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71–129 PDF 2011

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 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JOHN D. ROCKEFELLER IV, West Virginia, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TOM UDALL, New Mexico 

MARK WARNER, Virginia 

MARK BEGICH, Alaska 

KAY BAILEY HUTCHISON, Texas, Ranking 

OLYMPIA J. SNOWE, Maine 

JOHN ENSIGN, Nevada 

JIM DEMINT, South Carolina 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

GEORGE S. LEMIEUX, Florida 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

SAM BROWNBACK, Kansas 

MIKE JOHANNS, Nebraska 

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 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TOM UDALL, New Mexico 

ROGER F. WICKER, Mississippi, Ranking 

OLYMPIA J. SNOWE, Maine 

JIM DEMINT, South Carolina 

JOHN THUNE, South Dakota 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

(III) 

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 

(1) 

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 estiVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
2 

mate 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 

3 

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. 

4 

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. 

5 

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. 

6 

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 deVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
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termine 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 inforVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
8 

mation 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. 

9 

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 fulltime 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, 

10 

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: 

11 

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 

12 

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 husVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
13 

band 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 

14 

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/publiclinfo/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. 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. 

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. 

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. 

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. 

15 

7Letter 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. 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. 10 ‘‘Mattel Finds CPSIA to be a Challenge,’’ Product Safety Letter, November 9, 2009. 

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

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. 

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. 

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 testVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
16 

ing 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, thirdparty 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 purVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
17 

chase 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 comVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
18 

forters, 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—— 

19 

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. 

20 

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 sayVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
21 

ing ‘‘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 

22 

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 

23 

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 Cuts ($1,694) 

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 

24 

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. 

25 

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. 

26 

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. 

27 

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-yearold 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 

28 

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-fitsall 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 

29 

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 

30 

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—— 

31 

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—— 

32 

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. 

33 

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 infantdurable 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. 

34 

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. 

35 

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. 

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 fastpaced 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. 

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; 

36 

2Kids in Danger, http://www.kidsindanger.org/prodhazards/recalls/cribs.asp. 3Safety 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. 

risk of falling; and danger of laceration when fingers become trapped in folding drop 

gates.2

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. 

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. 

37 

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. 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. 

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. 

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

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 

38 

6Statement 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. 

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

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. 

39 

7See, 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. 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. 

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. 

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

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. 

40 

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,’’ 

41 

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 indusVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
42 

try, 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-sizefits-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: 

43 

• 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. 

44 

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 thirdparty 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 

45 

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; 

46 

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 

47 

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. 

48 

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 

49 

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. 2 Bellinger D. Lead. Pediatrics. 2004; 113(4 (Supplement)):1016–1022. 

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 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 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. 

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 

50 

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-yearolds? Environ Health Perspect. 2005; 113(5):597–601. 4 Video available online at http://www.healthychildren.org/English/news/pages/A-SafeSleep-for-Babies.aspx. 

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

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

Over the past year, CPSC has undertaken rulemaking processes to establish new 

mandatory safety standards for bunk beds, cradles, bassinets, full-size and non-fullsize 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 nonfull-size crib that does not meet mandatory CPSC standards. As a result, many esVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
51 

5 Announcement available online at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10358 

.html. * Not including lead, which is already covered by the CPSIA. 

tablishments 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. 

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. 

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. 

52 

6Litovitz, et al. ‘‘Preventing Battery Ingestions: An Analysis of 8648 Cases.’’ Pediatrics 2010; 

125:1178–1183. 

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. 

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 

53 

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-ofa-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 

54 

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. 

55 

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. 

56 

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, 

57 

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 handsfree—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 

58 

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—— 

59 

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 

60 

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. 

61 

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—— 

62 

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.] 

(63) 

1Printing 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. 2The 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. 3The 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. 

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. 

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. 

64 

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. 

65 

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 

66 

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 sellby 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. 

67 

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-inpaint). 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 

68 

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 

69 

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 

70 

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. 

71 

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 unintentionVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00075 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
72 

ally 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 

73 

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 

74 

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? 

75 

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. 

76 

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 multimedia 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 highrisk 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 

77 

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? 

78 

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. 

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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 

80 

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? 

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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. 

82 

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 

83 

(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 formfitting 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? 

84 

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 

85 

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 costbenefit 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 

86 

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. 

87 

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. 

88 

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. 

89 

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 prodVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00093 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
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ucts 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. 

91 

1http://www.cpsc.gov/cpscpub/prerel/prhtml11/11042.html. 2 Risana Chowdhury. ‘‘Toy Related Deaths and Injuries, Calendar Year 2007,’’ Consumer Product Safety Commission. Pg. 6: http://www.cpsc.gov/library/toymemo07.pdf. 

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. 

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. 

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 eviVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00095 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
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3Letter to Commissioners from the American Home Furnishings Alliance. November 8, 2010. 

4 American Apparel and Footwear Association. Request for Comments. Docket No. CPSC– 

2010–0037 & CPSC–2010–0038. August 3, 2010. 5http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulato 

ry-review-executive-order. 

dence 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 thirdparty 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

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

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 

93 

6Safety Shortcuts: Children’s Product Recalls in 2003. Kids in Danger, February 2004. Pgs. 

2, 11. http://www.kidsindanger.org/publications/reports/2003lrecallreport.pdf. 

the Majority at least will consider approaching Congress to remove the law’s thirdparty 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. 

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

Answer. 

Toy Recalls by Fiscal Year 

FY 

Number of 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 

FY Number of 

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

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 

94 

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 ageappropriate 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. 

95 

7On 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 

Continued 

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 governmentmandated 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 

96 

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.’’ 

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. 

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. 

97 

8The 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). 

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. 

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 

98 

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 

99 

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. 

100 

9http://www.zrecommends.com/detail/breaking-news-selecta-to-cease-us-distribution-due-tocspia/. 

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. 

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 ‘‘despec’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 

101 

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.’’ 

102 

10http://www.poolspanews.com/2010/022/022nlsvrs.html. 

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

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. 

103 

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 

104 

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: 

105 

1 ‘‘Mattel Finds CPSIA to be a Challenge,’’ Product Safety Letter, November 9, 2009. 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. 

‘‘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 costbenefit 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

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. 

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. 

106 

3The 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. 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&ContentRecordlid=799a2c9d-f48a–4284-add2-1a9099 

961431&Statementlid=fb4d696e-c471-4bd1-be39-d9fb7f34f56a&ContentTypelid=14f995b9-dfa5 

-407a-9d35-56cc7152a7ed&Grouplid=b06c39af-e033-4cba-9221-de668ca1978a&MonthDisplay= 

12&YearDisplay=2010. 5http://www.astm.org/Standards/F963.htm. 

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

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

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

107 

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 

Assembly Removal 

8.11 

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 

108 

6http://www.cdc.gov/nceh/lead/data/national.htm. 7One 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. 

Title Section 

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. 

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

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 

109 

8http://www.cpsc.gov/pr/northup110409.pdf. 9http://www.cpsc.gov/pr/northup03102010.pdf. 10 Justin Pritchard, ‘‘Feds dismiss need to recall lead drinking glasses,’’Associated Press. December 11, 2010. http://news.yahoo.com/s/ap/20101211/aplonlhelme/uslcadmiumllead 

lglassware. 11http://www.cpsc.gov/pr/northup09292010.pdf. 12http://www.cpsc.gov/pr/northup07122010.pdf. 

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

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. 

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

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

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 thirdparty test that every manufacturer must do to every component of their product— 

110 

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. 

111 

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 

112 

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. UnfortuVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00116 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
113 

nately, 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 exVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00117 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
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13On 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.’’ 

panded 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. 

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. 

115 

14The 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). 

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. 

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 

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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 

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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 linfo/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. 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. 

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. 

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. 

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, 

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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. 

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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 

120 

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. 

121 

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 inVerDate Nov 24 2008 13:14 Nov 10, 2011 Jkt 071129 PO 00000 Frm 00125 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\71129.TXT SCOM1 PsN: JACKIE
122 

21http://www.cpsc.gov/pr/northup01152010.pdf. 

formation 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. 

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, fixedside 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, 

123 

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 

124 

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 nonrisk-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: 

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1http://www.cpsc.gov/pr/northup110409.pdf. 2http://www.cpsc.gov/pr/northup03102010.pdf. 3 Justin Pritchard, ‘‘Feds dismiss need to recall lead drinking glasses,’’ Associated Press. December 11, 2010. http://news.yahoo.com/s/ap/20101211/aplonlhelme/uslcadmiumllead 

lglassware. 4http://www.cpsc.gov/pr/northup09292010.pdf. 5http://www.cpsc.gov/pr/northup07122010.pdf. 

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

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. 

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

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

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. 

126 

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-couldcost-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 

127 

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 

128 

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. 

129 

. . . 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-outof-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- 

productsafety17lstln.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 

130 

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.’’ 

131 

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 

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1The 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. 

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. 

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 

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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. 

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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 thirdparty 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 

135 

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 

136 

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 

137 

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 

138 

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. 

Æ