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H.R. lll, THE CONSUMER PRODUCT SAFETY 

ENHANCEMENT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, TRADE, 

AND CONSUMER PROTECTION 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 29, 2010 

Serial No. 111–116 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


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COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California, Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

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 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 


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SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION

BOBBY L. RUSH, Illinois 

Chairman 

JANICE D. SCHAKOWSKY, Illinois 

Vice Chair 

JOHN SARBANES, Maryland 

BETTY SUTTON, Ohio 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BART STUPAK, Michigan 

GENE GREEN, Texas 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

ZACHARY T. SPACE, Ohio 

BRUCE L. BRALEY, Iowa 

DIANA DEGETTE, Colorado 

JOHN D. DINGELL, Michigan (ex officio) 

CLIFF STEARNS, Florida 

Ranking Member 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

MICHAEL C. BURGESS, Texas 


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C O N T E N T S 

Page 

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

opening statement ................................................................................................ 1 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 2 

Prepared statement .......................................................................................... 4 

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

California, opening statement ............................................................................. 7 

Hon. Lee Terry, a Representative in Congress from the State of Nebraska, 

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

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

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

Hon. Robert E. Latta, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 9 

Prepared statement .......................................................................................... 11 

Hon. Betty Sutton, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 13 

Hon. Joseph R. Pitts, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 13 

Prepared statement .......................................................................................... 15 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan ......................................................................................................................... 17

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

opening statement ................................................................................................ 18 

Prepared statement .......................................................................................... 20 

Hon. Bruce L. Braley, a Representative in Congress from the State of Iowa, 

opening statement ................................................................................................ 23 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 23 

Hon. Steve Scalise, a Representative in Congress from the State of Louisiana 24 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

prepared statement .............................................................................................. 115 

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

prepared statement .............................................................................................. 117 

WITNESSES

Rosario Palmieri, Vice President, Infrastructure, Legal and Regulatory Policy, 

National Association of Manufacturers .............................................................. 26 

Prepared statement .......................................................................................... 28 

Paul Vitrano, General Counsel, Motorcycle Industry Council ............................. 36 

Prepared statement .......................................................................................... 38 

Jim Gibbons, President and CEO, Goodwill Industries International ................ 41 

Prepared statement .......................................................................................... 43 

Dan Marshall, Handmade Toy Alliance ................................................................. 49 

Prepared statement .......................................................................................... 51 

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

Federation of America ......................................................................................... 71 

Prepared statement .......................................................................................... 73 

Steve Levy, American Apparel and Footwear Association ................................... 78 

Prepared statement .......................................................................................... 80 

Richard Woldenberg, Chairman, Learning Resources, Inc. ................................. 84 

Prepared statement .......................................................................................... 86 


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VI 

SUBMITTED MATERIALS FOR THE RECORD

Letter of April 27, 2010, from EuroSource LLC to the Subcommittee, submitted by Mr. Pitts .............................................................................................. 119 

List of businesses closed due to CPSIA, submitted by Mr. Radanovich ............. 121 

Statement of Hon. Denny Rehberg, a Representative in Congress from the 

State of Montana .................................................................................................. 123 


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H.R. ————, THE CONSUMER PRODUCT 

SAFETY ENHANCEMENT ACT 

THURSDAY, APRIL 29, 2010 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

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

2322 of the Rayburn House Office Building, Hon. Bobby L. Rush 

[Chairman of the Subcommittee] presiding. 

Members present: Representatives Rush, Schakowsky, Sutton, 

Stupak, Gonzalez, Matheson, Braley, Dingell, Waxman (ex officio), 

Whitfield, Radanovich, Pitts, Terry, Myrick, Gingrey, Scalise, Latta 

and Barton. 

Staff present: Phil Barnett, Staff Director, Bruce Wolpe, Senior 

Advisor; Michelle Ash, Chief Counsel; Robin Appleberry, Counsel; 

Felipe Mendoza, Counsel; Timothy Robinson, Counsel; Lindsay 

Vidal, Press Secretary; Karen Lightfoot, Communications Director; 

Will Cusey, Special Assistant; Daniel Hekier, Intern; Brian 

McCullough, Minority Senior Professional Staff; Will Carty, Minority Professional Staff; Shannon Weinberg, Minority Counsel; Jerry 

Couri, Minority Professional Staff; Samuel Costello, Minority Legislative Analyst; and Robert Frisbee, Minority FTC Detailee. 

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

Mr. RUSH. The subcommittee will now come to order. 

The purpose of today’s subcommittee hearing is on the Consumer 

Product Safety Commission Enhancement Act, and with that said, 

the Chair wants to welcome all the witnesses and all those who are 

participating here in the audience and I certainly want to apologize 

to those who are forced to stand. And with that said, the Chair will 

recognize himself for 5 minutes for the purposes of an opening 

statement. 

I want to thank again all the witnesses for taking the time out 

to offer the Congress your views on the legislation that we are 

shaping. Known as the Consumer Product Safety Enhancement 

Act, the draft law would give the Consumer Product Safety Commission new regulatory flexibility to exempt certain products, components and materials from lead limits contained in the Consumer 

Product Safety Improvement Act of 2008. The draft text affords relief for thrift stores and other retailers through an exclusion for 

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tends relief to small manufacturers and other businesses by allowing the Commission to approve alternative test requirements for 

certain small batch manufacturers. And it would require the Consumer Product Safety Commission to provide outreach and assistance to small businesses and restrict the Commissioner from applying the 2008 laws to inaccessible component parts. 

The Chair really wants to thank the staff, both the majority and 

the minority staff. Staff had worked hard, tirelessly with affected 

stakeholders to understand better their business model, supply 

chains and special needs. Staff, your efforts have been invaluable 

in enabling us to put together the draft that we will be working 

from today and hearing testimony on. 

With that, I look forward to hearing from all the witnesses, and 

I yield back the balance of my time and recognize the ranking 

member, Mr. Whitfield, for 5 minutes. 

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Mr. WHITFIELD. Well, Chairman Rush, thank you very much, and 

I certainly want to thank all the witnesses for being here today to 

help us make the best decision that we can relating to this legislation. 

I am delighted that we are having this hearing because this legislation is so important and we know from passing the Consumer 

Product Safety Enhancement Act last year that there have been a 

lot of problems with this legislation. It is important that we try to 

balance the protection of children versus also allowing small businesses and others to stay in business as long as they are not endangering the lives of our children. 

Many of us have received letters and e-mails from constituents 

who have been affected in a very bad way regarding this legislation, and there was a young gentleman named Ray Curren that 

lives in my district and he sent an e-mail to me, and it was totally 

unsolicited, but he says, ‘‘The Consumer Product Safety Enhancement Act has just about destroyed me and my business. As you 

know, I hand make small lots of historic and folk art toys. These 

are the types of things that your grandfather and great-grandfather made for their kids and grandkids. I make anywhere from 

a couple of hundred to 300 or 400 a year. I can no longer make 

these items. The cost of testing raises the cost of the items beyond 

the reach of most people. I have to give up my craft and my wholesale shows, which were the majority of my income. I always use 

American-made paint, stains and finishes, which are lead-free, and 

natural finishes such as beeswax and mineral spirits, which are 

food-grade finishes. Now these must be tested and I cannot afford 

it.’’ We have had lots of e-mails and letters like that, and the reason that I am particularly interested in today’s hearing is that 

there are so many issues like the cost of the decisional memos, like 

the lack of exemption authority for the consumer protection agency, 

and hopefully you can provide us additional information about the 

functional purpose petition and the absorption exclusion that is in 

the current law, and whether or not we should be looking at the 


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economic impact of this legislation on businesses, particularly at 

this time when we are focused on trying to create jobs. 

There is no question that we need to take some action, and we 

do need to make sure that children are not exposed to unusually 

large amounts of lead, and I am convinced that we can do so in a 

balanced way that will protect children and at the same time allow 

small businessmen and women who are making products that are 

not a danger to children to stay in business. So I really look forward to this hearing and I look forward to working with Chairman 

Waxman and Chairman Rush and the other members of the committee as we take up this legislation and try to make it even better, and I yield back the balance of my time. 

[The prepared statement of Mr. Whitfield follows:] 


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Statement of the Honorable Ed Whitfield 

Ranking Member, Subcommittee on 

Commerce, Trade and Consumer Protection. 

Hearing on Committee Print of The Consumer Product Safety Enhancement Act 

April 29, 2010 

• Thank You Chairman Rush. I am pleased we are moving through 

regular order on the draft legislation. It is important to provide all our 

Members - including new Members to the Subcommittee - the 

opportunity to hear from stakeholders today before we consider the 

legislation. 

• CPSIA (pronounced sip-sea-ah) became Public Law in August 2008 

with bipartisan support in an effort to improve product safety for 

children, particularly toys. But we began to hear of problems soon 

after as the effective dates for the new lead limits approached. 

• Mere months after the signing ceremony it became evident that the 

reach of CPSIA was far greater than any of us imagined or intended. 

It has caused major problems for thousands of individuals, businesses, 

and families. Although the thousands of calls and emails seemed to 

have died down, it's not because all the problems have gone away. 

• It was not possible for many manufacturers to comply with the limits 

because of the unique nature oftheir product - such as bicycles and 

musical instrument that require brass. 

• Others manufacturers, particularly the thousands of very small 

businesses that have never had a problem with their products, could 

not afford the testing and expect to stay in business. 

• Thousands of one-person crafting businesses operate from their home 

and often make less than $100 per week. But when it is a supplement 

to their income it can make a big difference in their lives. 

• Most of us are aware of the types of products that have voiced the 

need for exceptions: ball point pens, brass instruments, certain sports 
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equipment, bicycles, books, and youth motorcycles and ATV's, 

among others. 

• While some products and materials have been granted relief by the 

CPSC, many others are operating under a stay of enforcement and 

need a permanent fix or their products will never make it to market 

when the stay of enforcement expires. 

• And recent developments have provided additional uncertainty to 

manufacturers with the recently released interpretation of the 

definition of a children's product. 

o We intended to affect only items meant for and marketed 

primarily to children age 12 and under. However, this is 

less clear now because the proposed interpretive rule 

potentially reclassifies any product that can be "misused" 

as a children's product. Manufacturers seem to be facing 

a moving scale with little certainty. 

• I appreciate that we are here to address these issues, Mr. Chairman. 

We need a good bipartisan bill we can all agree fixes these major 

problems. The draft we are discussing has made progress to fix certain 

problems, including the retroactive application ofthe lead limits, and I 

am sure we can move closer to agreement. 

• I am hopeful we can do more to make the focus of the law a priority to 

stop products that pose a danger to children from entering commerce 

rather than focus on complicated bureaucratic compliance regimes. 

• The current one-size-fits-all approach we chose is simply not working 

well. Products have different characteristics that are used in many 

different ways by children of different ages. Treating infant products 

with the same risk profile as a bicycle or pre-teen garment will 

continue to wreak havoc on many businesses that have no evidence of 

causing elevated blood-lead levels in children. 

• In fact, the New York Times had an article last week stating that 

nationwide, the number of children with elevated blood lead levels 

has dropped from 434,000 in the year 2000 to an estimated 120,000 in 
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2006. The story further reported the leading sources continue to be 

lead based paint in older homes and soil contamination. 

oWe all agree we should continue to eliminate lead 

poisoning. I think we need to make sure our efforts are 

concentrated on the likely sources of lead rather than 

causing collateral damage by forcing business with safe 

products to prove they are safe. 

• We also need to make this law work for the CPSC. The Commission 

has been devoting nearly all it resources to this law and it's 

implementing regulations for nearly 20 months with little relief in 

sight. 

o The unending requirements of this law clearly affect the 

Commission's ability to be an effective regulator of the 

tens of thousands of other products that are not 

"children's products". 

• I look forward to discussing these issues and working with all the 

Members to fix these problems. 
7 

Mr. RUSH. The Chair now recognizes the chairman of the full 

committee, the gentleman from California, Mr. Waxman, for 5 minutes. 

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

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

Over 4 years ago, we were getting reports about children who 

were dying of lead poisoning. One boy in particular, Darnell Brown, 

swallowed a metal charm that came with a pair of kids’ shoes. A 

year later, two children became comatose and had to be hospitalized because of a children’s toy that turned out to have a toxic drug 

in it. That same year, millions of cribs were recalled for a simple 

defect that had caused multiple infant deaths. The bottom line was 

clear: Our system for keeping children safe was broken. In fact, the 

entire agency charged with policing these products, the Consumer 

Product Safety Commission, was broken and in need of comprehensive reform. 

In 2007 and 2008, Congress reviewed the reasons for these terrible tragedies and crafted a response. In August of 2008, after 

months of hearings, markets and an extended House-Senate conference, the Consumer Product Safety Improvement Act was enacted on a broad bipartisan basis. That law was a victory for consumers and contained provisions that will enable the CPSC to protect children for decades to come. The provisions were essential not 

only to protecting children but also to restoring consumer confidence in the toy industry itself. 

Since enactment, the Commission has made strides in carrying 

out the law but some areas of implementation have not been 

smooth. We have heard from a number of stakeholders that certain 

provisions of the law need adjustment. We have taken these concerns seriously, and over the past year met repeatedly with stakeholders affected by the new law to understand their concerns and 

to craft an appropriate legislative response. These stakeholders 

have included small and large manufacturers, small and large retailers, thrift stores and other used-good sellers, trade associations, 

consumer advocates and the CPSC itself. 

The draft text that we are here to discuss today is the result of 

this process. It is not a perfect solution and it does not represent 

complete fulfillment of anyone’s wish list. As our witnesses will testify, however, it is a fair and reasoned measure that would grant 

significant and meaningful relief to many stakeholders while still 

protecting our children from dangerous products. 

The text of this draft is not set in stone, and we look forward to 

any and all constructive input that will be offered today but the 

draft does reflect the hard work of months of negotiation with 

stakeholders and a delicately struck balance between the need for 

targeted changes to the law and the need to preserve the most important public health accomplishments of that law. 

It also reflects a compromise both industry stakeholders and consumer and public health groups are willing to support. I think this 

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mony will go a long way in making clear how important these 

changes are and how important it is that they be narrowly crafted. 

I hope that my colleagues will review the draft carefully and consider supporting its passage through this committee. Toy safety is 

not now and has never been a partisan issue and it is my sincere 

hope that this committee can unite in supporting fair, meaningful 

relief for businesses while still protecting our children. 

Thank you, Mr. Chairman. 

Mr. RUSH. The Chair wants to thank the full committee chairman. 

The Chair now recognizes the gentleman from Nebraska, Mr. 

Terry, for 2 minutes. 

OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA 

Mr. TERRY. Thank you. 

After looking over this enhancement bill, I remain concerned that 

we are not adequately addressing any of the problems associated 

with the CPSIA that have been expressed to me since its enactment. Don’t get me wrong, the bill does include some good things 

like making the 100 PPM lead substrate standard prospective 

when it becomes effective August 14, 2011. As we know, under the 

existing law, that standard would be retroactive. I am glad to see 

that the bill would exclude from the phthalate standard inaccessible component parts of children’s toys and childcare articles. Currently, the law excludes inaccessible component parts from the lead 

substrate standard but not from the phthalate standards. 

However, I also have some serious concerns about the CPSC’s 

ability to evaluate risk and reasonableness. It is my understanding 

that this bill was ostensibly intended to give the CPSC greater 

flexibility in granting exceptions in situations where it is impractical to comply and there is no significant risk of injury. As we 

know, consumer product safety commissioners are on record requesting such flexibility. Section 2 of this enhancement bill attempts to allow the CPSC to grant exceptions but the hurdles are 

impossibly high. As drafted, in order to grant an exception, the 

CPSC would have to find, one, that it is not practical or feasible 

to manufacture the components without lead, two, that the component is not likely to be placed in the mouth, taking into account 

foreseeable use and abuse, and three, that there will be no reasonable measurable adverse effect on public health or safety. The 

CPSIA currently permits the CPSC to grant exceptions if it finds, 

one, that it won’t result in any absorption of lead in the human 

body, and two, that there won’t be any other adverse impact on 

health or safety. I don’t believe that there is a material difference 

between no measurable adverse effect and won’t result in any absorption. Both are a zero-tolerance threshold. Plus when coupled 

with not likely to be placed in the mouth, taking into account feasibility use and abuse, the bill does not give the CPSC the flexibility 

it needs to grant reasonable exceptions, so I would like to see a 

threshold that permits the CPSC to evaluate risk and reasonableness. 

I thank the chairman for holding this hearing, and I don’t have 

any more time to yield back. 


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Mr. RUSH. The Chair recognizes the gentlelady from Illinois, Ms. 

Schakowsky, the vice chair of the subcommittee, for 2 minutes. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 

The Consumer Product Safety Improvement Act was a landmark 

piece of consumer protection legislation that has already improved 

the safety of products on the shelves, particularly those made for 

children. The new law is the most significant reform of the Consumer Product Safety Commission and its responsibilities in decades. It authorized additional resources for CPSC so that they will 

finally have the tools and personnel to protect our children from 

dangerous toys and products. The safety net was broken and we 

fixed it. Implementation of the new law, however, was not without 

a few bumps in the road and the industries represented by our witnesses have requested some changes to the CPSIA. 

I want to commend Chairman Waxman, Chairman Rush and 

their staffs for crafting a bill that would make the sought-after 

fixes without undermining the important public health mandates 

that we included in the original legislation. For example, the CPSC 

will be allowed to exclude specific products or materials from the 

lead limits but only if such an exemption will have ‘‘no measurable 

adverse effect on public health or safety.’’ 

I am also pleased that the bill does not allow changes to provisions I authored that require safety testing for durable infant or 

toddler products for which the CPSIA created strong mandatory 

standards and that can cause considerable harm, as we have seen 

most recently with a high number of crib recalls. I want to use that 

point to reiterate how important the CPSIA was to overhauling a 

system that wasn’t protecting our families and how important it is 

to maintain the strength of the law. 

I yield back the balance of my time. 

Mr. RUSH. The Chair now recognizes the gentleman from Ohio, 

Mr. Latta, for 2 minutes. 

OPENING STATEMENT OF HON. ROBERT E. LATTA, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. LATTA. Thank you, Mr. Chairman, Ranking Member Whitfield. Thank you for holding this important hearing today to discuss the Consumer Product Safety Enhancement Act. 

While this hearing is on revising previously passed legislation, I 

have heard from many of my small businesses, manufacturers, employers and employees who feel that many of the suggested 

changes will do more harm than good. It is very important to protect our children and maintain strong safety regulations. However, 

we must not craft legislation that creates more regulatory burdens. 

I am concerned that there is the strong potential for direct negative 

effects such as job loss, budgetary constraints and business closures 

in an already difficult economic environment. 

At a time of economic hardship and an average unemployment 

rate in my Congressional district of over 13 percent unemployment, 

and in the State of Ohio of 11 percent, we cannot pass legislation 


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that will further hinder business. According to the National Association of Manufacturers, 2 years ago I had the ninth largest manufacturing district in Congress, and today my district stands at 

20th. Currently, I represent the largest manufacturing and the 

largest agricultural district in the State, and I have concerns that 

any legislation that forces more bureaucratic mandates on businesses further hinders and hampers economic growth. 

Mr. Chairman, I appreciate you holding a hearing regarding a 

legislation fix on this issue. I look forward to working with you and 

the ranking member on this legislation, and I yield back. 

[The prepared statement of Mr. Latta follows:] 


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Robert E. Latta 

Opening Statement 

House Energy and Commerce Committee 

Subcommittee on Commerce; Trade, and Consumer 

Protection 

Hearing on H.R._ the Consumer Product Safety 

Enhancement Act 

Chairman Rush and Ranking Member Whitfield: 

Thank you for holding this important hearing today to 

discuss the Consumer Product Safety Enhancement Act of 

2010. While this hearing is on revising previously passed 

legislation, I have heard from several of my small businesses, 

manufacturers and employees who feel that these suggested 

changes will do more harm than good. It is very important to 

protect our children and maintain strong safety regulations, 

however this legislation seems to create more regulatory 

burden. I am concerned that there is the strong potential for 

direct negative effects such as job loss, budgetary constraints 

and business closures in an already difficult economic 

environment. 

With that in mind, the Administration submitted its 

Fiscal Year 2011 Budget proposal with a record breaking cost 

of $3.8 trillion dollars. This budget proposal includes a $2 

trillion dollar tax increase over the next ten years and projected 

record deficits. This proposal will double our nation's debt in 

five years and triple it in ten years from FY 2008 levels. The 

Congressional Budget Office has stated that under current 

spending levels, by 2020, American taxpayers will be paying 

$2 billion dollars per day in interest alone on the national debt. 
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It also estimates that the debt will be $20 trillion by that year. 

Our nation's economic future requires that this Administration 

exercise serious fiscal restraint and stop excessive spending. 

In a time of economic hardship and an average 

unemployment rate in my Congressional District over 13.4 

percent, we should not pass legislation that will further hinder 

business. According to the National Association of 

Manufacturers, two years ago I had the 9th largest 

manufacturing district in Congress, and today my district 

stands as the 20th largest in Congress. Currently, I represent 

the largest manufacturing and the largest agriculture district in 

the state of Ohio I have serious concerns that this legislation 

will force more bureaucratic mandates on businesses, further 

hindering economic growth. 

Mr. Chairman, I appreciate you holding a hearing 

regarding a legislative fix on this issue, and I look forward to 

working with you and the Ranking Member on this legislation. 

With that Mr. Chairman: I yield back. 
13 

Mr. RUSH. The Chair now recognizes the gentlelady from Ohio, 

Ms. Sutton, for 2 minutes. 

OPENING STATEMENT OF HON. BETTY SUTTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Ms. SUTTON. Thank you, Mr. Chairman. 

Consumer product safety is not an area we can afford to ignore. 

In the last Congress, I was proud when we passed on a bipartisan 

basis the Consumer Product Safety Improvement Act. For far too 

long, we read story upon story about dangerous toys. The Consumer Product Safety Improvement Act has strengthened the 

CPSC and has begun to ensure American families are protected 

from dangerous toys and products. 

Children must be protected from dangerous levels of lead. Toys 

and children’s products should be safe before they reach the store 

shelves. Recalling a product after a child is poisoned, or even 

worse, killed, is far too little, far too late. 

Now, I understand that there are some products that have inaccessible components that include lead such as recreational vehicles, 

and we must use common sense as we make our policies to effectively work to protect our children and consumers. The Consumer 

Product Safety Enhancement Act will provide the flexibility for the 

Commission to address such products and utilize common sense. 

Parents do not want their children exposed to lead. 

As imports continue to grow, and we should note that 80 percent 

of all toys sold in the United States are imported from China alone, 

we have seen some manufacturers show a remarkable failure to adhere to basic safety standards. It is a national shame and embarrassment when companies and importers pay more attention to 

their costs than our safety and the safety of our children and families. That is why I introduced the Foreign Manufacturers Legal Accountability Act to protect American consumers and businesses 

from defective products manufactured abroad. I look forward to 

taking that up in this committee. 

The American people deserve and demand that the products they 

are sold are safe and the American people expect that we make 

necessary improvements and clarifications to legislation to achieve 

our goals, in this case, our goal to protect children from defective 

products and lead. 

Thank you, and yield back. 

Mr. RUSH. The Chair now recognizes the gentleman from Pennsylvania, Mr. Pitts, for 2 minutes. 

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr. PITTS. Thank you, Mr. Chairman. Thank you for holding this 

hearing on the committee print of the Consumer Product Safety 

Enhancement Act. 

I think we all agree that protecting consumers, especially children, from unsafe products is a worthy goal of government regulation. However, the implementation of the Consumer Product Safety 

Improvement Act has given many cause for concern. We have observed a number of unforeseen and negative consequences arise 


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that are now putting undue pressure on businesses and manufacturers here in the United States and throughout the world. 

I received countless e-mails, phone calls and letters from businesses in my district and across the United States expressing the 

difficult and damaging effects this law is having on them. While 

this committee print may address some of the issues that have 

been brought to my attention, the language is still vague and 

issues are still left unaddressed. The bill needs to be improved. I 

am still greatly concerned that small businesses in particular will 

not receive the relief they deserve. 

Mr. Chairman, I ask unanimous consent to enter into the record 

a letter I received from my constituent, Randy Hertzler, who is 

here today, which expresses his concerns about the inconsistencies 

between the CPSIA and EN71, the European standard. He asserts 

the committee print before us today may be helpful but the wording is ambiguous and does not give full assurance that his concerns 

and that of many others will be satisfied. 

I do have grandchildren, and I want to be sure their toys are 

safe, but we need to do this in a way that is realistic, clear and 

fair. 

I look forward to hearing from our witnesses today, and I appreciate all of them before using, and I ask unanimous consent to 

enter into the record the letter. 

[The prepared statement of Mr. Pitts follows:] 


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Opening Statement for Commerce, Trade, and Consumer 

Protection Subcommittee Hearing: 

April 29, 2010 

HR __ , the Consumer Product Safety Enhancement Act 

• Mr. Chainnan, thank you for holding this hearing on the committee print of 

the Consumer Product Safety Enhancement Act. 

• I think we all agree that protecting consumers-especially children-from 

unsafe products is a worthy goal of government regulation. 

• However, the implementation of the Consumer Product Safety Improvement 

Act has given many cause for concern. 

• We have observed a number of unforeseen and negative consequences arise 

that are now putting undue pressure on businesses and manufacturers here in 

the United States and throughout the world. 

• I have received countless emails, phone calls, and letters from businesses in 

my district and across the United States expressing the difficult and 

damaging effects this law is having on them. 

• While this committee print may address some of the issues that have been 

brought to my attention, the language is still vague and issues are still left 

unaddressed. Overall, I do not believe it is good enough. 

• I'm still greatly concerned that small businesses, in particular, will not 

receive the relief they deserve. 

• Mr. Chairman, I ask unanimous consent to enter into the record a letter I 

received from my constituent Randy Hertzler, who is here today, which 

expresses his concerns about the inconsistencies between the CPSIA and 

EN71, the European standard. 

• He asserts the committee print before us today may be helpful, but the 

wording is ambiguous and does not give full assurance that his concerns and 

that of many others will be satisfied. 
16 


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• I have grandchildren, and I want to be sure their toys are safe. But we need 

to do this in a way that is realistic, clear, and fair. 

• I look forward to hearing from our witnesses today, and I appreciate them 

appearing before us. 

• I yield back. 
17 

Mr. RUSH. Hearing no objections, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. RUSH. The Chair now recognizes the chairman emeritus of 

the full committee, my friend from Michigan, Mr. Dingell, for 5 

minutes. 

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. DINGELL. Mr. Chairman, I thank you, and I commend you 

for holding today’s hearing. It is a very important matter, and I 

think this will ensure that the committee’s work to ensure a sound 

and practicable regulatory system for consumer products proceeds 

according to the regular order. 

As an author of the original Product Safety Act back in 1972 

with my good friend, Mr. Moss of California, I am pleased with 

what the statute has done and I am a longstanding advocate for 

better protections to our Nation’s consumers. I wholeheartedly support a stronger regulatory framework to ensure the safety of consumer products distributed in commerce in the United States, particularly those meant for use by children. When Chairman Rush, 

Chairman Waxman, Ranking Member Barton, Ranking Member 

Whitfield and I wrote the Consumer Product Safety Improvement 

Act in 2008, we did so in furtherance of this goal. That was a bipartisan piece of legislation, and it was a good one, and it came out 

of this committee unanimously, as my colleagues will remember, 

and passed the House unanimously. It then went to the United 

States Senate, and at that point unintended consequences arose 

and they have been exaggerated, exacerbated by the fact that the 

Senate resisted intelligent and necessary changes during the discussions in the conference, and this has created severe imposition 

of unnecessary, onerous regulatory burdens on businesses, particularly small business, with little appreciable positive impact on consumer safety and health. And indeed, the Consumer Product Safety 

Commission has had the misfortune to have to toe dance around 

and to try and write regulations that would make sense after the 

Senate imposed changes. 

The legislation we consider today, namely the Consumer Product 

Safety Enhancement Act, seeks to address the shortcomings of 

CPSIA while maintaining the strong protections that it affords consumers. CPSEA provides the Commission with much-needed regulatory authority, relief for thrift stores, assistance for small businesses. I commend you and your fine work in crafting a bill to accomplish these goals, and I note that CPSEA has support in the 

form of letters of endorsement from the National Association of 

Manufacturers and the Motorcycle Industry Council, the Bicycle 

Product Suppliers Association, Goodwill and the Handmade Toy Alliance. 

Finally, while I will not be seeking amendments to CPSEA, I will 

be seeking the assistance of you and Chairman Waxman and your 

strong assurances for the record that language clarifying the meaning of certain terms and provisions in the bill will be included in 

the committee’s report. I find a real danger of ambiguity in these 

areas and hope that we can clarify those problems. 


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I look forward to a productive discussion this morning about 

CPSEA, and yield back the balance of my time. 

Mr. RUSH. The gentleman is assured that we will take in consideration his request, and staff will work together on these matters 

and other matters that might be of concern to you. 

The Chair recognizes the ranking member of the full committee, 

Mr. Barton of Texas, for 5 minutes. 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BARTON. Thank you, Mr. Chairman. I want to thank you and 

Chairman Waxman and Chairman Dingell for agreeing to this 

hearing. I also want to say that normally I don’t read my opening 

statement, I speak extemporaneously, but because this hearing actually is an action item hearing that is probably hopefully going to 

lead to real legislation, I am going to read my statement, which 

again is something I don’t normally do. 

I do want to express my strongest appreciation for agreeing to 

this legislation hearing. I have been asking for this for a long time. 

In fact, I requested a hearing almost as soon as the problems with 

the implementation with CPSIA became apparent. We sent letters 

in January and March of 2009, and then again when the subcommittee held a hearing in September with the then newly appointed Chairman Tenenbaum. Hearing Chairman Tenenbaum’s 

views about the future of the CPSC was an important oversight 

task, but I believe then and still believe today that we need the 

facts about the implementation and the real-world effects of CPSIA 

if we are going to understand what the problems are and how to 

fix them. 

I am very glad that we have an array of stakeholders before us 

today, Mr. Chairman, who can finally have their voices heard. 

Their stories about how the 2008 CPSIA law impact their lives and 

their businesses and their ideas more importantly about how to 

remedy the unintended consequences of this law are vital to a real 

reform effort. I want to thank each of the witnesses for being here. 

I would like to highlight, however, that it would also be helpful 

if we could have had the CPSC commission before us today. The 

CPSC is the agency that is charged with enforcing the law that we 

pass. I believe it is necessary to hear the regulatory impact from 

their point of view. Specifically, there are provisions in the proposed legislation that were requested by the CPSC but which have 

never been examined during a legislative hearing. The witnesses 

today are not in a position to explain why the CPSC requested 

those provisions. 

We began this journey, Mr. Chairman, back in 2007 in response 

to a spate of calls for recalls for toys with lead paint. The law that 

was passed in response to those requests expanded into something 

that none of us really imagined, or at least I didn’t. It has turned, 

in my opinion, in some cases into a regulatory and compliance 

nightmare. Products like Native American ceremonial regalia that 

were never intended to be covered have been ensnared by the law. 

There are now over 2,500 additional pages and that grow almost 

every day of rules and regulations. Golf clubs, bicycles, leather 

riding saddles as well as educational equipment like children’s 


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brass band instruments and microscopes, believe it or not, are 

banned hazardous substances under this law. Let me repeat that: 

a brass trumpet and a microscope are banned hazardous substances and may not legally be sold for children’s use. 

Other objects that are not banned hazardous materials may still 

not be legally sold because they cannot be tested in accordance 

with the law today. For example, an object like a child’s saddle 

made of real leather poses no risk of lead poisoning, contains no 

plastic parts, has no phthalates, yet the law requires it to be tested 

for both. As I understand the problem, these items are one of a 

kind and these tests are destructive. Once you prove that a saddle 

isn’t made of lead or phthalate, the saddle is valueless because you 

have destroyed the saddle. That is ridiculous. Even if an object can 

be made in batches, these tests are cost prohibitive for many small 

businesses. 

I appreciate and support the chairman’s willingness to provide 

small businesses with testing cost relief but I am concerned about 

whether the so-called alternative testing methods consistent with 

the CPSIA really exist, and the CPSC isn’t here to answer that 

question. If such testing does exist, we do not know how long it will 

take for the CPSC to bless these methods by regulation. Further, 

those companies will always have the uncertainty of wondering 

whether someone might challenge the CPSC determination in 

court. 

To the witnesses before us today, I understand that most of you 

support this bill. I do too generally because it does move the ball 

forward in terms of child safety. I also understand that you have 

ideas that would make the bill even better. I want to emphasize 

to you today this is the chance to let your voice be heard. You rarely get a second bite at the apple in terms of Congressional hearings 

and you never get a third. My interest here is not to be obstructionist. In fact, Chairman Dingell, Chairman Waxman and myself 

met last week or the week before just to discuss this very hearing. 

We want each of your businesses to thrive. We want homemade 

product makers to go back to work. We want to save consumers unnecessary cost. We want companies that were forced by this law to 

lay off employees to rehire those laid-off workers. We want our children to have a childhood that is filled with children’s saddles, golf 

clubs, leather footballs, bikes, brass instruments, books, microscopes and telescopes. We want to make sure that this fix is done 

right. 

Mr. Chairman, when we began the children’s products back in 

2007 and when we delivered the bill to the President’s desk, the 

Democrats and Republicans alike on this committee felt that we 

had done a good thing and we had worked together with the stakeholders. From fact-finding letters to oversight hearings to drafting 

sessions to legislative hearings and markups, the process under the 

leadership of Chairman Dingell and yourself, Mr. Chairman, was 

open, transparent, cooperative and bipartisan. I hope as we move 

forward that that same spirit of 2007 will prevail in 2010. 

With that, Mr. Chairman, I yield back, and I sincerely appreciate 

this legislative hearing and I appreciate the extra time to read my 

statement. 

[The prepared statement of Mr. Barton follows:] 


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Statement of the Honorable Joe Barton 

Ranking Member, Committee on Energy & Commerce 

April 29, 2010 

Subcommittee on Commerce, Trade, and Consumer Protection 

Hearing on H.R. __ , the Consumer Product Safety Enhancement Act 

Mr. Chairman, I want to express my strongest appreciation for agreeing to hold this 

legislative hearing. We have been asking for this hearing for some time. In fact, 

we requested a hearing almost as soon as the problems with the implementation of 

CPSIA became apparent. We sent letters in January and March of 2009, and then 

again when this subcommittee held a hearing in September with the then-newlyappointed Chairman Tenenbaum. Hearing Chairman Tenenbaum's view about the 

future of the Consumer Product Safety Commission was an important oversight 

task, but we believed - and still believe that we needed facts about the 

implementation and real-world effects ofCPSIA if we were to understand and fix 

the problem. 

I am glad to have an array of stakeholders before us today who can finally have 

their voices heard. Their stories about how the 2008 CPSIA law impacts their lives 

and their ideas about how to remedy the unintended consequences of this law are 

vital to our reform efforts. I welcome each of you and look forward to hearing 

your ideas. 

I would like to highlight, however, that it is a shame that we do not have the CPSC 

before us today. The CPSC is the agency charged with enforcing any law we pass. 

I believe it is necessary to hear the real regulatory impact of that law. Specifically, 

there are provisions in the proposed legislation that were requested by the CPSC, 

but which have never been examined during a legislative hearing. The witnesses 

1/3 
21 


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today certainly are not in a position to explain why the CPSC requested these 

provisions. 

We began this journey in 2007 in response to a spate of recalls for toys with lead 

paint. Unfortunately, the law we passed expanded into something none of us 

imagined. It has turned into a regulatory and compliance nightmare. Products like 

Native American ceremonial regalia that we never intended being covered have 

been ensnared by the law and the 2500 (and counting) pages of rules and 

interpretations it has thus far spawned. Golf clubs, bicycles, and leather riding 

saddles as well as educational equipment such as children's brass band instruments 

and microscopes are all banned hazardous substances under this law. Let me 

repeat that: a brass trumpet and a microscope are banned hazardous substances and 

may not legally be sold for children's use. 

Other objects that are not banned hazardous substances may still not be legally sold 

because they cannot be tested in accordance with the law. For example, an object 

such as a child's saddle made ofrealleather poses no risk oflead poisoning and it 

contains no plastic parts and thus no phthalate, yet the law requires it be tested for 

both. As I understand the problem, these items are one of a kind and these tests are 

destructive. Once you prove that saddle isn't made oflead or phthalates, the 

saddle is valueless because it's been destroyed. 

Even if an object can be made in batches, these tests are cost-prohibitive for many 

small businesses. I appreciate and support the Chairman's willingness to provide 

small businesses with testing cost relief, but I am concerned about whether 

"alternative testing" methods consistent with CPSIA even exist - and the CPSC 

isn't here to answer that question. And if such testing does exist, we do not know 

2/3 
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how long it will take for the CPSC to bless those methods by regulation. Further, 

those companies will always have the uncertainty of wondering when someone 

might challenge CPSC's determinations in that regard. 

To the witnesses before us today, I understand most of you support this bill 

because it does move the ball forward a bit. I also understand that you have ideas 

that would make this bill even better, and perhaps more certain. I want to 

emphasize to you that today is your chance to let your voice be heard. You rarely 

get a second bite at the apple and it is unheard ofto get a third. My interest here is 

not to be obstructionist. We want small businesses to thrive. We want home-made 

product makers to go back to work. We want to save consumers unnecessary costs 

created by unnecessary regulatory hoop-jumping. We want companies that were 

forced by this law to layoff employees to re-hire those laid-off workers. We want 

our kids to have a childhood - one filled with saddles, golf clubs, leather footballs, 

bikes, brass instruments, books, microscopes and telescopes. We need to make 

sure this "fix" is done right. 

Mr. Chairman, when we began this discussion on children's products in 2007, and 

when we delivered the original bill to President Bush's desk, the Democrats and 

Republicans on this committee worked together and with stakeholders. From factfinding letters to oversight hearings to drafting sessions to legislative hearings and 

markups, the process was open, transparent, cooperative, and bipartisan. I hope, as 

we move forward, that the spirit of bipartisanship and transparency re-emerge. 

We still share the same interest in protecting our children from harm, but we must 

seize this opportunity to fix the problems we forced on thousands of Americans 

and replace the draconian and ineffective law with fresh thinking and better ideas. 

3/3 
23 

Mr. RUSH. The Chair thanks the gentleman. You would have 

done a much better job had you spoken extemporaneously. You 

would have been more convincing. 

Mr. BARTON. That is probably true, Mr. Chairman. 

Mr. RUSH. The Chair recognizes the gentleman from Iowa, Mr. 

Braley, for 2 minutes. 

OPENING STATEMENT OF HON. BRUCE L. BRALEY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA 

Mr. BRALEY. Thank you, Mr. Chairman, and thank you for holding this hearing on product safety, which is one of the most important responsibilities that this committee has. 

I just want to echo some of the comments made by the chairman 

emeritus because despite our best efforts, 535 people strive valiantly to create perfect legislation and it rarely ever happens, and 

yet that doesn’t mean that we give up and stop focusing on the 

problems that real people, real businesses, real consumers have in 

dealing with the impact of those bills that we work on every day, 

and that is why this hearing is so significant because it is a reflection of a realization that there were continuing problems after we 

passed the last law, and the fact that real Americans are impacted 

by those decisions and we need to work together in a bipartisan 

way to address those ongoing concerns. 

If you look at the organizations supporting the text of this legislation, I think you will develop an appreciation of why this is such 

an important achievement: the National Association of Manufacturers, Retail Industry Leaders Association, Motorcycle Industry 

Council, Handmade Toy Alliance and Goodwill Industries. Like 

many things we work on, you sometimes see people coming together working for the public good who don’t always line up on the 

same side of issues. That is why it is important for us to listen and 

learn and continue to refine and reflect legislation in that evergrowing pursuit of perfection, and that is why I am glad we are 

having this hearing and look forward to the comments of our witnesses, and I yield back. 

Mr. RUSH. That concludes the opening statements. 

Mr. GINGREY. Mr. Chairman. 

Mr. RUSH. Oh, I am sorry. Please forgive me. The Chair recognizes the gentleman from Georgia, Dr. Gingrey, for 2 minutes for 

the purposes of opening statement. 

OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. GINGREY. Chairman Rush, thank you. I want to thank you 

for calling today’s hearing on the committee print of the Consumer 

Product Safety Enhancement Act of 2010. 

As we begin today’s hearing, I would also like to thank you for 

postponing last week’s subcommittee markup on this bill so we 

could have this opportunity to move the legislation through regular 

order. 

Ultimately, I believe that we all agree on the goal of ensuring 

that the products purchased by consumers can be used safely. That 

is why after concerns arose in 2007 this subcommittee and Congress as a whole acted swiftly to enact the Consumer Product SafeVerDate Mar 15 2010 04:34 Jan 19, 2013 Jkt 076571 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 E:\HR\OC\A571.XXX A571

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ty Improvement Act of 2008. However, since the law was enacted, 

we have been faced with a number of unintended consequences due 

to the law’s implementation. From legislation that was only 63 

pages long, the Consumer Product Safety Commission now has a 

set of regulations that are 2,500 pages long. Clearly, some of the 

products that will be subjected to the regulation under this bill 

pose no threat to children. Due to the testing methods that will be 

adopted, children will not have the ability to purchase a baseball 

mitt, a brass musical equipment or even a microscope to be used 

in a classroom, as the ranking member just testified. 

If our end goal is to eradicate lead from the products that parents buy for their children, then we may also be sacrificing at the 

same time the promotion of exercise, appreciation of the arts and 

STEM education in the process. That was not the intention of the 

bill that was signed into law back in 2008, and we need to work 

to correct it to keep the safety of our children in mind but to do 

in a practical way. 

Throughout the 111th Congress, my Republican colleagues on the 

subcommittee have consistently urged that we make substantive 

improvements to CPSIA in order to provide relief to the small businesses—thank goodness some of them are here today as witnesses—who are being negatively affected by this law. However, I 

fear in the same way that we created a number of unintended consequences through CPSIA, we will be making some of the errors 

through this current legislation. While I believe that this bill that 

we will be discussing today does make some needed improvements 

that are long overdue, we are missing the opportunity to be able 

to do more to rectify the unintended consequences presented by 

this law. 

I look forward to hearing the testimony from each of you today 

so we can work to improve upon this law, and I yield back. I see 

I have gone a little bit over my time, and I thank you for your indulgence, Mr. Chairman. 

Mr. RUSH. The Chair now recognizes the gentleman from Louisiana, Mr. Scalise, for 2 minutes. 

OPENING STATEMENT OF HON. STEVE SCALISE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Mr. SCALISE. Thank you, Mr. Chairman. I am glad that our subcommittee is finally having a hearing on the Consumer Product 

Safety Enhancement Act passed last Congress and the legislation 

before us today. 

It is important that we continue to examine the safety of children’s products. We have an obligation to ensure that all consumers are properly protected. At the same time, we also have an 

obligation to debate and pass smart, effective legislation. To do 

this, we must find the appropriate balance between protecting consumers and protecting small businesses and manufacturers and the 

people who work for them. 

Mr. Chairman, I was not a Member of Congress when our subcommittee first took up the Consumer Product Safety Improvement 

Act in 2007, which is one reason I am glad that the subcommittee 

has decided to pursue regular order by having this hearing before 


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we hold the markup. I am sure we have all heard the horror stories 

and the complaints that have surfaced as this law has been implemented. We have all been made well aware of the severe unintended consequences and the significant burdens that this law has 

placed on manufacturers and small businesses, not just from national associations or corporations but from small businesses and 

mom-and-pop stores in our district that are struggling under the 

burdens and regulations of this law including some that have 

closed as a result of those unintended consequences. The testing requirements and compliance and administrative costs are having 

devastating effects on the businesses that produce the wide variety 

of products that now fall under the jurisdiction of CPSIA, many of 

which pose no risk or injury to a child and were never intended for 

children in the first place. 

Unfortunately, the problems don’t end there. The complex regulations being implemented are further adding to the plight of manufacturers and businesses. A 63-page law has produced almost 2,500 

pages of rules and regulations and the CPSC is not even done writing all those yet. Not only am I troubled by the effects that CPSIA 

is having on small businesses, but I am also concerned about its 

effect on the CPSC. The regulations, testing and compliance procedures that CPSC is now responsible for are substantial. I hope that 

we have not forced the CPSC to sacrifice its obligations in other 

areas of product safety or prevented the Commission from properly 

doing its job. This is a particular concern for me and my constituents because the CPSC is currently involved in an ongoing investigation of toxic Chinese drywall. I hope that CPSIA is not keeping 

CPSC from providing answers to the thousands of homeowners 

across the country that have fall victim to toxic Chinese drywall. 

I would like to ask the CPSC these questions but their absence 

at today’s hearing is conspicuous. How can we fully understand the 

implications of CPSIA and the bill before us today if we cannot 

question the agency that is in charge of implementing the law? I 

hope that we will have the opportunity to pose these questions to 

the CPSC. 

I do look forward to hearing from the panelists that are here before us today. I am particularly interested to hear if they fully support the provisions in this bill or if they are just going along in 

hopes that they will not be hurt by the final version. 

Thank you, and I yield back. 

Mr. RUSH. That concludes the opening statements of the members of the subcommittee, and now it is my pleasure to introduce 

to you the witnesses who are at the table this morning. Seated at 

my left is Mr. Rosario Palmieri. He is the vice president of infrastructure, legal and regulatory policy for the National Association 

of Manufacturers. Next to Mr. Palmieri is Mr. Paul Vitrano. He is 

the general counsel of the Motorcycle Industry Council. Seated next 

to Mr. Vitrano is Mr. Jim Gibbons. He is the president and CEO 

of Goodwill Industries International. Seated next to Mr. Gibbons is 

Mr. Dan Marshall, who is representing the Handmade Toy Alliance. And next to Mr. Marshall is one Ms. Rachel Weintraub, who 

is the director of product safety and is the senior counsel for the 

Consumer Federation of America. And next to Ms. Weintraub is 

Mr. Steve Levy. Mr. Levy is representing the American Apparel 


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and Footwear Association. And lastly, seated next to Mr. Levy is 

Mr. Rich Woldenberg. He is the chairman of Learning Resources 

Incorporated. 

The Chair wants to thank you again for coming. It is the policy 

and practice of this committee to swear in the witnesses, so would 

you please stand and raise your right hand? 

[Witnesses sworn.] 

Mr. RUSH. Now we will allow the witnesses to have 5 minutes 

for opening statements and we will begin with Mr. Palmieri. 

TESTIMONY OF ROSARIO PALMIERI, VICE PRESIDENT, INFRASTRUCTURE, LEGAL AND REGULATORY POLICY, NATIONAL 

ASSOCIATION OF MANUFACTURERS; PAUL VITRANO, GENERAL COUNSEL, MOTORCYCLE INDUSTRY COUNCIL; JIM 

GIBBONS, PRESIDENT AND CEO, GOODWILL INDUSTRIES 

INTERNATIONAL; DAN MARSHALL, HANDMADE TOY ALLIANCE; RACHEL WEINTRAUB, DIRECTOR OF PRODUCT SAFETY AND SENIOR COUNSEL, CONSUMER FEDERATION OF 

AMERICA; STEVE LEVY, AMERICAN APPAREL AND FOOTWEAR ASSOCIATION; AND RICHARD WOLDENBERG, CHAIRMAN, LEARNING RESOURCES, INC. 

TESTIMONY OF ROSARIO PALMIERI 

Mr. PALMIERI. Thank you, Chairman Rush, Ranking Member 

Whitfield and members of the subcommittee, I appreciate the opportunity to testify today about the Consumer Product Safety Enhancement Act on behalf of the National Association of Manufacturers, or NAM. 

We are the Nation’s largest industrial trade association representing manufacturers in every industrial sector in all 50 States. 

We have a presence in every Congressional district, providing good 

high-paying jobs. The United States is the world’s largest manufacturing economy, produces $1.6 trillion of value, or 11–1/2 percent 

of GDP, and employs nearly 12 million Americans working directly 

in manufacturing. 

On behalf of the NAM, I wish to express support for the Consumer Product Safety Enhancement Act, or CPSEA. Manufacturers 

of consumer products and their component parts are committed to 

producing safe products. In 2008, in the wake of intolerance lapses 

in children’s product safety, the Consumer Product Safety Improvement Act was passed. The NAM supported provisions in that law 

that would give the CPSC staff more staff and financial resources 

to deal with the dramatic rise in imported consumer products and 

globalized supply chains. 

The implementation of that law, however, has not been smooth, 

and significant unintended consequences have cost manufacturing 

jobs in industries producing safe products. The CPSEA that we are 

here to discuss will begin to eliminate several of those unintended 

consequences. Currently, products that present no risk to children 

from lead content like bicycles, motorcycles, ATVs and snowmobiles 

have been effectively banned for sale. This legislation would amend 

the exclusion process to allow these products to once again be sold 

and be affordable. The NAM and its member appreciate your agreement to further define critical words in the legislation such as 


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‘‘practicable’’ and ‘‘measurable adverse impact’’ and committee report language to give the CPSC the clear direction to apply reason, 

common sense and sound analysis to decisions about granting exclusions. The CPSC must be able to review petitions for exclusion 

immediately upon passage of this bill. Any delay or necessity for 

the CPSC to write new rules to govern this process could put more 

manufacturing jobs at risk. It took the CPSC 6 months to produce 

the rule for the exclusion process the first time. We cannot wait 

that long for relief after passage of this bill. Words matter and definitions matter in legislation. 

Recently the CPSC staff has presented extremely problematic interpretations of words from the original Act that were not intended 

by Congress. In a first draft of rules meant to interpret the definition of children’s products, they took the plain language of the 

CPSC of ‘‘designed or primarily intended for children’’ and turned 

it into ‘‘designed and commonly recognized as intended for a group 

of users constituted by a significant proportion of children.’’ This 

could have resulted in items intended for general use to be inappropriately considered as children’s products and created new, unnecessary testing burdens, and also with the so-called 15-month rule 

they have turned the phrase ‘‘reasonable testing program’’ into anything but reasonable and are proposing to dramatically increase 

the testing burden for manufacturers. We encourage you to give 

clear direction and definition to what the CPSC must do to the 

amended exclusion process. 

This bill is also helpful in a number of other areas. It recognizes 

that a component part can present no risk to a child if it is inaccessible. It would extend similar treatment to inaccessible phthalates, 

as the original Act did for inaccessible lead and relieve those parts 

from the content and testing requirements. The legislation also recognizes dramatic disruptions to the supply chain from retroactive 

application of lead content limits and applies future reductions prospectively as recommended by the CPSC. It will also allow manufacturers and retailers to continue to donate safe products to charities, and you will hear from Goodwill Industries shortly. 

Also, the CPSEA does not attempt to expand the CPSC’s authority unnecessarily, regulate undefined new threats or reopen debates from the enactment of the 2008 legislation. This bill is urgently needed, and delays associated with such controversial provisions could prevent needed relief from coming in time to preserve 

manufacturing jobs that have been hard hit in this recession. 

Thank you for your efforts to correct these and other unintended 

consequences of the Consumer Product Safety Improvement Act. I 

urge swift passage of the CPSEA to begin those corrections and to 

preserve critical manufacturing jobs. 

Thank you, and I will be happy to answer any questions. 

[The prepared statement of Mr. Palmieri follows:] 


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Hi" Manufacturers. 

Testimony 

of Rosario Palmieri 

Vice President 

Infrastructure, Legal & Regulatory Policy 

National Association of Manufacturers 

before the Subcommittee on Commerce, Trade & Consumer 

Protection Committee on Energy & Commerce 

U.S. House of Representatives 

on the Consumer Product Safety Enhancement Act 

April 29, 2010 
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COMMENTS OF THE NATIONAL ASSOCIATION OF MANUFACTURERS 

BEFORE THE 

SUBCOMMITTEE ON COMMERCE, TRADE & CONSUMER PROTECTION 

COMMITTEE ON ENERGY & COMMERCE 

U.S. HOUSE OF REPRESENTATIVES 

APRIL 29, 2010 

Chairman Rush, Ranking Member Whitfield and members of the Subcommittee 

on Commerce, Trade & Consumer Protection, thank you for the opportunity to testify 

today about the Consumer Product Safety Enhancement Act (CPSEA) on behalf of the 

National Association of Manufacturers (NAM). 

The NAM is the nation's largest industrial trade association, representing 

manufacturers in every industrial sector and in all 50 states. Manufacturing has a 

presence in every single congressional district providing good, high-paying jobs. The 

United States is the world's largest manufacturing economy. It produces $1.6 trillion of 

value each year, or 11.5 percent of GDP and employs nearly 12 million Americans 

working directly in manufacturing. For more information about the NAM, visit 

www.nam.org. 

The mission of the NAM is to enhance the competitiveness of manufacturers by 

shaping a legislative and regulatory environment conducive to U.S. economic growth, 

and to increase understanding among policymakers, the media, and the general public 

about the vital role of manufacturing to America's economic future and living standards. 

My name is Rosario Palmieri and I am the Vice President for Infrastructure, Legal 

and Regulatory Policy for the NAM. I also chair the NAM CPSC Coalition which is a 
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group of consumer product manufacturers, component part manufacturers, sectoral 

manufacturing trade associations, and retailer associations that work together on 

product safety legislative issues and policy matters before the Consumer Product Safety 

Commission (CPSC). Today, I am testifying on behalf of the NAM only and not for the 

entire coalition. 

On behalf of the NAM and the millions of men and women working in 

manufacturing in the United States, I wish to express support CPSEA. 

Manufacturers of consumer products and their component parts are committed to 

producing safe products and ensuring a well-functioning and credible product safety 

regime - one that gives all stakeholders the confidence they need that products meet all 

applicable safety standards and regulations. This requires having clear and 

comprehensive rules, combined with a predictable and transparent enforcement regime, 

so that businesses can make decisions with a reasonable understanding of how to 

comply with those rules. Our members are responsible for millions of jobs in large and 

small businesses spread throughout the country. More importantly, our employees are 

also consumers, and we also demand that the products we buy - for our families and for 

ourselves - are safe and compliant. 

In the wake of intolerable lapses in children'S product safety, the Consumer 

Product Safety Improvement Act (CPSIA) was passed in 2008. The NAM supported 

provisions in that law that would give the CPSC more staff and financial resources to 

deal with the dramatic rise in imported consumer products and globalized supply chains. 

The implementation of that law, however, has not been smooth and significant 

unintended consequences have cost manufacturing jobs in industries producing safe 

products. 

Starting in December 2008, the NAM in coalition with other manufacturing and 

retail associations began to petition the CPSC for relief and grants of exemption from the 

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lead content limits set to be imposed starting in February 2009. Our first petition 

requested immediate determinations of exclusions for inaccessible component parts of 

electronic products; exclusions for materials with low or no lead content like paper, 

textiles, and precious gems; and exclusions for materials with lead content above the 

limits that would present no risk of exposure or health effects like in recycled steel, 

brass, and glass. 

In January 2009 some modest determinations of natural materials that could be 

excluded from testing were made in a proposed rule. The NAM and coalition members 

requested an emergency stay of the effective dates of the lead content limits on January 

28, 2009, Without completed rules on inaccessibility, electronic parts, natural materials 

exclusions, or a petition process for exclusion of safe products with lead over the limits, 

millions of dollars worth of products on shelves would have been rendered unsalable 

and likely destroyed causing enormous economic dislocation. A few days later in early 

February 2009, an interim final rule was issued for inaccessible component parts and 

electronic products to render those exceptions immediately effective. And just days 

before full implementation of new lead content limits came into effect on February 10, a 

stay of enforcement was issued for testing and certification requirements with some 

limitations, 

Although this appeared to limit some of the damage due to the lack of clarity in 

implementing this new law, much of the pain had already been felt. Retailers already 

had started to implement their own requirements and reviews of inventory and 

manufacturers had begun to eliminate safe products or halt production and distribution. 

A stay of enforcement might have been comforting, but the CPSC reminded everyone 

that while products did not have to be tested and certified they still had to comply with 

the new standards, The CPSIA also gave new enforcement powers to State Attorneys 

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General that were not bound by any stay issued by the agency. Many safe products 

were now illegal and the confusion only continued. 

Unfortunately, a final rule on low lead determinations for natural materials was 

not made until August 2009. A process for petitioning the Commission for exclusions 

based on the safety of products that contained lead above the limits was not put in place 

until March. And throughout the summer of 2009 the CPSC denied every petition for 

exclusion that came before it because the words "any absorption" were interpreted to 

mean zero absorption. 

A petition was filed by the writing instrument manufacturers to exempt ball point 

pens and was denied. A petition was filed by bicycle manufacturers to exempt children's 

bikes and was denied. A petition was filed by the fashion jewelry industry to exempt 

crystal and rhinestones and was denied. A petition was filed by the motorcycle, ATV, 

and snowmobile manufacturers to exempt youth model motorized vehicles and was 

denied. A process the CPSIA created to allow for safe products that did not meet the 

new lead content limits to continue to be sold failed to grant a single exclusion. 

Many of these products, however, were granted a stay of enforcement while 

additional review was conducted. This also allowed manufacturers and retailers to 

continue to petition Congress for meaningful relief in the form of legislative changes to 

the CPSIA. All of that coupled with an extension of the stay of enforcement on testing 

and certification for another year brings us to the efforts of Chairman Waxman, Ranking 

Member Barton and other Democrats and Republicans to correct these unintended 

consequences in statute. 

Multiple bills have been introduced in the House and Senate to grant specific 

exclusions for books and youth model motorized vehicles. Some bills have sought relief 

for thrift stores and the donated goods industry. And some bills have sought broader 

procedural changes to the exclusion process, testing requirements, or retroactive 

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application of the provisions. The NAM has supported many of these approaches to 

granting meaningful relief for manufacturers. 

We applaud Chairman Waxman, Chairman Rush and their staff for the efforts so 

far to draft legislation that amends the CSPIA to fix these problems. We thank Ranking 

Member Barton and Ranking Member Whitfield and their staff for the efforts to address 

these challenges in legislation. We are hopeful that bipartisan cooperation will result in 

the swift adoption of legislation to allow manufacturers to continue to produce and sell 

safe children's products. 

The CPSEA will begin to eliminate several of those unintended consequences I 

discussed earlier. Currently, products that present no risk to children from lead content 

like bicycles, motorcycles, A TVs, and snowmobiles have been effectively banned for 

sale. This legislation would amend the exclusion process to allow these products to 

once again be sold and be affordable. The NAM and its members appreciate the 

agreement of the Chairman and staff to further define critical words in the legislation 

such as "practicable" and "measurable adverse impact" in Committee Report language 

to give the CPSC the clear direction to apply reason, common sense, and sound 

analysis to decisions about granting exclusions. The CPSC must be able to review 

petitions for exclusion/exceptions immediately upon passage of this legislation. Any 

delay or necessity for the CPSC to write new rules to govem this process will put more 

manufacturing jobs at risk. 

The unfortunate example of the misinterpretation of the words "any absorption" to 

mean zero under the current statute reminds us that maximum clarity is necessary to 

enable the CPSC to act according to Congress' intent. The word "practicable" has a 

dictionary definition that would not lend itself to facilitate the exclusion process. We 

appreciate that you are willing to clarify in Committee Report language that "practicable" 

has the same definition as it is applied in Motor Vehicle Manufacturers Association of the 

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United States, Inc. v. State Farm Mutual Insurance Co., 463 U.S. 29, 54-55 (1983). This 

means that a modification to a product requesting an exclusion/exception under this 

provision of the CPSEA would be deemed impracticable if the cost of compliance is 

unreasonable or excessive in contrast to the expected safety benefit. This grants the 

CPSC the authority and discretion to grant reasonable exceptions to the lead content 

limits. The further definition of "measurable adverse effect on public health or safety" to 

be consistent with the state-of-the-science on lead exposure and health effects 

consistent with the guidelines of the Food & Drug Administration and Centers for 

Disease Control will provide for the protection of children's health while allowing 

reasonable exceptions for safe products. 

Additional language in that exception process, however, eliminates products that 

can be placed in the mouth or ingested despite the requirement that it not create an 

adverse impact on children's health. This provision is unnecessary to protect children 

from the harmful effects of lead. 

Since passage of the CPS lA, concerns have been raised about the Act 

unintentionally and temporarily prohibiting certain phthalates in the plastic coating in 

electronic product wiring. This legislation recognizes that a component part can present 

no risk to children if it is inaccessible. It would extend similar treatment to inaccessible 

phthalates as the original Act did for inaccessible lead and relieve those parts from the 

content and testing requirements. 

The legislation also recognizes the dramatic disruptions to the supply chain from 

retroactive application of lead content limits and applies the August 2011 reduction to 

100 ppm lead (where technologically feasible) prospectively as recommended by the 

CPSC Commissioners. 

This legislation also corrects the problem presented to charities in the donated 

goods industry. Testing and certification requirements for older, unique items resulted in 

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the destruction of many safe children's products that could have been put to good use. It 

will allow manufacturers and retailers to again donate safe children's products to 

charities. 

Critically, the CPSEA does not attempt to expand the CPSC's authority 

unnecessarily, regulate undefined new threats, or reopen debates from the enactment of 

the 2008 legislation. This legislation is urgently needed, and delays associated with 

such controversial provisions could prevent needed relief from coming in time to 

preserve manufacturing jobs that have been hard hit in this recession. 

Thank you for your efforts to correct these and other unintended consequences 

of the CPSIA. The NAM urges swift passage of the CPSEA to begin those corrections 

and to preserve critical manufacturing jobs. 

Mr. Chairman, thank you for the opportunity to testify today and I will be happy to 

respond to any questions. 

### 

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36 

Mr. RUSH. Thank you. 

Mr. Vitrano, you are recognized for 5 minutes. 

TESTIMONY OF PAUL VITRANO 

Mr. VITRANO. Chairman Rush and distinguished members of the 

subcommittee, thank you for the opportunity to testify this morning on the need for amendments to the Consumer Product Safety 

Improvement Act. I am Paul Vitrano, general counsel of the Motorcycle Industry Council. MIC is a not-for-profit national industry association representing nearly 3,000 manufacturers and distributors 

of motorcycles and all-terrain vehicles, motorcycle, ATV and recreational off-highway vehicle parts and accessories and members of 

allied trades. 

The lead provisions of the CPSIA were primarily intended to protect children from ingesting lead from toys. However, it has had 

unintended consequences and has created an unsafe situation for 

youth ATV and motorcycle riders. The Act has effectively banned 

the sale of age-appropriate youth vehicles because of small 

amounts of lead that are critical to the functionality of certain components such as engine casings and suspension systems. These 

smaller, lighter, speed-restricted models have been specifically designed for youth riders with the goal of keeping them off of larger, 

faster, adult-sized units. 

CPSC has acknowledged that the ban on these youth models creates a compelling safety issue because it likely will result in younger children riding larger and faster adult-sized vehicles. CPSC’s 

studies show almost 90 percent of youth injuries and fatalities 

occur on adult-sized ATVs. On the other hand, CPSC’s scientists 

acknowledge that the presence of small amounts of lead in metal 

alloys used in these youth models does not present a health hazard 

to children. 

For more than a year, MIC, its members, their dealers and many 

of the millions of Americans who safety and responsibly ride their 

off-highway vehicles with their children have urged Congress to 

amend the Act to stop this unintended ban on youth models. Together, these constituents have sent over 1 million e-mails and letters and made hundreds of calls and personal visits to Capitol Hill 

seeking a legislative solution for three commonsense reasons. 

First, the lead content in metal parts of ATVs and motorcycles 

poses no risk to kids. Second, everyone agrees that the key to keeping youth safe on ATVs and motorcycles is having them ride the 

right size vehicles. The ban has resulted in what CPSC correctly 

describes as ‘‘a more serious and immediate risk of injury or death’’ 

than any theoretical risk of lead exposure from these products. Finally, the unintended ban is significantly harming the economy and 

costing jobs, and if not corrected will result in about $1 billion in 

lost economic value in the retail marketplace every year. 

Congress never intended to ban youth-model vehicles when it 

passed the CPSIA. Moreover, CPSC Chairman Tenenbaum and the 

other commissioners have asked Congress to provide the Commission with flexibility to grant exceptions from the lead content provisions, specifically noting the need to address youth ATVs and motorcycles. 


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We appreciate the efforts that this committee is taking to deal 

with the unintended consequences of this Act. We already have 

submitted evidence to CPSC that we believe is sufficient to obtain 

exceptions for youth ATVs and motorcycles under section 2 of the 

proposed bill. Ultimately, however, CPSC will have to interpret 

that language to determine whether to grant an exception for our 

products. That is why we strongly urge the committee to provide 

as much clarity as possible in developing a legislative solution so 

CPSC will have no doubt that Congress intends to assure the continued availability of youth vehicles. 

Throughout our discussions, we have encouraged the committee 

to include statutory language to provide CPSC with explicit guidance. In the absence of such language, however, it is critical that 

there be report language accompanying the bill that defines the 

terms ‘‘practicable’’ and ‘‘no measurable adverse effect’’ in section 

2. 

In closing, MIC and its members support section 2 of the CPSEA 

with the accompanying report language that has been proposed. 

We also would welcome additional explicit guidance to CPSC to 

grant exceptions for youth ATVs and motorcycles. We urge Congress to complete its work, pass this bill and help solve the unintended consequences of the CPSIA. Thank you. 

[The prepared statement of Mr. Vitrano follows:] 


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TESTIMONY OF PAUL C. VITRANO 

Subcommittee on Commerce, Trade, and Consumer Protection 

Committee on Energy and Commerce 

United States House of Representatives 

April 29, 2010 

Chairman Waxman, Chairman Rush, Ranking Member Barton, Ranking Member Whitfield and 

distinguished Members of the Subcommittee on Commerce, Trade, and Consumer Protection, 

thank you for the opportunity to testifY this morning on the need for amendments to the 

Consumer Product Safety Improvement Act. My name is Paul Vitrano. I am the General 

Counsel of the Motorcycle Industry Council. MIC is a not-for-profit, national industry 

association representing nearly 300 manufacturers and distributors of motorcycles and all-terrain 

vehicles; motorcycle, ATV and recreational off-highway vehicle parts and accessories; and 

members of allied trades such as insurance, finance and investment companies, media companies 

and consultants. 

The CPSIA was intended to protect children from ingesting lead from toys. However, the lead 

provision has had unintended consequences and I am here to testify about one of them. The 

CPSIA has effectively banned the sale of age-appropriate youth ATV s and motorcycles because 

of the lead content of certain components. As a result of its broad reach, the Act has 

inadvertently crippled an industry unrelated to the toy manufacturers that were the intended 

target of the lead provision. In addition, the resulting ban has resulted in unsafe situations for 

youth off-highway enthusiasts. 

Therefore, the MIC urges the Committee to pass the Consumer Product Safety Enhancement Act 

(CPSEA) with Section 2 included to stop this unintended ban. Moreover, the CPSEA and/or any 

other legislative solution should include specific language that provides clarity to the Consumer 

Product Safety Commission (CPSC) regarding Congress' intent to stop this ban. 

It is estimated that over 13.7 million Americans enjoy riding off-highway motorcycles and over 

35 million enjoy riding A TV s. Safety of our riders - particularly our youngest riders - is a top 

priority of the powersports industry. Vehicles, helmets and other gear and accessories are 

specially designed for youth riders to allow them to safely enjoy this family-friendly form of 

outdoor recreation. 

In February 2009, however, ATV s and motorcycles designed and primarily intended for youth 

riders aged 6 to 12 became banned hazardous substances under the CPSIA because small 

amounts oflead - that pose no risk to youth - are imbedded in metal parts of those vehicles to 

enhance the functionality of those components. 

As you know, the CPSC concluded that the language of the CPSIA prevented it from making 

common-sense decisions and resulted in the CPSC denying thepowersports industry's petitions 

for exclusion from the lead content provision. The exclusion was denied despite the fact that the 

CPSC's own staff acknowledged that there was no measurable risk to children resulting from 

lead exposure from these products. 
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The CPSC tried to temporarily address the ban by issuing a stay of enforcement of the CPSIA's 

new lead content limits in May 2009. Unfortunately, this stay of enforcement has proven 

unworkable. Due to the risks of selling under the stay, many manufacturers and dealers are no 

longer selling youth model off-highway vehicles and there is now a limited availability of these 

products for consumers. Half of the major ATV manufacturers are no longer selling youth 

models despite the stay. Sales of the smallest youth ATVs have decreased by 85% more than 

overall A TV sales during the stay. 

The CPSC has acknowledged that the ban on youth off-highway vehicles creates a compelling 

safety issue because it likely will result in children 12 years of age and younger riding larger and 

faster adult-size vehicles. For example, CPSC studies show almost 90% of youth injuries and 

fatalities occur on adult-size ATVs. Again, the CPSC's staff scientists acknowledge that the 

presence of/ead in metal alloys in these youth models - needed for functionality, durability and 

other reasons that are safety critical to the components does not present a health hazard to 

children. The Commission also acknowledges that children riding these vehicles only interact 

with a limited number of metal component parts that might contain small amounts of lead, like 

brake and clutch levers, throttle controls, and tire valve stems. 

As a result, for over one year, MIC, its members, their dealers and many of the millions of 

Americans who safely and responsibly ride their off-highway motorcycles and ATV s with their 

children have urged Congress to amend the CPSIA to stop this unintended ban on youth 

motorized recreational vehicles. Off-highway vehicle stakeholders have sent over one million 

electronic messages and thousands of hand signed letters and made numerous calls and personal 

visits to Capitol Hill to advocate for a legislative solution to the ban. 

Since the CPSIA ban took etTect on February 10,2009, we collectively have urged Congress to 

act for three important reasons: 

First, the lead content in metal parts of ATVs and motorcycles poses no risk to kids. Experts 

estimate that the lead intake from kids' interaction with metal parts is less than the lead intake 

from drinking a glass of water. 

Second, everyone agrees that the key to keeping youth safe on ATVs and motorcycles is having 

them ride the right sized vehicle. The CPSIA has unintentionally put kids at risk because youth 

A TV and motorcycle availability is limited. Unavailability of youth models results in what 

CPSC has described as a "more serious and immediate risk of injury or death" than any risk from 

lead exposure from these products. 

Finally, the CPSIA is unnecessarily hurting the economy and jobs when everyone is trying to 

grow the economy and create jobs. MIC estimates that a complete ban on youth model vehicles 

would result in about $1 billion in lost economic value in the retail marketplace every year. 

In recognition of the need to end the unintended ban on youth ATV s and motorcycles, CPSC 

Chairman Tenenbaum and the other Commissioners unanimously asked Congress to provide the 

Commission with flexibility to grant exclusions from the CPSIA lead content provisions, 

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specifically noting the need to address youth ATV s and motorcycles. The Energy and 

Commerce Committee's leadership has responded by proposing the CPSEA and the Act's 

accompanying report. We appreciate the efforts that you are undertaking to address the 

unintended consequences of the CPSIA and recognize that it has been difficult to address these 

issues given the varying interests involved in this process. 

As Representative Rehberg stated when introducing his bill to stop the ban on ATVs and 

motorcycles, "the original legislation Congress passed was meant to keep kids safe from lead 

content in toys. Ironically, the oven'eaching enforcement wound up putting kids at risk by 

forcing them to use larger more dangerous machines that arc intended only for adults." 

We believe that Congress never intended to ban youth model motorized recreational vehicles 

when it passed the CPSIA. We already have submitted evidence to CPSC sufficient to obtain 

exclusions for youth ATV s and motorcycles under the proposed language of the CPS EA. 

Ultimately, however, it is the CPSC that will interpret that language to determine whether or not 

to grant an exclusion for the metal parts of ATV s and motorcycles. 

That is why the industry is strongly urging the Committee to provide as much clarity as possible 

in developing a legislative solution so that thc CPSC is left with no doubt about Congress' intent 

to ensure the continued availability of youth model motorized recreational vehicles. Throughout 

our discussions, we have encouraged the Committee to include statutory language to provide the 

CPSC with explicit guidance. Although the Committee has not included this language in the 

proposed amendment, we do support the inclusion of report language accompanying this Act that 

defines thc words "practicable" and "no measurable adverse effect." 

The powersports industry supports Section 2 of the CPS EA. It also would welcome additional 

clarity either to expressly exclude our products - never intended to be included under the CPSIA 

in the first place or to provide explicit guidance to CPSC to grant exclusions for youth ATV s 

and motorcycles. We urge Congress to complete its work, pass this bill and help solve this 

unintended consequence of the CPSIA once and for all. 

Thank you. 

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41 

Mr. RUSH. The Chair now recognizes Mr. Gibbons for 5 minutes. 

TESTIMONY OF JIM GIBBONS 

Mr. GIBBONS. Good morning, Chairman Rush and Ranking Member Whitfield and all the members of the subcommittee. I want to 

thank you for giving Goodwill Industries International an opportunity to talk with you this morning. My name is Jim Gibbons. I 

am the president and CEO of Goodwill Industries International, 

and we really do appreciate what you are doing and how you are 

listening to your constituents and specifically your constituents 

from your local Goodwills that are in your community that make 

up a workforce that has grown through 2009 by almost 3,000 people even in this trying time, and that workforce and the Goodwill 

system served nearly 2 million people in your communities and 

mine. 

Goodwill is made up of 159 local community-based organizations 

throughout the United States, and many of you are familiar with 

Goodwill and our 2,400 stores. Our unique business model that 

leverages a donated good retail model to create employment employees for those 90,000-plus people and to serve those two million 

people throughout America is a unique model that really relies on 

the generosity of individuals to donate to Goodwill and each unique 

donation is a unique product that then enters into the retail space 

and provides and is transformed into both employment and resources to fund employment, training and other social services at 

the very local level. But the uniqueness of our model and that of 

other human service organizations that use donated goods retail 

model to fulfill their mission such as the Salvation Army, and 

Goodwill and the Salvation Army are the two largest human service providers that use a donated goods retail model, are totally tied 

to this one-at-a-time contribution, and for Goodwill, that is 60 million donation drop-offs a year, and because of that uniqueness and 

the uniqueness of every donation, we support section 3 of the Consumer Product Safety Enhancement Act because we think it truly 

drives the clarity in the legislation to allow us and other organizations like us to work with the CPSC in a very effective and meaningful way for implementation. 

We have worked closely with CPSC over the years, and even before the requirements were placed on us legislatively for the recall 

process, we worked hand in hand with CPSC for them to train our 

people, to work with our people on compliance so that we build a 

recall capability strongly throughout our network, and to demonstrate and to really act on our values of protecting the families 

that shop at our stores and the people that we serve. That commitment to safety along with section 3 of the Consumer Product Safety 

Enhancement Act together we believe will allow the proper clarity 

for us to provide safety, to work with the Consumer Product Safety 

Commission in a very effective way, and to serve a growing need 

in communities because of today’s economy where more and more 

people are knocking on our doors in your communities and communities around the country for services, whether that is due to dislocation or an industry leaving their neighborhood or for the young 

woman who is a mother of three with a high school education that 


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needs those services so she can skill up to be a producing member 

of our communities. 

So we support section 3 of the draft legislation and we believe 

it will drive the necessary clarity for us to full the intent of safety 

and still provide the excellent human services that are needed in 

a pretty tough economy. 

So thank you very much and I will gladly answer any questions. 

[The prepared statement of Mr. Gibbons follows:] 


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Testimony Submitted for the Record 

U.S. House of Representatives 

House Subcommittee on Commerce, Trade, 

and Consumer Protection 

April 29, 2010 

Presented by 

Jim Gibbons 

President and CEO 

Goodwill Industries International 

15810 Indianola Drive 

Rockville, MD 20855 

Phone (301) 530 6500 

Fax (301) 530-1516 
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Testimony Submitted for the Record 

U.S. House of Representatives 

House Subcommittee on Commerce, Trade, aud Consumer Protection 

April 29, 2010 

Mr. Chairman, Ranking Member, and members of the Subcommittee, on behalf of 

Goodwill Industries International® (GIl), thank you for this opportunity to provide testimony 

about the Consumer Product Safety Enhancement Act of2010. Goodwill appreciates the 

Committee and its staff for sharing recent discussion drafts of the Consumer Product Safety 

Enhancement Act. Goodwill believes that the draft includes effective provisions that would 

address Goodwill's concerns about retroactively applying the CPSIA's sales ban on children's 

products manufactured before the law's implementation. Goodwill believes that the provisions in 

Section 3, pertaining to the selling of used children's products, would allow Goodwill to support 

its mission through the sale of used children's apparel within the letter and spirit of the law. 

Goodwill Industries International (GIl) represents 159 local and independent Goodwill 

agencies in the United States that help people with barriers to employment to participate in the 

workforce. One of Goodwill Industries' greatest strengths continues to be its entrepreneurial 

approach to sustaining its mission. In 2009, the Goodwill network raised nearly $3.7 billion 

through its retail, eontracts, and mission services operations. Nearly 83 percent of the funds 

Goodwill raised in 2009 were used to supplement government investments. Today more than 

ever people rely on Goodwill. In fact, in 2009, Goodwill collectively served almost 2 million 

people. This number represents a 26 percent increase compared to 2008. With the economy 

continuing to be sluggish, we expect that we will continue to see the number of people who turn 

to Goodwill for assistance to increase dramatically. 

Page 2 
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The roots of to day's Goodwill began as a simple idea in 1902 when Rev. Edgar Helms 

set out to help poor immigrants in Boston's South End by collecting clothes and household items 

from wealthier Bostonians to provide clothing and household items for the struggling 

immigrants. He discovered, to his surprise, that the immigrants wcre too proud to simply accept 

the items. So he took his idea a step further by enlisting volunteers to repair, clean, and sell the 

items at reasonable prices. He used the revenue to provide wages to the workers - and the first 

Goodwill store was born. 

Especially during such trying economic times, Goodwill is very proud of its long history 

of helping people to find jobs and advance in careers. As the nation struggles to recover from the 

worst recession since the Great Depression and unemployment stubbornly hovers near 10 

percent, Goodwill remains committed to partnering with stakeholders at the federal, state, and 

local levels by contributing the resources and expertise oflocal Goodwill agencies in support of 

public efforts and investments. 

Goodwill's first priority is and has always been the safety of its customers and the people 

it serves. Goodwill has a long history of working in good faith with the Consumer Product Safety 

Commission (CPSC) to prevent unsafe products from being sold in its stores. Local Goodwill 

retail professionals check the CPSC's product recall lists to identify any recalled and donated 

products. Those found to have been recalled are not placed on stores' shelves for sale and are 

taken out of circulation. In addition, agencies avoid selling known high-risk items, such as metal 

jewelry and painted toys. We continue to work closely with the CPSC to pursue our common 

goal of preventing people from purchasing unsafe products. By continuing these efforts, we 

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believe amending the CPSIA - by exempting the sale by charitable organizations of used 

children's clothes from the CPS lA's sales ban - would allow Goodwill stores to sell used 

children's apparel while protecting our customers' children. 

I'd like to spend a moment of our time to discuss Goodwill's business model, since it is 

very different than that of a traditional retailer with a national footprint. First, it is very important 

to keep in mind that Goodwill's footprint in the U.S. is actually 159 local and independent 

community-based organizations' footprints that collectively make up the Goodwill network in 

the U.S. Each local Goodwill agency's autonomy allows it to be a true community stakeholder 

and partner. For example: 

• In 2009, the Chicago Goodwill provided services for 1,233 individuals, with 255 

placed into employment at an average wage of$9.40 per hour. Goodwill is investing 

in two new Workforce Connection Centers--one in Englewood, the other in the West 

Loop-to provide free, self-directed employment services. 

• In 2009, the Los Angeles Goodwill invested millions of its own earnings to subsidize 

one-stops that serve over 59,000 people. Over 4,000 went to work to support their 

families and improve the economic well being of their communities. 

• Goodwills in Dallas and Fort Worth helped over 36,000 people enhance their 

economic opportunities with job training in office technology, accounting, and 

healthcare; paid transitional jobs with supports; job placement; and other services. 

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• The Detroit Goodwill engaged over 28,000 people in improving their basic academic 

skills, computer training, earning while they learned in transitional jobs, and job 

placement. 

Second, the nature of the donated goods business means that most of Goodwill's products 

are each individually supplied through the generosity of people who donate unwanted clothes, 

household items, and furnishings. Inventory control systems that allow national retailers to 

purchase inventory; plan for its sale; and provide product specifics and information simply do 

not exist in the donated goods retail business. Before donated products can be placed for sale in a 

Goodwill store, they must be sorted and their price must be determined. In addition, our retail 

professionals check product recall lists to identify and dispose of any donated items that have 

been recalled - therefore ensuring that these dangerous items are removed from the consumer 

marketplace. 

We believe the nature of the donated goods charity model supports the need for 

legislation to exempt human service organizations that sell used children's apparel, among other 

products, from the CPSIA's retroactive sales ban. Goodwill absolutely agrees that children 

should not be exposed to products that have dangerous lead levels. This is a moral value 

Goodwill holds, yet it also makes good business sense. Doing anything less would have 

enormous potential to damage the Goodwill brand, thus hindering Goodwill's ability to provide 

the employment and training services to people with employment challenges. 

Goodwill has worked in collaboration with the CPSC to develop constructive solutions to this 

important issue, exploring potential courses of action that that would allow local Goodwill 

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agencies to demonstrate a good faith effort to comply with the new law, while selling used 

children's products at a reduced risk to our customers and our agencies. The result was an 

enhanced partnership with the CPSC to educate the public, and inform and train our retail 

professionals. Goodwill believes that these efforts demonstrate the gold standard of good faith on 

the part of both Goodwill and the CPSC toward accomplishing our mutual goal of protecting 

children. Goodwill also recognizes that the long-term solution requires Congress to take action. 

Conclusion 

Goodwill deeply appreciates this Subcommittee's willingness to develop draft legislation 

that would address the CPSIA's unintended consequences on charitable organizations, such as 

Goodwill, that resell donated items, including children's products, to support the delivery of 

mission services. Goodwill is grateful that Section 3 of the current discussion draft of the 

Consumer Protection Safety Enhancement Act directly reflects comments we recently 

transmitted to the Committee. Goodwill also believes that these provisions would allow 

Goodwill stores to support Goodwill's mission through the sale of used children's apparel within 

the letter and spirit of the law. 

Members of the Subcommittee, again I thank you for the opportunity to discuss these 

concerns with you, and for pausing briefly to hold this hearing with Goodwill and other 

stakeholders to ensure that the final bill protects children from harm while enabling local 

Goodwill agencies to support their efforts to annually serve nearly 2 million people in local 

communities nationwide. 

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Mr. RUSH. The Chair now recognizes Mr. Marshall for 5 minutes. 

TESTIMONY OF DAN MARSHALL 

Mr. MARSHALL. Hello. My name is Dan Marshall. I am the founder and vice president of the Handmade Toy Alliance. The HTA represents 435 small businesses affected by the unintended consequences of the CPSIA. Thank you for the opportunity to speak 

today. 

My wife Millie Adelshime and I own Peapods Natural Toy Store 

in St. Paul, Minnesota. For the past 12 years, we have supported 

our family selling cloth diapers, baby carriers and wood toys, many 

of which are handcrafted by artisans in the United States. I am 

here today with fellow HTA board members Jolie Fay of Skipping 

Hippos in Oregon and Randy Hertzler of euroSource in Pennsylvania. 

When Congress first spoke of toy safety legislation, we all applauded your efforts. As we learned the details of the actual law, 

however, we realized that it applied not just to companies like 

Mattel that had betrayed the public’s trust but would apply broadly 

to all children’s products and effectively outlaw many small family 

businesses, not because our products were unsafe but because we 

simply could not afford the mandatory third-party testing and labeling requirements which disproportionately affect small batch 

manufacturers and specialty retailers. 

The deadline for third-party testing is February 10th of next 

year. After that point, our member businesses face extinction. Although many of us have already paid for XRF testing of our products, we simply cannot afford to pay for the services of a CPSC-certified lab. For that reason, the HTA has endorsed the Consumer 

Product Safety Enhancement Act. The provisions of this bill, which 

allow alternative testing methods for small batch manufacturers, 

are imperative to the survival of our members. We hope that it can 

proceed through this committee, the House and the Senate as 

quickly as possible. 

However, we have made it clear that we have two primary concerns regarding the language of this bill. First, we desire clarity 

and simplicity in the definition of ‘‘alternative testing method.’’ We 

believe the standard for small batch manufacturers should be the 

same reasonable testing methods applicable to non-children’s consumer products under the CPSIA. Leaving ‘‘alternative testing 

method’’ ambiguous places new rulemaking burdens on the CPSC 

and extends the uncertainty about compliance for HTA businesses. 

We are willing and able to work with the CPSC through this additional rulemaking process and appreciate the opportunity we 

have had already to work with them but we feel that more flexible 

language would greatly simplify the standard. In particular, we 

would like the committee report language, or preferably the bill 

itself, to stipulate, one, that small batch toy makers be exempted 

from third-party testing for ASTM compliance. These destructive 

tests cost $200 to $350 per toy, which is a significant impediment 

to small batch toy makers; two, that the CPSC allow the use of 

XRF testing as an alternative testing method for lead in paint, lead 

in substrate and other mineral content standards; three, that EN– 

71 testing certification qualify as an alternative testing method. 


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50 

This provision is critical for preserving access to quality European 

children’s goods and removing the regulatory trade barrier created 

by the CPSIA. And four, that small batch manufacturers be fully 

exempted from batch labeling requirements. Even with these stipulations, we do fear that non-business hobbyists and crafters will 

lack the resources and understanding to fully comply with the law. 

Our second primary concern with the bill pertains to the definition of small batch manufacturer. In particular, we are concerned 

about the $1 million company revenue cap. We feel that this limit 

should either be removed altogether or should be based only on income generated by the manufacturer or importer of children’s products without including other unrelated business income. If this 

limit is not changed or removed, we fear that this committee will 

continue to hear from constituents wondering why specialty products like adaptive toys for children with disabilities are no longer 

available. 

Finally, we have long argued that meaningful reform of the 

CPSIA should grant the CPSC the authority to make adjustments 

to the law based on risk analysis. In particular, we would like the 

CPSC to be given the flexibility to adjust certification requirements 

based on the age of a product’s intended user and the risk of injury 

that that product poses. 

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 the CPSEA and meaningful reform of the CPSIA. 

Thank you very much. 

[The prepared statement of Mr. Marshall follows:] 


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Handmade Toy Alliance 

House Commerce Subcommittee on Commerce, Trade, and Consumer Protection Testimony 

Apri129,2010 

Hello. My name is Dan Marshall. I am the Founder and Vice President of the Handmade Toy 

Alliance. The HTA represents 435 small businesses affected by the unintended consequences of 

the CPSIA. I would like to submit this statement, two letters, and our issue statement to the 

official record. 

My wife Millie and I own Peapods Natural Toy Store in St. Paul, Minnesota. For the past 12 

years, we've supported our family selling cloth diapers, baby carriers, and wood toys, many of 

which are handcrafted by artisans in the US and Europe. I am here today with fellow HTA 

Board members 10lie Fay of Skipping Hippos in Oregon and Randy Hertzler of euroSource in 

Pennsylvania. 

When Congress first spoke of toy safety legislation, we all applauded your efforts. As we 

learned the details of the actual law, however, we realized that it applied not just to companies 

like MatteI that had betrayed the publics' trust, but would apply broadly to all children's products 

and effectively outlaw many small family businesses--not because our products were unsafe, but 

because we simply could not afford the mandatory third party testing and labeling requirements, 

which disproportionately affect small batch manufacturers and specialty retailers. 

The deadline for third party testing is February 10 of next year. After that point, our member 

businesses face extinction. Although many of us have already paid for XRF testing of our 

products, we simply cannot afford to pay for the services of a CPSC-certified lab. 

For that reason, The HTA has endorsed the Consumer Product Safety Enhancement Act. The 

provisions of the bill which allow alternative testing methods for small batch manufacturers arc 

imperative to the survival of our members. We hope that it can proceed through this conunittee, 

the House and the Senate as quickly as possible. 

However, we have made clear that we have two primary concerns regarding the language of this 

bill. First, we desire clarity and simplicity in the definition of "alternative testing method." We 

believe the standard for small batch manufacturers should be the same reasonable testing 

methods applicable to non-children's' consumer products under the CPSIA. Leaving "alternative 

testing method" ambiguous places new rulemaking burdens on the CPSC and extends the 

uncertainty about compliance for HTA businesses. 

We are willing and able to work with the CPSC through this additional rulemaking process, but 

feel that more flexible language would greatly simpliJY the standard. In particular, we would like 

committee report language or, preferably, the bill itself, to stipulate: 
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1. That small batch toymakers be exempted from third party testing for ASTM 

compliance. These destructive tests cost $200 - $350 per toy, which is a significant 

impediment to small batch toymakers. 

2. That the CPSC allow the use of XRF testing as an alternative testing method for lead 

in paint, lead in substrate, and other mineral content standards. 

3. That EN-71 testing certification qualify as an alternative testing method. This 

provision is critical for preserving access to quality European children's goods and 

removing the regulatory trade barrier created by the CPSIA. 

4. That small batch manufacturers be fully exempted from labeling requirements. 

Even with these stipulations, we fear that non-business hobbyists and crafters will lack the 

resources and understanding to fully comply with the law. 

Our second primary concern with the bill pertains to its definition of small batch manufacturer. 

In particular, we are concerned about the $1 million company revenue cap. We feel that this limit 

should either be removed altogether or should be based only on income generated by the 

manufacture or importation of children's products without including other unrelated business 

income. If this limit is not changed or removed, we fear that this committee will continue to hear 

from constituents wondering why specialty products like adaptive toys for children with 

disabilities are no longer available. 

Finally, we have long argued that meaningful refonn of the CPSIA should grant the CPSC the 

authority to make adjustments to the law based on risk analysis. In particular, we would like the 

CPSC to be given the flexibility to adjust certification requirements based on the age of a 

product's intended user and the risk of injury the product poses. 

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 refonn of the CPSIA. Thank you. 

A full list of our 435 member businesses can be found at http://www.handmadetoyalliance.org. 
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April 20, 2010 

To: 

The Honorable Bobby Rush 

Chairman, Subconunittee on Commerce, Trade and Consumer Protection 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Ed Whitfield 

Ranking Member, Subcommittee on Conunerce, Trade and Consumer Protection 

2322A Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Henry Waxman 

Chairman, Committee on Energy & Commerce 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

The Honorable Joe Barton 

Ranking Member, Committee on Energy & Conunerce 

2322A Rayburn House Office Building 

Washington, D.C. 20515 

CC: 

Robin Applebeny, House Energy and Conunerce Conunittee 

Brian McCullough, House Energy and Commerce Committee 

Inez Tenenbaum, CPSC Chair 

Nancy Nord, CPSC Conunissioner 

Thomas Moore, CPSc. Commissioner 

Anne Northup,CPSC Commissioner 

Robert Adler, CPSC Commissioner 

Re: Endorsement of the CPSIA Technical Correction Bill 

To the Leadership of the House Commerce Conunittee: 
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Thank you for continuing to include us in the discussion of the CPSIA technical correction bill. 

We greatly appreciate being included in this important process and hope that we can continue to 

be an active participant in correcting some of the unintended consequences of the CPSIA. 

At this point in time, we would like to offer our endorsement of the CPSIA Technical Correction 

Bill, known as the Consumer Product Safety Enhancement Act of201O. We recognize that a 

great deal of discussion, time and effort has gone into the current draft of the amendment and 

feel that it will offer much of our membership significant relief from many of the burdens placed 

on them by the CPSIA. Our endorsement includes our desire for the bill to move through 

committee and to the House floor for a vote in the hopes to eventually be signed into law. 

We truly appreciate the time and energy the committee has spent with us exploring solutions to 

meet the needs of our small businesses. We are hopeful that the process begun by this bill will 

ensure the continued viability of the small businesses we represent and the availability of the 

quality children's products they produce. 

While we support this amendment and are happy with many of the provisions it puts forth, we 

would like to reiterate our concerns about the small batch company revenue cap. While our 

preference continues to be to remove the overall company revenue cap altogether, we appreciate 

greatly the committee's willingness to raise this limit to $1 million. This limit will help to 

include many more children's product small batch manufacturers, retail store owners and 

specialty importers. We do feel that a fairer and more logical approach would be to base this 

income limit only on income generated by the manufacture or importation of children's products 

without including other unrelated business income. 

We also recognize that much of our continued work will be in our interactions with the CPSC to 

properly implement this amendment in a way that best serves our membership and would 

therefore like to have the following repOli language attached to this bill to support our efforts. 

Committee Report Language 

We would like to see the following statements in the report language regarding alternative testing 

methods for small batch manufacturers: 

The intention of this bill is for the CPSC to ereate or approve alternate testing methods 

for as many types of products as possible so as to reduce the compliance burden for as 

many small batch manufacturers as possible. 

2 The intent of the committee is for the CPSC to allow the use of XRF testing as an 

alternative testing method for lead in paint and lead in substrate with the expectation that 

the CPSC will need to define protocols and requirements for such testing. 

3 The CPSC should evaluate risk factors including the age which a product is intended for 

and the setting in which a product will be used. Toys intended for ages 6-12 and 

educational materials intended for use under adult supervision are two examples of 

product categories which should require less scrutiny and should therefore qualifY for 

alternate testing requirements. We would appreciate it if the committee report specifically 
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referenced these two examples. 

4 The issue of EU harmonization, while not directly addressed by this bill, should be 

accommodated by allowing EN-71 testing certification as an alternative testing method. 

5 The CPSC should look at ways that flexibility in rule making can be made based on risk 

analysis. 

6 We recognize that there are specific ASTM testing protocols that do not currently have 

means to be tested for outside of an accredited laboratory, but we would like the report 

language to specifically refer to ASTM standards and instruct the CPSC to provide small 

batch manufacturers with as much latitude as possible to use alternative testing methods 

for ASTM standards. 

In conclusion, we wish to reiterate our appreciation for being included in this process. We hope 

that the committee will be able to move forward through its process and present this technical 

correction on the House floor. We feel that, although not perfect, this amendment will bring 

about a logical and meaningful correction to the CPSIA which should serve to preserve small 

businesses without compromising safety. 

On behalf of the 431 small business members of the Handmade Toy Alliance, we thank you 

again for your attention to this important issue. 

Respectfully, 

The Handmade Toy Alliance 

savehandmadetoys@gmail.com 

www.handmadetoyalliance.org. 

Board members: 

Cecilia Leibovitz, Craftsbury Kids, VT 

Jill Chuckas, Crafty Baby, CT 

Jolie Fay, Skipping Hippos, OR 

Rob Wilson, Challenge & Fun, MA 

Kate Glynn, A Child's Garden, MA 

Dan Marshall, Peapods Natural Toys, MN 

Mary Newell, Terrapin Toys, OR 

Heather Flottmann, Lilliputians, NY 

John Greco, Greco Woodcrafting, NJ 
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January 14,2010 

To: 

Ms. Inez Tenenbaum 

Chair, Consumer Product Safety Commission 

c/o Matt Howsare, mhowsare@cpsc.gov 

Ms. Nancy Nord 

CPSC Commissioner 

Mr. Robert Adler 

CPSC Commissioner 

Mr. Thomas Moore 

CPS Commissioner 

Ms. Anne Northup 

CPSC Commissioner 

RE: CPSC Recommendations to Congress for Improving the Consumer Product Safety 

Improvement Act (CPSIA) 

Dear Honorable Commissioners: 

As the Commission prepares its report to Congress regarding its suggestions for improvements 

needed to the CPS lA, we would like reiterate our concerns with the CPSIA and how it affects 

our 403 member businesses who specialize in small batch children's products. 

We appreciate the opportunities the Commission has granted us to share our concerns about the 

CPSIA. As we wrote in our letter dated October 25, 2009, our fundamental belief is that the 

CPSIA focuses resources on processes rather than safety and needlessly hampers the 

Commission's ability to make product safety determinations based on risk. Although the 

Commission has been able to address some of our concerns, including the need for exempting 

natural materials and allowing component testing, many other common-sense reforms require 

Congressional action. 
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The following is a list of legislative changes to the CPSIA that our member businesses need in 

order to survive: 

1. Grant the CPSC authority to use risk analysis to allow enforcement flexibility of third party 

testing requirements and hazardous content limits. High risk items like paint or metal jewelry 

should be held to higher verification standards than low-risk products like bicycle valve stems 

and brass zippers on children's gamlents. 

2. The definition of what is a children's product should be changed to items intended for children 

6 years or younger, except where the CPSC identifies a prodnct requiring a higher age limit 

based on risk analysis. 

3. Educational products intended for use in classroom or homeschool environment under the 

direct supervision of an adult should be exempted from the definition of a children's product. 

4. Harmonize CPSIA standards with the European Union's EN -71 standards to remove the 

regulatory trade barrier which the CPSIA created between the US and the EU. This would 

include changing the lead content standard from an untenable total lead standard to an 

absorbable lead standard. 

5. Exempt manufacturers who make less than 10,000 units per year from all third party testing 

requirements and allow them to comply instead with the 'reasonable testing program' 

requirements which apply to manufacturers ofnon-children's products under the CPSA. This 

would protect small batch manufacturers and specialty product manufacturers, including 

companies that make adaptive products for children with disabilities. These manufacturers would 

not be exempted from the standards themselves, only from the third party verification 

requirements. 

6. Tracking labels should be voluntary except for durable nursery items and products which are 

most likely to be passed down to younger siblings or resold where the CPSC's risk analysis 

determines that tacking labels would be most likely to prevent harm. Manufacturers who choose 

to implement tracking labels would benefit from a lesser burden in the event of a recall. 

7. Revisit the retroactivity of the CPSIA based on a risk-based approach with the goal of 

preserving the market for second-hand children's products. 

8. Inaccessible components, metals, minerals, hard plastics, natural fibers and wood should be 

exempted from phthalate testing. 

9. Re-calibrate CPSIA penalties based on the scale and potential harm of any violation to protect 

small business owners' access to financing and insurance. 

10. Allow the use ofXRF technology to verify lead content in substrates. 

11. Establish rules and procedures protecting manufacturers from false claims in the public 
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incident database. 

12. Require and fund an ombudsperson within the CPSC to help communicate with small 

businesses. Such an ombudsperson would serve to expedite answers to questions and give input 

to CPSC staff about policy decisions. 

13. Require the CPSC to implement an education strategy for consumers. Media attention in the 

wake of mass market toy recalls has improperly skewed the public's understanding the primary 

sources oflead poisoning, which remain lead in house paint, dirt near highly-travelled roads, and 

workplace exposure. Lead awareness campaigns from the 1970s and 80s have now been 

forgotten by today's parents even though the sanle problems persist. The CPSC should take steps 

to re-educate the public about the highest-risk sources oflead exposure. 

We strongly believe that all these changes, if implemented, would protect small businesses, 

maintain a vibrant selection of children's products in the marketplace, reduce compliance costs, 

create a more effective CPSC, and promote common sense without sacrificing safety. 

On behalf of our 403 member small businesses, we appreciate your Willingness to consider our 

concerns. We are hoping to preserve the long American tradition of hand-crafted children's 

goods while ensuring safety for the children who enjoy them. 

Respectfully, 

The Handmade Toy Alliance 

A listing of all 403 business )11embers of the Handmade Toy Alliance is available at 

http://www.handmadetoyalliance.org/members-of-the-handmade-toy-alliance 

Board members: 

Cecilia Leibovitz, Craftsbury Kids, VT 

Dan Marshall, Peapods Natural Toys, MN 

Jill Chuckas, Crafty Baby, CT 

Mary Newell, Terrapin Toys, OR 

Jolie Fay, Skiping Hippos, OR 

Heather Flottmann, Lilliputians, NY 

Rob Wilson, Challenge & Fun, MA 

John Greco, Greco Woodcrafting, NJ 

Kate GlYI11l, A Child's Garden, MA 

cc: 

Senator Jeff Merkley, Senator John Kerry, Senator Amy Klobuchar, Senator Christopher Dodd 
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Save Small Businesses from the CPSIA 

The Problem The Consumer Product Safety Improvement Act (CPSIA) is overly 

broad in its focus and puts unrealistic testing costs on small businesses that were 

already providing safe products. The result is a decreased capacity to protect 

consumers, and severe financial hardship for small business. 

What should Congress do? 

The CPSC has indicated that they are unable to fix the nnintended consequences ofthe CPSIA without a 

technical amendment from Congress. We are seeking: 

1. Component-based testing so that suppliers of our raw materials could provide the children's product 

manufacturer with certification of compliance within the law, which would eliminate the need for 

redundant and costly unit-based testing. Safety would be improved by driving compliance upstream in the 

supply chain, catching non-compliant materials prior to distribution, practically eliminating the chance 

that any given finished unit would be non-compliant. 

2. Exemptions from testing for materials known by science not to pose a lead or phthalate contamination 

hazard, such as fabrics, certified organic materials, and many natural materials such as wood, paper and 

bamboo. Manufacturers would be spared the costs of testing these materials, and testing labs and the 

CPSC could better focus their efforts on high-risk matcrials such as metals and paints. 

3. Harmonization with European Standards. Accepting the stringent EU standards in the United States 

as sufficient for the requirements ofCPSIA would save cOl.ll1tless US businesses that import from or 

export to the EU from the costs ofperfonning multiple tests. US and EU regulators would be able (0 work 

together to oversee the global marketplace. 

4. Exempt permanent batch labeling of products for hand crafted and micro businesses that have small 

batch runs. While permanent labeling may be efficient with large runs of plastic products, it would be 

extremely difficult and cost prohibitive for small batches made from wood or fabric. 

5. Revisit the retroactivity of the CPSIA based on a risk-based approach. 

Fixing the CPSIA now before any more law-abiding and well-intentioned small companies are forced out 

of business will preserve the integrity of the original legislation, prevent political backlash, and refocuses 

the efforts of the CPSC to fulfill the law's original purpose. To date, some businesses have discontinued 

their children's lines or have closed altogether. Libraries are sequestering children's books printed prior to 

1985. Thrift stores have removed children's prodncts from their shelves. Several European toy 

manufacturers have pulled out of the US market. ATV and motor bike manufacturers and storefronts have 

removed inventory intended for children 12 and under, including replacement parts. Without common 

sense changes to the CPSIA. the tragic result will in fact not be increased prodnct safety, but the closiug 

of small businesses that were already providing safe products. 

About the Handmade Toy Alliance 

The Handmade Toy Alliauce (www.handmadetoya!liance.org)representssmalltoymakers.children.s 

product manufacturers, and independent retailers whose businesses cannot survive without repairing the 

CPSIA. We believe that these changes will not only help our businesses, but many other companies large 

and small who have been caught in a snarl of unintended consequences, affecting everything from apparel 

to educational materials for children with disabilities. We need common sense reform to preserve the 

heart and soul of American toys and children's products. 
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HTA Member List 

April 27, 2010 
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!pinafores & Knickerbockcrs 

: Pioneer Pastimes 

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Co. 

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71 

Mr. RUSH. Ms. Weintraub, welcome back to the subcommittee, 

and you are recognized now for 5 minutes. 

TESTIMONY OF RACHEL WEINTRAUB 

Ms. WEINTRAUB. Thank you very much. Chairman Dingell, 

Chairman Rush, Representatives Barton and Whitfield, thank you 

and other members of the committee. Thank you very much for inviting me here today. I am Rachel Weintraub, director of product 

safety and senior counsel with the Consumer Federation of America. CFA is a nonprofit association composed of over 300 State and 

local pro-consumer groups that was founded to advance the consumer interest through education and advocacy. I offer this testimony on behalf of CFA as well as Consumers Union, Kids in Danger, the National Research Center for Women and Families, Public 

Citizen and the U.S. Public Interest Research Group. 

In 2008, the bipartisan Consumer Product Safety Improvement 

Act passed overwhelmingly in both the House and Senate. Before 

this law passed, Congress undertook at least a yearlong deliberative process to consider the implications of this Act. There were approximately 15 hearings and markups in the House and Senate 

covering issues and products related to the CPSIA and a conference 

in regular order between both chambers of Congress. The resulting 

law, the CPSIA, will make consumer products safer by requiring 

that toys and infant products be tested before they are sold and by 

practically banning lead and phthalates in children’s products. This 

law also authorizes the first comprehensive publicly accessible consumer complaint database, gives the CPSC the resources it needs 

to protect the public such as enabling it to hire additional staff who 

do the work at the agency and increase civil penalties. The CPSIA’s 

passage came in the wake of a record number of recalls of hazardous products from the market that injured and killed vulnerable 

consumers and a weakened federal oversight agency that failed in 

its meager efforts to protect the public’s health and safety. 

Consumers believe that the products they buy for their children 

should be safe. Many consumers believed that some entity issued 

stamps of approval for products before they were sold in a store. 

However, that was never true. The CPSIA significantly changes the 

reactive nature of the CPSC by requiring that children’s products 

subject to mandatory standards be tested for safety before they are 

sold. 

The Consumer Product Safety Enhancement Act was drafted in 

response to requests for flexibility and exemptions from some of 

CPSIA’s provisions raised by various entities. The consumer community, which has strongly supported the CPSIA, believes that any 

changes made to the CPSIA must not weaken product safety standards and must not weaken public health protections. The current 

draft of the CPSEA grants CPSC more flexibility in decision making and provides additional assistance to manufacturers. However, 

overall, it does not appear that the public health will be harmed. 

We do not oppose the current text of the CPSEA. 

The functional-purpose exemption in section 2 contains a threepart test for manufacturers to seek exemptions from lead requirements. Each of these prongs is necessary to protect the public 

health. These criteria should not be weakened in any way. 


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Section 3 of the bill includes exemptions for thrift stores and 

other retailers. While this goes quite far in exempting these products from the lead limits of the CPSIA, the provision includes necessary limitations that does not allow exemptions for certain highrisk products. We could not support any weakening of this provision, either. 

The special provisions for small businesses include allowing certain businesses to be exempt from third-party testing when the 

Commission finds that reasonable testing methods assure compliance with relative safety standards. We also could not accept any 

weakening of this provision. 

Despite the delicate balance that the CPSEA achieves, however, 

there have been two proposals offered by others that if implemented would serve to considerably weaken public health. They 

would open a series of gaping loopholes in the CPSIA that allow 

more lead into a host of toys and other products. These proposals 

are not included in the bill and we would oppose any inclusion of 

them in any legislation. 

First, some have argued that the CPSIA should not apply to children’s products for children 12 years and younger but rather 

should cover those only intended for children six and younger. This 

approach was rejected by Congress when it passed the CPSIA. Congress embraced the belief that there is in fact a shared toy box, and 

as a mother of three children, I see it every single day. Thus, the 

reality that children’s toys and products are often shared by children within a family plus the fact that many within the industry 

are already complying with the higher age standards requires the 

scope of the CPSIA to remain as is. And second, some have proposed that a risk analysis be applied for regulating lead in products. Requiring the CPSC to conduct risk analysis for lead is not 

acceptable. It would reverse the presumption for safety. It would 

mean a return to the state of the law before CPSIA was passed, 

and this has been rejected by Congress and by consumers previously as not being sufficiently protective of public health and far 

exceeds the flexibility that the CPSC requested to regulate lead. 

Lead is a well-documented neurotoxin that has a wide range of 

effects on a child’s development including delayed growth and permanent brain damage. In the rare instance that children’s products 

require lead, the CPSEA provides for a targeted exemption for 

functional purpose. This exemption is tightly drafted to ensure that 

children remain protected from harms of lead exposure. 

The proposed CPSEA appears to carefully balance two distinct 

schools: to uphold the safety protections provided in the CPSIA 

while seeking to accommodate the adamant request by some stakeholders to alter certain provisions. This fine balance can easily be 

destroyed if the limited public health protections in the bill are removed or narrowed. 

OK. I have one final sentence. Thank you. Our organizations 

would oppose any alteration of this legislation that would loosen 

product safety standards and once again leave consumers and their 

families vulnerable to unsafe products. Thank you. 

[The prepared statement of Ms. Weintraub follows:] 


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~c~~ Consumer Federation of America 

Testimony of 

Rachel Weintraub 

Director of Product Safety and Senior Counsel 

Consumer Federation of America 

Before the 

Subcommittee on Commerce, Trade and Consumer Protection 

Committee on Energy and Commerce 

u.S. House of Representatives 

Hearing on the Consumer Product Safety Enhancement Act 

Apri129,2010 

2322 Rayburn House Office Building 
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Chairman Rush, Representative Whitfield and members of the Subcommittee on Commerce, 

Trade and Consumer Protection. I am Rachel Weintraub, Director of Product Safety and Senior 

Counsel at Consumer Federation of America (CFA). CFA is a non-profit association of 

approximately 300 pro-consumer groups, witha combined membership of 50 million people that 

was founded in 1968 to advance the consumer interest through advocacy and education. I offer 

this testimony on behalf of Consumer Federation of America as well as Consumers Union, Kids 

in Danger, National Research Center for Women & Families, Public Citizen, and the U.S. Public 

Interest Research Group. 

As organizations dedicated to working to protect consumers fTOm unsafe products, I offer 

testimony today to articulate our views about the Consumer Product Safety Improvement Act of 

2008 (CPSIA) and the Consumer Product Safety Enhancement Act (CPSEA). 

The bi-partisan Consumer Product Safety Improvement Act passed overwhelmingly by the 

House on July 30, 2008 by a vote of 424-1, by the Senate on July 31,2008 by a vote of89-3 and 

was signed into law by President Bush on August 14,2008. Before this law passed, Congress 

undertook a year-long deliberative process to consider the implications ofthis Act: there were 

numerous hearings: approximately 15 hearings and markups in the House and Senate covering 

issues and products related to the CPSIA, and a conference in regular order between both Houses 

of Congress. This much-needed law institutes the most significant improvements to the 

Consumer Product Safety Commission (CPSC) since the agency was established in the 1970's. 

CPSIA's significance, new requirements and implementation 

The CPSIA's passage followed a period of a record number of recalls of hazardous products 

from the market that injured and killed vulnerable consumers, and a weakened federal oversight 

agency that failed in its meager efforts to protect the public's health and safety. 

It has been almost two years since the CPSIA was passed. The relatively new law will make 

consumer products safer by requiring that toys and infant products be tested before they are sold, 

and by banning lead and phthalatcs in toys (although implementation of the testing requirement 

has been twice delayed by the CPSC). The law also authorizes the first comprehensive publicly 

accessible consumer complaint database due to be launched in March 2011; gives the CPSC the 

resources it needs to protect the public, such as enabling it to hire additional staff; increases civil 

penalties that the CPSC can assess against violators of consumer product safety laws; and 

protects whistleblowers who report product safety defects. 

Consumers believe that the products they buy for their children should be safe. Many consumers 

believed that products were tested before they were sold -- that some entity issued stamps of 

approval for products before they were sold in the store. However, that was never true. Before 

passage of the CPS lA, the CPSC only had authority over products after they werc sold. If a 

problem was identified as posing a risk ofhann to consumers, the CPSC could recall the product, 

but that was only after the harm was already in consumers' homes and in their children's hands. 

The CPSIA significantly changes the reactive nature of the CPSC by requiring that children's 

products subject to mandatory standards be tested for safety before they are sold. 
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Since passage of the CPS lA, there have been many challenges to implementation: a CPSC that 

moved slowly and gave out confusing infonnation; an economic downturn that has affected 

businesses; the realization that lead is more pervasive in consumer products than had been 

expected; and concerns about the law's implementation consistently raised by manufacturers, 

small businesses, crafters and thrift stores. 

Proposed revisions 

The Consumer Product Safety Enhancement Act of2010 (CPSEA) was drafted in response to 

requests for flexibility and exceptions from some CPSlA provisions raised by various 

manufacturer and retailer entities, including small businesses, thrift stores and the ATV industry. 

The CPSC itself has requested additional discretion to implement certain CPSIA provisions, 

particularly regarding the lead requirements. 

The consumer community, which has strongly supported the CPSIA and its capacity to boost 

product safety, believes that any changes made to the CPSIA must not weaken product safety 

standards and must not weaken public health protections. The current draft of the CPSEA grants 

CPSC more flexibility in decision-making and provides additional assistance to manufacturers. 

However, overall, it does not appear that the public health will be harmed from the proposal. We 

do not oppose the current text of the CPSEA. 

The legislation will: alter lead-testing provisions to allow manufacturers to seek exemptions 

under "functional purpose" criteria; loosen requirements for used products; create an exception 

to third party testing for small batch manufacturers; and authorize an office to assist small 

businesses with their compliance of consumer product safety laws. 

The functional purpose exemption, in section 2, contains a three--part test for manufacturers to 

seek exemptions from lead requirements: (I) that the product, material or component requires th( 

lead because it is not practicable or not technologically feasible to manufacture the product, 

material or component in compliance with the lead provisions; (2) the product, material or 

component is not likely to be mouthed or ingested, taking into account normal and foreseeable 

use and abuse; and (3) the exemption will have no measurable adverse effect on public health or 

safety. We do not oppose the circulated report language explaining "practicable" and 

"measurable adverse impact" and we agree that the Commission must take into account 

excessive or unreasonable costs when considering whether compliance is impracticable, without 

weighing additional, unrelated factors, such as any potential benefits of the product. These 

criteria should not be weakened in any way. 

Section 3 of the bill includes exceptions for thrift stores and other retailers. While this goes quite 

far in exempting used products from the lead limits of the CPSIA, the provision includes 

necessary limitations that do not allow exceptions for certain high-risk products, including: 

children's metal jewelry, painted children's toys, children's products composed primarily of 

accessible vinyl, any product that the donating party or seller knows is in violation of the lead 

limits, and any other children's product designated by the Commission. We could not support 

any weakening of this provision. 

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Special provisions for small businesses includes allowing certain businesses to be exempt from 

third party testing whcn the Commission finds that reasonable testing methods assure compliance 

with relevant consumer product safety standards. We believe, however, that the term "small 

batch manufacturer" is defined too broadly. We commend the fact that the language does not 

allow small batch manufacturers to obtain exceptions for durable infant or toddler products or 

lead paint, cribs, pacifiers, small parts, children's metal jewelry, baby bouncers, walkers and 

jumpers. Because of the fatal nature ofthe defects in many of these types of products, as 

demonstrated by recalls in the past, all manufacturers should be required to meet the same safety 

and testing requirements. We could not accept a broadening of either the definition of small 

batch manufacturer or a limitation ofthose products not covered by this provision. 

The Consumer Product Safety Enhancement Act balances upholding the protections provided in 

the CPSIA to protect public health with the requested flexibility under certain circumstances. 

This balance can easily be lost if public health protections in the bill are removed. Our 

organizations would oppose any weakening of the CPSEA. 

Despite the delicate balance that the CPSEA achieves, however, there have been two proposals 

offered by others that, if implemented, would serve to considerably weaken public health. They 

would open a series of gaping loopholes in the CPSIA that would allow more lead into a host of 

toys and other products meant for children. Those proposals are not included in this bill and we 

would oppose any inclusion of them in any legislation. 

Protections must remain for children 12 and younger 

First, some have argued that the CPSIA should not apply to children's products for children 12 

years and younger but rather should cover only those products for children 6 and younger. This 

approach was rejected by Congress when it passed the CPSIA. Congress embraced the beliefthat 

there is a "shared toy box" in many families' homes. Wc agree as it reflects the reality of what 

we know to be true in many homes across the United States. Children of younger ages play with 

toys of their older siblings. Younger children mouth their older siblings' toys with frequency. 

Further, the voluntary standard for toys - ASTM F 963 - includes an even broader scope to 

cover toys intended for children 14 and younger. This means that many eompanies are already 

complying with voluntary safety standards that encompass toys intended for children 14 and 

younger. Thus, the reality that children's toys and products are often shared by children within a 

family, plus the fact that many within the industry are already complying with a higher age 

standard, requires the scope of the CPSIA to remain as it is. 

No known safe level oflead 

Second, some have proposed that a risk analysis be applied for regulating lead in products. 

Requiring the CPSC to conduct risk analysis for lead is not acceptable. Risk analysis would 

reverse the presumption for the safety of products and allow all products to be sold and be 

exempt from testing for lead unless the CPSC finds otherwise. This would mean a return to the 

state of the law before the CPSIA was passed. As we witnessed in the years before the CPSIA, 

the record number oflead-laden products that were recalled from the market proves that this 

approach results in an unreasonable risk of injury to consumers. It will amount to a waste of 

Commission resources, has been rejected by Congress previously as not being sufficiently 

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protective of public health, and far exceeds the flexibility that the CPSC requested to regulate 

lead. 

The American public demands that children's products not pose risks for the children who will 

play with or sleep in those products. Lead is a well-documented neurotoxin that has a wide range 

of effects on a child's development including delayed growth and permanent brain damage. 

There is no known safe level of exposure. Exposure to lead is cumulative over time and there are 

many pervasive roots oflead exposure. As a society, we have spent years trying to reduce lead 

levels in our air, soil and homes. We must continue to work to reduce lead in other products 

where it is not necessary. While ideally Congress would seek to remove lead from all household 

products, Congress in the CPSIA focused on the products most likely to be in contact with 

children. Nearly all toys and infant durable products do not require lead, should not contain lead 

and can be made effectively without lead. In the rare instance that children's products require 

lead, the CPSEA provides for a targeted exemption for functional purpose. This exemption is 

drafted tightly to ensure that children remain protected from harms of lead exposure. We would 

have grave concerns if any of the limiting factors were removed. 

Consumers were outraged when it became clear that lead was present in children toys. clothes, 

lunch boxes, and other products. Even though CPSC had some existing authority to ban lead, it 

was not used effectively, and there were too many products that contained lead which posed a 

hazard to our children. Thus, not only did a bright line limit for lead gain widespread support, but 

third-party testing to make sure the products complied with the standards was also necessary and 

became law. Most importantly, the scientific evidence demonstrates abundantly that lead is a 

poison to children's developing brains and bodies. There is no known safe level oflead and there 

is no justification for allowing lead in children's products when safe alternatives exist. 

Congress mnst support CPSC's mission 

CPSC plays an incredibly crucial role in ensuring that consumer products are safe and is 

responsible for implementing the CPSIA. This draft legislation gives CPSC more discretion. It is 

imperative then that the agency be appropriately funded at all times to do its job properly. 

Congress must also monitor the agency's activities to ensure that the CPSC is exercising its 

existing and new authority in accordance with Congress' intent, and most importantly, to ensurc 

that the agency is carrying out its primary mission to protect consumers from unreasonable risk 

of injury caused by hazardous products. 

The proposed Consumer Product Safety Enhancement Act appears to carefhlly balance two 

distinct goals: to uphold the safety protections provided in the CPSIA while seeking to 

accommodate the adamant requests by some stakeholders to alter certain provisions. This fine 

balance can easily be destroyed if the limited public health protections in the bill are removed or 

narrowed. Our organizations would oppose any alteration of this legislation that would loosen 

product safety standards and once again leave consumers and their families vulnerable to unsafe 

products. 

We look forward to working with you to protect the public from harms posed by hazardous 

products 

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78 

Mr. RUSH. The Chair recognizes Mr. Levy for 5 minutes. 

TESTIMONY OF STEVE LEVY 

Mr. LEVY. Good morning, Chairman Rush, Ranking Member Barton, Ranking Member Whitfield, Vice Chair Schakowsky. My name 

is Steve Levy. I am the director of operations for Star Ride Kids. 

We are a children’s wholesaler based on New York. Today I am 

speaking on behalf of the American Apparel and Footwear Association, the AAFA. I would like to ask the committee’s permission to 

enter my full statement into the record. In the written comments 

we have laid out specific recommendations for the proposed amendments. Right now I am just going to take a little bit of a broader 

look. 

Our association, the AAFA, represents over 600 apparel and footwear manufacturers and wholesalers. The majority of children’s 

clothing and footwear sold in this country each year comes from 

companies in our association. Although we have several large companies in our group, many of our members are what the Small 

Business Administration identifies as small businesses, enterprises 

with an average of 50 or less employees. We have many family-run 

businesses as well, many being run by second generation and in 

some cases third and fourth generations. We make safe children’s 

wear. Safety has been and always will be a priority for us. 

To give you a little bit of background on apparel, footwear and 

lead, in general apparel and footwear are inherently lead-free. Lead 

is not an ingredient when manufacturing apparel. Lead does not 

show up in the fabric itself that is used to make apparel. In the 

40,000 lab test reports that the AAFA, our group, provided to 

CPSC last year, there was no lead in any of the fabric. In less than 

5 percent of the reports, lead did show up in certain embellishments and accessories. 

So where might lead come to play in children’s apparel? There 

may be trace elements of lead in the metals used sometimes to 

make zippers and grommets. In addition, fake rhinestones and 

crystals, what we call ‘‘bling’’ in our industry, that are used to embellish garments may also have lead. There may be trace elements 

of lead in certain pigments used to achieve color depth in buttons. 

But more often than not, like the fabric, embellishments and accessories don’t have lead in them. 

Are we an industry taking steps to eliminate these sources of 

lead? Absolutely. Is the amount of lead we are talking about a 

threat to public health and safety? Absolutely not. I can say this 

with confidence because the committee through its proposal to permanently exempt used clothing stores and the CPSC through its 

findings have confirmed this. The CPSC has not advised parents to 

go to their closets and remove all pre-CPSIA clothing if they were 

not able to verify that the lead levels of their clothing didn’t meet 

the new standards in the CPSIA. So we do have and will continue 

to have apparel manufactured before the CPSIA being worn and 

being sold and exchanged through used clothing stores for many 

years to come. So the threat of lead in apparel is nonexistent. Just 

as an overview, the total children’s wear children’s industry recalls 

for 2008 was .0082 of more than 6 billion items of clothing and 

pairs of shoes sold in 2008. 


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So if lead in children’s clothing and footwear is not a threat, then 

what is the solution? The ideal solution would be to include in this 

proposed amendment the exemption for new apparel and new footwear just as you have proposed for used clothing. In any event, the 

CPSC must be empowered to use science and risk assessment in 

determining exemptions and promulgating regulations. As an example, they recently reviewed rhinestones, the bling we were talking about, the rhinestones, and they found that the lead did not 

leach out into the body when tested through the acid digestive 

method, so although the absolute levels of lead were higher than 

the CPSIA, they did not go into the body. 

Additionally, federal preemption of State safety regulations including proposition 65 in California, which had a special carve-out 

in the CPSIA, must be included in this amendment because there 

is a great deal of confusion and fear in the marketplace due to conflicting and overlapping regulations and requirements. 

Keep in mind, the CPSC of today is a very different agency from 

what it was in 2008. Today it is fully funded. There is a new commissioner. All five of the commissioner seats are there. So Congress 

should have the faith in the agency and its competent leadership 

that they can execute the will of Congress and the intent of safety 

and product safety. So please allow them to ensure that the regulations promote product safety and don’t get in the way of product 

safety. Thank you. 

[The prepared statement of Mr. Levy follows:] 


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Statement of Steven Levy 

Star Ride Kids 

On Behalfof 

American Apparel & Footwear Association (AAFAJ 

House Energy and Commerce Committee 

Subcommittee on Commerce, Trade, and Consumer Protection 

April 29, 2010 

Good morning. 

My name is Steve Levy. I'm Director of Operations of Star Ride Kids, a New York based 

wholesaler of children's apparel. Thank you for pro,iding us this opportunity for me to appear 

before you this morning on behalf of American Apparel & Footwear Association (AAFA) the 

national trade association of the apparel and footwear industry, and its suppliers. 

At the outset, let me state our very strong snpport of a product safety system that ensures that 

only safe and compliant product be designed, produced, marketed, and sold. At Star Ride Kids, 

and throughout the industry, we take our product safety obligations seriously. We ;;ew this 

obligation as key to our business, not only because such an approach is the right thing to do, 

but because we are also parents and grandparents ourselves and believe very strongly that our 

kids should only be exposed to safe clothes, shoes, and other products. 

Even before the passage of the Consumer Product Safety Improvement Act (CPSV\.), AAFA has 

worked to educate the apparel and footwear industry on important product safety compliance 

initiatives. For several years, we have published a free Restricted Substances List (RSL) that 

helps companies understand international product safety standards and implement a chemical 

management program. For the past 18 months, we have conducted dozens of webinars, 

briefings, and trainings, throughout the United States and on four continents on the CPSIA. 

Next week, for example, we are holding two seminars in China. 

Finally, AAFA staff and member companies have been active participants in many of the 

Consumer Product Safety Commission (CPSC) regulatory acti;;ties and have worked closely 

"With the Commission's staff to ensure that thc regulations were crafted in such a way that they 

did not hinder the ability of companies to make safe and compliant products. A, a rcsult of 

this partnership, which is on-going, some of the critical implementation issues faced by textile, 

apparel, and footwear businesses have been largely addressed. The recent determination that 

there is no lead in textiles and therefore no need for testing and certification of such 

materials - is one such example. The imminent ruling to permit component level testing we 

hope will be another. 

Unfortunately, some problems cannot be fixed through the regulatOlY process. 

1601 Nortn Kent Street, SUlte 1200. Arlmgton, VA 12209 www.apparelandfc)otwear.org p(703)524.1864 (800)520-2261 f(703)522-6741 
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It is for this reason that we have been strong supporters of initiatives to amend the CPSlA and 

why we are pleased that this hearing is occurring today. 

The proposed amendment, the Consumer Product Safety Enhancement Act (CPSEA) 

represents an important step forward in the process to fix some of the unintended 

consequences of the CPSlA that have caused considerable disruption to businesses over the 

past year and a half. 1'd like to offer our assessments on several provisions in the draft CPSEA 

and suggest several areas of improvement as this process moves forward. 

100ppm 

We are especially supportive of provisions ofthe amendment that make the 100ppm lead 

standard that goes into effect August 14, 2011 prospective. The retroactive characteristics of 

the previous and existing lead standards were devastating, resulting in the destruction of many 

millions of dollars of safe, but suddenly non compliant, product. Making the new lead 

standard prospective will minimize the adverse impact on businesses without compromising 

children's health or safety. 

Exclusions 

We also support efforts to grant the Commission greater flexibility to exempt materials, 

components or products from the lead standard when there is no threat to public health and 

safety. It is now well-documented that the CPSlA's excessively strict lead standard exemption 

language prevented several categories of safe products, like children's apparel and footwear 

products containing crystals and rhinestones, from being sold. These determinations were 

made despite significant scientific data that the aforementioned products were safe. It is our 

expectation that the new exception language will give the CPSC the simple ability and flexibility 

to grant exceptions to these and other similar materials used in children's products when they 

do not present a danger to public health and safety. 

Testing and Certification Relief 

We also support efforts to give the CPSC authority to grant testing and certification relieffrom 

third party testing. While the CPSEA envisions such relief, it confines that relief to certain 

small volume manufacturers only. Inasmuch as the obligation to make safe and compliant 

products does not depend upon the number of employees or one's annual sales, we strongly 

believe that this relief should be available to all businesses, regardless of their size. 

An on-going concern remains the impact of third party testing, which is already in effect for 

lead in coatings and takes effect for lead substrates next February. This is perhaps one of the 

greatest arcas of concern for our members - regardless of their size. In about ten months, 

when the current stay of enforcement expires, companies will be forced to rely on third party 

testing for a variety of components, materials, and products. Based on our experience from 

the initial days of the CPSlA, we believe there will be incredible demands placed on a finite 

number of labs. While component level testing, combined with some of the determinations 

made thus far, may mitigate some of that impact, there is great concern that we will see 

'lVidespread shortages oflab capacity, price increases, and delays when the stay is lifted. For an 

industry that is time- and price-sensitive, the economic impact of such an occurrence is 

unacceptable. 

Moreover, this is not a good outcome for product safety. Putting product safety first includes 

making sure lab resources are directed at those components or materials that present the 

greatest risk or about which there is uncertainty. But the system we are about to see will treat 

all components and materials equally regardless of risk. Materials that are safe and compliant 

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will be subject to repeated, and expensive, third party testing. This will continue to occur 

despite the fact that most materials in a clothing and footwear have been lead free for years. 

Consumer product testing is extremely important to our members. Although companies 

currently do not have to conduct third-party tests for lead substrate (because of the stay of 

testing and certification), they have implemented robust, efficient and effective testing 

programs throughout their supply chains to check production and ensure product compliance. 

Members use various technologies right at the production line to immediately test for a 

problem and, if they happen to encounter one, deal with it right away. We believe that this 

type of verification is the most effective and efficient way for a company to test for lead during 

production and, more importantly, ensure that products are safe for our children. 

The CPSC should have full flexibility to authorize alternative testing requirements in lieu of 

third party testing. This flexibility is appropriately applied to all companies - not just certain 

small batch manufacturers. Allowing the Commission to approve alternative testing methods 

in lieu of third party testing will result in an increase in product testing and product safety 

assurance. 

Preemption 

More work needs to be done to ensure that the CPSIA fully preempts state and local product 

safety rules. Companies find it increasingly difficult to manage the conflicting and ever 

growing number of state regulations that are being promulgated. Companies labor to comply 

with the CPSIA only to find out - often after the fact that they are not in compliance with a 

little known state standard. To comply with drawstring limitations, companies must meet 

conflicting standards established at the federal level and in the states of New York and 

Wisconsin. And this is just the tip of the iceberg, with new rules coming online in Illinois, 

Connecticut, Maine, and elsewhere. With regard to CPSIA, California Proposition 65, in 

particular, has created significant difficulties because it relies upon different standards and 

product coverage, even though it purports to address product safety as well. While I 

understand Congress exempted out Proposition 65 from the CPSIA, I think this is a mistake. 

We urge you to make federal preemption stronger to cover all these others measures so we can 

achieve a single, harmonized national product safety standard. 

Final Thoughts 

Let me conclude by addressing another critical issue not specifically addressed by the CPSEA. 

We encourage the Committee to keep a close eye on the on-going regulatory process at the 

Commission. As the Commission continues to publish an amazing number of regulations to 

implement the CPSIA, we are finding that some guidance that is intended to help may in fact 

create more problems. A directive to run validation tests on third party testers is one recent 

example that will only lead to more testing costs with no product safety benefit. The most 

effective product safety system we can have is one that recognizes that the regulated companies 

are active partners of the Commission. But if these companies are constantly subjected to 

burdensome, costly, and, in some cases, silly requirements, that partnership is severely 

strained and, in the process, product safety takes a black eye. The Commission should be 

commended for the enormous amount of work they are doing in implementing the CPSIA. But 

the Commission also needs to focus on other important safety efforts - outside the CPSIA - as 

well. We encourage the Committee to recognize that this work is being done under enormous 

pressure, great expectations, and very tight timetables. It is our hope that the Committee will 

continue to revisit CPSIA implementation and indeed the work of the agency in future 

hearings. 

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Mr. Chairman, the CPSC and the regulated community have come a long way over the past two 

years. Thanks to your leadership we now have five Commissioners and an agency that is more 

fully funded. The CPSIA was indeed a "wake-up" call for the agency and for many in the 

business community to tighten their own product safety regimes. But the CPSIA also created 

considerable pain for companies who were already doing the right thing in this area. In some 

cases, that pain came "ith little gain for public safety. 

With an eye to maximizing public health and safety, it is our hope that through this CPSEA we 

can give the agency additional tools it needs to create a stable, predictable, risk-based, and 

science based regulatory environment. 

Thank you again for providing us this opportunity to discuss the CPSEA. I am available to take 

questions. 

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Mr. RUSH. The Chair now recognizes Mr. Woldenberg for 5 minutes for the purposes of opening statement. 

TESTIMONY OF RICHARD WOLDENBERG 

Mr. WOLDENBERG. Thank you. Mr. Chairman, Ranking Member 

Whitfield and distinguished members of the subcommittee, thank 

you for the opportunity to testify this morning. My name is Richard 

Woldenberg. I am chairman of Learning Resources Inc., a Vernon 

Hills, Illinois-based manufacturer of educational materials and 

educational toys. 

I have administered or supervised our company’s safety and regulatory compliance activities since 1990. We are very proud of our 

safe products. Having devoted considerable resources to safety over 

the years, Learning Resources suffered only one recall of 130 pieces 

in its 25-year history. To put this minor event in perspective, I estimate that we have sold about 1 billion pieces of our products over 

the years. 

Despite our exemplary safety record, the CPSIA made us feel like 

public enemy number one. The challenges of the new law have 

been enormous. While I favor efforts to make children’s products 

safer, this new law has had little impact on safety. Instead, this 

law has increased manufacturing costs, eliminated jobs and killed 

off safe products simply because they are no longer economic to 

produce. 

The CPSIA makes the cost of compliance unbearable. From 2006 

to 2008, our testing costs have increased more than eight fold. We 

estimate that these costs will triple again after the CPSC lifts its 

testing stay in 2011. Testing costs are often thousands of dollars 

per product. Our quality team has grown from one person to four, 

including me, plus an outside lawyer on retainer. This staff is likely to increase just to manage more paperwork. Despite these heavy 

costs, our safety record is unlikely to improve. Our products were 

already proven safe. 

Our problems don’t end with testing costs or increased staffing. 

We are being crippled by regulatory complexity. More than 20 

months after the passage of the CPSIA, we still don’t have a comprehensive set of regulations. Please consider how mind boggling 

these rules have become. Here are the CPSC rules that governed 

our company until 2008. At only 186 pages, these rules clearly defined our responsibilities and could be taught to our staff. Compliance with the law was a focused, manageable task. Today, the 

rules total almost 2,500 pages, and these are not all the rules, just 

the ones that pertain to my business. And the rules keep changing 

and they are not finished. We are acutely aware that each word in 

every rule is a potential source of liability now up to and including 

jail time. This three-inch wedge, 608 pages, is what the CPSC has 

published in the last month alone that pertain to my business. Can 

you imagine trying to master these rules and teach them to your 

staff while still doing your full-time job? Ironically, the recalls of 

2007 and 2008 were never a rules problem. Those famous recalls 

were clearly a compliance problem. Imagine what will happen now 

with a 12-fold increase in rules. 

The confusion from this tangle of rules and regulations hurts us 

every day. We spend an inordinate amount of time arguing with 


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customers over the rules, often having to call lawyers to resolve 

disputes. It makes doing business slow, tedious and very expensive, 

not to mention unpleasant. 

Many companies are tiring of the continual fighting and are 

dropping products and vendors. Who will be served by the end of 

commerce in these safe products? Small businesses are particularly 

ill suited to managing these challenges. They lack the skills, resources and the business scale to absorb these responsibilities. It 

is no longer a level playing field for small businesses making children’s products. Consequently, small businesses bear the greatest 

risk of liability under the law, despite being responsible for almost 

no injuries from lead in the last decade. The double whammy of 

massive new regulatory obligations and the prospect of devastating 

liability are driving small businesses out of the market today. The 

CPSIA went off track by taking away the CPSC’s authority to assess risk. If the CPSC could again regulate based on risk, safety 

rules could focus on those risks with the real potential to cause 

harm to children. 

I recommend several steps to reduce complexity and cost without 

sacrificing children’s product safety. First, restore risk assessment 

to the CPSC. Second, reduce the age limit in the definition of children’s products to six years of age. Third, restrict tracking labels 

to durable products with the proven potential to do harm and with 

long product life. And fourth, impose procedural limits to ensure 

fairness in penalty assessment under the CPSIA. 

In conclusion, I urge your committee to address the fundamental 

flaws in the CPSIA to restore order to the children’s product market and to protect small businesses from further damage. 

I appreciate the opportunity to share my views here today and 

I am happy to answer your questions. 

[The prepared statement of Mr. Woldenberg follows:] 


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House Committee on Energy and Commerce 

Subcommittee on Commerce, Trade, and Consumer Protection 

April 29, 2010 

Re: The Consumer Product Safety Enhancement Act 

Statement of 

Richard M. Woldenberg 

Learning Resources, Inc. 

380 North Fairway Drive 

Vernon Hills, Illinois 60061 
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STATEMENT OF RICHARD M. WOLDENBERG 

Chairman, Learning Resources, Inc. 

Vernon Hills, Illinois 

As an operator of a small business making educational products and educational toys, I 

have had a front row seat for the evolution and implementation of the Consumer Product Safety 

Improvement Act of 2008 (CPSIA). On the occasion of your consideration of the Consumer 

Product Safety Enhancement Act of 2010 (CPSEA), I want to highlight the economic damage 

and other unintended consequences wrought by the CPSIA on the corporate community without 

achieving any material improvement in safety statistics, and outline how market order can be 

restored without adversely affecting consumer safety. 

Children are our business. As educators, as parents and as members of our community, 

we have always placed the highest priority on safety. We would not be in the business of 

helping children learn if we didn't care deeply about children and their safety. Our 25-year 

~afety track record is sterling as a result of continuous effort to manage safety risks in our 

business. Nevertheless, the CPSIA has dramatically impacted our business model, reduced our 

ability to make a profit and create jobs, pared our incentive to invest in new products and new 

markets, and generally made it difficult to grow our business. We would accept the burdens 

placed upon our business if this law made our products safer, but the fact is that it hasn't. Our 

company, Learning Resources. Inc., has recalled a grand total of 130 pieces since our founding 

in June 1984 (all recovered from the market). Our management of safety risks was highly 

effective long before the government intervened in our safety processes. 

The precautionary approach of the CPSIA attempted to fill perceived "gaps" in regulation 

by making it illegal to sell children's products unless proven safe prior to sale. Yet the law has 

yielded few quantifiable safety benefits other than a reduction in recent recall rates for lead-in-

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paint. [Interestingly, lead-in-paint has been illegal in children's products for decades.] Recall 

statistics can be highly misleading because the rate and number of recalls depend on many 

factors and do not generally correlate to injuries to children. Thus, it is entirely possible for 

recall rates to fall precipitously while injuries to children remain steady or even increase. 

Whatever peace of mind has been generated by this precautionary approach came at a very high 

price. 

The CPSIA significantly broadened the reach offederal safety regulation well beyond the 

Iead-in-paint toy violations of 2007 and 2008. Under the CPSIA, the definition of a "Children's 

Product" subject to regulation now encompasses ALL products designed or intended primarily 

for a child 12 years of age or younger (15 U.S.C. §20S2(a)(2». This definition ensures that 

virtually anything marketed to children will be subject to the restrictions of the Consumer 

Product Safety Act (CPSA), irrespective of known or quantifiable risk of injury. Put another 

way, this definition ensures that many product categories with a long tradition of safety will be 

subject to the withering requirements of this law for the first time simply because they fall within 

the overly broad definition of a Children's Product. It is difficult to characterize this change as 

an "unintended consequence" but these safe products certainly span the U.S. economy, like 

books, t-shirts and shoes, ATVs, bicycles, donated or resale goods, pens and educational 

products. 

The apparent justification for the broad definition of Children's Products is the 

presumption that a young child might gain access to the toys of older children in a so-called 

"common toy box" and somehow be harmed by lead content in an older child's possessions. 

How this assertion justifies the inclusion of products outside the toy category has never been 

made clear (e.g., how often is an ATV or kids' work boots found in a toy box?). To my 

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knowledge, there is no data to support the claim that the "common toy box" is a real threat 

because of their contents. Notably, while the "common toy box" theory emphasizes the "threat" 

posed by lead, it seems to accept the much more profound risk posed by small parts. Small parts 

are illegal in products suitable for children under three years old, but are perfectly legal for 

products for older children. If the common toy box is such a serious issue for lead, it is 

presumably an even more serious threat because of small parts. Of course, no one is calling for 

small parts rules to extend beyond three year olds - that would put an end to the LEOO era. Yet, 

on this flimsy justification, the overly broad definition of Children's Products swept up many 

products that never posed any risk from lead. 

The consequences of the change in the consumer safety laws to a precautionary posture 

has had notable negative impacts and promises to create further problems, namely: 

a. Increased Costs. The new law creates a heavy burden for testing costs. From 

2006 to 2009, our company's testing costs alone jumped more than eight-fold. 

We estimate that our testing costs will triple again after the CPSC lifts its testing 

stay in 2011. Testing costs are often thousands of dollars per product. Many of 

our safety tests are repeated endlessly and are often performed on materials that 

will never fail the test (e.g., testing for the presence of phthalates in polystyrene, 

natural wood or steel alloys, see 

bttp;!lwww.cpsc.gov/ABOUTICpsiaicomponenttestingpolicy.pdD. Having 

employed one person to manage safety testing and quality control for many years, 

we now have a department of four, including me, plus an outside lawyer on 

retainer. This staffing is likely to increase just to manage more paperwork. 

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Personnel, legal and other out-of-pocket safety expenses (besides testing) have 

more than quadrupled in the last three years. 

b. Increased Administrative Expenses. The CPSIA requires that all products include 

tracking labels on both the packaging and the product itself. This is yet another 

precautionary measure meant to facilitate more precise recalls of defective 

products. While seemingly analogous (0 date labels on cartons of milk, in broad 

application to the vast array of "Children's Products" under the CPSIA, tracking 

labels are nothing but pure economic waste. As noted, our company has a 

virtually unblemished 25-year track record of safety. In addition, our products are 

nol durable, heirloom-style products, nor do they pose a proven risk of injury. 

Thus, for our business, tracking labels promises to add no possible value, just 

purposeless government-imposed overhead. We will have to devote the efforts of 

several employees to track and manage this process to ensure accurate 

recordkeeping and execution. Because each change in product or packaging is 

essentially a "product development project" at our company, we fully expect (0 

see true new product development decline because of the capacity absorbed by 

useless tracking label changes. Given that we make many short production runs, 

we will have to manage overwhelming complexity in our component inventory to 

ensure matching serial numbers and data between packaging and the product. 

This massive investment will be totally useless unless we ever have a recall. With 

the increasingly strict laws governing product composition, we believe the already 

low chance of a product recall has been reduced further. Thus, we consider the 

entire tracking labels exercise to be bureaucracy gone wild. 

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An equally frustrating bureaucracy has sprung up around recordkeeping 

under this law. Burdensome requirements spawned by the government's new 

involvement in our quality control processes will mean considerable new and 

unproductive investments in information technology. In addition, the CPSC 

policy on component testing promises to convert the simple task of obtaining a 

complete suite of safety test reports into a major recordkeeping chore. We will be 

forced to manage each component separately, tracking each test report on each 

component one-by-one. This will multiply our recordkeeping responsibilities 

and the related risk of liability for failing to comply by morc than an order of 

magnitude. 

c. Reduced Incentive to Innovate. The increased cost to bring a product to market 

under the CPSIA will make many viable - and valuable - products uneconomic. 

To cover the cost of developing, testing and safety-managing new products, the 

prospective sales of any new item ("hurdle rate") is now much higher than under 

prior law. This will mean that low volume items will be less likely to come to 

market and many new small business market entrants may find themselves priced 

out of the market. In other words, it will be much harder to start a new business 

in the children's market now because the rules so heavily favor big business. We 

think that increasingly companies will be forced to abandon specialty and niche 

markets to concentrate on the mass market. Because of CPSIA transactional 

costs, high volume items now have a huge advantage over low volume items. This 

will hurt many small but important markets like educational products for disabled 

children. Our company, with its 1500 catalog items, is probably now a dinosaur 

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under the CPSIA - we have a strong economic incentive to restructure our 

product line to 50·150 items, a manageable undertaking under the new CPSIA 

rules, and focus on high volume markets only, Schools would suffer from the loss 

of our niche products, 

d. Crippled by Regulatory Complexity, Our problems don't end with testing costs 

or increased staffing, We are being crippled by regulatory complexity, More than 

20 months after passage of the CPSIA, we still don't have a comprehensive set of 

regulations, Please consider how mindboggling the rules have become. The 

CPSC rules that pertained to our business until 2008 totaled 186 pages. These 

rules clearly defined our responsibilities and could be taught to our staff. 

Compliance with law was a focused, manageable task. Today, the rules and 

interpretative documents total almost 2500 pages. And the rules keep changing 

and are still being written. For instance, the CPSC has published over 600 pages 

of rules and explanations in the last month alone. We are acutely aware that each 

word in every rule is a potential source of liability now, up to and including jail 

time. How can we master these rules and teach them to our staff while still doing 

the full·time job of running our businesses? Ironically, the recalls of 2007 and 

2008 were never a "rules" problem - those famous recalls were clearly a 

compliance problem. Imagine what will happen now with a twelve-fold increase 

in rules. 

The confusion from this tangle of rules and regulations hurts us every day, 

We spend an inordinate amount of time arguing with customers over the rules, 

often having to call lawyers to resolve disputes. It makes doing business slow, 

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tedious and very expensive. Many companies are tiring of the continual fighting 

- and are dropping products and vendors. The loss of these products and 

relationships will shrink our markets permanently. 

e. Small Business Will Certainly Suffer. The CPSIA is written for big companies, 

but impacts small and medium-sized companies very negatively. OUf company 

has already lost customers for our entire category on the grounds that selling toys 

is too confusing or too much of a "hassle". This is our new reality. The highlytechnical rules and requirements are beyond the capability of all but the most 

highly-trained quality managers or lawyers to comprehend. Small businesses 

simply don't have the skills, resources or business scale to manage compliance 

with the CPSIA. The "small batch manufacturer" provisions of the CPSEA offers 

little relief (if any) from the burdens of the CPSIA and in any event, target 

companies well below the economic threshold where they could reasonably be 

expected to handle these responsibilities. 

There is no longer a level playing field for small business making 

children's products. Unfortunately, small businesses bear the greatest risk of 

liability under the law, despite being responsible for almost no injuries from lead 

in the last decade. The double whammy of massive new regulatory obligations 

and the prospect of devastating liability are driving small businesses out of our 

market. 

The CPSIA went off track by taking away the CPSC's authority to assess risk. If the 

CPSC could again regulate based on risk, safety rules could focus on those few risks with the 

real potential to cause harm to children. 

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I recommend several steps to reduce cost, liability risk and complexity all without 

sacrificing children's product safety: 

1. Restore the CPSC's authority to base its safety decisions, resource allocation and 

rules on risk assessment by giving the Commission the discretion to set age and product 

definition criteria for the 300 ppm lead standard and phthalate ban. Freeze the lead standard and 

lead-in-paint standard at their current levels unless the CPSC determines that a change is 

necessary to preserve public health and safety ... 

2. The definition of "Children's Product" should not include anything primarily sold 

into or intended for use in schools or which is used primarily under the supervision of adults. 

Other explicit exceptions should include apparel, shoes, pens, ATV s, bicycles, rhinestones, 

books and other print materials, brass and connectors. Exclusions from definition should take 

these products entirely outside the coverage of the CPSIA (including mandatory tracking labels). 

3. Lead-in-substrate and phthalate testing should be based on a "reasonable testing 

program", not mandated outside testing. The tenets of a reasonable testing program should be 

set by the reasonable business judgment of the manufacturer. Resellers should be entitled to rely 

on the representations of manufacturers. Phthalate testing requirements should explicitly exempt 

inaccessible components, metals, minerals, hard plastics, natural fibers and wood. 

4. Definition of "Children's Product" should be limited to children six years old or 

younger and should eliminate the difficult-to-apply "common recognition" factor of Section 

3(a)(2)(c) of the CPSA. Definition of "Toy" (for phthalates purposes) should be limited to 

children three years old or younger and should explicitly refer only to products in the form used 

in play. 

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5. Eliminate CPSC certification of laboratories (rely on the market to provide good 

resources). Fraud has only very rarely been a problem with test labs, and in any event, the CPSC 

already has the resources and authority to deal with fraud. 

6. Impose procedural limits to insure fairness in penalty assessment by the CPSC 

under the CPSIA. Completely reformulate penalties to restrict them to egregious conduct 

(including patterns of violations), reckless endangerment or conduct resulting in serious injury. 

7. Rewrite the penalty provision applicable to resale of used product such that 

violations are only subject to penalty if intentional (actual knowledge or reckless endangerment) 

and if the violation led to an actual injury. Eliminate the "knowing" standard with its imputed 

knowledge of a reasonable man exercising due care. 

S. Mandatory tracking labels should be explicitly restricted to cribs, bassinets, play 

pens, all long life "heirloom" products with a known history of injuring the most vulnerable 

children (babies). Tracking labels should not be mandatory for other Children's Products and if 

tracking labels have been used, can be used by the manufacturer to limit the scale of recalls. 

9. Public injury/incident database should be restricted to recalls only. Private, 

confidential database should be used for other incident reports to assist the CPSC in gathering 

market data. The proposed public database promises to be deadly to small businesses iIlequipped to manage a process designed for mega-corporations. The interests of the corporate 

community in this database MUST HE PROTECTED. 

I urge your committee to address the fundamental flaws in the CPSIA to restore order to 

the children's product market and to protect small businesses from further damage. I appreciate 

the opportunity to share my views on this important topic. 

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Mr. RUSH. The Chair thanks all the witnesses and now the Chair 

recognizes himself for 5 minutes for the purposes of questioning the 

witnesses. 

I want to begin with Mr. Vitrano. Mr. Vitrano, I understand from 

your testimony that in an ideal world you would like to see an explicit, complete exemption from the law for recreational vehicles, 

but I also heard you say that you support this legislation. I would 

like to ask you to clarify on that point. What impact would this legislation have for the ATV and motorbike industry, and would it 

provide you with significant relief from the problems you have 

highlighted in your testimony? 

Mr. VITRANO. Thank you, Mr. Chairman. Our singular focus is 

to make sure that youth vehicles are available so kids can safety 

ride our products with their family. As I said in my testimony, we 

believe we have already submitted sufficient evidence to obtain an 

exception under the language that is proposed in the bill but we 

are not going to be the ones to make that decision. That is why it 

is absolutely critical that this committee provide as much guidance 

as possible to the CPSC to make it clear that the terms that are 

set forth in the bill are designed to grant us relief. We support 

many explicit instruction in the statutory language. We also support the committee report proposal that has been circulated which 

would provide clarity and more greatly ensure that we would obtain relief. Again, our goal is to make sure our products are available and we think there are any number of ways to accomplish that 

including the bill. 

Mr. RUSH. So in order to be perfectly clear, you support the legislation and report language as written without any further changes 

because it provides you with a way to get to the relief you need 

from the Commission. Is that correct? 

Mr. VITRANO. That is correct. 

Mr. RUSH. Thank you so very much. 

Now let me move on to Mr. Marshall. In your testimony, you 

stated that this legislation will offer much to your membership 

‘‘significant relief.’’ Can you tell us more about that? What relief 

does this legislation provide for your members and what proportion 

of your members will get that relief? 

Mr. MARSHALL. Thank you. I think the analogy I have in my 

head of our 435 member businesses as well as all the small crafters 

across the country who might not even know about this law yet 

that we wouldn’t even recognize as businesses but are merely 

crafting things in their own homes and selling them at craft fairs, 

of which there are thousands upon thousands. The image I have is 

of us in a river drifting downstream toward a waterfall, which is 

February 10, 2011, and this bill is the only branch we see to grab 

onto to get us out of that river. We have not ever believed that the 

perfect should be the enemy of the good, and even though there are 

things in here that we think long term would be improvements to 

the Consumer Product Safety Improvement Act, we feel that this 

bill as written would save a substantial number of those businesses 

that are heading toward destruction, and for that reason we emphatically endorse this bill and we do urge the committee to think 

thoughtfully about what this bill does and to move it through Congress as quickly as possible. 


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Mr. RUSH. In your testimony, you expressed concern about the 

effects of this CPSIA and point out that the Handmade Toy Alliance endorses the Consumer Product Safety Enhancement Act. You 

suggest several modifications to the draft that would make it even 

better for your members, but you also testified that you support the 

draft in its current form and you hope the legislation can proceed 

through this committee and the House and the Senate as quickly 

as possible. In your opinion, how does the bill improve the CPSIA? 

Mr. MARSHALL. Well, frankly, I mean, we are up against this 

testing deadline, which the CPSC has told us they are not going 

to extend further beyond February 10th of next year, and having 

alternative methods in place and in the hope that the CPSC will 

agree with us about what the definition of alternative testing method is will allow our members to document the safety of their products without having to pay the often-exorbitant costs of third-party 

lab testing. 

Our businesses range a lot in size but we all have in common the 

fact that we are making toys and other children’s products in very 

small batches. We are not importing 20,000 items at a time from 

China. We are working with very small manufacturers in the 

United States and in Europe, and the challenges in complying with 

this law are so much greater when you are making products in 

such small batches, and for that reason we believe that the alternative testing method protocol if we can come to agreement with 

the CPSC and hopefully the report language, which I haven’t had 

the opportunity to see yet, will enhance our understanding of that, 

will make it possible for these small businesses to document compliance without having to pay for third-party lab testing. 

Mr. RUSH. That concludes my time. Mr. Whitfield, you are recognized for 5 minutes. 

Mr. WHITFIELD. Thank you very much, and thank you all for 

your testimony. 

Mr. Vitrano, in your testimony you talked about some report language that I assume that you have seen. Have you been given some 

report language that you feel comfortable with and if that language 

is there you would support this legislation? 

Mr. VITRANO. That is correct. 

Mr. WHITFIELD. Now, let me ask you a question. Of course, I 

have got this report language and it says the committee expects the 

Commission to consider and so forth and so forth and so forth, so 

it is using the word ‘‘expect.’’ It certainly doesn’t direct them the 

way this legislation directs a lot of things. It seems to me that it 

would be very easy to put this language in the bill instead of using 

it as report language, and if I were in your shoes, I would feel 

much more comfortable if this specific language was in the bill relating to this Manufacturers Association versus State Farm Insurance case. So you would support it being in the bill, wouldn’t you? 

Mr. VITRANO. Absolutely. As I had testified, we have urged repeatedly that explicit guidance be provided in the statute. At this 

point the bill does not include that but we do appreciate and support if it is not going to be in the statute that the report language 

as proposed be included. Again, our singular focus is to make sure 

these vehicles are available. We believe that it is the intent of this 

committee to make sure that happens. Whatever can be done to 


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make sure that happens is what we are supporting. Statutory language would be better. The report language could get us there as 

long as it is clear to the CPSC. 

Mr. WHITFIELD. Well, you know, I believe there are a lot of other 

products other than just yours that would benefit from this as well. 

I have heard a lot about these zippers in children’s clothing and so 

forth and it is my understanding they have lead in them. Is that 

right, Mr. Levy? 

Mr. LEVY. If I could just clarify the problem with lead and zippers, it is interesting. A zipper is actually made up of about five 

to seven different components, and what we have been finding or 

what we found in a few of the items is that one of the components—as an example, this is a failed garment. I can’t reach the 

piece. There is a small piece inside of the garment that had lead 

levels higher than the 600 parts per million. So we have a garment 

here. It is not accessible to my fingers to get at it that now failed. 

There were thousands and thousands of garments involved. And 

under the—the way the agency is interpreting it, it is above the absolute level, and even though it’s not common sense. We keep using 

that term. I can’t access it. The CPSC has said that fabric is not 

a barrier to access and it devised a very small probe which they 

could stick in and touch and oh, that is lead, it failed. 

Mr. WHITFIELD. So you cannot sell that and meet the requirements of this—— 

Mr. LEVY. This garment would not be saleable. However, if it 

was in someone’s closet or it is at a Goodwill store, no problem 

with it. 

Mr. WHITFIELD. Now, Ms. Weintraub, in your testimony you 

made it very clear that you want to protect children and you have 

children. Would you object to that item being sold, what he has in 

his hand right there? 

Mr. WEINTRAUB. The problem is unfortunately that children 

mouth zippers all the time. I have three young children. My oldest 

child, who is almost six, he mouths zippers as well. So the problem 

is—— 

Mr. WHITFIELD. They get zippers and they mouth them. Is that 

what you are saying? 

Ms. WEINTRAUB. Yes. So the problem is that children interact 

with clothing in dynamic ways, and though in this one instance the 

part that contains lead may appear to be inaccessible by the fabric, 

in another product it may not be. So the problem is the complexity 

of drafting a rule for huge variability in product types. 

Mr. WHITFIELD. Well, you know what? The Food and Drug Administration permits up to .1 microgram of lead for each 1 gram 

of a piece of candy, and yet the Commission under this law rejected 

a petition from a toy company that wanted to have a brass axle on 

a toy car that had less absorbable lead than the FDA allows in a 

piece of candy. Now, I mean, how ludicrous is that? I mean, I think 

we all want to protect children but I think we want to use some 

common sense, and to me, we are appropriating a lot of money to 

the Consumer Product Safety Commission, and I see nothing wrong 

with giving them flexibility to exempt on their own looking at their 

risk assessments and science and so forth. I guess my time is expired. 


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Mr. RUSH. The Chair now recognizes the chairman emeritus of 

the full committee, Mr. Dingell, for 5 minutes for the purposes of 

questioning the witnesses. 

Mr. DINGELL. Thank you, Mr. Chairman. 

This question to Messrs. Palmieri, Vitrano, Marshall and Levy. 

Section 2 of the Consumer Product Safety Enhancement Act 

amends the Consumer Product Safety Improvement Act to include 

a so-called functional-purpose exemption test for certain materials, 

products and components from the Act’s lead limits. To be granted 

an exemption, a manufacturer must first satisfy a three-part test, 

the first condition of which stipulates the product, material or component part requires the inclusion of lead because it is not practicable or technologically feasible to manufacture such product, 

component part or material in accordance with subsection A by removing the excessive lead or by making the lead inaccessible. I believe the statute leaves some ambiguity as to the meaning of the 

term ‘‘practicable’’ and should be modified or clarified via report 

language. Do you agree, yes or no, gentlemen? 

Mr. PALMIERI. Yes, sir. 

Mr. VITRANO. Yes. 

Mr. DINGELL. Then Mr. Marshall and Mr. Levy? 

Mr. MARSHALL. In this case, I don’t think—— 

Mr. DINGELL. Yes or no? 

Mr. MARSHALL. Yes. This particular section I don’t think will 

apply to our members. We don’t have the capability to go through 

this process. 

Mr. DINGELL. Next witness. Mr. Levy, yes or no? 

Mr. LEVY. I would have to—I am not sure. 

Mr. DINGELL. Now, to Messrs. Palmieri, Vitrano, Marshall and 

Levy, should any report language on this point define ‘‘practicable’’ 

as relating to the cost of compliance to the expected safety benefit 

of the compliance, yes or no? 

Mr. PALMIERI. Yes, sir. 

Mr. VITRANO. Yes. 

Mr. VITRANO. Sure, that sounds reasonable. 

Mr. DINGELL. I am sorry? 

Mr. VITRANO. Yes. 

Mr. DINGELL. Mr. Levy? 

Mr. LEVY. Yes. 

Mr. DINGELL. Thank you, gentlemen. Next question, the question 

to the same three witnesses. The third condition of the functionalpurpose exclusion in section 2 of the bill requires that a product, 

component part or material will have no measurable adverse effect 

on public health or safety, taking into account normal and foreseeable use and abuse. Do you believe the phrase ‘‘measurable adverse 

effect on public health or safety’’ requires clarification in report language, yes or no? 

Mr. PALMIERI. Yes, sir. 

Mr. VITRANO. Yes. 

Mr. MARSHALL. I am sorry. Our member businesses have no real 

opportunity to gather the evidence needed to follow that. 

Mr. DINGELL. Thank you. Mr. Levy? 

Mr. LEVY. No. 

Mr. DINGELL. No? 


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Mr. LEVY. Yes. 

Mr. DINGELL. Did you say yes or no? If you are content to leave 

the record ambiguous, I am content to do so too. 

Now, this question to the same panel of witnesses. I fully support 

the intention of section 4 of the bill, which provides regulatory assistance and relief for small manufacturers and other businesses. 

I am concerned that this section may not make clear the committee’s intention for the Consumer Product Safety Commission to create or approve alternative product testing methods to ease the regulatory burdens on small businesses. Do you believe that the committee’s report on this bill should include language to that effect, 

yes or no? 

Mr. PALMIERI. Yes, sir. 

Mr. VITRANO. Yes. 

Mr. MARSHALL. Yes. 

Mr. DINGELL. And you, Mr. Levy? 

Mr. LEVY. Yes. 

Mr. DINGELL. Now again to the same four witnesses, if you 

please. Likewise, should the committee make it clear in its report 

that it intends for the Commission to allow the use of XRF testing 

as an alternative testing method for lead in paint and lead in substrate, yes or no? 

Mr. PALMIERI. Yes, sir. 

Mr. VITRANO. Yes. 

Mr. MARSHALL. Most emphatically, yes. 

Mr. LEVY. Yes. 

Mr. DINGELL. Thank you, gentlemen. 

Thank you, Mr. Chairman. My time is just about expired. 

Mr. RUSH. The Chair recognizes the ranking member of the full 

committee, Mr. Barton, for 5 minutes. 

Mr. BARTON. Well, thank you, Mr. Chairman. I have got a number of questions. 

First question is something that I don’t believe anybody addressed in your testimony, and that is the issue of the requirement 

of tracking labels on products that are so inexpensive and small 

that it is almost impossible to comply with that. Does anybody 

have a comment about some exemption relief in terms of tracking 

labels? 

Mr. WOLDENBERG. Tracking labels are very burdensome in our 

business. We have 1,500 products and we manufacture a number 

of those products several times a year. We would like tracking labels to be optional except in the case of high-value items that are 

durable like cribs and bassinets with demonstrated potential to 

harm. In our case, since we have an almost zero recall rate over 

25 years, we would like it to be our choice as to whether or not we 

make that investment to future recall expenses. 

Mr. BARTON. Ms. Weintraub, do you have a comment on that? 

Ms. WEINTRAUB. I disagree. Tracking labels are important for 

consumers as well as for the agency to be able to know where the 

product is from. It can enable consumers to identify whether they 

in fact have—— 

Mr. BARTON. Even if it is a product that costs less than $5 and 

comes out of a vending machine? 


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Ms. WEINTRAUB. That product could be deadly if there are excessive levels of lead. It shouldn’t matter what the cost is. Any consumer product could pose a risk of harm, and the consumer should 

be able to identify whether a hazardous product—— 

Mr. BARTON. Do you really expect something that comes off an 

assembly line 100,000 a day to require a tracking label for each 

and every one of those? I mean, that is not just not practicable, in 

my opinion. 

Ms. WEINTRAUB. I think that—— 

Mr. BARTON. You would just ban that product? You would just 

basically take it off the marketplace? 

Ms. WEINTRAUB. I think there are ways that we could come up 

with it. I think the CPSC has been working on it as well and has 

articulated that would be a reasonable way to identify products so 

that it is both practicable and useful for consumers so they have 

reliability that the products that are in their homes are safe. 

Mr. BARTON. OK. My second question deals with the language on 

phthalates. Myself and Congressman Waxman had a compromise 

in the bill that was endorsed by Chairman Dingell that made a 

phthalate ban prospective. The CPSC agreed with that language 

but a court case in New York overturned it. Does anybody care to 

comment on whether we should try to address that issue again? 

Anybody? We don’t have anybody from the chemical industry here 

so that may not be something that you all care to address. Anybody? 

OK. Next question deals with the exemption relief. As the current draft is written, there is a three-part test. Chairman Dingell 

alluded to this test. I don’t think that as currently drafted that is 

a workable test. I don’t think you need the first two parts of it. I 

think the third part is the relevant part, and the word ‘‘measurable’’ makes it almost meaningless because you can measure lead 

down to zero. I would suggest the removal of the word ‘‘measurable’’ and just leave the test as a one-part test. If it doesn’t have 

an adverse health effect that the CPSC could, not should but could 

give an exemption. Does anybody want to comment on that? 

Mr. WOLDENBERG. For us as a small business, the exemption 

process is closed, as Mr. Marshall has said. It is really not feasible. 

Take, for example, my business. We have 1,500 products, and let 

us just say for the sake of argument that I have 10 components per 

product. I have to prove that each component in each product deserves the exemption. That means that I have to mount 15,000 exemption requests to get my entire product line cleared one by one. 

The chairman of the CPSC sent in a letter today emphasizing that 

it is a one-by-one analysis. It almost doesn’t matter what the tests 

are. The door is closed. I can’t pay for it. I can’t afford the consultants and I can’t hire the lawyers. 

Mr. BARTON. Mr. Palmieri, do you have a comment on that? 

Mr. PALMIERI. I think that we believe that ‘‘measurable’’ is a 

helpful word in the definition as well as the report language so 

that it is an actual impact on public health as opposed to a theoretical one. 

Mr. BARTON. I am not sure I understand what you just told me. 

Mr. PALMIERI. What I am saying is that your suggestion was that 

lead in itself can be measured, but again, we are not talking about 


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the lead content of the product but whether or not it can actually 

have an impact on a child’s health. 

Mr. BARTON. Well, I agree with the last part. 

Mr. PALMIERI. And I am just saying that is why we think the 

word ‘‘measurable’’ is helpful. 

Mr. BARTON. But if you leave ‘‘measurable’’ in there, the test— 

there can never be an exemption, because I am told if you have any 

lead at all, you can measure it to the infinite decimal point, so 

there needs to be some practical definition and not an automatic 

exclusion but you could give the CPSC reasonable authority to 

make an exclusion if the advocate for the exclusion is able to prove 

that it should be given. That is all I am trying to get at. 

Mr. PALMIERI. And it is our understanding both with that phrase 

and with the report language that this is completely different test 

than the ‘‘any absorption’’ standard which was in the original Act, 

which ended up being a zero tolerance for any leachable lead and 

that this is a different test and so we agree, strong report language 

clarifying what that means so that the Commission knows exactly 

how to act on it immediately is critical to this functioning. 

Mr. BARTON. My time is expired but Mr. Levy wants to make a 

comment, and I would assume that Mrs. Weintraub also wanted to 

make a comment, so—— 

Mr. LEVY. I just wanted to say to Mr. Woldenberg’s point here, 

if we take the approach, and I think this should be the approach 

now that the CPSC has been reconstituted, I think we have to say 

let us empower them with strong language to look out for product 

safety in regard to children’s products and let them identify as opposed to us taking 15,000 items. We have 16 billion pairs of jeans 

and shoes in the marketplace, which is constantly changing, the 

fashion business, as opposed to us constantly going and looking for 

exemption, exemption. If I am in the motorcycle industry, my product line is not changing that much, my components are not changing. I can afford to invest in the testing and so forth. But our products are not dangerous. Our products are safe. Give the agency the 

ability that they were founded on to find if there is a problem, let 

them come out and find it, as opposed to us having to go petition 

SKU style by style by style. 

Mr. BARTON. Ms. Weintraub. 

Ms. WEINTRAUB. Yes, sir. Thank you. We believe that these three 

prongs are all necessary and important. The first prong, is the lead 

in fact necessary. Why should there be lead in a children’s product? 

Consumers don’t want lead in their products. If it doesn’t have to 

be there, it shouldn’t be, and if it could move the market to reduce 

lead in consumer products, it should. So that is the first prong, is 

the lead necessary essentially. The second prong, is the product one 

that would likely to be mouthed or ingested, that is the most common route of exposure and the most dire types of consequences 

occur from mouthing and ingesting products. Unfortunately, the 

story of Darnell Brown that Chairman Waxman mentioned, the 

child died because he swallowed a trinket from a shoe that contained—it was almost 100 percent lead and the child died. What 

we want to do here, and I know what everyone agrees is the goal 

here is to protect children from unsafe products, and that is our 

collective desire. And the third prong, measurable adverse impact 


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on public health, I think that and all of these is a good compromise 

in terms of having a system, a test that is workable as well as one 

that will protect the public health. 

Mr. BARTON. Thank you, Mr. Chairman. 

Mr. RUSH. Ms. Schakowsky, you are recognized for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. I wanted to ask 

Mr. Gibbons a question, not just because no one has asked him a 

question, but because I actually have a question. 

I wanted just to get on the—first of all, in this economic downturn, I think it is particularly important that you be able to serve 

the market that you do, but I wanted to ask if you feel that the 

Consumer Product Safety Enhancement Act does provide the relief 

that your organization needs? 

Mr. GIBBONS. I certainly do. I think the clarity that is in section 

3 helps us work real closely with CPSC, which we have done in the 

past, but it really does work so that we can continue along a path 

that is safe. It works with us to identify, you know, unsafe products 

and areas, and we are confident that we can work with the CPSC. 

If there are things we haven’t even though of yet, you know, we 

identify, we will work them in a very proactive way so we think 

it works very effectively. 

Ms. SCHAKOWSKY. And I realize you are speaking for Goodwill 

but you did bring up the Salvation Army. I am wondering if within 

your business community, within your industry, if you will, do you 

feel that your remarks and your support are reflected in those 

other organizations? 

Mr. GIBBONS. Yes, I do. 

Ms. SCHAKOWSKY. Thank you. 

Ms. Weintraub, I want to—there has been consistent testimony 

here, and you as the only one really here who was involved in the 

original bill and defending the language, and I realize that you are 

not necessarily supporting the changes but you are not opposing 

the changes. There has been this talk about going back to what 

was risk assessment, and I wondered if you could just elaborate a 

bit more on why we have been there, done that and in my view and 

I think the reason that we passed the bill it didn’t work. I think 

you would do a much better job articulating that. 

Ms. WEINTRAUB. Well, I don’t know if that is true but I will try. 

Thank you. Yes, the big problem that risk assessment causes is the 

reason why we ended up in the place that we were before passage 

of the CPSIA, that is, CPSC could have used the authority, had authority, could have used it but didn’t use it effectively, and the 

problem, because it was broad and not specific, was that actions 

weren’t taken and there were loopholes in existing—in the practice 

of the CPSC that left our Nation, our children, our families at risk 

and they were in fact at risk, and they were posed, they were put 

in danger because of that. A risk analysis has numerous problems 

in and of itself as well. There are many ways to interpret it, and 

it was clear that we needed a more narrowed, clear test that limited the amount of lead in a very concrete fashion. As is clear from 

scientists, and I think everyone at the table would agree, there is 

no known safe level of lead. When you are working in that environment, consumers need to be able to trust that products will not 


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pose harm to their children, and risk assessment in this and other 

contexts does not do the job. 

Ms. SCHAKOWSKY. I just wanted to point out that on the issue 

of tracking labels, that the language in the bill as passed that required as practicable and also said that bulk-vended products actually are totally exempt from the tracking labels. 

Yes, you wanted to comment on that, Mr. Levy? 

Mr. LEVY. Yes, just in terms of the tracking labels, in the apparel 

industry we are already required to put an RN number, which 

tracks back who the manufacturer is, and we feel that that is sufficient to satisfy—anyone can go to Google, put an RN number and 

find the manufacturer. But what has happened as with much of 

the CPSIA is, our retail customers have issued, not as high as this 

but a nice stack of individual requirements on tracking labels and 

so forth. So and the same thing is going to happen with the preemption of the State laws. So because it is where practicable in 

that case, our retailers are saying no, we don’t want any chance, 

and you have to sew our label in, and the next retailer has a different interpretation of what should be on the label. So we feel in 

terms of tracking labels, the RN number for apparel is sufficient 

and we would like to see an exemption or at least an understanding by the agency that that would satisfy the requirements. 

Ms. SCHAKOWSKY. Let me just ask you a question on that, 

though. If you have the RN number—— 

Mr. RUSH. Let me just warn all the members that we have a 

pending vote on the floor at 12:15 and so I want to really be pretty 

tight in regards to limiting the members’ questions to 5 minutes. 

With that said, Ms. Schakowsky, I want to move on to Mr. Pitts. 

Mr. PITTS. Thank you, Mr. Chairman. 

Mr. Marshall, as I understand it, the CPSIA standard and the 

European EN–71 standard are incompatible, making it nearly impossible for small toy distributors to carry out their business now. 

First of all, can you explain a little bit on how they are incompatible? 

Mr. MARSHALL. Yes, and this is a significant factor. My store as 

well as dozens of others of our members made a niche business out 

of importing small batch goods from Europe. Speaking personally, 

at this point we have all but ceased importing toys and other goods 

from Europe because of the CPSIA and also a great number of companies that have already tested the European standards simply 

cannot afford to retest to CPSIA standards and have withdrawn 

from the market including some of our most important suppliers. 

There are some differences between the EN–71 standard, and I am 

not an expert in it. The most substantial, though, is the definition 

of lead content limits. EN–71 has an absorbable standard which 

more closely reflects the effect of lead content on a child’s health 

whereas, as you know, the CPSIA is a total lead standard, but 

more to the point, labs that are testing for EN–71 aren’t necessarily certified by the CPSC to be testing for CPSIA, and small 

batch manufacturers in Europe have exactly the same problem as 

small batch manufacturers in America in terms of paying for those 

tests. And so that is creating the same problem. 

But I want to remind the committee what the definition under 

the CPSIA of a manufacturer is, and my store under the CPSIA, 


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as well as many other of our members, is considered a manufacturer when we import a specialty German toy to this country unless it goes through an importer that is based in the United States, 

we are importing directly and so we are the manufacturer. We are 

the ones responsible for—— 

Mr. PITTS. Let me ask you then, do you think American toy distributors should be able to sell European toys that are compliant 

with the European standard? 

Mr. MARSHALL. Yes. I don’t think anyone here is going to argue 

that a toy that has been tested to EN–71 standards is not safe for 

the American market. 

Mr. PITTS. Does anyone disagree with that? Ms. Weintraub. 

Ms. WEINTRAUB. This is a complex issue, one of trade issues and 

harmonization of standards, and I am not an expert on those 

issues, but there are reasons why the absorbability concept of lead 

has been rejected, and for those reasons, I could get into them, but 

for those reasons the United States has rejected looking at lead 

from that perspective. 

Mr. PITTS. So you do not think the E.U. adequately protects their 

children? 

Ms. WEINTRAUB. No, I am not saying that, but in terms of looking at how the test is conducted, it is very different than how the 

CPSC does it. 

Mr. PITTS. OK. This is a slightly different question. Do you think 

American toymakers should be able to sell toys in other countries, 

even if they are not compliant with the U.S. standards but as long 

as they are compliant with the safety regulations of their destination country? 

Ms. WEINTRAUB. Are you asking me? 

Mr. PITTS. Mr. Marshall first. 

Mr. MARSHALL. As far as I know, none of our members actually 

manufacture any products that are not in compliance with those 

standards of the CPSIA. It isn’t really the testing costs that causes 

problems. Manufacturers that are selling to, for example, Europe 

from the United States and which we have a couple of members 

that do that, they do have this dual testing requirement that 

they—— 

Mr. PITTS. Mr. Woldenberg. 

Mr. WOLDENBERG. We have an office in the U.K. and testing 

EN–71 for at least 20 years. We have never seen any issues of safety relating to our reliance on EN–71 testing in any part of our business. It is essential for our business to be able to enter other markets. We sell in 80 other countries. We can’t afford to be closed out 

of those markets. That is how we keep our business going. 

Mr. PITTS. You testified that your costs have increased eight 

times, you expect three times more. Clearly, you are testing more. 

Are these increasing testing levels and costs making your products 

safer than they were before? 

Mr. WOLDENBERG. Not in my opinion, because we only had recall 

of 130 pieces in 25 years. We would prefer to spend our money on 

supply-chain management. 

Mr. PITTS. And how can be sure that products are safe if they 

are not tested before going to market? 


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Mr. WOLDENBERG. Well, testing has always been part of our 

strategy. The problem with the testing regime here is we have to 

test and test and test again and again things that we know are 

safe. What we want to do is to be able to spend our money on testing in ways that inform us about problems we may have in our 

supply chain. Because of the efforts we put in controlling our supply chain, the risks of problems with our products is not random, 

so we don’t need to test every single batch of every single thing. 

That is how we manage our business. 

Mr. PITTS. Thank you. My time is up. 

Ms. SCHAKOWSKY [presiding]. Thank you. 

Mr. Braley. 

Mr. BRALEY. Thank you. 

Mr. Woldenberg, I am very sympathetic to the earlier positions 

you expressed regarding the volume of regulations that you are 

dealing with in this particular area. In the last two Congresses, my 

Plain Language in Government Communications Act has passed 

the House overwhelmingly on two occasions. I am a firm believer 

that we need to write not just the government documents that you 

interact with but also the regulations and statutory language in 

language that the intended recipients of that information can understand and act on, and I am convinced if we did, that stack of 

piles in front would be substantially smaller. 

You also made some comments in your statement that I want to 

follow up on. You said the CPSI has killed off safe products. Do you 

remember saying that? 

Mr. WOLDENBERG. Yes. 

Mr. BRALEY. Can you give us examples of safe products that have 

been killed off because of CPSI? 

Mr. WOLDENBERG. Well, I am in the education industry, and we 

cater to a lot of small niche businesses. They are small businesses 

that cater to highly disabled children. A lot of those items have a 

very low volume. Many of those companies are discontinuing those 

items but that is just a very slow background degeneration. 

Mr. BRALEY. Can you give us examples of some companies that 

are being—their products are being killed off because of CPSI? 

Mr. WOLDENBERG. I was contacted by a company in Colorado 

that serves the education industry that informed me that they have 

thousands of products that are under $1,000 in sales a year. They 

cannot afford to test those items and intend to discontinue many 

of them when testing becomes mandatory. 

Mr. BRALEY. And what company is that? 

Mr. WOLDENBERG. The company is called American Educational 

Products. 

Mr. BRALEY. OK. Are there other products that you can identify 

that CPSI has killed off that are safe products? 

Mr. WOLDENBERG. Well, we make decisions on product development in our company all the time, and the hurdle rate for volumes 

in our company has gone up because of expenses, and so now for 

us to introduce a new item, if we don’t expect sales of over a higher 

bar, that item never comes to market. 

Mr. BRALEY. No, but I am getting back to your statement that 

CPSI, the bill that we passed previously, has killed off safe prodVerDate Mar 15 2010 04:34 Jan 19, 2013 Jkt 076571 PO 00000 Frm 00112 Fmt 6633 Sfmt 6602 E:\HR\OC\A571.XXX A571

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ucts. This is your opportunity to share with us those products that 

have been killed off, to use your words. 

Mr. WOLDENBERG. We have dropped telescopes. We are moving 

out of microscopes. There have been items like a potato clock, 

which is an educational item you may be familiar with that has 

been recalled and dropped because of trivial non-safety-related violations with this law. 

Mr. BRALEY. Now, Ms. Weintraub, I don’t know if you have had 

a chance to look at some of the recommendations submitted by Mr. 

Woldenberg but I want to ask you about a few of them and get 

your feedback. One is that the definition of children’s product 

should not include anything primarily sold to or intended for use 

in schools. Do you agree with that recommendation? 

Ms. WEINTRAUB. We don’t agree. 

Mr. BRALEY. Why is that? 

Ms. WEINTRAUB. Children interact with products in schools just 

as they do at home, and unfortunately, there have been numerous 

recalls of educational-based products for high levels of lead. 

Mr. BRALEY. The third recommendation was that in lead in substrate and phthalate testing should be based on a reasonable testing program not mandated outside testing, the tenets of a reasonable testing program should be set by the reasonable business judgment of the manufacturer. Do you agree with that recommendation? 

Ms. WEINTRAUB. I disagree. 

Mr. BRALEY. Why not? 

Ms. WEINTRAUB. You know, that moves us even further back 

than other ideas. We need a standard that not only that consumers 

can rely upon but also one that government and industry can rely 

upon to set a bright-line level of lead that is not acceptable. 

Mr. BRALEY. The fourth recommendation was definition of ‘‘children’s product’’ should be limited to children six years old or younger. Do you agree with that recommendation? 

Ms. WEINTRAUB. I disagree. 

Mr. BRALEY. Why? 

Ms. WEINTRAUB. Children play with products that are in the 

household. As I mentioned, I have three children. I have an almost 

six-, almost four- and one-year-old. My children are very aware of 

what choking hazards are. They have toys that stay in their room. 

But there is an important difference between a choking hazard and 

lead, and that is, not only can I not identify whether the product 

has lead, they certainly can’t either, so we need to have laws that 

protect children in concrete, reasonable ways that reflect how children actually interact with toys. 

Mr. BRALEY. One of the other recommendations as part of recommendation number 4 is that the definition of ‘‘toy’’ for lead-based 

purposes should be limited to children three years old or younger. 

Do you agree with that recommendation? 

Ms. WEINTRAUB. I do not. 

Mr. BRALEY. Why is that? 

Ms. WEINTRAUB. For similar reasons, that children of broader 

ages use those toys and that would be less protective of public 

health. 

Mr. BRALEY. Thank you. My time is expired. I yield back. 


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Ms. SCHAKOWSKY. Mr. Radanovich. 

Mr. RADANOVICH. Thank you, Madam Chair. 

Ms. Weintraub, you had mentioned in that unfortunate incident 

about the child swallowing a bead and dying from lead poisoning. 

Is it true, at least it was my understanding that that bead was 99.1 

percent lead and was already in violation of existing laws at the 

time? 

Ms. WEINTRAUB. I believe that it was—I will have to check that. 

It is my understanding. My understanding that the lead, it was almost lead itself and previous law was that there was a prohibition 

on lead in paint, not in the substrate. So I will have to check, but 

that is my understanding. 

Mr. RADANOVICH. It is my understanding that there were laws 

already in the books that would have prevented that. 

Madam Chair, if I can ask for a UC consent, I have got a list 

of companies that are either going out of business or stopping products as a result from kind of an answer to Mr. Braley’s question 

to Mr. Woldenberg. I would ask unanimous consent that that and 

also a statement by Mr. Pitts be entered into the record. 

[The information appears at the conclusion of the hearing.] 

Ms. SCHAKOWSKY. Without objection, so ordered. 

Mr. RADANOVICH. Thank you, Madam Chair. 

I am sorry, I don’t have a lot of time, so I am going to fire 

through a lot of questions here. Mr. Woldenberg, you talked about 

having to file a petition for each of your hundreds or thousands of 

products. Is there really any frame of reference here? And we have 

heard all kinds of estimates about how much it costs to file an exception petition supported by all the relevant scientific data. How 

much does it cost on average to file a petition for an exception? And 

I would open that to anybody here who can answer the question 

for me. 

Mr. WOLDENBERG. Well, some of the people at this table have 

filed them. All I can tell you is that I have to hire a human factors 

expert, I have to hire a toxicological expert, I have to hire a lawyer 

and I have to see it through several months of processing including 

a hearing. That is a lot of money. 

Mr. RADANOVICH. Can you put a price tag on it? 

Mr. WOLDENBERG. I would estimate $25,000 to $50,000 per. 

Mr. RADANOVICH. Per? 

Mr. WOLDENBERG. Per, and that is probably on the low end. I am 

sure that some of the people at this table spent way more. 

Mr. RADANOVICH. For you, Mr. Woldenberg again, if another microscope manufacturer is successful in getting an exception, does 

that mean that you can also sell your microscopes or must you also 

file for an exemption? 

Mr. WOLDENBERG. I believe that I have to file for my products. 

My products are not identical to anyone else’s. 

Mr. RADANOVICH. All right. Ms. Weintraub, I understand that 

Legos is—and you had mentioned choking as an issue. But from 

what I understand, according to CPSC’s report, toy-related deaths 

and injuries in 2006 through 2008, the causes most common of injury and death were drowning, motor vehicle involvement, falls, 

airway obstruction, aspiration, suffocation, choking, drowning, 

strangulation and blunt force. Lead exposure was not among them. 


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And under your theory, aren’t the small pieces like those in Legos 

here that are found in common toy boxes far more dangerous than 

the item made with either .03 percent or .01 percent lead? 

Ms. WEINTRAUB. I can’t say—— 

Mr. RADANOVICH. This is the definition for anything that is small 

enough to be choking on. 

Ms. WEINTRAUB. Yes. 

Mr. RADANOVICH. I would like your response to that. 

Ms. WEINTRAUB. Yes. Sure. Unfortunately, I can’t say that lead 

is not as hazardous. Yes, it is much easier to see what a choking 

hazard is, and the types of harm are more quantifiable. But with 

harms with lead, they are not always acute. It is rare, in fact, that 

they are acute. However, health economists have estimated that 

every time an average blood lead level by increases by a small 

amount across children born in any given year, there is $7.5 billion 

lost in potential earnings for those children. So even low levels of 

lead can cause decreases in IQ points, and while it doesn’t come 

out in CPSC’s annual toy death and injury data, the harms are 

there and they do cause incredible large costs. 

Mr. RADANOVICH. And I agree with you. I think we all agree that 

lead in the presence of humans and children is not a good thing 

but I guess the question is, are you taking it too far? Because it 

is necessary, for example, in the steering column of bicycles, and 

I have to ask you, how many times do you have to lick a handlebar 

before you are going to get lead poisoning on a bicycle? I mean, 

how far is far enough or until you take it too far to where it just 

doesn’t make any sense at all? 

Ms. WEINTRAUB. Well, you know, I think the Consumer Product 

Safety Enhancement Act is a reasonable compromise, very—you 

know, the drafters of it very carefully listened to all stakeholders, 

and the desire is to deal with the types of concerns you raised, to 

take the interactive use of a product and whether there is a health 

impact, so I think the—— 

Mr. RADANOVICH. If I may just ask quickly, Mr. Woldenberg, 

would you agree with that? 

Mr. WOLDENBERG. I think that there is a lot of environmental 

sources of lead that children take in. I found a study that said that 

children under three eat a half a gram of dirt a day, which contains 

40 parts per million lead. So the massive lead that a child would 

be exposed to from broadly defined children’s products, this is not 

a toy bill. This is a children’s products bill, that the massive lead 

that we get in our air, in our water, in our food, in the dirt that 

is on our hands and the other things that we contact is substantially greater than what is absorbed into our body than what comes 

out of the products that we make except for soluble lead, which has 

always been on the books for years as being against the law, soluble lead being lead in paint and pure lead. That is where the problem is. 

Mr. RADANOVICH. Thank you, Madam Chair. 

Ms. SCHAKOWSKY. Mr. Stupak. 

Mr. STUPAK. Thank you. 

Let me follow up a little bit with what Mr. Radanovich is asking. 

Mr. Vitrano, you indicated in your testimony that the motorcycle 

industry submitted evidence to the CPSC to obtain exclusions for 


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youth ATVs and motorcycles under the Act, but ultimately the decision is up to the CPSC to grant the exclusion. What clarifying language do you believe the committee must include to ensure that 

the CPSC interprets the language to grant exclusion for metal 

parts for ATVs, motorcycles, bicycles under the Act? 

Mr. VITRANO. Thank you. We feel it is absolutely critical that the 

terms ‘‘practicable’’ and ‘‘no measurable adverse effect’’ be defined. 

We have urged throughout the process that those definitions be included in the statutory language. The bill does not include them 

but we have been presented with draft report language that does 

include those definitions and are providing the additional clarity 

that is absolutely necessary so that it is perfectly clear that this 

committee intends the CPSC to exclude our products from the lead 

content limits. 

Mr. STUPAK. OK. Have you been asked to comment on those proposed regulations then, or rules on lead? 

Mr. VITRANO. Throughout the process of development of this bill, 

we have been in discussion with staff and have provided extensive 

input into how we feel the definitions should read. 

Mr. STUPAK. Do you feel your concerns have been taken into consideration? 

Mr. VITRANO. As I said, our preference would be statutory language, but we are comfortable with the report language that has 

been proposed and our support of section 2 is with the exception 

that report language will be included. 

Mr. STUPAK. OK. I wanted to get that clarified. 

Mr. Marshall, let me ask you this. I had a couple e-mails from 

some of my constituents. Let me just read one. ‘‘My family is dependent solely on the income we generate from manufacturing 

homemade knit items for newborns all the way to adults. We sell 

them through our own store, on the Internet all over the United 

States as well as nine other countries. We need our items exempted 

from the testing requirements underneath this new act. Duplication of testing should not be required of the materials we use for 

manufacturing our products have already been tested. I have no 

problem with the labeling now required and will begin doing so as 

soon as possible but I cannot afford to pay an average of $500 per 

item for each of the 70 items I create and sell all over the world, 

and every time I purchase yarn, the dye lot will be different and 

the item will have to be tested again. Please help us out.’’ You are 

sort of testifying about the same items you are having with your 

toy. Is this a common practice? I mean, you are getting things manufactured in the United States that have already been tested, but 

when you folks come to assemble them, then they have to be retested? 

Mr. MARSHALL. Well, there are a couple things going on here, depending on the type of product, and one of the issues has been communication to the general crafting community and small business 

community exactly where the legislation and rulemaking now 

stands. For example, yarn and other fabrics have been exempted 

from lead testing by the CPSC. However, if you are making a toy, 

another thing that hasn’t—let us say they are making that yarn 

and making it into a small doll, that is now a toy, that needs to 

be tested to ASTM standards unless we get this bill passed, and 


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that is a whole other set of tests which are also very expensive. So, 

yes, that is exactly the concern that the testing requirements, to 

prove that a product is compliant are enormous, and component 

testing is another thing that the CPSC has been moving forward 

on. However, we do feel it is going to take years for that really to 

come to fruition where we develop a marketplace where there are 

CPSC lab-certified zippers and CPSC lab-certified buttons available 

to the small business community to make their products. 

Mr. STUPAK. I have no further questions. Thank you. 

Ms. SCHAKOWSKY. Mr. Scalise to conclude. 

Mr. SCALISE. Thank you, Madam Chair. 

And if I could just ask to everybody on the panel yes or no, and 

we have got limited time. I have a few questions I want to hit on. 

But we have heard from at least two commissioners and Commission staff that the scope of the law is too broad. Do you agree, yes 

or no, that the scope of the law is too broad? 

Mr. PALMIERI. We are supportive of the improvements that this 

legislation makes. 

Mr. SCALISE. Still more improvements may be to limit the scope 

or are you comfortable? 

Mr. PALMIERI. If the exclusion process works, then it removes 

products that are safe from being included. 

Mr. VITRANO. We feel very strongly that ATVs and motorcycles 

should be excluded from the lead content provisions. 

Mr. SCALISE. So too broad. 

Mr. Gibbons. 

Mr. GIBBONS. I think the section 3 of the draft legislation helps 

to narrow things appropriately. 

Mr. SCALISE. OK. 

Mr. MARSHALL. We are talking about the original Consumer 

Product Safety Improvement Act? 

Mr. SCALISE. And the bill before us. 

Mr. MARSHALL. OK. Yes, the CPSIA we believe has been too 

broad and we do feel that we would get significant relief under the 

bill pending before this committee. 

Ms. WEINTRAUB. We can—we do not oppose the CPSEA. We can 

live with it. If it is weakened, I don’t know if that would be—— 

Mr. SCALISE. Do you think it is too broad? 

Ms. WEINTRAUB. We can live with the language as it is now but 

it can’t be made weaker and consumer protections can’t be weakened. 

Mr. LEVY. Congressman Scalise, I believe it is too broad. What 

started as the toy bill now includes books, clothing, ATVs. I think 

it is much too broad. 

Mr. WOLDENBERG. Definitely too broad. 

Mr. SCALISE. Thank you. Is there any reason why the Commission itself shouldn’t have the discretion to determine the age that 

would be appropriate for restrictions on lead limits? Would you 

support—yes or no, would you support giving the Commission that 

discretion to determine appropriate ages for lead? 

Mr. PALMIERI. I think that is one of the recommendations that 

the staff had a number of years ago, but again, we support the improvements that are in this draft legislation. 


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Mr. VITRANO. Our sole objective here is to make sure youth ATVs 

and motorcycles are available for young riders and we believe we 

could get there with the CPSEA. 

Mr. GIBBONS. In the context of your earlier question, the broadness of the law, you know, there are certain elements that apply 

to Goodwill and other human service-providing organizations so, 

you know, I don’t know that our opinion is as important for that 

question but we do think that the ongoing enhancement really is 

valuable for communities. 

Mr. MARSHALL. Yes, we do believe that the CPSC should be 

given the flexibility to adjust requirements for both content and 

testing certification based on age. Thank you. 

Ms. WEINTRAUB. We adamantly disagree. 

Mr. LEVY. I think the reconstituted CPSC and fully funded CPSC 

is more than capable today, so I think giving that discretion much 

different than 2 years ago, I think I would agree. 

Mr. WOLDENBERG. The CPSC should have the discretion to make 

that judgment. 

Mr. SCALISE. Thank you. 

Ms. Weintraub, kind of following up a little bit on Mr. 

Radanovich’s question on, you know, the toy box theory and how 

far you go when you are talking about products in treating a sixyear-old the same as a 12-year-old or higher. If you just go to the 

example of like not just toys, a mother’s purse or lead limits in 

keys, you know, I have got a one-year-old son, the first thing he 

goes for is the cell phone or the remote controls, and those aren’t 

children’s products but that is what they go for. So would you be 

supportive if you are trying to have the same apply to something 

like this which a child can get as easy access to as a Lego. 

Ms. WEINTRAUB. The scope of this law has been children’s products. There is many other sources of lead in our environment, in 

our homes, and I think lead should be reduced as much as possible 

in all of them. 

Mr. SCALISE. So even a cell phone you would want to have that 

same limit applied like keys in a mother’s purse or the purse itself 

or the cell phone? 

Ms. WEINTRAUB. Ideally, yes. 

Mr. SCALISE. For everybody else, it will probably be the last one 

I have time for. But if a less costly alternative testing requirement 

would be adequate for small batch manufacturers, then why not 

apply that to all businesses subject to the same testing requirements, would you all support subjecting that same approach for all 

manufacturers? 

Mr. PALMIERI. It is not a provision we have thought through or 

talked with our members to see if it is important or how it would 

advantage or disadvantage some, so I would want to get back to 

you on that. 

Mr. SCALISE. I appreciate that. 

Mr. VITRANO. It is not an issue that we are addressing through 

the bill. 

Mr. SCALISE. Thank you. 

Mr. GIBBONS. Ditto. 

Mr. MARSHALL. Obviously we have been negotiating this carefully so it applies to our member businesses. We are hoping that 


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we can set an example as alternative testing methods and other 

ways of certifying products, a fair approach that may well be extended to other types of products. 

Ms. WEINTRAUB. I was still contemplating my answer to your 

previous question, so can you repeat it, please? 

Mr. SCALISE. The previous question, would you want those same 

lead standards to apply to the cell phone that applies to the other 

children’s products? 

Ms. WEINTRAUB. That is what your question was to everyone? 

Mr. SCALISE. That was the last question. This one relates to 

small batch processors having the same—if that works for them 

and addresses some of the cost issues that become prohibitive, 

would you support having that apply if it is safe for a small batch 

to apply to all manufacturers? 

Ms. WEINTRAUB. I would not. 

Mr. LEVY. I would say the same rules should apply, it is safe or 

it is not safe, to new clothes, to used clothes, and small business 

or big business, it should be the same rules. 

Mr. WOLDENBERG. I agree that effective rules should be available 

to all members of the regulated community, and I would point out 

since the CPSC has stayed the testing requirements until 2011, we 

have seen a sharp drop in recall rates notwithstanding the testing 

has not been mandatory, so clearly there is something else at play 

here that is explaining the improvement. 

Mr. SCALISE. I appreciate your candor. 

Mr. RUSH. Ms. Myrick, you are recognized for 5 minutes. 

Mrs. MYRICK. Thank you, Mr. Chairman, and I am sorry that I 

wasn’t able to be here for your testimony but I did have a couple 

of questions to ask, please. 

Mr. Levy, there is language included in CPSI that preempts 

State laws. Has this provision worked, in your opinion? 

Mr. LEVY. It has not worked, in our opinion, because Proposition 

65 had a special carve-out and we are also seeing Wisconsin, New 

York have drawstring laws, and although the agency has ability to 

do preemption in those cases, they haven’t. So it is very confusing. 

People are very worried. We would like to see one standard applied 

and applied nationally. 

Mrs. MYRICK. Thank you. 

Mr. Woldenberg, how much have the costs of CPSI impacted your 

business, your product line, your payroll, et cetera? 

Mr. WOLDENBERG. I estimate that our costs have increased in the 

last, since 2006 to 2009, about $450,000. 

Mr. MYRICK. That is a lot. 

Mr. WOLDENBERG. I agree with that. 

Mrs. MYRICK. How do you feel that it is unfair to small business 

other than the cost factor? What else is affecting you? 

Mr. WOLDENBERG. Well, I have to tell you, it is extremely disruptive because there is so much disagreement out in the marketplace. 

I won’t necessarily tell you that it is confusion. There is just a lot 

of disagreement as to what are the applicable rules. This is a lot 

to master. A lot of people don’t read it. 

Mrs. MYRICK. I know. 

Mr. WOLDENBERG. How many people do you think have actually 

read this. 


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Mrs. MYRICK. Right. 

Mr. WOLDENBERG. And so we spend all the time arguing with 

our customers, which is terrible. We argue among ourselves. We 

don’t even know what we should do. There might be two people 

who think we should do it this way, two people that think you have 

to do it that way, and you are always calling your lawyer. We don’t 

know how to maintain our records. The very fact that the CPSC 

continues to issue rules upon rules upon rules without conforming 

them means that we are continually learning, relearning, resetting 

up, tearing down, because the rules are not static. It is just a terrible burden and it is not productive. 

Mrs. MYRICK. And along the same line, you said it does not make 

children safer. How can you expand on that? 

Mr. WOLDENBERG. Our efforts to make children safe rely on careful management of our supply chain. We very often find ourselves 

doing business with family businesses like our own where we know 

the mom, the dad, the brother, the sister, we have known them for 

years. Getting aligned with them on our practices, understanding 

how they operate their business, that is the best way for us to control quality, and we like to use inspections as well as testing to provide the controls so that we can assure the quality of a large 

stream of product. 

Mrs. MYRICK. Relative to this bill, what is the appropriate definition for a small business in this bill, in your opinion? 

Mr. WOLDENBERG. I think the federal definition of 500 employees or $500 million makes sense because you have to have enough people with the skills to understand these kinds of rules to implement 

them. It is completely ridiculous to think that a million-dollar business can manage this, just completely ridiculous. A million-dollar 

business is more like a lemonade stand than it is like Mattel, and 

so we can’t hold them to the Mattel standard. You are just condemning them to business death. 

Mrs. MYRICK. Very good point. 

Yes, sir, you wanted to add to that? 

Mr. MARSHALL. Yes. I would like to say if I could, the HTA would 

like to submit a list of businesses that have closed or withdrawn 

from the market. 

Mrs. MYRICK. I would appreciate that very much. I was going to 

ask the chairman if I could submit this economic impact report on 

businesses that had been hurt by this, to put it in the record. 

[The information appears at the conclusion of the hearing.] 

Mr. RUSH. Hearing no objection, so ordered. 

Mrs. MYRICK. Thank you, Mr. Chairman. That is all the questions I have. I yield my time. 

Mr. RUSH. The Chair thanks the witnesses for your testimony. 

There is a vote pending and so now the committee stands adjourned. 

[Whereupon, at 12:32 p.m., the Subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 


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Congressman Gene Green 

House Committee on Energy and Commerce 

Subcommittee on Commerce, Trade, and Consumer Protection 

Legislative Hearing on the Consumer Product Safety Enhancement Act 

April 29, 2009 

Mr. Chairman, thank you for holding this hearing and producing this 

legislation to make corrections to the Consumer Product Safety 

Improvement Act passed and signed into law last Congress. 

The CPSIA was instrumental in restoring resources and authority to 

the Consumer Product Safety Commission, and I was a proud 

cosponsor of the original legislative product Chairman Rush, 

Chairman Emeritus Dingell, and Ranking Member Barton worked 

together jointly to craft. 

As enacted the CPSIA set basic safety standards for children's 

products to restrict lead and phthalates and established a testing 

system designed to ensure that all products that enter commerce are 

safe. 

The bill also reestablished a five-member Commission as was 

originally intended in the original Consumer Product Safety Act, but 

had been restricted through appropriations riders which had severely 

restricted the Commission's rule-making and enforcement authority. 

Despite a thorough hearing process prior to developing the 

legislation, implementation of the CPSIA has not been seamless and 

has resulted in some unintended consequences. 

It was never the intent of the legislation to have significant adverse 

impacts on thrift stores, libraries, or small domestic businesses. 
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For instance, our office was contacted by Harris County that public 

libraries are were implicated by the CPSIA because the retroactive 

applicability of the law would require used books to meet the new 

lead limits, though there is nearly no chance this lead would ever be 

ingested. 

This issue was noted in the January 15th Report to Congress from 

the Consumer Product Safety Commission (CPSC) regarding 

difficulties encountered with enforcing the Consumer Product 

Safety Improvement Act. 

The report noted the Commission's belief that Congress did not 

intend to impose the lead ban for ordinary books, but the CPSC does 

not have the flexibility needed to grant an exclusion. 

The legislation we are looking at today, would give CPSC this 

flexibility, while still maintaining the strong protections intended in 

the law. 

It would also address the concerns of the small manufacturers by 

allowing the Commission to establish an alternative, less 

burdensome testing method, as well as the concerns of thrift stores 

and other retailers by only applying the lead limits to newly 

manufactured products. 

Mr. Chairman, thank you again for your work on both the original 

legislation and this amending bill, and I look forward to hearing 

from today's witnesses. 
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Statement of the Honorable Cliff Stearns 

CTCP Subcommittee Hearing - April 29, 2010 

H.R. _, the Consumer Product Safety Enhancement Act 

341 words 

Mr. Chairman, 

Thank you for affording us the opportunity to have a legislative 

hearing on the Consumer Product Safety Enhancement Act. 

It is appropriate that our subcommittee gather with industry to 

discuss the unintended consequences of the Consumer Product 

Safety Improvement Act (CPSIA). Although this was originally 

a bipartisan, well-intentioned bill, the legislation has had 

unforeseen consequences and is wreaking economic havoc and 

confusion amongst a broad spectrum of industries, small 

businesses, and charitable organizations. 

Since the moment the bill became law and we realized there 

were real compliance issues at hand, I have supported 

legislative fixes to the CPSIA that can bring relief to small 

businesses, manufacturers and other industries across our 

country without risking the safety and wellbeing of our 

children. I, along with my Republican colleagues on the 

subcommittee, have spent the past year calling upon Chairman 

Waxman to work with us on a legislative fix. I am an original 

cosponsor of Ranking Member Barton's Consumer Product 

Safety Solutions Act (H.R. 1815) which would have allowed 

retailers to "sell through" their current inventory and would 

create a compliance scheme for lead content testing and 

provide for regulatory flexibility in exemption authority. We 

introduced this bill in March of last year and were never 

granted a legislative hearing. 

1 
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I continue to stand strongly behind toy safety legislation but 

remain concerned that the Consumer Product Safety 

Commission (CPSC) is being forced to spend the vast majority 

of its time dealing with the over-burdensome lead provisions 

enacted by this law. The CPSIA has handcuffed the 

Commission, rendering it unable to prioritize real risk for tens 

of thousands of other consumer products that it is tasked with 

regulating. Commissioner Northup has even stated that 

"regulating lead content so minutely [is a] waste [of] taxpayer 

dollars that could be put toward policing genuine risk." 

The draft bill we are considering today is certainly a step 

forward to addressing some of the problems with CPSIA. But 

any legislative fix we pass must be comprehensive. We can't 

afford to get this wrong this time around. 

2 
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euro 

April 27, 2010 

Betsy Christian 

Legislative Assistant 

Congressman Joseph Pitts Office 

United States House of Representatives 

420 Cannon House Office Building 

Washington, DC 20515 

Dear Ms. Christian, 

Thanks for your call today to provide additional information about the hearing before the House 

Subcommittee on Commerce, Trade and Consumer Protection. As you know I will be attending 

as part of the Handmade Toy Alliance delegation with Jolie Fay and Dan Marshall who will be 

testifYing. I also found out later today that two seats immediately behind Mr. Marshall will be 

marked as reserved for the HTA, so finding seating in the hearing room should not be an issue. 

We have spoken and corresponded about many issues with the CPSIA over the last several 

months. My primary concern has always been the inconsistency between the CPSIA and EN71 

which guides European manufacturers in relation to toy safety. In the latest draft from 

Congressman Waxman, there is language that offers a bit of hope that the reconciliation could be 

allowed by the CPSC. This appears on page 9 of the discussion draft" ... the commission ... may 

'" provide alternate testing requirements ... The Commission may allow such alternative testing 

methodologies for small batch manufacturers with respect to a specific product or product class 

or with respect to a specific safety standard or component of a safety standard." 

I, and the HTA, believe this statement provides opportunity for us to work on the regulation side 

of the CPSIA with the CPSC. It may be the only possibility for near term reform of the CPSIA 

on the legislative side before the stay of testing is lifted by the CPSC in February of2011. We 

have had success working on the regulation side with the CPSC but run into trouble where the 

law provides them no flexibility. Do you or Congressman Pitts believe there is any additional 

chance of legislative reform in the next nine months? If the draft amendment on the table is the 

only opportunity, we are forced to accept it and then begin work with the CPSC to write rules 

saving small businesses. 

I look forward to meeting you and Congressman Pitts again on Thursday. 

With kind n~gards, 
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Randall Hertzler, 

President 

CC: Congressman Joseph Pitts 

587 North School Lane, Lancaster, PA 17603 phone: 717/517-6527 fax: 7171718-6193 

rhertzier@euroSourceLLC.c<,Jm 
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Businesses Closed Due to CPSIA 

As of April 30, 2010 

The following businesses have closed in full or in part due to the CPSIA since August 

2008. Please note that this is a very incomplete list and only includes businesses which 

have publicly announced that the CPSIA was a contributing factor in their decision to 

cease operations. We believe that this list will increase substantially after February 10, 

2011 if the CPSIA is not amended. 

1. Whimsical Walney, Inc. Santa Clara, CA 

2. Fish River Crafts Fort Kent, ME 

3. Kungfubambini.com - Portland, OR 

4. Baby Sprout Naturals Fair Oaks, CA 

5. Gem Valley Toys Jenks, OK 

6. Angel Dry Diapers - Michigan 

7. Abracadabra Educational Craft Kits for Kids Bend, OR 

8. Moon Fly Kids Las Vegas, NV 

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

10. Eleven 11 Kids 

11. Perfect Circle Consignment - Kitsap, WA 

12. Jen Lynn Designs 

13. A Kidd's Dream - Conway, AK 

14. Hands and Hearts History Discovery Kits - Greenwood, SC 

15. The Lucky Pebble - Kailua, HI 

16. Storyblox New Vienna, OH 

17. My Sister's Closet Arizona 

18. Honeysuckle Dreams 

19. Sullivan Toy Co. 

20. Phebe Phillips, Inc. - Dallas, TX 

Businesses that have stopped production of some or all of their 

children's lines due to CPSIA 

I. Creative Artworks - Greenwood, AK 

2. Craftsbury Kids Montepeliar, VT 

3. Pockets of Leaming Rhode Island 

4. Haba USA (Children's Jewelry Lines) -- New York 

5. Kinderkram (Painted Wood Figures) Germany 
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Businesses that closed and list the CPSIA as one of the factors 

1. Due Maternity - San Francisco, CA 

2. Frog Kiss Designs Fairfield, CT 

3. Waddle and Swaddle -- Berkley, CA 

4. Lora's Closet - Berkley, CA 

5. Baby and Kids Company Danville, CA 

6. Baby and Beyond Albany, CA 

7. Obabybaby Berkley, CA 

8. Bellies N Babies Oakland, CA 

9. Oopsie Dazie 

10. Essence of Nonsense Toy Store -- St. Paul, MN 

11. Kidbean -- North Carolina 

Businesses no longer Exporting to the US due to the CPSIA 

1. Hess Spielzeug - Germany 

2. Selecta Spielzeug Germany 

3. Finkbeiner Germany 

4. Saling - Germany 

5. Simba-Germany 

6. Bartl GmbH dba Wooden Ideas Germany 

7. Woodland Magic Imports - France 

8. Brio -- Denmark 

9. Helga Kreft - Germany 

10. Eichorn Germany 

11. Kapla Blocks France 
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of Illnitcb 

J!)OUfir of l\tprtlltl1tMillCll 

[{[l,lslimrrtoll,D<C 2,1315 

April 29,2010 

Rep. Denny Rebberg ('\1T-AL) 

Statement ('or the Record 

Energy and Commerce, Subcommittee Oil Commerce, Trade and C()n~Ulller l'rotection 

Hearing on II.R. Consllmer Product Safety Enhancement Act of 20)0 

i'dI'. Chairman, thank you for the opportunity 10 submit this Statement for the Record on II.R. 

- the Consumer Product Safety Enhaucemcnt Act of 20lD (CPSE;\). As you know, the 

Consumer Product Safety Improl'ement Act (CPSIA). while well-intentioned. created a situatioll 

in which ofT-road vehicles that arc manufuctured and marketed cxdusin~ly for children U1H.h.~r the 

oftwclyc: including all-terrain vchicles, olT-highway nlOlofc)'ck:-. and snowmobiles, huyc 

effectively banned due to the Consumer Product Sar~ty Commission's (CPSC) 

interpretation oft.he lead ('oment provision, \Vhllc: the Commission ha~ issued a two-year stay of 

enforcement, permanent action to cxduuc these products from the CPSC's interprctalion is 

sorely needed. 

Under th..:: CPSC's intcll)l'ctulion. engines, brakes. wheds and suspension parts would not receive 

an exemption from the CPS fA's lead testing provisions and must cOnf0l1nl0 the strict provisions 

included in the icgislmion. As 1 have expressed 1.0 the Commission and to my fcllo\'V Members 

of Congress before, it would be extremely difficult for children to physically handle Ihese pans, 

many of which aren't easily accessible to C\'CTI the most experienced mechanics. Quite simply, 

these pans should not be indudcd in the CPSC's inlerpret"tion of the bill. 

1 appreciate the Chairman'S work on crafting an cnhancclTIl:m hill that addresses many of the 

conccms and seeks to gi\'e the CPSC increased flexibility in Iheir interpretation of the bill. 

I [OWCycr. ( nm concerned that as the hill ~tands nrnv, the exception pro\'i~ions arc too broadly 

written und \I,'ill only icad to increased confusion aboUl Congressional inlenL I firrnly helieve 

that the CPSEA's cxc!lbion pro\"isiol1s need to specifically indude an exclusion for youth-model 

motorcycles and ATVs. I ask the Committee to jndudc the language of my legislation. H.R. 

1587. that would exempl youth-model motorcyck~ and ATVs from the lcau-t:ontcnl lirnits, in 

any final versioll of the Consumer Product Safct y Enhancement At:L 

.Vlr. Chairman, this issue is of utmost importance to outdoor enthusiasts everywhere and al~o 

afJ(:<.'ts thousands of smull business o\vncrs m:ross the coulltry {lUll ha~~ their Jjvelihood on the 

sulc of youth products. I appreciate your attention to this important issue. and please do not 

hesitate to let m~ know if 1 can he of any assistance to you us you strive 10 craft an enhanced 

conSUlller product ,,,rety bill. 

nus MAlllNG WAS PREPARED. PUBLISHED AND MAILED AT TAXPAYER EXPENSE 

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