were no 
                reported injuries from sales of the Daiso trinkets. Ms. 
                Tenenbaum bragged about this extraordinarily excessive 
                prosecution in a speech in March 2010 to the Consumer 
                Federation of America: ``We secured an injunction that 
                completely stops Daiso from importing children's 
                products into the country. . . . Daiso has a very high 
                hurdle to jump over to ever get back in the import 
                business again.'' Regulated companies take stunning 
                examples like Daiso as a warning that outsized and 
                disproportionate force may be used by this agency with 
                little provocation. The regulated community has also 
                expressed alarm over the threatened use by the agency 
                of unilateral press releases ``to warn the public'' 
                about alleged dangers in specific products as a way to 
                coerce ``voluntary'' recalls. Such threats have been 
                used where facts may be in dispute to justify a recall. 
                Under the law, the CPSC may only implement mandatory 
                recalls subject to a court order, a slow process 
                perhaps but also expensive and labor-intensive. 
                ``Voluntary'' recalls can be much quicker and cheaper, 
                only requiring ``agreement'' between the agency and the 
                subject company. In more than one case, CPSC has 
                threatened unilateral releases to try to ``convince'' a 
                firm to undertake a ``voluntary'' recall but after the 
                firm took the risk of standing up to the staff and the 
                staff conducted further investigation, the CPSC decided 
                that recalls were not even necessary. Not all firms can 
                bear the expense of such a process or take the risk of 
                calling the staff's bluff because issuance of a release 
                would likely damage the firm and their brand, possibly 
                irrevocably. Many supposedly ``voluntary'' recalls have 
                resulted. Abusive tactics of this nature have severely 
                damaged trust between the CPSC and the regulated 
                community.

                3. Disregard of Public Comments. The agency has 
                garnered considerable criticism for overlooking or 
                disregarding comments from the corporate community 
                solicited in its public rulemaking processes. Ignoring 
                or disregarding inconvenient public comments contrary 
                to the agenda of the controlling party makes a mockery 
                of the legally-mandated public comment process. Notable 
                instances include the recent approval of interpretative 
                rule on ``Children's Products'' and the rules 
                implementing the public database of safety incidents. 
                The database debate was so fouled by the majority's 
                refusal to entertain the legitimate concerns of 
                industry that the two minority Commissioners proposed 
                their own draft rule--which the CPSC at first refused 
                to post on its website.

                4. Unjustified Hostile Rulemakings. The CPSC has 
                implemented rules governing the public database that 
                adversely affect the Constitutionally-guaranteed due 
                process rights of our businesses. There is no adequate 
                public policy justification for the erosion of the 
                remarkable civil rights that distinguish the American 
                legal system among all international legal systems--yet 
                the Commission voted 3-2 to allow falsehoods to be 
                posted without recourse in a database the CPSC will 
                maintain. In other cases, the agency has published 
                draft rules (yet to be acted on) which could force 
                companies like ours to spend as much as $10,000 per 
                item per year to meet arbitrary rules on testing 
                frequency or ``reasonable testing programs''--
                notwithstanding strong evidence that these rules are 
                wasteful, unnecessary and financially irresponsible. 
                The pendency of rules like this creates destabilizing 
                market uncertainty and forces business decisions that 
                have no basis other than fear of future regulation. For 
                instance, Wal-Mart has already instituted a 100 ppm 
                lead standard months ahead of the possible 
                implementation of the standard by the CPSC--simply 
                because the CPSC has been so slow to act.

                The CPSIA went off track by taking away the CPSC's 
                authority to assess risk. If the CPSC were again 
                required to regulate based on risk, safety rules could 
                focus on those few risks with the real potential to 
                cause harm to children. All risks were not created 
                equal.

                I recommend several steps to reduce cost, liability 
                risk and complexity all without sacrificing children's 
                product safety:

        A. Mandate that the CPSC base its safety decisions, resource 
        allocation and rules on risk assessment. Restore to the 
        Commission the discretion to set age and product definition 
        criteria for the 300 ppm lead standard and phthalate ban. 
        Freeze the lead standard and lead-in-paint standard at their 
        current levels unless the CPSC determines that a change is 
        necessary to preserve public health and safety.

        B. The definition of ``Children's Product'' should not include 
        anything primarily sold into or intended for use in schools or 
        which is used primarily under the supervision of adults. Other 
        explicit exceptions should include apparel, shoes, pens, ATVs, 
        bicycles, rhinestones, books and other print materials, brass 
        and connectors. Exclusions from the definition should take 
        these products entirely outside the coverage of the CPSIA 
        (including mandatory tracking labels).

        C. Lead-in-substrate and phthalate testing should be based on a 
        ``reasonable testing program,'' not mandated outside testing. 
        The tenets of a reasonable testing program should be set by the 
        reasonable business judgment of the manufacturer. Resellers 
        should be entitled by rule to rely on the representations of 
        manufacturers. Phthalate testing requirements should explicitly 
        exempt inaccessible components, metals, minerals, hard 
        plastics, natural fibers and wood.

        D. Definition of ``Children's Product'' should be limited to 
        children 6 years old or younger and should eliminate the 
        difficult-to-apply ``common recognition'' factor of Section 
        3(a)(2)(c) of the CPSA. Definition of ``Toy'' (for phthalates 
        purposes) should be limited to children 3 years old or younger 
        and should explicitly refer only to products in the form used 
        in play.

        E. Eliminate CPSC certification of laboratories (rely on the 
        market to provide good resources). Fraud has only very rarely 
        been a problem with test labs and is already illegal.

        F. Impose procedural limits to insure fairness in penalty 
        assessment by the CPSC under the CPSIA. Completely reformulate 
        penalties to restrict them to egregious conduct (including 
        patterns of violations), reckless endangerment or conduct 
        resulting in serious injury.

        G. Rewrite the penalty provision applicable to resale of used 
        product so that violations are only subject to penalty if 
        intentional (actual knowledge or reckless endangerment) and 
        only if the violation led to an actual injury. Eliminate the 
        ``knowing'' standard with its imputed knowledge of a reasonable 
        man exercising due care.

        H. Mandatory tracking labels should be explicitly limited to 
        cribs, bassinets, play pens, all long-life ``heirloom'' 
        products with a known history of injuring the most vulnerable 
        children (babies or toddlers).

        I. Public injury/incident database should be restricted to 
        recalls or properly investigated incidents only. Manufacturers 
        must be given full access to all posted incident data, 
        including contact information. The ``due process'' civil 
        liberty interests of the corporate community must be protected.

    I urge your committee to address the fundamental flaws in the CPSIA 
to restore order to the children's product market and to protect small 
businesses from further damage. I appreciate the opportunity to share 
my views on this important topic.
                                 ______
                                 
        Prepared Statement of Paul C. Vitrano, General Counsel, 
                      Motorcycle Industry Council
    Chairman Pryor, Ranking Member Wicker and distinguished members of 
the Subcommittee on Consumer Protection, Product Safety and Insurance, 
thank you for the opportunity to submit this testimony on the need for 
amendments to the Consumer Product Safety Improvement Act (CPSIA). My 
name is Paul Vitrano. I am the General Counsel of the Motorcycle 
Industry Council. MIC is a not-for-profit, national industry 
association representing nearly 300 manufacturers and distributors of 
motorcycles and all-terrain vehicles; motorcycle, ATV and recreational 
off-highway vehicle parts and accessories; and members of allied trades 
such as insurance, finance and investment companies, media companies 
and consultants.
    The CPSIA was intended to protect children from ingesting lead from 
toys. However, the lead provision has had unintended consequences and 
we are pleased to submit testimony about one of those unintended 
consequences. The CPSIA has effectively banned the sale of many age-
appropriate youth ATVs and motorcycles because of the lead content of 
certain components. As a result of its broad reach, the Act has 
inadvertently crippled an industry unrelated to the toy manufacturers 
that were the intended target of the lead provision. In addition, the 
unintended ban has resulted in unsafe situations for youth off-highway 
enthusiasts.
    It is estimated that over 13.7 million Americans enjoy riding off-
highway motorcycles and over 35 million enjoy riding ATVs. Safety of 
our riders--particularly our youngest riders--is a top priority of the 
powersports industry. Vehicles, helmets and other gear and accessories 
are specially designed for youth riders to allow them to safely enjoy 
this family-friendly form of outdoor recreation.
    In February 2009, however, ATVs and motorcycles designed and 
primarily intended for youth riders aged 6 to 12 became banned 
hazardous substances under the CPSIA because small amounts of lead--
that pose no risk to youth--that arc imbedded in metal parts of those 
vehicles to enhance the functionality of those components.
    As you know, the CPSC concluded that the language of the CPSIA 
prevented it from making common-sense decisions and resulted in the 
CPSC denying the powersports industry's petitions for exclusion from 
the lead content provision. The exclusion was denied despite the fact 
that the CPSC's own staff acknowledged that there was no measurable 
risk to children resulting from lead exposure from these products.
    The CPSC tried to temporarily address the ban by issuing a stay of 
enforcement of the CPSIA's new lead content limits in May 2009. 
Unfortunately, this stay of enforcement has proven unworkable. Due to 
the risks of selling under the stay, many manufacturers and dealers are 
no longer selling youth model off-highway vehicles, and there is now a 
limited availability of these products for consumers. Half of the major 
ATV manufacturers are no longer selling youth models despite the stay.
    The CPSC has acknowledged that the ban on youth off-highway 
vehicles creates a compelling safety issue because it likely will 
result in children 12 years of age and younger riding larger and faster 
adult-size vehicles. For example, CPSC studies show almost 90 percent 
of youth ATV injuries and fatalities occur on adult-size ATVs. Again, 
the CPSC's staff scientists acknowledge that the presence of lead in 
metal alloys in these youth models--needed for functionality, 
durability and other reasons that are safety critical to the 
components--does not present a health hazard to children. The 
Commission also acknowledges that children riding these vehicles only 
interact with a limited number of metal component parts that might 
contain small amounts of lead, like brake and clutch levers, throttle 
controls, and tire valve stems.
    As a result, for over 18 months, MIC, its members, their dealers 
and many of the millions of Americans who safely and responsibly ride 
their off-highway motorcycles and ATVs with their children have urged 
Congress to amend the CPSIA to stop this unintended ban on youth 
motorized recreational vehicles. Off-highway vehicle stakeholders have 
sent over one million electronic messages and thousands of hand signed 
letters and made numerous calls and personal visits to Capitol Hill to 
advocate for a legislative solution to the ban.
    Since the CPSIA ban took effect on February 10, 2009, we 
collectively have urged Congress to act for three important reasons:

        First, the lead content in metal parts of ATVs and motorcycles 
        poses no risk to kids. Experts estimate that the lead intake 
        from kids' interaction with metal parts is less than the lead 
        intake from drinking a glass of water.

        Second, everyone agrees that the key to keeping youth safe on 
        ATVs and motorcycles is having them ride the right sized 
        vehicle. The CPSIA has unintentionally put kids at risk because 
        youth ATV and motorcycle availability is limited. 
        Unavailability of youth models results in what CPSC has 
        described as a ``more serious and immediate risk of injury or 
        death'' than any risk from lead exposure from these products--
        youth riders operating larger and faster vehicles designed for 
        adults.

        Finally, the CPSIA is unnecessarily hurting the economy and 
        jobs when everyone should be trying to grow the economy and 
        create jobs. MIC estimates that a complete ban on youth model 
        vehicles would result in about $1 billion in lost economic 
        value in the retail marketplace every year.

    In recognition of the need to end the unintended ban on youth ATVs 
and motorcycles, CPSC Chairman Tenenbaum and the other Commissioners 
unanimously asked Congress to provide the Commission with flexibility 
to grant exclusions from the CPSIA lead content provisions, 
specifically noting the need to address youth ATVs and motorcycles.
    As a bipartisan group of 15 Senators wrote to the CPSC in 2009, 
``[CPSIA] has created a well-documented safety hazard for children, 
severe and unwarranted disruption to families who recreate together, 
and a deleterious effect on youth amateur racing. Additionally, the 
inclusion of OHVs has created an economic disaster for an industry 
which is already reeling from the recession, is facing countless lay-
offs and is estimated to be losing three million dollars per day due to 
the Act.''
    Senator Jon Tester introduced the ``Common Sense in Consumer 
Product Safety Act'' (S. 608) in 2009 that would end the ban by 
amending the CPSIA so that vehicles designed or intended primarily for 
children 7 years of age or older are not considered children's products 
for purposes of the lead content provisions.
    We believe that Congress never intended to ban youth model 
motorized recreational vehicles when it passed the CPSIA. MIC urges the 
Committee to stop this unintended ban by either granting a categorical 
exemption for ATVs and youth motorcycles; or passing legislation to 
limit the parts of the vehicle deemed ``accessible'' and thus subject 
to the lead content provision of the CPSIA. In either case, we also 
urge the Committee to provide as much clarity as possible so that the 
CPSC is left with no doubt about Congress' intent to ensure the 
continued availability of these youth model motorized recreational 
vehicles.
    Thank you.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                         Hon. Inez M. Tenenbaum
    Question 1. Is the marketplace safe for shoppers this holiday 
season?
    Answer. Overall, I believe the consumer product marketplace was 
safer for consumers this holiday season. This is the second holiday 
shopping season that manufacturers, importers, and retailers of 
children's products have had to comply with some of the most stringent 
lead and phthalates limits in the world and mandatory toy standards. 
Thanks to you and your fellow Members of Congress who crafted and 
passed the Consumer Product Safety Improvement Act of 2008 (CPSIA), 
CPSC has more authorities and influence in overseas markets, at the 
ports, and in the U.S. marketplace. The effect has been increased 
confidence for parents as they shop for their children.

    Question 2. Has the agency seen a dramatic decline in toy recalls 
since 2008?
    Answer. The number of toy recalls has dropped over 70 percent from 
a high of 172 in FY 2008 to 44 in FY 2010. Toys accounted for 31 
percent of all recalls in FY 2008 but only 10 percent of all recalls in 
FY 2010. The number of toy units recalled declined by over 3.8 million 
from FY 2008 to FY 2010.

    Question 3. Has the agency seen a decline in the number of deaths 
of children under the age of 15?
    Answer. Yes. The numbers of consumer product related deaths for 
ages 0 to 15 have dropped by over 17 percent, from 3,225 to 2,658, over 
the period 1985 to 2007 (the latest year of complete death date). 
Adjusting for changes in the population count, the rate of death for 
this age group, per 100,000 resident population, has dropped from 6.3 
deaths per 100,000 to 4.4 deaths per 100,000.

    Question 4. What advice can the CPSC offer to parents to help keep 
their kids safe from any potential product hazards this holiday season?
    Answer. During the 2010 holiday shopping season CPSC issued 
guidance to parents noting that while recalls and deaths have declined, 
toy-related injuries are increasing. In 2009, there were an estimated 
186,000 emergency room-treated injuries related to toys with children 
younger than 15, which is up from 152,000 injuries in 2005. Frequently 
these injuries involved lacerations, contusions, and abrasions that 
most often occurred to a child's face and head. Importantly many of the 
incidents were associated with, but not necessarily caused by, a toy.
    To help keep the holiday season happy, safe, and incident-free, 
CPSC encouraged consumers to adopt a three-pronged safety approach:

        1. Which Toy for Which Child?--Always choose age appropriate 
        toys.

        2. Gear Up for Safety--Include safety gear whenever shopping 
        for sports-related gifts or ride-on toys, including bicycles, 
        skates, and scooters.

        3. Location, Location, Location--Be aware of your child's 
        surroundings during play. Young children should avoid playing 
        with ride-on toys near automobile traffic, pools or ponds. They 
        also should avoid playing in indoor areas associated with 
        hazards such as kitchens and bathrooms and in rooms with corded 
        window blinds.

    Some additional safety steps that CPSC advised consumers to follow 
include:

   Scooters and Other Riding Toys--Riding toys, skateboards, 
        and in-line skates go fast, and falls could be deadly. Helmets 
        and safety gear should be worn properly at all times and be 
        sized to fit.

   Small Balls and Other Toys with Small Parts--For children 
        younger than age three, avoid toys with small parts, which can 
        cause choking.

   Balloons--Children can choke or suffocate on deflated or 
        broken balloons. Keep deflated balloons away from children 
        younger than 8 years old. Discard broken balloons at once.

   Magnets--For children under age six, avoid building or play 
        sets with small magnets. If magnets or pieces with magnets are 
        swallowed, serious injuries and/or death can occur.

    Once the gifts are opened, CPSC always advised parents to:

   Immediately discard plastic wrappings or other packaging on 
        toys before they become dangerous play things.

   Keep toys appropriate for older children away from younger 
        siblings.

   Supervise children while charging batteries. Chargers and 
        adapters can pose thermal burn hazards to young children. Pay 
        attention to instructions and warnings on battery chargers. 
        Some chargers lack any mechanism to prevent overcharging.

    Question 5. Would you describe to the Committee what spurred this 
campaign in the first place, progress made to protect children from 
unsafe cribs, and a status update on the Commission's efforts?
    Answer. Between November 2007 and April 2010 there were 36 deaths 
reported to the Commission associated with crib structural problems. Of 
those, 25 occurred when crib components (often associated with the 
drop-side hardware portion of the crib) detached, disengaged, or broke 
ending in the strangulation death of the infant in the crib.
    In the wake of these and other tragic incidents involving 
children's sleep environments, I directed and the Commission supported 
the creation of the Safe Sleep Team. This team has worked diligently to 
prevent consumers from being harmed by cribs and infant sleep products 
and has also contributed to the creation of new standards and 
regulations for these types of products. Pursuant to the direction 
contained in section 104 of the CPSIA, I also announced early in 2010 
that the Commission would adopt new, mandatory crib safety standards by 
the end of that year. On December 15, 2010, the full Commission voted 
unanimously to adopt new crib safety standards that, among other 
things, prohibit the use of traditional drop-sides in newly 
manufactured cribs.
    Under the rules, the sale, resale, lease or other placement in the 
U.S. stream of commerce of old cribs that do not meet the new safety 
standard will be prohibited effective June 28, 2011. The rules will 
also prohibit the use of old, noncompliant cribs ``by child care 
facilities, family child care homes, and places of accommodation 
affecting commerce.'' The Commission, however, recognized that child 
care facilities and places of public accommodation would require a 
period of time to purchase new, compliant cribs for use in their 
facilities. Accordingly the rule gives child care providers and places 
of public accommodation that use cribs until December 28, 2012, to 
purchase and start using new compliant cribs in those facilities.

    Question 6. When do you expect the Commission will issue a final 
rule on crib safety?
    Answer. As noted above the Commission voted unanimously to adopt 
the new crib safety rules on December 15, 2010. The rules were 
published in the Federal Register on December 28, 2010. (See Consumer 
Product Safety Commission, ``Safety Standards for Full-Size Baby Cribs 
and Non-Full-Size Baby Cribs: Final Rule,'' 75 Fed. Reg. 81,766 (Dec. 
28, 2010)).

    Question 7. I'm certain you and your staff spent countless hours 
working on the final rule that the Commission recently adopted 
establishing the Publicly Available Product Information Database. Do 
you believe the publicly searchable database is a victory for American 
consumers?
    Answer. Yes, I believe the rollout of the Database will be one of 
the most significant steps to advance consumer product safety awareness 
taken in the history of this agency. First and foremost, the Database 
will function as an early warning system for dangerous and potentially 
dangerous products by allowing members of the public to share 
information about product hazards as quickly as that information 
becomes known. This is a very positive change from the current system 
(generally referred to as ``section 6(b) procedure''), where the 
Commission is required to consult with manufacturers and seek their 
advance approval before warning the public of potentially dangerous 
items.
    The Database will also allow the Commission to use the most modern 
and effective technology to collect information from consumers and 
better manage that information internally. This will allow the 
Commission to monitor the safety of products out in the marketplace in 
``real time,'' and also accelerate the issuance of recalls and other 
corrective actions where necessary. In the end, I think this is a 
``win-win'' for both manufacturers and consumers, because it will alert 
manufacturers of potential defects much faster than under the current 
system and get potentially dangerous products out of the hands of 
consumers as soon as possible.

    Question 8. How will this Database serve to protect the public from 
dangerous products in the stream of commerce?
    Answer. As noted above, the Database will serve as an early warning 
system for consumers. Product safety incident reports will be available 
on SaferProducts.gov soon after they are filed by consumers who have 
learned of a dangerous or potentially dangerous product. This 
represents a very substantial change from current procedure where 
consumer complaints are often withheld from public access for months or 
even years due to the ``section 6(b) process.''
    The Database will also use the most modern IT technology to ``data 
mine'' the reports for new and emerging patterns of product defect. 
This should allow Commission staff to react faster to new and emerging 
hazards--and reduce injuries or deaths that may be caused by those 
product hazards.

    Question 9. Do you think the CPSC's recent final rule establishing 
the publicly searchable database properly balances timely disclosure of 
important consumer protection information with the need to address 
legitimate business concerns?
    Answer. Yes, I do. Our implementation of the Database has built-in 
protections and procedures that will allow a manufacturer to have its 
perspective included in the Database record. In cases where a 
manufacturer believes a report is either materially inaccurate or 
contains confidential information, the company can ask that we correct 
the record or redact the confidential information.
    In addition to providing manufacturers with the right to comment on 
reports, the Database also requires all reports to carry the following 
disclaimer: ``The Commission does not guarantee the accuracy, 
completeness, or adequacy of the contents of the Consumer Product 
Safety Information Database, particularly with respect to the accuracy, 
completeness, or adequacy of information submitted by persons outside 
of CPSC.''
    The result of this is a balanced approach that will allow for the 
correction of faulty information without requiring the Commission to 
withhold reports from the public until they are endlessly vetted by 
outside parties.

    Question 10. Is the Database on track to be launched in March 2011?
    Answer. Yes, the Database is currently on schedule for a fully 
functional launch on March 11, 2011.

    Question 11. Does the Commission intend to consider extending the 
stay of enforcement for the third-party testing requirement? Do you 
think it is necessary to extend the stay of enforcement?
    Answer. The Commission is currently considering several petitions 
and requests, including one from the Handmade Toy Alliance (HTA), for a 
continuation of the stay of enforcement for third-party testing of lead 
content. In considering these requests, the Commission will carefully 
consider the views and concerns of all impacted stakeholders.

    Question 12. Within the third-party testing regime, where is the 
Commission in its efforts to promulgate rules outlining appropriate 
testing protocols?
    Answer. On December 28, 2009, the Commission issued an interim 
enforcement policy, ``Interim Enforcement Policy on Component Testing 
and Certification of Children's Products and Other Consumer Products to 
the August 14, 2009 Lead Limits,'' regarding component testing and 
certification of children's products and other consumer products to the 
90 parts per million (ppm) lead in paint limit and to the 300 ppm lead 
limit for children's products established in section 101 of the CPSIA.
    This interim enforcement policy permits, as part of a domestic 
manufacturer's or importer's certification of a children's product as 
being in compliance with the 300 ppm lead content limit, the domestic 
manufacturer or importer to rely on a test report showing passing test 
results for one or more components used on the product, based on 
testing either of them has commissioned from a recognized third-party 
test lab. The domestic manufacturer or importer may also rely on a 
certificate from another person certifying that a component complies 
with the 300 ppm lead limit, provided the component certificate is 
based on testing of a representative sample of the component(s) by a 
recognized third-party test lab.
    On May 20, 2010, the Commission published a notice of proposed 
rulemaking, ``Conditions and Requirements for Testing Component Parts 
of Consumer Products,'' 16 CFR Part 1109. This proposed rule set forth, 
for Commission consideration, the conditions and requirements under 
which the Commission will require or accept the results of testing of 
component parts of consumer products, instead of the entire consumer 
product, to meet, in whole or in part, the testing requirements of 
sections 14(a), 14(b), and 14(d) of the CPSA.
    On May 20, 2010, the CPSC also issued a proposed rule that would 
establish requirements for a reasonable testing program and for 
compliance and continuing testing for children's products. The proposal 
would also address labeling of consumer products to show that the 
product complies with certification requirements under a reasonable 
testing program for nonchildren's products or under compliance and 
continuing testing for children's products. The proposed rule would 
implement section 14(a) and (d) of the Consumer Product Safety Act 
(CPSA), as amended by section 102(b) of the Consumer Product Safety 
Improvement Act of 2008 (CPSIA).
    CPSC staff are currently reviewing and drafting responses to the 
over 300 comments received on these two proposed rules. Based on the 
comments and further staff analyses, the proposed rules will be updated 
and draft final rules submitted to the Commission for consideration in 
the first half of calendar 2011.

    Question 13. Has the Commission proposed a rule allowing for 
component part testing?
    Answer. Yes. On May 20, 2010, the Commission published a notice of 
proposed rulemaking, ``Conditions and Requirements for Testing 
Component Parts of Consumer Products,'' 16 CFR Part 1109. This proposed 
rule set forth, for Commission consideration, the conditions and 
requirements under which the Commission will require or accept the 
results of testing of component parts of consumer products, instead of 
the entire consumer product, to meet, in whole or in part, the testing 
requirements of sections 14(a), 14(b), and 14(d) of the CPSA.
    In advance of the propose rule for component part testing, the 
Commission issued an interim enforcement policy, ``Interim Enforcement 
Policy on Component Testing and Certification of Children's Products 
and Other Consumer Products to the August 14, 2009 Lead Limits,'' 
regarding component testing and certification of children's products 
and other consumer products to the 90 parts per million (ppm) lead in 
paint limit and to the 300 ppm lead limit for children's products 
established in section 101 of the Consumer Product Safety Improvement 
Act of 2008 (``CPSIA'').
    This interim enforcement policy, issued on December 28, 2009, 
permits, as part of a domestic manufacturer's or importer's 
certification of a children's product as being in compliance with the 
300 ppm lead content limit, the domestic manufacturer or importer to 
rely on a test report showing passing test results for one or more 
components used on the product, based on testing either of them has 
commissioned from a recognized third-party test lab. The domestic 
manufacturer or importer may also rely on a certificate from another 
person certifying that a component complies with the 300 ppm lead 
limit, provided the component certificate is based on testing of a 
representative sample of the component(s) by a recognized third-party 
test lab.

    Question 14. As you know, this year's reports of cadmium in 
children's products are very troubling. The CPSC has the authority to 
respond to emerging hazards in the marketplace. Has the Commission 
reached a final determination as to whether the toxicity of cadmium is 
sufficient to be considered toxic under the FHSA?
    Answer. CPSC staff have concluded that the data concerning the 
toxicity of cadmium are sufficient for cadmium to be considered toxic 
under the FHSA due to effects on multiple organ systems and toxic 
endpoints, including kidney dysfunction. The conclusion that a 
substance is toxic is only the first step in the Commission's 
assessment under the FHSA.
    The FHSA is risk-based. To be considered a ``hazardous substance'' 
under the FHSA, a consumer product must satisfy a two-part definition. 
(See 15 U.S.C.  1262 (f)(1)(A)). First, it must be toxic under the 
FHSA or present one of the other hazards enumerated in the statute (see 
statement above). Second, it must have the potential to cause 
``substantial illness or injury during or as a result of reasonably 
foreseeable handling or use.'' Therefore, exposure and risk must be 
considered in addition to toxicity when assessing potential hazards 
under the FHSA.

    Question 15. You noted in a letter you sent to me earlier this year 
that you were working with ``standards determining organizations'' to 
figure out whether ``current standards governing the use of toxic 
metals in surface coatings or the substrate of toys [were] sufficiently 
protective of children's health and safety.'' What has been the outcome 
of those deliberations?
    Answer. The evaluation of the current ASTM F963 toy safety 
standard, made mandatory by the Consumer Product Safety Improvement Act 
of 2008, is an ongoing, multifaceted effort by CPSC technical staff, 
including toxicologists and chemists. Staff has completed toxicity and 
dose-response analysis of the chemicals regulated by the standard. An 
external peer review of the analysis is also currently being prepared. 
In addition, staff is evaluating test methods specified in the standard 
for their suitability in accurately identifying potentially hazardous 
products.
    Recently the ASTM toy safety subcommittee established a work group 
to consider aligning the current standard with international standards 
for accessible soluble heavy metals in toys. The proposed changes in 
the ASTM standard would expand the requirements for toys, including the 
scope of the standard, with respect to chemical substances, including 
cadmium. CPSC staff is actively involved in the discussions and 
generally supports the expansion of requirements for metals in toys.

    Question 16. I was the lead author of the Virginia Graeme Baker 
Pool and Spa Safety Act here in the Senate, a law that established 
strict pool safety standards as a response to too many tragic accidents 
and insufficient safety standards. I understand the CPSC has launched a 
robust pool safety campaign. Could you update us on the Commission's 
efforts to protect the public from pool and spa hazards?
    Answer. In 2010, CPSC launched the most expansive information and 
education campaign in its history, which was aimed at preventing child 
drownings and drain entrapments. Below is a summary of our Pool Safely: 
Simple Steps Save Lives multi-media campaign:

   CPSC awarded a contract to Widmeyer Communications to 
        develop and implement an information and education campaign to 
        fulfill the requirements of Section 1407 of the Virginia Graeme 
        Baker Pool and Spa Safety Act (VGB Act). The comprehensive Pool 
        Safely campaign teaches pool and spa safety steps that stress 
        prevention of drowning and entrapment by engaging stakeholders 
        as partners at the national and grassroots levels. Child safety 
        experts work on public and residential drowning prevention 
        programs for parents and children, and industry organizations 
        share VGB Act compliance information with pool and spa owners 
        and operators.

   The Pool Safely campaign messages totaled more than 250 
        million views, which were generated from print articles, online 
        stories, local television broadcasts, and epublications through 
        the CPSC's website. This goal was exceeded due to the 
        exceptional exposure generated by Widmeyer Communications 
        through the production and dissemination of a high-value TV 
        PSA. In addition, numerous print articles, radio stories, and 
        online stories were generated in 2010, which reached millions 
        of readers and listeners. Significant additional views were 
        made via Twitter, Flickr, and YouTube. Metro transit stations 
        in the District of Columbia displayed five illuminated posters, 
        which generated 1.7 million views in September 2010. Billboards 
        with Pool Safely campaign messages were placed on streets and 
        highways in Arizona, California, and several other states.

   CPSC staff worked with a contractor on events targeting 
        minorities and high-risk families. These events included focus 
        groups, program announcement press conferences, and events in 
        minority communities in Houston, TX, and Washington, D.C. At 
        these events participating groups included organizations such 
        as Safe Kids, American Red Cross, the YMCA, and local 
        organizations like Bria's House, which provides swimming 
        lessons to underprivileged children.

   A professional Web design services company was contracted to 
        redesign and expand PoolSafety.gov into a state-of-the-art, 
        interactive Web resource using the campaign name 
        www.PoolSafely.gov. The new site was launched on September 27, 
        2010. This site has interactive links to all content developed 
        as part of the Information and Education campaign with special 
        sections for families, industry, state and local officials, and 
        the media.

   Finally, CPSC staff developed and awarded six contracts to 
        leading organizations to create and deliver educational and 
        training programs nationally. Contractors representing top 
        national industry experts were retained to execute training 
        materials for pool owners and operators, manufacturers, and 
        retail outlets, and local and state regulatory entities. Using 
        a combination of live events, webinars, and prepared 
        educational training video programs, each contractor will 
        address issues related to drowning and entrapment prevention 
        for their specified audiences.

    Question 17. Could you discuss the issue of the additional layer of 
protection for pools with only a single main drain?
    Answer. CPSC supports the use of layers of protection in and around 
pools and spas. From fences to door alarms to safer drain covers to 
suction detection devices, CPSC believes that a system of safety is 
needed to protect children from drowning and entrapment hazards in and 
around public and private pools and spas.
    As required by Section 1404 of the VGB Act, all public pools and 
spas that have a blockable drain operating on a single main drain 
system must install a secondary layer of protection. Pool and spa 
operators can use one of five options to meet this requirement: a 
safety vacuum release system, an automatic pump shut off system, a 
suction-limiting vent system, a gravity drain system, or no drains.
    The Commission voted three to two in 2010 to allow for the use of 
unblockable drain covers to be placed over blockable sized drains on 
single main drain systems to exempt public pools and spas from having 
to comply with the secondary protection system requirement. I voted 
against this decision because I believed that a secondary system was 
contemplated by the statute for pools with a single main drain and to 
provide the highest level of protection possible in such pools.

    Question 18. Many months ago, an ABC news article reported a pool 
drain cover safety risk and suggested that despite discontinued 
manufacturing of certain models of drain covers, consumers were not 
notified of potentially dangerous drain covers already purchased and 
installed in pools across the country. Is the Commission aware of this 
concern?
    Answer. Yes, the Commission is aware of this concern.
    After learning of possible anomalies in the testing of certain pool 
drain covers, the Commission took several steps to investigate. On 
September 3, 2010, the Commission issued subpoenas requesting test data 
from three independent labs involved in drain cover testing, rating, 
and certification. This request produced over 17,000 pages of technical 
documents for staff review, which is currently underway.
    CPSC also contracted with a third-party testing laboratory to have 
the identified suction outlet covers tested (CPSC Contract # S-10-
0108). CPSC laboratory staff witnessed the testing to observe the test 
facility, the test procedures, and the methodology of different 
technical staff conducting the tests. The results of testing have been 
reported by the contractor and staff is reviewing the report.
    These results will be used to discuss any ratings issues with 
manufacturers of the identified product whose rating is questionable. 
In the event that testing results for certain covers indicate any 
substantial product safety hazards, the Commission may pursue a recall 
or other corrective action against the manufacturer of the specific 
cover.
    In addition, the CPSC laboratory is also conducting its own 
independent testing of the identified suction outlet covers and will 
compare results with those obtained by the contractor as well as those 
obtained by the original third-party certifying laboratories. These 
results and review of the procedures will also be used to develop 
guidance for future testing and rating of suction outlet covers by 
third-party certifying laboratories.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                         Hon. Inez M. Tenenbaum
    Question 1. The Food and Drug Administration (FDA) has three 
different product classifications for toothbrushes: (1) toothbrush, 
ionic, battery-powered; (2) toothbrush, manual; and (3) toothbrush, 
powered. The FDA classifies all toothbrushes as Class I medical 
(dental) devices. My understanding is that such Class I devices are 
regulated by the FDA. Under current law, does the Consumer Product 
Safety Commission (CPSC) have any authority to ensure the safety of 
toothbrushes, even those that are clearly marketed to children?
    Answer. Section 3(a)(5) of the Consumer Product Safety Act 
(``CPSA'') defines ``consumer product'' as ``any article, or component 
part thereof, produced or distributed: (i) for sale to a consumer for 
use in or around a permanent or temporary household or residence, a 
school, in recreation, or otherwise, or (ii) for the personal use, 
consumption or enjoyment of a consumer in or around a permanent or 
temporary household residence, a school, in recreation, or otherwise. . 
.'' However, section 3(a)(5)(H) of the CPSA expressly excludes, from 
the definition of ``consumer product,'' ``drugs, devices, or cosmetics 
(as such terms are defined in sections 201(g), (h), and (i) of the 
Federal Food, Drug, and Cosmetic Act)'' (``FFDCA'').
    Thus, a toothbrush, as a ``device'' under section 201(h) of the 
FFDCA, cannot be a ``consumer product'' and, therefore, is not subject 
to regulation under the CPSA.
    However, the Federal Hazardous Substances Act (``FHSA'') does not 
contain an exception for devices. (It expressly excludes ``foods, 
drugs, and cosmetics subject to the Federal Food, Drug, and Cosmetic 
Act.'') Consequently, CPSC could use its authority under the FHSA to 
address hazardous substances in devices.

    Question 1a. Do you believe that all toothbrushes should be 
classified as medical devices or should some be classified as a 
consumer product?
    Answer. Because the FHSA permits us to exercise jurisdiction over 
toothbrushes under the FHSA regardless of their classification as a 
medical device, they receive coverage under both FDA's jurisdiction and 
the CPSC's with regard to their chemical content.
    However, toothbrushes are not subject to the CPSIA's new testing 
and certification requirements for children's products since they fall 
outside the definition of ``children's product'' as described above. As 
a medical device, toothbrushes may be subject to the FDA's regulations 
known as current good manufacturing practices. However, we defer to FDA 
on whether such regulations would apply to toothbrushes.

    Question 2. There are a number of battery-powered toothbrushes in 
the market that have children's cartoon or live-action characters 
painted on to the body of toothbrush or attached to the body of the 
toothbrush (i.e., the on-off switch in the shape of the cartoon 
character), and are marketed to children. Does the CPSC consider such 
toothbrushes to be a ``children's product''? Should the CPSC classify 
these toothbrushes to be a children's product as they are marketed to 
children 12 years of age and younger?
    Answer. As noted in the response to question 1, a ``device'' cannot 
be a ``consumer product'' under the CPSA. Section 3(a)(2) of the CPSA 
defines ``children's product,'' in relevant part, as ``a consumer 
product designed or intended primarily for children 12 years of age or 
younger.'' (Emphasis added.) Thus, because a device cannot be a 
``consumer product'' under section 3(a)(5) of the CPSA, neither can it 
be a ``children's product'' under section 3(a)(2) of the CPSA.
    However, if CPSC staff age grades a toothbrush for use by children, 
we could assert jurisdiction to regulate the toothbrushes under the 
FHSA and take appropriate action should they contain a hazardous level 
of heavy metals in either the surface coating or the substrate.

    Question 2a. Does the FDA have any standards for the levels of 
heavy metals allowed in toothbrushes?
    Answer. This question involves interpreting FDA rules and policies, 
and we must respectfully refer you to that agency for a response to 
this question.

    Question 2b. Hypothetically, if it is reported that lead was found 
in the colored bristles of a toothbrush with a cartoon character 
painted on the body of the toothbrush, how would the CPSC respond? 
Would the FDA have absolute jurisdiction? If the FDA chooses not to 
investigate the report, does the CPSC have any authority to investigate 
such a claim independently?
    Answer. Under current laws the toothbrush would not be subject to 
the lead limits in section 101 of the CPSIA because, as stated earlier, 
the product would be excluded from the definition of ``children's 
product.'' CPSC might be able to assert authority under the FHSA if the 
product met the definition of a ``hazardous substance.'' CPSC has the 
authority to investigate and, if after investigation, including the 
analysis of testing of the toothbrush, the Commission determined the 
toothbrush contained a ``hazardous substance'' it could pursue the 
remedies set forth in the FHSA and take the appropriate action.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Frank R. Lautenberg to 
                         Hon. Inez M. Tenenbaum
    Question 1. The Consumer Product Safety Commission approved a new 
mandatory crib safety rule on December 15, 2010. Although the new rule 
acknowledges that ``extra bedding in cribs accounted for the majority 
of infant deaths in cribs or other sleeping products,'' it claims 
``there are no performance requirements for cribs that can address this 
issue.'' What are your plans for expanding existing education efforts 
to address the hazards of extra bedding and sleep positioners?
    Answer. CPSC is focusing on the influence of video to inform to new 
parents and change behaviors when it comes to preventing suffocation 
risks in a baby's sleep environment. In the aftermath of a joint press 
announcement with FDA in late September urging parents to stop using 
sleep positioners, CPSC produced an educational video on the dangers 
associated with these products, which is now posted on the agency's 
YouTube site, and available at the following link: www.you
tube.com/USCPSC#p/f/0/3xvdPpKJoMc.
    Although the dangers associated with drop-sides have garnered most 
of the media attention related to cribs in recent years, soft bedding, 
including pillows, blankets and comforters, cause the most child 
fatalities. To educate new parents in the recovery room at the hospital 
or in the waiting room at their pediatrician's office, CPSC teamed up 
with the American Academy of Pediatrics, Keeping Babies Safe, and 
renowned journalist Joan Lunden to produce a special Safe Sleep for 
Babies video. This video demonstrates visually and informs orally that 
a crib should be as bare as possible due to the suffocation risk that 
soft bedding poses to newborns and infants. This video can be viewed at 
the following site: www.cpsc.gov/CPSCPUB/PREREL/prhtml11/11021.html.
    Shorter versions of the video directed at minority and other 
underserved populations are posted on our YouTube channel. All of these 
videos are being disseminated through our Safe Sleep partners and are 
being highlighted by the agency when conducting media interviews.

    Question 2. Although the crib safety rule will be effective 6 
months after publication, child care providers will have a total of 24 
months to replace non-compliant, potentially dangerous cribs. What are 
your plans for protecting the safety of children in child care until 
dangerous cribs are removed from these facilities in 2 years?
    Answer. The safety of cribs used in child care facilities will 
continue to be carefully monitored by CPSC and state child care 
licensors. First and foremost, it is important to clarify that child 
care facilities are prohibited by law from using ``recalled'' cribs 
unless a repair (provided by the manufacturer as part of the recall 
remedy) has been installed. CPSC staff monitors all incoming crib 
incident reports, including incidents which may have occurred at child 
care facilities and assigns investigators to conduct in depth 
investigations of such incidents. In addition, CPSC maintains a 
comprehensive contact list with state child care licensing departments. 
CPSC will be providing its state partners with information about the 
new Federal crib rule, recalls, safety alerts, and other crib safety 
information.

    Question 3. You have indicated that the Consumer Product Safety 
Commission will work with the National Operating Committee on Standards 
for Athletic Equipment (NOCSAE) on developing new standards for 
football helmets. NOCSAE has not made significant changes to its helmet 
standard in 37 years. What is the timeline for the development of a new 
standard and what steps will you take to ensure the standard 
incorporates the latest science on concussion prevention for youth and 
adults?
    Answer. I take the issue of helmet safety very seriously, 
particularly with regard to helmets used in school and youth athletics. 
To that end, CPSC staff has fully engaged NOCSAE in furtherance of our 
monitoring of their voluntary standards process. As part of this 
effort, I directed one of our CPSC staff engineers with significant 
experience in helmets standards, as well as a senior counsel from my 
staff, to attend the publicly-available portions of the January 20-22, 
2010, NOCSAE board meeting. Overall, I believe CPSC's oversight has 
already begun to bear fruit. In particular, I was encouraged by two 
developments that relate directly to the important issues you raised.
    First, Dr. Robert Cantu, NOCSAE's vice president, presented to its 
board seven recommendations recently made by a group of medical experts 
(including Dr. Cantu) that met late last year at the request of NOCSAE. 
Three of the medical experts' recommendations addressed areas of 
research these experts believe are vital to identifying ways to 
potentially improve the standard for new football helmets in a 
meaningful way. An additional recommendation touched on the need for 
research related to a youth football helmet standard. We not only agree 
with the need for the research these experts identified, but also 
believe all seven of their recommendations should be acted on by NOCSAE 
in a timely fashion. Ensuring NOCSAE moves forward on these fronts is 
incorporated into our larger oversight effort.
    Second, NOCSAE announced at its board meeting that it will be 
creating a standing scientific advisory committee to direct its 
concussion-related research. Moreover, NOCSAE invited CPSC to 
participate in the work of this committee. We are in the process of 
determining how, and in what way, CPSC can be involved with the 
Committee in a manner that would further our oversight function of 
NOCSAE and allow the Commission to be certain that NOCSAE is committed 
to ensuring the key research occurs as quickly and efficiently as 
possible.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Amy Klobuchar to 
                         Hon. Inez M. Tenenbaum
    Question 1. Does the CPSC support adoption of the product standards 
for carbon monoxide alarms and detectors as mandatory consumer product 
safety rules, as reflected in S. 1216/H.R. 1796?
    Answer. CPSC staff supports the goals of the bills to encourage the 
use of CO alarms in residences. CO alarms save lives. They do that by 
warning consumers of the presence of CO before the onset of 
debilitating effects.

    Question 1a. What additional resources, if any, would be required 
by CPSC to implement the legislation if it were enacted?
    Answer. CPSC staff believes that the current edition of UL 2034 is 
an effective standard. Making UL 2034 a mandatory standard will level 
the playing field for manufacturers and give CPSC greater authority to 
enforce compliance with the standard. Staff believes it will also make 
it easier for states to adopt installation requirements.
    The July 29, 2010, revision of H.R. 1796 (from the 111th Congress) 
would make mandatory both UL 2034 and UL 2075. Thus, the scope of the 
House bill goes beyond CO alarms intended for residential dwellings. UL 
2075 detectors or monitoring devices may be appropriate for locations 
outside of residential dwellings, such as indoor parking garages, 
commercial buildings, testing facilities, or furnace rooms. In 
addition, because the scope of UL 2075 includes gases other than CO, 
CPSC staff would need to review the performance requirements for each 
gas within the scope of UL 2075 to ensure that it adequately addresses 
hazards to consumers. CPSC resources would be required to thoroughly 
review the scope and technical provisions of ANSI/UL 2075 related to 
applicable consumer products. In addition, CPSC staff would need to 
compare the standards to ensure the CO alarms test conditions and 
performance requirements in ANSI/UL 2034 preside and coincide with 
those in ANSI/UL 2075.
    That version of H.R. 1796 also states that both ANSI/UL 2075 and 
2034 be published in the Federal Register as mandatory consumer product 
safety standards and take effect 180 days after Federal Register 
publication. CPSC staff suggest that first, the ANSI/UL 2034 be 
reviewed and implemented as the mandatory consumer product safety 
standards in the Federal Register with the associated timelines. Staff 
suggests that after the ANSI/UL 2034 FR time frames, staff can begin 
the work associated with ANSI/UL 2075, as the effort to evaluate and 
define the scope of relevant consumer product safety portions of ANSI/
UL 2075 may require a significant commitment of resources.
    S. 1216/HR 1796 includes provisions for a grant program for states 
that adopt CO alarm installation requirements. Additional resources 
would be required to administer and support such a grant program.

    Question 2. Are you aware of any residential CO alarm products 
being sold on the market that do not comply with UL 2034? Are you aware 
of any manufacturers of CO detectors who manufacturer CO alarm products 
that may exceed UL 2034?
    Answer. CPSC staff is aware that there are low levels CO monitoring 
devices on the market that claim to exceed the ANSI/UL 2034 alarm 
criteria and aim to protect the population most sensitive to the lowest 
levels of CO. As designed, these low-level monitors do meet the ``do 
not alarm'' requirements in ANSI/UL 2034 that protect against spurious 
low-level alarms. The ANSI/UL 2075 standard or registration as a 
medical device may be appropriate for these low level CO monitors. 
However, CPSC staff is not aware of these devices being certified to 
any standards.

    Question 3. In previous years, CPSC has identified ``Carbon 
Monoxide'' as a strategic initiative. In its 2011-2016 Strategic Plan, 
carbon monoxide is no longer identified as its own initiative. How do 
you see CPSC's efforts to raise awareness of carbon monoxide dangers 
and to promote carbon monoxide detection fitting into the five key 
goals identified in the Commission's 2011-2016 Strategic Plan?
    Answer. While carbon monoxide (CO) is no longer identified as its 
own initiative, it is still very much a part CPSC's new Strategic Plan 
through CPSC's work on safety standards, improved consumer information 
and hazard identification. In fact, CPSC's activities to reduce CO 
dangers and to promote CO detection are found for three of the five 
goals in the Strategic Plan.
    CPSC's strategic goal, ``Commitment to Prevention'' focusing on 
engaging public and private sector stakeholders to build safety into 
consumer products, we drive forward our commitment to the prevention of 
CO-related incidents. The CPSC will work to protect consumers from the 
dangers of CO poisoning by promoting the production of safe products 
and the development and implementation of safety standards. This will 
enable industry compliance with safety standards at various stages of 
consumer product development and distribution. By encouraging industry 
leaders and foreign safety agencies to focus on safety early in the 
global supply chain, the CPSC will help prevent hazards from entering 
consumer markets.
    CPSC's strategic goal, ``Raising Awareness'' promotes a public 
understanding of product risks and CPSC capabilities. Under this goal, 
we seek to gain the attention of consumers through increased awareness 
of the hazards associated with CO and gas-fired appliances and engine-
driven tools and generators. Consumers, advocates, industry, and 
partner government agencies each desire useful and timely information 
about consumer product safety issues in order to make informed choices. 
However, these audiences have different information needs, and each 
responds best to different methods of communicating information. With 
the rapid increase in the use of social media and Web-based 
communications, the options for conveying consumer product safety 
information continue to grow.
    The CPSC will use a wide array of communication channels and 
strategies to provide the public with timely and targeted information 
about CO-related safety issues. This information will empower consumers 
to make informed choices about the products they purchase and how to 
safely use them, to be aware of hazardous products in the market, and 
to act quickly if they own a recalled product. Additionally, the 
information will make industry aware of the hazards they must address 
to maintain safe products.
    Finally, CPSC's strategic goal ``Rigorous Hazard Identification'' 
focuses on accurate and timely determination of all hazards posing the 
greatest risk to consumers, including CO-related deaths and injuries. 
Staff completes two annual reports, one on CO fatalities and one on 
incidents associated with associated with generators and engine-driven 
tools. Both reports help identify new or emerging issues within those 
sub-areas.

    Question 4. Please describe the CPSC's experience in managing 
Federal grant programs.
    Answer. The CPSC has not awarded grants in the last 10 years, and 
currently does not have the staff and resources available to 
independently award Federal grants. In 2008, however, Congress passed 
the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act). The VGB 
Act authorized CPSC to award grants to states and was funded in the 
Fiscal Year (FY) 2009 Omnibus Appropriations Bill.
    In order to comply with the requirements of the VGB Act, CPSC 
contracted with the Centers for Disease Control (CDC) to develop the 
required funding announcement, issue the announcement, make the awards, 
monitor the award performance and finally report on the results, all 
following Federal grant regulations. The cost of this service by CDC is 
estimated at 20 percent of the total grant amount.

    Question 4a. To date no grants have been awarded because no states 
meet the statutory requirements the VGB Act grant program. What unique 
challenges would S. 1216 pose to the Commission, if any, in 
administering the proposed grant program under this legislation?
    Answer. First, the Commission still does not have grant expertise 
so we would likely contract again with another Federal agency like CDC. 
Thus, the funding for the 20 percent contract costs must be obtained by 
reducing the grant amounts ($2 million annually) or from specific 
appropriation.
    Second, while we are aware that approximately 25 states have CO 
alarm legislation, we do not know whether the requirements of that 
legislation match the requirements of S. 1216. Therefore, it is not 
whether any state will be immediately eligible to apply for a grant. 
Accordingly, it may be necessary to spend funds initially in conducting 
outreach to the states about the grant program's specific eligibility 
requirements, and then awarding grants in the latter years of the 
program.
    Third, under the VGB grant program, we learned that if the 
appropriations language funding the grants does not always mirror the 
authorization language regarding the return of unexpended and 
unobligated funds. Additional harmonization between the authorization 
and appropriations language would be helpful in the future.

    Question 5. I understand that implementing effective third-party 
testing and tracking processes may be difficult, and that after 2 years 
many companies are still trying to figure out workable solutions. I 
have talked to very small businesses from Minnesota. They are very 
concerned about implementing the specific third-party testing and 
certification requirements. Have you given any thought as to whether it 
is really workable to begin enforcing these requirements against very 
small businesses when the stay ends this February?
    Answer. The third-party testing requirements of the CPSIA have been 
communicated to the business community. Since August 2008, CPSC staff 
have met with various industry associations numerous times and provided 
multiple training seminars and webinars on the new requirements of the 
CPSIA in an attempt to help industry prepare for the changes brought 
about by the CPSIA. As one example, on December 10 -11, 2009, the 
Commission held a two-day workshop to discuss issues relating to the 
testing, certification, and labeling of certain consumer products 
pursuant to section 14 of the CPSA (see 74 Fed. Reg. 58611 (November 
13, 2009)).
    As both Ms. Jill Chuckas and Mr. Steve Lamar stated in response to 
questioning from Senator Pryor at the December 2, 2010 hearing, CPSC 
Commissioners and staff have been fully engaged with industry, 
providing training workshops around the U.S. and the world, and being 
responsive to the issues and concerns facing industry as they move 
forward with meeting the requirements of the CPSIA. The Commission is 
committed to continuing to meet with and educate manufacturers and 
importers as the remaining CPSIA regulations are developed and 
implemented.
    Having said that, the Commission continues to be very sensitive to 
the concerns of the small business community and is currently 
considering several requests, including one from the Handmade Toy 
Alliance (HTA) for a further continuation of the stay of enforcement.

    Question 5a. Have you considered the possibility of another 
extension for these businesses?
    Answer. As noted above, the Commission is currently considering 
several requests, including one from the HTA for a continuation of the 
current stay. The Commission is carefully considering the views of all 
stakeholders and will rule on the petitions and requests as soon as 
possible.

    Question 5b. Have you considered ways to make it easier for very 
small businesses to comply with the CPSIA?
    Answer. The Commission has always maintained an open door policy to 
listen to the concerns of industry and small businesses, and the 
establishment of the new full-time Small Business Ombudsman is the 
latest way that the Commission has sought to listen to and address the 
concerns of small businesses. As CPSIA does not distinguish between the 
sizes of businesses that must comply with the law, the Commission does 
not have plenary power to take actions that may alleviate the burdens 
of compliance on small businesses specifically.
    Nevertheless, the Commission is required to conduct regulatory 
flexibility analyses on each significant rule, which assess the 
potential impacts of the rules on small businesses. The Commission has, 
and will continue, to look at areas like the limited lead exemptions 
and the component part enforcement policy rule noted above to assist 
small businesses and others where possible and discretion allows.

    Question 6. There are certain fibers in apparel that are exempted 
from flammability testing, including polyester and nylon. Spandex was 
not in widespread use when the flammability regulations were 
promulgated, but today it is found in innumerable apparel products. 
Many have claimed that Spandex has the same flammability properties as 
fibers that are already exempted. Does it not make sense for the CPSC 
to investigate adding spandex to the list of fibers that are exempt 
from flammability testing?
    Answer. The Commission issued the Standard for the Flammability of 
Clothing Textiles (16 CFR part 1610) in 1975 under the authority of the 
Flammable Fabrics Act (FFA), which prohibited the importation, 
manufacture for sale, or sale in commerce of any article of wearing 
apparel, which is ``so highly flammable as to be dangerous when worn by 
individuals.'' The Standard, as originally written, did not include 
exemptions for any fibers or fabrics.
    In 1984, the Commission issued a rule amending the Standard to 
include exemptions based on weight and fiber content. The Commission 
based these exemptions on years of previous industry and government 
testing (See 40 Fed. Reg. 48,568; Dec. 14, 1984). The exemptions are as 
follows:

        (1) plain surface fabrics, regardless of fiber content, 
        weighing 2.6 ounces per square yard or more; and

        (2) all fabrics, both plain surface and raised-fiber surface 
        textiles, regardless of weight, made entirely from any of the 
        following fibers or entirely from combination of the following 
        fibers: acrylic, modacrylic, nylon, olefin, polyester, wool.

    Many plain surface fabrics containing spandex fiber are already 
exempted from testing due to fabric weight.
    In apparel fabric, spandex fiber usually appears as a small 
percentage of total fiber and it is typically used in combination with 
other fibers to add ``ease'' or form-fitting properties. The extent to 
which spandex fiber may affect the flammability performance of garments 
constructed of otherwise-exempt-fiber fabrics is unknown; the industry 
has not provided sufficient data from their own flammability testing to 
justify amending the Standard to include spandex in a fiber exemption. 
The Commission does not have evidence to support the inclusion of 
spandex as an ``exempt fiber'' and would welcome new data if the 
industry can provide it. If the Commission were to determine that there 
was a need for a study on the flammability of spandex fiber in 
combination with the other exempt fibers, it could direct the staff to 
proceed with such an investigation.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                         Hon. Inez M. Tenenbaum
    Question 1. Ms. Tenenbaum, given that CPSC has fewer than 500 
employees and that the agency is charged with ensuring the safety of 
over 15,000 types of consumer products, I would like to know your 
thoughts on how CPSC can leverage its resources. You note in your 
testimony that the CPSC is working with other agencies such as the 
Customs and Border Protection on ensuring the safety of imported goods. 
As a former attorney general, I would like to ask how you are working 
with state attorneys general to help ensure compliance with consumer 
product safety rules. One idea that Commissioner Robert Adler mentioned 
during his Senate confirmation process was having CPSC potentially host 
regional conferences of state attorneys general to raise awareness 
about product safety issues. Are any such conferences or regional 
meetings planned?
    Answer. Shortly after both Commissioner Adler and I joined the 
Commission, the CPSC hosted in October of 2009 a conference of 
representatives of the state attorneys general responsible for consumer 
protection of product safety issues. At that meeting we agreed to hold 
a monthly conference call to share information and raise awareness 
regarding Commission product safety priorities. Those conference calls 
have been successful and will continue in FY 2011. We also recently 
held a training session for interested state AG offices on 
investigating children's products for lead and cadmium hazards. There 
is a second in person follow-up meeting planned for early Spring 2011.

    Question 2. Do you have other ideas about cooperating in other 
areas to ensure consumer safety?
    Answer. In September 2010, the Commission voted to create the 
Office of Education, Global Outreach, and Small Business Ombudsman, an 
office I envisioned in my first year as Chairman. The office will make 
the CPSC more accessible to stakeholders and will play a vital role in 
helping the CPSC fulfill its mission of protecting the public from 
unnecessary risks of death and injury from consumer products. The 
principal function of the office will be to coordinate and provide 
education and outreach activities to various domestic and international 
stakeholders, including foreign governments, manufacturers, retailers, 
small businesses, and consumers. To carry out this mission, the new 
office will invite partnerships with colleges and universities, state 
and local governments, nonprofit organizations, standards making 
organizations, and others to enhance the CPSC's ability to provide 
research and training for stakeholders on regulatory and safety 
standards and best practices, which in turn will result in safer 
products.
    The CPSC has been working with the states and others to come up 
with creative ways to raise awareness about product safety issues. For 
example, we have worked collaboratively with the American Academy of 
Pediatrics to produce a video on crib safety for use with new parents 
in hospitals and pediatricians offices. I would also like to work with 
the states to ensure that day care licensing codes are revised to 
require recall checks to ensure products used in those facilities have 
not been recalled.

    Question 3. Chairman Tenenbaum, since passage of the landmark CPSIA 
legislation, does the CPSC now have the resources, authority, and 
cooperation from other agencies that it needs to protect our children 
from harmful and tainted products imported from foreign countries?
    Answer. In the last couple of years the CPSC has received a 
substantial increase in appropriations, and I am extremely grateful for 
these additional resources. Since my arrival at the Commission these 
resources have been put to work of a number of critical initiatives, 
including increasing CPSC Import Surveillance Division staff at ports 
of entry, a new CPSC testing facility, and investigating several new 
and emerging areas of potential consumer product safety hazards.
    Having said that, it is important to note that the CPSC is still 
only has half the staffing that is possessed at its peak in 1980. We 
have made great strides since passage of the CPSIA, but additional 
resources would be welcomed.

    Question 4. Chairman Tenenbaum, thank you for your assurance that 
the CPSC will carefully review the issue of football helmet safety, 
particularly for young children and high school athletes.
    In addition to the fact that no football helmet standards exist for 
youth helmets and for addressing concussion risks, I am concerned that 
some safety warning labels for helmets are not clearly visible and 
legible. For example, new and used football helmets are sold with 
warning labels placed underneath padding inside the helmet where they 
are not fully visible. My understanding is that the CPSC has provided 
clear guidelines about the content, legibility, and visibility of 
safety warning labels for other children's products and consumer 
products. Will you include a review of the adequacy of current warning 
labels as you look into the issue of football helmet safety?
    Answer. As indicated during my oral testimony, CPSC has fully 
engaged NOCSAE in furtherance of our monitoring of their voluntary 
standards process. Labeling is certainly included in the areas we are 
exploring. We share the desire that labels, both in terms of substance 
and location, provide meaningful and effective warnings.
                                 ______
                                 
Response to Written Questions Submitted by Hon. Kay Bailey Hutchison to 

                         Hon. Inez M. Tenenbaum
    Question 1. As you know, Section 103(a) of the CPSIA requires the 
placement of tracking labels on all children's products and their 
packaging, to the extent practicable. In its July 2009 Statement of 
Policy regarding enforcement of this provision, CPSC staff indicated 
that products sold through bulk vending machines would not need to be 
individually marked, though the package or carton the products are 
shipped in would. The Statement of Policy further noted that ``the 
Conference Report [accompanying the CPSIA] recognized that marking each 
individual product in such circumstances may not be practical. See H.R. 
Rep. No 787, 110th Cong., 2d Sess. 67 (2008).'' However, the Commission 
has not provided any explicit regulatory exclusion from Section 103(a) 
for bulk vended products. Will the CPSC pursue enforcement actions 
against bulk vendor suppliers, operators or retail establishments for 
the absence of tracking labels on bulk vended products? Further, can 
you please assure the Committee that the CPSC will maintain this 
position should any state attorney general or other entity seek to 
enforce Section 103(a) against bulk vended products?
    Answer. In the July 2009 Statement of Policy, CPSC staff stated 
that bulk vended products would not have to be individually marked. The 
Office of Compliance is following this policy as stated. Staff will 
consider enforcement action, however, if outer containers were not 
appropriately marked with the required information.

    Question 2. According to an August 2010 ABC news report, the 
American National Standards Institute (ANSI) found that earlier test 
results for 4 pool drain covers by 3 brands--Aquastar, Paramount, and 
AFRAS--were unreliable and that use of the covers could result in 
serious injury or death to consumers. In the article, the CPSC 
commented that it was investigating the matter. Please provide an 
update on the investigation and what the Commission has found to date.
    Answer. After learning of possible anomalies in the testing of 
certain pool drain covers, the Commission took several steps to 
investigate. On September 3, 2010, the Commission issued subpoenas 
requesting test data from three independent labs involved in drain 
cover testing, rating, and certification. This request produced over 
17,000 pages of technical documents for staff review, which is 
currently underway.
    CPSC also contracted with a third-party testing laboratory to have 
the identified suction outlet covers tested (CPSC Contract # S-10-
0108). CPSC laboratory staff witnessed the testing to observe the test 
facility, the test procedures, and the methodology of different 
technical staff conducting the tests. The results of testing have been 
reported by the contractor and staff is reviewing the report.
    These results will be used to discuss any ratings issues with 
manufacturers of the identified product whose rating is questionable. 
In the event that testing results for certain covers indicate any 
substantial product safety hazards, the Commission may pursue a recall 
or other corrective action against the manufacturer of the specific 
cover.
    In addition, the CPSC laboratory is also conducting its own 
independent testing of the identified suction outlet covers and will 
compare results with those obtained by the contractor as well as those 
obtained by the original third-party certifying laboratories. These 
results and review of the procedures will also be used to develop 
guidance for future testing and rating of suction outlet covers by 
third-party certifying laboratories.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Roger F. Wicker to 
                         Hon. Inez M. Tenenbaum
    Question 1. What can you tell us about the impact of the CPSIA on 
small businesses? Even though the CPSIA did not require the Commission 
to perform cost-benefit analyses of the rules it promulgates, many of 
the concerns raised from small businesses and from Members of Congress 
since the law passed have been based on the need for this very 
information--specifically, the law's economic impact and unintended 
consequences. Does the Commission have quantitative data to determine 
what the impact has been, and what the impact will be in the future as 
more requirements under the law come into effect?
    Answer. While it is true that CPSIA does not contain a separate 
cost-benefit analysis provision, the Commission is still required to 
perform a regulatory impact analysis (pursuant to the Regulatory 
Flexibility Act) of each significant new CPSIA rule presented for the 
Commission's consideration. In some cases, the staff has concluded that 
the rules could have significant adverse impacts on substantial numbers 
of small businesses. In fact, CPSC quantitative data on the use of 
cribs in child care facilities and public accommodations (many of which 
are small businesses) was recently utilized by the Commission to decide 
how to best apply the new rule on mandatory crib standards to child 
care facilities and places of public accommodation as required by the 
CPSIA. Assisted by this data, the Commission gave child care facilities 
and places of public accommodation 18 months after the effective date 
of the new crib safety rules to come into compliance with these new 
standards. This 18 month compliance period will help to ensure that 
children benefit from safer cribs, while at the same time preventing a 
serious impact on these kinds of small businesses and causing a 
potential shortage in available child care for working families.
    The Commission is certainly cognizant of and sensitive to the 
impact of the CPSIA on testing and compliance costs for small 
businesses. To that end, the Commission has sought to ameliorate the 
financial burdens through the exercise of sound discretion where the 
Commission believed that Congress had provided the Commission with that 
ability and where such accommodations could be shown not to have an 
impact on product safety.
    One example of these efforts is the Commission's regulation 
exempting certain types of products from mandatory lead testing. In 
this case, the Commission met with the business community, examined 
their specific claims that certain categories of pure products--like 
certain woods, textiles, and inks--would never contain violative levels 
of lead in them, and granted exemptions for those categories after 
independent CPSC analysis. Another example is the Commission's 
enforcement policy concerning lead in surface coatings and lead content 
that allows for the use of properly tested and certified component 
parts in lieu of final product testing. Both of these examples have 
provided some relief for small businesses in their sourcing and 
manufacturing of products.

    Question 2. Does the Commission have any plans to assess the 
negative impacts of the law, and to take necessary actions to alleviate 
these burdens before they eliminate any more jobs?
    Answer. The Commission has always maintained an open door policy to 
listen to the concerns of industry and small businesses--and the 
establishment of the new full-time Small Business Ombudsman is the 
latest way that the Commission has sought to listen to and address the 
concerns of small businesses. As CPSIA does not distinguish between the 
sizes of businesses that must comply with the law, the Commission does 
not have plenary power to take actions that may alleviate the burdens 
of compliance on small businesses specifically.
    Nevertheless, as noted above, the Commission is required to conduct 
regulatory flexibility analyses on each significant rule, which assess 
the potential impacts of the rules on small businesses. The Commission 
has, and will continue, to look at areas, like the limited lead 
exemptions and the component part enforcement policy rule noted above, 
to assist small businesses and others, where possible and discretion 
allows.

    Question 3. You mentioned at the hearing the creation of a full-
time Small Business Ombudsman to serve the Nation's small manufacturers 
in the area of product safety. How will this new position address the 
concerns of small businesses? Do you believe that this will be enough 
to alleviate their expressed concerns?
    Answer. The full-time Small Business Ombudsman is addressing the 
needs and concerns of small businesses in many ways. As you heard on 
December 2, 2010, from Ms. Jill Chuckas of the Handmade Toy Alliance, 
the Small Business Ombudsman has already been working very closely with 
small businesses and representatives of small business.
    The Ombudsman will serve small businesses through the provision of 
regulatory and technical guidance to small business inquiries in a 
timely manner. Furthermore, the Ombudsman will develop educational 
materials to provide plain English explanations of Federal consumer 
product safety requirements. The Ombudsman has already fielded many 
inquiries where he has been able to provide concise, clear guidance as 
to the regulatory requirements and the response from those businesses, 
and the business community in general, has been very positive.
    The Ombudsman has also made himself accessible for small businesses 
and their representatives to raise their concerns with the knowledge 
that the Ombudsman will follow up with the appropriate agency employees 
to seek a solution. We believe that the creation of the Ombudsman 
position will be helpful for the Commission to be kept current of small 
business issues and to find new ways of partnering with the small 
business community to develop creative and effective solutions within 
the confines of the law.

    Question 4. The Commission's stay on third-party testing for lead 
content is scheduled to lift in February. Is the Commission prepared to 
move forward with lifting this stay of enforcement?
    Answer. The Commission is currently considering several petitions 
and requests, including one from the Handmade Toy Alliance (HTA), for a 
continuation of the stay of enforcement for third-party testing of lead 
content. In considering these requests, the Commission will carefully 
consider the views and concerns of all impacted stakeholders.

    Question 4a. Do you believe that the health of children has been at 
greater risk because of this stay of the third-party testing 
requirements?
    Answer. Commission staff has no data at this time to suggest that 
the risk to the health of children has changed either positively or 
negatively as a result of the stay of the third-party testing 
requirements.

    Question 5. Do you believe that businesses have been given the 
information necessary to comply with this requirement? Have they been 
given enough time to incorporate necessary changes to comply with the 
requirement by the February deadline?
    Answer. The third-party testing requirements of the CPSIA have been 
communicated to the business community. Since August 2008, CPSC staff 
have met with various industry associations numerous times and provided 
multiple training seminars and webinars on the new requirements of the 
CPSIA in an attempt to help industry prepare for the changes brought 
about by the CPSIA. As one example, on December 10-11, 2009, the 
Commission held a two-day workshop to discuss issues relating to the 
testing, certification, and labeling of certain consumer products 
pursuant to section 14 of the CPSA (see 74 Fed. Reg. 58611 (November 
13, 2009)).
    As both Ms. Jill Chuckas and Mr. Steve Lamar stated in response to 
questioning from Senator Pryor at the December 2, 2010, hearing, CPSC 
Commissioners and staff have been fully engaged with industry, 
providing training workshops around the U.S. and the world and being 
responsive to the issues and concerns facing industry as they move 
forward with meeting the requirements of the CPSIA. The Commission is 
committed to continuing to meet with and educate manufacturers and 
importers as the remaining CPSIA regulations are developed and 
implemented.
    With regard to industry being given enough time to incorporate 
necessary changes to comply with the lifting of the stay in February, 
it should be noted that the initial stay of enforcement was issued on 
February 9, 2009, to allow industry time to make the necessary changes. 
For those products that have been covered by CPSC's stay of 
enforcement, there has always been a requirement that the products be 
in full compliance with all applicable product safety rules.
    Furthermore, the only way to know that a product complies is to 
test the product or the components of the product. Many manufacturers 
and importers have been testing children's products, at the request of 
their customers, for many months. A full 24 months will have passed 
when the Commission takes up the matter of lifting the stay in February 
2011.

    Question 6. Is the Commission going to consider extending the stay 
in order to ensure that the affected businesses are adequately prepared 
and that there are enough resources to prevent a negative impact on the 
businesses affected? If so, when do you plan on doing so?
    Answer. As noted above, the Commission is currently considering 
several requests, including one from the Handmade Toy Alliance (HTA) 
for a continuation of the current stay. The Commission is carefully 
considering the views of all stakeholders and will rule on the 
petitions and requests as soon as possible.

    Question 7. The CPSIA draws a clear distinction between general 
product safety rules and children's product safety rules. Yet the 
Commission has chosen to apply the requirement of third-party testing 
to all children's products under the general product flammability 
rules. Can you tell us why this decision was made?
    Answer. The Commission has been consistent in its application of 
third-party testing requirements to children's products subject to 
consumer product safety rules. The phrase ``children's product safety 
rule'' is clearly defined by Congress and has been consistently 
interpreted by the Commission to include rules of general applicability 
as well as those rules that specifically address hazards unique to 
children. Substituting the actual definition of ``children's product 
safety rule'' into the language of section 14(a)(2) of the Consumer 
Product Safety Act (CPSA) best demonstrates the statute's direction to 
the Commission.
    When read with the definition of ``children's product safety rule'' 
inserted, section 14(a)(2) reads:

        [B]efore importing for consumption or warehousing or 
        distributing in commerce any children's product that is subject 
        to ``a consumer product safety rule under this Act or similar 
        rule, regulation, standard, or ban under any other Act enforced 
        by the Commission, including a rule declaring a consumer 
        product to be a banned hazardous product or substance,'' every 
        manufacturer of such children's product . . . shall submit 
        sufficient samples of the children's product . . . to a third-
        party conformity assessment body . . . to be tested.

    This explicit definition of ``children's product safety rule'' 
referenced in section 14(a)(2) of the CPSA is plain and unambiguous in 
that third-party testing is required for any children's products 
covered by a consumer product safety rule, including standards of 
general applicability. This is consistent with the Commission's 
unanimous decisions to require third-party testing of children's all-
terrain vehicles, bicycles, and bicycle helmets. These three 
regulations are also rules of general applicability, and the Commission 
has voted unanimously to require third-party testing for children's 
versions of these products. Thus, in addition to the clear definition 
of the statutory term ``children's product safety rule,'' it is also 
inconsistent with the Commission's unanimous votes requiring third-
party testing for general standards pertaining to youth all-terrain 
vehicles, bicycles, and bicycle helmets to not also require third-party 
testing for children's products subject to the general standards 
pertaining to flammability.

    Question 8. The flammability standards have been in place with 
testing protocols for adult and children's products for some time. Yet 
the Commission has chosen to apply this additional third-party testing 
requirement to children's products under those rules. Is there any 
evidence that the products affected by this ruling, such as carpets or 
vinyl plastic, were unsafe under the prior testing regime and needed to 
be subjected to third-party tests to protect children?
    Answer. CPSC's 2005-2007 Residential Fire Loss Estimates, dated 
August 2010, presents estimates of consumer product-related fire losses 
that occurred in U.S. residential structure fires attended by the fire 
service. The estimates were derived from data for 2005 through 2007 
provided by the U.S. Fire Administration's (USFA) National Fire 
Incident Reporting System (NFIRS) and the National Fire Protection 
Association's (NFPA) Survey of Fire Departments for U.S. Fire 
Experience.
    The estimated residential structure fires attributed to floor 
coverings (as item first ignited) such as carpets and rugs, averaged 
4,700 from 2005 through 2007. The estimated residential structure fire 
deaths attributed to floor coverings (as item first ignited) for this 
period averaged 100, with injuries averaging 280. The estimated 
residential structure fire property loss attributed to floor coverings 
(as item first ignited) for this period averaged $151.4 million. It 
should be noted that the Commission's residential fire data do not 
differentiate children's product vs. non-children's products for 
carpets and rugs, mattresses and mattress pads, or apparel. A special 
study would be needed to try to obtain information on the involvement 
of adult versus children's versions of these regulated products as the 
first item ignited.

    Question 8a. Is there any evidence that children's versions of rugs 
or other affected products are in more danger than adult versions of 
those products to necessitate this additional testing standard?
    Answer. The Commission's residential fire data do not differentiate 
between children's product and non-children's products for carpets and 
rugs, mattresses and mattress pads, or apparel. A special study would 
be needed to try to obtain information on the involvement of adult 
versus children's versions of these regulated products as the first 
item ignited.

    Question 8b. Isn't an adult version of an affected product more 
likely to be subjected to a cigarette or some other igniting source?
    Answer. The Commission does not have data to support this 
assertion.

    Question 9. As I noted in my opening statement, I have many 
constituents who continue to suffer from the effects of tainted drywall 
that was installed after Hurricane Katrina. Mississippi has the third 
highest number of reported cases in the Nation. I know the Commission 
has been involved in the research into the health impact of this 
drywall. Can you update us on the status of the Commission's health 
investigations, and what determinations you have been able to make to 
this point?
    Answer. The most frequently reported symptoms are irritated and 
itchy eyes and skin, difficulty in breathing, persistent cough, bloody 
noses, runny noses, recurrent headaches, sinus infection, and asthma 
attacks. Since many consumers report that their symptoms lessen or go 
away when they are away from their home, but return upon re-entry, it 
appears that these symptoms are short-term and related to something 
within the home.
    The staff of the CPSC and the Centers for Disease Control and 
Prevention (CDC) agree that the levels of sulfur gases detected in the 
affected homes in the CPSC's fifty-one home study were at 
concentrations below the known irritant levels in the available 
scientific literature. It is possible, however, that the additive or 
synergistic effects of these and other compounds in the subject homes 
could potentially cause irritant effects to consumers. It is also 
possible that other exposures exist in these homes that could be 
causing these complaints independent of the drywall.
    Our own investigation into deaths of consumers associated with 
homes that were reported to contain problem drywall found no evidence, 
based on the limited data available, to support a connection between 
drywall and the deaths. CDC also conducted an independent review of 
this limited data, which consisted of available medical records. We 
have received a report from CDC on their review, and will release it as 
soon as CPSC staff have reviewed the report. We have also requested the 
CDC to undertake a comprehensive study of any possible long-term health 
effects resulting from exposure to problem drywall. I would refer you 
to CDC for any questions regarding any further work by that agency in 
this area.

    Question 10. What are the Commission's plans for future involvement 
with tainted drywall and the affected homeowners?
    Answer. The Commission is continuing to engage with the Chinese 
government and Chinese manufacturers to reach a fair and equitable 
settlement for American consumers that have been impacted by 
contaminated drywall produced by Chinese manufacturers. On October 25, 
2010, I met personally with my Chinese counterpart, Mr. Zhu Shuping, 
Minister, General Administration of Quality Supervision, Inspection and 
Quarantine (AQSIQ) in Shanghai and spoke with him about the need for 
further dialogue and movement in this area. On January 10, 2011, I had 
another follow-up meeting with the AQSIQ Minister in Beijing, and again 
restated my call for a fair and just resolution of the issue by the 
responsible Chinese manufacturers.
    We are also continuing to engage with private parties involved in 
the Chinese drywall multidistrict litigation (MDL) in New Orleans, 
Louisiana. I was pleased that the Federal court and the parties relied 
on our scientific findings to help develop a demonstration program paid 
for by the responsible manufacturer to remediate at least 300 homes in 
the Southeast. This demonstration program was part of a partial 
settlement agreement reached on October 14, 2010, and I am hopeful that 
it will be expanded in the near future to cover other impacted 
homeowners.
    As the lead Federal agency in this investigation, we will also 
continue to work with our sister agencies as they examine any possible 
long-term health effects of the problem drywall and as our sister 
agencies and other interested stakeholders work with the private sector 
to develop more commercialized remediation methods.
    Finally, we are working with ASTM International, a voluntary 
standards development organization, on development of standards to 
address the corrosive emissions from drywall and on affixing tracking 
labels to ensure that drywall is more easily identifiable. We believe 
that both standards will help to protect against future occurrences of 
this type and, if they were to occur, to quickly address any issues in 
a targeted and expeditious manner.

    Question 11. At the end of November the Commission passed the final 
implementing rule for the public database required under the CPSIA. 
While the law specified who can submit reports of harm, the 
Commission's rule expands this list by defining consumers and public 
safety entities as essentially anyone who wants to submit a report--
even if the submitter does not know who was harmed, the particular 
product involved, and did not see the incident occur. Therefore, as 
opposed to the list created by the statute, submitters are no longer 
limited to people who could have first-hand knowledge of the incident. 
Why was this expansion done?
    Answer. In section 212 of the CPSIA, Congress gave the Commission 
the ability, in implementing the Database, to fill the gaps in defining 
statutory terms such as ``consumer'' and ``public safety entity.'' 
Based on how the CPSIA amended the CPSA, I believe that Congress 
intended the public to have access through this Database to as much 
information as possible concerning the safety of consumer products.
    To have narrowly defined those categories in the final rule, 
particularly in the way stated in the alternative proposal offered by 
Commissioners Nord and Northup, would have been contrary to the statute 
and the overall goal of consumer access. For example, the alternate 
proposal would have disallowed groups such as the National Association 
of State Fire Marshalls from reporting incidents in the database. These 
groups are often technical experts in public safety matters, and often 
gather extremely valuable information concerning product safety 
incidents. It also would have prohibited anyone, including the parents 
of Danny Keysar (who was strangled in a defective portable crib in 
2008) and the child care facility workers where he tragically died from 
reporting his tragic death through the Database. I strongly believe 
that this type of valuable data, from these kinds of reliable sources, 
should be available to the public through the Database.

    Question 11a. How will allowing individuals who do not have first-
hand knowledge of the incident improve public safety and increase the 
reliability of information in the database?
    Answer. As stated above, the alternate proposal put forward by 
Commissioners Nord and Northup would have disallowed many public safety 
groups with years of technical experience in public safety reports from 
making reports. In addition, the proposal may have also restricted the 
ability of parents whose children are injured by consumer products in 
environments outside of the home (such as schools and child care 
facilities) from making reports just because they did not directly 
observe the specific incident leading to the injury. Additionally, it 
would render the ability of physician and first responders, from whom 
we currently receive much reliable data, and who fall under certain of 
the categories of submitters Congress expressly included in section 
212, from making a report because they did not directly observe the 
specific incident leading to the injury. I do not believe such a result 
was intended by Congress or contributes to overall public safety.

    Question 12. The intention of the database is to provide useful 
information to consumers. Commissioner Northup's substitute amendment 
included provisions to improve the accuracy of the data submitted by 
requiring the inclusion of additional information. This amendment was 
rejected by a majority vote of the Commissioners. Can you explain your 
opposition to adding more required fields to the database in order to 
improve the data's accuracy and usefulness?
    Answer. The information requirements for submissions to the 
Database were carefully crafted to ensure the accuracy of Database 
submissions without creating barriers that are unduly burdensome to 
consumers. Overall, I believe the Commission struck the correct balance 
in requiring the information fields that were detailed in the final 
rule.

    Question 13. A central concern with the CPSIA remains that it takes 
away the Commission's ability to assess the risk presented by a 
product. The law focuses on the content of lead in a product, not the 
risk of negative health effects from even limited exposure to that 
lead. Do you believe that there is a risk posed to the health of 
children from exposure to many of the products that are affected by the 
lead limits in the law, such as ATVs, books, pens, school desks, 
furniture, or furniture hardware (i.e., the nuts and bolts that hold 
the furniture together)?
    Answer. Lead is a potent neurotoxin that can cause permanent and 
irreversible brain damage in children. The scientific and pediatric 
community has thoroughly studied the issue of children's exposure to 
lead and is near unanimous in the opinion that there is ``no known safe 
level of lead.'' Even low-level lead exposure has been shown to affect 
brain function, lower intelligence, and cause behavior problems and 
poor school performance.
    Throughout my tenure as Chairman of the CPSC, I have urged 
manufacturer's of children's products to ``get the lead out.'' The 
presence of lead in children's products is controllable and where lead 
is not necessary, it should not be included in a children's product.

    Question 14. You voiced support for a functional purpose exemption 
to the lead standard at the hearing, yet you also pointed to literature 
that says there is no safe level of lead. How do you reconcile these 
conflicting viewpoints?
    Answer. As stated above, I believe--based on all available 
scientific and pediatric literature--that there is no safe level of 
lead for children. At the same time, however, I have learned that there 
are some circumstances where the exclusion of lead below the levels 
permitted by section 101 of the CPSIA is problematic. Accordingly, I 
have stated that it would be helpful for Congress to create a new 
exclusion to the section 101(a) lead limits that would allow some 
flexibility in cases where lead is required for a functional purpose 
and the elimination of lead in a specific component is not practicable 
or possible.
    The fundamental tenet underlying a ``functional purpose'' type 
exclusion is very simple: where lead serves no purpose and can be 
practicably removed or made inaccessible in children's products, the 
lead should be removed or made inaccessible to children.

    Question 14a. Do you believe a legislative fix is needed to allow 
exemptions from the lead content standard for all products that do not 
pose a health risk for children?
    Answer. As stated in my above response, I believe a functional 
purpose exception to the current section 101(a) lead content limits 
would be helpful.

    Question 15. The crib rule was mentioned briefly during the 
hearing. Can you please elaborate on the impact of the crib rule on 
child care centers due to the retroactive effects of the law?
    Answer. On December 15, 2010, the Commission adopted mandatory 
safety rules for full-size and non-full-size cribs. Between November 
2007 and April 2010, there were 36 deaths associated with crib 
structural problems, and I am confident that these new rules will stop 
further tragedies from occurring in the future.
    At the same time, however, the Commission was very cognizant of the 
impact that adoption of these rules might have on child care facilities 
and other places of public accommodation. During consideration of the 
rules, I urged building enough time into rule enforcement milestones 
not only to allow new crib inventory to reach the market but also to 
allow affected entities sufficient time to purchase new cribs.
    Under the final rule cribs sold in commerce must comply with the 
new requirements by June 28, 2011. Child care facilities and other 
places of public accommodation required to comply with the rule will 
have an additional 18 months to come into compliance--or until December 
28, 2012. In the unanimous Commission decision adopting these rules and 
compliance dates, I believe the Commission struck the right balance to 
ensure that children will benefit from safer cribs, while at the same 
time working to prevent a serious impact on smaller entities and a 
potential shortage in available child care for working families.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Johnny Isakson to 
                         Hon. Inez M. Tenenbaum
    Question. Under your stewardship and that of Commissioner Nord, you 
have both put forward stays to the so-called third-party testing and 
certification requirement under the CPSIA. It is now due to take effect 
in February of 2011. The final rules for testing and certification are 
still not published, but I am hearing from my constituents that there 
is confusion in the industry how to implement these requirements. This 
level of confusion, combined with the 2/11 date, will in my opinion add 
major new costs to manufacturers in the United States and this will 
likely lead them to move their operations overseas or even close, at a 
time when we are at near 10 percent unemployment. Wouldn't it make 
sense to adopt another one year stay of this requirement and work with 
Congress and the stakeholders to develop a workable testing regimen 
that the impacted industries can effectively work with that would NOT 
drive manufacturers out of business or overseas?
    Answer. As noted in my above response to Senator Wicker, the 
Commission is currently considering several requests, including one 
from the Handmade Toy Alliance (HTA) for a continuation of the current 
stay. The Commission is carefully considering the views of all 
stakeholders and will rule on the petitions and requests as soon as 
possible.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                          Hon. Anne M. Northup
    Question 1. Is the marketplace safe for shoppers this holiday 
season?
    Answer. The safety of every product on the market at any given time 
is unknowable, and the complete elimination of all unsafe products for 
all time is unachievable. The CPSC's mission is to spend its resources 
as efficiently and effectively as possible to identify and remove from 
the marketplace consumer products that present a demonstrable risk of 
injury. Data available to the CPSC to identify unsafe products and to 
measure changes in product safety over time can help it gauge the 
success of its efforts, and to reallocate its resources when necessary. 
But the utility of such data is limited. One reason is that many 
injuries that occur while using a product are unrelated to a product's 
safety. Another reason is that it takes years to gather data, and 
comparisons over time periods can therefore only support tentative 
conclusions. Certainly the available data does not support the 
conclusion that the CPSIA has made products safer. Rather, directing 
greater resources toward identifying and removing actual risks, rather 
than regulating to fixed standards unrelated to actual risk, would be 
more effective.
Toy-Related Deaths and Injuries
    The Commission touted its annual report on toy fatalities and 
injuries as evidence that toys are safer this holiday season.\1\ 
Unfortunately, this press release was quite misleading. Data on toy-
related deaths and injuries illustrates the difficulty in drawing 
conclusions regarding changes in relative risk.
---------------------------------------------------------------------------
    \1\ http://www.cpsc.gov/cpscpub/prerel/prhtml11/11042.html.
---------------------------------------------------------------------------
    First, the Commission's data on deaths related to toys is not 
complete, and always lags by several years. As you can see in the first 
set of footnotes on page four of ``Toy-Related Deaths and Injuries, 
Calendar Year 2009'' (http://www.cpsc.gov/library/toymemo09.pdf), the 
death certificate data for 2009 was only 37 percent complete. For that 
matter, the death certificate data for 2007 was only 85 percent 
complete, as of 2009. The number of deaths has always increased in the 
out years as further data is collected. Thus, it is simply too early to 
tell what the number of deaths related to toys will be for 2009, or how 
it will compare to previous years.
    Second, it is important to remember that the incident data reflects 
toy injuries and deaths that are ``associated with, but not necessarily 
caused by'' toys. In other words, the hazard may have nothing to do 
with a consumer product. For example, in the tables on pages four and 
five of the 2009 report, the data on deaths related to toys show that a 
number of deaths for children age 15 and under involved drowning 
related to tricycles or powered riding toys. These deaths likely 
occurred around a pool or other body of water while the child was using 
the toy, but it is unlikely that the toy was defective and caused the 
accident. Thus, while such incident data may point to the broader 
hazard of drowning, it does not establish that tricycles and motorized 
toys are unsafe. So while the data collected on these broad areas of 
concern are important for the Commission to understand as we direct 
resources toward public relations campaigns and enforcement efforts, it 
is much less relevant in judging whether toys are safer.
    Third, this 2009 report shows that there were an estimated 250,100 
toy-related injuries treated in U.S. hospital emergency departments 
that year, which is significantly higher than the annual average of 
228,200. So while the incomplete, preliminary data for deaths shows a 
decrease, the number of reported injuries associated with toys has 
actually gone up. The estimated number of emergency department injuries 
for 2008 is 235,300. Additionally, the statistics indicate that the 
injuries in 2008 and 2009 may be slightly more serious. Ninety-six 
percent of the injury victims were treated and released in both the 
2009 and 2008 reports, whereas in 2007, slightly more (97 percent) were 
treated and released.\2\ Thus, the changes in injury data from 2007 
through 2009 do not support the theory that toys are safer today than a 
few years ago.
---------------------------------------------------------------------------
    \2\ Risana Chowdhury. ``Toy Related Deaths and Injuries, Calendar 
Year 2007,'' Consumer Product Safety Commission. Pg. 6: http://
www.cpsc.gov/library/toymemo07.pdf.
---------------------------------------------------------------------------
CPSIA
    There is no evidence that the CPSIA will significantly contribute 
to increased product safety. This is because the major requirements of 
this law are not related to risk. Recent modifications to products due 
to the CPSIA may have made the products more expensive, but have not 
necessarily made them safer. For example, while lead-free zippers may 
be more readily available in the marketplace today than a few years ago 
due to the current 300 ppm lead content standard, there is still no 
evidence that touching or mouthing the stay of a zipper with a lead 
content higher than 300 ppm poses a lead risk to a child.
    The interim ban on certain phthalates ( 108(a)(1)), which are used 
to make plastics soft, is another requirement that is unrelated to 
risk. The Commission has already determined that the phthalates most 
commonly used in toys today (those included under the interim 
prohibition) did not pose a danger to children and, therefore, should 
not be federally regulated. Nonetheless, the CPSIA requires yet another 
Chronic Hazard Advisory Panel (CHAP) to study the issue de novo. And 
pending this new study--which could well obtain the same results as 
prior tests--the law bans them both prospectively and retroactively. 
Thus, a chemical that the Commission has studied and determined not to 
pose a risk, and that will now be studied again, is already banned from 
all toys and child care articles--a step clearly mandated without 
regard to risk.
    It is premature to gauge the safety impact of the CPSIA's 
requirement, effective early 2009, that the toy standard (ASTM-F963) 
become mandatory. The full scope of this requirement has yet to be 
implemented, because the Commission has not issued a Notice of 
Requirements to accredit labs that will test to this standard. Once the 
requirement is implemented, toy manufacturers will be obligated to send 
each component of each toy to a third-party lab to be tested to all 
applicable parts of the toy standard, potentially requiring numerous 
extra tests beyond lead and phthalates. But it also appears that the 
delay in implementation of these third-party testing requirements has 
not caused toys to be more unsafe than in previous years. So it may be 
preferable to forgo these costly testing requirements for toy 
manufacturers unless or until the Commission can actually show that 
they are beneficial in addressing a known risk.
Changing the CPSC's Mission
    As a Commissioner, I am concerned that we are spending so much time 
developing regulations unrelated to risk under the CPSIA that our 
attention will be diverted from focusing on genuine safety hazards. Our 
agency is charged with ``protecting the public from unreasonable risks 
of serious injury or death'' from consumer products--but we cannot 
fulfill this mission if our time is spent primarily enforcing the 
CPSIA, including its complex, non-risk-based, testing and certification 
requirements.
    Because the CPSIA's new requirements are not risk-based, 
manufacturers are spending time and money simply on ``compliance,'' 
rather than on improving their products to the benefit of consumers. In 
fact, many of these requirements amount to massive new paperwork and 
tracking systems, rather than actual modifications to the products 
themselves. The American Home Furnishings Alliance writes in a letter 
to Commissioners:

        ``. . . there has not been a corresponding benefit in the 
        improved safety of children's furniture for children. All the 
        representatives told you that their respective companies have 
        not had to change a single material they use in the 
        manufacturing of their children's product lines since they 
        began testing to CPSIA in 2008. . . . The testing is simply 
        being done to attempt to prove a negative.'' \3\
---------------------------------------------------------------------------
    \3\ Letter to Commissioners from the American Home Furnishings 
Alliance. November 8, 2010.

    Similarly, some industry associations have had very few, if any, 
safety violations and yet have to comply with onerous third-party 
testing, certification, tracking and labeling requirements that will 
not improve safety. The American Apparel and Footwear Association 
---------------------------------------------------------------------------
writes in their public comments on the Component Parts rule:

        ``As the CPSC continues to issue specific compliance 
        requirements, manufacturers become increasingly wrapped up in 
        ensuring compliance over ensuring product safety. All AAFA 
        members have had long-standing quality control programs in 
        place that have developed based on the product's, production of 
        the product's and the manufacturer's unique circumstances. 
        These programs are effective and do not need to be changed. To 
        demonstrate, only .0084 percent of all apparel and footwear 
        sold in the U.S. in 2008 were involved in a recall. Moreover, 
        most apparel and footwear recalls have been drawstring 
        violations--a compliance issue that results from lack of 
        information not lack of testing.'' \4\
---------------------------------------------------------------------------
    \4\ American Apparel and Footwear Association. Request for 
Comments. Docket No. CPSC-2010-0037 & CPSC-2010-0038. August 3, 2010.

    Given the Executive Order \5\ issued by President Obama on January 
18, 2011, directing agencies to roll back onerous regulations that have 
no safety benefit, I hope the Majority at least will consider 
approaching Congress to remove the law's third-party testing, 
certification and labeling requirements that are entirely unrelated to 
risk. The Commission always maintains the authority to impose in the 
future new testing requirements on any products where a true risk 
arises.
---------------------------------------------------------------------------
    \5\ http://www.whitehouse.gov/the-press-office/2011/01/18/
improving-regulation-and-regulato
ry-review-executive-order.

    Question 2. Has the agency seen a dramatic decline in toy recalls 
since 2008?
    Answer.

------------------------------------------------------------------------
                       Toy Recalls by Fiscal Year
-------------------------------------------------------------------------
                                               Number of
                      FY                        Recalls         QTY
------------------------------------------------------------------------
10                                                   44       8,389,276
------------------------------------------------------------------------
09                                                   50       1,785,626
------------------------------------------------------------------------
08                                                  172      12,246,170
------------------------------------------------------------------------
07                                                   63      26,375,370
------------------------------------------------------------------------

------------------------------------------------------------------------
                      TOTAL Recalls by Fiscal Year
-------------------------------------------------------------------------
                                               Number of
                      FY                        Recalls         QTY
------------------------------------------------------------------------
10                                                  428     124,700,000
------------------------------------------------------------------------
09                                                  465     229,500,000
------------------------------------------------------------------------
08                                                  563      60,700,000
------------------------------------------------------------------------
07                                                  472     102,200,000
------------------------------------------------------------------------

    A perennial question for this Commission has been whether it is 
good or bad to have fewer recalls. A 2004 report by Kids in Danger 
asserts that a decline in recall activity between 2000 and 2003 did not 
indicate that products were becoming safer. Rather, the consumer 
advocacy organization surmised that the decrease was due to changes in 
enforcement policy under then CPSC Chairman Hal Stratton. According to 
Kids in Danger, the decrease in recalls resulted from lax CPSC 
enforcement that ``increase[ed] hazards as the dangerous products stay 
on the shelves, and in homes.'' \6\
---------------------------------------------------------------------------
    \6\ Safety Shortcuts: Children's Product Recalls in 2003. Kids in 
Danger, February 2004. Pgs. 2, 11. http://www.kidsindanger.org/
publications/reports/2003_recallreport.pdf.
---------------------------------------------------------------------------
    But today, a decline in recall activity is suddenly a good sign--
and much better than the increase in recall activity that took place 
under Acting Chairman Nancy Nord prior to the passage of the CPSIA. 
Thus, it would appear that the significance of the agency's number of 
recalls is entirely subject to interpretation.
    In reality, recall data alone cannot conclusively establish whether 
products are safer or less safe than in previous years. On the 
contrary, one of the main reasons that the Commission's toy recall data 
was so high in Fiscal Year 2008 was the media attention surrounding 
several high-profile recalls. As a result, both industry and the 
Commission were aggressively testing every toy within their reach. As a 
result, more violative products were discovered and recalled.
    Today, our activities related to enforcement are focused much more 
broadly. Thus, the difference in recall numbers between FY 2008 and 
today prove only the obvious fact that the more resources the 
Commission expends searching for non-compliant products, the more such 
products it will find. The same is true for any law enforcement 
activity, whether it is the number of hours a policeman watches for 
speeders or the number of tax returns audited by the Internal Revenue 
Service; the more resources allocated, the more violations will be 
discovered.
Increased Activity at the Ports
    The Commission's new enforcement initiative at ports may be 
contributing to a decrease in recalls. Starting in Fiscal Year 2008, 
the Commission launched its Import Surveillance Division, which placed 
staff at U.S. ports to work closely with U.S. Customs and Border 
Protection (CBP) to identify and examine imported shipments of consumer 
products. Also, the Commission has embarked on several steps to improve 
our coordination with the CBP and to combine resources. Since that 
time, the number of imported products barred from entering the United 
States has increased. This does not necessarily mean that the decrease 
in recalls is due to an increase in the quantity of harmful products 
stopped at the ports, but increased vigilance on our part can only have 
a positive impact. I therefore applaud Chairman Tenenbaum for the 
oversight and direction she has provided in the Commission's efforts to 
better secure our ports against the importation of unsafe products. It 
is more effective and drastically more efficient for consumers, 
industry, and the government, for the CPSC to stop harmful products 
before they enter the country.

    Question 3. Has the agency seen a decline in the number of deaths 
of children under the age of 15?
    Answer. Regarding the recent data on toy-related deaths, it is too 
early to tell what the number of deaths related to toys will be for 
2009 and whether this number will be significantly different from 
previous years. As mentioned in the first answer, the Commission's 2009 
data on deaths related to toys is only approximately 37 percent 
complete.
    However, according to our staff's National Center for Health 
Statistics data, the number of consumer product-related deaths for ages 
0 to 15 dropped by over 17 percent, from 3,225 to 2,658, between 1985 
and 2007. Adjusting for changes in population, the death rate for this 
age group has dropped from 6.3 to 4.4 deaths per 100,000.

    Question 4. What advice can the CPSC offer to parents to help keep 
their kids safe from any potential product hazards this holiday season?
    Answer. Based on my experience as a CPSC Commissioner and as a 
mother of six, I am keenly aware of the dangers children can face from 
consumer products. One of the saddest parts of this job is the 
overnight incident reports that we receive on injuries and deaths of 
children.
    I would advise parents to be aware of the Commission's 
www.recalls.gov website or to sign up for recall updates through e-
mail. It is also important to provide age-appropriate gifts to toddlers 
and young children, to supervise their play, and to remember that most 
incidents can happen in a split second.
    Some of our most common incident data include drowning, which can 
happen not only in pools, but in bathtubs, hot tubs, toilets and even 
buckets of water. Drowning prevention is an important focus of the 
Commission, and I am proud to have participated in one of the 
Chairman's Pool Safely Campaign events in Washington, D.C. I hope that 
the Commission's education campaign on drowning prevention may extend 
to settings beyond just swimming pools.
    There are a number of other common hazards reported to the 
Commission and of which I would advise parents to be aware, such as 
choking hazards for children, including coins and batteries. 
Additionally, the Chairman launched a ``Safe Sleep Campaign'' to help 
educate more parents on crib safety, which I strongly support. Soft 
bedding placed inside of a crib is a significant hazard, because 
infants' neck muscles are not strong enough to adjust and they can 
suffocate. I have supported the Chairman's efforts to focus not only 
the safety of the structure of cribs but also the other, common hazards 
related to infant sleep.
    Finally, a database limited to first-hand accounts of verifiable 
incidents involving consumer products would provide an additional, 
valuable resource for parents. Unfortunately, as I explain in the 
answers that follow regarding the database, the rule passed by the 
Majority goes in the opposite direction and will instead make the 
public database mandated by the CPSIA of little use to consumers.

    Question 5. Do you support the Commission's safe sleep campaign?
    Answer. Yes. I support the Chairman's efforts to increase the 
Commission's focus on crib safety and to use our communications 
resources to educate the public about safe sleep for infants. In 
particular, I have been supportive of the Chairman's efforts to broaden 
the campaign to include not only education on the structure of cribs 
and dangers of drop-sides, but also the more general, unforeseen 
hazards not related directly to the crib's structure and hardware, such 
as soft bedding. As we reach new audiences with information about our 
recalls and the dangers of drop-side cribs, it makes sense to raise 
awareness of ALL the common dangers related to infant sleep.

    Question 6. If so, what role have you played in supporting the 
Chairman's initiative?
    Answer. I have often urged the Commission to do more to educate the 
public on broad-based safety hazards and through social media. One of 
my first suggestions as a Commissioner was to broaden our messaging by 
using posters in other languages, such as Spanish, and working through 
non-traditional groups, like churches, to increase our outreach to 
minorities and harder-to-reach populations. The Chairman's staff has 
done an excellent job using social media (online videos, text 
messaging, twitter, etc.) and other creative ways to broadcast the 
Commission's many safety messages, including the Safe Sleep Campaign. I 
continue to support these efforts.

    Question 7. When do you expect the Commission will issue a final 
rule on crib safety?
    Answer. The Commission, with my support, passed a final rule on 
full-size and non-full-size cribs on December 15, 2010.

    Question 8. Do you think it is important for safety advocacy groups 
or day care centers to be able to submit to the CPSC for inclusion in 
the database product safety complaints or incident reports?
    Answer. It is important for individuals with first-hand knowledge 
of incidents involving consumer products to be able to submit reports 
of harm to the new database. Groups or individuals with no direct 
knowledge of the incident, did not see it happen or do not even know 
the person that was harmed, should not be permitted or encouraged to 
submit incident reports to the database. There are several reasons why 
first-hand knowledge is essential, but the primary reason is accuracy. 
A database full of inaccurate reports from individuals who have second 
or third-hand information is not remotely helpful to consumers using 
the database to determine which consumer product they should purchase.
    Day care centers at which an incident of harm has occurred 
certainly should be permitted to report to the database. Day care 
centers and other child service providers also would have been 
permitted to submit reports under the alternative database rule that I 
introduced. Additionally, consumers of the product in question, health 
care professionals who treat the injured person, or emergency first 
responders at the scene should all be permitted to submit reports of 
harm to the database--and the statute requires all of these categories 
of submitters.
    However, advocacy groups and other second and third person 
reporters are not listed in the law as allowable submitters to the 
database, nor should they be. If they are not themselves consumers of 
the product that caused the incident of harm, or otherwise a first-hand 
witness (per the list of submitters in the statute), advocacy groups 
have no business inputting to a public database information that is 
intended to be a resource for consumers. Not only is adding advocacy 
groups as submitters contrary to the statute, but it invites dishonest, 
agenda-driven use of the database--diluting its usefulness for 
consumers. Advocacy groups, trial lawyers, other nongovernmental 
organizations and trade associations, all of which the Majority has 
added as allowable submitters, must serve their own agendas and lack an 
incentive to prioritize product accuracy in their reports of harm. By 
inviting such groups to input reports of harm (none of which have to be 
verified for accuracy), this Commission has all but guaranteed that the 
database will be a tool for policy agendas, lawsuits and trade 
complaints that will drown out information about product safety that is 
useful to parents. Why even have a taxpayer-funded database (at a price 
tag of $29 million, so far) that will be no more useful than an 
``Amazon.com'' or any of the other hundreds of websites where anyone 
can submit comments on a product?
    There are many advocacy groups and associations that serve a role 
in public policy, but may have no incentive to provide accurate 
information on a public database. For example, the National Fire 
Protection Association (NFPA) supports government-mandated sprinklers 
in new homes, a controversial policy. One cause of house fires is the 
use of cigarette lighters, which are consumer products. Thus, the NFPA 
has a strong incentive to add all reports of house fires caused by 
lighters to the Commission's public database. The more incidents in our 
database, the better case they can make that new fire prevention 
technology--which their members sell--should be mandated in homes.
    But what incentive does NFPA have to ensure that it correctly 
identifies the brand of lighter in an incident report: A lighter may 
appear to be the branded product of a particular manufacturer, but 
instead be a cheap counterfeit. The NFPA is interested solely in 
reporting house fire incidents; the particular cause is not relevant to 
its goal of promoting sprinklers. Meanwhile, the company identified in 
the report as the manufacturer of the cigarette lighter must defend 
countless inaccurate (or at least unverifiable) claims about its 
product. Such inaccurate and unverifiable information is of no value to 
a consumer seeking information on the safest type of lighter.
    I explained in my November 24 and April 22, 2010 statements that 
the Majority's interpretation of the statute is flawed because it has 
greatly expanded the list of allowable submitters to the database. This 
expansion goes against the statutory purpose that the database be 
``useful'' for consumers, and does not comport with Congress's 
discussion on the purpose of the law prior to its passage.\7\ Indeed, 
the Majority has expanded the list of submitters to such an extent that 
anyone can submit reports of harm--thereby rendering meaningless the 
statutory language listing permitted submitters.
---------------------------------------------------------------------------
    \7\ On the Senate floor, during consideration of the CPSIA on March 
5, 2008, Senator Pryor stated: ``We have tried to find something that 
is balanced, that provides information, but also has some filtering so 
we make sure erroneous information is not disseminated. But the goal of 
this provision is that the public has the right to know when products 
are dangerous.''
---------------------------------------------------------------------------
    The problems caused by the overly expansive list of submitters 
could have been reduced if reports of harm had to be verified, or 
simply verifiable, before being published. But unfortunately, the 
Majority rejected the proposals contained in my alternative database 
rule that would have made these reports more verifiable.
    One of my unadopted proposals would have required reporters of harm 
to include the victim's identity and contact information with a report 
(to be held confidential, as is current practice). Commission staff 
could then at least follow up with the victim in response to a 
manufacturer's claim of a material inaccuracy, in order to verify the 
report.
    In my alternative rule, I also included such additional required 
fields as the approximate date of purchase of the product and whether 
the product was purchased ``new'' or ``used.'' This information would 
have allowed consumers using the database to gauge the age of the 
products and know whether the product in question was the one currently 
in stores or is similar to the model they own. These proposals were not 
adopted by the Majority.
    Finally, while submitters to the database must check a ``self-
verification'' box to assert accuracy, this will do little to 
discourage or prevent inaccurate reports of harm. The final database 
rule merely asks the submitter of a report of harm to check a box 
stating that the report they are submitting is accurate ``to the best 
of their knowledge.'' The ``best'' knowledge of someone with no first-
hand knowledge is of little value. An individual or group without 
first-hand knowledge will likely not have the full story of what 
happened--including the exact type of product, the recent history of 
the product, or even the precise cause of the incident.

    Question 9. Do you think it is important for consumers to be able 
to scan for trends and patterns of potentially hazardous products in 
the marketplace by accessing this database so they can protect 
themselves and their families?
    Answer. It is important for Commission staff to be able to scan for 
trends and patterns of hazards, as they do today through our internal 
databases and other sources of information. After all, Commission staff 
is tasked with enforcing existing Federal standards and determining the 
need for new standards. What is important for consumers is to have 
access to accurate information. Consumers already have a variety of 
resources available to them on the Internet with all types of 
information on products for sale. More importantly, scanning for 
hazards will not be possible with this new database given that the 
Majority's database rule ensures that the database will not be an 
accurate source of information.
    There are a number of ways in which the new database could be 
unhelpful or misleading for consumers. Consider this scenario: Company 
A sells five million high chairs and Company B sells 5,000 high chairs. 
Company A has six incident reports on the database and the other has 
one incident report (all of which are unverifiable). Thus, a consumer 
could falsely conclude that Company A's high chair is less safe, even 
though simply due to the number of units it sold, it is more likely 
that people own that high chair--and more likely that reports on that 
high chair would make it into our database. Or, it is also possible 
that some of the reports about Company A's high chair actually 
pertained to older models of the high chair that are no longer for 
sale, which means the information may be entirely irrelevant for people 
using the database to look for safety information about current 
products on the market.
    As a consumer and a grandmother, I do virtually all of my research 
on baby products (e.g., regarding safety, quality and price) at the 
point of sale--usually on the website from which I am ordering, such as 
an ``Amazon.com.'' The hundreds of comments on these websites cover a 
broad array of useful information. But for most products, I would not 
slow down my research to look onto a government website for additional, 
equally unverifiable, information--particularly when I can see safety 
information right alongside all of the other information I am looking 
for (wear and tear, usefulness, and warranty information) at the point 
of sale or the retailer's website. All of these factors are useful to a 
purchaser.
    Trial lawyers or other groups with self-serving motives will use 
the Commission's database to look for potential trends and patterns of 
hazards. Under the Majority's database rule, these same groups may also 
submit to the database false and unverifiable reports to fuel a 
lawsuit. It is no coincidence that these groups are strongly in favor 
of this public database and of the Majority's interpretation of the 
statute, which expressly allows them to submit reports of harm.
    Because the Majority's database rule all but guarantees that the 
database will be flooded with inaccurate reports of harm, it will be 
less useful for Commission staff in determining hazard patterns than 
are the current, internal databases we have today. Frankly, this is one 
of my greatest fears--that Commission staff will be overwhelmed by 
inaccurate reports (or the reports that get picked up by the media) and 
unable to use their expertise to search objectively for genuine 
hazards. As the database is swamped with misleading or inaccurate 
reports, they will drown out the accurate ones.

    Question 10. Did you advocate for limitations on the information 
that could be included in the database? If so, why?
    Answer. As discussed above, I sought to limit the sources of 
information to those likely to be reliable; and, I sought to increase 
the scope of information that could be provided, in order to facilitate 
verification of the incident reports. The only area where I advocated 
temporarily withholding information received from an appropriate 
submitter concerned claims of confidential or inaccurate information.
    In the latter regard, I supported a valid and more useful 
interpretation of the statutory 10-day time-frame for evaluating claims 
of material inaccuracy. Under my interpretation, the brief 10-day 
window presents a strong incentive for manufacturers to submit any 
claims of material inaccuracy quickly, and for the information to go up 
on the database as soon as possible--that is, following the 10th day as 
long as there has been no claim of inaccuracy. However, if a 
manufacturer submits by the 10th day an adequately supported claim of 
inaccuracy, the Commission can and should withhold that incident until 
the claim is resolved. Under this interpretation, data is not limited 
in the database but better verified before it is posted. I refer you to 
my November 24, 2010 statement for further details.
    Notably, the Commission's Notice of Proposed Rulemaking on the 
database originally included an interpretation similar to mine. For 
example,  1102.26 of the NPR states: ``If a request for determination 
of materially inaccurate information is submitted prior to publication 
in the database, the Commission may withhold a report of harm from 
publication in the Database until it makes a determination.'' \8\ 75 FR 
29180. That language could not have been included in the NPR without a 
legal opinion supporting the permissibility of the policy choice. That 
the agency apparently believed at one time that this approach is 
legally permissible reflects, at a minimum, statutory ambiguity 
regarding the point.
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    \8\ The preamble of the NPR contains analogous language: ``If a 
request for determination of materially inaccurate information is 
submitted prior to publication in the database, the Commission may 
withhold a report of harm from publication in the database until it 
makes a determination.'' 75 FR 99, at 29161. And this: ``We propose 
that in cases where a claim of materially inaccurate or confidential 
information is under review, the Commission, in its discretion, may 
withhold a report of harm in part or in full until such a determination 
is made.'' 75 FR 99, at 29170 (Response to summary 26)(emphasis added).
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    Not surprisingly given the NPR, many if not most of the commenters 
assumed that incidents would not go into the Database pending the 
determination of a material inaccuracy claim. Although at least one 
commenter expressed the policy view that reports of harm should go up 
on the 10th day even when such claims are unresolved, no one--not even 
consumer groups--argued that the statute legally prohibits the agency 
from withholding reports from publication for the duration of its 
investigation. To the contrary, several commenters proposed a more 
detailed protocol for addressing claims of material inaccuracy, based 
on their understanding that reports would be withheld from publication 
while under review for accuracy. And yet the Majority's final rule now 
forbids delaying publication in those circumstances, and fails to 
establish any specific protocol for handling requests for 
determinations.
    Finally, it is helpful to remember that the Commission obtains 
information in addition to that which will be submitted to the public 
database, such as emergency room data, death certificates, etc. It is 
acceptable (and probably preferable) for the Commission to continue to 
absorb as much information on consumer products as it can--and this 
includes reports from advocacy groups, trial lawyers and trade 
associations. However, it is not necessary nor is it statutorily 
required that such information, particularly that which is neither 
accurate nor verifiable, also be posted on the public database. This is 
one area where my position on the database differs starkly from that of 
the Majority. I believe inaccurate information in a public database 
(with the official backing of ``.gov'') is not safety information; on 
the contrary, it is simply misinformation--and a waste of taxpayer 
resources.

    Question 11. Within the third-party testing regime, where is the 
Commission in its efforts to promulgate rules outlining appropriate 
testing protocols?
    Answer. On May 20, 2010, the Commission issued Notices of Proposed 
Rulemaking on (1) Testing and Labeling Pertaining to Product 
Certification (75 FR 28366), and (2) Conditions and Requirements for 
Testing Component Parts of Consumer Products (75 FR 28208). These 
proposed rules--referred to by the CPSC as the ``15-month rule'' and 
the ``component testing rule''--address, inter alia, the protocols that 
will govern third-party testing of children's products, including 
random sampling methods and the availability of component parts testing 
as a means to encourage compliance further up the supply chain and to 
provide manufacturers with more options. The Commission is just 
beginning to consider the final versions of these rules.
    The delay in finalizing these rules is of concern, because the 
Commission's previous stays on lead content testing were implemented 
principally based on the recognition that manufacturers would be unable 
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a 
reasonable period of time. If the stay is lifted prematurely, many 
small manufacturers, in particular, will be unable to afford to comply 
independently with the third-party testing requirement, and will stop 
making certain products or go out of business entirely.
    This link between finalization of the 15-month and component 
testing rules and the lifting of the stay was recognized by 
Commissioners of both parties. As explained in the Commission's 
February 2009 Federal Register notice, the stay on third-party testing 
of children's products for lead content was first implemented in 
response to ``confusion as to . . . whether testing to demonstrate 
compliance must be conducted on the final product rather than on its 
parts prior to assembly or manufacture . . . and what sort of 
certificate must be issued and by whom.'' 74 FR 6396 (February 9, 
2009). The stay was thus intended to provide the Commission time to 
promulgate new rules addressing, inter alia, ``production testing of 
children's products subject to third-party testing and certification . 
. . including random sampling protocols,'' so that ``the right tests 
are run on the right products without unnecessary and expensive 
testing.''
    During the December 2009 public briefings to consider whether to 
lift the stay, CPSC staff reported that the apparel component 
manufacturing sector was reluctant to initiate component testing while 
the breadth of the requirement remains unsettled, and that smaller 
manufacturers were unable to obtain component parts testing because 
suppliers were reluctant to undertake the tests until the final rules 
for component testing and certification are in place. In the face of 
this evidence, Chairman Tenenbaum acknowledged that she ``would never 
agree to lift the stay'' until the 15-month and component parts rules 
are in place. She voted to extend the stay ``in order to allow 
component testing adequate time to develop and to give our stakeholders 
adequate notice of new requirements.'' Commissioner Moore also 
recognized the need to ``give the small manufacturers, who often buy 
their supplies in small amounts at retail outlets rather than through 
bulk purchases from wholesale distributors, sufficient time to find 
sources of lead compliant materials.'' During the December 16, 2009 
public briefing on the stay, Commissioner Adler also conceded that the 
15-month rule should be in effect before the stay is lifted. Although 
he retracted that view the following day in his written statement 
explaining his vote to extend the stay, Commissioner Adler predicated 
his changed position on his belief that ``[n]ow that companies know 
they can rely on component suppliers for compliance with the law, they 
should be able to plan production and control costs in a reasonable 
manner.''
    Consistent with the views of all five Commissioners, the Commission 
``determined that testing of children's products for lead content by a 
recognized third-party testing laboratory and certification based upon 
that testing should begin on the products manufactured after February 
10, 2011, to allow component testing to form the basis for 
certifications for lead content . . .'' 74 FR 68588 (December 28, 
2009).
    A year has now passed, but in the absence of final 15-month and 
component testing rules, component testing still cannot form the basis 
for certifications for lead content. Rather, small manufacturers 
continue to report to the CPSC that component suppliers are refusing to 
test altogether or are refusing to supply certifications, and that 
certifications are unavailable from the retail outlets where many small 
manufacturers obtain component parts. Under these circumstances, a 
continuation of the stay would be consistent with the stated views of 
all five Commissioners. Commissioners Northup and Nord, and Chairman 
Tenenbaum all expressly linked the lifting of the stay to at least the 
finalization of the 15-month and component testing rules. Commissioner 
Moore supported extending the stay to give small manufacturers 
``sufficient time to find sources of lead compliant materials,'' and 
Commissioner Adler predicated his willingness to delink finalization of 
the 15-month rule from the stay on his expectation that small 
manufacturers would be able to ``rely on component suppliers for 
compliance with the law.'' Given that component part suppliers remain 
unwilling or unable to provide component part certifications in the 
absence of final rules, there is no factual predicate for the 
Commission to support lifting the stay.
    It is also important to emphasize that publication of the proposed 
rules has not provided the regulated community with any certainty 
regarding the content of the final rules. Indeed, the CPSC's record of 
rulemaking over the past year demonstrates that a final rule can change 
materially from its proposed version and can impose more onerous 
requirements. It is therefore not surprising that component parts 
suppliers remain unwilling to incur the expense of providing 
certifications under a proposed regime that may change substantially 
before it is finalized.
    I therefore intend once again to urge the Commission to vote to 
continue the stay of enforcement on third-party testing and 
certification of lead content in children's products until one year 
after publication of final 15-month and component testing rules. 
Considering the lead time necessary for manufacturers between design 
and production, allowing one year after the two testing rules are 
finalized is necessary for manufacturers to benefit from the rule. 
Doing so would comport with the expectation created among regulated 
industries through the Commissioners' and the Commission's public 
statements that the stay would not earlier be lifted.
    Moreover, lifting the stay before the final 15-month and component 
testing rules are published would place manufacturers in the untenable 
position of trying to comply with the proposed rule, while anticipating 
a potentially much different final rule. This would provide 
manufacturers with insufficient time within which to modify their 
compliance management processes once the final rule was issued, and 
would cause needless disruption to business planning, supply chain 
management, test lab contracting, and other aspects of product 
manufacturing, due to the rapidly changing requirements.
    Finally, a reasonable time after publication of the final rules is 
necessary in order to afford the regulated community time to come into 
compliance. Otherwise, it may be too late for many small manufacturers 
to benefit from the component testing rule. In this regard, it is 
essential that the Commission retain in the final component parts rule 
the proposed provision,  1109.5(g)(1), affording component parts 
certifications ``currency'' to allow them to be reasonably relied upon 
by downstream manufacturers without the need for duplicative testing.

    Question 12. Has the Commission proposed a rule allowing for 
component part testing?
    Answer. As explained above, the Commission has proposed a rule on 
component testing (75 FR 28208). If this rule is finalized as it is 
written today, it will allow for compliance with the CPSIA by some 
manufacturers that otherwise may have had no chance to survive under 
the law's onerous, unnecessary testing and certification requirements. 
This is because component testing has the potential to allow 
considerable flexibility under the CPSIA's testing regime for both 
small and large manufacturers. But it will not offset all of the 
unintended costs nor eliminate all of the negative consequences of the 
CPSIA. It may not even be available soon enough to benefit some small 
manufacturers.
    I have been a strong supporter of the policy, and therefore hope 
that absent a full repeal of the CPSIA's testing and certification 
requirements, the Commission promulgates a final component testing 
rule. Until the rule is finalized and has the force of law, however, it 
is highly unlikely that any suppliers of components like zippers, 
buttons, or even raw materials will make the investment to become 
component suppliers. In other words, it is incorrect to assume that a 
proposed rule (or our previous enforcement guidance allowing component 
testing) is sufficient to lay the groundwork for component testing to 
take hold.
    Component testing can successfully increase efficiencies and safety 
up the supply chain, only if children's product manufacturers have 
absolute certainty that they can rely on the certificates received from 
component part certifiers. If a component part certifier (e.g., a 
button manufacturer) third-party tests, certifies, and fulfills all 
continued testing requirements for its buttons, but the doll-maker that 
receives that certificated component is still held fully liable for the 
compliance of the component, the doll-maker will always have to re-test 
every component just to be sure. This creates layers of unnecessary, 
duplicative testing.
    That is why in  1109.5(g)(1) of the proposed component testing 
rule, the Commission allows component part certificates to have 
``currency'' to be passed through the supply chain. Specifically, this 
provision allows component part certificates to be treated the same as 
final certifications issued in accordance with section 14(a) of the 
Consumer Product Safety Act. While finished product manufacturers 
relying on component parts certificates still could be liable for a 
recall, for example, if any component is found non-compliant, they 
would not be held liable for a civil penalty for a violative component 
if they relied, with due care, on a component part certificate.
    The question of liability is central to the ability of component 
testing to work. Manufacturers already have a strong incentive to work 
with reliable suppliers in order to prevent unnecessary reputational 
damage or a costly recall should any unsafe product make its way onto 
the market. However, if a manufacturer is also liable for a civil 
penalty associated with a certified component part found still to be 
non-compliant--they simply have no incentive to demand certified 
components at all. Today, they would still have to re-test any 
components they receive because  1109.5(g)(1) of the proposed 
component testing rule has not been finalized. Moreover, give the 
Commission's recent history of changing the direction of its rules 
between the proposal stage and final stage, there is even more 
uncertainty surrounding component testing.
    For all of these reasons, I strongly support finalizing all of our 
testing rules prior to lifting the stay of enforcement on lead content 
testing or issuing any more Notices of Requirements to accredit labs 
for future CPSIA standards.

    Question 13. How does Europe handle cadmium content in children's 
products? Are the E.U.'s safety standards governing cadmium content in 
children's products more stringent than our own?
    Answer. International toy safety standards, including the European 
standard EN 71-3, cover cadmium in toys. Like the ASTM F963 toy safety 
standard in the U.S., EN 71-3 limits migration of cadmium from paints 
and surface coatings. The European standard also includes limits for 
migration of cadmium from materials other than paints and surface 
coatings. Additionally, the E.U. restricts the amount of cadmium in 
parts of vehicles, and electronic and electrical products (with 
exemptions). It has also announced that it will consider 
recommendations to restrict the cadmium content of jewelry.
    An important distinction between our requirements and Europe's is 
that Europe does not have the third-party testing and certification 
requirements that American manufacturers now have in the United States 
due to the CPSIA. Because the law's mandates (almost none of which are 
based on risk) make the cost to manufacture children's products much 
higher for manufacturers selling in the U.S., the law gives a strong 
competitive advantage to foreign firms over U.S.-based firms. Also, 
similar to Europe's lead content standards, enforcement of cadmium 
limits varies significantly country to country--with some countries 
enforcing the limits more than others. This uneven enforcement of the 
EU's mandatory limits also makes it quite difficult to compare our 
standards in the United States to those in the EU.
    Imposition of the CPSIA's testing costs on products manufactured 
for sale in the U.S. also disadvantages American consumers. Major 
European toymakers have decided to stop selling in the U.S., to avoid 
the CPSIA's testing costs. But their products are still available to 
consumers in Europe and other countries.\9\ The absence of these 
European children's products in the American market is not because 
their products are unsafe, but because these companies choose not to 
pay for the law's unnecessary costs to reengineer, third-party test and 
certify all of their products.
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cease-us-distribution-due-to-cspia/.
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    We tend to focus more on the costs of the CPSIA to businesses, 
rather than to consumers. But as a mother of six, I have an 
appreciation for the impact on the consumer. Parents have certain 
expectations when they shop for their children, including that: (1) 
products they purchase are safe; (2) at least some products are 
affordable; and (3) a vibrant market exists with new and different toys 
and children's products throughout the year. When I shopped for my 
children, I did not want the same dolls and games in the same colors 
that I purchased the year before. Unfortunately, the high cost of 
compliance with the CPSIA, without regard to safety, has meant reduced 
choices for consumers (including reduced product lines and ``de-
spec'ing'' of products to reduce colors and accessories)--and the 
effects are likely to become worse as the Commission continues 
implementing the law's testing requirements.
Harmonization
    Recently, the ASTM toy safety subcommittee established a work group 
to consider aligning the U.S. and international standards for 
accessible soluble heavy metals in toys. If adopted by the ASTM toy 
subcommittee, the new standards would then need to be approved by 
Commission vote, because the CPSIA made the ATSM F-963 standard 
mandatory, effective 2009.
    That the Commission could be an impediment to the ATSM's efforts to 
harmonize its standards with international norms illustrates how 
mandatory, government imposed, standards can inhibit the harmonization 
of international product safety standards. ASTM F963 had been a 
voluntary standard before the CPSIA made it mandatory in early 2009, 
and it is quite complex. In theory, the greater efficiencies achieved 
through harmonization should benefit manufacturers and consumers. When 
I was in China last summer visiting factories and American companies, I 
saw that they perform three or four different ``small parts'' tests, 
all from different heights, simply because of the requirements of 
different countries. Harmonization would reduce that burden, but the 
CPSIA's requirement that toys sold in the United States satisfy ASTM 
F963 has tied the Commission's hands in its negotiations to 
``harmonize'' with the Europeans. Overall, locking in the ATSM F-963 
standard has severely limited the potential for improvements to safety 
and efficacy that would otherwise be achievable by learning from and 
adopting where appropriate the toy safety standards of other countries.
    Unlike the mandatory toy standard, there is no Federal standard for 
jewelry at this time in the United States. American companies that 
serve on the ASTM jewelry standards Committee can therefore negotiate 
freely with our international counterparts. Harmonization for this 
product category is still possible.

    Question 14. Are children more susceptible than adults to the 
adverse health effects of cadmium exposure?
    Answer. Our staff has found little information that children are 
more susceptible than adults to the effects of cadmium, although few 
studies have focused specifically on health effects in children.
    However, CPSC staff has focused on children in its risk 
assessments, because children engage in behaviors more likely to expose 
them to any cadmium found in consumer products. In particular, children 
tend to have significant mouthing behaviors, and occasionally may 
swallow--accidentally or intentionally--small objects. Children also 
tend to place their fingers in their mouths after touching objects. All 
of these behaviors increase the chance of migratable material being 
introduced into the mouth, where it can be swallowed and absorbed by 
the body.

    Question 15. Do you believe cadmium should be declared toxic by the 
Commission under the Federal Hazardous Substances Act? If not, why not?
    Answer. The Commission staff's conclusion is that the data 
concerning the toxicity of cadmium is sufficient for cadmium to be 
considered toxic under the FHSA due to effects on multiple organ 
systems and toxic endpoints, including kidney dysfunction. However, the 
conclusion that a substance is toxic is only the first step in the 
Commission's assessment under the FHSA.
    The FHSA is risk-based. To be considered a ``hazardous substance'' 
under the FHSA, a consumer product must satisfy a two-part definition. 
15 U.S.C.  1261(f)(1)(A). First, it must be toxic under the FHSA, or 
present one of the other hazards enumerated in the statute. Second, it 
must have the potential to cause ``substantial personal injury or 
substantial illness during or as a proximate result of any customary or 
reasonably foreseeable handling or use, including reasonably 
foreseeable ingestion by children.'' Therefore, exposure and risk must 
be considered in addition to toxicity, when assessing potential hazards 
under the FHSA.
    It is important that the Commission's assessments be risk-based and 
that the Commission explain and clarify the genuine risks associated 
with metals like cadmium, particularly when talking to the media. 
Unfortunately, some articles on children's products have reported that 
cadmium is a carcinogen, inferring that it could be a carcinogen when 
present in children's products. However, the route of exposure of a 
substance is as important as the type of substance when determining its 
health effects. If cadmium is inhaled, as in a mine or similar 
workplace environment for adults, it is a known carcinogen. For this 
reason, OSHA has strict standards on cadmium inhalation in industrial 
workplace settings. However, touching, mouthing, or swallowing an 
object with a high level of cadmium content is an entirely unique route 
of exposure with unique health effects. As such, cadmium in the 
substrate of toys, in drinking glasses, or in jewelry is not a known 
carcinogen.

    Question 16. Could you discuss the issue of the additional layer of 
protection for pools with only a single main drain?
    Answer. The additional layer of protection for pools and spas 
provided by the Virginia Grahame Baker Pool and Spa Safety Act (VGBA) 
is an important issue, and I was proud to support the bipartisan 
interpretive rule that this Commission promulgated to implement the 
VGBA.
    Under the VGBA, all public pools and spas must be equipped with 
anti-entrapment devices or systems. VGBA  1404(c)(1)(A)(i). To further 
reduce the risk of entrapment, the VGBA also requires public pools and 
hot tubs with a single main drain to have either an ``unblockable 
drain'' or a ``system[] designed to prevent entrapment.'' VBGA  
1404(c)(1)(A)(ii). Thus, one question before the Commission was how to 
define an ``unblockable drain.''
    The Commission's interpretive rule determines that a drain fitted 
with an unblockable drain cover is an ``unblockable drain'' within the 
meaning of the VGBA. I supported the majority's interpretation for the 
following reasons: (1) I believe that a drain made unblockable via an 
unblockable drain cover reasonably satisfies the plain meaning of the 
statutory term ``unblockable drain''; (2) I believe an unblockable 
drain system is equally if not more effective than other ``systems 
designed to prevent entrapment'' and; (3) I am convinced that the 
staff's recommendation to accept unblockable drain covers will save the 
most lives and prevent the most injuries.
    It makes sense to treat drains fitted with unblockable drain covers 
as unblockable drains under the statute. Drains made unblockable 
through their design or through use of an unblockable drain cover 
function equally well to maintain the suction flow of water at a safe 
level when blocked by a person's body, so we should treat them the 
same. In either case (e.g., an unblockable drain or a drain with an 
unblockable drain cover), if the drain cover is removed, the drain 
ceases to be unblockable--so the issue of an unblockable drain cover 
dislodging is irrelevant. If unblockable drains do not require back-up 
systems, then neither should drains fitted with unblockable drain 
covers.
    Even if I were not convinced that the term ``unblockable drain'' 
includes drains fitted with unblockable drain covers,  
1404(c)(1)(A)(ii)(VI) of the statute authorizes the Commission to 
determine whether other systems are ``equally effective as, or better 
than, the systems described . . . at preventing or eliminating the risk 
of injury or death associated with pool drainage systems.'' Based on 
the Commission's public hearing and briefing by staff--and for the 
reasons discussed below--I would determine that unblockable drain 
covers are at least equally as effective in preventing or eliminating 
injury or death from drain entrapments as the other systems described 
in the statute.
    Finally, it appears to me that unblockable drain covers promise to 
save more lives and prevent more injuries than other anti-entrapment 
systems. An unblockable drain cover with the appropriate flow rating is 
the only solution that prevents all five types of entrapments 
identified by the staff (limb, hair, body, evisceration, and 
mechanical-related). The back-up systems mentioned in the Act only 
address some of the potential scenarios. For example, some of the back-
up systems deal with suction body entrapment and some limb entrapments, 
but would not release hair, mechanical, or evisceration entrapments. 
Given the prevalence in the mortality data of hair entrapments, that 
failing poses a real danger. Moreover, preventing entrapments in the 
first place is the best solution to the threat of entrapment drowning. 
Back-up systems require an entrapment incident to begin to occur before 
they respond, and they may not prevent the entrapment depending on what 
kind it is and what type of drain system is involved.
    I would like to add a few words about the apparent conflict of 
interest of certain advocacy groups lobbying this issue. Just as health 
insurance companies lobby Congress and Federal agencies for healthcare 
solutions that benefit their bottom line, it is not surprising that 
people who develop and sell back-up systems created an association to 
promote the use of their product. In fact, the founder of the Pool 
Safety Council, a group that has lobbied Congress and other 
organizations to require that all pools have back-up system technology, 
was the President of a back-up system manufacturer until only this past 
February.\10\
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    The Pool Safety Council promoted their petition by claiming the 
CPSC ``reversed their guidance of the [VGBA], removing important 
entrapment prevention requirements.'' However, as noted previously, 
unblockable drain covers are the safest form of protection against 
entrapments. They are the only safeguard against all five types of 
entrapment and the only choice that prevents entrapment from occurring 
in the first place.
    The Council's petition goes on to say, ``The reversal brings into 
question the influence representatives from the pool industry have in 
CPSC's decision-making process.'' In fact, no group has pressured CPSC 
more than the Pool Safety Council. Speaking for myself, I have had no 
communication from any pool representative except for those that have a 
financial interest in requiring back-up systems. The Pool Safety 
Council lobbies for a tighter definition of unblockable drain because 
pools with unblockable drains are not required to buy their product. I 
consider it a triumph of safety over special interests that, despite 
all the pressure from those who have a financial interest in requiring 
back-up systems, the CPSC decided to adopt a new, safer technology.

    Question 17. The Commission recently voted on rules to implement 
the public database mandated in the Consumer Product Safety Improvement 
Act of 2008. The Commission issued a notice of proposed rulemaking 
(NPRM) regarding the database on May 24, 2010, with a comment deadline 
of July 23, 2010. After the comment deadline but before the Commission 
voted on the database rule, you and Commissioner Nord released an 
``Alternative Database Rule Proposal'' and requested comment from the 
public. Such action is highly unusual with respect to a rulemaking. Is 
there precedent for members of an independent regulatory agency to 
issue alternative rule proposals and seek public comment separate from 
an agency released NPRM?
    Answer. Although I am unaware of another alternative rule being 
publicly vetted during a rulemaking process, it is certainly not 
uncommon for members of rulemaking bodies to express publicly their 
views on pending regulation. In fact, the Chair routinely expresses her 
view on pending regulation and is often quoted in the press.

    Question 18. How does the release of the alternative proposal and 
the submission of comment impact the rulemaking proceeding? Did the 
release of the alternative proposal potentially create grounds for a 
legal challenge to the rule adopted by the Commission?
    Answer. The release of the alternative proposal and the 
solicitation of ``feedback'' from the public did not create grounds for 
a legal challenge to the rule adopted by the Commission.
    With respect to the publication of an alternative rule, the APA 
does not require that agency decisionmakers shield from the public 
their deliberative processes, including the consideration of 
alternative language. Moreover, the public interest is arguably better 
served when an agency's decisionmaking is made more transparent by such 
action. The fact that the Majority reposted my alternative on the CPSC 
website following a thorough legal review confirms that its publication 
was deemed to be lawful.
    The request for public feedback on the alternative rule also did 
not make the final rule adopted by the Commission vulnerable to legal 
challenge. So long as all comments considered by an agency in its 
rulemaking process are made public, the inspiration for a comment, 
whether it is a formal Federal Register notice, or otherwise, is not 
material. Indeed, we routinely receive comments outside of a notice 
period and publish them on our website. For instance, unrelated to my 
alternative rule posting, a comment in response to the database NPR was 
received after the official deadline for submitting comments, and was 
posted at CPSC.gov.
    Ex parte communications that form the basis of agency action and 
are not made a part of the public record can jeopardize a rule's 
enforceability. But my request for feedback was public, and it was 
always my intent that, like any late filed comment, responses would be 
posted on CPSC's website. As it turns out, my alternative rule was not 
considered by the majority commissioners, and the majority 
commissioners did not review the letters I received in response to the 
alternative rule. They thus did not form the basis for CPSC action and 
have not been made public.

    Question 19. Do you anticipate releasing more alternative rule 
proposals in the future?
    Answer. I promoted an alternative database rule, because I believe 
the rule supported by the majority--and ultimately promulgated--is 
irredeemably flawed. It is my hope and expectation that in the future, 
the Commission will be better able to work toward compromises that will 
obviate the need for the formulation of comprehensive alternative 
rules. I am unwilling, however, to commit to never publicizing during 
the rulemaking process policy views that differ from those of the 
majority. Doing so helps the regulated community better understand the 
Commission's policy choices.

    Question 20. On numerous occasions, you have posted comments, 
artwork, and pictures on your blog questioning legislative proposals by 
Members of Congress and urging the public to reach out to Congress 
about the CPSIA. Your comments are often questionable in tone and 
tenor. Do you believe that a post with a picture of individuals 
drowning next to a ship called the ``S.S. Waxman'' befits the office of 
a Commissioner of the Consumer Product Safety Commission?
    Answer. I believe that as a Commissioner and citizen, I have the 
right and duty to articulate my public policy views in whatever manner 
I deem most effective. And I am troubled by the tone of your question, 
which appears designed to silence criticism of competing policy views.
    I published the ``SS Waxman'' graphic to illustrate the point 
explained in the accompanying text posted with it on my blog. This was 
that Senator Waxman's proposed legislation to provide relief from the 
burdensome costs of complying with the CPSIA was too narrowly drafted. 
As graphically illustrated, it was designed to provide relief only to 
the ATV industry, thrift stores, and very small manufacturers. The 
costs associated with obtaining a ``functional purpose'' exemption 
would have been prohibitively excessive for all but the largest 
manufacturers. In addition, the exemption for low-volume manufacturers 
had the potential to provide relief to only a small slice of the 
manufacturing community.
    These are legitimate criticisms of the proposed legislation that 
contributed to the public debate. My role as a Commissioner in no way 
limits my right to make such observations. Indeed, I would be negligent 
not to contribute the perspective gained through my position to advance 
the cause of CPSIA reform.
    More generally, I believe that my blog serves an important purpose. 
It provides a venue for the exchange of information and opinions 
relevant to the fulfillment of the CPSC's mission. Commissioners often 
receive letters from the regulated community expressing general 
concerns about the CPSIA. In addition to citing the obvious financial 
burden of compliance, manufacturers of children's products have 
reported that the third-party testing requirement is likely to result 
in reduced product variety. Most importantly, they explain that these 
consequences are not born of any improvement in safety. These companies 
are already making safe products; the CPSIA merely requires them to 
prove it before continuing to sell the same products or introducing 
product variation. But notwithstanding this input, we lack sufficient 
specific examples and hard data to allow us to fully understand or to 
quantify the problem. I therefore use my blog to solicit input from 
both the regulated community and consumers, in order to better 
understand the issues facing them, so that I can be a more effective 
and responsive public servant.
    My blog also allows me to communicate my views to consumers and 
industry. When I was a Member of Congress, I was struck by the degree 
to which the CPSC and other Executive Branch agencies appeared to 
regulate without regard for its impact on the regulated community. I 
often heard from businesses who were frustrated that their voice was 
not being heard or considered in the regulatory process. My blog allows 
me to reassure consumers and the businesses subject to CPSC regulation 
that I understand the issues facing them and am working to find and 
promote the regulatory flexibility necessary to ensure product safety 
without unnecessarily stifling economic growth and consumer choice.

    Question 21. Given your comments regarding the CPSIA, are you able 
to implement the law in a fair and impartial manner, even with respect 
to a provision of the law with which you disagree?
    Answer. Agreement with a law is not a prerequisite to the 
recognition of a statutory duty to carry it out. Indeed, if every 
executive agency board and commission member was required as a 
condition of office to agree with every policy choice reflected in all 
of the statutes they administer, few, if any, would be left to serve. I 
swore an oath to uphold the law and that is what I have always done and 
will always do. I will also continue to help the Commission identify 
flexibility in the law that can alleviate its devastating impact on 
American business, and to focus on the CPSC's core mission of assessing 
and reducing risks to consumer safety.
                                 ______
                                 
Response to Written Question Submitted by Hon. Kay Bailey Hutchison to 
                          Hon. Anne M. Northup
    Question. As you know, Section 103(a) of the CPSIA requires the 
placement of tracking labels on all children's products and their 
packaging, to the extent practicable. In its July 2009 Statement of 
Policy regarding enforcement of this provision, CPSC staff indicated 
that products sold through bulk vending machines would not need to be 
individually marked, though the package or carton the products are 
shipped in would. The Statement of Policy further noted that ``the 
Conference Report [accompanying the CPSIA] recognized that marking each 
individual product in such circumstances may not be practical. See H.R. 
Rep. No 787, 110th Cong., 2d Sess. 67 (2008).'' However, the Commission 
has not provided any explicit regulatory exclusion from Section 103(a) 
for bulk vended products. Will the CPSC pursue enforcement actions 
against bulk vendor suppliers, operators or retail establishments for 
the absence of tracking labels on bulk vended products? Further, can 
you please assure the Committee that the CPSC will maintain this 
position should any state attorney general or other entity seek to 
enforce Section 103(a) against bulk vended products?
    Answer. As you know, the Commission's July 2009 Statement of Policy 
on Tracking Labels states the following:

        ``If a product is sold through a bulk vending machine, the item 
        does not need to be individually marked but the package or 
        carton in which such products are shipped to the retailer 
        should be marked. The Conference Report recognized that marking 
        each individual product in such circumstances may not be 
        practical. See H.R. Rep. No. 787, 110th Cong., 2d Sess. 67 
        (2008).''

    The Office of Compliance is following this policy as stated. Staff 
will consider enforcement action if the package or carton in which such 
products are shipped is not appropriately marked with the required 
information.
    A State Attorney General technically may still pursue companies for 
violating any part of the CPSIA, in spite of enforcement guidance 
published by the Commission. Providing absolute certainty for bulk 
vendors or any other manufacturers in this regard would require an act 
of Congress amending the CPSIA.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Roger F. Wicker to 
                          Hon. Anne M. Northup
    Question 1. What can you tell us about the impact of the CPSIA on 
small businesses? Even though the CPSIA did not require the Commission 
to perform cost-benefit analyses of the rules it promulgates, many of 
the concerns raised from small businesses and from Members of Congress 
since the law passed have been based on the need for this very 
information--specifically, the law's economic impact and unintended 
consequences. Does the Commission have quantitative data to determine 
what the impact has been, and what the impact will be in the future as 
more requirements under the law come into effect?
    Answer. The CPSIA has been devastating for many small businesses, 
and it has increased costs for large businesses. Product Safety Letter 
reported the following on a November 2009 public meeting with Mattel:

        [a] lawyer for Mattel with the law firm Jones Day in Washington 
        D.C., said his client is finding the CPSIA difficult to 
        decipher. The law, he said, is unclear on what products the 
        company needs to test, how often it needs to test them, and how 
        many samples need to be tested. ``It's a lot of work. I don't 
        know how smaller companies do it,'' Biersteker told 
        Commissioner Robert Adler.

        Despite Mattel's large team of in-house lawyers, he said, the 
        company needed to hire outside lawyers to help understand the 
        CPSIA. He said Mattel holds weekly conference calls on the 
        issue, discussing how to comply with the act while remaining 
        ``cost competitive.'' \1\
---------------------------------------------------------------------------
    \1\ ``Mattel Finds CPSIA to be a Challenge,'' Product Safety 
Letter, November 9, 2009.

    Small businesses have by far borne the greatest impacts of the law. 
Attached, you will find some examples of businesses that have closed 
their doors, reduced product lines, or abandoned the children's product 
market due to the CPSIA. I submitted this information for the record 
during my opening statement.
    This Commission has received a considerable amount of anecdotal 
evidence from companies and trade associations regarding the costs to 
test at independent labs, as well as the cost of certification, 
tracking labels, continued testing, record keeping, testing to product 
standards, and the potential reputational and litigation costs due to 
the upcoming public database. Our staff has compiled some sample 
testing costs for toys and bikes, as part of a Regulatory Flexibility 
Analysis for our Testing and Labeling Rule. For example, our staff 
estimated that the cost to test a toy with a moderate number of colors 
and interesting accessories could range between $3,712 and $7,348. The 
cost to test a bike under our proposed testing rule could be between 
$7,350 and $18,600.\2\ As a result of much of this anecdotal data and 
the pressure on the Commission from industry, the Chairman elected to 
create a full-time Small Business Ombudsman position at the agency--
something that I do not believe will address industry's concerns, but 
nonetheless represents an acknowledgement of the pressures and concerns 
we have felt from the small business community.
---------------------------------------------------------------------------
    \2\ Regulatory Flexibility Analysis of the Commission's proposed 
Testing rule, pg. 103-108. (Proposed Rule: Testing and Labeling 
Pertaining to Product Certification--Draft Federal Register Notice--
April 1, 2010 (Part 1) http://www.cpsc.gov/library/foia/foia10/brief/
prodcert1.pdf.
---------------------------------------------------------------------------
    However, you have asked whether we have quantitative data regarding 
the costs of this law, and unfortunately, we do not. So far, we have 
continued without fully studying or trying to reduce the impact of the 
regulations we are promulgating. With the anecdotal data we have from 
manufacturers and trade associations, and requests from Congress asking 
the Commission to try to mitigate the law's unintended consequences, 
both Commissioner Nord and myself have requested that we allocate 
funding to do a full cost-benefit analysis of the rules we are 
promulgating.
    Given the disruption in the marketplace and the current state of 
our economy, it has been disappointing that the majority of the 
Commissioners have not agreed to focus more heavily on providing 
Congress with quantitative data on the economic effects. Even 
Representative Jo Ann Emerson, currently the Chairman of the House 
Financial Services Appropriations Subcommittee, has requested that the 
Commission initiate a cost-benefit analysis of the rules we promulgate 
and quantify the effects on small businesses. Unfortunately, this 
Commission has not produced any cost-benefit analyses to date.\3\
---------------------------------------------------------------------------
    \3\ The CPSIA does not direct that rulemakings (even ``major 
rules'') be promulgated under Section 9 of the CPSA, which requires a 
cost-benefit analysis and would normally preclude the Commission from 
promulgating rules whose benefits are not expected to bear a reasonable 
relationship to their costs. However, the Commission is not prohibited 
from doing such studies. So far, the only analysis that many 
rulemakings have received has been a perfunctory, small business 
regulatory flexibility analysis, as required by the Regulatory 
Flexibility Act. The reg-flex analysis to accompany the Testing rule 
(see footnote 2) provides hypothetical examples of testing costs, but 
no quantitative data.
---------------------------------------------------------------------------
    Furthermore, this anecdotal data does not reflect the full breadth 
of the law's requirements, because the most onerous requirements have 
yet to go into effect. The widest reaching mandate in the law--
requiring third-party testing of all children's products for lead 
content--has been stayed since February of 2009. Currently, the 
Commission is considering whether to extend the stay further. We have 
not implemented the requirement to third-party test for lead, 
phthalates, or to the toy standard--which alone may require a 
considerable number of new tests and certifications for toymakers.\4\
---------------------------------------------------------------------------
    \4\ Jill Chuckas testified for the Handmade Toy Alliance on the 
second panel of the December 2, 2010 oversight hearing before the 
Senate Commerce Subcommittee on Consumer Protection regarding the high 
costs of testing to the toy standard (ASTM F963): http://commerce.
senate.gov/public/index.cfm?p=Hearings&ContentRecord_id=799a2c9d-f48a-
4284-add2-1a9099
961431&Statement_id=fb4d696e-c471-4bd1-be39-
d9fb7f34f56a&ContentType_id=14f995b9-dfa5
-407a-9d35-56cc7152a7ed&Group_id=b06c39af-e033-4cba-9221-
de668ca1978a&MonthDisplay=
12&YearDisplay=2010.
---------------------------------------------------------------------------
    The categories of children's products impacted by this law seem 
endless. But let me illustrate the cost versus benefit impact by 
considering two examples: furniture and toys.
    A company making furniture for children's rooms would need to: (1) 
determine if its product is ``primarily intended'' for children 12 and 
under--which they may not know for sure, and for which the Commission 
has provided ambiguous guidance; (2) submit for testing to a third-
party lab every part of every piece of furniture that may be used on a 
children's product, including nuts, bolts, and varnishes (one piece of 
furniture may have fourteen different coats of finish); (3) certify 
each component based on each of these tests; (4) add tracking labels to 
each piece of children's furniture with a lot number that can trace 
each component to its specific certification and test; (5) maintain 
records for all tests and certifications for all parts of each 
children's product; and (6) start this process all over again, if they 
decide to change a color or varnish, or some other part of the 
product--or if there is any other material change. One furniture 
company reported to us that they have already spent $13 million on 
tests, new systems and tracking processes, despite the fact that every 
single component they were using on children's furniture already 
complied with the current lead standard. So in this case, the cost was 
$13 million and the benefit (i.e., improvement in safety) was zero.
    All toys must be tested for lead and phthalates at third-party 
labs, and all are subject to the toy standard, ASTM F963, which the 
CPSIA made mandatory. As a result, a doll maker will be required to 
send to a third-party lab to be tested for lead, phthalates and any 
applicable rules under the toy standard, every component part, 
including each paint color used on the eyes, each button, the hair, and 
all of the accessories. Companies tell us that these requirements 
stifle innovation and product variety by erecting significant cost 
barriers to adding to dolls new accessories, new colors, or other 
variations. For example, a large toy manufacturer told us that his 
company has had to ``de-spec'' certain toys in order to afford the 
law's new costs, which means removing accessories, moveable pieces or 
other parts--or, in the manufacturer's words, ``taking the fun out of 
toys.''
    Also, the scope of the toy standard is quite broad, as seen in the 
list of sections below. Not all toys must be tested to all parts of the 
toy standard, but any one toy may be subject to numerous requirements, 
and satisfying each requirement involves one or more separate tests: 
\5\
---------------------------------------------------------------------------
    \5\ http://www.astm.org/Standards/F963.htm.

------------------------------------------------------------------------
                           Title                               Section
------------------------------------------------------------------------
Scope                                                       1
Referenced Documents                                        2
Terminology                                                 3
Safety Requirements                                         4
Material Quality                                            4.1
Flammability                                                4.2
Toxicology                                                  4.3
Electrical/Thermal Energy                                   4.4
Sound Producing Toys                                        4.5
Small Objects                                               4.6
Accessible Edges                                            4.7
Projections                                                 4.8
Accessible Points                                           4.9
Wires or Rods                                               4.10
Nails and Fasteners                                         4.11
Packaging Film                                              4.12
Folding Mechanisms and Hinges                               4.13
Cords and Elastics in Toys                                  4.14
Stability and Over-Load Requirements                        4.15
Confined Spaces                                             4.16
Wheels, Tires, and Axles                                    4.17
Holes, Clearance, and Accessibility of Mechanisms           4.18
Simulated Protective Devices                                4.19
Pacifiers                                                   4.20
Projectile Toys                                             4.21
Teethers and Teething Toys                                  4.22
Rattles                                                     4.23
Squeeze Toys                                                4.24
Battery-Operated Toys                                       4.25
Toys Intended to be Attached to a Crib or Playpen           4.26
Stuffed and Beanbag-Type Toys                               4.27
Stroller and Carriage Toys                                  4.28
Art Materials                                               4.29
Toy Gun Marking                                             4.30
Balloons                                                    4.31
Certain Toys with Spherical Ends                            4.32
Marbles                                                     4.33
Balls                                                       4.34
Pompoms                                                     4.35
Hemispheric-Shaped Objects                                  4.36
Yo Yo Elastic Tether Toys                                   4.37
Magnets                                                     4.38
Jaw Entrapment in Handles and Steering Wheels               4.39
Safety Labeling Requirements                                5
Instructional Literature                                    6
Producer's Markings                                         7
Test Methods                                                8
General                                                     8.1
Testing for Hazardous Substance Content                     8.2
Method to Dissolve Soluble Matter                           8.3
Tests for Cleanliness and Preservative Effectiveness        8.4
Normal Use Testing                                          8.5
Abuse Testing                                               8.6
Impact Tests                                                8.7
Torque Tests for Removal of Components                      8.8
Tension Test for Removal of Components                      8.9
Compression Test                                            8.10
Tests for Tire Removal and Snap-in Wheel and Axle           8.11
  Assembly Removal
Flexure Test                                                8.12
Test for Mouth-Actuated Toys                                8.13
Projectiles                                                 8.14
Test for Stability of Ride-On Toys                          8.15
Stalled Motor Test for Battery-Operated Toys                8.17
Tests for Battery-Powered Ride-On Toys                      8.18
Tests for Toys which Produce Noise                          8.19
Dynamic Strength Test for Wheeled Ride-On Toys              8.20
Packaging Film Thickness                                    8.21
Test for Loops and Cords                                    8.22
Yo Yo Elastic Tether Toy Test Methods                       8.23
Magnet Test Methods                                         8.24
Test Methods for Locking Mechanisms or Other Means          8.25
Identification                                              9
Age Grading Guidelines                                      Annex A1
Packaging and Shipping                                      Annex A2
Design Guidelines for Toys Attached to Cribs or Playpens    Annex A3
Flammability Testing Procedure for Solids and Soft Toys     Annex A4
Flammability Testing Procedure for Fabrics                  Annex A5
Rationale for 2007 Revisions                                Annex A6
Rationale for 2008 Revisions                                Annex A7
------------------------------------------------------------------------

    Your question focuses on cost-benefit analyses. The law imposes 
onerous requirements on small businesses that are hurting the economy, 
without any evidence of a safety benefit. The CPSIA's lead content 
standard, interim-ban of phthalates, and all third-party testing 
requirements are not based on risk. The CPSC has the authority to 
impose these types of requirements on any product or industry, if it 
determines that a risk exists and these costs are necessary to reduce 
or eliminate the risk.
    This Commission never concluded that the components of children's 
products containing either 300 ppm lead content or the interim-banned 
phthalates pose a safety risk to children. And until directed to do so 
by Congress in the CPSIA, the Commission saw no reason to make ASTM 
F963 a federal standard, or to require all toy manufacturers to send 
their products to third-party labs to test to this standard. Regarding 
lead, 2007 data indicates that one percent of children tested 
nationally showed a dangerous blood lead level as established by the 
Centers for Disease Control (CDC). This number was down from nearly 8 
percent in 1997,\6\ and is likely attributable to the elimination of 
lead in gasoline, as well as lead paint education and abatement. The 
CDC and the Environmental Protection Agency have issued guidance for 
reducing children's exposure to lead, and its focus is not on 
children's products. It has never been suggested that this new law, 
with all of its costs, will lower the number of children reaching the 
``tipping point'' of having an elevated blood lead level. For further 
information on the risks associated with lead, I refer you to my answer 
under the ``Lead Standard'' questions below.
---------------------------------------------------------------------------
    \6\ http://www.cdc.gov/nceh/lead/data/national.htm.
---------------------------------------------------------------------------
    Finally, there is a cost to consumers--not only in the loss of jobs 
in a struggling economy, but the loss of choice. Many manufacturers can 
afford the costly mandates of the law only by reducing their product 
lines, leaving the children's product market, or ``de-specing'' their 
toys--with no offsetting improvement in safety. As a mother of six 
children, I remember Christmas shopping for new and different products 
at affordable prices, and I expected a creative and vibrant market all 
year-round. Parents expect the products they buy to be safe. But they 
also expect them to be creative, and they are entitled to a marketplace 
that encourages new ideas and the next ``must have'' toy of the season. 
Instead, the costs of complying with the CPSIA will discourage 
newcomers to the market and choice will be reduced, even as prices 
increase. Some international toy makers have even decided to leave the 
American market due to the costs imposed by the CPSIA, although they 
are still offering their products to European consumers.\7\
---------------------------------------------------------------------------
    \7\ One American importer of toys lists on its website the European 
brands that it no longer offers for sale in the United States due to 
the CPSIA: http://www.eurotoyshop.com/getEndangeredToys.asp.
---------------------------------------------------------------------------
    Given our economic situation and the mandate from the American 
people to shrink the size of government and reduce the numbers of 
unnecessary regulations, I believe some of the CPSIA's requirements 
could easily be scaled back. Job growth in the United States comes 
through the growth of small businesses--and the CPSIA's regulations 
directly hamper that growth.

    Question 2. Does the Commission have any plans to assess the 
negative impacts of the law, and to take necessary actions to alleviate 
these burdens before they eliminate any more jobs?
    Answer. To my knowledge, there are no plans to assess fully the 
impact of the CPSIA or even the regulations we are scheduled to 
promulgate.
    Regarding action by the Commission to alleviate the law's 
unnecessary burdens, I no longer believe that this is likely. Before my 
Senate confirmation hearing, I was asked by both Democrat and 
Republican Senators to ``find flexibility'' in the law wherever 
possible, because the law had resulted in many unintended or unforeseen 
consequences. Once confirmed as a Commissioner, I took this request 
seriously.
    However, the flexibility that I have found in the following rules 
was rejected by a majority of Commissioners:

        a. Absorption exclusion--I argued that the absorption exclusion 
        under Section 101 was actually intended to exclude certain 
        products from the lead limits (rather than be meaningless), and 
        therefore that the term ``any lead'' in that section may be 
        interpreted to mean a de minimis, harmless amount of lead in a 
        children's product. If the Commission had accepted my 
        interpretation, lead in the substrate of ATVs, bicycles, and 
        brass axles on toys would be legal--since lead in the substrate 
        of these products is not harmful (See answers under ``Lead 
        Standard'' below). Because the Commission rejected this 
        interpretation, it voted to reject the petition of a 
        manufacturer of toy cars, even though the car's brass fitting 
        contained less absorbable lead than the Food and Drug 
        Administration deems to be acceptable in a piece of candy.\8\
---------------------------------------------------------------------------
    \8\ http://www.cpsc.gov/pr/northup110409.pdf.

        b. Civil Penalties Factors--In the Commission's interpretive 
        rule on Civil Penalties Factors, I proposed a number of changes 
        to provide more certainty for the regulated community and to 
        ensure that, while the overall civil penalty ceiling was 
        raised, ``technical'' violations, such as incorrect paperwork, 
        would not be treated the same way as more serious violations, 
        such as failures to meet safety standards. This is one area of 
        the statute that was not too prescriptive, and a middle-ground 
        could have been reached.\9\ Unfortunately, a majority of the 
        commissioners did not want to provide that leeway.
---------------------------------------------------------------------------
    \9\ http://www.cpsc.gov/pr/northup03102010.pdf.

        c. Definition of Children's Product--The CPSIA applies to all 
        ``children's products'', statutorily defined as products 
        ``primarily intended for a child 12 years of age or younger.'' 
        The comments that the Commission received following the 
        proposed rule made clear that the parameters we had tried to 
        set in the proposed definition were not helpful to most 
        manufacturers that produce children's products intended for the 
        10-12 or pre-teen age groups, or that straddle the age limit of 
        the statute. The entire reason for defining the term was to 
        provide guidance to these types of manufactures, who need 
        certainty to know how to determine if their products fall under 
        the purview of the CPSIA. After receiving these comments, the 
        Commission had a chance to put a much narrower ``fence'' around 
        the scope of covered products--or to at least define clearer 
        boundaries. Unfortunately, the Majority chose to leave the 
        definition vague whenever possible, which helps neither the 
        CPSC staff,\10\ nor the regulated community.\11\
---------------------------------------------------------------------------
    \10\ Justin Pritchard, ``Feds dismiss need to recall lead drinking 
glasses,''Associated Press. December 11, 2010. http://news.yahoo.com/s/
ap/20101211/ap_on_he_me/us_cadmium_lead
_glassware.
    \11\ http://www.cpsc.gov/pr/northup09292010.pdf.

        d. ``Children's product safety rules''--I offered a valid, 
        alternative interpretation of the statute with regard to the 
        requirement to impose third-party testing on all ``children's 
        product safety rules.'' A clear distinction can be made between 
        ``children's product safety rules'' and more general ``consumer 
        product safety rules'' promulgated well before the passage of 
        the CPSIA. Unfortunately, because the Majority chose to view 
        all consumer product safety rules of the Commission as 
        potential ``children's product safety rules,'' it imposed an 
        unnecessary, additional layer of testing (at third-party labs) 
        on manufacturers of carpets and rugs, vinyl, clothing textiles 
        and mattresses--all of which are subject to consumer product 
        safety rules. The Commission did not have to take this step--
        and there is no risk associated with these products that 
        necessitates new third-party testing requirements.\12\
---------------------------------------------------------------------------
    \12\ http://www.cpsc.gov/pr/northup07122010.pdf.

        e. Database--As described below in the questions on the 
        database, I proposed an alternative database rule that would 
        have responded to a number of manufacturer concerns and made 
        the database a more accurate source of information for 
        consumers. Unfortunately, the Commission's Majority passed a 
        rule that went well beyond the statute's requirements, allowing 
        ``anyone'' to submit reports of harm--even advocacy groups, 
        attorneys and random bystanders that may not have firsthand 
        knowledge of the incident. In total, the Commission Majority's 
        database rule ensures that the database will be filled with 
        inaccurate reports of harm that will be useful only to advocacy 
        groups and trial attorneys, and will be time consuming and 
        costly to manufacturers--particularly small businesses. Due to 
        the inaccuracy of reports on the database, it will be a waste 
        of taxpayer resources and will not be useful to the consumers 
        it was intended to help.
    Finally, regarding the upcoming rule on Testing and Labeling 
Pertaining to Product Certification (``15 month rule''), it is 
important to keep in mind that the statute does not permit the agency 
to exempt any manufacturer from the law's testing requirements. 
Exemption from the testing requirement is the main change sought by 
small manufacturers. Because we cannot exempt companies from the 
initial third-party test that every manufacturer must do to every 
component of their product--even if the product poses no risk--I hope 
that the Commission will at least alleviate the burden through the 
``continued testing'' requirements of the statute and the testing 
protocols, where we do have some flexibility. However, removing the 
costly requirements of third-party testing and certification will 
require an act of Congress amending the CPSIA.

    Question 3. Chairman Tenenbaum mentioned the new Small Business 
Ombudsman. Do you believe that this Ombudsman will alleviate the 
expressed concerns of small businesses?
    Answer. Although I appreciate the underlying objective of 
increasing Commission outreach to stakeholders such as small 
businesses, I do not believe that creating a brand new office for this 
purpose will address such stakeholders' ongoing frustrations with 
Commission actions, add value to our core mission of product safety, or 
represent a wise use of taxpayer dollars.
    In particular, I disagree with the implication that the new 
outreach to small businesses will help those who are struggling with 
the CPSIA. Small businesses are not clamoring simply for more 
information from the Commission about how to comply with this law--they 
are asking for relief from this law because it is killing them. Also, 
as the witnesses in the Second Panel of the December 2 hearing 
indicated, while the Commission has been open to listening to their 
concerns, this openness has not translated into more helpful 
rulemaking.
    The solution for small businesses is not more government; it is 
repealing the portions of the CPSIA that impose tremendous costs 
without increasing safety. Furthermore, no matter how successful this 
new office may be, small businesses will still have to hire their own 
lawyers to fully grasp their particular obligations under the complex, 
far-reaching new regulations being promulgated by the Commission. In 
that respect, creating this office is like offering a Band-Aid 
TM for a problem that requires major surgery.
    If we really wanted to help small businesses, this Commission would 
do everything in its power to mitigate the unintended consequences of 
the CPSIA through its rulemaking--something I have continued to argue 
for with limited success. It would add clarity and factor risk into our 
policies as much as the statute allows. Even better, we would 
unanimously approach Congress and ask that the law be reformed or 
repealed in a meaningful way so that only risky products are impacted--
since the CPSIA has clearly taken us away from our core mission of 
product safety. Anything short of these steps will not help the small 
business community or a floundering economy.
    Finally, I am concerned that creating a new office to govern the 
``education and outreach'' responsibilities to industry stakeholders 
may complicate or even overtake the outreach we already perform under 
other offices such as our Office of Compliance. Right now, if a small 
company needs to know if its product falls under the purview of a 
particular regulation, it can call the Office of Compliance for advice. 
It is a key function of that office to assess products every day in the 
course of its enforcement responsibilities. By creating a new office in 
charge of ``outreach'' duties, we create unnecessary complications and 
risks in our communications with the public, including: (1) having two 
offices that could answer the same question differently; and/or (2) 
moving the agency away from its pure enforcement responsibilities and 
instead providing something akin to product pre-approval services. The 
latter course could potentially turn a relatively small CPSC into a 
behemoth more like the Food and Drug Administration. It is depressing 
to think it is even remotely possible we could have a government office 
dedicated to ``pre-approving'' all consumer products before they go to 
market.

    Question 4. The Commission's stay on third-party testing for lead 
content is scheduled to lift in February. Is the Commission prepared to 
move forward with lifting this stay of enforcement? Do you believe that 
businesses have been given the information necessary to comply with 
this requirement? Have they been given enough time to incorporate 
necessary changes to comply with the requirement by the February 
deadline?
    Answer. On May 20, 2010, the Commission issued Notices of Proposed 
Rulemaking on (1) Testing and Labeling Pertaining to Product 
Certification (75 FR 28366), and (2) Conditions and Requirements for 
Testing Component Parts of Consumer Products (75 FR 28208). These 
proposed rules--referred to by the CPSC as the ``15-month rule'' and 
the ``component testing rule''--address, inter alia, the protocols that 
will govern third-party testing of children's products, including 
random sampling methods and the availability of component parts testing 
as a means to encourage compliance further up the supply chain and to 
provide manufacturers with more options to come into compliance. The 
Commission is just beginning consideration of the final versions of 
these rules.
    The delay in finalizing these rules is of concern, because the 
Commission's previous stays on lead content testing were implemented 
principally based on the recognition that manufacturers would be unable 
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a 
reasonable period of time. If the stay is lifted prematurely, many 
small manufacturers, in particular, will be unable to afford to comply 
independently with the third-party testing requirement, and will stop 
making certain products or go out of business entirely.
    This link between finalization of the 15-month and component 
testing rules and the lifting of the stay was recognized by 
Commissioners of both parties. As explained in the Commission's 
February 2009 Federal Register notice, the stay on third-party testing 
of children's products for lead content was first implemented in 
response to ``confusion as to . . . whether testing to demonstrate 
compliance must be conducted on the final product rather than on its 
parts prior to assembly or manufacture . . . and what sort of 
certificate must be issued and by whom.'' 74 FR 6396 (February 9, 
2009). The stay was thus intended to provide the Commission time to 
promulgate new rules addressing, inter alia, ``production testing of 
children's products subject to third-party testing and certification . 
. . including random sampling protocols,'' so that ``the right tests 
are run on the right products without unnecessary and expensive 
testing.''
    During the December 2009 public briefings to consider whether to 
lift the stay, CPSC career staff reported that the apparel component 
manufacturing sector was reluctant to initiate component testing while 
the breadth of the requirement remains unsettled, and that smaller 
manufacturers were unable to obtain component parts testing because 
suppliers were reluctant to undertake the tests until the final rules 
for component testing and certification are in place. In the face of 
this evidence, Chairman Tenenbaum acknowledged that she ``would never 
agree to lift the stay'' until the 15-month and component parts rules 
are in place. She voted to extend the stay ``in order to allow 
component testing adequate time to develop and to give our stakeholders 
adequate notice of new requirements.'' Commissioner Moore also 
recognized the need to ``give the small manufacturers, who often buy 
their supplies in small amounts at retail outlets rather than through 
bulk purchases from wholesale distributors, sufficient time to find 
sources of lead compliant materials.'' During the December 16, 2009 
public briefing on the stay, Commissioner Adler also conceded that the 
15-month rule should be in effect before the stay is lifted. Although 
he retracted that view the following day in his written statement 
explaining his vote to extend the stay, Commissioner Adler predicated 
his changed position on his belief that ``[n]ow that companies know 
they can rely on component suppliers for compliance with the law, they 
should be able to plan production and control costs in a reasonable 
manner.''
    Consistent with the views of all five Commissioners, the Commission 
``determined that testing of children's products for lead content by a 
recognized third-party testing laboratory and certification based upon 
that testing should begin on the products manufactured after February 
10, 2011 to allow component testing to form the basis for 
certifications for lead content . . .'' 74 FR 68588 (December 28, 
2009).
    A year has now passed, but in the absence of final 15-month and 
component testing rules, component testing still cannot form the basis 
for certifications for lead content. Rather, small manufacturers 
continue to report to the CPSC that component suppliers are refusing to 
test altogether or are refusing to supply certifications, and that 
certifications are unavailable from the retail outlets where many small 
manufacturers obtain component parts. Under these circumstances, a 
continuation of the stay would be consistent with the stated views of 
all five Commissioners. Commissioners Northup and Nord, and Chairman 
Tenenbaum all expressly linked the lifting of the stay to at least the 
finalization of the 15-month and component testing rules. Commissioner 
Moore supported extending the stay to give small manufacturers 
``sufficient time to find sources of lead compliant materials'', and 
Commissioner Adler predicated his willingness to delink finalization of 
the 15-month rule from the stay on his expectation that small 
manufacturers would be able to ``rely on component suppliers for 
compliance with the law.'' Given that component part suppliers remain 
unwilling or unable to provide component part certifications in the 
absence of final rules, there is no factual predicate for any of the 
Commissioners to support lifting the stay.
    It is also important to emphasize that publication of the proposed 
rules has not provided the regulated community with the any certainty 
regarding the content of the final rules. Indeed, the CPSC's record of 
rulemaking over the past year demonstrates that a final rule can change 
materially from its proposed version and can impose more onerous 
requirements. It is therefore not surprising that component parts 
suppliers remain unwilling to incur the expense of providing 
certifications under a proposed regime that may change substantially 
before it is finalized.
    I therefore intend once again to urge the Commission to vote to 
continue the stay of enforcement on third-party testing and 
certification of lead content in children's products until one year 
after publication of final 15-month and component testing rules. 
Considering the lead time necessary for manufacturers between design 
and production, allowing one year after the two testing rules are 
finalized is necessary for manufacturers to benefit from the rule. 
Doing so would comport with the expectation created among regulated 
industries through the Commissioners' and the Commission's public 
statements that the stay would not earlier be lifted.
    Moreover, lifting the stay before the final 15-month and component 
testing rules are published would place manufacturers in the untenable 
position of trying to comply with the proposed rule, while anticipating 
a potentially much different final rule. This would provide 
manufacturers with insufficient time within which to modify their 
compliance management processes once the final rule was issued, and 
would cause needless disruption to business planning, supply chain 
management, test lab contracting, and other aspects of product 
manufacturing, due to the rapidly changing requirements.
    Finally, a reasonable time after publication of the final rules is 
necessary in order to afford the regulated community time to come into 
compliance. Otherwise, it may be too late for many small manufacturers 
to benefit from the component testing rule. In this regard, it is 
essential that the Commission retain in the final component parts rule 
the proposed provision,  1109.5(g)(1), affording component parts 
certifications ``currency'' to allow them to be reasonably relied upon 
by downstream manufacturers without the need for duplicative testing.

    Question 4a. Do you believe that the health of children has been at 
greater risk because of this stay of the third-party testing 
requirements?
    Answer. No. Neither the lead standard(s) of the CPSIA nor the 
third-party testing requirements of the law are based on risk, so the 
absence of either of these requirements also does not create or denote 
a risk. I refer you to my answer under the ``Lead Standard'' questions 
for more information on the risks associated with lead.

    Question 5. Is the Commission going to consider extending the stay 
in order to ensure that the affected businesses are adequately prepared 
and that there are enough resources to prevent a negative impact on the 
businesses affected? If so, when do you plan on doing so?
    Answer. Because the Commission has yet to finalize the rules we 
intended to publish before passage of the original stay in February 
2009, which provide the ``instructions'' regarding what manufacturers 
need to test, how often, and other details, I would vote to extend this 
stay to a future date, pending the finalization of these rules. 
However, the decision rests entirely with the Majority, since it would 
take three votes for the date of lifting of the stay to be changed and 
for such a change to be conditioned on the completion of the 
Commission's testing rules.

    Question 6. The CPSIA draws a clear distinction between general 
product safety rules and children's product safety rules. Yet the 
Commission has chosen to apply the requirement of third-party testing 
to all children's products under the general product flammability 
rules. Can you tell us why this decision was made?
    Answer. The Commission, by a 3-2 vote along party lines, decided to 
ignore the distinction between children's product safety rules and 
consumer product safety rules, and to require third-party testing of 
children's products to all the rules. Thus, general ``consumer product 
safety rules,'' such as our flammability regulations for carpets and 
rugs, are now also ``children's product safety rules'' under the CPSIA. 
Manufacturers of carpets and rugs (as well as vinyl, wearing apparel 
and mattresses) already must adhere to a strict testing protocol for 
their products. This decision means that whenever they create a 
children's version of a product, they will have to do additional third-
party tests to certify the agency's flammability standards. I opposed 
this decision, because these new third-party testing requirements were 
never part of the original standards promulgated by the Commission, and 
will not address a known risk. In fact, this was another area of the 
statute that allowed the Commission flexibility to prevent unnecessary 
new testing requirements and costs in a struggling economy. The 
Commission easily could have distinguished between ``children's product 
safety rules'' and more general consumer product rules of the 
Commission, and thereby avoided additional third-party testing 
requirements, where they are neither required by the statute nor risk-
based.
    Of all of the votes we have taken at the Commission, I had hoped 
that this would be an easy one. After all, it is unlikely that Members 
of Congress were anticipating adding third-party testing requirements 
to the 2007 mattress standard, the 1970 standard for carpets and rugs, 
and others when the CPSIA was passed. Unfortunately, I believe it will 
now take an act of Congress to reverse these requirements and to 
prevent future ``consumer product safety rules'' from being caught up 
in the CPSIA's third-party testing regime.
    I would also note that due to the Commission's vague ``children's 
product'' definition, it is likely to be difficult for manufacturers to 
distinguish between a ``children's rug'' or ``children's carpet'' and a 
general-use carpet or rug. This difficult distinction also illustrates 
the absurdity of requiring carpets and rugs with children's decorations 
to be sent to a third-party, CPSC-accredited lab for testing (beyond 
the normal testing requirements of the standard), when the carpet and 
rugs in the hallway or in the living room of a home, where children 
also play, are no less safe without these added third-party testing 
requirements.

    Question 7. The flammability standards have been in place with 
testing protocols for adult and children's products for some time. Yet 
the Commission has chosen to apply this additional third-party testing 
requirement to children's products under those rules. Is there any 
evidence that the products affected by this ruling, such as carpets or 
vinyl plastic, were unsafe under the prior testing regime and needed to 
be subjected to third party tests to protect children?
    Answer. No. And the Commission did not even consider whether these 
products presented a risk when it decided to require additional third-
party testing to the flammability standards.

    Question 7a. Is there any evidence that children's versions of rugs 
or other affected products are in more danger than adult versions of 
those products to necessitate this additional testing standard?
    Answer. No. The original flammability standard did not contemplate 
a difference between adult and child rugs, and the Commission does not 
even collect flammability data distinguishing between adult and child 
carpets and rugs.

    Question 7b. Isn't an adult version of an affected product more 
likely to be subjected to a cigarette or some other igniting source?
    Answer. The Commission does not collect data on this question. 
However, I believe parents who smoke are more likely to do so in common 
areas of the house than in their child's room. I would also presume 
that candles are more likely to be found in common rooms or adult rooms 
than in a child's bedroom or playroom. Moreover, the kitchen is 
traditionally the room with the greatest risk of fire, and is an 
unlikely location for a children's rug or other product. So it hardly 
makes sense to require more rigorous and costly testing for a child's 
room.
    As I said in my opening statement with regard to lead, children do 
not live cooped up inside of their rooms surrounded only by 
``children's products.'' Children live throughout the house, run around 
outside, and are exposed to lead in their everyday environment. In 
fact, they are surrounded by it: in the car (adult seat belts, window 
cranks) and in their homes (pots, pans, furniture knobs, door handles, 
appliances, lamps). These products do not threaten a child's health 
because the lead in them is not absorbable. Hence, it makes little 
sense that the CPSIA bans materials with higher than 300 ppm lead 
content in such products as children's furniture, children's rugs, 
children's lamps, etc.--while children are likely to spend more time 
outside their room handling the TV remote (an adult product), playing 
on their parents' furniture, or playing with just about anything else. 
The same can be said for the flammability of ``adult'' vs. 
``children's'' carpets and rugs. The fact is, these additional testing 
requirements (or lead content requirements) have nothing to do with 
improving safety.

    Question 8. At the end of November, the Commission passed the final 
implementing rule for the public database required under the CPSIA. 
While the law specified who can submit reports of harm, the 
Commission's rule expands this list by defining consumers and public 
safety entities as essentially anyone who wants to submit a report--
even if the submitter does not know who was harmed, the particular 
product involved, and did not see the incident occur. Therefore, as 
opposed to the list created by the statute, submitters are no longer 
limited to people who could have first-hand knowledge of the incident. 
What are your concerns with this expanded list of submitters?
    Answer. The statute provides a list of submitters to the database, 
all of which are groups likely to have first-hand knowledge of the 
incident. Day care centers at which an incident of harm has occurred, 
for example, should be permitted to report to the database. 
Additionally, consumers of the product in question, health care 
professionals who treat the injured person, or emergency first 
responders at the scene should all be permitted to submit reports of 
harm to the database--and the statute requires all of these categories 
of submitters.
    However, as I explained in my November 24, 2010 and April 22, 2010 
statements, the Majority's interpretation of the statute is flawed 
because it has greatly expanded the list of allowable submitters to the 
database. This expansion goes against the statutory purpose that the 
database be ``useful'' for consumers, and does not comport with 
Congress's discussion on the purpose of the law prior to its 
passage.\13\ Indeed, the Majority has expanded the list of submitters 
to such an extent that anyone can submit reports of harm--thereby 
rendering meaningless the statutory language listing permitted 
submitters.
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    \13\ On the Senate floor, during consideration of the CPSIA on 
March 5, 2008, Senator Pryor stated: ``We have tried to find something 
that is balanced, that provides information, but also has some 
filtering so we make sure erroneous information is not disseminated. 
But the goal of this provision is that the public has the right to know 
when products are dangerous.''
---------------------------------------------------------------------------
    It is important for individuals with first-hand knowledge of 
incidents of harm involving consumer products to be able to submit 
reports to the new database. However, groups or individuals with no 
direct knowledge of the incident, did not see it happen or do not even 
know the person that was harmed, should not be permitted or encouraged 
to submit incident reports to the database. There are several reasons 
why first-hand knowledge is essential, but the primary reason is 
accuracy. A database full of inaccurate reports from individuals who 
have second or third-hand information is not remotely helpful to 
consumers using the database to determine which consumer product they 
should purchase.
    Advocacy groups, attorneys and other second and third person 
reporters added by the Majority's database rule are not listed in the 
law as allowable submitters to the database, nor should they be. If 
they are not themselves consumers of the product that caused the 
incident of harm, or otherwise a first-hand witness (per the list of 
submitters in the statute), advocacy groups have no business inputting 
to a public database information that is intended to be a resource for 
consumers. Not only is adding advocacy groups as submitters contrary to 
the statute, but it invites dishonest, agenda-driven use of the 
database--diluting its usefulness for consumers. Advocacy groups, trial 
lawyers, other nongovernmental organizations and trade associations, 
all of which the Majority has added as allowable submitters, must serve 
their own agendas and lack an incentive to prioritize accuracy in their 
reports of harm. By inviting such groups to input reports of harm (none 
of which have to be verified for accuracy), this Commission has all but 
guaranteed that the database will be a tool for policy agendas, 
lawsuits and trade complaints rather than a place where parents can 
search for useful information about product safety. Why even have a 
taxpayer-funded database (at a price tag of $29 million, so far) that 
will be no more useful than an ``Amazon.com'' or any of the other 
hundreds of websites where anyone can submit comments on a product?
    There are many advocacy groups and associations that serve a role 
in public policy, but may not have the incentive or ability to provide 
specific and accurate product identification information to the 
Commission's database. For example, the National Fire Protection 
Association (NFPA) supports government-mandated sprinklers in new 
homes, a controversial policy. One cause of house fires is the use of 
cigarette lighters, which are consumer products. Thus, the NFPA has a 
strong incentive to add all reports of house fires caused by lighters 
to the Commission's public database. The more incidents in our 
database, the better case they can make that new fire prevention 
technology--which their members sell--should be mandated in homes.
    But what incentive does NFPA have to ensure that it correctly 
identifies the brand of lighter in an incident report: A lighter may 
appear to be the branded product of a particular manufacturer, but 
instead be a cheap counterfeit. The NFPA is interested solely in 
reporting house fire incidents; the particular cause is not relevant to 
its goal of promoting sprinklers. Meanwhile, the company identified in 
the report as the manufacturer of the cigarette lighter must defend 
countless inaccurate (or at least unverifiable) claims about its 
product. Such inaccurate and unverifiable information is of no value to 
a consumer seeking information on the safest type of lighter.
    The problems caused by the overly expansive list of submitters in 
the Majority's database rule could have been reduced if reports of harm 
had to be verified, or simply verifiable, before being published. 
Unfortunately, the Majority also rejected the proposals contained in my 
alternative database rule that would have made these reports more 
verifiable.
    One of my unadopted proposals would have required reporters of harm 
to include the victim's identity and contact information with a report 
(to be held confidential, as is current practice). Commission staff 
could then at least follow up with the victim in response to a 
manufacturer's claim of a material inaccuracy, in order to verify the 
report.
    In my alternative rule, I also included such additional required 
fields as the approximate date of purchase of the product and whether 
the product was purchased ``new'' or ``used.'' This information would 
have allowed consumers using the database to gauge the age of the 
products and know whether the product in question was the one currently 
in stores or is similar to the model they own. These proposals were not 
adopted by the Majority.
    Finally, while submitters to the database must check a ``self-
verification'' box to assert accuracy, this will do little to 
discourage or prevent inaccurate reports of harm. The final database 
rule merely asks the submitter of a report of harm to check a box 
stating that the report they are submitting is accurate ``to the best 
of their knowledge.'' The ``best'' knowledge of someone with no first-
hand knowledge is of little value. An individual or group without 
first-hand knowledge will likely not have the full story of what 
happened--including the exact type of product, the recent history of 
the product, or even the precise cause of the incident.

    Question 9. The intention of the database is to provide useful 
information to consumers. A substitute amendment included provisions to 
improve the accuracy of the data submitted by requiring the inclusion 
of additional information. These suggestions were rejected by a 
majority vote of the Commissioners. How would the substitute have 
improved the database for consumers?
    Answer. In addition to limiting submitters to only those enumerated 
in the statute, and adding required fields to improve the reliability 
of reports, my alternative proposal also acknowledged the Commission's 
discretion to withhold reports of harm from publication where a valid 
claim of material inaccuracy is pending.
    In the latter regard, I supported a valid and more useful 
interpretation of the statutory 10-day time frame for evaluating claims 
of material inaccuracy. Under my interpretation, the brief 10-day 
window presents a strong incentive for manufacturers to submit any 
claims of material inaccuracy quickly, and for the information to go up 
on the database as soon as possible--that is, following the 10th day as 
long as there has been no claim of inaccuracy. However, if a 
manufacturer submits by the 10th day an adequately supported claim of 
inaccuracy, the Commission can and should withhold that incident until 
the claim is resolved. Under this interpretation, data is not limited 
in the database but better verified before it is posted. I refer you to 
my November 24, 2010 statement for further details.
    Notably, the Commission's Notice of Proposed Rulemaking on the 
database originally included an interpretation similar to mine. For 
example,  1102.26 of the NPR states: ``If a request for determination 
of materially inaccurate information is submitted prior to publication 
in the database, the Commission may withhold a report of harm from 
publication in the Database until it makes a determination.'' \14\ 75 
FR 29180. That language could not have been included in the NPR without 
a legal opinion supporting the permissibility of the policy choice. 
That the agency apparently believed at one time that this approach is 
legally permissible reflects, at a minimum, statutory ambiguity 
regarding the point.
---------------------------------------------------------------------------
    \14\ The preamble of the NPR contains analogous language: ``If a 
request for determination of materially inaccurate information is 
submitted prior to publication in the database, the Commission may 
withhold a report of harm from publication in the database until it 
makes a determination.'' 75 FR 99, at 29161. And this: ``We propose 
that in cases where a claim of materially inaccurate or confidential 
information is under review, the Commission, in its discretion, may 
withhold a report of harm in part or in full until such a determination 
is made.'' 75 FR 99, at 29170 (Response to summary 26)(emphasis added).
---------------------------------------------------------------------------
    Not surprisingly given the NPR, many if not most of the commenters 
assumed that incidents would not go into the Database pending the 
determination of a material inaccuracy claim. Although at least one 
commenter expressed the policy view that reports of harm should go up 
on the 10th day even when such claims are unresolved, no one--not even 
consumer groups--argued that the statute legally prohibits the agency 
from withholding reports from publication for the duration of its 
investigation. To the contrary, several commenters proposed a more 
detailed protocol for addressing claims of material inaccuracy, based 
on their understanding that reports would be withheld from publication 
while under review for accuracy. And yet the Majority's final rule now 
forbids delaying publication in those circumstances, and fails to 
establish any specific protocol for handling requests for 
determinations.
    Finally, it is helpful to remember that the Commission obtains 
information in addition to that which will be submitted to the public 
database, such as emergency room data, death certificates, etc. It is 
acceptable (and probably preferable) for the Commission to continue to 
absorb as much information on consumer products as it can--and this 
includes reports from advocacy groups, trial lawyers and trade 
associations. However, it is not necessary nor is it statutorily 
required that such information, particularly that which is neither 
accurate nor verifiable, also be posted on the public database. This is 
one area where my position on the database differs starkly from that of 
the Majority. I believe inaccurate information in a public database 
(with the official backing of ``.gov'') is not safety information; on 
the contrary, it is simply misinformation--and a waste of taxpayer 
resources.

    Question 10. What are your concerns about the accuracy and 
reliability of the information that will be provided?
    Answer. As stated in the previous questions, I have many concerns 
with the accuracy and reliability of the new public database, and I 
proposed an alternative database rule to try and address these central 
concerns.
    Because the Majority's database rule all but guarantees that the 
database will be flooded with inaccurate reports of harm, it will be 
less useful for Commission staff in determining hazard patterns than 
are the current, internal databases we have today. Frankly, this is one 
of my greatest fears--that the Commission staff will be overwhelmed by 
inaccurate reports (or the reports that get picked up by the media) and 
unable to use their expertise to search objectively for genuine 
hazards. As the database is swamped with misleading or inaccurate 
reports, they will drown out the accurate ones.
    There are a number of ways in which the new database could be 
unhelpful or misleading for consumers. Consider this scenario: Company 
A sells five million high chairs and Company B sells 5,000 high chairs. 
Company A has six incident reports on the database and the other has 
one incident report (all of which are unverifiable). Thus, a consumer 
could falsely conclude that Company A's high chair is less safe, even 
though simply due to the number of units it sold, it is more likely 
that people own that high chair--and more likely that reports on that 
high chair would make it into our database. Or, it is also possible 
that some of the reports about Company A's high chair actually 
pertained to older models of the high chair that are no longer for 
sale, which means the information may be entirely irrelevant for people 
using the database to look for safety information about current 
products on the market.
    As a consumer and a grandmother, I do virtually all of my research 
on baby products (e.g., regarding safety, quality and price) at the 
point of sale--usually on the website from which I am ordering, such as 
an ``Amazon.com.'' The hundreds of comments on these websites cover a 
broad array of useful information. But for most products, I would not 
slow down my research to look onto a government website for additional, 
equally unverifiable, information--particularly when I can see safety 
information right alongside all of the other information I am looking 
for (wear and tear, usefulness, and warranty information) at the point 
of sale or the retailer's website. All of these factors are useful to a 
purchaser.
    Trial lawyers or other groups with self-serving motives will use 
the Commission's database to look for potential trends and patterns of 
hazards.. Under the Majority's database rule, these same groups may 
also submit to the database false and unverifiable reports to fuel a 
lawsuit. It is no coincidence that these groups are strongly in favor 
of this public database and of the Majority's interpretation of the 
statute, which expressly allows them to submit reports of harm.

    Question 11. A central concern with the CPSIA remains that it takes 
away the Commission's ability to assess the risk presented by a 
product. The law focuses on the content of lead in a product, not the 
risk of negative health effects from even limited exposure to that 
lead. Do you believe that there is a risk posed to the health of 
children from exposure to many of the products that are affected by the 
lead limits in the law, such as ATVs, books, pens, school desks, 
furniture, or furniture hardware (i.e., the nuts and bolts that hold 
the furniture together)?
    Answer. No.
    Regarding the risks associated with lead, I included much of this 
information in my opening statement. I believe it is important to 
clarify the risks associated with lead. Some advocates say that ``there 
is no safe level of lead,'' implying that none of us can ever spend 
enough time and money to reduce or eliminate lead everywhere. But there 
is, in fact, an unsafe level of lead that has been established by our 
leading scientific agencies, the National Institutes of Health, the 
Centers for Disease Control and the Environmental Protection Agency. 
Only lead that is ``absorbable'' at greater than minimal levels is 
dangerous, especially to children ages five and under.
    In order to determine risk, it is necessary to make a distinction 
between lead that is absorbable and lead that is not absorbable in 
meaningful amounts. In many other laws relating to absorbable lead 
levels, standards exist to allow for such minimal absorption. For 
example, the Food and Drug Administration allows for 0.1 microgram of 
lead in a one-gram piece of candy.\15\ The Safe Drinking Water Act 
declares ``zero lead'' to be the objective for the amount of lead in 
water, but pipes carrying the water are permitted to be 80,000 parts 
per million (8 percent) lead--allowing for negligible, trace amounts to 
exist in the water we drink.\16\ California Proposition 65 \17\ as well 
as the European Union \18\ allow for a negligible amount of absorbable 
(or soluble) lead in children's products. People often are surprised to 
learn that all children are born with a certain blood lead level, 
depending on the blood lead level of the mother. Some additional amount 
of lead (roughly one microgram per kilogram of body weight) \19\ is 
then taken into the body every day through the food we eat and the air 
we breathe.
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    \15\ ``Supporting Document for Recommended Maximum Level for Lead 
in Candy Likely To Be Consumed Frequently by Small Children,'' Food and 
Drug Administration, November 2006: http://www.fda.gov/Food/FoodSafety/
FoodContaminantsAdulteration/Metals/Lead/ucm17205
0.htm.
    \16\ Environmental Protection Agency, Safe Water Drinking Act, Fact 
Sheets: http://www.epa
.gov/safewater/sdwa/basicinformation.html.
    \17\ California Office of Environmental Health Hazard Assessment 
(OEHHA), Proposition 65--http://www.oehha.org/prop65.html, Children's 
Health at OEHHA--http://oehha.ca.gov/public
_info/public/kids/schools041707.html.
    \18\ European Committee for Standardization (CEN), EN 71-3 Safety 
of Toys--Part 3: Migration of certain elements. CEN, Brussels, Belgium, 
1994: http://ec.europa.eu/enterprise/policies/european-standards/
documents/harmonised-standards-legislation/list-references/toys/.
    \19\ Centers for Disease Control, Agency for Toxic Substances and 
Disease Registry, Toxic Substances Portal: Lead: http://
www.atsdr.cdc.gov/PHS/PHS.asp?id=92&tid=22.
---------------------------------------------------------------------------
    So what lead is actually risky? Lead is risky when it is absorbable 
into the bloodstream at greater than minimal levels. The experts at the 
CDC and NIH have found that lead paint in old houses and lead in dirt 
\20\ near old gas stations are the main source of environmental lead 
presenting a danger to small children (http://www.cdc.gov/nceh/lead/). 
In other words, the risk of absorbability from lead paint in an old 
home that becomes chipped and may be inhaled or ingested is quite high.
---------------------------------------------------------------------------
    \20\ Although lead in dirt is a proven hazard for small children 
nearby to old gas stations that used leaded gasoline or certain 
pesticides, it is notable that the Environmental Protection Agency 
standard for lead in soil is 400 ppm. http://www.epa.gov/lead/ This 
standard for safety is less strict than the current lead content 
standard provided in the CPSIA for children's products, which is 300 
ppm and scheduled to fall to 100 ppm in August of 2011.
---------------------------------------------------------------------------
    In the same vein, a heavily lead-laden metal charm or piece of 
jewelry that can be swallowed presents a danger, because such an item 
could get caught in the stomach and absorbed. However, none of these 
agencies, including the CPSC, has ever found that a child touching a 
brass musical instrument or a vinyl lunchbox, or riding a bicycle, 
could ever rub off enough lead, day after day, year after year, to 
affect his or her health.
    Consider the CPSIA's lead requirements in comparison to these known 
lead hazards in the environment today. The CPSIA's arbitrary lead 
content limits (currently 300 ppm, and moving this August to 100 ppm or 
the lowest achievable level between 100 ppm and 300 ppm) remove the 
ability of the Commission to assess risk, or the absorbability that 
exists for a particular product. Thus, the law's lead content levels 
dictate that the metal handle bars of a bike that pose no health risk 
to a child be outlawed right alongside lead paint or a solid-lead charm 
on a piece of children's jewelry that actually is dangerous.
    The CPSIA has led to a ban on children's books published before 
1985, because the ink in them is likely to contain lead above the 
allowable level. Some at the Commission and many Members of Congress 
have expressed dismay that books have been affected, because children 
are not likely to eat the pages of old books or ingest more than 
miniscule amounts of lead after touching their pages. Likewise, youth 
ATVs and bicycles are outlawed or must be reengineered even though the 
lead that is in the hood, handlebars, or hubcaps will not become 
ingested and absorbed at any discernable level (from hand to mouth 
touching where miniscule amounts of lead may rub off--not from actually 
eating the hood, handlebars or hubcaps). Other everyday products such 
as school lockers, the hinges on a child's dresser, or jackets with 
zippers and buttons are outlawed if they contain tiny levels of lead in 
the substrate. Even ball point pens are outlawed if they have a toy or 
game attached to them and are marketed to children, due to the brass 
found on the tip.
    Finally, as mentioned earlier, children do not live cooped up 
inside of their rooms surrounded only by ``children's products.'' 
Children live throughout the house, run around outside, and play with 
adult products such as pots, pans, furniture knobs, door handles, 
appliances and TV remotes. For example, the new costs associated with 
this law will affect a young child's lamp (usually turned off and on by 
the parent) but not the lamp in the den or the living room that a child 
is as likely to turn off and on. These products do not threaten a 
child's health due to their lead content, because the lead in them is 
not absorbable. This further illustrates the absurdity of the CPSIA's 
requiring the unnecessary reengineering of children's products with 
lead, while children are just as likely (if not, more likely) to play 
with everything else in the house.

    Question 12. The idea of a ``functional purpose exemption'' was 
discussed at the hearing. Can you please explain in greater detail your 
objections to such an idea?
    Answer. The primary proposal put forth by the Commission's Majority 
and by Ranking Member Henry Waxman to amend the CPSIA has been to 
create a new ``exclusion'' from the lead limits in the law for products 
that need lead in the substrate to serve a ``functional purpose.'' This 
exemption is too complicated and costly, and would result in subjective 
exemptions and be of little use to the smaller manufacturers that need 
it the most. Under the proposed exemption, a manufacturer would need to 
petition for a product-by-product (or component by component) 
determination by the Commission prior to selling their product.
    This exemption does not provide the broad exclusion flexibility 
that the CPSC unanimously sought in its January 2010 Report to 
Congress, and presents endless uncertainties and a number of 
unnecessary elements of proof. For example, one criterion for the 
exclusion was that the product ``will have no measurable adverse effect 
on public health or safety.'' But if a product, component part, or 
material will have no measurable adverse effect on health or safety, 
then what reason does a government safety agency have to regulate it? 
Why must a company also then show that the item ``requires the 
inclusion of lead''? Why show that it is ``not practicable or 
technologically feasible to manufacture'' with lower amounts of lead 
when the current level already poses no safety risk? Why demonstrate 
that ``making the lead inaccessible'' is not practicable or 
technologically feasible? Isn't the mere fact that an item will pose no 
lead risk to children sufficient to allow its use?
    Requiring such costly and complicated petitions would result in the 
continued prohibition of many products that pose no risk to children. 
The goal of the exemption to reduce the burdens imposed by the CPSIA's 
non-risk based proscriptions, could not be met under these 
circumstances. Piling on such criteria makes it more difficult to apply 
for exclusions, and raises the question whether deterring petitions for 
safe products is precisely the point. The usefulness of the proposal is 
further reduced by the cost of petitioning a Federal agency, which is 
high even without these exacting requirements. And large businesses, 
with their in-house legal staffs, have an obvious advantage over small 
manufacturers, who would likely be unable even to afford to petition 
for relief under the exemption. Finally, even a manufacturer with the 
resources to pursue such a petition could not bring a product to market 
until CPSC staff analyzed the petition, the Commission took the time to 
consider it, and the majority granted it. Considering the substantial 
time it has historically taken the Commission to rule on pending 
petitions, this amendment was completely unhelpful.
    Instead of creating an exemption from the law that requires pre-
approval by the agency, the CPSIA should be amended so that products 
not posing a lead risk do not have to come before the agency at all. 
The Commission will still retain the right to recall and/or regulate 
any product that is unsafe, including those containing unsafe levels of 
absorbable lead. And manufacturers remain obligated to report to the 
agency any products that do not meet agency standards or which pose a 
risk.

    Question 13. Can you elaborate on and further explain the following 
statement in your testimony: ``. . . the central focus of the agency's 
time and resources in both 2009 and 2010 has been on implementing a law 
that has almost nothing to do with improving safety--the Consumer 
Product Safety Improvement Act of 2008, or CPSIA.''
    Answer. As Chairman Pryor pointed out during the hearing, some 
provisions of the CPSIA, such as the ATV Standard, may effectively 
address known risks. Also, making it unlawful to sell a voluntarily 
recalled product enhances the agency's enforcement powers and promotes 
consumer safety.
    However, the bulk of the law's requirements and their attendant 
costs to the regulated community are not risk-based and will have a 
negligible impact on consumer product safety. Moreover, an overwhelming 
proportion of the Commission's time and energy since passage of the 
CPSIA has been spent implementing the new law. Numerous rules have been 
promulgated and many more are still to come. And with each rulemaking, 
the Commissioners must debate the same questions regarding the meaning 
of the new statutory language and the scope of the new requirements. 
Lost in all of these debates and rulemaking is the agency's mission to 
protect consumers, and especially children, from unsafe products. 
Instead, the agency's discretion to allocate resources and focus 
enforcement efforts to address risk has been replaced by a mandate to 
regulate to fixed and largely arbitrary standards that bear little 
relationship to risk.
    A sample of CPSIA requirements and the CPSC's recent rulemaking 
illustrates these points.

   Lead content limits: The CPSIA sets limits for lead content 
        in all consumer products, without regard for the absorbability 
        of the lead in any particular product. But lead in a product's 
        substrate that is not absorbable in meaningful amounts does not 
        create a safety risk. For instance, lead in paint or in a solid 
        lead charm is hazardous, because in each case the lead can be 
        ingested and absorbed into the system. The lead in bicycle 
        handlebars or the brass spokes of a toy wheel, in contrast, is 
        part of the metal's substrate, is not absorbable, and therefore 
        presents no safety risk. Moreover, lead is an important element 
        that adds strength, machineability, weight and other traits 
        that can be difficult to replace. As a result, companies have 
        been required to spend millions reengineering products to 
        eliminate lead from components that contain little to no 
        absorbable lead, and were therefore never harmful in the first 
        place. The CPSIA third-party testing, certification and record 
        keeping requirements similarly create a substantial financial 
        burden with no commensurate improvement in safety.

    The Commission is now beginning to consider lowering the 
        permissible lead limit in children's products to 100 ppm, as 
        the CPSIA requires. The limit must be so lowered ``unless the 
        Commission determines that a limit of 100 parts per million is 
        not technologically feasible for a product category.'' CPSIA  
        101(a)(2)(C). In any event, the Commission must set the limit 
        at the lowest level between 300 ppm and 100 ppm that the 
        Commission determines to be ``technologically feasible.'' CPSIA 
        101(a)(2)(D). But the law does not require or even allow the 
        Commission to first consider whether a lower lead limit better 
        protects children's health. This is a radical departure from 
        the CPSC's traditional role of using its expertise to first 
        assess a safety risk and then regulate it to the extent 
        required to protect the public. There is no scientific basis 
        for reducing the lead limit in a product's substrate to 100 ppm 
        as a means to promote safety. The Commission should be 
        empowered to make that determination before American businesses 
        are crippled by unnecessary costs.

   Phthalates ban/interim ban: The law properly bans certain 
        phthalates that are known hazards. But it overreaches by 
        banning additional phthalates for which the CPSC has already 
        concluded there is insufficient scientific evidence of risk. 
        The law called for a new Chronic Hazard Advisory Panel (CHAP) 
        to re-study these additional phthalates, but bans them in the 
        interim. This has required manufacturers to reengineer products 
        and third-party test to the interim phthalates ban when the 
        CHAP may determine once again that a risk does not exist.

   Database: This agency has already spent $29 million through 
        FY 2011 developing a new public database for consumers. The 
        agency's recent database rule ensures that the database will be 
        populated with unverifiable and likely inaccurate information. 
        It will be no more helpful than a website with consumer reviews 
        or complaints, such as Amazon.com or yelp.com, yet more 
        misleading, because it is implicitly endorsed by the Federal 
        Government. Inaccurate information in a database for consumers 
        is not ``safety information''--it is simply misinformation. See 
        the questions above on the database for more information.

    Drafting the rule for the database put enormous pressure on staff 
        resources. Now, the costs will balloon as the agency fulfills 
        its obligations to convey every single incident report to the 
        manufacturer within 5 days, process responses from those 
        manufacturers, and then post the incident after 10 days. 
        Considering only the decision to allow ``data dumps'' into the 
        database, the database could swamp the Commission's resources 
        very quickly. One conservative estimate is that it will take 
        twenty-two new FTEs to handle the case work generated by these 
        requirements, and that does not include complicated cases 
        requiring the investigation and resolution of a material 
        inaccuracy charge by a manufacturer.

   Third party testing and certification requirements--Section 
        102 of the law requires third-party testing to all children's 
        product safety standards, including lead paint, lead content, 
        phthalates and ASTM F963. The Commission majority has extended 
        this requirement to previously passed ``consumer product safety 
        standards,'' including flammability standards for carpets and 
        rugs, mattresses, and vinyl. However, none of these third-party 
        testing requirements are necessary to address a risk. These 
        requirements simply add burdensome costs to manufacturers, who 
        will either pass the costs on to consumers, or reduce product 
        lines or close, because they cannot afford them. The Commission 
        maintains the authority to pose mandatory testing requirements 
        on manufacturers where necessary to address a risk, but the 
        CPSIA's testing requirements by and large are unnecessary, 
        wasteful and crippling to small manufacturers.

    The Commission has already spent days discussing the rules that 
        will govern the implementation of a certification system that 
        will be effective and efficient. The hours dedicated by the 
        staff over the past 18 months to draft these rules are 
        incalculable.

   Tracking labels: All children's products, regardless of the 
        risk they pose, must include a tracking label. After the 
        current stay is lifted, these labels will become much more 
        complicated because they will have to correctly reflect the 
        finished product's unique lot number and that of each tested 
        component of the product. If so little as one component part's 
        certification is changed, the finished product label will also 
        need to be changed. Similar to Section 102, this provision adds 
        unnecessary costs to small and large manufacturers, without 
        regard to whether their products pose a risk.

   Increase in the maximum civil penalty levels: The CPSIA 
        increased the maximum civil penalty for a violation of a 
        Commission standard from $1.25 million to $15 million, an 
        unprecedented increase for any agency. While this provision was 
        driven primarily by the toy recalls of 2007, which involved one 
        of the largest toy companies, the bar has been raised for all 
        manufacturers. This increased exposure to large fines 
        accompanies the CPSIA's new, complex regulations that already 
        significantly raise the cost to bring a new product to market. 
        Again, this new burden has nothing to do with increased risk 
        and threatens businesses and jobs by its very existence. The 
        Commission could have reduced this burden by providing in its 
        guidance that technical violations (such as a compliant product 
        with a paper work violation) would be penalized at lower 
        levels. But the majority of the Commissioners declined to write 
        that reassurance into their guidance document.

   Enforcement by state attorneys general: Section 218 of the 
        CPSIA authorizes state attorneys general to bring lawsuits 
        against a manufacturers for violating the CPSIA--a law whose 
        standards are, again, not based on risk. This provision invites 
        lawsuits from state attorneys general and thereby exposes large 
        and small manufacturers to a needless, increased risk of 
        liability. It may also require manufacturers to incur 
        additional costs to protect against the application of 
        conflicting standards. For instance, a manufacturer can avoid 
        any risk of a CPSC enforcement action for lead content by 
        administering the lead content test recommended by the CPSC. 
        But this would not insulate the manufacturer from a claim by a 
        state attorney general based on the results obtained using a 
        different test. A manufacturer could protect against this risk 
        only by testing the same products repeatedly using different 
        methodology, a large, unjustified expense. In other cases, the 
        mere fact that a state attorney general could enforce a 
        particular standard imposes a burden that the CPSC has judged 
        to be unreasonable. Specifically, the Commission occasionally 
        exercises its discretion to stay enforcement of standards that 
        it deems cannot reasonably be met, based on the availability of 
        laboratory resources or other factors. Yet a CPSC stay is not 
        binding on a state attorney general, who could nonetheless 
        bring an action based on the failure to adhere to the same 
        standard. These sorts of inconsistent and conflicting burdens 
        and risks are precisely why many Federal regulatory standards 
        and enforcement mechanisms preempt state action. The same 
        should have been done here.

    Question 14. You stated that one example of cutting the 
Commission's budget would be to put the agency under one Administrator, 
rather than 5 Commissioners. Can you please elaborate on the benefits 
of this proposal?
    Answer. I believe the CPSC could be run more efficiently by one 
Administrator, rather than a Commission of five or even three. Managing 
a small agency simply does not require more than an Administrator. 
Additionally, I have confidence that Chairman Tenenbaum (or a future 
Administrator) would be able to run the agency much more efficiently 
without the pressures from her Democrat and Republican colleagues, who 
wish constantly to influence her actions in one direction or another. 
Reducing from five Commissioners to an administrator would save the 
substantial costs of office space, Commissioner and staff salaries, and 
any travel for all five Commissioners.
    The Chairman is already solely accountable for all of the agency's 
core functions, including setting the rulemaking agenda, public 
relations, human resources duties, and budgeting. The other four 
Commissioners may be asked to sign off on these things from time to 
time as a formality or to provide input, but ultimately all 
accountability lies with the Chair.
    Rulemaking involves the participation of five Commissioners. 
However, I would argue that this ``participation'' rarely involves more 
than duplicative analytical efforts--all of which usually result in a 
3-2, party-line vote. This also means five different Commissioners, all 
their staffs (12 people), plus dozens of technical staff and lawyers 
are reviewing, editing and analyzing the exact same rule-making 
document.
    Despite my efforts, I have been unable to meaningfully influence 
the rulemakings we have considered. In fact, divided along party lines, 
the Chair is often pushed to align her position with the other two 
Democrat Commissioners. For example, the Commission issued a Notice of 
Proposed Rulemaking on the Definition of Children's Product that was so 
ambiguous we might just as well have not defined the term at all. In 
response, the Commission received many excellent comments from 
manufacturers and retailers illustrating how the parameters of the 
definition provided very little, if any, certainty for products that 
fell around the outer edges of the law's age limit. Then, after weeks 
of review by technical staff, the Office of General Counsel, and all 
Commissioners' staffs, the final rule approved by the Majority was 
worse than the proposed rule, in that it unjustifiably broadened the 
parameters so that even more products fell under the purview of the 
CPSIA. Without four other Commissioners pulling her in opposite 
directions, one Administrator would be solely responsible for fair, 
well-thought-out rulemaking decisions.
    Having five Commissioners also means that many day-to-day 
activities of the Commission must happen five different times, which 
can drain staff time. Moreover, each Commissioner needs his/her weekly 
briefings on rulemakings and other issues with professional staff. 
Unfortunately, it is not useful to combine most meetings with other 
Commissioners, who may have alternative agendas. Nor is it even legal 
under the Sunshine Act for more than two Commissioners to meet 
privately to discuss substantive matters. As a result, professional 
staff spend most of their weeks in repetitive meetings and away from 
other core duties. They also spend five times more time than necessary 
answering Commissioner and Commissioner staff questions, when they 
could be doing so for one Administrator.
    The CPSC still remains a relatively small agency, despite the new 
rules it has promulgated and its responsibility to enforce those rules. 
Other independent commissions, such as the FTC and FCC, might need five 
Commissioners, but those agencies' budgets are more than double ours.
    I am not aware of another independent commission that is under one 
Administrator. However, other regulatory agencies, such as NHTSA and 
FDA are run by Administrators that are accountable to Cabinet 
secretaries and the White House. I could imagine a similar arrangement 
for the CPSC.

    Question 15. Do you have any other budget-reduction recommendations 
that should be considered?
    Answer. I have two recommendations on how to reduce the budget and 
at the same time, increase the Commission's ability to fulfill its 
safety mission:

        1. Defund the public database: The first budget-cutting measure 
        I recommend is not to publicize the Commission's new database. 
        I understand that the agency's internal IT improvements have 
        been beneficial, particularly combining our separate internal 
        databases of information. However, there is simply no safety 
        need to make all of our incident reports public, particularly 
        those that are likely to be inaccurate. If this Commission is 
        to have a public database funded by taxpayers, it should be 
        different and better than any source of information that 
        already exists in the public domain, such as websites like 
        Amazon.com or Yelp.com. Unfortunately, our public database will 
        be no more useful than similar sites that are already available 
        to the public today, and will, in fact, be more misleading to 
        the public, given the likelihood of inaccurate reports and the 
        lack of ability for anyone to verify them.

        Further, the Commission has limited resources for enforcement, 
        and the public database will divert resources from addressing 
        genuine risks to monitoring and processing the likely increase 
        in reports to the agency. Additionally, because inaccurate 
        incident reports will be indistinguishable from accurate ones, 
        the media's attention may focus on inaccurate reports, 
        pressuring the agency to prioritize its efforts based on 
        publicity rather than risk level. The agency has yet to 
        estimate the number of new FTEs we may need, year after year, 
        to administer the public database. However, as stated above, 
        one conservative estimate is that it will take twenty-two new 
        FTEs to handle the case work generated by these requirements, 
        and that does not include complicated cases requiring the 
        investigation and resolution of a material inaccuracy charge by 
        a manufacturer.

        As it is currently designed, and given the Commission's 
        database rule, taxpayer dollars will be supporting a public 
        database with inaccurate and unverifiable information that 
        unnecessarily harms manufacturers, and is not useful to 
        consumers. Many believe the public database, if left unchanged, 
        will be useful only to trial lawyers or advocacy groups that 
        will be able to populate it with unverifiable, second-hand 
        information for their own purposes.

        2. Reform the CPSIA to allow the agency to focus on risk: The 
        best way to allow the agency to perform its core functions--to 
        assess and reduce risk--would be to reform the CPSIA's non-risk 
        based mandates, such as the lead content standard and third-
        party testing and labeling requirements. There are many ways 
        the law could be reformed to provide the agency with 
        flexibility not to impose all of the law's requirements on 
        products that do not pose any risk. Such reforms would free up 
        agency resources to focus on known hazards and to better 
        prioritize our regulatory agenda. It would also free up 
        business resources to expand, build new products and stay 
        competitive with what the marketplace is demanding in the 
        future. Many of these reforms have been discussed in my 
        statement to accompany the agency's Report to Congress in 
        January of 2010.\21\ I would be happy to follow up with further 
        detail, as necessary.
---------------------------------------------------------------------------
    \21\ http://www.cpsc.gov/pr/northup01152010.pdf.

    Question 16. The crib rule was mentioned briefly during the 
hearing. Can you please elaborate on the impact of the crib rule on 
child care centers due to the retroactive effects of the law?
    Answer. I supported the Final Rule on Full-Sized and Non-Full-Sized 
Cribs, which was passed by a vote of 5-0 on December 15, 2010. I was 
also pleased that the Commission provided needed flexibility for child 
care centers and places of public accommodation to allow extra time, a 
full 2 years, to come into compliance with the regulation's 
requirements.
    However, when the rule takes effect, the law's retroactivity 
provisions will still cause tremendous, needless waste for all child 
care centers nationwide--something that this agency does not have the 
ability to prevent. In fact, with the passage of this regulation, every 
crib in this country has become obsolete overnight and unable to be 
sold--regardless of whether that crib was ever subject to a recall or 
ever considered unsafe. Although most articles since the rule's passage 
have focused on the fact that drop-side cribs can no longer be sold or 
used in child care centers, they fail to mention that the agency's new 
standards also impact all other types of cribs.
    The consequences of the retroactivity of the crib rule are immense. 
First, any young family who invested in a new crib over the past year 
or who will buy one in the next six months before the new ones are on 
the market, will not be able to sell it or donate it to a thrift store 
after it has been used, even if the crib has fixed sides and is safe. 
Also, retail stores and thrift stores can no longer sell safe, fixed-
side cribs currently in their inventories. Families often invest in 
second-hand cribs or hand them down to another family member, due to 
the high cost of new cribs. While the Commission advises consumers not 
to use any crib that is over 10 years old, the fact remains that the 
safest place for a baby to sleep is in a crib. It is tragic that the 
unjustified destruction of the second-hand crib market may compel some 
families to opt for an alternative, unsafe sleeping arrangement for 
their infants.
    Furthermore, the law goes far beyond prohibiting the sale of cribs. 
It expressly forbids cribs that met the previous standards but do not 
meet the new standards from being offered for use by places of public 
accommodation or child care centers. Day care centers and hotels across 
the country are required to throw out their current cribs and purchase 
new ones, even if they bought a crib earlier this year that met the 
previous ASTM standard (less than a year old) and is completely safe. 
This will be a tremendous waste of money for families, day care 
centers, and the public fisc, which funds many day care centers.
    The law's retroactivity provision also mandates that these 
standards become retroactive every time they are updated in the future. 
In other words, once the mandatory standards are modified in the future 
to respond to changes in the market, new innovations, or new hazards, 
all the new cribs that meet the Commission standard this year will 
become obsolete once again, cannot be resold, and day care centers once 
again will be forced to buy another set of new cribs. This situation 
will be disastrous for families and day care centers that depend on the 
availability of affordable cribs. I am not convinced that Congress 
intended such a drastic result.
    Of course, crib companies are thrilled by the law's retroactive 
effects. While companies certainly will lose current inventory that 
does not meet the new standard, they will also reap tremendous 
financial rewards, because every family and day care center will be 
forced in the near future to purchase a brand-new crib. They will not 
have access to any safe, used cribs in the resale market. Even if they 
have recently disposed of their drop-side cribs, as this Commission has 
advised for many months, the new, fixed-side cribs they just bought 
will also be obsolete and unable to be resold. In fact, American 
families may not ever have access to much of a resale market if the 
mandatory standards for cribs continue to be modified periodically. 
Each time the standard is modified in the future, yesterday's crib will 
become outmoded, unable to be resold by families, and unable even to be 
used by such places as day care centers and hotels. (This alone 
provides quite an incentive for crib companies to continue proposing 
changes to the mandatory standard!)
    The most economically vulnerable sectors of the market bear the 
brunt of overregulation. In this case, young families, those of 
moderate resources and many day care centers will be negatively 
impacted by this crib rule. I supported this rule because it was 
required by the CPSIA and it provided at least some time for day care 
centers and families to prepare. I believe the Commissioners should 
share the consequences with Congress and give its Members time to 
change the law to avoid unnecessary costs. I am hopeful that Congress 
would be open to amending the law to address these unforeseen 
consequences.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Johnny Isakson to 
                          Hon. Anne M. Northup
    Question 1. In your written testimony you outlined many problems 
that businesses are having in complying with the third-party testing 
and certification requirements of CPSIA. Given the state of the 
economy, the lack of detailed CPSC regulations and the fact that the 
stay on the third-party testing and certification requirements expires 
on February 10, 2011, wouldn't it be best to extend this stay another 
year?
    Answer. Given that the Commission has not finalized its testing 
rules so that manufacturers will know what is required of them, I 
believe it is premature to lift the stay of enforcement on lead content 
testing. The delay in finalizing these rules is of concern, because the 
Commission's previous stays on lead content testing were implemented 
principally based on the recognition that manufacturers would be unable 
to comply with the third-party testing requirement until both the 15-
month rule and the component testing rule had been in effect for a 
reasonable period of time. If the stay is lifted prematurely, many 
small manufacturers, in particular, will be unable to afford to comply 
independently with the third-party testing requirement, and will stop 
making certain products or go out of business entirely
    As you may know, on May 20, 2010, the Commission issued Notices of 
Proposed Rulemaking on (1) Testing and Labeling Pertaining to Product 
Certification (75 FR 28366), and (2) Conditions and Requirements for 
Testing Component Parts of Consumer Products (75 FR 28208). These 
proposed rules--referred to by the CPSC as the ``15-month rule'' and 
the ``component testing rule''--address, inter alia, the protocols that 
will govern third-party testing of children's products, including 
random sampling methods and the availability of component parts testing 
as a means to encourage compliance further up the supply chain and to 
provide manufacturers with more options to come into compliance. The 
Commission is just beginning to consider the final versions of these 
rules.
    A year has now passed since the stay was first extended, but in the 
absence of final 15-month and component testing rules, component 
testing still cannot form the basis for certifications for lead 
content. Rather, small manufacturers continue to report to the CPSC 
that component suppliers are refusing to test altogether or are 
refusing to supply certifications, and that certifications are 
unavailable from the retail outlets where many small manufacturers 
obtain component parts. Under these circumstances, a continuation of 
the stay would be consistent with the stated views of all five 
Commissioners. Commissioners Northup and Nord, and Chairman Tenenbaum 
all expressly linked the lifting of the stay to at least the 
finalization of the 15-month and component testing rules. Commissioner 
Moore supported extending the stay to give small manufacturers 
``sufficient time to find sources of lead compliant materials,'' and 
Commissioner Adler predicated his willingness to delink finalization of 
the 15-month rule from the stay on his expectation that small 
manufacturers would be able to ``rely on component suppliers for 
compliance with the law.'' Given that component part suppliers remain 
unwilling or unable to provide component part certifications in the 
absence of final rules, there is no factual predicate for the 
Commissioners to support lifting the stay.
    It is also important to emphasize that publication of the proposed 
rules has not provided the regulated community with the any certainty 
regarding the content of the final rules. Indeed, the CPSC's record of 
rulemaking over the past year demonstrates that a final rule can change 
materially from its proposed version and can impose more onerous 
requirements. It is therefore not surprising that component parts 
suppliers remain unwilling to incur the expense of providing 
certifications under a proposed regime that may change substantially 
before it is finalized.
    I therefore intend once again to urge the Commission to vote to 
continue the stay of enforcement on third-party testing and 
certification of lead content in children's products until one year 
after publication of final 15-month and component testing rules. 
Considering the lead time necessary for manufacturers between design 
and production, allowing one year after the two testing rules are 
finalized is necessary for manufacturers to benefit from the rule. 
Doing so would comport with the expectation created among regulated 
industries through the Commissioners' and the Commission's public 
statements that the stay would not earlier be lifted.
    Moreover, lifting the stay before the final 15-month and component 
testing rules are published would place manufacturers in the untenable 
position of trying to comply with the proposed rule, while anticipating 
a potentially much different final rule. This would provide 
manufacturers with insufficient time within which to modify their 
compliance management processes once the final rule was issued, and 
would cause needless disruption to business planning, supply chain 
management, test lab contracting, and other aspects of product 
manufacturing due to the rapidly changing requirements.
    Finally, a reasonable time after publication of the final rules is 
necessary in order to afford the regulated community time to come into 
compliance. Otherwise, it may be too late for many small manufacturers 
to benefit from the component testing rule. In this regard, it is 
essential that the Commission retain in the final component parts rule 
the proposed provision,  1109.5(g)(1), affording component parts 
certifications ``currency'' to allow them to be reasonably relied upon 
by downstream manufacturers without the need for duplicative testing.

    Question 2. If another stay is granted, what could Congress, the 
Commission, and industry do together during that year to help the CPSIA 
fulfill its mission without driving responsible manufacturers out of 
business?
    Answer.
Congressional Action
    The best opportunity manufacturers and consumers will have to be 
rid of the non-risk-based, costly testing and certification 
requirements of the CPSIA and to allow the Commission to refocus its 
enforcement efforts on genuine risks, is for Congress to amend the law. 
There are many ways the law could be reformed to provide true 
flexibility to the agency so as not to impose unnecessary reengineering 
and testing requirements on products that do not pose any risk, 
including: (1) exempting products with de minimis absorbable lead from 
the law's requirements; (2) reducing the age range of the law to focus 
on children in the years when they are most likely to be exposed to 
harmful levels of lead; and (3) eliminating the costly third-party 
testing, certification and labeling requirements of the law, except 
where the Commission finds such requirements are necessary to address 
an actual risk. You may find more information on some of these 
proposals in my statement to accompany the Commission's Report to 
Congress in January of 2010: http://www.cpsc.gov/pr/northup01152010.pdf 
Such reforms would free up agency resources to focus on known hazards 
and to better prioritize our regulatory agenda--and bring us back to 
our core mission of safety.
    It is also helpful to keep in mind that the statute does not permit 
the agency to exempt any manufacturer from the law's onerous testing 
and certification requirements. Exemption from the testing requirement 
is the main change sought by small manufacturers. Because we cannot 
exempt companies from the initial third-party test that every 
manufacturer must do to every component of their product--even if the 
product poses no risk--I hope that the Commission will at least 
alleviate the burden through the ``continued testing'' requirements of 
the statute and the testing protocols, where we do have some 
flexibility. However, removing the costly requirements of third-party 
testing and certification will require an act of Congress amending the 
CPSIA.
Commission Action
    Regarding action by the Commission to alleviate the law's 
unnecessary burdens (absent reforms to the law by Congress), I no 
longer believe this to be likely. Before my Senate confirmation 
hearing, I was asked by both Democrat and Republican Senators to ``find 
flexibility'' wherever it is possible in the law, because the law had 
resulted in many unintended or unforeseen consequences. Once confirmed 
as a Commissioner, I took this request seriously.
    However, the flexibility that I have found in the following rules 
or decisions was rejected by a majority of Commissioners:

        a. Absorption exclusion--I argued that the absorption exclusion 
        under Section 101 was actually intended to exclude certain 
        products from the lead limits (rather than be meaningless), and 
        therefore that the term ``any lead'' in that section may be 
        interpreted to mean a de minimis, harmless amount of lead in a 
        children's product. If the Commission had accepted my 
        interpretation, lead in the substrate of ATVs, bicycles, and 
        brass axles on toys would be legal--since lead in the substrate 
        of these products is not harmful. Because the Commission 
        rejected this interpretation, it voted to reject the petition 
        of a manufacturer of toy cars, even though the car's brass 
        fitting contained less absorbable lead than the Food and Drug 
        Administration deems to be acceptable in a piece of candy.\1\
---------------------------------------------------------------------------
    \1\ http://www.cpsc.gov/pr/northup110409.pdf.

        b. Civil Penalties Factors--In the Commission's interpretive 
        rule on Civil Penalties Factors, I proposed a number of changes 
        to provide more certainty for the regulated community and to 
        ensure that while the overall civil penalty ceiling was raised, 
        ``technical'' violations, such as incorrect paperwork, would 
        not be treated the same way as more serious violations, such as 
        failures to meet safety standards. This is one area of the 
        statute that was not too prescriptive, and a middle-ground 
        could have been reached.\2\ Unfortunately, a majority of the 
        commissioners did not want to provide that leeway.
---------------------------------------------------------------------------
    \2\ http://www.cpsc.gov/pr/northup03102010.pdf.

        c. Definition of Children's Product--The CPSIA applies to all 
        ``children's products,'' statutorily defined as products 
        ``primarily intended for a child 12 years of age or younger.'' 
        The comments that the Commission received following the 
        proposed rule made clear that the parameters we had tried to 
        set in the proposed definition were not helpful to most 
        manufacturers that produce children's products intended for the 
        10-12 or pre-teen age groups, or that straddle the age limit of 
        the statute. The entire reason for defining the term was to 
        provide guidance to these types of manufactures, who need 
        certainty to know how to determine if their products fall under 
        the purview of the CPSIA. After receiving these comments, the 
        Commission had a chance to put a much narrower ``fence'' around 
        the scope of covered products--or to at least define clearer 
        boundaries. Unfortunately, the Majority chose to leave the 
        definition vague whenever possible, which helps neither the 
        CPSC staff,\3\ nor the regulated community.\4\
---------------------------------------------------------------------------
    \3\ Justin Pritchard, ``Feds dismiss need to recall lead drinking 
glasses,'' Associated Press. December 11, 2010. http://news.yahoo.com/
s/ap/20101211/ap_on_he_me/us_cadmium_lead
_glassware.
    \4\ http://www.cpsc.gov/pr/northup09292010.pdf.

        d. ``Children's product safety rules''--I offered a valid, 
        alternative interpretation of the statute with regard to the 
        requirement to impose third-party testing on all ``children's 
        product safety rules.'' A clear distinction can be made between 
        ``children's product safety rules'' and more general ``consumer 
        product safety rules'' promulgated well before the passage of 
        the CPSIA. Unfortunately, because the Majority chose to view 
        all consumer product safety rules of the Commission as 
        potential ``children's product safety rules,'' it imposed an 
        unnecessary, additional layer of testing (at third-party labs) 
        on manufacturers of carpets and rugs, vinyl, clothing textiles 
        and mattresses--all of which are subject to consumer product 
        safety rules. The Commission did not have to take this step--
        and there is no risk associated with these products that 
        necessitates new third-party testing requirements.\5\
---------------------------------------------------------------------------
    \5\ http://www.cpsc.gov/pr/northup07122010.pdf.

        e. Database--I proposed an alternative database rule that would 
        have responded to a number of manufacturer concerns and made 
        the database a more accurate source of information for 
        consumers. Unfortunately, the Commission's Majority passed a 
        rule that went well beyond the statute's requirements, allowing 
        ``anyone'' to submit reports of harm--even advocacy groups, 
        attorneys and random bystanders that may not have firsthand 
        knowledge of the incident. In total, the Commission Majority's 
        database rule ensures that the database will be filled with 
        inaccurate reports of harm that will be useful only to advocacy 
        groups and trial attorneys, and will be time consuming and 
        costly to manufacturers--particularly small businesses. Due to 
        the inaccuracy of reports on the database, it will be a waste 
        of taxpayer resources and will not be useful to the consumers 
---------------------------------------------------------------------------
        it was intended to help.

    Because the Commission's majority has largely refused to find 
flexibility where it is possible under the statute, I am no longer 
optimistic that, without Congressional action, the situation will 
improve.
                               Attachment
                Economic Impact of the CPSIA--Examples 
                             2009 and 2010
Costs Associated with the CPSIA
    1. In a letter from the CPSC to Representative Dingell in March 
2009, the Commission indicated that the overall economic impact of the 
CPSIA would be in the ``billions of dollars range.'' The Commission 
also acknowledged that the testing and certification costs will fall 
disproportionately on small-volume businesses. (Letter from Acting 
Chairman Nancy Nord to Representative Dingell, March 20, 2009)
    2. ``Major Rule''--CPSC acknowledges in its FY 2011 Regulatory 
Agenda that its main rule pertaining to the CPSIA's testing 
requirements (CPSC Docket No. CPSC-2010-0038) is a ``major rule'' under 
the Congressional Review Act, resulting in, or likely to result in: (1) 
an annual effect on the economy of $100,000,000 or more; (2) a major 
increase in costs or prices for consumers, individual industries, 
government agencies or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.
    3. In an article entitled ``Makers Are Pushing Back on Toxic-Toy 
Law'' (Wall Street Journal, March 5, 2009 http://online.wsj.com/
article/SB12362135762983
5121.html), Joe Periera reported the following loss statistics:

   Goodwill Industries to destroy $170 million in merchandise.

   Salvation Army expects to lose $100 million in sales and 
        disposal costs.

   The Toy Industry Association estimates inventory losses at 
        $600 million.

   Members of the Coalition for Safe and Affordable 
        Childrenswear lost $500 million.

   The California Fashion Association estimates troubled 
        inventory at $200 million.

   The Motorcycle Industry Council expects to lose 50,000 
        motorized bikes and four-wheelers worth at least $125 million.

    4. On March 11, 2009, Playthings Magazine reported updated data 
from the Toy Industry of America (see http://www.playthings.com/
article/CA6643505.html), including:

   From a pool of nearly 400 manufacturers and 220 retailers, 
        the TIA estimates losses of $2 billion in retail value.

   More than $1 billion in already shipped merchandise has been 
        returned or is being withheld for return.

   More than $800 million in compliant merchandise is at risk 
        of return.

   40 percent of all respondents plan to eliminate jobs to pay 
        for the CPSIA, with more than 1200 jobs reported to be in 
        jeopardy.

      ``TIA: Safety Act puts $2B crimp in toy biz'' 3/11/2009

    5. Separately, the Motorcycle Industry Council advised that total 
losses from disruptions in its members' businesses could total $1 
billion. See: http://www.1st5ive.com/harley-davidson/motorcycles/2009/
02/2452/new-lead-rule-could-cost-motorcycle-industry-1-billion-
annually.
Examples of Businesses Closed Due to CPSIA
Most names provided by the Handmade Toy Alliance

        1. Whimsical Walney, Inc.--Santa Clara, CA

        2. Fish River Crafts--Fort Kent, ME

        3. Kungfubambini.com--Portland, OR

        4. Baby Sprout Naturals--Fair Oaks, CA http://
        www.babysproutnaturals.com/about/

        5. Gem Valley Toys--Jenks, OK

        6. Angel Dry Diapers--Michigan

        7. Abracadabra Educational Craft Kits for Kids--Bend, OR

        8. Hailina's Closet--Ellensburg, WA (thrift store)

        9. Eleven 11 Kids

        10. Perfect Circle Consignment--Bremerton, WA

        11. JenLynnDesigns--http://waytobow.blogspot.com/

        12. A Kidd's Dream--Conway, AK

        13. Storyblox--New Vienna, OH

        14. Phebe Phillips, Inc.--Dallas, TX
        http://www.phebephillips.com/shopnow.htm

        15. Pops Toy Shop--mountains of Tennessee, Virginia, North & 
        South Carolinas
Businesses That Have Stopped Production of Children's Lines Due to 
        CPSIA
Most names provided by the Handmade Toy Alliance

        1. Creative Artworks--Greenwood, AK

        2. Craftsbury Kids--Montepeliar, VT

        3. ``Pockets of Learning'' Special Needs Products Being Driven 
        from Market By Testing Costs--Rhode Island

        4. Creative Learning Connection

        5. Giverny, Inc/Mini Me Geology

        6. HABA

        7. Challenge & Fun, Inc.--http://online.wsj.com/article/
        SB10001424052748703
        478704574612573263963560.html

        8. Hands and Hearts Far East History Discovery Kit--Greenwood, 
        SC

        9. Moon Fly Kids--Las Vegas, NV
Businesses That Closed and List the CPSIA as One of the Factors
Most names provided by the Handmade Toy Alliance

        1. Due Maternity--San Francisco, CA

        2. Frog Kiss Designs--Fairfield, CT

        3. Waddle and Swaddle--Berkley, CA

        4. Lora's Closet--Berkley, CA

        5. Baby and Kids Company--Danville, CA

        6. Baby and Beyond--Albany, CA

        7. Obabybaby--Berkley, CA

        8. Bellies N Babies--Oakland, CA

        9. Oopsie Dazie--http://www.oopsiedazie.com/

        10. Bears on Patrol--not a business, but program by police 
        departments to hand out stuffed animals to scared children--
        http://learningresourcesinc.blog
        spot.com/2009/10/cpsia-cpsia-casualty-of-week-for.html

        11. Simple Treasures
Other Companies Hurt by Retroactivity of the CPSIA's Lead Content Ban:

        1. Gymboree--``change in safety requirements related to levels 
        of phthalates rendered about 1.7 million of its inventory 
        obsolete''

                i. http://www.reuters.com/article/idUSBNG44760220090305

        2. Constructive Playthings, Inc--` ``We have millions of 
        dollars worth of merchandise sitting in 30 40-foot-long 
        trailers waiting to be hauled out to a landfill somewhere,'' 
        says Michael Klein, president of Constructive Playthings Inc. . 
        . . The banned products include beach balls, inflatable toy 
        guitars and blow-up palm trees.'

                i. http://online.wsj.com/article/
                SB123621357629835121.html
Businesses No Longer Exporting to the U.S. Due to the CPSIA
Most names provided by the Handmade Toy Alliance

        1. Hess--Germany

        2. Selecta--Germany http://www.zrecommends.com/detail/breaking-
        news-selec
        ta-to-cease-us-distribution-due-to-cspia/

        3. Finkbeiner--Germany

        4. Saling--Germany

        5. Simba--Germany

        6. Bartl GmbH dba Wooden Ideas--Germany

        7. Woodland Magic Imports--France

        8. Brio

        9. Helga Kreft--Germany

        10. Eichorn--Germany

        11. Kapla

        12. Kallisto Stuffed Animals

    EuroToyShop--On this company's homepage, you will find links at the 
bottom with a list of ``endangered toys'' or ``extinct toys'' that are 
still sold to children in Europe but which the company will no longer 
be able to sell in the U.S. due to the CPSIA.

        Endangered Toys The CPSIA (Consumer Product Safety Improvement 
        Act) has unintended consequences. Now, some European toys are 
        no longer available in the USA. http://www.eurotoyshop.com/

    Associations That Have Voiced Concerns to the Commission Regarding 
CPSIA's Costs (list is not exhaustive):

        Association of Home Appliance Manufacturers

        International Sleep Products Association

        Retail Industry Leaders Association

        Specialty Graphic Image Association

        American Coatings Association

        The Carpet and Rug Institute

        National Retail Federation

        Association of American Publishers

        Consumer Healthcare Products Association

        Toy Industry Association

        Glass Association of North America

        American Honda Motor Company, Inc.

        Society of the Plastics Industry, Inc

        American Home Furnishings Alliance

        Sporting Goods Manufacturers Association

        Handmade Toy Alliance

        Consumer Specialty Products Association

        Footwear Distributors and Retailers

        Fashion Jewelry Association

        Craft and Hobby Association

        National Association of Manufacturers

        Halloween Industry Association

        American Apparel and Footwear Association

        Juvenile Products Manufacturers Association

        National School Supply and Equipment Association

        National Federation of Independent Business

        Promotional Products Association International

        Bicycle Product Suppliers Association
                                 ______
                                 
                       Killing Small Businesses: 
             CPSIA in the News, Letters and Public Comments
Higher Costs for Schools:
January 11, 2010

        ``NSSEA members sell educational supplies, equipment and 
        instructional materials to schools, parents, and teachers . . .

        . . . the costs to schools, municipalities, libraries, and 
        others of identifying and replacing such books would be 
        extremely high and there is no reason to impose such costs 
        given the lack of identifiable risk.

        . . . While we applaud the efforts the CPSC has made to find 
        solutions for small businesses . . . we believe the CPSC could 
        do more if given more discretion by Congress. The alternative 
        is the elimination of many valuable educational toys and 
        products, some manufactured in low volume for niche markets 
        (such as the deaf, blind, or otherwise differently-abled 
        children) and typically not supplied by the huge multi-national 
        toy manufacturers.''

                Letter from the NSSEA (National School Supply and 
                Equipment Association) to Commissioner Northup, January 
                11, 2010
Higher Costs for Products with No Lead Risk:
October 13, 2010

        ``The government wants to regulate Hannah Montana CDs and DVDs. 
        The bureaucrats at the Consumer Product Safety Commission 
        (CPSC) insist that the discs marketed to children be tested for 
        lead, but when the same young starlet churns out raunchier 
        material under her real name, Miley Cyrus, they will escape 
        scrutiny. Never mind that the same 10-year-olds will likely end 
        up buying both products.

        ``. . . Never mind that Hannah Montana's fans aren't likely to 
        eat their DVDs, the latest red tape makes no distinction 
        between products where lead is likely to be consumed and those 
        where it isn't.''

                http://www.washingtontimes.com/news/2010/oct/13/
                bureaucrats-way-out-of-tune/ ``Bureaucrats way out of 
                tune,'' Washington Times, October 13, 2010.
Punishing Small Businesses, While Mattel and the Big Guys Squeeze out 
        the Competition:
June 17, 2010

        ``Now Mattel is testing and making toys without any trouble at 
        all, and those of us who were never the problem are in danger 
        of losing our businesses,'' says Hertzler, who runs EuroSource, 
        based in Lancaster, Pa., with his wife and two sons . . .

        ``Nearly 2 years after the safety law was enacted, Congress and 
        the Consumer Product Safety Commission are still struggling to 
        reduce its burden on small businesses while eliminating the 
        risk of lead and phthalates in children's products.''

                http://www.usatoday.com/money/industries/retail/2010-
                06-17-productsafety17--ST--N.htm ``Lead testing can be 
                costly for mom and pop toy shops,'' USA Today, June 17, 
                2010
Bordering on Ridiculous:
June 17, 2010

        . . . ``What the law should be about is ensuring safe 
        products,'' says Edward Krenik, a spokesman for the children's 
        product alliance. ``We've crossed over into ridiculousness.''

                http://www.usatoday.com/money/industries/retail/2010-
                06-17-productsafety17_st_n.htm ``Lead testing can be 
                costly for mom and pop toy shops,'' USA Today, June 17, 
                2010
Regulation for Regulations' Sake
November 8, 2010

        ``Regulation for regulations' sake, where there is no inherent 
        change to a bill of materials, a process or a product indicated 
        after extensive, statistically significant testing across 
        multiple points of input and verification, is simply 
        wasteful.''

                American Home Furnishings Alliance
                November 8, 2010--Letter to Commissioners
Mattel Finds CPSIA a Challenge--How Much More for Small Businesses?
November 9, 2009

        ``Officials of the toy manufacturer, Mattel, met separately 
        with two CPSC commissioners November 3 to talk about how 
        challenging it was for Mattel to comply with the CPSIA . . .

        Peter Biersteker, a lawyer for Mattel with the law firm Jones 
        Day in Washington, D.C., said his client is finding the CPSIA 
        difficult to decipher. The law, he said, is unclear on what 
        products the company needs to test, how often it needs to test 
        them, and how many samples need to be tested. ``It's a lot of 
        work. I don't know how smaller companies do it,'' Biersteker 
        told Commissioner Robert Adler.

        Despite Mattel's large team of in-house lawyers, he said, the 
        company needed to hire outside lawyers to help understand the 
        CPSIA. He said Mattel holds weekly conference calls on the 
        issue, discussing how to comply with the act while remaining 
        ``cost competitive.''

                ``Mattel Finds CPSIA to be a Challenge,'' Product 
                Safety Letter, 
                November 9, 2009.
Commission Action Adds to CPSIA's Problems:
August 16, 2010

        ``The latest dictates from the Consumer Product Safety 
        Commission (CPSC) will drive up the cost of manufacturing 
        products intended for children. The agency adopted a pair of 
        new rules in July and August implementing the Consumer Product 
        Safety Improvement Act of 2008, but as drafted, these 
        regulations will force companies to waste time and money on 
        redundant testing programs solely for the entertainment of 
        bureaucratic busybodies.

        . . . The redundant examinations, mostly checking flammability, 
        can be prohibitively expensive. For instance, the regulations 
        could require a manufacturer to build a queen-sized-bed 
        prototype of a baby's crib just so it can be tested in an 
        independent lab. Yet each of the component parts--the crib-
        sized mattresses, blankets and all other component parts--
        already are individually tested for the same hazards when 
        manufactured.''

                Editorial: ``The Red Tape Stimulus,'' Washington Times, 
                August 16, 2010 http://www.washingtontimes.com/news/
                2010/aug/16/the-red-tape-stimulus/
Even the New York Times Spotlights the Unintended Consequences of the 
        CPSIA:
September 28, 2010

        ``. . . a new federal crackdown on dangerous toys has left some 
        in the industry crying foul and not wanting to play.''

        ``. . . Critics point to provisions in the law that they deem 
        ludicrous. For instance, a paper clip that is included in a 
        science kit for schoolchildren would have to be tested for 
        lead. But a teacher can walk into any drug store and buy a box 
        of paper clips that would not be subject to the same testing.

        Similarly, a lamp that is festooned with cartoon characters 
        would have to be tested, but a lamp without the characters 
        would not.''

                http://www.nytimes.com/2010/09/29/business/29toys.html 
                ``Toy Makers Fight for Exemption From Rules,'' New York 
                Times, September 28, 2010
Science Kits Are ``Not Banned''--but the Tools Used Inside Them Are!
October 1, 2010

        ``The science kit makers had asked for a testing exemption for 
        the paper clips and some other materials. On Wednesday, in a 
        close 3-2 vote, the commission declined to give them the waiver 
        they sought.''

        ``. . . After the science kit vote, CPSC Chairman Inez 
        Tenenbaum sought to reassure people that, ``There is nothing in 
        this rule that bans science kits.''

        Right. But while the commission vote doesn't ban the kits, 
        manufacturers say it may crimp the supply of kits for 
        elementary school children.''

                http://www.lvrj.com/opinion/goodbye-to-chemistry-sets-
                104139059.html ``Goodbye to chemistry sets,'' Las Vegas 
                Review Journal, October 1, 2010. Editorial.
Furniture Manufacturers Faced with Added Costs, Zero Safety Benefit to 
        Children:
November 8, 2010

        ``. . . there has not been a corresponding benefit in the 
        improved safety of children's furniture for children. All the 
        representatives told you that their respective companies have 
        not had to change a single material they use in the 
        manufacturing of their children's product lines since they 
        began testing to CPSIA in 2008. . . . The testing is simply 
        being done to attempt to prove a negative.''

                American Home Furnishings Alliance
                November 8, 2010--Letter to Commissioners
Furniture Manufacturers Faced with Added Costs, Forced to Cut Jobs:
November 8, 2010

        ``The majority of the annual costs will be in the record 
        keeping requirements because none of the companies have the 
        requisite IT infrastructure to handle the tracking of test 
        reports per batch . . . Hooker estimates that it will cost them 
        from $350,000 to $400,000 per year. Furniture Brands 
        International said this will cost them over $4.5 million per 
        year which is more than the profits from their best quarter in 
        the last 2.5 years. In addition, this company must invest an 
        additional $2 million in startup costs for setting up the 
        production testing, programming computer systems to work with 
        existing systems, and hiring and training employees for the 
        administration of the CPSIA.''

        To offset these new costs, the company is forced to consider 
        these choices: (1) shut down a small domestic plant which will 
        mean the loss of 64 full time and 30 temporary U.S. jobs; (2) 
        shut down a larger domestic plant which will mean the loss of 
        384 U.S. jobs; (3) significantly increase prices to offset the 
        loss in revenue making them less competitive; (4) offer a lower 
        quality product . . . or (5) shut down all domestic production 
        which incorporates any finishing processes, which will mean the 
        loss of approximately 460 U.S. jobs.''

                American Home Furnishings Alliance
                November 8, 2010--Letter to Commissioners
No More Mom and Pop Toy Sales:
July 7, 2010

        ``The second program involves making wooden toys that are given 
        to the church and other charitable organizations in the county 
        for distribution to needy children throughout the year 
        especially at Christmas. Last year we created over 700 toys. 
        The idea that we now are required to have these handcrafted 
        toys certified will bring the program to a halt.''

                Dupage Woodworkers, Downers Grove, IL (July 7, 2010, 
                Public Comment, Testing rule)
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                            Rachel Weintraub
    Question 1. The Food and Drug Administration (FDA) has three 
different product classifications for toothbrushes: (1) toothbrush, 
ionic, battery-powered; (2) toothbrush, manual; and (3) toothbrush, 
powered. The FDA classifies all toothbrushes as Class I medical 
(dental) devices. My understanding is that such Class I devices are 
regulated by the FDA. Under current law, does the Consumer Product 
Safety Commission (CPSC) have any authority to ensure the safety of 
toothbrushes, even those that are clearly marketed to children?
    Answer. Under current law, the Consumer Product Safety Commission 
(CPSC) has jurisdiction over consumer products. In 15 U.S.C.  
2052(a)(5), a consumer product is defined as, ``any article, or 
component part thereof, produced or distributed (i) for sale to a 
consumer for use in or around a permanent or temporary household or 
residence, a school, in recreation, or otherwise, or (ii) for the 
personal use, consumption or enjoyment of a consumer in or around a 
permanent or temporary household or residence, a school, in recreation, 
or otherwise;'' The term specifically excludes a number of products 
including, (H) drugs, devices, or cosmetics (as such terms are defined 
in sections 201(g), (h), and (i) of the Federal Food, Drug, and 
Cosmetic Act [21 U.S.C. 321 (g), (h), and (i)]).'' Thus, medical 
devices are explicitly excluded from CPSC's jurisdiction.
    Further, the Food and Drug Administration (FDA) has jurisdiction 
over tooth brushes as medical devices. The FDA classifies toothbrushes 
as Class I devices in different product classifications, as you 
suggested. For example, FDA classifies manual toothbrushes under 
section 872.6855 and powered toothbrushes under section 872.6865.
    Thus, since medical devices are explicitly carved out of CPSC's 
authority over consumer products and FDA has authority over medical 
devices which include toothbrushes, under current law CPSC does not 
have authority over toothbrushes, while FDA does have authority over 
these products. This remains the case whether the toothbrushes are 
designed for children or adults.

    Question 1a. Do you believe that all toothbrushes should be 
classified as medical devices or should some be classified as a 
consumer product?
    Answer. I believe that toothbrushes should be considered a medical 
device and that FDA should retain jurisdiction over these products. I 
have not been made aware of information or claims from consumers 
indicating that toothbrushes should not be considered medical devices. 
IF CPSC or any other government agency has knowledge or information 
that would be helpful to FDA in exercising jurisdiction over 
toothbrushes, we would urge FDA to work with that entity.

    Question 2. There are a number of battery-powered toothbrushes in 
the market that have children's cartoon or live-action characters 
painted on to the body of toothbrush or attached to the body of the 
toothbrush (i.e., the on-off switch in the shape of the cartoon 
character), and are marketed to children. Does the CPSC consider such 
toothbrushes to be a ``children's product''? Should the CPSC classify 
these toothbrushes to be a children's product as they are marketed to 
children 12 years of age and younger?
    Answer. In an advisory opinion written by CPSC General Counsel, 
Cheryl A. Falvey on November 5, 2008,\1\ the General Counsel states in 
a response to a manufacturer of preventative dental caries that, 
``Products that are medical devices do not fall within the definition 
of ``consumer product'' and, therefore, the definition of ``children's 
product'' does not include medical devices.'' \2\ Based upon this 
advisory opinion, I conclude that CPSC does not consider these types of 
toothbrushes to be children's products. I agree with this determination 
and do not believe that CPSC should have jurisdiction of these medical 
devices even when marketed and sold to children. FDA has expertise in 
regulating these and other medical devices and should retain this 
jurisdiction.
---------------------------------------------------------------------------
    \1\ The advisory opinion can be found on CPSC's web page at http://
www.cpsc.gov/library/foia/advisory/319.pdf.
    \2\ Advisory Opinion of Cheryl A. Falvey, General Counsel, U.S. 
Consumer Product Safety Commission, November 5, 2008, available on the 
web at http://www.cpsc.gov/library/foia/advisory/319.pdf.

    Question 2a. Does the FDA have any standards for the levels of 
heavy metals allowed in toothbrushes and other dental devices? If not, 
should the FDA develop such standards?
    Answer. To the best of my knowledge, FDA does have standards for 
the levels of heavy metals allowed in toothbrushes and other dental 
devices but these standards are not in the form of a bright line total 
lead content limit. Rather, FDA requests complete material composition 
data from medical device manufacturers and if the presence of heavy 
metals is indicated, FDA requests further data about the heavy metal. 
In addition, FDA focuses on whether the heavy metal contained in the 
device can leach into the bloodstream.

    Question 2b. Hypothetically, if it is reported that lead was found 
in the colored bristles of a toothbrush with a cartoon character 
painted on the body of the toothbrush, how would the CPSC respond? 
Would the FDA have absolute jurisdiction? If the FDA chooses not to 
investigate the report, does the CPSC have any authority to investigate 
such a claim independently?
    Answer. If it is reported that lead was found in the colored 
bristles of a toothbrush with a cartoon character painted on the body 
of the toothbrush, CPSC would not respond. Rather, FDA would have 
jurisdiction. I would hope that FDA would consult with CPSC if CPSC's 
knowledge and familiarity with lead exposure from consumer products 
would be helpful to FDA. If the FDA chooses not to investigate the 
report, we would hope that FDA based its review and determination upon 
an extensive review of the facts of the particular case and would urge 
FDA in any case involving lead exposure to make determinations based 
upon the extensive body of research indicating that lead is a known 
neuro-toxin and that there are no safe levels of lead exposure. Since, 
CPSC does not have jurisdiction over medical devices; CPSC would not 
have authority to investigate such a claim independently.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Tom Udall to 
                            Rachel Weintraub
    Question 1. Could you give us your thoughts on how this database 
can improve consumer awareness of product recalls?
    Answer. This database will improve consumer awareness about product 
recalls because consumers will see information about recalls as they 
are looking up product information on the database. For a consumer who 
went to the database to look up a specific product, and was not even 
thinking about the potential of a product recall, recall information 
would be available and visible and enrich the person's knowledge about 
the product by including applicable recall information.
    In addition to the database, the CPSIA is improving consumer 
awareness of product recalls by requiring that infant durable products 
be accompanied by a product registration card and a means to register 
the product on line. This is important because with this information, 
consumers will be directly notified by the manufacture if a product 
they own has been recalled. Direct consumer notification of product 
recalls is one of the most effective ways to increase consumer 
awareness of product recalls.

    Question 2. I am concerned that consumers who have already 
purchased harmful, recalled products may still not know whether their 
consumer product has been recalled. How can the database and other 
computer or online tools help with that?
    Answer. Consumers who have already purchased a potentially harmful 
product all too often do not find out that the product that they own 
has been recalled. It is problematic. The database will help consumers 
who own a previously recalled product if they go to the database and 
search for the product. Even if the consumer is not specifically 
looking for recall information, recall information will be accessible 
and visible to the consumer.
    In addition, CPSC has a list serve announcing the most recent 
product safety recalls that it sends out to consumers and others who 
sign up. Consumers can sign up to receive information about specific 
types of products. We urge consumers to sign up for this list serve. To 
sign up, a consumer should go to: https://www.cpsc.gov/cpsclist.aspx.
    Another tool that will help consumers find out about whether an 
infant durable product they own has been recalled is product 
registration. This is required for infant durable products. Critically, 
a consumer must fill out the card accompanying the product or fill out 
the information online.
    Once the consumer communicates the information to the manufacturer, 
if there is a recall, the manufacturer will directly notify the 
consumer of the recall. This is a hugely positive step that will 
improve consumer knowledge about recalls of products they own.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Roger F. Wicker to 
                             Stephen Lamar
    Question 1. In your testimony, you stated that companies are 
required to comply with ``silly'' requirements. Please elaborate on 
what you mean by this and provide examples.
    Answer. The CPSC has been very strict in interpreting the CPSIA's 
requirements and as a result, businesses have had to comply with 
various regulations that have been extremely burdensome but have 
amounted to zero improvements in consumer product safety. For example, 
the CPSC initially interpreted the General Conformity Certification 
(GCC) requirement to be a paper certification that would physically 
accompany each shipment of products. Not only would this have been a 
logistical nightmare for companies, but the certifications would be 
useless to regulators who would have had to search shipments to find 
them. Only on November 10, 2008 (two days before the GCC requirement 
went into effect) did the CPSC issue final GCC regulations clarifying 
that the certification could be in electronic format. In another 
example, the CPSC initially interpreted the third-party testing 
requirement to be product-based. This meant that if a company chose to 
use the same button on five different styles of pants, the company 
would have to send in each different fully assembled style of pant of 
to test the button five times.
    While many (not all) of these issues have been addressed, companies 
are still dealing with duplicative testing, unnecessary paperwork, 
burdensome and confusing regulations, and conflicting interpretations 
on what the regulations mean. For example, retailers often still 
require third-party testing be done with specific testing labs 
resulting in duplicative testing for manufacturers. The most recent 
draft of the so-called ``15 month rule'' requires that GCCs, which are 
often created abroad by lab technicians be in English and stored in the 
United States. And the definition of ``component'' has been broken down 
to the sub-component level meaning components like zippers are now 
subject to seven tests.
    Because the CPSIA is so rigidly written, the ``solutions'' we are 
able to develop sometimes end up creating more problems.

    Question 2. The CPSC is currently working on third-party 
flammability testing for products such as fabrics and sleepwear. Please 
describe your industry's experiences with this requirement.
    Answer. On August 9, 2010, the CPSC issued a Federal Register 
notice entitled, ``Third Party Testing for Certain Children's Products; 
Clothing Textiles: Requirements for Accreditation of Third Party 
Conformity Assessment Bodies, August 9, 2010.'' We have experienced 
several issues with this provision.
    First, we disagreed with the CPSC's assessment that this standard--
a general product safety standard that applies to all products--is even 
covered by the third-party testing requirement. We submitted comments 
to the CPSC and have yet to receive a reply.
    Second, we raised significant concerns--that are still unanswered--
on the fact that this new third-party testing requirement was being 
imposed on a regulation that was working properly and which had been 
subject to full dress rulemaking. In fact, about a year ago, the CPSC 
published technical changes and updates to that rule following years of 
industry consultation and comment. We find it inappropriate that a rule 
that was developed in such a manner can be significantly altered 
outside the proper regulatory process that is laid out in the 
underlying Flammable Fabrics Act (FFA) with no stakeholder input. We 
are closely monitoring to identify any problems that emerge as the new 
CPSIA reasonable testing protocols intersect with the FFA testing 
protocols that have worked well during the 50 year life of this safety 
standard.
    Third, the manner that the CPSC has used to lift the stay for 
products governed by the FFA has been confusing, non transparent, and 
subject to apparent ad hoc consideration. For example, the CPSC used 
the Augusts 9 Federal Register notice to announce it was lifting the 
stay. However, the title of that notice (see above) made no mention of 
the stay being lifted and seemed to only address technical issues 
relating to third-party testing certification. Moreover, the actual 
phrase lifting the stay was buried deep within the notice itself. the 
CPSC stated, ``As the factor preventing the stay from being lifted in 
the December 28, 2009, notice with regard to testing and certifications 
of clothing textiles was the absence of a notice of requirements, 
publication of this notice has the effect of lifting the stay with 
regard to 16 CFR part 1610.'' As a result, many children's apparel 
manufacturers did not realize that the stay of testing and 
certification had been lifted for children's products subject to the 
flammability standard for textiles. We would note that the extension of 
the stay of testing and certification was announced with great fanfare. 
Many companies mistakenly thought the CPSC would announce the lifting 
of the stays with similar public statements.
    Fourth, moreover, many were extremely confused as to whether the 
stay of certification lifted for adult's products as well. In fact, the 
CPSC was similarly confused and were not able to clarify when asked. In 
response to our inquiries, the Commission only just announced the 
status of certification for adult's products subject to the 
flammability standard on December 28.
    Fifth, AAFA petitioned for an additional 60 days because we felt 
there was insufficient diversity to ensure no capacity problems. In 
fact, when the stay for children's clothing was lifted, there were no 
third-party testing facilities certified for Vietnam, the second 
largest source of apparel (and a major source of kids clothing). As of 
the end of 2010, we have not yet received an answer to this request.
    Sixth, with respect to sleepwear, AAFA and several stakeholders 
have been providing information to the CPSC on seemingly non compliant 
sleepwear that is being sold. Many of those complaints appear to go 
unanswered since the non compliant sleepwear continues to be sold year 
after year. Requiring additional testing, when the CPSC does not appear 
to be enforcing the existing rules, is not only frustrating to those 
companies who are in compliance with testing requirements and 
underlying standards, but also acts as a deterrent to ensure compliance 
by those companies who are ignoring the current law. The third-party 
testing regime doesn't address the main (and only) problem that exists 
with respect to this standard--the apparent lack of enforcement.
    CPSC officials have explained that the move to third-party testing 
for FFA seemed logical since much of the industry is already using 
third-party facilities to test for compliance. We would note however 
that there is a significant difference between third-party accredited 
facilities and third-party facilities. Many companies naturally assume 
their labs are accredited with the CSPC without realizing that that 
accreditation may still be pending. Similarly, the flammability 
standards reflect detailed product safety regimes that are not easily 
amended. We remain very wary of unintended consequences yet to 
materialize as the CPSIA requirements are layered on top of existing 
programs. At a minimum, we are concerned that we will see duplicative 
testing and paperwork burdens.

    Question 3. In your testimony you said the retroactive nature of 
many of the rules in CPSIA creates huge problems for industry, with no 
discernible benefit to improving product safety. Why do you believe 
there is no benefit to safety?
    Answer. The retroactive nature of the CPSIA forced many companies 
to spend considerable resources to test inventory and to dispose 
inventory that was perfectly safe to children. Before February 10, 2009 
(the date the lead standard went into effect), the apparel and footwear 
industry had to test all products on the shelves to determine and show 
compliance. These tests were done prior to the issuance of the CPSC's 
``Children's Products Containing Lead; Determinations Regarding Lead 
Content Limits on Certain Materials or Products'' rulemaking that 
stated components like fabrics would not exceed the 100 ppm lead 
standard. As a result, companies had to spend money testing components 
that were of little to no risk of exceeding the lead standard just to 
prove product compliance. Moreover, as noted in my testimony, only 
about 5 percent of the hard components (like buttons, zippers and 
embellishments) were found to be not compliant with the lead standard. 
Most of these non compliant components were items such as the zipper 
stopper in the fly of children's pants that do not present any risk to 
children's health and safety.
    As a result, we ended up with weird outcomes. Clothing that did not 
meet the lead standard, could be not be sold on February 10, 2009 since 
it was a banned hazardous substance. However that same clothing could 
be sold on February 9, 2009. Moreover, the CPSC did not force a recall 
of any clothing sold on February 9 or before. Clearly if it were 
dangerous it would be recalled. Furthermore, the CPSIA currently 
permits a company to make a product with a component that contains 250 
ppm. However, on August 15, when the new retroactive lead limit takes 
effect, that exact same product becomes a banned hazardous substance. 
Once again, while it can't be sold after August 15, it is not subject 
to a recall. The safety of a product doesn't depend on the date when 
the product is sold.

    Question 4. Could you please elaborate on what you think the impact 
will be on your members this February when the stay on third-party 
testing for lead content lifts? Have your members been provided with 
the information they will need to comply with these requirements?
    Answer. When the Commission granted the stay a year ago, Chairman 
Tenenbaum wrote ``The extension of the stay was needed in order to give 
the agency more time to promulgate rules important to the continued 
implementation of the CPSIA and for the agency to educate our 
stakeholders on the requirements of those new rules.'' That continues 
to be the case. The ``15 month rule'' has yet to be finalized, and 
there remain serious questions with the draft rules that need to be 
resolved. Moreover, with a year's worth of reasonable testing under our 
belts, it is becoming increasingly clear that the third-party testing 
environment is an unnecessary burden on businesses. Continuing the stay 
gives all stakeholders more time to create a stable, logically 
consistent, well thought-out, and well understood regulatory system. It 
also avoids a damaging job killing cost that will be imposed on 
businesses with zero gain in public safety. One of our members recently 
reported this to me with respect to the lifting of the stay.

        Currently we use an XRF machine that we bought to do our lead 
        substrate testing for our products. We deliberately buy 
        components from trusted suppliers that are lead free. They rely 
        upon process controls and XRF testing as well. There is some 
        third-party testing done but most is done in house under XRF. 
        Once the stay is lifted all that testing moves outside--either 
        by us or by our suppliers. We have about 1,000 styles that have 
        components that need testing--an average of about 7 components 
        in each style (since zippers can be as many as 3 components). 
        Many of those components are unique to each style so we can be 
        looking at 7,000 tests at $50 a test for $350,000 of third-
        party testing. When you add in third-party testing for lead 
        coatings--screen print--and flammable fabrics you push us well 
        over $1 million. These extra lab costs are occurring as 
        everything else--including cotton which is at near record 
        levels--are climbing. The XRF machine still has some use for 
        screening but it mostly becomes a $25,000 paperweight.

    Question 5. You identified the CPSIA mandated public database as 
one area where your industry has concerns. Please explain what your 
concerns are with this database.
    Answer. Above all, we believe the database must be a reliable 
source of credible information that appropriately reflects its ``dot 
gov'' web address. As Chairman Tenenbaum stated in her February 17, 
2010 ICPHSO address, ``. . . Don't believe everything you read on the 
Internet, except what you read on websites that end in dot gov.'' By 
this statement, Chairman Tenenbaum is pointing out that government 
websites are held to the highest standards as public resources. People 
expect government websites to provide credible information and the 
database should be no different--even with a disclaimer. Materially 
inaccurate information serves no one, can be detrimental to businesses, 
will ultimately damage both the credibility and overall success of the 
database and damage the credibility of the agency itself. The final 
rulemaking does not go far enough to ensure the credibility of the 
information posted to the database and the CPSC must take steps to 
guarantee that the posts are both reliable and in the public interest.

    Question 5a. Would you please tell us more about the resources that 
you believe your members will be forced to devote to following the 
database in order to address potential reports?
    Answer. Members will have to devote time and resources to tracking 
information and allegations that are made on the website. Since the 
CPSC is under no requirement to actually remove materially inaccurate 
information, and yet is vested with the sole authority of determining 
what is materially inaccurate, companies are so far unsure if their 
efforts to correct the record (such as providing information that a 
particular product is a counterfeit) will even result in removal of 
offending entries. Especially with the advent of the CPSIA, product 
safety professionals have found even more demands on their time. 
Requiring them to also track a public database--especially one with the 
imprimatur of the Federal Government--to respond to ill informed and 
inaccurate allegations will result in even less time to devote toward 
actual product safety management.

    Question 6. Where do you believe the CPSC can act to alleviate 
these concerns, and where do you think a legislative fix is necessary?
    Answer. The CPSC has limited flexibility to alleviate our concerns 
with the database without a legislative fix. Most significantly, the 
CPSIA's database provision does not do enough to ensure the material 
accuracy of the reports of harm. While timely dissemination of 
information is important, materially inaccurate information is 
extremely damaging to businesses and will never benefit consumers. The 
legislation puts into place a very strict timeline for the CPSC to 
transmit the report of harm to a manufacturer within 5 days and then 
post the information onto the website within 10 days of transmission--
regardless of whether an investigation for material inaccuracy is 
pending. The database provision must be amended to require the 
Commission to not post information should the report of harm 
potentially contain materially inaccurate information.
    However, the agency can take some regulatory actions as well since 
the CPSC's database rulemaking created several additional concerns for 
businesses. For example, the CPSC expanded the list of those who can 
post to the database well beyond the scope of the CPSIA's finite list. 
Including these additional categories of submitters will dilute the 
effectiveness of the database as more materially inaccurate information 
will likely be posted. Many of these categories of submitters will not 
have first hand knowledge of the incident, have access to the consumer 
product involved, and may have ulterior motives in posting information 
on the database.
    Limiting the scope of the database as much as possible upon 
implementation will be fundamental in the database's success. This 
approach will limit mistakes, minimize the impact of the mistakes, and 
give the CPSC more flexibility to make changes to the database as it 
develops.

    Question 7. Chairman Tenenbaum and Commissioner Northup discussed 
budgetary issues related to the CPSC. What impact do you believe that 
the CPSIA has on the effective utilization of resources by the CPSC?
    Answer. The CPSIA has directed many of the CPSC's resources away 
from important safety regulatory activities and focused the agency's 
limited resources on burdensome rulemaking activity. These rulemakings, 
while important to industry's compliance efforts and understandings, 
have had little impact on improvement of consumer product safety. The 
predominant problem with the CPSIA is that the agency is not allowed to 
prioritize based on actual product safety regulatory need and is forced 
to issue dozens of rulemakings on a very short, rigid timeline. 
Moreover, finding solutions for CPSIA compliance issues has been an 
extremely onerous process as the CPSIA leaves the agency little 
flexibility to provide necessary relief to businesses. For example, in 
order to determine a component or material compliant with the lead 
standard, the agency has had to spend months of time and significant 
resources analyzing products and materials that are of little to no 
risk to consumers and children. As noted in my oral comments, starting 
in 2008, AAFA worked closely with the CPSC to show there is no lead in 
textiles. AAFA and several retailers sent in thousands of test reports 
showing that lead would never appear in fabric. The textile 
determination was not finalized until August of 2009. While the 
determination has been very helpful for industry as now manufacturers 
do not have to test textiles for lead, we believe Congress should 
revisit the CPSIA to enable the CPSC to make these determinations more 
quickly. We further believe that Congress needs to give the agency more 
flexibility to consider risk so the CPSC can appropriate their funds to 
real product safety concerns.

    Question 8. You expressed concerns with the CPSIA's lack of clear 
preemption with regard to state and local laws in your opening 
statement. Please clarify what your concerns are with regard to 
preemption. Do you have any specific examples?
    Answer. A common-sense product safety regulatory approach is to 
have a strong Federal regime that preempts state regulations. Logic 
tells us that a product crossing state lines does not make it safe or 
unsafe. It follows that product safety regulations should be uniform 
throughout the United States. Complying with various labeling 
requirements and chemical content standards is confusing and burdensome 
for companies.
    California Proposition 65, which is specifically exempted from 
preemption under the CPSIA, presents a whole range of challenges. Among 
other things, it relies on different compliance and enforcement 
mechanisms that often mean companies have to work toward separate CPSIA 
and Proposition 65 compliance targets.
    Even the CPSC battles with these issues. Just recently, the news 
reported about a mother in Georgia finding a product with a California 
toxic substances warning label on it (see http://www.wsbtv.com/news/
26334677/detail.html). CPSC spokesperson Scott Wolfson responded to the 
mother's concerns with, ``We respect California law, but parents should 
know that the safety of their children is not necessarily at risk if 
they see that label.''

    Question 9. Chairman Tenenbaum discussed the idea of a ``functional 
purpose'' exemption to the lead standard. What are your thoughts on 
that proposal?
    Answer. While we agree that the CPSIA exemption standard is too 
strict, a ``functional purpose'' test is not an appropriate solution. 
The CPSC's job is to assess the safety of products--not to determine 
whether lead is a necessary component of the product or material. 
Adding the additional ``functional purpose'' test would result in the 
CPSC wasting too much time and resources on an evaluation that does not 
help answer the real, relevant question: is the product safe? We should 
grant the CPSC the authority to make simple determinations based on 
their assessments of whether a product or a class of products presents 
a risk of lead absorption. We recommend Congress look at Commissioner 
Northup's statement accompanying the Commission Report to Congress 
Pursuant to P.L. 111-117, Conference Report 111-366 on Recommendations 
to Amend the CPSIA. She suggested Congress look at amending the lead 
exemption standard to allow for a ``de minimis'' amount of bioavailable 
lead in products. In her words:

        The point of a de minimis bioavailability or absorption 
        exception is to concentrate the enforcement resources on the 
        real problems as well as to avoid obtaining negligible benefits 
        at enormous cost . . . A particular virtue of the de minimis 
        approach is that it would not require product-by-product 
        approval by the agency, because manufacturers could determine 
        for themselves whether their products meet the standard 
        (subject to penalty and liability for errors) without having to 
        petition the agency for an exclusion.

    Question 10. In your testimony, you identified eight 
recommendations for changes to the CPSIA and CPSC. Your eighth point 
was that ``there is more to the CPSC than CPSIA.'' Please explain what 
you meant by that statement.
    Answer. Overall, it seems as though the CPSC has spent the majority 
of their resources in the past two and a half years on CPSIA-related 
activity. Be it writing interpretive rulemakings, explaining to 
businesses how the regulations will apply to them, hosting workshops or 
simply carrying out the mandates of the legislation--implementing the 
CPSIA has been the priority of the agency to a point where other 
equally important functions have languished. The agency has not been 
able to keep up with the press of work from the CPSIA, and in so doing 
may have not spent adequate attention on other key enforcement and 
regulatory priorities.
    Moreover, the legislation forces the CPSC to spend extraordinary 
amount of time rehashing old issues. In my oral statement we discussed 
our effort to show that there is no lead in textiles--a fact well known 
to all. In another example, the legislation requires the agency study 
the toxicity of phthalates--a study the CPSC conducted many years ago 
already. The CPSC determined that phthalates were not a risk to 
children and so to require the CPSC to conduct the same study is an 
inefficient use of resources. Giving the agency the flexibility to 
allocate their resources to address real safety and public health needs 
is crucial so the agency can deal with new chemical and product 
concerns as they arise.

                                  
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