H.R. ————, LEGISLATION TO REVISE THE 

CONSUMER PRODUCT SAFETY IMPROVEMENT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, 

AND TRADE 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

APRIL 7, 2011 

Serial No. 112–34 

( 

Printed for the use of the Committee on Energy and Commerce 

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H.R. ————, LEGISLATION TO REVISE THE CONSUMER PRODUCT SAFETY 

IMPROVEMENT ACT 

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H.R. ————, LEGISLATION TO REVISE THE 

CONSUMER PRODUCT SAFETY IMPROVEMENT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, 

AND TRADE 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

APRIL 7, 2011 

Serial No. 112–34 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

MICHAEL F. DOYLE, Pennsylvania 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND TRADE

MARY BONO MACK, California 

Chairman 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

CLIFF STEARNS, Florida 

CHARLES F. BASS, New Hampshire 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

G.K. BUTTERFIELD, North Carolina 

Ranking Member 

CHARLES A. GONZALEZ, Texas 

JIM MATHESON, Utah 

JOHN D. DINGELL, Michigan 

EDOLPHUS TOWNS, New York 

BOBBY L. RUSH, Illinois 

JANICE D. SCHAKOWSKY, Illinois 

MIKE ROSS, Arkansas 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Mary Bono Mack, a Representative in Congress from the State of 

California, opening statement ............................................................................. 1 

Prepared statement .......................................................................................... 3 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 4 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 5 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 6 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 7 

Hon. Cliff Stearns, a Representative in Congress from the State of Florida, 

opening statement ................................................................................................ 8 

Hon. G.K. Butterfield, a Representative in Congress from the State of North 

Carolina, opening statement ............................................................................... 8 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 9 

Hon. Pete Olson, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 10 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 120 

Hon. Edolphus Towns, a Representative in Congress from the State of New 

York, prepared statement .................................................................................... 226 

WITNESSES

Dana Best, American Academy of Pediatrics ........................................................ 10 

Prepared statement .......................................................................................... 13 

Answers to submitted questions ...................................................................... 254 

Barbara D. Beck, Principal, Gradient .................................................................... 27 

Prepared statement .......................................................................................... 29 

Answers to submitted questions ...................................................................... 266 

Robert Jay Howell, Assistant Executive Director, Hazard Identification and 

Reduction, Consumer Product Safety Commission ........................................... 45 

Prepared statement .......................................................................................... 47 

Answers to submitted questions ...................................................................... 271 

Caroline Cox, Research Director, Center for Environmental Health .................. 73 

Prepared statement .......................................................................................... 76 

Answers to submitted questions ...................................................................... 289 

Sheila A. Millar, Partner, Keller and Heckman, LLP .......................................... 80 

Prepared statement .......................................................................................... 82 

Answers to submitted questions ...................................................................... 295 

Paul C. Vitrano, General Counsel, Motorcycle Industry Council ........................ 91 

Prepared statement .......................................................................................... 93 

Answers to submitted questions ...................................................................... 302 

Erika Z. Jones, Partner, Mayer Brown, on behalf of the Bicycle Product 

Suppliers Association ........................................................................................... 100 

Prepared statement .......................................................................................... 102 

Answers to submitted questions ...................................................................... 306 

Charles A. Samuels, Member, Mintz, Levin, Cohn, Ferris, Glovsky, and 

Popeo, P.C. ............................................................................................................ 123 

Prepared statement .......................................................................................... 126 

Answers to submitted questions ...................................................................... 311 

Frederick Locker, Locker, Greenberg, and Brainin, P.C. ..................................... 136 

Prepared statement .......................................................................................... 138 

Page

IV 

Frederick Locker, Locker, Greenberg, and Brainin, P.C.—Continued 

Answers to submitted questions ...................................................................... 313 

Dan Marshall, Vice President, Handmade Toy Alliance, and Co-Owner, 

Peapods Natural Toys and Baby Care ............................................................... 151 

Prepared statement .......................................................................................... 153 

Answers to submitted questions ...................................................................... 317 

Rachel Weintraub, Director of Product Safety and Senior Counsel, Consumer 

Federation of America ......................................................................................... 155 

Prepared statement .......................................................................................... 157 

Answers to submitted questions ...................................................................... 321 

SUBMITTED MATERIAL

Statement, dated April 3, 2009, from Nancy Nord, Acting Chairman, Consumer Product Safety Commission, submitted by Mr. Kinzinger .................... 69 

Letter, dated April 6, 2011, from Edward Moreland, Senior Vice President, 

Government Relations, American Motorcyclist Association, to subcommittee 

leadership, submitted by Mr. Kinzinger ............................................................ 71 

Statement, undated, on behalf of American Apparel & Footwear Association .. 185 

Letter, dated April 6, 2011, from Consumer Product Safety Commission chairman and commissioners to subcommittee leadership ....................................... 192 

Letter, dated April 6, 2011, from Jim Gibbons, President and CEO, Goodwill 

Industries International, Inc., to subcommittee leadership ............................. 196 

Letter, dated April 1, 2011, from Michael S. Bass, President, Hobby Manufacturers Association, to John ‘‘Gib’’ Mullan, Chief Counsel, Commerce, Manufacturing, and Trade Subcommittee ................................................................... 198 

Letter, dated April 5, 2011, from David E. Jacobs, Research Director, National Center for Healthy Housing, to Mr. Upton ............................................. 200 

Joint letter, dated April 6, 2011, to subcommittee leadership ............................. 203 

Letter, dated April 5, 2011, from Linda Ginzel and Boaz Keysar, Co-founders, 

Kids In Danger, to subcommittee leadership ..................................................... 206 

Letter, dated April 7, 2011, from Nancy A. Nord, Commissioner, Consumer 

Product Safety Commission, to Mrs. Bono Mack .............................................. 209 

Letter, dated April 5, 2011, from Lisa L. Olney to Mr. Butterfield .................... 211 

Letter, dated April 5, 2011, from Lisa L. Olney to Mrs. Bono Mack .................. 213 

Letter, dated April 5, 2011, from Scott Clark, Professor, Department of Environmental Health, University of Cincinnati, to Mr. Upton .............................. 215 

Letter, dated April 6, 2011, from Bob Wopperer, Senior Director, Marketing 

and Business Development, Thermo Fisher Scientific, to Mr. Upton .............. 217 

Letter, dated April 3, 2011, from Michele Witte to subcommittee leadersip ...... 219 

Statement, dated April 6, 2011, on behalf of YKK Corporation of America ....... 221 

Discussion draft of H.R. ————, a bill to amend the consumer product 

safety laws ............................................................................................................ 229 

(1) 

H.R. ————, LEGISLATION TO REVISE THE 

CONSUMER PRODUCT SAFETY IMPROVEMENT ACT 

THURSDAY, APRIL 7, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND

TRADE, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:05 a.m., in Room 

2123 of the Rayburn House Office Building, Hon. Mary Bono Mack 

(chairman of the subcommittee) presiding. 

Members present: Representatives Bono Mack, Blackburn, 

Stearns, Bass, Harper, Lance, Cassidy, Guthrie, Olson, McKinley, 

Pompeo, Kinzinger, Barton, Butterfield, Dingell, Towns, Rush, 

Schakowsky, and Waxman (ex officio). 

Staff present: Gib Mullan, Chief Counsel; Shannon Weinberg, 

Counsel; Paul Cancienne, Policy Coordinator; Brian McCullough, 

Senior Professional Staff Member; and Alex Yergin, Legislative 

Clerk. 

Mrs. BONO MACK. Good morning. It is with a sense of purpose 

as well as a sense of urgency that we gather here today to consider 

some sensible ways to make the Consumer Product Safety Improvement Act, also known as CPSIA, work better for all Americans. 

There is bipartisan agreement that CPSIA, while well-intentioned, 

has created a number of serious problems for manufacturers and 

retails. Today, we will examine some ways to make a good law 

even better. 

The chair will now recognize herself for an opening statement. 

You can start me back at 5. Thank you. 

OPENING STATEMENT OF HON. MARY BONO MACK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

In our first hearing of the year, we heard about many of the 

problems associated with passage of CPSIA. Today, we will focus 

on a preliminary discussion draft, which offers a range of possible 

solutions. 

One major area for reform relates to the regulation of children’s 

products. In this area, we have the benefit of five unanimous recommendations from the CPSC. We also have draft legislation from 

last year and other CPSC suggestions in response. 

2 

The discussion draft aims to reduce the regulatory burdens of the 

law without undercutting consumer protection. A fundamental 

premise is that the Commission can actually protect consumers far 

better when it is allowed to set priorities and regulate based on 

risk. Where possible, we should spare the Commission from having 

to make time-consuming, case-by-case determinations, and let it 

spend more time on its bigger problems. This is especially true in 

our current budget climate where we have to make the best use of 

agency resources. 

We need to strike the right balance and that is seldom easy. The 

discussion draft points to areas where we must decide important 

policy questions. I hope our witnesses today will help us to make 

wise choices by shedding light on these issues. 

In Section 1, for example, the draft leaves open the age for defining the term ‘‘children’s product.’’ At our last hearing, my friend 

and colleague Mr. Dingell, the chairman emeritus of the full committee, reminded us that a lot of the problems with CPSIA originated in the Senate, but this is one that did not. The Senatepassed bill applied the lead content limits to products for children 

ages 7 and under. That age would have kept the focus on children 

who are at greater risk when it comes to lead, because very young 

children, according to the CPSC, are much more likely to put 

things in their mouth. The House set the top age at 12 years old 

because of the so-called ‘‘common toy box’’ concern. But by pushing 

the age to 12, we ended up regulating a huge number of products 

that are never going to be mouthed or even handled by young children. These include not only the well-known examples of ATVs, bicycles, and books, but also band instruments, scientific instruments, and clothes for older children, among other things. 

Another key area is third-party testing. Again, the discussion 

draft tries to strike an appropriate balance. It preserves third-party 

testing for lead paint, cribs, pacifiers, small parts, and children’s 

metal jewelry, all priorities that Congress explicitly set in CPSIA. 

For other standards, however, it gives the Commission discretion 

to decide what standards should require third-party testing. And it 

gives the Commission new authority and flexibility to require testing for only some portions of a standard or only for certain classes 

of products. It also asks the Commission to make sure that the 

benefits of third-party testing justify the costs before making it 

mandatory. 

Another major area of reform is the CPSC’s public database, 

which just recently began to post complaints. The discussion draft 

addresses some of the more significant problems that were brought 

to light in our earlier hearing. 

First, the draft spells out in greater detail who can submit reports of harm for the public portion of the database. Among consumers, only those who have suffered harm or a risk of harm—as 

well as members of their family, legal representatives, or any person authorized by the family—could make public reports. 

Second, the draft sets forth a process for improving product identification. The database cannot help consumers if they don’t know 

which products have problems. The draft enlists manufacturers to 

help consumers provide better descriptions. 

3 

Third, the draft gives CPSC more options for solving claims of 

material inaccuracy. The fundamental premise here is that the 

database may do more harm than good if it misleads consumers 

based on inaccurate information. 

Finally, the draft would strengthen the Commission’s authority 

to investigate complaints. While some consumers may benefit from 

the ability to see safety-related complaints, a lot more consumers 

will benefit if the Commission can investigate complaints more 

quickly. 

Congress must move quickly, too, because the clock is ticking. 

Unless we act soon, the 100 parts-per-million lead limit will take 

effect retroactively in August, and once again, millions of dollars 

worth of products will become illegal to sell, donate, or export. 

We have an opportunity and an obligation to make CPSIA a law 

that benefits all Americans. 

[The prepared statement of Mrs. Bono Mack follows:] 

PREPARED STATEMENT OF HON. MARY BONO MACK

The committee will come to order. 

Good Morning. Today, we turn back to the subject of the Consumer Product Safety Improvement Act of 2008, also known as CPSIA. In our first hearing of the year, 

we heard about the many problems associated with this law. Today, we will focus 

on a preliminary discussion draft, which offers a range of possible solutions. 

One major area for reform relates to the regulation of children’s products. In this 

area, we have the benefit of five unanimous recommendations from the Consumer 

Product Safety Commission. We also have draft legislation from last year and other 

CPSC suggestions in response. 

The discussion draft aims to reduce the regulatory burdens of the law without undercutting consumer protection. A fundamental premise is that the Commission can 

actually protect consumers far better when it is allowed to set priorities and regulate based on risk. Where possible, we should spare the Commission from having 

to make time-consuming, case-by-case determinations, and let it spend more time 

on bigger problems. This is especially true in our current budget climate, where we 

have to make the most of scarce agency resources. 

We need to strike the right balance, and that is seldom easy. The discussion draft 

points to areas where we must decide important policy questions. I hope our witnesses today will help us to make wise choices by shedding light on these issues. 

In section 1, for example, the draft leaves open the age for defining the term ‘‘children’s product.’’ At our last hearing, my friend and colleague Mr. Dingell, the Chairman emeritus of the full committee, reminded us that a lot of the problems with 

CPSIA originated in the Senate, but this is one that did not. The Senate-passed bill 

applied the lead content limits to products for children age 7 and under. That age 

would have kept the focus on children who are greater risk when it comes to lead, 

because very young children, according to the CPSC, are much more likely to put 

things in their mouth. The House set the top age at 12 years old, because of the 

so-called ‘‘common toy box’’ concern. But by pushing the age to 12, we ended up regulating a huge number of products that are never going to be mouthed or even handled by young children. These include not only the well-known examples of ATVs, 

bicycles, and books but also band instruments, scientific instruments and clothes for 

older children, among other things. 

Another key area is third-party testing. Again, the discussion draft tries to strike 

an appropriate balance. It preserves third-party testing for lead paint, cribs, pacifiers, small parts, and children’s metal jewelry—all priorities that Congress explicitly set in CPSIA. For other standards, however, it gives the Commission discretion 

to decide what standards should require third-party testing. And it gives the Commission new authority and flexibility to require testing for only some portions of a 

standard or only for certain classes of products. It also asks the Commission to 

make sure that the benefits of third-party testing justify the costs before making 

it mandatory. 

Another major area of reform is the CPSC’s public database, which just recently 

began to post complaints. The discussion draft addresses some of the more significant problems that were brought to light in our earlier hearing. 

4 

First, the draft spells out in greater detail who can submit reports of harm for 

the public portion of the database. Among consumers, only those who have suffered 

harm or a risk of harm—as well as members of their family, legal representatives 

or any person authorized by the family—could make public reports. 

Second, the draft sets forth a process for improving product identification. The 

database cannot help consumers if they don’t know which products have problems. 

The staff draft enlists manufacturers to help consumers provide better descriptions. 

Third, the draft gives CPSC more options for solving claims of material inaccuracy. The fundamental premise here is that the database may do more harm than 

good if it misleads consumers based on inaccurate information. 

Last, the draft would strengthen the Commission’s authority to investigate complaints. While some consumers may benefit from the ability to see safety-related 

complaints, a lot more consumers will benefit if the Commission can investigate 

complaints more quickly. 

Congress must move quickly, too, because the clock is ticking—unless we act soon, 

the 100 ppm lead limit will take effect retroactively in August and once again millions of dollars worth of products will become illegal to sell, donate or export. 

Mrs. BONO MACK. And now I would like to recognize the ranking 

member of the full committee, Mr. Waxman, for his 5-minute opening statement. 

Mr. WAXMAN. Chairman Bono, thank you very much for recognizing me to give this opening statement and Mr. Butterfield to 

allow me to go ahead of him. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

I share your belief that some changes are needed to the toy bill 

that we passed in 2008. That legislation was an historic step forward for children’s safety, but like most legislation, it was not perfect. It has had some unintended consequences and needs refinement. But the discussion draft before us, which is the subject of today’s hearing, takes a wrecking ball to the law and would endanger 

young children. As the chair of the Consumer Products Safety Commission wrote us today, this draft would turn back the clock to an 

era when harmful products made their way into the stream of commerce and into the hands of innocent children. 

In 2008 our committee led the way in passing a strong toy safety 

law. We held hearings at which we learned about children who 

died or were severely injured by lead in toys and small charms. We 

learned that other children suffered catastrophic internal injuries 

from magnetic toys that ripped through their intestines. And we 

witnessed record recalls and loss of confidence in the safety of children’s products. Despite strong bipartisan support for the new law, 

implementation has not always been smooth. The ATV industry, 

the bicycle industry, the publishing industry, and makers of 

handcrafted toys have all raised valid compliance issues. 

I know it is possible to address these concerns without gutting 

the law. When I was chairman of the committee in the last Congress, we initiated a stakeholders’ process to produce the draft bill 

that gave targeted relief to industry while maintaining the most 

important health and safety protections in the new law. That draft 

legislation was supported by both industry and consumer groups. 

Although the Republican staff were consulted at every step in the 

process, Ranking Member Barton decided he would not support the 

bill and we never acted on it. 

5 

The discussion draft before us is a very different document. 

Democrats, consumer groups, and health experts were not consulted. The result is a one-sided proposal that provides relief to industry but sacrifices children’s health and safety. According to the 

Consumer Federation of America and Consumers Union, this proposal undermines safety testing for children’s products, undermines 

lead protections, undermines the effectiveness of the new crib safety standard, and undermines the new public safety product hazard 

database. 

According to Chairman Tenenbaum and Commissioners Adler 

and Moore, this proposal would be a reversal of several of the core 

safety provisions in the law. Not only are they critical of the bill, 

but let me just state quite clearly, there is no chance that a bill 

this extreme could ever become law. It would not survive in the 

Senate, and if it did, it would be vetoed by the President. The result would be a lost opportunity. Many of the witnesses who will 

testify today have identified legitimate concerns but they will receive no relief if all we produce is a more partisan gridlock kind 

of legislation. 

If we work together, I am confident that we can find a way to 

address most of industry’s concerns without jeopardizing the important safety advances we made in the toy safety law. And I had a 

discussion with the chairman yesterday. I think there is an opportunity for us to work together and produce a product that will be 

a consensus product. I hope that after this hearing is over we can 

start fresh and we can produce a genuine bipartisan reform we all 

can support. 

Madam Chair, I would like to yield the rest of my time and an 

additional 1 minute without any objection to Mr. Rush, who 

chaired this subcommittee in the last Congress and I think has an 

important statement to make. 

Mrs. BONO MACK. Without objection, the gentleman is recognized. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. Thank you, Madam Chair, and I want to thank the 

ranking member for the full committee for yielding this time to me. 

Madam Chair, consumer protection is one of the core functions 

of this subcommittee, and I want to commend you for convening 

this important hearing. However, I am surprised to see that instead of talking about improving safety for our children, making 

our new law’s implementation possible, we are focusing on undoing 

one of the legislative achievements of this subcommittee historically. Demolition and destruction, not creative solution seems to be 

the policy agenda for our new Republican majority. I am still waiting to see when we will talk about real policy solutions, including 

the policy implementation issues as it relates to this bill for the 

American people. 

Regulations are not a problem. It is the constant changes or the 

risk of changes that are difficult to manage for our manufacturers, 

our consumers, and for the American public. We need to agree once 

and for all and implement the laws that we have developed. We 

need regulatory predictability. There is a similar Product Safety 

6 

Improvement Act that the Republicans are attempting to revise 

today represents demolishing the most comprehensive overhaul of 

U.S. consumer protection oversight in a generation, one that established policies which repaired our Nation’s broken product safety 

system. 

And I must say, Madam Chairman, that I am very proud of what 

we did with bipartisan input, with input from all the stakeholders 

despite the political differences that we all shared. We were able 

to reinvigorate the CPSC with resources. We added additional commissioners. We authorized a shiny new testing lab. And Madam 

Chair, may I ask for an additional 30 seconds? 

Mrs. BONO MACK. The clock—— 

Mr. RUSH. All right. Well, Madam Chair, I just want to conclude 

by saying that this hearing could be better spent if we were really 

trying to—maybe we could solve some of the problems—— 

Mrs. BONO MACK. All right—— 

Mr. RUSH [continuing]. That we have implementing the bill. 

Thank you. 

Mrs. BONO MACK. All right. So the gentleman yields back. And 

now—— 

Mr. RUSH. I yield back the time I have. 

Mrs. BONO MACK. Chairman Upton, in accordance with the committee rules, yielded me his 5 minutes, and as his designee, I 

would like to recognize the chairman emeritus of the full committee, Mr. Barton, for 21⁄2 minutes. 

Mr. BARTON. Well, Madam Chairman, I really can’t do it in 21⁄2

minutes. So you are going to have to give me at least 3 minutes 

or just go to somebody else. 

Mrs. BONO MACK. Well, we were rather lenient with the other 

side, so that is not a problem. Go ahead. 

Mrs. BLACKBURN. Madam Chairman, I will yield the chairman 

emeritus my time. 

Mrs. BONO MACK. So the chairman emeritus is recognized for 31⁄2

minutes. 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BARTON. There is an old joke about somebody trying to get 

somebody to vote for him and the guy says I would never vote for 

you if you were running unopposed. And the man goes back and 

says well, how do we put that voter down? He says put him down 

undecided. That is kind of what we need to put Mr. Waxman down 

after what he said. 

I participated as the ranking member when this bill was passed. 

I participated in the last Congress when there was an attempt to 

amend it. When Chairman Waxman said that the Republicans and 

the staff were consulted, that is a true statement, but we weren’t 

listened to. In the last Congress, Chairman Waxman and his allies 

were almost totally inflexible in trying to come to some common 

ground on changes to the law that was passed under Chairman 

Dingell’s chairmanship back in 2008. 

This discussion draft does not take a wrecking ball to the law. 

It is a good-faith attempt to reconcile the law that, in its current 

state, is literally unenforceable. We have that in testimony from 

7 

the Consumer Product Safety Commission. They have basically—I 

wouldn’t even use the term basically—they have no flexibility at 

all. The discussion draft that Chairwoman Bono Mack has crafted 

does give flexibility. I think that is a good thing. It does change 

some of the principles or modify some of the principles from the 

law that was passed 2 years ago, but it keeps the core of the law 

together and it does give the Commission the flexibility and the industry that has to live by it the ability to actually use a little common sense in implementation. I think that is a good thing. I think 

this discussion draft is a vehicle that can be a bipartisan compromise. But a compromise means both sides have to come together. And Chairman Waxman’s statement indicates to me that it 

is the bill or nothing. And I don’t think that is a position to take 

when we are trying to do something that should be everybody’s 

best intentions to actually protect the children of America, but also 

gives those that provide the products for our children the ability to 

provide them in a safe and effective fashion. 

I am the father of a 5-year-old and the grandfather of five grandchildren that are under the ages of 13. There is no way in this 

world that I want to do anything that would put my 5-year-old 

child or my grandchildren in harm’s way. So Madam Chairwoman, 

I think the discussion draft is a good starting point. It is a starting 

point. It is not an end point. And if Mr. Waxman and Mr. Rush 

and our friends on the minority side wish to work with us, we can 

come up with something that improves the bill that is now the law 

and gives the flexibility that is necessary. 

So with that, I want to thank the Chairwoman for giving me 

some extra time and thank the vice-chairwoman, Ms. Blackburn, 

for giving me some of her time. And I yield back. 

Mrs. BONO MACK. I thank the gentleman for his statement and 

yield 1 minute to Ms. Blackburn. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you, Madam Chairman. I am only going 

to take about 30 seconds because there are several individuals that 

would like to speak on this issue. I want to thank the chairman 

for bringing forward a discussion draft that will encourage us all 

to listen to the science and to use some common sense. I am a 

mother. I am a grandmother. I am an aunt. I am a sister. There 

is no way I would want to have products in the marketplace that 

are going to be harmful to children and grandchildren, no way at 

all. And I think it is important that we listen to the science. I think 

that it is important that we apply some common sense. I have also 

listened to a lot of the crafters and the small producers in my area 

and have had good discussions with them. Also, Mr. Howell, when 

we get to you, I am going to want to talk about this database that 

I think is seriously flawed. And I thank the chairman and yield 

back. 

Mrs. BONO MACK. I thank the gentlelady and recognize the gentleman from Florida, Mr. Stearns, for 1 minute. 

8 

OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. STEARNS. Thank you, Madam Chairman. Let me echo what 

the emeritus chairman, Joe Barton, said. I was a conferee on this. 

We had lots of recommendations. We in fact specifically recommended what the CPSC did in January 2010 when they reported back to Congress and they identified some of the problems. 

There was no flexibility. And they recommended solutions. And we 

had these recommendations under Joe Barton’s leadership to provide the CPSC with this kind of flexibility they need to grant exclusions to the lead limits but they didn’t listen. So I think, Madam 

Chair, what you are doing here is the Lord’s work. We need to have 

the flexibility. And we heard from Commissioner Northrup, who 

was a former Member of Congress. She also bought this out. And 

so I am pleased to be here and to support you and I appreciate 

what you are doing. Thank you. 

Mrs. BONO MACK. I thank the gentleman. Last but not least, the 

gentleman from North Carolina, the ranking member of our subcommittee, Mr. Butterfield, is now recognized for his 5 minutes. 

OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. BUTTERFIELD. Let me thank you very much, Chairman Bono 

Mack, and especially thank you to all of the witnesses who have 

come forward today to give us your testimony. 

You know, Madam Chairman, my recollection—and I was simply 

a rank and file member of the subcommittee in the last Congress— 

but my recollection of this is somewhat different from my good 

friend from Texas, Mr. Barton. My recollection is that CPSIA followed a long and well-considered road to passage that included 

many, many hearings and extensive conference with the Senate 

from introduction to enactment. I recall that this legislation at all 

times remained a bipartisan effort, and I am surprised to hear 

today that it was not. The vote tally speaks volumes about the bipartisanship nature of this law. Much of the law was taken wordfor-word from some of Mr. Barton’s language that he had authored. 

The House passed the conference report with a vote of 424 to 1. 

And while I don’t know it for a fact, I suppose Mr. Barton may be 

the 1, but the vote was 424 to 1. And the Senate passed it—— 

Mr. BARTON. Could the gentleman yield? 

Mr. BUTTERFIELD. Yes. 

Mr. BARTON. I voted for the bill. 

Mr. BUTTERFIELD. You did vote, right. 

Mr. RUSH. He voted for it, yes. 

Mr. BUTTERFIELD. All right. And the Senate vote was 89 to 3. 

Today, however, it is apparent some portions of the law need to be 

refined. The ranking member of the full committee has acknowledged that and I do as well. Unfortunately, the discussion draft 

does not seek to refine the law. Rather, it seeks to undo nearly 2 

years of close consultation and careful compromise with Members 

of Congress, industry—many of whom are here today—and consumer groups, and potentially puts consumers and children at risk. 

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tion of the draft legislation. And I am confident the language would 

look very different had we been invited to the table and had an opportunity to participate. The draft language would redefine what is 

considered a children’s product to a yet-to-be-determined age, possibly exposing both those who would be classified as children and 

those who would not to potentially dangerous products. 

I ask my colleagues about households with multiple children, if 

a 9-year-old has a toy intended only for ages 9 and older, is it not 

reasonable to expect that 9-year-olds with a preschool-age sibling 

would also want to and will find a way to play with that toy? But 

perhaps most alarming is rolling back the current lead content limits in favor of risk assessment. This is similar to the model that 

proved to be inadequate prior to CPSIA but with the twist of creating additional burdens for the Commission. 

Since the model and the draft will require premarket risk assessment, CPSC will have to determine for each and every children’s 

product how manufacturers should measure the risk. I am troubled 

that the draft eliminates independent third-party testing for all 

children’s products with a very narrow exception for five categories. 

I remind my friends of the millions of toys that were recalled in 

’07 due not only to high lead levels but design-related safety defects 

as well. It was clear that manufacturers of children’s products and 

their suppliers had fallen asleep at the wheel and their in-house 

safeguards were inadequate. 

Finally, and I am going to yield to the gentlelady from Illinois 

in just a minute—CPSIA required the CPSC to create a Public 

Product Safety Information Database so that consumers would 

have a convenient way to report and learn about dangerous products. The draft language marginalizes the efficacy of the database 

by limiting who can submit information, as well as establishing a 

drawn-out process by which the submitter, the Commission, and 

the manufacturer are required to have ongoing contact. The more 

burdensome it becomes to make a safety complaint, the less likely 

consumers are to use the database. At this time I will yield my remaining time, Madam Chairman, to the gentlelady from Illinois. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. I thank the gentleman for yielding. 

To say that I am concerned about the draft bill would be a vast 

understatement. Here we are in the Subcommittee on Commerce, 

Manufacturing, and Trade, and instead of looking at ways that we 

can create jobs, good jobs for the American people, we are examining a bill to undermine consumer protection, words that used to 

be part of the subcommittee’s title. The draft bill is not a collection 

of small fixes. It would fundamentally gut key pieces of the CPSIA, 

including the provisions I authored to ensure that durable infant 

and toddler products are subject to rigorous testing requirements. 

I want to read a letter I received from Danny Keysar’s parents, 

which I hope to submit for the record, along with two other letters 

from parents who lost their children. Danny’s mom wrote, ‘‘As parents who have paid the ultimate price for unsafe products, we 

know you don’t want to see more children suffer as our son did.’’ 

10 

Giving flexibility to the CPSC to enforce safety provisions is one 

thing, but this wholesale reversal of crucial safety provisions sends 

us back to a scenario we know leaves children at risk. 

I yield back the balance of my time. 

Mrs. BONO MACK. All right. And the chair inadvertently overlooked the last 30 seconds on our side, and I would like to recognize the gentleman from Texas, Mr. Olson, for 30 seconds. 

OPENING STATEMENT OF HON. PETE OLSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. OLSON. I will be brief. I am pleased to be here, and I thank 

the Chair for her leadership in bringing forward this important 

draft legislation to fix the unintended consequences of CPSIA. 

As a parent, nothing is more important to me than the safety 

and health of my children. I think this draft provides us with a balanced way forward that protects my children from harmful products without devastating our country’s small businesses. If my children are protected, your children are protected. 

I thank the Chair and looking forward to helping her advance a 

commonsense fix to this law. I yield back. 

Mrs. BONO MACK. I thank the gentleman. And now all opening 

statements are concluded. And we have three panels before us 

today. Each of the witnesses has prepared an opening statement 

that will be placed in the record. Each of you will have 5 minutes 

to summarize that statement in your remarks. On our first panel 

we have, in reverse order, but we have Robert Howell, Assistant 

Executive Director of Hazard Identification and Reduction at the 

U.S. Consumer Product Safety Commission. That is a mouthful. 

And then Dr. Barbara Beck, a widely respected expert in toxicology 

and a former EPA region chief and fellow at the Harvard School 

of Public Health; and Dr. Dana Best, who is presenting on behalf 

of the American Academy of Pediatrics. 

Good morning. I would like to thank you all for coming. You will 

each be recognized for 5 minutes. To help you keep track of time, 

the little clock in front of you, when it turns yellow, please recognize that is the 1-minute mark if you could start wrapping up and 

when the light turns red, your time is up. I would also ask you to 

remember to turn the microphone on before you begin. And now I 

would like to start with Dr. Best for your 5 minutes. Good morning 

and welcome. 

STATEMENTS OF DANA BEST, MD, MPH, FAAP, AMERICAN 

ACADEMY OF PEDIATRICS; BARBARA D. BECK, PH.D., DABT, 

FATS, PRINCIPAL, GRADIENT; AND ROBERT JAY HOWELL, 

ASSISTANT EXECUTIVE DIRECTOR, HAZARD IDENTIFICATION AND REDUCTION, U.S. CONSUMER PRODUCT SAFETY 

COMMISSION 

STATEMENT OF DANA BEST 

Ms. BEST. Good morning. Thank you for this opportunity to testify today. I am a pediatrician and pleased to represent the American Academy of Pediatrics. The AAP is deeply concerned that the 

subcommittee is considering legislation that would profoundly alter 

the CPSIA and could reverse the progress towards safer toys and 

11 

children’s products. Today I will focus on four areas: the scope of 

children’s products, lead limits in children’s products, risk assessment, and the need for third-party testing. 

First, the scope of children’s products should protect children up 

to age 12. The AAP recommended that the CPSIA cover products 

for children up to age 12 years based on developmental and pragmatic concerns. With regard to developmental issues, the mouthing 

behaviors that cause the most concern for exposure to hazards like 

lead peak in the toddler years and taper off throughout school age, 

although it is not unusual for school-age children to place toys and 

other objects in their mouths or to mouth or suck on items like jewelry and pens. For some groups, such as children with developmental delays, mouthing behaviors may persist until adolescence or 

later. 

Another concern is that toys are often shared. While most parents work hard to keep toys for older children away from younger 

children, they may not always be successful. It is therefore important to ensure that toys are as safe as possible for all children in 

the household. 

Second, the CPSIA’s limits on lead in children’s products should 

not be relaxed. In the judgment of the AAP, there is no scientific 

basis for establishing a de minimis level for lead in children’s products. To date, science has not identified a threshold below which 

lead ceases to damage a child’s brain or body. There is no known 

safe level of lead. During the development of the CPSIA, the AAP 

was asked to recommend a limit for lead in children’s products. 

Following a rigorous scientific review, the Academy recommended 

that lead in children’s products be limited to 40 parts per million. 

The rationale behind this level is explained in my written testimony. 

The AAP is also concerned that the discussion draft proposes to 

distinguish between lead exposure due to sucking on an item from 

lead exposure due to licking an item. From a scientific perspective, 

there is no basis for making this differentiation. Both actions defined as ‘‘mouthing’’ in the pediatric literature are associated with 

lead ingestion. 

The AAP urges Congress to resist calls to set differing standards 

for lead in children’s products based solely on the likelihood of 

sucking, licking, or swallowing. Given the extreme toxicity of lead, 

its bioaccumulation, and the irreversible nature of the damage it 

causes, the concept of setting different levels of lead for various 

types of toys or children’s products is troubling. 

Third, risk assessment is not an appropriate method for limiting 

lead exposure in children’s products. The draft before the subcommittee appears to shift from measurement of total lead in children’s products to risk assessment frameworks. The AAP urges you 

to leave intact the straightforward, predictable total lead standard 

in the CPSIA. The fundamental premise of risk assessment is that 

some degree of risk is acceptable such as when the benefit of receiving a drug is compared to its side effects. In the case of lead, 

there is no benefit to exposure. While the harms are numerous and 

significant such as decreased IQ, if the CPSIA standard is altered, 

Congress would need to determine what level of IQ loss is considered acceptable. 

12 

In addition, standards should protect not only the average child, 

but also children at higher risk of lead exposure and its consequences. This is best accomplished using the lead limits currently 

in the CPSIA. 

The AAP is deeply concerned that a risk assessment framework 

would require the CPSC to perform or confirm risk assessment on 

many different products. It is unclear who would bear the ultimate 

responsibility for determining risk or what the process would be for 

reconciling differences when risk assessments differ between the 

agency and the manufacturer. 

Finally, third-party testing is necessary to ensure the safety of 

children’s products. The discussion draft proposes significant 

changes to CPSIA’s third-party testing requirements, dramatically 

reducing the number and types of products subject to independent 

testing. This would essentially return us to the pre-CPSIA state of 

affairs in which consumers were expected to guess which toys and 

children’s products were really safe. 

The AAP would like to make one more comment on another point 

made in the discussion draft and strongly recommend that noncompliant cribs not be permitted in childcare facilities. 

In conclusion, the AAP urges you to not weaken the CPSIA’s protections against lead and other hazards as you consider ways to improve the ability of manufacturers and businesses to comply with 

this important law. Thank you. 

[The prepared statement of Dr. Best follows:] 

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Mrs. BONO MACK. I thank the gentlelady and recognize Dr. Beck 

for 5 minutes. Can you make sure your microphone is on and close 

to your mouth, please? 

Ms. BECK. Sorry. 

Mrs. BONO MACK. Thank you. 

STATEMENT OF BARBARA D. BECK 

Ms. BECK. My name is Barbara Beck. I am a toxicologist risk assessor at Gradient, an environmental consulting company and I 

have worked on issues of lead exposure, toxicology, and risk for 

over 20 years, starting from my time at EPA Region 1 where I was 

involved in development of one of the first clean up levels for lead 

in soil that I am aware of. I have evaluated exposures, toxicology 

of lead in products, workplace, and in the environment. 

In its present version, the CPSIA Act has established a concentration limit of 300 parts per million for lead, which will go in 

August to 100 parts per million unless it is not feasible. This is 

going to be problematic and is problematic at present, especially for 

metallic alloys that contain lead such as tire stem valves. My concern with the present approach is that it doesn’t consider the actual exposure, the intake, the absorption, and the impact of lead 

releases from such products on blood lead levels. Blood lead levels 

are typically considered the appropriate metric for evaluating exposures to lead. 

Risk-based approaches have been used to establish limits for lead 

for decades. It has been used to establish limits for lead in air, 

water, and soil. Such approaches have been beneficial. Blood lead 

levels of children in the U.S. have declined by over a factor of 10 

over the past 20 years as lead has been removed or reduced from 

air, from food, and from paint. 

The proposed changes represent a step in the right direction. Determination of a de minimis level of lead exposure is consistent 

with what has been conducted with other types of materials such 

as soil, air, and water, and it also proposes the use of a methodology to identify how much lead is released, what the actual exposure would be from a children’s product. This approach is not only 

consistent with regulatory policy in other settings, but with fundamental principles of toxicology. The dose is what matters. The dose 

of a chemical—whatever the chemical is, how hazardous it is—is 

really critical in determining whether there would be a risk or no 

risk. 

I am not here to propose a specific model or a specific de minimis 

limit, but I do note that the approaches should consider the age of 

the child: mouthing behavior peaks at age 2 to 3, absorption of lead 

from the gut peaks around that age, and choosing a value of, say, 

7 years old would be protective of younger children. The method 

that is considered should consider how a child actually interacts 

with the product and risk-based methods are available to evaluate 

mouthing behavior, contact by hand with products, hand-to-mouth, 

as well as the potential swallowing of a product and the impact 

that contact on blood lead. That can be modeled. 

My comments that are provided to the committee provide a hypothetical example of how such an analysis could be conducted. It is 

not meant to propose specific de minimis values or the specifics of 

28 

an approach but to demonstrate that there are methods. In my particular example, I demonstrate how a release of 1 microgram of 

lead from a product per day every day for a 2- to 3-year-old child 

would not have a discernible impact on blood lead. Some people 

may consider that de minimis. 

In conclusion, I strongly encourage the committee to consider the 

use of such risk-based approaches in proposing amendments to the 

CPSIA. Such approaches will allow for health-protective risk-based 

limits that would be sound public health policy, as well as sound 

risk management policy. Thank you. 

[The prepared statement of Ms. Beck follows:] 

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Mrs. BONO MACK. Thank you, Dr. Beck. Mr. Howell, you are recognized for 5 minutes. 

STATEMENT OF ROBERT JAY HOWELL 

Mr. HOWELL. Good morning, Chairman Bono Mack, Ranking 

Member Butterfield, and members of the subcommittee. My name 

is Robert Howell. I am the assistant executive director for the Office of Hazard Identification and Reduction at the Consumer Product Safety Commission. I appreciate the opportunity to testify before you this morning regarding certain technical aspects of the discussion draft of legislation that would revise the Consumer Product 

Safety Improvement Act. The testimony that I will give this morning represents my personal views and has not been reviewed or approved by the Commission and may not necessarily reflect the 

views of the Commission. 

In my role at CPSC, I oversee the technical work of the Agency 

within the Office of Hazard Reduction’s directorates for Engineering Sciences, Epidemiology, Economic Analysis, Health Sciences, 

and Laboratory Sciences. My office is responsible for the collection 

and analysis of death and injury data associated with consumer 

products, the evaluation of consumer products for potential safety 

hazards and regulatory compliance, and the development of technical solutions to product safety concerns. 

Prior to joining CPSC in 2006, I served as vice-president of manufacturing and operations for a multinational corporation with responsibility for the management of global manufacturing and logistics. 

On January 15, 2010, the five members of the CPSC issued a report to Congress regarding possible improvements to the CPSIA. In 

suggesting those improvements, the commissioners noted that the 

recommendations were focused on maintaining the ‘‘safety and welfare of consumers while minimizing administrative burdens on the 

Agency or significant market disruptions caused by the implementations of specific provisions of the CPSIA.’’ 

Specifically, the Commission listed the following recommendations for improvement of the statute: that the Commission ‘‘needs 

additional flexibility within Section 101 to grant exclusions from 

the lead content limits in order to address certain products, including those singled out by the conferees;’’ that ‘‘Congress may, with 

some limitations, choose to consider granting an exclusion for ordinary children’s books and other children’s paper-based printed materials; the Commission believes that a prospective application of 

the 100 parts per million lead limits would be helpful for our continued implementation of the law;’’ and that the ‘‘Commission remains committed to working with Congress to explore other ways 

to address the concerns of low-volume manufacturers’’ with regard 

to the testing and certification requirements in Section 102 of the 

CPSIA. 

From my perspective, the CPSIA has improved the health and 

safety of consumers, particularly children. In additional, industry 

has made substantial progress over the past 21⁄2 years adapting to 

the requirements of the law. For example, the children’s product 

industry has made progress in reducing the levels of lead since the 

enactment of CPSIA. In a recent Commission hearing on the techVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
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nological feasibility of reducing the lead limits to 100 parts per million, a representative of SGS—a global inspection, verification, testing, and certification company—presented a statistical analysis of 

lead content testing data with close to 90,000 data points collected 

primarily from its Shenzhen laboratory that specializes in the testing of children’s toys and other children’s products. 

In its analysis, SGS found that 96.3 percent of metal components 

tested at or below 100 parts per million. The analysis also determined that just over 97 percent of glass and ceramic components 

tested at or below 100 parts per million. Concerning plastic components, SGS found that 99.4 percent of those components tested at 

or below 100 parts per million. However, there are certain provisions of the CPSIA such as the current exceptions to the Section 

101 lead limits that can be improved in such a way as to reduce 

the burden on the regulated community while maintaining an appropriate level of safety for America’s consumers. I personally believe this balance is necessary to ensure efficient and effective implementation of the CPSIA from the perspective of both the regulated community and the regulators. 

There are several approaches that could allow the CPSC to address the unintended consequences of certain regulatory requirements in the CPSIA. For example, the Commission has heard from 

a number of Members of Congress that they did not intend to cover 

all-terrain vehicles under the provisions of Section 101. Accordingly, Congress could permit the Commission to exempt certain 

products like ATVs from the lead limits. This will allow the CPSC 

to weigh the risk of possible lead exposure to a child riding a 

youth-sized ATV against the risk to the child from riding a larger 

and more powerful adult ATV. 

Assuming that the exceptions would be made on a notice-andcomment basis, the underlying analysis and support for any exceptions would be public, allowing for transparency and accountability 

for all stakeholders involved in the process. 

Finally, allowing the Commission to regulate on a timetable influenced by the seriousness of the actual risk would allow for better 

priority-setting that will permit Commission resources to be put towards the most serious health risk. 

Mrs. BONO MACK. If you could please sum up now. 

Mr. HOWELL. Madam Chairman, thank you. 

[The prepared statement of Mr. Howell follows:] 

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Mrs. BONO MACK. Thank you. Oh, perfect. Thank you. That 

worked out just well. I want to thank our panel of experts. And 

now the chair will recognize herself for the first 5 minutes of questioning. 

And Mr. Howell, the first question to you. How does the CPSC 

staff go about deciding whether a substance or a product poses a 

risk to children? And briefly, what factors are important? 

Mr. HOWELL. As CPSC staff evaluates potential risk to children, 

it involves several different teams within CPSC. We have a human 

factors team that will actually age-grade the product and determine what particular product characteristics are important in agegrading to ensure that the product is targeted to the correct group 

of children. If, for example, we are evaluating that product with regards to lead, for example, a complete risk assessment would be 

conducted taking into account not only the intended consumer but 

any other children that may be attracted to that particular toy 

based on characteristics of the toy. 

Mrs. BONO MACK. Thank you. Does the Commission have information on the cost of third-party testing? For example, do you 

know how much it would cost to have a bicycle tested by a thirdparty laboratory to all the applicable standards? 

Mr. HOWELL. We have heard from the bicycle industry that the cost to test a $50 bicycle for all the applicable standards would run 

somewhere in excess of $10,000. 

Mrs. BONO MACK. Wow. Thank you. And the focus of a lot of our 

attention, especially on this side of the aisle and again, Mr. Howell, 

is the database. I actually think the database is helpful and useful, 

but I think it has problems and we should talk about it a great 

deal. My thinking is that it is 100 percent negative derogator and 

that if the manufacturer can respond that they are seen as defensive. There must be a way—if you buy anything anywhere on the 

internet now, Amazon, I mean even Zappos.com, you know, there 

are comments on both sides. People can give the good and the bad 

of a product. Yet this database is 100 percent negative. Can it not 

be refined so that there is a more accurate depiction of a product? 

For example, if I complain about something potentially hurting 

my child but this is one example out of 10,000—but nobody else 

would have any way of knowing that—can’t the database be refined 

to be a more accurate depiction about a product in society? 

Mr. HOWELL. Chairman Bono Mack, I am quite certain that either Congress or the Commission could—within CPSIA as written—make modifications. But that is certainly more of a policy 

matter and is beyond my responsibilities at CPSC. 

Mrs. BONO MACK. Well, thank you. I think I made my thoughts 

pretty clear there in my questions. So also, to you Dr. Best, you 

state from a scientific perspective that there is no basis for differentiating between a child licking versus sucking on an object. In 

CPSIA however, Congress drew that very distinction for purposes 

of phthalate limits. Do you see a reason why this is changed? And 

I always do that on that word. Do you see a reason why this distinction makes sense for phthalates but not for lead? 

Ms. BEST. We didn’t actually work on the phthalates issue, and 

so I can do some research and perhaps offer you a response. But 

again, I am an expert on lead, not on phthalates. 

52 

Mrs. BONO MACK. All right. Thank you. And you mentioned also 

that older children sometimes put ballpoint pens or jewelry in their 

mouths. You also mentioned that toys may be shared among multiple children in the same household. But aren’t there many other 

items which older children do not mouth and to which younger 

children rarely, if ever, have access? 

Ms. BEST. Of course. But we are talking about the harms to children from lead-containing objects. And so, you know, our focus is 

on those lead-containing objects that may be dangerous to younger 

children. 

Mrs. BONO MACK. But common sense would say, as a parent— 

my kids are now 23 and 20 and my step-kids are 8 and 11—common sense would say to a parent their children don’t only come in 

contact with children’s products whether it is a 2-year-old toy, a 10- 

year-old toy or an adult, say, electronic component of some sort. Is 

that not a problem as well? Is it common sense that we are trying 

to say that a—from what I understand—a Hannah Montana DVD 

is under one category and a Miley Cyrus DVD is on another category and then a DVD player is entirely exempt? So parents ask 

themselves these questions all the time. It is one of these things, 

what are they thinking in Washington? Because it makes no sense 

at all. As a pediatrician, how do you address that? 

Ms. BEST. I am having trouble understanding the question. So 

yes, there are products in the house that are not intended for children that do not come under the CPSC’s purview in this context. 

And while there are other safety groups that may work with those 

products, we are focusing on the safety of children’s toys here and 

products intended for children. And that is our focus. 

Mrs. BONO MACK. We are out of time. Just to make a little more 

clear that it is common sense, sometimes, that you can’t protect 

from everything here. And that is the question. Is the Commission 

focused on its highest priorities? So I am sorry, but I need to yield 

now to Mr. Butterfield for his 5 minutes of questioning. 

Mr. BUTTERFIELD. Thank you, Chairman. Prior to the enactment 

of this legislation, the Consumer Product Safety Commission assessed the risk posed by children’s products containing lead by estimating the amount of lead intake from the product and the subsequent effects of exposure on blood lead level. For the most part, 

this was what I call an after-the-fact assessment. That is the Commission mostly looked at products for exposure to and risks from 

lead after products had entered the marketplace and been put into 

the hands of children. The discussion draft seems to create a de 

minimis exception that makes the total lead content limits in 

CPSIA more meaningless. Basically, any component part that cannot be swallowed can contain any amount of lead so long as a child 

isn’t expected to ingest more than some amount to be determined 

amount of lead. So rather than determining the total amount of 

lead contained in a product, the discussion draft would call on 

manufacturers to estimate the amount likely to be ingested and 

takes it as a given that it is oK for kids to take in some amount 

of lead from their toys. 

Ms. Best, the de minimis exception in the discussion draft is essentially a return to the approach that the commission used prior 

to the legislation. As I read it, any component part of a toy or other 

53 

children’s product such as a crib would be allowed to release a de 

minimis amount of lead, say 6 micrograms per day. Can you please 

explain what would happen if a child played with more than one 

toy in one day? Even a child who has one special toy plays with 

dozens of toys in a day. Could that child be exposed to 6 

micrograms per day per toy? I do not read the de minimis standard 

as requiring the consideration of other exposures to lead in a given 

day. Can you help me with this? 

Ms. BEST. Well, the Academy is very much against the de minimis standard for many of the points you raised. Lead exposure 

doesn’t come just from one individual product. It comes from the 

environment. It can be found in our food, in our air, certainly on 

paints, certainly in the water in Washington, D.C., in the past. And 

so we are very concerned about the bioaccumulation of lead 

through all these different sources. Because lead doesn’t immediately get passed out through your body, you can actually store it. 

Some of these stores persist for years, if not decades. And that is 

one of the things we are very much concerned about. 

Mr. BUTTERFIELD. Thank you. Many of us agree that there are 

specific products that can’t meet the lead content limits and can’t 

be made without lead—we acknowledge that—and that some form 

of relief should be provided for the narrow universe of products. We 

agree, some of us, that this relief should be as simple to understand and apply as possible while remaining protective of children’s 

health and safety. So far as I can tell, the proposed de minimis exception in the draft fails on all of these counts. Implementing the 

de minimis exception will require taking into account very productspecific considerations, and on a good number of instances, it will 

require applying varying lead requirements for differing parts of 

the same product. 

For example, say I manufacture a toy truck that contains plastic 

and metal, some large enough not to be swallowed and others that 

can be swallowed. For each plastic component, I would have to ask 

is this small enough to be swallowed? If the answer is no, then I 

would have to ask how do I expect a child to interact with this component? Is lead likely to be ingested from the interaction? How 

much lead can I expect to be ingested from the interaction? What 

age is the child doing the interacting? For the metal components, 

the manufacturer would then have to ask, can I meet the alternative 600 parts per million total lead count standard in the draft? 

If the answer is no, the manufacturer would again have to run 

through the analysis as I described. Can it be swallowed? So forth 

and so on. 

Mr. Howell, let me ask you this yes or no, sir, and I am going 

to be out of time momentarily. Would the Commission have to develop multiple methodologies given that children interact differently with different products? 

Mr. HOWELL. Yes. 

Mr. BUTTERFIELD. Would requiring the Commission to develop 

multiple methodologies to account for the different ways children 

can interact with different products and parts require substantial 

investment of the Commission’s limited resources? 

Mr. HOWELL. No. 

54 

Mr. BUTTERFIELD. In your experience, sir, do retailers and manufacturers prefer clear lines for compliance over estimating the likelihood that their product might behave in a certain way? 

Mr. HOWELL. Many do. 

Mr. BUTTERFIELD. Under current law, sir, enforcement is simply 

the product meets the standard or doesn’t meet the standard. 

Under the draft that we have in front of us, the Commission’s enforcement seems to be more complicated. For each product at the 

border where there might be a problem, the Commission will have 

to do complicated testing. Couldn’t this slow down products and 

have them retain longer at some of our ports? 

Mr. HOWELL. Yes. 

Mr. BUTTERFIELD. All right. Thank you very much. My time is 

out. 

Mrs. BONO MACK. All right. The chair recognizes the vice chair 

of the subcommittee, Ms. Blackburn, for 5 minutes. 

Mrs. BLACKBURN. Thank you, Chairman, and thank you to our 

witnesses. 

Mr. Howell, I would like to start with you if I may, please. As 

I mentioned in my opening statement, the database—as we hold 

our initial hearing on this issue, we are very much aware that the 

database is incomplete; it has problems. The chairman mentioned 

some of the problems that are there with how information is recorded. And I want to know two things from you if you would, 

please, sir. Number one, would we be better off to take that thing 

down until the problems are worked out? And number two, what 

needs to be done to correct the problems that are around the database? Very quickly, please. I have got other questions. 

Mr. HOWELL. Ms. Blackburn, because the problems that you cite 

are not clearly defined, I am going to respond to your question 

clearly in a very broad way. Certainly the decision whether to keep 

the database up or down becomes a policy decision. It is not one 

that my technical staff necessarily are the appropriate ones to 

make. The challenges of implementing anything that is new certainly will require the attention of staff in order to get it right. 

Many of the things that we see in the database, regardless of the 

nature of the reports of harm, would require resources to get a 

handle on the appropriate way to respond. 

Mrs. BLACKBURN. OK. And I will help you with that definition. 

The prior hearing that we had we heard from the commissioners 

that if there is a complaint against, say, Graco cribs, then all Graco 

cribs are—you know, you don’t define between that. So I would ask 

you to submit to us in writing with a little bit more detail what 

you think needs to be done. Because I think we need to take the 

thing down and bring it offline, work out the kinks, and then bring 

it back so that it is understandable to consumers so they know exactly what the product is and so there is a method for them to 

evaluate what actually is the problem and then if they do or do not 

want to purchase that product. At this point right now, people can 

just rail against a brand and not necessarily a specific product or 

a part. And there is that problem of definition within that use. 

I want to come to Dr. Beck. Mr. Vitrano, who is going to testify 

on the next panel, submitted testimony. And thank you all for submitting your testimony in advance. And in there he talks about the 

55 

lead intake from children’s interaction with ATVs is less than the 

intake from drinking a glass of water. And I would like to know 

in your opinion do you agree with that? Do you find that to be an 

accurate statement and a little bit of definition around that and see 

if—what I am looking at is if the metal parts on an ATV contain 

higher lead than are permitted by the EPA for drinking water 

standards, I am sure you can understand our confusion with that 

issue. 

Ms. BECK. Yes. His statement is correct. It is based on analysis 

that we did in which we had wipe samples. Because the question 

is how does a child interact, say, with the valve stem? We had samples of wipes that rubbed the valve stem, and that was to mimic 

a child touching a valve stem when they fill their—— 

Mrs. BLACKBURN. OK. So Dr. Beck, it would be true that a child 

gets more lead content in drinking a glass of water than from playing with an ATV? 

Ms. BECK. They would get more lead from what is commonly 

found in drinking water but is permissible under EPA than they 

would get from contacting their hands with the valve stem on an 

ATV or from touching the handles. 

Mrs. BLACKBURN. OK, now, let me ask you this. Do you find this 

with other products? Have you found this same association in other 

products that you have tested, maybe with the wipe test? 

Ms. BECK. We have also done wipe tests on scooters and we had 

similar results, that what came off in a wipe was relatively small, 

less than what a child might typically get from drinking water. 

Mrs. BLACKBURN. OK. Thank you very much. I appreciate that. 

And I will go ahead and yield back. 

Mrs. BONO MACK. I thank the gentlelady. The chair recognizes 

Ms. Schakowsky for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Madam Chairman. Mr. Howell, in 

your testimony you note that an independent testing lab, SGS, has 

found that almost 90 percent of toys tested by it recently comply 

with the 100 parts per million lead limit. While I realize this is 

data from only one entity, it seems to provide at least some evidence that the children’s product marketplace has largely adapted 

already to the 100-parts-per-million limit. Would you say that is 

true? 

Mr. HOWELL. Yes, I would. I would also add to that, though, that 

it may also indicate that we are rapidly approaching a point of diminishing returns in that the effort to achieve the final reduction 

in lead may be much more costly than the incremental cost of getting to where we are today. 

Ms. SCHAKOWSKY. Certain members of industry have been very 

critical of fixed parts-per-million limits for lead in children’s products and have advocated a move back—as we heard from Dr. Beck 

today—to risk-based standard. However, the American Society of 

Testing and Materials, ASTM’s F–963 toy standard, which has 

been drafted through a consensus process and is now a mandatory 

rule under the CPSIA, contains fixed parts-per-million limits for 

certain toxic metals and surface coatings of toys like cadmium—is 

it antimony?—and barium and in those areas—well, so I am asking 

why not lead? If they could go to a PPM for other things, why not 

56 

lead? And let me pose the same question to Dr. Best. But Mr. Howell? 

Mr. HOWELL. Certainly you can regulate lead either on a fixedcontent limit or on the extractable amount. That becomes, basically, not only a policy choice but a choice of economics and ease 

of test, if you will, that would facilitate compliance. 

Ms. SCHAKOWSKY. So would you say that it is easier to administer for many companies and for the Commission to go on a partsper-million basis? 

Mr. HOWELL. Certainly, there are advantages to testing by content in the fact that it is that time is much faster. It certainly 

doesn’t generate the level of hazardous waste than what chemistry 

does. But at the same time I believe another way to look at the 

problem, perhaps, would be a balance between both the parts-permillion content at some prescribed level and then a risk-assessment 

approach at levels above that to deal with, perhaps, products such 

as ATVs and bicycles where the exposure is, perhaps, much, much 

less of a concern than you might have in something that is 

mouthable or swallowable. 

Ms. SCHAKOWSKY. Thank you. Dr. Best, I wonder if you would 

comment on these issues. 

Ms. BEST. One of the big differentiations between the CPSIA and 

the ATSM—or MS, whatever—their levels is that the ATSM’s levels are soluble lead. And we are concerned not only about the surface coating but as the product wears, the surface coating may be 

worn off and so then you are getting deep into the content of whatever product we are talking about, and again, the swallowing question comes into play. 

Ms. SCHAKOWSKY. Right. But my question is if the toy manufacturers could go to a parts per million for these other things, why 

not with lead? 

Ms. BEST. Well, we believe that they can go to a total lead content level and achieve that reasonably. And as some of these data 

have shown, many manufacturers—— 

Ms. SCHAKOWSKY. OK. One other question on lead content. You 

had mentioned that children with disabilities sometimes continue 

mouthing, you know, well past a little kid and yet products designated as—I am looking what it is called—special products for the 

disabled are not in the category that would require a mandatory 

third-party testing for almost all children’s products. Do you think 

that is a mistake? 

Ms. BEST. I can’t say I know all of the definitions of special products for the disabled. Certainly, you know, I wonder if some of 

them are more adapted products such as adaptive listening devices 

and adaptive hearing devices, so they are not toys. And so we have 

been very focused on the toys and so that is where, you know, all 

of our evidence has been based. 

Ms. SCHAKOWSKY. Thank you. 

Mrs. BONO MACK. All right. The chair recognizes Mr. Barton for 

5 minutes. 

Mr. BARTON. Thank you. Mr. Howell, my recollection is that in 

the Congress and the hearing in this Congress that the commissioners who testified, testified that the current law doesn’t give 

57 

them the flexibility that they need to implement the law. Is my 

recollection correct? 

Mr. HOWELL. I recall the same thing. 

Mr. BARTON. You recall the same thing? So that is a yes? 

Mr. HOWELL. That is a yes. 

Mr. BARTON. OK. Dr. Best, what is wrong with giving the CPSC 

some flexibility to implement the law? 

Ms. BEST. It is my understanding that they already have some 

flexibility to—— 

Mr. BARTON. That is not their understanding. 

Ms. BEST. Well—— 

Mr. BARTON. I mean they testified at least twice—— 

Ms. BEST. Right. 

Mr. BARTON [continuing]. That they need more flexibility. So let 

us stipulate that they don’t have flexibility. Why, then, would it not 

be prudent for Congress to give them some flexibility? 

Ms. BEST. Well, the stipulation I would have to look at. But the 

concern we have is that children’s health is not something that 

should be negotiated based on manufacturers’ profit. 

Mr. BARTON. Well, nobody is saying that the stipulation should 

be based on profit. That is a fairly obnoxious comment to make in 

reply to my question. 

Ms. BEST. When we do a risk-based assessment or we allow great 

freedom in terms of how safe toys are, we go back to the days 

where children—— 

Mr. BARTON. OK, well, look, I don’t have time for a 5-minute 

longwinded non-statement. Do you support any flexibility at all for 

the Commission? Yes or no? 

Ms. BEST. I will support some—— 

Mr. BARTON. So that is a—— 

Ms. BEST [continuing]. Very defined, limited—— 

Mr. BARTON. Thank you. 

Ms. BEST. [continuing]. Carefully protective flexibility. 

Mr. BARTON. You do support some flexibility. That is a good 

thing. Let me go back to Mr. Howell. The House bill, when we actually passed the bill under Chairman Dingell’s leadership, had a 

12-year-and-under standard. The Senate bill had a 6-year-andunder standard for children. The Senate receded to the House to 

the 12-year. That is one of the changes in the draft before us is 

that we leave the age as undefined. If you split the difference between the Senate and the House, obviously it would be 9 and 

under. Is that a reasonable compromise or is that unfeasible in 

your opinion? 

Mr. HOWELL. To some degree it depends on the risks that you 

are trying to manage. I will say in that some work done several 

years ago in establishing lead limits for children’s jewelry, which 

the work was terminated because of the CPSIA, staff had determined that 9 and under would be an appropriate age based on how 

children interact with a product such as jewelry. 

Mr. BARTON. Let me ask that same question to Dr. Best. Is there 

some middle ground between 6 and 12? 

Ms. BEST. We carefully reviewed this in 2007 and we believe 12 

is the right age. 

Mr. BARTON. OK. What about Dr. Beck? 

58 

Ms. BECK. I think that it is somewhat of a science policy decision 

that there really is no bright line. I do think what Mr. Howell has 

proposed, 7, 9, that they are reasonable compromises. Obviously, a 

young child might play with toys of an older child, but it will be 

less frequent. But as I said, ultimately, I think that there is need 

for some judgment in determining what the actual age should be. 

Mr. BARTON. OK. Mr. Howell, on third-party testing, the draft 

preserves third-party testing for certain priority standards and priority products and it gives the Commission the flexibility to require 

third-party testing for other standards. Is that something you think 

the Commission would support in this draft, the third-party testing 

amendments? 

Mr. HOWELL. Sir, I am unable to speak for the Commission. 

Mr. BARTON. You work for the Commission. You are the only 

Commission representative we have. 

Mr. HOWELL. I work for the Commission but the question was do 

I believe the Commission would buy into this proposal,and I cannot 

predict what the Commission might accept or not accept. 

Mr. BARTON. So you just walk around in a daze when you are 

at the Commission even though you are the—— 

Mr. HOWELL. No, sir, but I do not control the votes of the commissioners. 

Mr. BARTON. Well, but you can have an opinion about what their 

position might be. You have got a better opinion than I do. 

Mrs. BONO MACK. The chair would recognize that we are out of 

time and, with all due respect to my dear colleague, but recognize 

now for 5 minutes Mr. Towns. 

Mr. TOWNS. Thank you very much, Madam Chair. Let me ask 

discretion, first of all, I guess to you Dr. Best. Can you explain how 

lead buildup in bones throughout a lifetime can impact pregnant 

women and developing fetuses and why children are born with lead 

in their blood? 

Ms. BEST. Yes. Lead is similar to calcium in that our bodies see 

lead as if it was a calcium molecule and then absorb it into our 

bones throughout our lives. And so if you are exposed to more levels of lead as you are developing bones or remodeling bones, which 

goes on throughout life, you are likely to absorb and store lead in 

your bones to a greater extent. 

During pregnancy, there is a very high calcium demand on the 

mother’s body and the fetus actually steals calcium from the mother. And if the mother doesn’t have enough daily dietary intake from 

calcium, the bones will be resorbed and calcium from the bones will 

then be used to help the fetus develop. And so if there is calcium 

being released from the bones and there is also lead in the bone, 

the lead is released at the same time and then transferred to the 

fetus. 

Mr. TOWNS. Thank you very much. Let me ask you this, Mr. 

Howell. When can a product that has shown consistent compliance, 

you know, through a third-party testing be relieved from testing? 

How many years? 

Mr. HOWELL. If the objective is to establish a prevention-based 

program, the answer to that would be that while the frequency of 

testing could certainly be extended, I would suggest that perhaps 

it could never be terminated if you will but just longer periods of 

59 

time between third-party testing. In the industry that would be a 

skip-lot quality approach. 

Mr. TOWNS. Even if you test it and there is consistency and you 

still feel that you can’t say 2 years, 10 years, 20 years? You just 

would have to continue? 

Mr. HOWELL. Well, the assumption there is that things never 

change in the manufacturing process. And, for example, the lead in 

paint that some say was the beginning of the CPSIA discussion 

was a total surprise to the manufacturer. They thought they had 

their process totally under control and they had a supplier who 

brought material into their factory, they assumed it was correct— 

and, in fact, it was loaded with lead. So if indeed the goal is to 

measure compliance to assure the American public that the product 

is safe, I would suggest that while you could increase the time between testing that you might be accepting some risk if you chose 

to terminate the testing until such time as you determine there 

was another problem and then reinstitute the testing. 

Mr. TOWNS. Right. Thank you. Is there sufficient flexibility for 

the Commission to allow for—I am trying to see if there is anything on this side that we need to do. 

Mr. HOWELL. In my opinion and, of course, as has been stated 

many times by the Commission itself, there is certainly a need for 

additional flexibility for the Commission to act appropriately to implement the law and safeguard consumers. 

Mr. TOWNS. Dr. Best, is there anything that we need to do on 

this side as Members of Congress? Let us switch roles for a minute. 

Ms. BEST. Besides pass a budget? Sorry. I think we need to remember that toys are not a requirement for life and we want children to have the best opportunity that they can possibly have. And, 

you know, the option is not between a drug that has side effects 

for a child. The option is between a toy that is safe and a toy that 

may not be safe. And so we need to remember that, you know, 

every toy is not a required product to help a child grow. They need 

toys but they need to know that those toys are safe. And we need 

to continue to remember that lead is dangerous at small levels. 

Even very small levels it causes IQ loss and the more we find out 

about the low levels of lead, the more harms we discover. 

Mr. TOWNS. Thank you. I see my time has expired, Madam 

Chair. Thank you very much. 

Mrs. BONO MACK. I thank the gentleman and recognize the gentleman from New Hampshire, Mr. Bass, for 5 minutes. 

Mr. BASS. Thank you very much, Madam Chairman, and I appreciate your holding this important hearing to discuss a piece of legislation which corrects a response to a problem which was clear 

and understandable and necessary which occurred during the period of time that I was not serving in the Congress. And I was 

thinking of saying I am not surprised that the response that was 

passed by Congress essentially endeavors to use a Howitzer to kill 

a mosquito and so here we are trying to make this necessary new 

law work better. 

However, my questions are for Mr. Howell, and they don’t deal 

with the central controversy of the bill but rather with some equipment that the CPSC is using and whether or not its use should be 

expanded. I understand that the Consumer Product Safety ComVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
60 

mission uses several dozen handheld x-ray fluorescence analyzers 

and they are used both in the laboratory and also in ports of entry. 

They quickly, effectively, non-intrusively, and accurately determine 

whether and how much lead is in a product. Can you give us a 

brief description of your experiences using this equipment and enforcing limits on lead? 

Mr. HOWELL. Certainly. The XRF scanners have certainly helped 

the efficiency and effectiveness of implementing the law. There initially were some limitations. The XRF is a good tool for detecting 

lead and other potentially toxic heavy metals in homogenous materials like plastics. However, there were some limitations early on 

in checking for lead in surface coatings, as in paint. 

Mr. BASS. Um-hum. 

Mr. HOWELL. However, just recently CPSC issued a Notice of Requirements recognizing that HD XRF technology had been developed, a testing protocol had been developed under ASTM and that 

is now an approved method to test for lead in paint. So it certainly 

is an efficient technology. 

Mr. BASS. As the lead individual for hazard reduction’s support 

expanded use of these XRF devices by manufacturers, retailers, 

and porters as a means to ensure compliance with lead limits? 

Mr. HOWELL. I believe the cost savings, in my experience, has 

been motivation enough. Certainly, most manufacturers who can 

afford a unit, to my knowledge, have acquired one. 

Mr. BASS. So the expanded use of this equipment would, in your 

opinion, improve the safety and quality of the products on the market today? 

Mr. HOWELL. It certainly is an effective way for a manufacturer 

to monitor his incoming materials and his outbound materials. 

Mr. BASS. OK. And lastly, as you may know, the EPA and HUD 

have used handheld XRF for decades to test for lead in homes and 

they are obviously protecting children. CPSIA includes a limit for 

lead in small painted areas on children’s products. I think it is 2 

micrograms per square centimeter of paint. Do you support making 

this limit applicable to larger painted areas as well? 

Mr. HOWELL. If you would allow me to respond to that question 

in writing, I would like to get with our chemist and give you an 

appropriate response. 

Mr. BASS. OK. Fair enough. Thank you very much. And I thank 

the chairlady. I yield back. 

Mrs. BONO MACK. I thank the gentleman. And the chair recognizes we have a series of votes on the floor so it is my intention 

to have Mr. Dingell as his 5 minutes of questioning and then we 

will break and return to resume questioning after the series of 

votes. So Mr. Dingell, you are recognized for 5 minutes. 

Mr. DINGELL. Thank you, Madam Chairman. To the witnesses, 

these questions will require a yes or no answer only because of 

time. 

The draft legislation requires the Commission to establish procedures for estimating the amount of lead a child would ingest from 

a given child’s product. However, while the Commission establishes 

such procedures, the draft legislation would permit the manufacturers to use ‘‘any reasonable methodology to estimate the amount 

of lead a child would likely ingest from exposure to a component 

61 

part.’’ Question: Is there any such reasonable methodology in use 

by manufacturers today for testing children’s products? Starting 

with Dr. Best. 

Ms. BEST. I am not familiar with what manufacturers can do. 

Mr. DINGELL. Ms. Beck? 

Ms. BEST. Oh, I am sorry. 

Mr. DINGELL. Yes or—— 

Ms. BECK. There is methodologies. I don’t know if the manufacturers know about them. 

Mr. DINGELL. Thank you. And if you please, Mr. Howell, yes or 

no? 

Mr. HOWELL. I am not aware. 

Mr. DINGELL. Now, starting again, Dr. Best, is it possible the 

ambiguity of the term ‘‘reasonable methodology’’ would lead to a 

wide variance in test results across the manufacturers of similar 

products? Yes or no? 

Ms. BEST. Yes. 

Mr. DINGELL. OK. Dr. Beck? 

Ms. BECK. I don’t know. 

Mr. DINGELL. Mr. Howell? 

Mr. HOWELL. I do not know. 

Mr. DINGELL. Could this—well, I will just defer on that particular question. Now, Mr. Howell, the draft legislation would allow 

CPSC, subject to conditions, to require a third-party testing of children’s products. Under the draft bill, CPSC would require a thirdparty testing only if the Commission first verifies the testing capacity of ‘‘accredited third-party conformity assessment bodies,’’ as 

well as establishes and publishes Notice of Requirements for such 

accreditation of such assessment bodies. Does this include both national and international or domestic and international bodies? Yes 

or no? 

Mr. HOWELL. I believe it does, yes. 

Mr. DINGELL. OK. Now, if so, how many such assessment bodies 

are there worldwide? 

Mr. HOWELL. CPSC recognized conformity assessment bodies are 

currently in excess of 300 I believe. 

Mr. DINGELL. OK. Now, further, does the Commission have the 

resources with which to verify the testing capacity of all third-party 

conformity assessment bodies? Yes or no? 

Mr. HOWELL. I can’t answer that question yes or no. 

Mr. DINGELL. It means that you do not know they do have such 

capacity. Now, moreover, is it your understanding the draft legislation, the Commission would have to accredit all third-party conformity assessment bodies? Yes or no? 

Mr. HOWELL. No. 

Mr. DINGELL. If so, do you believe the Commission has the resources with which to accomplish this purpose? Yes or no? 

Mr. HOWELL. Yes. 

Mr. DINGELL. In summary, do you believe the practical effect of 

these requirements would be that the Commission would seldom, 

if ever, require third-party testing of children’s products? Yes or 

no? 

Mr. HOWELL. No. 

62 

Mr. DINGELL. Now, Mr. Howell, CPSIA defines a children’s product as one ‘‘primarily intended for a child 12 years of age or younger.’’ The discussion draft would change this definition to ‘‘intended 

for use by a child,’’ then it leaves a gap, ‘‘age to be determined— 

years younger.’’ Would these words ‘‘for use by’’ limit the number 

and type of products covered by this definition? Yes or no? 

Mr. HOWELL. Yes. 

Mr. DINGELL. Now, to Drs. Beck and Dr. Best. Would you care 

to comment briefly on Mr. Howell’s response to the last questions? 

Starting with Dr. Best. 

Ms. BEST. No. 

Mr. DINGELL. You can if you wish. Ms. Beck? 

Ms. BECK. If the age decreases from 12 to some number less than 

12, then the number of products to be tested, of course, would diminish because the products are defined for different age groups. 

Mr. DINGELL. Ladies and gentleman of the panel, thank you. 

Madam Chairman, I thank you for your courtesy. 

Mrs. BONO MACK. I thank the distinguished gentleman. And it 

is my intention that we recess now for this series of votes and we 

return at high noon. So we will see you all at high noon if we are 

quick on the floor with votes. If not, a little wiggle room. See you 

guys at noon. Thanks. 

[Recess.] 

Mrs. BONO MACK. All right. The chair will recognize Mr. Pompeo 

for 5 minutes. 

Mr. POMPEO. Great. Thank you, Madam Chairman. Thank you, 

panelists, for hanging with us through the vote. 

You know, I heard Mr. Waxman say this was a wrecking ball 

and I heard somebody say we were comprehensively demolishing 

the CPSIA. I think there is lots more to do. I think this is a very 

good first step, but there is a lot more work to do. 

I wanted to ask you, Mr. Howell, just a couple questions about 

the database. We have been live now for almost a month, right? 

How many reports have we received since March 11 under the 

database rule? 

Mr. HOWELL. The number is approximately 1,500 at this point. 

Mr. POMPEO. And other than those—so there is a 5-day period 

before it goes out to the manufacturer. How many of those have 

been sent on to the manufacturer of those 1,500? 

Mr. HOWELL. I would like to respond in writing with precise 

numbers. But at this point of those that we have received, I think 

approximately 50 percent at this point have been sent to manufacturers. 

Mr. POMPEO. And so how many of those are past the required 

time period to send on to the manufacturer approximately? 

Mr. HOWELL. Actually, once they pass the CPSIA check, which 

is the eight requirements to be considered, at that point they would 

be passed to the manufacturer and we are not late in sending the 

initial notice to the manufacturer. Those are happening on time. 

Mr. POMPEO. So everything is on time. Everything is good. You 

have got the resources to respond at the level of the reports that 

have come in so far and you are making all of the deadlines that 

were imposed by the rules that CPSC put in place? 

Mr. HOWELL. I believe for the most part, yes. 

63 

Mr. POMPEO. And how is this being conducted? How do these 

come in? Who is reviewing them? Are you reviewing them along 

with staff and a committee? What kind of resources are being dedicated to that project? 

Mr. HOWELL. At this point in time, there are several different 

staff members involved in the review, part of that because it is a 

brand new process and we are trying to understand what we are 

getting in, making the appropriate decisions regarding reports of 

harm to ensure that they do, indeed, meet the qualifications. It is 

roughly a team of 10 to 12 with representatives of technical staff, 

legal staff, and IT. 

Mr. POMPEO. Wow. 10 to 12 people. Wow, for 1,500 across 30 

days. So what do you have? 35 a business day, 50 a business day, 

something like that? 

Mr. HOWELL. Probably somewhere in the neighborhood of 50 a 

business day. 

Mr. POMPEO. Yes. Can you keep up with it? 

Mr. HOWELL. At this point yes, but we are in a learning curve 

and we understand that as we get a better handle of the nature 

of these incoming reports, we expect efficiencies to increase. 

Mr. POMPEO. Why would you go through a learning curve when 

you have had this database running without it being public for 

such a long time? Why wouldn’t we have done the learning curve 

before we went live? 

Mr. HOWELL. When we were in the soft launch, not every manufacturer necessarily felt compelled to respond knowing that those 

reports would not necessarily go live. Now that we are live, we are 

getting many more responses from manufacturers. 

Mr. POMPEO. My first question focused on the process internal to 

CPSC before forwarding on. Tell me how the process is going in 

getting a response from manufacturers to date that have had the 

deadline arrive for their response to be due? 

Mr. HOWELL. You know, the manufacturers receive notification 

that there has been a report of harm. Manufacturers can file a 

claim of material inaccuracy. 

Mr. POMPEO. How many have done that so far? 

Mr. HOWELL. I believe there has been less than 10 percent have 

filed claims for material inaccuracy. They can also file claims for 

confidentiality, which is extremely rare at this point in time. And 

they are certainly free to file a comment without necessarily filing 

a claim of inaccuracy or confidentiality. 

Mr. POMPEO. How many have said ‘‘not me, not my stuff?’’ 

Mr. HOWELL. The vast majority of the material inaccuracy claims 

tend to be just that nature. ‘‘It is not my product.’’ 

Mr. POMPEO. And are those still online readily accessible to the 

public? So you all send it to the manufacturer and they say it is 

not my stuff, are you then putting it online? 

Mr. HOWELL. No, if they claim that it is not their product, that 

is a valid claim of material inaccuracy. And until such time as that 

is resolved and the problem clearly identified, it does not get posted. 

Mr. POMPEO. Thank you, Mr. Howell. Ms. Best, you talked 

about—she is not here. Let me ask you one more question, Mr. 

Howell. How many items from the punch list that Commissioner 

64 

Tenenbaum gave me on the database have you all been able to 

work through since she was here? That is what is still left to fix? 

Mr. HOWELL. I am not familiar with that punch list. I will certainly respond to that in writing. 

Mr. POMPEO. Thank you. Madam Chairman, I yield back the balance of my time. 

Mrs. BONO MACK. I thank the gentleman and recognize Mr. 

Butterfield to explain the absence of the witness. 

Mr. BUTTERFIELD. Thank you, Madam Chairman. You will notice 

that Dr. Best is absent this afternoon. I want the record to show 

that she had prior obligations this afternoon and had to leave. I am 

told that she is seeing patients today and has scheduled those appointments with the understanding that we would convene this 

morning at 9:00 a.m. instead of 10:00 a.m. But please be assured 

that she will be available to answer any questions that any of the 

members may have. Thank you. 

Mrs. BONO MACK. I thank the gentleman and would remind the 

committee that we did delay the starting point of today’s hearing 

to accommodate the Democrats. And it is unfortunate that the witness had to leave but remind members, too, you can submit further 

questions to her in writing later. And at that point, we will be 

happy to recognize Mr. Harper for 5 minutes. 

Mr. HARPER. Thank you, Madam Chair. Mr. Howell and Dr. 

Beck, thank you for being here today. I am sure you can come up 

with a list of a dozen things you would rather be doing or maybe 

100 things, but we welcome your attendance and appreciate what 

you are sharing with us. 

And Mr. Howell, just a couple of questions on some issues involving this. And I know that when we are talking about the common 

toy box theory applying, of course, to toys, it seems like there are 

a lot of other products that it really makes no sense at all. For example, infants and toddlers are not going to have access to motorized products like ATVs or at least we hope they are not. What is 

the situation with, say, ATVs and other things like that when it 

comes to these regs? 

Mr. HOWELL. One would certainly not expect that small children 

would have frequent access with those type of outdoor products, 

certainly. 

Mr. HARPER. OK. When we talk about, say, electronics, you 

know, the Commission set much higher lead limits for certain 

metal alloys. When the Commission granted a stay of the lead content limits for ATVs and bicycles, it set temporary limits at the 

same or very low or similar levels I mean. Why does the CPSC consider them to be safe or at least safe enough for now? What is the 

rationale for that? 

Mr. HOWELL. When the Stay of Enforcement was issued, it was 

simply a stay from the testing and certification requirements. 

There was not a stay of the requirement to conform to the law as 

written. So the limits that are established are the limits that were 

prescribed in law. 

Mr. HARPER. Got you. Now, I will ask if the Commission is aware 

of any deaths in fixed-side cribs in daycares? 

Mr. HOWELL. Would you repeat that, please? 

65 

Mr. HARPER. Sure. Yes, sir. Is the Commission aware of any 

deaths involving fixed-side cribs in daycares? 

Mr. HOWELL. I am not aware of any but I will certainly take that 

question back and have our epidemiologist do a data-pull. 

Mr. HARPER. In your testimony, Mr. Howell, you have suggested 

the Commission be allowed to regulate on a timetable influenced 

by the seriousness of the actual risk to allow for better priority-setting. Do you have specific suggestions that you can share on how 

you can do this or how we can do this? 

Mr. HOWELL. I believe any organization that has finite resources 

needs to ensure that they are allocating those resources to the 

highest priorities. You know, certainly there are various ways to 

rank those within the Commission. One might suggest that frequency and severity at-risk populations are all criteria that would 

help identify higher-priority projects versus those that might fall 

lower on the list. And it is really all about managing finite resources in a way that provides the greatest return on those efforts. 

Mr. HARPER. OK. Dr. Beck, Mr. Vitrano, who will testify on the 

next panel, submitted testimony that says you estimated the lead 

intake from children’s interaction with ATVs is less than the intake 

from drinking a glass of water and I ask if that is true or any info 

on that statement. 

Ms. BECK. Yes, we did an analysis in which we used wipe tests 

from ATVs so we had actual data and we compared how much children would get from that scenario versus what a child might drink 

in a typical glass of drinking water, which may contain small 

amounts of lead. So that is a correct conclusion from our analysis. 

Mr. HARPER. And when was that analysis done? How recently? 

Ms. BECK. It was, I believe, either 2008 or 2009. 

Mr. HARPER. All right. But wouldn’t it be true, though, that the 

metal parts of the ATVs contain much higher lead than permitted 

by EPA drinking water standards? 

Ms. BECK. It is a little bit apples and oranges because the drinking water standards based on what is in the water—— 

Mr. HARPER. Right. 

Ms. BECK [continuing]. That is a very low concentration in the 

water. And then if you were to say what does that mean in terms 

of—you could compare it to PPMs in a valve and, of course, that 

would be much, much higher. But it is a little bit of an apples-andorange comparison. 

Mr. HARPER. But based on that analysis, your concern about 

ATVs as it concerns infants and toddlers, you would not be overly 

concerned with that at all, would you? 

Ms. BECK. No, because it is really not a plausible scenario. 

Mr. HARPER. Sure. OK. I yield back. 

Mrs. BONO MACK. I thank the gentleman and recognize Dr. 

Cassidy for 5 minutes. 

Mr. CASSIDY. I really enjoyed this panel. All of you attempted to 

be very fact-based and referenced-based. So let me just first compliment you. And my compliments to Dr. Best, who is no longer 

here. 

First you, Mr. Howell. Clearly it is common sense that a kid is 

not going to chew on an ATV and probably not on the stem of a 

bicycle. On the other hand, I can understand that if there was 

66 

some other product that the varnish wore off that the child could 

gnaw down to and actually have some lead exposure. So I guess my 

question to you is are we able to come up with a definition that 

which is absurd that the kid would ever chew on is moved over 

here and that which it is plausible is moved over there? Is that 

something within the Commission’s ability to accomplish? 

Mr. HOWELL. Certainly in the Commission’s traditional riskbased evaluation of consumer products, that would be an evaluation that would be conducted. How a child interacts with the product is important in determining the level of risk that that child 

may be subjected to from that certain product. In the case of ATVs, 

we would find it less likely the child would swallow or mouth an 

ATV. Certainly you would expect that there could be some migration of lead from contact with the hand on an ATV. 

Mr. CASSIDY. Now, I gather from Dr. Best—and I am sorry she 

is not here because I just wanted to explore this because all three 

of you know so much more about this issue than I. That is why you 

are the panel members and I am not—that there was some dissatisfaction from the risk-based assessment. So now I am sure 

there are many aspects of risk-based assessments, but was one of 

the areas that folks were unhappy with, did that include your ability to differentiate lead paint peeling off a wall from an ATV, one 

is a great risk, one is a minimal risk for lead exposure? 

Mr. HOWELL. I have certainly heard the arguments against riskbased but I am not fully aware of all the underlying rationale behind that criticism. 

Mr. CASSIDY. So it sounds like you feel like risk-based is a practical thing for the Commission to implement? 

Mr. HOWELL. The Commission has been using a risk-based approach for decades now. 

Mr. CASSIDY. Now, you mentioned in response to Mr. Harper, the 

last line of your testimony to ‘‘effectively prioritizing Commission 

resources towards those of the most serious health risk.’’ Now, I 

have learned in life that if you attempt to monitor everything, you 

end up monitoring nothing. But on the other hand, if you monitor 

a few things, you often can monitor them well. And I have also 

learned that there is oftentimes, you know, 99.9 percent risk with 

this subset of activities and .1 percent with this subset. Is that so 

clearly broken out in lead exposure? Can you say, listen, this is 

really high-risk stuff. We need to focus our resources even more so 

than now if we were so allowed, as opposed to this, which is incredible low-risk. We are kind of killing our time over here. 

Mr. HOWELL. Certainly, the Agency is extremely concerned with 

those lead-bearing items that can be swallowed. Acute exposure to 

lead is certainly a very serious, serious thing. One would expect 

that the risk decreases as you move from swallowing to mouthing, 

from mouthing to touching. And the management of that risk at 

that point then becomes a decision on how the child interacts with 

the product and what you—— 

Mr. CASSIDY. So you mean by risk-based would make some differentiation between high- and low-risk and it would all be upon 

how the child interacts and the relative amount, et cetera, et 

cetera? 

Mr. HOWELL. Yes, that is a basis of—— 

67 

Mr. CASSIDY. Now, the other thing occurs to me is that we have 

heard last time from a previous panel about the craft-makers and 

you know, somebody in Oregon who makes these nice little airplanes that apparently needs a—I shouldn’t laugh—but you know, 

it would make probably 100 planes a year, sells them out of their 

shop and now has to get a third-party assessment as to the lead 

content of the paint. Now, in your risk assessment, do you also say 

listen, if it is below a certain production value or quantity per 

year—I mean the ability of something that is produced on the scale 

of 100 a year, as one example, is really unlikely to have a significant impact, do you have any such sort of evaluation like that? 

Mr. HOWELL. Our evaluation is from a risk approach is a product 

evaluation and the consideration of the volume of the product produced is not relevant to the assessment of the risk that that particular product may present to the consumer who is using that 

product. 

Mr. CASSIDY. Yes, it wouldn’t be for the particular consumer, but 

it would be for the epidemiology of it in terms of a population issue, 

correct? 

Mr. HOWELL. Absolutely. And when it comes to prioritizing the 

Agency’s work, that is where the frequency severity factors come 

into play. 

Mr. CASSIDY. So you do incorporate the population aspect to it. 

OK. Well, thank you. Ms. Beck, I am sorry, no questions for you. 

It was just mine were more oriented to Mr. Howell. Thank you. 

Mrs. BONO MACK. The chair recognizes Mr. Kinzinger for 5 minutes. 

Mr. KINZINGER. Let me see if I can get this to work here. Well, 

maybe. Well, how are you doing today? Hopefully well. I don’t need 

to take a lot of time because I think you guys have been very good 

at answering the questions. I appreciate your time and I appreciate 

the chairwoman for organizing the hearing. 

You know, one of my concerns when we get to government involvement in areas is something that I affectionately refer to—as 

many other do—as the law of unintended consequences. You know, 

it is obviously when somebody does something that looks great on 

paper and then in actuality has a completely different effect. 

So Mr. Howell, my question, speaking in terms of the law of unintended consequences to you, do you agree with the past-acting 

Chairman Nord’s statement of April 3, 2009, that the ‘‘application 

of the lead content mandates of this act may have actually the perverse effect of actually endangering children by forcing youth-sized 

vehicles off of the market’’ and in a result actually children riding 

vehicles that are bigger or, in essence, too big for them, adult-sized 

ATVs if you will. 

Mr. HOWELL. I agree with that statement. 

Mr. KINZINGER. OK. So you do agree with that. Madam Chairwoman, I would like to ask unanimous consent to insert two documents into the record. 

Mrs. BONO MACK. Without objection. 

Mr. KINZINGER. The first, a statement from acting Chairman 

Nancy Nord of the CPSC from April 2009 requesting exclusions 

from the lead-content limits of the Consumer Protection Safety Improvement Act of ’08. The other is a letter from Edward Moreland, 

68 

Senior Vice President of the American Motorcyclists Association to 

Chairwoman Bono Mack and Ranking Member Butterfield regarding the discussion draft. 

[The information follows:] 

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Mr. KINZINGER. The next question I have, common sense seems 

to support the notion that youth model OHV should not be subjected to the lead content provisions of this act. Would one of the 

solutions to this conundrum be an outright categorical exemption, 

like the one provided in H.R. 412? It is called the Kids Just Want 

to Ride Act. It is one I am a co-sponsor on. 

Mr. HOWELL. As a policy decision, that certainly would be an option. 

Mr. KINZINGER. OK. Well, like I said, those are basically my two 

big questions I had. You all have done a great job here in front of 

us today. I appreciate your time. And I would yield back my time. 

Mrs. BONO MACK. I thank the gentleman. And at that point I am 

happy to thank our panelists for staying and for your expert testimony. We appreciate everything you have had to offer today and 

hopefully we will craft some great legislation. So thank you for 

your time and we will spend a quick 30 seconds or a minute seating the new panel and get started right away. Thank you again. 

All right. Thank you. Our second panel is comprised of four witnesses. Welcome. And thank you for staying with us this morning. 

Our first witness, again, but not in the order of recognition, but to 

introduce Erika Jones. She is a partner at Mayer Brown here representing the Bicycle Product Suppliers Association. Welcome. Our 

second witness is Paul Vitrano, General Counsel for the Motorcycle 

Industry Council. Also testifying today is Sheila Millar, a partner 

at Keller and Heckman, LLP. And our fourth witness on this panel 

is Caroline Cox, Research Director for the Center for Environmental Health. Welcome to each of you. 

You all know the drill now, the 5 minutes and the clocks and 

how they work. So if you could just pay attention to those, we appreciate it. We will have some floor votes again eventually, so if we 

can move it along, that would be terrific. 

So now we are going to begin with our first witness and recognize Ms. Cox for 5 minutes. 

STATEMENTS OF CAROLINE COX, RESEARCH DIRECTOR, CENTER FOR ENVIRONMENTAL HEALTH; SHEILA A. MILLAR, 

PARTNER, KELLER AND HECKMAN, LLP; PAUL C. VITRANO, 

GENERAL COUNSEL, MOTORCYCLE INDUSTRY COUNCIL; 

AND ERIKA Z. JONES, PARTNER, MAYER BROWN, ON BEHALF 

OF THE BICYCLE PRODUCT SUPPLIERS ASSOCIATION 

STATEMENT OF CAROLINE COX 

Ms. COX. Thank you very much for the opportunity to testify 

today. My message is that CPSIA, as written, has been an enormous success and I am really privileged today to be able to provide 

research data to document that success. 

You heard earlier that health professionals agree that there is no 

safe level of exposure to lead for children. So I am discouraged to 

see the proposed revisions in the CPSIA that would weaken a law 

that has worked so well to protect American children from unnecessary lead. 

For the last 15 years, my organization, the Center for Environmental Health, has worked to protect children and families from 

harmful chemical exposures. Our experience before and after pasVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
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sage of the CPSIA demonstrates that the law has been highly successful. Prior to adoption of the law, we found high lead levels in 

dozens of children’s products sold to millions of American families 

by major retailers. At that time there was no federal law to protect 

children from lead so we relied on California State Law. Since the 

lead limits under CPSIA went into effect, our experience shows a 

dramatic change in the marketplace for children’s products. 

In the last year and a half, we purchased over 1,200 children’s 

products from major national retailers and screened them for lead. 

These were stuffed animals, toys, games, lunch boxes, backpacks, 

jewelry, toy sporting equipment, lots of other things. As far as we 

know, it is the largest independent monitoring of compliance with 

CPSIA to date. 

Out of these 1,200 products, we found only 46 that did not comply with CPSIA lead standards based on tests by a CPSIA-certified 

lab. In other words, more than 96 percent were in compliance. And 

because we intentionally purchased products that were likely to 

have lead problems, we believe overall compliance is even higher. 

This data contrasts with what we found in 2007 and 2008. Our 

results show that over the 4-year interval, the prevalence of lead 

hazards in children’s products was reduced by a factor of about 3. 

Given the immense size of the U.S. market for children’s products, 

this is a major accomplishment. 

We do understand that CPSIA requirements can be a hardship 

for small business and we would support amendments to help with 

that. We believe that the CPSIA has been effective because one, 

the lead standards are comprehensive. They cover virtually all children’s products and all accessible parts of those products. And that 

has created a huge market for complaint materials and components. 

The standards are straightforward, and because they are based 

on a total content standard, testing is accessible, consistent, and affordable. Lead content standards are the only kind of standards 

that allow materials and components to be tested upstream in a 

supply chain. When you have exposure-based standards or riskbased standards, the testing can only be done on finished products 

after it is already made. 

And the third point I would like to make is that the lead standards apply to a really meaningful definition of ‘‘children,’’ up to age 

12. Because lead is a cumulative and persistent toxicant, it is particularly important to maintain this requirement. Protect children 

as they move into their teenage years and girls move into childbearing years. 

I wanted to just give a quick visual demonstration of the success 

of the CPSIA. Here is Curious George from 2007. His face contains 

lead at a level 20 times the current CPSIA standard. Don’t kiss 

this George. And I think most kids probably wanted to. Here is the 

current post-CPSIA George. George is lead-free and sold at the 

same price. I think this really shows how successful the law has 

been. 

We respectfully recommend that this committee support the public health success that the CPSIA has been. Crucial support includes the lead content standards, as well as the definition of a 

child as 12 years old and younger. Thank you so much. 

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[The prepared statement of Ms. Cox follows:] 

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Mrs. BONO MACK. Thank you, Ms. Cox. Ms. Millar? 

STATEMENT OF SHEILA A. MILLAR 

Ms. MILLAR. Thank you, Chairman Bono Mack and Ranking 

Member Butterfield, members of the subcommittee. I appreciate 

the invitation to appear here today. 

As a longtime consumer protection attorney—and I think all of 

the members of the panel here and everybody in this room share 

the same view. We need and want a strong and effective CPSC that 

has both the authority and the resources necessary to adopt and 

enforce national consumer product safety standards. Where we differ is that some of us favor revisions to CPSC’s arbitrary one-sizefits-all limits that apply irrespective of the type of product, material, age of the user, or actual risk of exposure, its illusory or nonexistent exemption scheme, its retroactive effect and burdensome 

testing requirements, which have cost money and jobs. 

Based on my experience with many different federal agencies, if 

I have learned one thing over the years, it is that sound public policy should be based on facts and science and risk. So I want to 

focus on a few key points from my written testimony. 

First, the lead and substrate limits were derived from the unfounded assumption that presence equals risk. It doesn’t. And I 

think Dr. Beck illustrated that point carefully this morning. The 

CPSC’s own research has demonstrated that materials that are 

high in lead may sometimes yield less migratable lead or about the 

same amount of migratable lead as products that comply with 600 

or 300 parts per mission. Exposure is the key to risk. And so we 

do believe that revisions that are more targeted to exposure keying 

off of proven things that the CPSC has done for years makes a lot 

of sense. 

In terms of the lead exemption process, the proposal here offers 

a good step forward but remains unnecessarily complex. In addition, the limited exemption scheme is coupled with a general provision that gives the CPSC new authority to adopt 600 ppm limits 

on older children’s or even adult products. Because I support a 

risk-based approach, I favor neither the current exemption process 

as drafted, nor giving CPSC general authority to simply adopt the 

600 ppm limit on any product, irrespective of risk. 

In contrast, the phthalates provision offers an elegantly simple 

view that could be applied more generally. It tracks the CPSIA exemption for inaccessible component parts but gives the Commission 

authority to adopt health-based exemptions, exemptions from the 

prohibition that are not necessary to protect children’s health. Why 

not adopt a consistent science-based exemption process for both 

lead and phthalates predicated on the simple basic rule: that the 

government should not be in the business of banning safe products. 

I do want to spend a couple minutes talking about testing. Let 

me be clear. Testing has an important role in compliance. And as 

Mr. Howell referenced this morning, there may be ways to look at 

how to dovetail testing regimes with supplier assurances, self-certifications, and other proven techniques that help confirm safety. 

Let us also be clear that the prospect of $15 million penalties 

offer very powerful incentives to comply to say nothing of the prospect that your products will simply be rejected by your customers. 

81 

From the standpoint of total content testing, I differ with Ms. 

Cox in that we have seen over and over again the total content lead 

tests are not so uniform as you might expect. There is considerable 

variability and the absence of any definitive inter-laboratory variability factor is a key problem, particularly as levels drop lower and 

lower. So when we look at these differences in terms of inter-laboratory variability, a material—which may have residual lead content, let us say, a plated piece of metal where you are building on 

a piece of tin coupled with a nickel-plating, a copper-plating, a silver-plating—at the end of the day, the addition of those added metals, each of which could have residually low total content, could put 

you above 100 ppm. And I think we have seen the need for exemptions to perhaps look at a broader array of material to address that 

naturally occurring problem. 

I would also caution against assuming that component testing is 

the solution to all ills with certification testing here. I represent 

many raw materials suppliers of plastics, chemicals, and other materials, and they are simply not willing to subject themselves to the 

jurisdiction of the CPSC to provide component-test certifications in 

the rigid scheme required by CPSIA. 

I strongly support a national safety net for consumers. I also 

strongly support reducing unnecessary burdens on the regulated 

community by restoring the CPSC its authority to make sound 

risk-based decisions. Thank you again for the invitation and I look 

forward to responding to any questions. 

[The prepared statement of Ms. Millar follows:] 

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Mrs. BONO MACK. Thank you very much. Mr. Vitrano, 5 minutes. 

STATEMENT OF PAUL C. VITRANO 

Mr. VITRANO. Chair Bono Mack, Ranking Member Butterfield, 

and distinguished members of the subcommittee, thank you for the 

opportunity to testify. I am Paul Vitrano of the Motorcycle Industry 

Council, which represents nearly 300 manufacturers of motorcycles 

and ATVs, aftermarket companies, and allied trades. We appreciate the subcommittee’s efforts to address the unintended consequence of the CPSIA, which has effectively banned the sale of 

youth ATVs, motorcycles, and snowmobiles. The act has actually 

created unsafe situations for young riders by reducing the unavailability of appropriately-sized speed-restricted youth models. 

As you noted during the last hearing, Chair Bono Mack, the 

CPSC has made the judgment that the risk of lead exposure to 

children is outweighed by the risk that children face if youth ATVs 

are not available. The act also has cost manufacturing and dealership jobs. 

We urge Congress to fix this unintended ban and appreciate the 

subcommittee has offered an initial draft reform bill. Within the 

framework of the draft bill, the only way to fix the ban on youth 

vehicles with certainty and without imposing further needless costs 

and burdens on our industry and its customers is to amend the 

range of children’s products at least for these vehicles to age 6 and 

under. 

Alternatively, we ask you to consider adding a categorical exemption to the bill. There already is widespread support for this approach. Representative Rehberg has authored the Kids Just Want 

to Ride Act, H.R. 412, which currently has 61 bipartisan cosponsors. And just last week, Senators Klobuchar and Tester offered a 

categorical exemption as an amendment to the small business bill 

currently before the Senate. 

ATVs and motorcycles do not present any lead-related health 

risk to young riders and Congress has made it clear that it never 

intended the lead content restrictions for toys to apply to these vehicles. We ask that you keep in mind the following points as you 

work to provide young riders in our industry with much-needed relief. 

First, the lead content in metal parts of ATVs and motorcycles 

poses no risk to kids, as Dr. Barbara Beck testified earlier this 

morning. The estimated lead intake from kids touching metal parts 

is less than the lead intake from drinking a glass of water. 

Second, everyone agrees that the key to youth safety on ATVs 

and motorcycles is ensuring they ride the right size vehicles. By reducing the availability of these vehicles, the CPSIA has created— 

in the CPSC’s own words—a ‘‘more serious and immediate risk of 

injury or death’’ than any risk from lead exposure. 

Third, in 2009 MIC estimated that a complete ban on youthmodel vehicles would result in about 1 billion in lost economic 

value in the retail marketplace every year. 

Fourth, motorcycles and ATVs are motor-powered machines, not 

toys or other articles kids wear or play with. So the extent and nature of the children’s interaction with our vehicles is materially different. As you know, kids do not mouth tailpipes or swallow batVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
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tery terminals. Young riders typically only touch a few parts of the 

vehicles like handlebars and clutch levers and often with gloved 

hands. 

Finally, ATVs and dirt bikes are stored outside the house, usually in garages, sheds, or barns and thus are much less likely than 

household items to be touched by young children. In addition to 

being remotely located, the vehicles have keys and use is controlled 

and supervised by parents. 

There are two commonsense ways to fix this problem once and 

for all and without imposing further unnecessary testing and certification costs and burdens on our industry and customers. We 

urge you to exclude these youth vehicles from the lead content provisions by lowering the age range to primarily intended age 6 and 

under or adding a categorical exemption. 

We also support the recommended changes to the CPSIA database provisions. One of our members recently received a report of 

harm where a rider who had been drinking prior to riding rode off 

a cliff at night in the dark. Nothing in the report indicated any 

problem with the ATV, but because the CPSIA database on its face 

only accepts reports of ‘‘unsafe’’ products, the inclusion of this report will result in the ATV implicitly being classified as an unsafe 

product. Unless Congress acts, the database will become a repository of inaccurate information that defames manufacturers and 

misleads customers. We believe the modest changes proposed in 

the draft legislation will result in a more useful database with accurate and relevant information for consumers. Thank you. I am 

happy to answer any questions. 

[The prepared statement of Mr. Vitrano follows:] 

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Mrs. BONO MACK. Thank you, Mr. Vitrano. Ms. Jones, you are 

recognized for your 5 minutes. 

STATEMENT OF ERIKA Z. JONES 

Ms. JONES. Good afternoon, and thank you for inviting me to be 

with you this afternoon. I am Erika Jones, and I am counsel to the 

Bicycle Products Suppliers Association, which represents most of 

the manufacturers and importers of children’s bicycles and adult 

bicycles offered for sale in the United States. 

The bicycle industry has taken very seriously the expectations of 

Congress when the CPSIA was enacted. The bicycle industry has 

made substantial progress toward reducing lead in children’s bicycle products or making the lead inaccessible to children and appreciated the Stay of Enforcement that was enacted by the Commission and used that time productively to make these design changes 

and material substitutions in their products. 

Nevertheless, the industry is facing another brink of uncertainty 

as later this year a new standard of 100 parts per million looms 

on the horizon and presents a number of feasibility and practicability challenges for the industry. The industry presented data to 

the Commission in February of this year and again last month in 

written comments providing data from testing of a bicycle that was 

specced by its manufacturer to be below 100 parts per million because retailers are beginning to demand that level of achievement. 

And despite this effort to reach that goal, over 38 of the over 100 

parts that were tested by the laboratory exceeded 100 parts per 

million, and that is attributable to the variability that is present, 

inherent, and we think at this point, can no longer be worked out 

of the system. These were metal parts. The bicycle industry has 

solved the issue with respect to plastic and other non-metallic parts 

but continues to have a problem with those components on bicycles 

that are made from metal alloys. 

A witness at the CPSC regulatory hearing last month, who was 

retained by the bicycle industry and who runs a CPSC-certified lab, 

testified that he has in his experience seen a shrinkage in the number of children’s bicycle models that are offered for sale and the 

number of manufacturers willing to engage in this sector, which 

means a loss of choice for consumers. And this, we believe, is attributed to the cost of testing for the over 100 parts of a bicycle 

that are accessible and therefore have to be tested. 

Bicycles provide safe, affordable, and environmentally friendly 

transportation. They provide children with an enjoyable means of 

outdoor exercise, which we think is far more important for the 

health of children than protecting them from the theoretical risks 

from touching metal bicycle components with their hands. If lead 

testing costs make children’s bicycles too expensive for average 

families to afford or if affordable used bicycles are difficult to obtain, the health of America’s children could be affected far more 

than from the presence of lead in a tire valve stem that they may 

touch only on occasion. 

I would like to address a comment made by the previous panel, 

by Dr. Best, who made a comment that there is no benefit to lead 

and therefore it should be inherently unnecessary. We disagree 

with that. Lead in the quantities that we see it in metal alloys that 

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are used in bicycles provide a tremendous benefit. They provide 

corrosion resistance. Lead alloys provide strength and durability 

that is needed for appropriate performance of a bicycle. And it 

would not be socially useful or desirable to produce a bicycle that 

may meet a lead-free standard but which falls apart or which cannot be operated in an outdoor environment where it is intended to 

be used. 

The industry applauds your subcommittee for convening this 

hearing today. We believe there is a need to reform the CPSIA to 

reverse these unintended consequences and eliminate the unnecessary regulatory requirements that are driving up the cost of children’s bicycles making them less available and we urge prompt action on sensible reforms of the CPSIA. Thank you. 

[The prepared statement of Ms. Jones follows:] 

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Mrs. BONO MACK. Thank you, Ms. Jones. You get the record for 

coming in 45 seconds short, so I am going to recognize myself for 

the first 5 minutes of questioning and direct my question to you. 

You made reference several times in your written testimony to 

the August time frame. What happens in August that this time 

frame is of such concern that we need to do something about it in 

this amendment that we are looking at? 

Ms. JONES. On August 11 of this year the lead standard for substrate will drop to 100 parts per million, and under the current interpretation of the statute that will have immediate effect at the 

retail level, meaning it will really be retroactively applied to products that are on the retail shelves that are being built right now 

as we speak. And that has a devastating effect on product planning 

and as I testified a few minutes ago and as we have submitted data 

to the CPSC, the 100-parts-per-million standard is technically not 

feasible right now for the bicycle industry to meet. 

Mrs. BONO MACK. Thank you. And you also state that ‘‘except in 

the rarest of circumstances, new government standards should 

apply prospectively to products that are manufactured after the effective date of the standard.’’ Can you give us examples of circumstances in which new standards have been applied immediately 

and retroactively? And how do those examples differ from the instance we have before us? 

Ms. JONES. Well, the best example is the one we were just discussion of the 100 parts per million, which will apply immediately 

on August 11, not to products built after that date but to products 

on retail shelves as of that date, the same process applied when the 

300 parts per million standard took effect in 2009. And it had the 

same effect and disruptive effect at the retail level. 

This is not the norm for product regulation in other government 

agencies where normally—even at the CPSC as well—normally, 

manufacturers are given lead time to plan for the new regulation, 

to redesign their products, to absorb the costs in a more orderly 

fashion, and to work out their inventory so that products sold after 

the effective date reach retail shelves in a compliant fashion. That 

is the proper, orderly way to regulate products for safety improvement, not to disrupt the market with these very abrupt changes 

that do not permit that kind of orderly transition. 

Mrs. BONO MACK. Thank you. Ms. Cox—— 

Ms. COX. Could I make a brief comment there? 

Mrs. BONO MACK. No, I would like to move on. I have limited 

time and I do have a question for you, though. And you do mention 

that the FDA’s warning about lunchboxes containing lead claiming 

that FDA interpreted CPSC’s data differently than CPSC itself. 

How many lunchbox recalls did FDA order after it reviewed CPSC’s 

data? 

Ms. COX. This happened a long time ago but my recollection is 

there were not recalls but just a warning letter sent to lunchbox 

manufacturers telling them to fix the problem. 

Mrs. BONO MACK. I guess you mentioned this in your testimony 

that your discussion of lunchboxes suggests that FDA would disapprove of a risk-based lead standard and insist on a total lead 

content standard, but in fact they don’t have any total content 

standard for lead, do they? 

111 

Ms. COX. I actually think the example of the lunchboxes shows 

that, you know, one of the big advantages of the total content 

standard, it provides a clear, consistent number which manufacturers, retailers, regulators, everybody knows what the threshold is. 

I mean one of the issues with the lunchboxes was that it occurred 

pre-CPSIA, and so different agencies interpreted the results of the 

risk-based testing in different ways. And what we have now with 

CPSIA is a clear standard and lunchboxes all across the country— 

I have tested a lot of them over the last couple of years, and they 

are great. 

Mrs. BONO MACK. All right—— 

Ms. COX. They comply with the standards. 

Mrs. BONO MACK. Thank you. Ms. Millar, why isn’t a total lead 

standard as health-protective as an exposure-based standard? 

Ms. MILLAR. The risk to a child or to any consumer is based on 

actual handling and use. One of the assumptions that is incorrect 

that is underlying CPSIA is the notion that 100 percent of lead and 

substrate will migrate out of the product. That is actually not true 

and the CPSC’s own data demonstrates that actual migration rates 

are generally very low, even in worst-case, 24-hour acid ingestion 

test conditions. That is why we think that total content—and I 

think Mr. Howell expressed it this morning—can be useful as a 

benchmark screen, but absolute limits that ban products that actually don’t result in exposure of the sort that Mr. Vitrano and Ms. 

Jones talked about this morning do serve to essentially ban products that are objectively safe because they don’t result in significant harmful exposure to the consumer who is handling the product. 

Mrs. BONO MACK. Thank you. Mr. Butterfield, you are recognized 

for 5 minutes. 

Mr. BUTTERFIELD. Thank you very much. Let me go to you if I 

can, Ms. Cox. In your testimony you state that exposure assessment testing is a subjective process, open to interpretation and manipulation. Is that a fair characterization of your statement, that 

it is subjective as opposed to objective? 

Ms. COX. It is definitely subjective, yes. 

Mr. BUTTERFIELD. All right. And the gentlelady on the first 

panel, Dr. Beck, testified and supports the risk assessment, seems 

to provide support for your view as well. Her written testimony 

that she submitted indicates that assessing risk is highly contextual and hinges on a number of factors. 

Dr. Beck testified that you would want to know a lot of different 

things. You would want to know what the product is, how frequently a child interacts with the product, the duration of the 

interaction, will the child likely bite or suck on the product, will 

the child touch the component, how large an area the child will 

touch, and so forth and so on. That is about seven separate pieces 

of information that Dr. Beck identified. And I can add a couple 

more. How old is the child and in what stage of development is 

that particular child? What is the nutritional status of the child? 

Does the child have certain genetic traits that will lead to greater 

absorption? And so forth. It seems to me that perhaps the only person who could know all of these things and come up with that type 

of risk assessment would be someone who is superhuman. 

112 

Let me start with one simple question. Is it correct that with a 

lead content limit, a manufacturer or a retailer only has to know 

the answer to one simple question, how much total lead is in the 

component? 

Ms. COX. Yes, that is correct. And just to reinforce what I said 

earlier. That allows the manufacturer or anyone in the supply 

chain to specify to their suppliers the type of material that they 

need. 

Mr. BUTTERFIELD. Dr. Beck also in her testimony asserted that 

a standard based on soluble lead is generally preferable to a standard based on total lead. And as I understand it, total lead is a 

measure of how much lead is in a component, period. This is the 

measure required by the legislation. Solubility, on the other hand, 

refers to the amount of lead released from a component under certain specified conditions. Is it correct, Ms. Cox, that the conditions 

for measuring solubility are not consistent? That is they could 

choose to vary the time, temperature, and the solution that is used, 

whether to agitate the solution and so on. Would you elaborate on 

that, please? 

Ms. COX. I think I could just say that I have actually heard people in the laboratory and testing industry say that if something 

complicated like a solubility test or other exposure-based testing 

was required that there actually wouldn’t be lab capacity enough 

to be able to do these tests because they are so much more complicated and time consuming than a simple test for lead content. 

Mr. BUTTERFIELD. Will changing even one of these conditions affect the amount of lead that will be released during the test? 

Ms. COX. I think—yes, I am not a lab specialist but that is my 

understanding, yes. 

Mr. BUTTERFIELD. All right. My next question is—I guess I have 

time to do it. Let me try this. In your testimony, Ms. Cox, you point 

out that a total lead content limit allows companies to specify materials that meet the standards when contracting with suppliers. If 

I understand you correctly, a manufacturer can tell his or her 

metal supplier, I want to buy metal from you but only metal that 

contains no more than 300 parts per million and a supplier would 

be able to easily fill that order as specified. Could you respond? 

Ms. COX. Correct. In the exposure-based testing you can’t do 

until the product is completed, so that would happen at the very 

end of the manufacturing process, whereas with the total content, 

you can specify the content of all the materials and components 

that are used in a product. So it allows you to do it sort of premanufacture rather than having to potentially reject a product 

after it is already made. 

Mr. BUTTERFIELD. All right. All right, Madam Chairman, I yield 

back. 

Mrs. BONO MACK. Thank you, Mr. Butterfield. And now I would 

like to recognize Ms. Blackburn for her 5 minutes. 

Mrs. BLACKBURN. Thank you so much. And thank you all for 

your patience today. 

Ms. Cox, I enjoyed listening to your testimony and especially that 

you used Curious George. I have got a 3-year-old and a 2-year-old 

grandchild and that is one of their favorites. Let me ask you someVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00118 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
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thing. Do you find more lead in products that we import or products that are domestically manufactured? 

Ms. COX. I think probably everybody here is aware that virtually 

all the products on the shelves of major national retailers are products that are not made in this country. So, you know, when we find 

products that exceed CPSIA limits, it is not surprising that that is 

also true. 

Mrs. BLACKBURN. OK. In listening to your testimony and the testimony of others, it has been kind of curious—and Mr. Vitrano and 

Ms. Jones, I will ask you. With motorcycles and bicycles, do you all 

find more lead in those that we import or those that are domestically produced? 

Mr. VITRANO. All the major manufacturers of ATVs actually 

produce many of the models in the U.S. itself. 

Mrs. BLACKBURN. OK. 

Mr. VITRANO. Some models are made by those companies from 

outside the U.S. and—— 

Mrs. BLACKBURN. Well, maybe that they are domestically produced is one of the reasons we have less lead in a wipe test than 

in a glass of water. Ms. Jones, bicycles? 

Ms. JONES. Most children’s bicycles are not made in this country 

any longer. 

Mrs. BLACKBURN. OK. And so you don’t see that as being pertinent to what you all do? 

Ms. JONES. We do not see that as being pertinent. 

Mrs. BLACKBURN. OK. That is fine. You know, I have wondered 

if maybe since we have driven manufacturing out of this country 

is one of the reasons we are here having this hearing today and 

talking about the amount of metals that are there and some of the 

environmental litigation that has been brought forward and has 

driven manufacturing away from our shores. Maybe that is one of 

the reasons that we are here. 

And I know, Ms. Cox, that the Center for Environmental Health 

uses litigation quite frequently under California’s Prop 65 warning 

requirements. And I know that you all do some work and wanted 

to ask you, do you all get a bounty for identifying violations under 

Prop 65 labeling laws? 

Ms. COX. Proposition 65, for those of you who don’t know, was 

a ballot initiative in California in 1986—— 

Mrs. BLACKBURN. Yes, but you identify violations under that, so 

do you all get a bounty? 

Ms. COX. The statute, as passed by the voters, provides for if the 

statute is violated, there are civil penalties that are paid to the 

State—— 

Mrs. BLACKBURN. Yes, I have got some of them in front of 

me—— 

Ms. COX [continuing]. And the plaintiffs who identify the violation is entitled to 25 percent of those civil penalties. 

Mrs. BLACKBURN. OK. So I have got an exhibit in front of me 

that identifies some of these. So if one type of fashion accessory 

listed above is checked, it would be $45,000 in that identification. 

So you all would get 25 percent of that if you identified those. 

Ms. COX. 25 percent of the civil penalties. 

114 

Mrs. BLACKBURN. OK. All right. So 25 of the 45,000. So, OK, is 

this a funding revenue stream for your organization? 

Ms. COX. My organization has a diverse source of revenue. Like 

most nonprofit organizations, we receive grants from foundations. 

We also have a strong committed group of individual supporters 

who support us financially. And then we do get some money from 

our litigation as well. 

Mrs. BLACKBURN. Is that with the Lexington Law Group? Is that 

under a consent decree? 

Ms. COX. Could you repeat the question? Sorry. 

Mrs. BLACKBURN. I said is that with the Lexington Law Group, 

your litigation? OK. Let us move on. So then you get some money 

that comes to you through identifying these violations and most of 

the product, I guess, that you are looking at is things that are imported and they are on the shelves of major retailers, is that correct? 

Ms. COX. Yes. 

Mrs. BLACKBURN. And how many lawsuits have you partnered 

with the Lexington Law Group? 

Ms. COX. Let us see. There were a lot of questions there. 

Mrs. BLACKBURN. Yes, let me help you out with this. My time is 

nearly out. What I would like to know—and you can submit in 

writing—I would like to know what percentage of your funding relates to litigation. I would like to know how many lawsuits you 

have partnered with the Lexington Law Group. And I would like 

to know how much money you have made, what your revenue 

stream is from Prop 65 lawsuits in violations since the passage of 

CPSIA. And with that, Madam Chairman, I yield back the balance 

of my time. 

Ms. COX. Yes, I think it probably would be best for me to provide 

that information in writing since it is a lot of numbers. 

Mrs. BLACKBURN. Yes, ma’am, I was asking for it in writing. 

Ms. COX. I would be happy to do that. 

Mrs. BLACKBURN. For the record. 

Mrs. BONO MACK. Thank you. The chair is happy to recognize 

Mr. Pompeo for 5 minutes. 

Mr. POMPEO. Thank you, Madam Chairman. Following up on Ms. 

Blackburn, would you submit all of the sources of funding for your 

organization when you put that in writing to us, not only that that 

you get for Prop 65 but other sources for funding for the center, 

the CEH? 

Ms. COX. Yes, I would be happy to. 

Mr. POMPEO. Thank you. 

Ms. COX. And just to clarify, the work that I talked about in my 

testimony, monitoring for CPSIA compliance, that money came 

from the California Department of Justice, California Attorney 

General. 

Mr. POMPEO. So governmentally funded, is that right? 

Ms. COX. Sorry? 

Mr. POMPEO. Government funding from the State of California? 

Ms. COX. It went through a private foundation but the source of 

the money was the attorney general’s office. 

Mr. POMPEO. Thank you. Ms. Millar, this is fascinating to me. I 

am new here. This is all very fascinating. You, on the other hand, 

115 

you get paid by your clients and you are here today trying to avoid 

them paying you by reducing the regulatory burden. I find that fascinating to see the charitable effort you are making here today. 

Yes, no, I truly meant it that way. I meant it as a compliment. 

Ms. Jones, you said that you have a problem with metal alloys 

in the bicycle industry? 

Ms. JONES. Yes, sir. 

Mr. POMPEO. Why do you use metal? Just why don’t you stop 

using it? 

Ms. JONES. Metal alloys add a great deal of important value to 

bicycles. They help the bicycle be corrosion-resistant, they help 

them be strong and durable, and we really couldn’t make bicycles 

without them. 

Mr. POMPEO. So there is no substitute? 

Ms. JONES. Well, no, that is not true. There are substitutes, for 

example, carbon fiber. Some very high-end racing bikes for adults 

are made of carbon fiber but they would be way too expensive—— 

Mr. POMPEO. But I am not going to buy that for my son? 

Ms. JONES. You are not going to buy that. It would be too expensive. 

Mr. POMPEO. Yes. Yes, my son might like it but I am not going 

to buy it. 

Ms. JONES. There is no affordable, practical substitute. 

Mr. POMPEO. Thank you. That is what I figured. We were talking 

before about these different tests. Mr. Butterfield, Ms. Cox, asked 

you about some different tests and you said boy, the testing would 

just be really hard. He was describing these testing would be very 

difficult, soluble, non-soluble, it would be really hard and inconsistent. Is that right? And so you then said yes, that would be 

hard, so let us just take a simpler test that probably doesn’t really 

accomplish what we are trying to do. So it is a proxy at best. The 

perfect testing would be hard and difficult so what everybody defaults to is this simple test that really doesn’t get to the true risk 

of exposure to a consumer of a product. Did I understand your response correctly? 

Ms. COX. I would prefer to phrase it as—— 

Mr. POMPEO. I am sure you would. 

Ms. COX [continuing]. The goal—— 

Mr. POMPEO. I would prefer if you would not rephrase it but simply answer my question. 

Ms. COX. The goal of CPSIA was to remove a toxic metal from 

children’s products. And there had been a long history prior to 

CPSIA of risk-based approaches not being successful, and the lead 

content standard has been very successful at changing the marketplace and getting lead out of these products. 

Mr. POMPEO. I have no doubt. And banning lots of things would 

make them successful, too. We can always create a test that is 

over-inclusive and solve a problem. But as you can see from Ms. 

Jones’ comment earlier, we create another one. My son doesn’t get 

to exercise on his bicycle. Ms. Millar, do you have a view on the 

testing that Mr. Butterfield asked Ms. Cox about? 

Ms. MILLAR. Yes. As I said earlier—and I think Mr. Howell alluded to this as well this morning in his testimony—the ability to 

use total content as screening is an important tool. There is no 

116 

question about it. And I think it is true that people do try to target 

where they can meet a certain limit. It does help in the supply 

chain. It is not true that total lead tests are always uniform and 

never varied. We see a lot of different variability in total content 

test. And I think the problem becomes that when you establish an 

absolute ban, what we have seen for bikes, for ATVs, for certain, 

you know, pearlized buttons, for example, have agents in them that 

are metallic, you can have violations of total content limits where 

objectively applying standard accepted procedures that the CPSC 

uses, whether it is a wipe test, a saline test to mimic mouthing, 

which is a 6-hour-test procedure—they have an established procedure—or their updated 24-hour acid exposure test, you can establish whether or not that product is going to pose a risk. And so the 

manufacturers are going to always target to some objective limit 

where they can. The problem is that you are going to ban them 

where they exceed it where there is not a risk. 

Mr. POMPEO. It makes sense. I have got one more question, just 

20 seconds. Mr. Vitrano, Ms. Jones, have any of you had any experience responding to a CPS database complaint at this point? There 

has only been a month. Have any of you had experience responding 

to—— 

Ms. JONES. Yes. 

Mr. POMPEO. How did it go? 

Ms. JONES. We still have a couple in process but, you know, it 

is certainly something that people pay attention to. They take it seriously. In no case, however, has a client to date had a materially 

inaccurate incident report submitted to them. 

Mr. POMPEO. But they have had to spend a bunch of money talking to you? Thank you. I yield back my time. 

Mrs. BONO MACK. I thank the gentleman and recognize the distinguished chairman emeritus, Mr. Dingell, for 5 minutes. 

Mr. DINGELL. Madam Chairman, thank you. The questions are to 

all witnesses and I would very much appreciate it if they would be 

answered yes or no. 

First of all, beginning with Ms. Cox, are you aware of a uniform 

reasonable methodology in use by manufacturers of children’s products to find what is the amount of lead in a product? Yes or no? 

Ms. COX. Yes. 

Mr. DINGELL. Ma’am, Ms. Millar? 

Ms. MILLAR. Yes. 

Mr. DINGELL. And you, sir? 

Mr. VITRANO. Yes. 

Mr. DINGELL. Ma’am? 

Ms. JONES. Yes. 

Mr. DINGELL. OK. Now, is it possible the ambiguity of the term 

‘‘reasonable methodology’’ could lead to a wide variance in test results across manufacturers of similar products? Yes or no? Ms. 

Cox? 

Ms. COX. Yes. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. No. 

Mr. DINGELL. Sir? 

Mr. VITRANO. I don’t know. 

Mr. DINGELL. Ma’am? 

117 

Ms. JONES. No, we are not seeing that. 

Mr. DINGELL. The next question, if it wouldn’t lead to a variance, 

do you believe that this could pose a risk to the health of the children who use such products? Yes or no? In other words—— 

Ms. COX. I don’t think I am able to answer that question. 

Mr. DINGELL [continuing]. Is that variance going to put the children at risk? Well—— 

Ms. COX. Well, certainly, we need consistent testing. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. I don’t see the variability, so my answer is no. 

Mr. DINGELL. And you, sir? 

Mr. VITRANO. It would depend on the variability. 

Mr. DINGELL. Ma’am? 

Ms. JONES. And we are not seeing the variability. 

Mr. DINGELL. Ms. Cox, do you want to take another shot at it? 

All right. We will go to the next set of questions because time is 

very limited here. 

We have the term ‘‘accredited third-party conformity assessment 

bodies.’’ I assume that this includes both domestic and international bodies that would do this kind of testing? Am I correct? 

Yes or no, Ms. Cox? 

Ms. COX. Yes. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. Yes. 

Mr. DINGELL. Sir, if you please? 

Mr. VITRANO. Yes. 

Mr. DINGELL. Ma’am? 

Ms. JONES. Yes. 

Mr. DINGELL. All right. Now, if so, how many such assessment 

bodies are there worldwide? I don’t expect you to know but give me 

a shot in the dark, the best count you can give. How many do you 

think there are? Ms. Cox? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. A couple of hundred, I believe. 

Mr. DINGELL. Sir? 

Mr. VITRANO. For youth model ATVs there currently is 1. 

Mr. DINGELL. Ma’am? 

Ms. JONES. For bicycles there are only two in the U.S. and about 

a half-dozen outside of the U.S. 

Mr. DINGELL. Thank you, my friends. Does the Commission have 

the resources with which to verify the testing capacity of all of 

these third-party conformity assessment bodies? Yes or no? Ms. 

Cox? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. I don’t know. 

Mr. DINGELL. Sir? 

Mr. VITRANO. I don’t know. 

Mr. DINGELL. Ma’am? 

Ms. JONES. I don’t know. 

Mr. DINGELL. Now, is it your understanding of the draft legislation that the Commission would have to accredit all third-party 

conformity assessment bodies? Yes or no? 

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Ms. COX. I don’t know. 

Mr. DINGELL. In other words, would they have discretion under 

the legislation to decide who they would accredit and how and why 

they would accredit? Yes or no? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ma’am? 

Ms. MILLAR. I don’t know. 

Mr. DINGELL. Sir? 

Mr. VITRANO. I don’t know. 

Mr. DINGELL. Ma’am? 

Ms. JONES. I don’t know. 

Mr. DINGELL. All right. Now, in summary, do you believe that 

the effect of these requirements would be that the Commission 

would seldom, if ever, require third-party testing of children’s products? Yes or no? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ma’am? 

Ms. MILLAR. I don’t know. 

Mr. DINGELL. Sir? 

Mr. VITRANO. No. 

Mr. DINGELL. Ma’am? 

Ms. JONES. No. 

Mr. DINGELL. Now, here are some questions about the database 

which are troubling us. And everybody, I think, is troubled. Is it 

your understanding that CPSIA requires all information submitted 

to the consumer complaint database to be published online within 

10 days of its receipt, regardless of the accuracy of the information? 

Yes or no? Ms. Cox? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. Yes. 

Mr. VITRANO. Yes. 

Ms. JONES. Generally, yes. 

Mr. DINGELL. Thank you. Now, should a manufacturer be given 

the opportunity to contest the accuracy of a consumer complaint before it is published? Yes or no? Ms. Cox, please? What is your opinion, just your best judgment on the matter, please? 

Ms. COX. These questions are outside my expertise. 

Mr. DINGELL. All right. Then I will not press you on it, ma’am. 

Ms. Millar? 

Ms. MILLAR. Yes. 

Mr. DINGELL. Mr. Vitrano? 

Mr. VITRANO. Yes. 

Mr. DINGELL. Ms. Jones? 

Ms. JONES. Yes. 

Mr. DINGELL. All right. Now, if a manufacturer is allowed to dispute the accuracy of the information in a consumer’s complaint, 

how should the dispute be resolved and by whom? If you please, 

Ms. Cox? 

Ms. COX. I don’t know. 

Mr. DINGELL. Ms. Millar? 

Ms. MILLAR. I think the CPSC should resolve the inaccuracy before posting the complaint to the database. 

Mr. DINGELL. Mr. Vitrano? 

119 

Mr. VITRANO. CPSC should resolve it before posting. 

Mr. DINGELL. Ms. Jones? 

Ms. JONES. CPSC should resolve it before posting. 

Mrs. BONO MACK. The gentleman’s time has expired. 

Mr. DINGELL. I thank you, Madam Chairman. I have one more 

great question. Could I ask unanimous consent to ask it, please? 

Mrs. BONO MACK. Yes, without objection. 

Mr. DINGELL. Thank you. The draft legislation amends CPSIA to 

permit only persons directly harmed by a consumer product, their 

family, their legal representative, or another person authorized on 

their behalf to submit a complaint to the database. Previously, 

CPSIA permitted anyone to submit complaints about a consumer 

product. Do you believe that the draft legislation’s narrowing of eligibility to submit the complaints is necessary? Yes or no? 

Ms. COX. Not necessary. 

Mr. DINGELL. OK. Ms. Millar. 

Ms. MILLAR. Necessary. 

Mr. DINGELL. Mr. Vitrano? 

Mr. VITRANO. Yes, it is necessary. 

Mr. DINGELL. Ms. Jones? 

Ms. JONES. Yes, it is necessary. 

Mr. DINGELL. Madam Chairman, you have been most courteous. 

May I have an additional unanimous consent request? I have a 

splendid statement that I have labored long and hard on. 

Mrs. BONO MACK. I have nothing but fondness and admiration 

for the distinguished chairman, but we still have another member 

and another panel to go and votes on the floor. So I will—— 

Mr. DINGELL. I am not delaying—— 

Mr. BUTTERFIELD. Madam Chair—— 

Mr. DINGELL [continuing]. Madam, I have a statement I would 

like to put in the record. 

Mr. BUTTERFIELD. Whenever the chairman emeritus talks like 

that, he has a pleasant surprise for us. I would ask unanimous consent to yield to the chairman emeritus. 

Mr. DINGELL. Thank you very much. No, it is just a statement 

that I want to put in the record, Madam. 

Mrs. BONO MACK. Of course. Without objection. 

[The information follows:] 

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67423.067
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Mr. DINGELL. And I do thank my good friend for his kindness to 

me. Thank you, Madam Chairman. 

Mrs. BONO MACK. Thank you. And reminder, I am new at this 

chairmanship, so I appreciate the kindness of the distinguished 

chairman emeritus but will recognize Dr. Cassidy for 5 minutes. 

Mr. CASSIDY. I don’t know. I am sorry. I was out when you all 

were making testimony so I don’t know if anyone can address what 

I am about to ask. As I look at the epidemiology of lead poisoning, 

it seems to be not generally distributed, but it seems to be in certain populations. Those which are recent immigrants, for example, 

appear to have a disproportionate amount of lead toxicity. And in 

fact I was looking at something from a hospital in Los Angeles that 

found even within the Hispanic community there, there was three 

ZIP codes which were particularly impoverished ZIP codes in which 

there was even more. Now, assuming that toys are generally distributed but that the people who have problems with lead toxicity 

are concentrated in certain areas, it suggested to me that the culprit for those children who have increased lead, it may be geographic or related to how recently they came from another country 

without standards than it is almost anything else. 

I toss that out not knowing if anyone can answer that or if these 

are just musings. Anybody want to take a crack at that? 

Ms. COX. I will take a crack at it. Exposure to old lead-based 

paint in homes is the primary source of lead exposure to children, 

and that has been the case for several decades. Current statistics 

are about 70 percent of elevated blood lead levels in children are 

caused by exposure to paint. The other 30 percent are not. Further—— 

Mr. CASSIDY. Now, wait. I am sorry. Just so I understand, so if 

you have a blood level of 100, just to pick a number, does that 

mean that 70 percent of that 100 is related to paint exposure and 

30 percent to another environmental factor or does it mean that 70 

percent of the children that have elevated lead levels have it due 

to paint? 

Ms. COX. 70 percent of the children with elevated blood lead levels, they are able to trace back that exposure to paint. 

Mr. CASSIDY. So the 30 percent, is that those for whom no point 

source can be identified or those for whom another point source is 

identified? 

Ms. COX. In general, when there is a child with an elevated blood 

lead level, there is a huge effort to identify the source. So the number of unidentified ones is really small. 

Mr. CASSIDY. And so again, as I look at this concentration among 

recent immigrants, it suggests to me that recent immigrant status 

is a separate factor. I did my medical residency in Los Angeles and 

we used to see all these diseases from other countries in Los Angeles, very odd diseases that we wouldn’t see in Washington, D.C., for 

example, even though this is also a place of immigrants. So I guess 

to what is the impact of immigrant status? Is there exposure to 

lead that is occurring south of the border that we are importing? 

Ms. COX. I am not aware of any statistics about immigrant status and lead exposure. I do know that because the deteriorating 

paint is a factor, you know, living in older housing or housing—— 

Mr. CASSIDY. OK, I got that. 

122 

Ms. COX [continuing]. That is not well-maintained—— 

Mr. CASSIDY. The 30 percent of folks for whom paint is not a factor—and I should know this but I have been trying to track it down 

and I apologize—what percent of those have a point source identified and what are those point sources? 

Ms. COX. The point sources tend to be lead in soil, lead in water, 

and then lead in various kinds of consumer products. 

Mr. CASSIDY. What, for example? 

Ms. COX. Examples of consumer products? 

Mr. CASSIDY. With lead that have been identified as a risk for 

children. 

Ms. COX. Jewelry, toys, there is some lead-containing makeup 

that has been a problem. There is lead-containing foodware that 

has been a problem—— 

Mr. CASSIDY. I assume that some of this, though, must be older 

stuff. I mean I can remember playing with lead when I was a kid. 

Obviously, my mother didn’t care for me. I am assuming that much 

of what is now available with or without these regulations that 

lead is gone. Is that a fair statement? I am looking at all of you 

all now because I can only imagine that my pencil that I used to 

chew on in third grade probably had lead in it. 

Ms. COX. The regulation of lead over the last 40 years has been, 

you know, one of the country’s greatest public health successes. So 

removing lead from paint, removing lead from gasoline, and then 

removing lead from other consumer products has had a dramatic 

reduction in the number of children with elevated blood lead levels. 

The goal of CDC was to get that level to 0 by 2010. It hasn’t quite 

happened but—— 

Mr. CASSIDY. And if it is true that immigrants are the cause of 

a lot of this, it will never happen. I just say that because our tuberculosis problem will never go to 0 as long as we have people immigrating from Mexico because it is just endemic there. I am just trying to understand to what degree can we attribute products, you 

know, toys for this as opposed to everything else? Thank you for 

your time. Thank you. 

Mrs. BONO MACK. I thank the gentleman and that concludes the 

panel. And I would like to thank Ms. Cox and Ms. Millar, Mr. 

Vitrano, and Ms. Jones for your time and testimony today. And I 

am sure we will be working together in the future on refining this 

legislation. 

Mr. BUTTERFIELD. Madam Chairman, may I be recognized before 

the panel leaves? 

Mrs. BONO MACK. Yes. 

Mr. BUTTERFIELD. Earlier Ms. Blackburn requested Ms. Cox, if 

she would furnish financial information for her nonprofit organization, and at first I had a little heartburn about that, but after I 

thought about it, it is an appropriate request. It goes to her credibility as a witness today. As a former judge I guess I should know 

that. But I was wondering if it would be appropriate to ask the 

other three witnesses if they would similarly furnish the sources of 

their revenue for their organizations that they represent. 

Mrs. BONO MACK. Well, I will remind the gentleman that you 

can submit any question you would like to any witness and that 

you have 10 days to do so and remind the gentleman also that 

123 

Members of Congress are allowed to ask any question that they 

would like of any witness and again remind you that you have that 

prerogative to do that in writing to the witnesses. And with that, 

again, if the gentleman will yield back. 

Mr. BUTTERFIELD. He will. Thank you. 

Mrs. BONO MACK. I thank the panelists again and would call for 

the third panel if we can get seated. We are going to have votes 

shortly on the floor so we would love to get started and see how 

much progress we can make. So a short break and then we will roll 

into the third panel. 

Thank you. That was a quick transition. Thank you, staff. So 

now the third panel, I would like to thank you all very much for 

being here. We have the final four witnesses. First up, we have 

Frederick Locker of Locker, Greenberg, and Brainin, P.C. Our next 

witness is Charles Samuels of Mintz, Levin, Cohn, Ferris, Glovsky, 

and Popeo, P.C. Also testifying will be Dan Marshall, Vice President of the Handmade Toy Alliance. And our fourth panelist today 

is Rachel Weintraub, Director of Product Safety and Senior Counsel for the Consumer Federation of America. Welcome everybody. 

You know the drill, 5 minutes, and you know where the lights are 

so we are going to begin, Mr. Samuels, with your 5 minutes. Thank 

you and welcome. 

STATEMENTS OF CHARLES A. SAMUELS, MEMBER, MINTZ, 

LEVIN, COHN, FERRIS, GLOVSKY, AND POPEO, P.C.; FREDERICK LOCKER, LOCKER, GREENBERG, AND BRAININ, P.C.; 

DAN MARSHALL, VICE PRESIDENT, HANDMADE TOY ALLIANCE, AND CO–OWNER, PEAPODS NATURAL TOYS AND BABY 

CARE; AND RACHEL WEINTRAUB, DIRECTOR OF PRODUCT 

SAFETY AND SENIOR COUNSEL, CONSUMER FEDERATION OF 

AMERICA 

STATEMENT OF CHARLES A. SAMUELS 

Mr. SAMUELS. Thank you, Chair Bono Mack, and members of the 

subcommittee. Thank you for the opportunity to testify. I have the 

privilege of serving as general counsel of the Association of Home 

Appliance Manufacturers, as well as representing companies on 

product safety matters. 

I support a fully resourced, focused, and effective Commission 

with the tools to protect Americans from unsafe products. I supported the revamping of the federal product safety laws and I respect the hardworking and dedicated officials at the Commission. 

Unfortunately, parts of the law are overreaching, over-prescription, 

and distort the Agency’s mission to the detriment of consumers and 

industry. The discussion draft makes great strides towards remedying the imbalances and deficiencies in the current law without 

doing violence to the core public policies. 

I will focus on the database provision. Technology should be used 

to disseminate good and easily accessible information to consumers 

about product safety. It makes no sense, however, for so much of 

the resources of the Commission to be invested in this effort unless 

it provides useful and accurate information to the extent feasible. 

We cannot expect perfection, but we now have a database that can 

124 

be manipulated for purposes other than that intended. Vague, useless, and incorrect information can be placed online. This not only 

harms manufacturers, retailers, and importers, but harms consumers who receive bad information and cannot focus on truly unsafe products. Discrete changes can be made to the law, which will 

greatly improve the operation, utility, and fairness of the program. 

First, the intent of the law is that posted reports of harm will 

come from those who suffer the harm, their family and legal and 

medical representatives. The database should not be a platform for 

manufacturers, trade associations, trial lawyers, or consumer 

groups who are trying to make policy points or enhance their economic status. 

I support the tighter definition of ‘‘consumers’’ to restrict it to the 

persons who actually suffer the harm related to the use of the 

product and their representatives. I also support revising the term 

‘‘public safety entities’’ that make clear that you are referring to 

public safety officials. 

The requirement that the Commission ascertain the location and 

availability of a product is important for the manufacturer to 

evaluate the complaint or for the Commission to look further at the 

allegations. The Commission also should know the identity of the 

person who allegedly was harmed. 

A major deficiency of the database is the agency decision to publish the report regardless of whether a good faith, substantial claim 

of material inaccuracy has been submitted but has not been resolved within 10 days. This is unfair, a lack of due process and absolutely not what we should be expecting from our Federal Government. We have great freedom in this country to blog and publicly 

report bout almost anything without much legal restriction, but the 

government should show more prudence and responsibility. 

The draft properly provides that if a manufacturer claims a material inaccuracy and the Commission determines that the claim is 

‘‘potentially valid,’’ the Commission must resolve that inaccuracy 

before posting by communicating with the reporter, investigating 

the incident, or providing the manufacturer a reasonable period of 

time to investigate. This does not need to be a lengthy process. It 

is likely the vast majority of database reports will receive little or 

no response and, at most, there will be a response suitable to be 

placed on the database along with the consumer report. But in 

those cases where a company has gone to the trouble to evaluate 

and provide proof that a report is materially inaccurate, that ought 

to be resolved before the report is posted. Once it is posted, pulling 

it from the database later is of very limited utility and great harm 

can be done. 

The existing database also is deficient in that it allows reports 

which are so unspecific as to a particular model that the information is useless, even deceptive. I support the language in the discussion draft that a manufacturer may respond that the report is 

insufficient for determining which of its products are the basis of 

the complaint and that that must be determined before the complaint is posted. 

The present 10-day limitation for companies to evaluate and respond to a report and the Commission to resolve any issues is extraordinarily short and unreasonable. Even well-organized compaVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00130 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
125 

nies will have difficulty dealing with this time frame. Therefore, I 

recommend that the 10 days be increased to at least 15 days, which 

will have no material impact on the timing of postings or the value 

of the database. 

Also, there is an indication that the Commission may be limiting 

its review of material inaccuracy only to those situations where 

there has been a misidentification of the product. That is definitely 

not the extent of material inaccuracy. The Commission’s regulations state that material inaccuracy includes all relevant facts 

which significantly impact a consumer’s decision on whether to 

purchase a product and that includes causation. 

Congress should make clear to the Commission that second- and 

third-hand reports do not constitute reports of harm eligible for the 

database. And simple consumer complaints of dissatisfaction about 

the quality or performance of the product which are not safety-related should not be posted. 

I hope that these comments are helpful. I would be pleased to answer your questions. Thank you. 

[The prepared statement of Mr. Samuels follows:] 

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Mrs. BONO MACK. Thank you. Briefly, we are going to go through 

Mr. Locker and then we are going to run to vote. So 5 minutes, Mr. 

Locker, please. 

STATEMENT OF FREDERICK LOCKER 

Mr. LOCKER. OK. Thank you. And I will try to make sure you 

don’t waggle the gavel. 

Chairman Bono Mack, Vice Chairman Butterfield, members of 

the subcommittee, thank you for the opportunity to appear before 

you on this important subject matter of practical, commonsense solutions—and I emphasize ‘‘solutions’’—to unintended consequences 

involved in the implementation of the Consumer Product Safety 

Improvement Act of 2008, or as it has been come to be known as 

CPSIA. 

Now, our firm works as safety counsel to the Craft and Hobby 

Association, Toy Industry Association, Juvenile Product Manufacturers Association, Halloween Industry Association, apparel makers, publishers and retailers. And for better and for worse, we have 

had a lot of experience in the last 21⁄2 years with the problems with 

implementation of the law. 

Now, we have been involved in developing product safety standards over many decades and we have also worked in collaboration 

with many foundations and consumer organizations to advocate the 

need for uniform product safety standards and initiatives, both in 

the United States and globally. We keenly recognize that sometimes in this rush to regulate, attention may be focused on relatively small risks associated with products while some very big 

risks remain unappreciated and unaddressed. In a world where 

perception is reality, where misinformation often drives perception, 

and where new, scary, and uncertain hazards can receive enormous 

amounts of attention very quickly, it is important to understand 

context for managing children’s risks and for regulating them. 

We understand, however, that there is no more important theme 

than protecting our population of consumers and in particular our 

children. As much work as we all do, there is always room for improvement in this regard. We may not always agree with everyone 

appearing before you today on how to achieve our common goals, 

but we always stand willing, ready, and able to work with everyone 

for the betterment of children’s lives. 

Now, in the past appearances before this committee, we have 

supported the legislative initiatives, including the concepts embodied in CPSIA. However, to the extent that implementation of 

provisions have resulted in regulations that depart from sensible 

risk-based decision-making, it has become clear to all involved on 

both sides of the aisle that Congress needs to act to restore a commonsense regulatory framework. The CPSC has strained under the 

burden, but despite admonitions from Congress that the agency 

was empowered with discretion to implement practical commonsense regulations on at least five or six separate occasions in the 

past, the Commission in a bipartisan fashion has readily acknowledged, as it has today, that its discretion has been limited without 

statutory changes. 

CPSIA adopted an unduly prescriptive regime and as often happens, Congress can act with a sledgehammer instead of a scalpel 

137 

when trying to deal with issues. CPSIA adopted a set of absolute 

total limits on lead and phthalates. This House body, I note, didn’t 

even consider the phthalate legislation that was grafted in the Senate and in conference. These wholesale limits were coupled with an 

exemption process that we all had hoped would work better but 

had proved to be impractical for lead and phthalates regulation. 

In effect as a result and direct result of that, the stream of commerce and business suffered significantly as the imposition of these 

requirements was further deemed to apply in a retroactive manner 

to any previously produced goods entered into commerce when the 

laws and step-down levels went into effect. These confusing and 

burdensome testing schemes—which have yet to be fully and clearly enunciated as we sit here today—have resulted in additional 

marketplace confusion and cost. 

So let me share just a few of the comments and proposals on the 

law that is before us today. Our comments are for the record—but 

in terms of the budget, it is clear that an era of restrained budgets 

and limited resources, the CPSC will need to allocate funds based 

upon risk/hazard analysis and sound scientific principles. In terms 

of lead, Congress recognized this approach when they adopted as 

a regulatory requirement, for example, the toy safety standard 

ASTM F–963 to which Congressman Schakowsky referenced. That 

standard, by the way, is a soluble migratable standard. It is not a 

total limits standard and has proved to be remarkably effective 

both in the United States—which is why Congress adopted it—Europe, and the rest of the world. 

Exemptions for certain materials have been adopted by the CPSC 

but they have not gone far enough. So we favor the types of processes that have been adopted and proposed in the draft resolution 

in phthalates. In terms of phthalates, they need to have an inaccessibility recognized. There needs to be action on the Chronic Hazard 

Advisory Panel when they come to conclusions that action has to 

be quick. 

[The prepared statement of Mr. Locker follows:] 

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Mrs. BONO MACK. That is the red light and we have to run to 

the floor for a vote. And we will recess and reconvene immediately 

following the last vote in the series. 

Mr. LOCKER. OK. Sorry. 

Mrs. BONO MACK. I don’t have the time. I tried last time and I 

was off by 20 minutes. So immediately following the last vote, we 

will return. We have a five-vote series. 

Mr. LOCKER. Thank you. 

[Recess.] 

Mrs. BONO MACK. We are ready to begin. So we left off with Mr. 

Marshall and so we will recognize you for your 5 minutes. 

STATEMENT OF DAN MARSHALL 

Mr. MARSHALL. Thank you very much. Hello. My name is Dan 

Marshall. I am the founder and vice president of the Handmade 

Toy Alliance. The HTA represents 644 small businesses affected by 

the unintended consequences of the Consumer Product Safety Improvement Act. I would like to mention also that we receive no outside funding whatsoever. We are funded entirely by our members 

and some small donations that folks have made along the way. We 

are kind of a shoestring operation. 

My wife and I own Peapods Natural Toy Store in St. Paul, Minnesota. I am here today with my daughter Abigail and fellow HTA 

Board members Rob Wilson of Challenge and Fun in Massachusetts and Randy Hertzler of euroSource in Pennsylvania. 

The HTA began in November of 2008 after I began to understand 

how the newly passed CPSIA will decimate the small-batch manufacturers who supply our store. Since then, I have been working 

with hundreds of other small business owners to save small-batch 

manufacturers from regulatory burdens of the CPSIA, the greatest 

of which is the cost of mandated third-party testing. These fixed 

costs, which are easily bourn by mass-market manufacturers, who 

make tens of thousands of units at a time, are simply impossible 

for small businesses that make toys, children’s clothing and accessories in batches of a few dozen at a time, often in home-based studios. 

These required tests are not limited to lead testing. Toys, for example, will be subject to mandatory ASTM F–963 testing, which requires the destruction of multiple units of each toy. The CPSC’s 

current schedule would mandate ASTM testing as soon as this October. Unless the CPSIA is reformed, hundreds of small American 

toymakers will not survive that date. 

Unlike similar product safety legislation such as the Food Safety 

Modernization Act, FDA food labeling rules, or California’s Proposition 65, the CPSIA makes no allowances whatsoever for small 

businesses, nor does it allow the CPSC any discretion in how it applies third-party testing requirements to various types of products. 

Bicycles, books, hand-knit sweaters, and wooden toy cars are all 

tested the same. 

As a result, the CPSIA, as it stands now, is basically unenforceable. Key provisions have been stayed numerous times. The CPSC 

is slowly being transformed from a public safety guardian into an 

enforcer of procedures and technicalities dictated by Congress at 

huge cost. Congressional action has dramatically undermined the 

152 

CPSC, an agency which has effectively protected the American public for almost 40 years. 

Meanwhile, we have watched numerous trustworthy businesses 

fold because of the CPSIA. Untold others have decided not to pursue their dreams as toymakers or crafters. We have even begun to 

see secondary effects such as the end of Mothering Magazine, 

which closed this February after 35 years, citing reduced ad revenues due to the CPSIA’s impact on their advertisers. If the CPSIA 

is not amended, hundreds more small family businesses will perish 

for no good reason. 

Thanks to the work of this committee, we have a way forward. 

Our alliance endorses the draft amendment because of the relief it 

provides to our members. This bill requires either an exemption 

from third-party testing or alternate testing procedures, such as 

XRF screening for lead in substrates, for products that are produced in small quantities. This is exactly what we have been asking for since the formation of our organization. Small-batch manufacturers would be given a safety valve which was originally left 

out of the CPSIA. 

We desire a thoughtful and measured reform worthy of meaningful bipartisan discussions. These issues deserve a full hearing to 

ensure that a high degree of consumer protection is maintained. 

We do not wish to create loopholes that would benefit the types of 

irresponsible companies that created the toy safety scare in the 

first place. 

We urge you to reach out to your colleagues in the Senate to 

reach a bipartisan agreement. The CPSIA was the product of a 

strong bipartisan effort in 2008 and its reform requires the same 

effort. We believe this discussion draft is a suitable foundation for 

that discussion. We urge both Houses of Congress to set aside differences and find a way to see this reform process through. Our 

family businesses are watching the process closely and we are depending on you. 

In conclusion, on behalf of our members, I would like to thank 

this committee for addressing this important issue and urge you to 

quickly pass meaningful reform of the CPSIA. Thank you. 

[The prepared statement of Mr. Marshall follows:] 

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Mrs. BONO MACK. Thank you very much. Ms. Weintraub, your 5 

minutes. 

STATEMENT OF RACHEL WEINTRAUB 

Ms. WEINTRAUB. Chairman Bono Mack, Ranking Member 

Butterfield, Representative Schakowsky, I am Rachel Weintraub, 

Director of Product Safety and Senior Counsel for Consumer Federation of America. I offer this testimony on behalf of CFA as well 

as Consumers Union, Kids In Danger, National Research Center 

for Women and Families, Union of Concerned Scientists, and the 

U.S. Public Interest Research Group. I thank you for inviting me 

to testify today. 

The CPSIA institutes the most significant improvements to the 

Consumer Product Safety Commission since the Agency was established. The millions of recalls of toys for excessive lead and tiny 

powerful magnets, children’s jewelry because of high lead levels, 

and cribs because of durability problems cause consumers to question the effectiveness of our Nation’s safety net. The CPSIA has restored consumer confidence by requiring children’s products to be 

tested for safety by banning lead and certain phthalates and toys 

and by creating a publicly accessible consumer complaint database 

and authorizing necessary resources to CPSC. 

The consumer community has stated previously that any changes 

made to the CPSIA must not weaken product safety standards and 

must not weaken public health protections. The current discussion 

draft fails this litmus test unfortunately. This discussion draft is 

not narrowly tailored, but rather carves gaping loopholes in the 

consumer protections created by the CPSIA. It covers fewer children’s products, undermines the lead and phthalate standards, substantially weakens the third-party testing requirements, and 

makes the consumer complaint database vastly less useful for consumers. I will highlight some of the most critical provisions of the 

discussion draft in my testimony. 

We oppose an effort to weaken the scope of the protections of the 

CPSIA. The discussion draft implies that only those products for 

children of some younger age, we presume, should be afforded protections by the CPSIA. Congress embraced the belief that there is 

a shared toy box, which we know reflects the reality of what is true 

in many homes across this country. School-age children are at risk 

from lead exposure and from hazards posed by powerful magnets 

in toys, for example. If those toys are not required to meet any lead 

limit or meet the standard for magnetic toys, the potential for 

harm is large. Further, the voluntary standard for toys, ASTM F– 

963, covers toys intended for children under age 14 years of age. 

The third-party testing provision of the CPSIA will be eliminated 

almost entirely by the discussion draft. Third-party testing is necessary to confirm compliance with safety rules and prevents hazards before they enter the marketplace. While the discussion draft 

preserves third-party testing for lead in paint, full-size cribs, nonfull-size cribs, pacifiers, small parts, and children’s metal jewelry, 

the fact that all infant durable products other than cribs will not 

be subject to third-party testing is untenable. And there is even 

ambiguity about the crib standard. 

156 

The provision makes it very difficult for CPSC to require thirdparty testing for other products. The rule-makings required in this 

section require a cost analysis while ignoring the benefits of lives 

saved, injuries avoided, or healthcare costs reduced as a result of 

the testing requirement. And no time frame is established for these 

rule-makings. This section lists products that can never be required 

to undergo third-party testing but fails to define them. While we 

understand that a narrowly-targeted exemption for third-party 

testing provisions may be the only solution for small-batch manufacturers, the lack of definition and an alternative testing mechanism to ensure safety makes it impossible to determine the appropriateness of this relief. 

The discussion draft puts babies at risk in childcare facilities by 

allowing fixed-side cribs to remain in use if there is required supervision. Slowly removing the drop-side cribs misses numerous other 

hazards that the new crib standard addresses such as hardware 

failures, material integrity problems, mattress support failures, 

slat hazards, and corner posts. This provision drastically weakens 

the consumer protections of the CPSIA and will keep babies in 

known unsafe cribs. 

The consumer complaint database will give consumers access to 

lifesaving information and will help CPSC to more nimbly identify 

and act upon safety hazards. CPSC’s rule is responsive to the public interest needs 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 

government agency databases. 

The discussion draft tips the balance that the database rule has 

achieved by limiting who can report to the database, unnecessarily 

increasing the types of information consumers must report before 

their complaint can be considered for posting, requires consumers 

to unwittingly engage in a dialogue with a manufacturer about the 

reported harm rather than simply reporting the incident to the 

CPSC, stays the reporting of information until final decisions about 

the sufficiency and accuracy of the information are made, and will 

substantially increase the time it will take for information to be 

posted publicly. This will discourage reporting by consumers to the 

database and decrease the utility of this important consumer protection. 

I thank you for your consideration and am happy to take questions. 

[The statement of Ms. Weintraub follows:] 

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Mrs. BONO MACK. Thank you very much. All right. The chair recognizes herself for 5 minutes for the first round of questions. 

And I would like to ask Mr. Marshall, please, would you be willing to register with the Commission in order to qualify for this 

small-batch exemption to the third-party testing requirements? 

Mr. MARSHALL. I think that would be a fair tradeoff so that the 

CPSC would know who the small-batch manufacturers are and it 

would be consistent with how the FDA approaches food labeling 

laws. So yes. 

Mrs. BONO MACK. Thank you. And you also mentioned the other 

laws that have provisions to accommodate the different circumstances of small-batch manufacturers. Can you say more about 

the approaches that you believe are the best? 

Mr. MARSHALL. Well, the issue with third-party testing is cost, 

so I think it makes sense to create exemptions based on the number of units produced per year. That seems like the most logical 

way to us to get at the cost versus the output of a particular manufacturer. 

Mrs. BONO MACK. Thank you. Ms. Weintraub, first of all, your 

testimony—you and I have not read the legislation at all in the 

same way—but you testified that the CPSIA became law as a result of ‘‘a period of record numbers of recalls of hazardous products 

that injured, sickened, or killed children.’’ What I remember most 

are the lead-in-paint recalls and no one here will ever argue that 

lead-in-paint restrictions should ever be loosened. ‘‘However, the 

most significant problems with this bill relate to lead in substrate.’’ 

Putting aside metal jewelry, again, restrictions for which we do not 

intend to loosen, were there any children injured, sickened, or 

killed by lead in substrate, and if so, how many and can you provide verified statistics of those injuries? 

Ms. WEINTRAUB. I can’t provide verified statistics of those injuries because many of those injuries are silent. They could cause— 

and likely have caused but we just don’t know—neurological impairments, decreases in IQ—— 

Mrs. BONO MACK. You are saying they are all speculative injuries that you—— 

Ms. WEINTRAUB. No, I wouldn’t say that they are speculative—— 

Mrs. BONO MACK. But they are speculative? 

Ms. WEINTRAUB [continuing]. But they are very difficult to document. 

Mrs. BONO MACK. All right. And—again, you and I read the legislation entirely differently—contrary to what you said in your testimony, the discussion draft does not deprive consumers of thirdparty testing. It gives the Commission authority to decide what 

should be third-party tested. You know, what I have heard from 

the commissioners is that they need a little bit more common 

sense, the ability to apply common sense. You completely disagree 

with that notion and what I see in the legislation and what you see 

are entirely different? 

Ms. WEINTRAUB. Well, I am not entirely sure what you see, but 

what I see is a system where there is a list of products that are 

subject to third-party testing, a list of products that can never be 

subject to third-party testing, and then a very rigorous rule-making 

177 

without any timelines that is required in order for other products 

to be third-party tested. 

Mrs. BONO MACK. You are saying that there are products that 

can never be tested? 

Ms. WEINTRAUB. My understanding was that there is a list in 

this discussion draft that includes—— 

Mrs. BONO MACK. Have you seen the discussion draft? 

Ms. WEINTRAUB. Yes, I have seen it. 

Mrs. BONO MACK. OK, but your understanding—I am sorry. You 

confused me right there. You said your understanding is that—— 

Ms. WEINTRAUB. Well, you are disagreeing with my interpretation so—— 

Mrs. BONO MACK. Well, and you disagreed with mine so I—— 

Ms. WEINTRAUB. Well, the way that I read the discussion draft 

is that there are a list of products which are undefined, products 

for children with disability, one-of-a-kind products, works of art, 

and products manufactured by small-batch manufacturers that 

would never be subject to—— 

Mrs. BONO MACK. Well, nothing is excluded from testing and the 

Commission can decide to impose the testing. But just moving on 

a little bit to Mr. Samuels. 

You state that the Commission has made some unfortunate interpretations in implementing the database. What interpretations 

are you referring to and are they corrected by this legislation? 

Mr. SAMUELS. Thank you very much. Two very troublesome interpretations is their unnecessary—in fact, I think really improper—increase of the number of parties that can make reports of 

harm. So that includes trial lawyers; it includes consumer groups 

that may not be direct representatives of someone that is harmed. 

It is totally improper and your draft limits it to those people really 

harmed and their representatives, which is what the database is 

supposed to be all about. 

The second thing is a very unfortunate interpretation that even 

if a manufacturer has claimed a material inaccuracy in a report 

that it isn’t even their product, that if the 20-day clock runs out, 

they are going to post it anyway, even if they have failed to resolve 

it. That is unfair and unnecessary and your draft does a very good 

job on dealing with that. 

Mrs. BONO MACK. Thank you. I just want to finish my last 9 seconds by saying that I believe the database has room for improvement and we can do all of these things. But I also want to go on 

the record that I support the database. I think there is some consternation from the other side that I don’t. But I think it is very 

flawed and we should make sure that it serves both the public and 

make sure that we continue to make ‘‘made in America’’ matter 

again. So with that I am happy to recognize Mr. Butterfield for his 

5 minutes. 

Mr. BUTTERFIELD. Thank you, Madam Chairman. Ms. 

Weintraub, well, you are probably well aware that the existing law 

that we passed a couple of years ago sets clear lines on total lead 

content that becomes increasingly stringent over time. The purpose 

of decreasing the amount of lead allowed in children’s products 

over time was to gradually get these products closer to a total lead 

level that would not result in at least one form of neurological damVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00183 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
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age, and that is the loss of IQ. Some manufacturers, however, have 

been complaining ever since the law went into effect, many of 

whom were at the table when the law was being written, that there 

is no way they can make their products without certain components that exceed the limits and that those components don’t put 

children’s health at risk. 

The discussion draft that we have seen and that you acknowledge that you have seen attempts to give these manufacturers relief from the lead content limits. However, it does so in a very 

broad and far-reaching way that not only lets those who claim they 

need lead for their products to function properly to exceed the limits, but lets anyone who wants to continue using lead to do so as 

long as they are willing to play a game of risk with children’s 

health. 

The de minimis ingestion-based standard in the draft is available 

for any component part so long as it isn’t a small part. And there 

is no consideration of whether lead needs to be in that particular 

component. 

My question to you is to the extent there is bipartisan sentiment 

that Congress should grant manufacturers some form of relief from 

the lead content limits, do you agree or disagree that any such exception must, as a fundamental matter, consider whether that 

product needs to have lead in it to function properly? 

Ms. WEINTRAUB. I agree. 

Mr. BUTTERFIELD. Let me skip over a couple of questions. I will 

stay with you if you will. Tucked away at the very end of the Republican discussion draft is a one-sentence section regarding the effective date of the amendments in the draft. Although that section 

is at the very end and only one sentence long, what this section 

says is actually quite important. As I understand it from my staff, 

what this sentence says is that anyone who is currently in compliance with any part of CPSIA gets a free pass. Would you agree or 

disagree with that and would you elaborate for me, please? 

Ms. WEINTRAUB. I do agree. I think that provision that you are 

referencing is truly retroactive provision of this law. I think the 

term ‘‘retroactivity’’ as it applies to other lead standards I think is 

legally not accurate. But in this case I think this is true retroactivity. The one sentence actually states that this draft will go 

back to the time that the CPSIA was passed in August of 2008. 

Mr. BUTTERFIELD. OK. I want to get to the database in the few 

seconds that I have left and this is a rather long question. This is 

going to be too lengthy for me to complete in the time allotted, but 

would you speak to the database that we rolled out a few weeks 

ago and tell us your conclusions on it? 

Ms. WEINTRAUB. Sure. The consumer complaint database is a 

very important consumer protection. It is so important because consumers have been in the dark about product safety. There is many 

incidents that we know about and obviously others that we couldn’t 

possibly know where consumers were just completely in the dark, 

that manufacturers had information about a safety problem with 

the product. CPSC may or may not have known and consumers 

continued to use the product. They were in the dark. They were 

under a veil of ignorance and weren’t able to make the right 

choices for their families because they just didn’t know about inciVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00184 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
179 

dents that sometimes were pervasive and affected many, many people. 

So what the database seeks to do is equal this playing field a little bit. It still requires CPSC to go to manufacturers outside of the 

database before they can release information about particular products. But it requires a very specific number of fields of information 

that really narrow the information so that information has to be 

very targeted to the type of harm, a description of the product, and 

really provide useful information to consumers. 

And unlike other government databases, it provides a place 

where manufacturers can comment simultaneously. If you go on 

the database today, you will see a consumer filed a comment and 

then in the same page the manufacturer files a comment, which is 

significant. 

Mr. BUTTERFIELD. Thank you. I yield back. 

Mrs. BONO MACK. I thank the gentleman. And the chair now recognizes Mr. Olson for 5 minutes. 

Mr. OLSON. I thank the Chair, and I thank the witnesses for 

your knowledge, for your patience, and your persistence. 

And my first question is going to be for you, Ms. Weintraub. 

What is more dangerous, a product of 10,000 parts per million lead 

that does not leach enough lead to result in a measurable increase 

in a child’s blood lead level, or a product that contains 100 parts 

per million lead that leaches enough lead to result in a measurable 

increase in a child’s blood lead level? 

Ms. WEINTRAUB. I think it depends on a number of scenarios, so 

I am not sure. I could get back to you. 

Mr. OLSON. OK. So you can’t tell me between 10,000 parts per 

million or 100 parts per million? 

Ms. WEINTRAUB. I think, you know, there is many factors that 

go into that sort of analysis. So I would like to review the information and get back to you if I could. 

Mr. OLSON. OK. Thank you. I would appreciate that. Is there a 

mechanism to aid CPSIA to prevent these safe products to be sold 

to children under age 12? 

Ms. WEINTRAUB. I am sorry. Can you repeat that? 

Mr. OLSON. I can, yes, ma’am. Is there a mechanism to aid 

CPSIA to prevent these safe products to be sold for children under 

age 12—safe lead products? 

Ms. WEINTRAUB. Well, I am not sure that I agree with underlying assumption of the question, but products intended for children 12 and under have to meet the current lead standards, as well 

as the other mandatory standards that are relevant to those products. 

Mr. OLSON. OK. Thank you for that answer. A couple more questions. You testified that Congress took over a year in a deliberate 

process to consider the implications of this law. Unfortunately, as 

much as we would like to think we are, we are not immune to 

error. We are not omniscient. I would bet the vast majority, if not 

all the Members of Congress, had no idea we would be essentially 

banning bicycles, jungle gyms, and golf equipment—in a time of a 

child obesity crisis—banning science equipment, like microscopes 

and organic geology sets—again, in a time when students are falling behind in the sciences—or banning musical instruments in a 

180 

time when our students are also falling behind in the arts. Did you 

know this law would ban those products? 

Ms. WEINTRAUB. I think what is important to note is that lead 

is not necessary to be in products. And if it is in fact necessary, 

I think that should be part of any analysis that would give flexibility for any type of exemption, because the important thing to 

focus on from the consumer perspective is that when consumers are 

purchasing a product for their child, a toy, they don’t expect that 

they will be exposing them to risk. And especially when it comes 

to lead, it is impossible for a consumer to identify whether there 

is lead in that product. So the consumer is really relying on the 

manufacturer and also relying upon Congress and the CPSC to 

make choices that will protect consumers. 

Mr. OLSON. And we are doing that, ma’am, with all due respect. 

And one final question. You testified that CPSIA became law as a 

result of ‘‘a period of record numbers of recalls of hazardous products that injured, sickened, or killed children.’’ What I remember 

most are the lead-in-paint recalls. And no one here will argue that 

lead-in-paint restrictions should be loosened. No one. However, the 

most significant problems with this bill relate to lead in substrate. 

Putting aside metal jewelry, again, restrictions for which we do not 

intend to loosen, were there any children injured, sickened, or 

killed by lead in substrate? How many and can you provide verified 

statistics of those injuries? 

Ms. WEINTRAUB. I believe I answered a similar question previously and I will answer the same information that, unfortunately, 

I am sure that there were injuries, there were harms to public 

health, but it is very difficult to document because these harms and 

these injuries occur as neurological impacts to effects of behavior 

and decreases in IQ. So it is very hard to document. But to say that 

there has been no harm from lead in substrate I think is not accurate. 

Mr. OLSON. I appreciate those answers again. I would submit to 

you that it is important we know those answers before we take action. We should be able to document it. I yield back my time. 

Mrs. BONO MACK. Would the gentleman yield, actually, for your 

final minutes? I would like to ask a follow-up question if might to 

Mr. Locker and take the final minute. So you state the regulations 

have departed from sensible risk-based decision-making at the 

Commission and the law does not grant them the ability to make 

commonsense decisions—there are those words ‘‘common sense’’ 

again—but commonsense decisions that has resulted in banning 

safe products. How do you know the products are safe? 

Mr. LOCKER. That comment related to the ability of the Commission to grant exceptions based upon data that was available to 

them. I mean the Commission is not going to act to grant exceptions if there was exposure—as Mr. Howell testified under the Federal Hazardous Substances Act—to any hazardous substance. So in 

that situation the problem is not that the Commission can’t make 

that determination. The problem has been that the language in the 

statute, which you now seek to correct, provides the Commission 

cannot make the decision if there is any lead that comes from the 

product. And that creates a Catch-22. So what we are saying is 

that when the Commission can determine that there is no extractVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00186 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
181 

able lead from the product that presents a hazard, the examples of 

the ATV fender, the bicycle fender, brass latches on safety devices 

maybe in car seats and strollers, when there is no actual human 

health risk, they should be able to say that these are exempt or excluded products. So far they can’t and the way, you know, many 

of our clients know they are safe is they do do testing. They do do 

extraction testing. They do do formulations. They avoid hazardous 

substances where possible because under the Federal Hazardous 

Substances Act for children’s products, they have to. 

Mrs. BONO MACK. Thank you. All right. The balance of the time 

has expired. I will recognize Ms. Schakowsky for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Madam Chairman. I wanted to 

make it clear particularly to Mr. Marshall that Mr. Waxman, who 

at the time in April of 2010, who was chairman of the full committee, released a discussion draft that gave targeted relief to industry while maintaining important protections, which I am sure 

you agree are important for the health and safety of children 

brought about by this legislation. I was very involved in it. At the 

time Mr. Rush wasn’t here for health reasons and I helped negotiate the bill and I worked with Chairman Barton and afterwards, 

you know, things happened. And you see some problems and so Mr. 

Waxman introduced this draft that would make some changes. 

And at the time the draft was supported by the National Association of Manufacturers, the Retail Industry Leaders Association, the 

Motorcycle Industry Council, the Handmade Toy Alliance, and 

Goodwill Industries. And Chairman Tenenbaum wrote that the 

Waxman discussion draft would provide CPSC with the flexibility 

needed to implement the law. And then at that time the Republican minority refused to support the legislation and it didn’t move 

forward in the 111th Congress. So I want to make the point that 

we understand that there are some things that need to be tweaked. 

We want to do it but we don’t want to blow up the bill. 

This has been an issue so dear to my heart, and I did want to 

ask Ms. Weintraub an important question. The draft bill exempts 

most children’s products, including durable nursery goods—which I 

have been working on for many sessions—from third-party testing 

but then says that cribs will be tested. However, the current language remains ambiguous on cribs. Can you talk about this ambiguity? If the bill were to become law, could parents be assured that 

the crib they are using is safe? 

Ms. WEINTRAUB. Sure. Yes, I agree that there is ambiguity. On 

the one hand, in the list of products that clarifies that there is 

third-party testing, cribs and non-full-size cribs are included, but 

yet there is a reference to a C.F.R. that seems to have moved. So 

it is a little bit confusing. But then further confusing there is another provision later on—I believe it is in the third-party section— 

which says that this would stay all standards having to do with 

third-party testing that were passed since some date in 2009. So 

there is definitely confusion about whether cribs would be required 

to be tested to the new robust crib standard. 

Ms. SCHAKOWSKY. There is another part. The bill would eliminate the requirement that daycares and hotels in certain states use 

newer, safer cribs. And I have subsequently become friends with 

Linda Ginzel, mother of Danny Keysar, whose son died a really 

182 

tragic accident. And I had in my hand the letter from her that I 

wanted to read just one paragraph. 

‘‘We founded Kids In Danger in 1998 after the death of our beloved son Danny in a poorly-designed inadequately-tested and recalled portable crib. Danny was 16 months old when the top rails 

of the Playskool Travel-Lite crib he slept in at his licensed 

childcare home collapsed around his neck, strangling him. He was 

the 12th child to die in cribs of this design.’’ 

So, you know, is it necessary to eliminate that requirement? 

Ms. WEINTRAUB. No, it is incredibly problematic. In terms of 

what the draft bill does for childcare facilities, it seems to be allowing all fixed-side cribs and the new robust crib standard does much 

more than eliminate drop-sides. It adds many important provisions 

that ensure the durability of the crib so that cribs can actually 

wear, reflecting how children use cribs has to do with slat integrity, 

has to do with mattress support, and the integrity of the hardware. 

So by just saying that all fixed-side cribs can be used in daycares, 

it unfortunately isn’t capturing the universe of those cribs that we 

have reason to be concerned about. 

Ms. SCHAKOWSKY. Let me just say in the seconds I have left, 

Madam Chairman, that I know that you care very much about the 

safety issues and just I for one would love to be able to work with 

you to address some of the problems that we are hearing and to 

work to come up with some kind of a compromise. 

Mrs. BONO MACK. The gentlelady yields. I thank her very much 

for the spirit and I look forward to working with you and I acknowledge your expertise and your passion over the years in this 

and I can say, I think, just in listening to these past few seconds, 

I think there is some misinterpretation of this. But this is a draft 

discussion. Sometimes I feel it is almost like a Mad Libs when we 

were kids. There are blanks in here for this very reason. And I 

would never dream of doing this without working with you. So I 

thank you very much for your comment. And now the chair recognizes Mr. McKinley for his 5 minutes. 

Mr. MCKINLEY. Thank you, Madam Chairman. Ms. Weintraub, I 

have got a couple questions for you. Apparently, the chairman and 

others on the committee, they asked you about substantiating the 

claims that children have been ‘‘injured, sickened, or killed’’ by toys 

with lead in its substrate. And you have responded that these injuries are, by and large, silent and undocumented. How do we know 

they exist if they are silent and undocumented? And could you provide us some documentation that supports this, how many people 

have and with names or circumstances? 

Ms. WEINTRAUB. We know that lead exposure to children causes 

a range of neurological—— 

Mr. MCKINLEY. I am looking for some specifics because you made 

the statement. That is why I am just trying to—— 

Ms. WEINTRAUB. Yes, so first, the—— 

Mr. MCKINLEY. I don’t want the generalities. That is what happens around here. I am new at this game and everyone likes to 

talk in the abstract. I am an engineer. I want to deal in details. 

So when you make that statement, I want you to prove it. 

Ms. WEINTRAUB. Sure. Well, first, the statement that I made applied to a full range of products. And when I talked about the injuVerDate Aug 31 2005 14:43 Aug 23, 2012 Jkt 037690 PO 00000 Frm 00188 Fmt 6633 Sfmt 6633 F:\112-03~2\112-34~1 WAYNE
183 

ries and deaths, I was also talking about magnet-toy deaths, as 

well as injuries from other toxic chemicals. 

Mr. MCKINLEY. Can you document it? 

Ms. WEINTRAUB. It is very difficult to document if a child—— 

Mr. MCKINLEY. Well, then you shouldn’t be making that statement. 

Ms. WEINTRAUB. I can provide you with scientific studies that 

will—— 

Mr. MCKINLEY. Let me go on my second question for you. Last 

week we had at the request, perhaps, or insistence of the administration and the Congressman from California, we included language in a broadband oversight bill to take care of the false and 

erroneous claims against people for waste, fraud, abuse, and precisely to protect these companies’ reputations. We used Congressman Waxman’s own language that he had inserted in a radio spectrum bill that he had produced last year. So we were using specifics. And then last year there was a data security bill that the 

Republicans were trying to put in to a consumers’ right bill to protect access to databases, protect it for security for people’s reputations. I have got a company in my area that has cried out on this. 

He has already had legal advice that is suggesting that he could 

be accused anonymously by people using false names put up there 

against him and he won’t be able to clear his company name. 

Shouldn’t companies who manufacture consumer products not be 

provided the same ability to protect their reputations from erroneous or false claims as the companies who receive broadband like 

we just did? 

Ms. WEINTRAUB. I think there are very similar protection that is 

not identical. But first of all, on the consumer complaint database, 

complaints cannot be anonymous. 

Mr. MCKINLEY. Would you work with us on that? Is that something that you think we should be doing? Shouldn’t we be protecting everyone and not just certain people? 

Ms. WEINTRAUB. I think there are adequate protections already. 

And already in order for a claim to be filed and posted on the database, a consumer needs to verify that what they are saying is true. 

Mr. MCKINLEY. Their counsel doesn’t agree with you on that. 

That is why we need to do this language. We need to have something in there to be able to take care of that because we are looking 

for something that is consistent with it. But the last question I 

have—— 

Ms. WEINTRAUB. Well, I am happy to take a look at—— 

Mr. MCKINLEY [continuing]. Is, Mr. Marshall, if I could—back to 

you. You know, one of the things we were looking for in this hearing were some data because there are a lot of blanks. And you 

heard the chairman talk about it. 

And on page 11 it says the term ‘‘produced in small quantities 

means not more than ’blank’ number of units of the same product.’’ 

What would you recommend is a number that we should use in 

that? 

Mr. MARSHALL. I think that could be a range of numbers. I think 

on an outside I think 10,000 units per year would be the highest 

we would like to see. 

Mr. MCKINLEY. One thousand? 

184 

Mr. MARSHALL. Ten thousand is the highest. 

Mr. MCKINLEY. Ten thousand? 

Mr. MARSHALL. Yes. But it has to do with—— 

Mr. MCKINLEY. And that maybe I am dealing more with your 

company, what you all produce. 

Mr. MARSHALL. Well, I own a toy store and my wife and I, we 

buy from small-batch manufacturers. 

Mr. MCKINLEY. OK. 

Mr. MARSHALL. But that is a number that we are willing to discuss. 

Mr. MCKINLEY. Ten thousand. 

Mr. MARSHALL. As a high number. That would be the highest 

that we would want to see that number. It could be a range of 

numbers below that as well. 

Mr. MCKINLEY. OK. I yield back my time. 

Mrs. BONO MACK. I thank the gentleman. And seeing no other 

members present, I believe that we are now ready to wrap it up. 

I ask unanimous consent that these 16 letters be made a part of 

the record, all of which have been vetted previously by the minority. Without objection. 

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Mrs. BONO MACK. All right. And as we wrap things up again, I 

want to thank our panelists for your patience today, your indulgence certainly through those long series of votes. I would like to 

thank you for your commitment to this very important issue. I look 

forward to hearing your thoughts further as we move this legislation forward. 

But I would like to be perfectly clear. Our only goal is to correct 

the unintended consequences of CPSIA. This draft does not undermine the current law. Again, we are trying to fix the problems that 

we know of in CPSIA, hopefully get some common sense back into 

this thing. We are simply working to make it better for all Americans and to provide the Consumer Product Safety Commission with 

the flexibility that it is asking for. 

As the mother of two children and three stepchildren, I am completely committed—like everybody in this room is—to the safety of 

children everywhere. So I hope we can put these political differences aside and pass a bill that will make them prouder and 

safer. The ranking member and I continue to have discussions 

about our hope and willingness to work together to get a good bill 

through Congress that not only we can be proud of but the American people can as well. 

So I remind members they have 10 business days to submit their 

questions for the record and I ask the witnesses to please respond 

to any questions they receive. And the hearing is now adjourned. 

Thank you again. 

[Whereupon, at 3:55 p.m., the subcommittee was adjourned.] 

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