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LEGISLATION TO IMPROVE CONSUMER PRODUCT

SAFETY FOR CHILDREN

HEARING

BEFORE THE

SUBCOMMITTEE ON COMMERCE, TRADE,

AND CONSUMER PROTECTION

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 2474, H.R. 1699,

H.R. 814, H.R. 1721

JUNE 6, 2007

Serial No. 110–52

(

Printed for the use of the Committee on Energy and Commerce

energycommerce.house.gov
COMMITTEE ON ENERGY AND COMMERCE

JOHN D. DINGELL, Michigan, Chairman

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, JR., New Jersey

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

DIANA DEGETTE, Colorado

Vice Chairman

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

JANE HARMAN, California

TOM ALLEN, Maine

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

DARLENE HOOLEY, Oregon

ANTHONY D. WEINER, New York

JIM MATHESON, Utah

G.K. BUTTERFIELD, North Carolina

CHARLIE MELANCON, Louisiana

JOHN BARROW, Georgia

BARON P. HILL, Indiana

JOE BARTON, Texas

Ranking Member

RALPH M. HALL, Texas

J. DENNIS HASTERT, Illinois

FRED UPTON, Michigan

CLIFF STEARNS, Florida

NATHAN DEAL, Georgia

ED WHITFIELD, Kentucky

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

SUE WILKINS MYRICK, North Carolina

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

PROFESSIONAL STAFF

DENNIS B. FITZGIBBONS, Chief of Staff

GREGG A. ROTHSCHILD, Chief Counsel

SHARON E. DAVIS, Chief Clerk

BUD ALBRIGHT, Minority Staff Director

(II)
(III)

SUBCOMMITTEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION

BOBBY L. RUSH, Illinois, Chairman

JAN SCHAKOWSKY, Illinois

Vice Chairman

G.K. BUTTERFIELD, North Carolina

JOHN BARROW, Georgia

BARON P. HILL, Indiana

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

DIANA DEGETTE, Colorado

CHARLES A. GONZALEZ, Texas

MIKE ROSS, Arkansas

DARLENE HOOLEY, Oregon

ANTHONY D. WEINER, New York

JIM MATHESON, Utah

CHARLIE MELANCON, Louisiana

JOHN D. DINGELL, Michigan (ex officio)

CLIFF STEARNS, Florida,

Ranking Member

J. DENNIS HASTERT, Illinois

ED WHITFIELD, Kentucky

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

GEORGE RADANOVICH, California

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

LEE TERRY, Nebraska

SUE WILKINS MYRICK, North Carolina

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

JOE BARTON, Texas (ex officio)

(V)

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

opening statement ................................................................................................ 3

Hon. Jan Schakowsky, a Representative in Congress from the State of Illinois, opening statement ....................................................................................... 5

Hon. Michael C. Burgess, a Representative in Congress from the State of

Texas, opening statement .................................................................................... 6

Hon. Baron P. Hill, a Representative in Congress from the State of Indiana,

opening statement ................................................................................................ 7

Hon. Dennis Moore, a Representative in Congress from the State of Kansas,

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

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

Carolina, prepared statement ............................................................................. 11

H.R. 814, to require the Consumer Product Safety Commission to issue regulations mandating child-resistant closures on all portable gasoline containers .......................................................................................................................... 12

H.R. 1699, to direct the Consumer Product Safety Commission to require

certain manufacturers to provide consumer product registration forms to

facilitate recalls of durable infant and toddler products .................................. 15

H.R. 1721, to increase the safety of swimming pools and spas by requiring

the use of proper anti-entrapment drain covers and pool and spa drainage

systems, by establishing a swimming pool safety grant program administered by the Consumer Product Safety Commission to encourage States

to improve their pool and spa safety laws and to educate the public about

pool and spa safety, and for other purposes ...................................................... 21

H.R. 2474, to provide for an increased maximum civil penalty for violations

under the Consumer Product Safety Act ........................................................... 34

WITNESSES

Edmund Mierzwinski, consumer program director, U.S. Public Interest Research Group, Washington, DC ........................................................................... 35

Prepared statement .......................................................................................... 37

Sally Greenberg, senior product safety counsel, Consumers Union, Washington, DC .................................................................................................................. 42

Prepared statement .......................................................................................... 45

SUBMITTED MATERIAL

Nancy A. Nord, Acting Chairman, U.S. Consumer Product Safety Commission, submitted statement ................................................................................... 66

Answers to submitted questions ...................................................................... 83

Thomas Moore, Commissioner, U.S.Consumer Product Safety Commission,

answers to submitted questions .......................................................................... 102

David Asselin, executive director, Council of Manufacturing Associations for

the NAM CPSC Coalition, letter of June 6, 2007 to Messrs. Rush and

Stearns .................................................................................................................. 109
(1)

LEGISLATION TO IMPROVE CONSUMER PRODUCT SAFETY FOR CHILDREN, H.R. 2474, H.R.

1699, H.R. 814, AND H.R. 1721

WEDNESDAY, JUNE 6, 2007

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

2123, Rayburn House Office Building, Hon. Bobby L. Rush (chairman) presiding.

Present: Representatives Schakowsky, Hill, Stearns, Whitfield

and Burgess.

Also present: Representatives Moore of Kansas, and Wasserman

Schultz.

Staff present: Judith Bailey, Christian Tamotsu Fjeld, Angela E.

Davis, Will Carty, Shannon Weinberg, and Matt Johnson.

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

Mr. RUSH. The Subcommittee on Commerce, Trade and Consumer Protection will come to order.

The subject of our gathering today is to conduct a hearing on legislation to improve consumer product safety for children: H.R.

2474, H.R. 1699, H.R. 814, and H.R. 1721.

The Chair recognizes himself for 5 minutes for an opening statement.

One of the most critical subjects in this subcommittee’s jurisdiction is consumer product safety, especially the safety of our children and the products that they use. As I noted at the oversight

hearing this subcommittee held last month, I regard this aspect of

our jurisdiction very seriously. I intend to initiate comprehensive

reform of the Nation’s children product safety system during this

110th Congress. We could do no less for our children. Today’s hearing is a first step. We are considering four bills. Each has a limited

and rather targeted goal. More importantly, all of the bills enjoy

bipartisan support.

H.R. 2474 gives the Consumer Product Safety Commission an additional tool to enforce product safety by raising the overall cap on

civil penalties that we can impose from the current $1.83 million

to $20 million. This is the same increase that the Senate passed

in 2003 as part of a CPSC reauthorization bill.
2

Second, we will consider H.R. 1699, introduced by Representatives Schakowsky and Upton, and it will require the CPSC to promulgate regulations to require manufacturers of defined nursery

products—cribs, strollers and the like—to include postage-paid

postcards for consumers to fill out so they can be notified directly

in the event of a product recall. This bill adds one more tool to accomplish an effective recall of dangerous products. It is modeled

after the car seat recall system used by the National Highway and

Traffic Safety Administration. With privacy concerns in mind, this

bill specifically prohibits information provided by consumers from

being used for any other purpose.

Third, H.R. 814, introduced by Representatives Moore and Bachus, requires the CPSC to promulgate regulations to require child

safety resistant caps on portable gasoline cans, cans sold empty.

The current requirements inexplicably do not apply unless the cans

already have the dangerous product inside.

Finally, H.R. 1721, introduced by Representatives Wasserman

Schultz and Wolf, requires the CPSC to promulgate regulations to

require antientrapment drain covers for swimming pools to prevent

a particularly horrible form of drowning. It also requires the CPSC

to establish a grant program for the States to encourage them to

enact laws that mandate greater improved safety, including laws

requiring adequate fencing and other barriers to entry.

At this time, it is my honor and privilege to acknowledge the

presence in the hearing room of Ms. Nancy Baker. Both Ms. Baker

and her father-in-law, Secretary James Baker, are strong supporters of the pool and spa bill. Please note that the terrible tragedy

that took the life of their daughter and granddaughter has been a

major inspiration for the reforms set forth in this bill.

Ms. Baker, please accept our condolences. We intend to make

sure that your tragic loss was not in vain, and we will use that as

a springboard to ensure that we prevent losses in the future of that

kind. We thank you for your presence at this hearing.

I hope that we can have a full discussion on these bills in today’s

hearing. Let me emphasize that I want to work with the entire

subcommittee on a bipartisan basis to make any technical or other

changes and improvements to the bills and then move quickly to

markup. As I said, these four bills are only a first step. In the

months ahead, I hope to conduct a comprehensive review of the

Agency’s basic statutory authority and to craft the necessary reforms. Once again, I hope to do this on a bipartisan basis with the

assistance of the CPSC, consumer advocates and industry groups.

It is time now that we show the American people that we are serious about our children’s product safety.

Before we begin, let me just take leave to share a word on our

witnesses. We have two who are presenting oral testimony. We also

have written testimony from Ms. Nancy Nord, the Acting Chairman of the Consumer Product Safety Commission. We invited the

CPSC to send a representative to provide oral testimony at the

hearing. Originally Ms. Nord elected to respond to that request and

to testify in person. Yesterday we decided we needed to collapse the

hearing into one panel because of the time restraints presented by

today’s floor consideration of H.R. 964, the spyware bill, for which

I will serve as the manager. When Ms. Nord learned that we need-
3

ed her to testify on the same panel with the other two witnesses,

she declined to appear in person or, alternatively, to send another

CPSC representative.

We regret her decision not to have a CPSC witness at this hearing. Although, perhaps unusual, we have had to have one-panel

hearings in the past and have mixed government witnesses with

other witnesses such as the March 9 hearing on pretexting. In the

future we will need the full participation of all of those at the

CPSC and its leadership as we work to improve our Nation’s consumer product safety system. I very much hope that the CPSC will

be able to help us promote children’s product safety and to look out

for the needs of all of our consumers.

With that, I recognize the ranking member of the subcommittee,

my friend from Florida, Mr. Stearns.

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

Mr. STEARNS. Thank you, Mr. Chairman. Let me just thank you

again for holding this hearing. I think I will move right to your last

point.

As all of us know, CPSC Acting Chairwoman Nord was scheduled

to appear today. She is not because the majority staff would not afford her the opportunity and courtesy of having the head of a Federal agency testify separately from nonadministration witnesses.

This has been the precedent of this committee as long as I was

chairman and going back with our staff for 15 to 20 years. So I understand there has been a misunderstanding of, perhaps, the committee staff of the majority in trying to increase witness participation because of time constraints, and I fully take the chairman at

his word, but mixing a chairperson of a major Federal agency has

never been done. It has always been on a separate hearing. We did

that under the Clinton administration when I was in the majority.

So I think we had a little misunderstanding. I hope, in the future, that the acting chairwoman will be called back and will be

given the opportunity and afforded the opportunity and courtesy of

having her testify separately from nonadministration witnesses.

Having said that, it is important that, I think as you pointed out

directly here, we examine these issues on these four bills. So I commend you for taking the time. We do not have a lot of time, but

it is important that we have a hearing on this. We both know we

have the spyware bill on the floor, and we are both eager to try

and move that forward. That bill is on a Suspension Calendar

today. The Social Security number protection bill, the pretexting

bill and your commitment to move the data security bill by regular

order is all in order, too. So I commend you for this full agenda.

One thing we also are a little concerned about is finding one witness that has an interest in all four bills from gasoline containers

to increasing civil fines was extremely difficult, in addition to finding a witness given the short holiday workweek last week. For example, if we had 10 bills on the hearing, would we still only get

one witness? What happens if we had 20 bills? So I think what

would be helpful for our side is if we had an opportunity to have

a different witness comment on each of these four bills instead of

one witness to comment on the four bills.
4

So, normally, I would assume a legislative hearing would be held

on each individual bill. Absent that, I would hope a hearing on

multiple bills will be structured in a manner that permits the Republicans an opportunity to present a witness for each bill if the

majority does not invite witnesses who represent those businesses

who may have to operate under the proposed regulations.

This is an opportunity for freedom of thought, for freedom of

opinion, and for letting the minority have an opportunity to have

some authority on these bills. I hope we can have such an opportunity in the future so that we can continue as you and I work in

a bipartisan way to develop legislation out of this committee.

That being said, Mr. Chairman, the legislation before us today is

important, as you mentioned. All of the bills before us in some way

involve the important work on the Consumer Product Safety Commission. It is no secret that anything involving children and consumer products tends to stir emotion in a manner that usually

leads our protective nature to shield our children from harm. After

all, that is part of the reason the CPSC was created in the first

place, to provide a mechanism to ensure that consumer products in

the marketplace are safe. Nobody wants to find that a product they

can purchase at the local store is unsafe and creates a hazard for

our young children, and nothing is more tragic than a life that ends

prematurely, especially when it ends due to a foreseeable hazard.

But our job is to evaluate the legislation on the merits, regardless

of how we feel about the subject matter, and make any necessary

recommendations or changes.

The legislation we examine today addresses four discrete issues:

an increase in civil penalties the CPSC can levy, mandatory product registration for child nursery items, a uniform safety cap for

gasoline containers, and pool and spa safety standards. Everyone

wants to make sure that our children are safe, and that unscrupulous people who attempt to evade laws and standards are punished.

I wholeheartedly support improved safety standards and punishing wrongdoers, but I have some questions about aspects of the relative legislation that I hope will be explored during our questionand-answer period to our witnesses. I intend to submit written

questions directed to the CPSC.

I ask, Mr. Chairman, unanimous consent that the Commission’s

responses be added as part of the record here today.

Mr. RUSH. So ordered.

Mr. STEARNS. The CPSC has performed an invaluable service to

our country under a rare formula that has proven very successful.

Voluntary standards promulgated and adhered to by industry can,

and usually do serve as a de facto standard. With the aid of established industry standard-setting bodies, the workload of the CPSC

is effectively delegated in many cases and obviates the need for formal CPSC rulemaking that would consume their valuable time and

resources that could be spent more productively elsewhere.

So I look forward to the hearing today, Mr. Chairman, and I appreciate our being able to expedite this hearing so we can get our

spyware on the floor. Thank you.

Mr. RUSH. The Chair now recognizes the gentle lady from Illinois

Ms. Schakowsky for 5 minutes.
5

OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Ms. SCHAKOWSKY. Thank you so much, Chairman Rush, for holding today’s hearing on four important bills that would protect children from needless harm and everyday dangers. I am especially

grateful that you included my bill, H.R. 1699, the Danny Keysar

Child Product Safety Notification Act, or Danny’s Act.

As we heard at last month’s hearing on children’s products, because of lax laws and inadequate protections, dangerous and, in

fact, deadly products are being made and sold for use by children.

It is past due that we give parents the security they deserve and

children the safety they need.

The importance of enacting stronger protections cannot be overstated. Unintentional injuries are the leading cause of death among

children, and for every such injury that is fatal, approximately 18

children are hospitalized, and 1,250 are treated by emergency departments. According to the Consumer Product Safety Commission—I have in my testimony—who is not with us here today, an

average of 61 children under the age of 5 die each year in incidents

associated with nursery products. Of 318 consumer products recalled by the CPSC in 2006, 111, or 35 percent, were items intended for use by or in the care of children.

My bill, Danny’s Act, would help prevent those needless and preventable injuries and deaths by making the recall of children’s

products more effective. H.R. 1699 would require that each durable

infant and toddler product—and we name them—high chairs, cribs

and strollers, et cetera—come with a postage-paid recall registration card. This will allow the manufacturers to directly contact

each parent who bought their product should any problem arise

that could put their children at risk.

Although there is a shocking number of recalled products, our

current recall system is failing. Actual notice of a recall is dependent on news outlets’ picking up the story and spreading the word.

Notification targeted to owners of the product is rare, and many

parents remain unaware of dangers even when products are recalled. In fact, many families still have the dangerous products listed in this report in their homes because they have not happened

to turn on the television at the right time or to read the right

newspaper.

My colleague, Representative Fred Upton, and I named our bill

that would help solve this problem the Danny Keysar Child Product Safety Notification Act because his story is a tragic example of

the inadequacy of our current recall practices. Danny Keysar, the

precious 17-month-old son of Linda Ginzel and her husband Boaz

Keysar, died when the Playskool Travel Lite portable crib he had

been napping in at his babysitter’s home collapsed. The rails of the

crib folded into a V-shaped wedge when he stood up, trapping his

neck, and he was strangled to death. It was May 12th, 1998, 5

years after the CPSC had ordered it off the shelves because it was

so dangerous. Word of its hazard had not reached Danny’s parents,

the caregiver with whom he was staying or the State safety inspector who visited the home just 8 days before Danny’s death. Had

Danny’s Act been in effect, there would have been a much greater
6

chance of saving Danny’s life and the lives of six children who have

since died from the Travel Lite.

We know that, while not the one and only answer, recall registration cards are an inexpensive and effective way of getting the

word out. My bill is modeled after the National Highway and

Transportation Safety Administration’s recall system for car seats.

Since NHTSA started requiring car seats to have registration cards

in 1993, the number of families registering increased by at least

tenfold. Recall repair rates have gone up 56 percent, all for a mere

43 cents per item. This bill will give families a much greater

chance to repair, return or discard any dangerous products that

have made it into the children’s nurseries.

Finally, I would like to express my support for my colleagues’

bills that are being considered. Mr. Rush’s bill, H.R. 2474, would

raise the cap on civil penalties for knowingly violating CPSC requirements so that getting caught violating safety requirements

could not be written off as simply the cost of doing business. The

Children’s Gasoline Burn Prevention Act, which would extend the

requirement of childproof caps to apply to gas cans, could save

1,200 families trips to the emergency room every year, and the Pool

and Spa Safety Act would set a much-needed antientrapment

standard for pool and spa drains sold in the United States.

I thank you, Mr. Chairman, for today’s hearing, and I regret the

lack of presence of the Acting Chair of the Consumer Product Safety Commission. I hope we can get past standing on ceremony and

deal directly with saving children’s lives. I welcome the witnesses

who we have with us today.

Thank you.

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

Mr. Burgess, for 5 minutes.

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. BURGESS. Thank you, Mr. Chairman.

As a parent, physician and Congressman, I firmly believe our

children’s safety and security should be our highest priority.

Through over 25 years of practice delivering 3,000 babies in north

Texas, I can tell you, before I placed a baby in the parents’ arms,

the first question invariably that was asked is, ‘‘Is the baby

healthy? Is the baby safe?’’

The safety and security of our children is the first thing on every

parent’s mind whether that child is a newborn or is a grown adult.

The internal instinct is to protect all children. It transcends party

lines. I think Republicans and Democrats alike can agree that our

children are our most precious resource, and we must nurture and

protect them. However, one thing that we do not agree on is how

this hearing is being run today.

Disappointment. The word does not describe how I feel right now

about Chairwoman Nord’s absence at this committee. Her written

testimony is very compelling and provides some excellent points

and suggestions as the acting chairwoman of a Federal agency, and

this committee should have given her the courtesy that she deserved. From my understanding, and I have not been here that

long, there is absolutely no precedent to put agency chairmen and/
7

or commissioners on a panel with private-sector witnesses of any

kind, and to ask Chairwoman Nord to do this is disrespectful to her

and to the United States Consumer Public Safety Commission.

Due to the majority’s action, this committee is robbed of a key

insight that could have been provided to and that could have benefited our society. The chairwoman also recently traveled to China

and met with officials about the disturbing trends of recalls of Chinese products. The American public deserves to hear her recount

of the meetings, and by her not being here today to discuss this

crucial matter in a public forum, the majority has inadvertently

helped to silence the demand for the safety of consumer products

imported from the People’s Republic of China.

Additionally, we are talking about safety and antientrapment

standards in swimming pools. That is a good thing to be talking

about, but right next-door to my district in Fort Worth, Texas, we

lost several young people and an adult in an ornamental pool in

downtown Fort Worth, Texas. I would have welcomed the opportunity to ask Chairwoman Nord about the possibility of additional

safety standards that would increase the amount of protection, the

regulation and the protection for people who visit ornamental pools

or landscaping pools.

Mr. Chairman, I was so concerned about this that I was considering offering a motion to have the committee rise. I was talked off

that ledge by the ranking member, so I thank him for his input,

but let us not forget that it is the U.S. Consumer Product Safety

Commission that is tasked with the job of trying to safeguard our

society and our children in particular from unreasonable risks of

injury and death associated with consumer products.

I do not consider this to be a legitimate hearing to critically discuss legislation if the agency charged with enforcement is not

present to testify. This committee is not doing our due diligence to

the American public if the Consumer Product Safety Commission

is not welcomed to the table to discuss the four pieces of legislation

on the docket today, and I will continue to have grave concerns

about the applicability of certain aspects of the legislation before

us, and I am going to have continued concerns about the procedural irregularities of this hearing. I trust this will not happen

again.

I yield back my time.

Mr. RUSH. The Chair now recognizes the gentleman from Indiana

Mr. Hill for 5 minutes.

OPENING STATEMENT OF HON. BARON P. HILL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA

Mr. HILL. I would like to thank Chairman Rush, Vice Chair

Schakowsky and Ranking Member Stearns for holding this important hearing today.

Mr. Chairman, in addition to my own testimony, I request unanimous consent to insert the testimony of Mr. Alan Korn into the

record. Mr. Korn is the director of public policy and general counsel

to Safe Kids Worldwide. Safe Kids Worldwide is a global network

of organizations whose mission is to prevent accidental injury,

childhood injury, a leading killer of children 14 and under.

Mr. RUSH. So ordered.
8

Mr. HILL. They have played an important role in encouraging

ways to improve the safety of America’s children. As the summer

months approach, there will be an unfortunate increase in

incidences throughout the Nation. In recognition of that fact, June

is Home Safety Awareness Month and an appropriate time to discuss relevant legislation pending before this committee. By encouraging the awareness of possible dangers within homes across

America, we can attempt to reduce injuries and deaths to children

across the country. The bills we are here to discuss today promote

the ideas of home safety awareness by seeking to protect America’s

homes and families.

Mr. Chairman, at our last hearing, I spoke about one bill in particular that would go a long way towards reducing incidents of

child injury and death, and that is House Resolution 1721, the Pool

and Spa Safety Act. Today I would like to reiterate my support for

this bill and encourage action.

After this committee’s last hearing, I spoke with Nancy Baker,

who lost one of her children because of the absence of the safe

drain covers which this bill addresses. I know that Nancy is here

today, and I want to commend her for her efforts to address this

issue, and when I was on the phone with her, I talked to her a little bit about her courage. The best way to say this is not to retreat

in sadness over the loss of her child. She wanted to make sure that

other children did not have the same kind of things happen to

them, and I applaud her here this morning for having the courage

to step up and do this, and I am very impressed with her efforts.

It is clear that children can be spared from this terrifying situation, and parents can be spared from enduring that sort of pain.

The steps we take here can help to move us towards that goal.

I am aware that there may be some minor technical concerns

with the Pool and Spa Safety Act; however, I hope that we can all

work together to ensure prompt action on this very important bill.

By doing so, we will realize the goals of Home Safety Awareness

Month and prevent families in the future from enduring the pain

caused by avoidable drowning accidents.

Thank you, Mr. Chairman. I yield back the balance of my time.

Mr. RUSH. The Chair wants to thank the gentleman and now recognizes the gentleman from Kentucky Mr. Whitfield for 5 minutes

of opening statement.

Mr. WHITFIELD. Mr. Chairman, I will waive my opening statement.

Mr. RUSH. The Chair thanks the gentleman.

Now we will recognize the gentleman from Kansas, Mr. Moore,

who is not a member of the committee, but he is a sponsor of one

of the bills that we are considering today.

Mr. Moore, you are recognized for 5 minutes. Welcome to the

committee.

OPENING STATEMENT OF HON. DENNIS MOORE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS

Mr. MOORE. Thank you very much, Mr. Chairman and members

of the committee. I really appreciate the opportunity to come before

your committee today to testify in support of H.R. 814, the Children’s Gasoline Burn Prevention Act of 2007.
9

Mr. Chairman, they say that good things come to those who wait,

but I think children who are the victims of burn injuries and death

and their families would certainly disagree with that. I have introduced this measure with my friend and colleague Spencer Bachus

of Alabama to allow the CPSC to require child-resistant gas caps

for portable gas containers. I believe our children have waited too

long for this commonsense consumer protection.

The 1973 Poison Packaging Prevention Act requires items containing dangerous or poisonous materials, such as pill bottles and

drain openers, be sold with child-resistant caps, but gasoline cans

are exempt from this requirement because they are sold empty

even though they are designed solely to contain one hazardous,

highly flammable liquid and probably the most dangerous substance in any of our homes, gasoline.

H.R. 814 would simply amend section 9 of the Consumer Product

Safety Act to include child-resistant standards for closures in all

portable gasoline containers. Allowing these cans to be sold with

simple twist-off caps is dangerous and causes tragic accidents when

children come into contact with them. Unfortunately, these accidents occur all too frequently. In 2003, the Consumer Product Safety Commission released a report estimating that, in a single year,

about 1,270 children under the age of 5 were treated in emergency

rooms for injuries resulting from unsecured gas cans either through

fires or from the inhalation of fumes.

When I introduced this bill, I had a press conference at a fire station in my district, and the firemen were there with their fire

trucks, and the TV cameras were there. And a mother brought her

little 4-year-old boy over, and he was the cutest little thing, Mr.

Chairman, running around in little shorts and had a short-sleeved

shirt on and had a plastic fire hat on, and he had horrible burns

all over his face and his arms and his legs. These burns could have

been prevented.

H.R. 814 has been endorsed by the American Society for Testing

and Materials Task Group of Standards for Flammable Liquid Containers, the World Burn Foundation, the National Safety Council,

the American Academy of Pediatrics, the National Fire Protection

Association, Public Citizen, and the Office of the Kansas State Fire

Marshal. In addition, Mr. Chairman, H.R. 814 would not cost the

taxpayers one single penny, and it is strongly bipartisan.

During the 109th Congress, the chairman’s Gasoline Burn Prevention Act garnered 119 cosponsors, Republicans and Democrats.

Mr. Chairman, this should not be about Republicans and Democrats. This is about our children.

Mr. Chairman, I have seven grandchildren right now, and I expect my eighth grandchild by noon today, and I am doing this for

my grandchildren and for every child in this country to protect

those children. I was district attorney in my home county for 12

years, and I worked a whole lot of child abuse cases to protect children, and I am doing the same thing here today to protect children

from further danger, preventable danger and from preventable injuries and death.

I want to thank you again, Mr. Chairman, for the opportunity to

appear today before your subcommittee. I hope that we can work

together to enact this simple, commonsense measure that will pro-
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tect young children and help put their parents’ minds at ease with

regard to gasoline cans stored in garages, basements and back

porches. The Consumer Product Safety Commission should be and

must be allowed to adequately protect our children.

Thank you, Mr. Chairman.

Mr. RUSH. I want to thank the gentleman.

I want to remind the members of the committee that this subcommittee and this chairman are concerned about doing the people’s business. I have respect for pomp and circumstance, and I am

not disrespectful to any individual, be they members of the administration, members of this committee or members of the public. I

intend to be respectful.

However, if there is a time restriction, and there are time restraints, then the priority of this chairman is to make sure that the

people’s business gets conducted in a timely manner, and that was

the motivation and is the motivation behind the actions of the

Chair.

Mr. BURGESS. A parliamentary inquiry, Mr. Chairman.

The time constraint was the spyware bill; is that correct?

Mr. RUSH. The time restraint was the schedule for the House

floor, which we had no control over and which we have no control

over. The Chair does not have any control over the schedule on the

House floor, and the spyware bill is to be up today, and the Chair

is scheduled to manage the spyware bill, and because of those obligations and conflicts, the Chair decided to fold the panels into one

panel and to move forward with this hearing.

The Chair did not consider canceling this hearing. The Chair did

not consider moving this hearing to another date or to another

time. The Chair was concerned about doing the people’s business

and making it the priority. Hopefully—I believe sincerely that anyone, whether or not they sat at a table with someone else or not,

that that was not going to be that much of a big deal.

Mr. BURGESS. Mr. Chairman, there is respect for doing the people’s business, and I respect you for doing that, but it also seems

the people’s business would be better accomplished if we heard

from all witnesses involved.

Mr. RUSH. I really wanted to say that the Acting Chairman of

the Consumer Product Safety Commission was told initially that

she did not have to be here, that she did not have to appear. Just

send a staff member. We wanted a staff member. She wanted to

insert herself, and then she wanted to insert herself under certain

circumstances and certain conditions that the Chair just could not

respond to in an affirmative type of way. So we have decided to go

ahead with the hearing. The Commissioner or the Acting Chairperson still has the opportunity to send someone over who is a staff

member to answer the questions and to provide testimony to this

subcommittee. The opportunity is still there for her, and I would

certainly encourage her to come forward.

I believe that the quibbling over who sits where is not a proper

point of inquiry when we are attempting to do important business

that the people elected us to get done, and the Chair would——

Mr. BURGESS. I do not think so. When we have a protocol, we

should follow it.

Mr. RUSH. Thank you. We will move to our hearing.
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Mr. STEARNS. Mr. Chairman, I ask unanimous consent to put in

as part of the record the CPSC coalition letter that both you and

I received.

Mr. RUSH. So ordered. Any other statements for the record will

be accepted at this time, as well as copies of the bills under consideration.

[The prepared statement of Mr. Butterfield and H.R. 814, 1699,

1721, and 2474 follows:]

PREPARED STATEMENT OF HON. G. K. BUTTERFIELD, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF NORTH CAROLINA

The oversight hearing the Subcommittee on Commerce, Trade, and Consumer

Protection held nearly a month ago on the Consumer Product Safety Commission

(CPSC) shed light on the understaffed and underfunded conditions at the Commission. It was an extremely productive hearing that was successful in laying out a

framework for potential improvements. The CPSC is charged with protecting the

public from unreasonable risks of serious injury or death from thousands of consumer goods. Many of these products have a direct safety implication for children.

While the safety of all Americans is of critical importance to lawmakers, the safety of children is of particular interest for this hearing. The Subcommittee on Commerce, Trade, and Consumer Protection will discuss several important legislative

initiatives aimed at improving the consumer product safety for children. Not enough

is being done to protect consumers—particularly children.

H.R. 2474, introduced by Chairman Rush, aims to increase the maximum civil

penalty for violations under the Consumer Product Safety Act. The current limit the

CPSC can assess is $1.825 million—the bill seeks to increase the limit to $20 million. Unfortunately, the current penalty is so low that some businesses see it simply

as the cost of doing business. So these companies continue to violate CPSC safety

violations, putting our children at risk.

The Danny Keysar Child Product Safety Notification Act—H.R. 1699—was introduced by Congresswoman Jan Schakowsky. Mirroring the National Highway Traffic

Safety Administration’s recall for car seats, H.R. 1699 requires everyday nursery

products to come with a prepaid postage registration card for easy dissemination of

recall information. Through this legislation, if a product is recalled, more consumers

and children will be protected.

The Children’s Gasoline Burn Prevention Act—H.R. 814—would require that the

CPSC disseminate standards for portable gasoline caps for gasoline containers. Over

1,000 children are treated for burns related to gasoline on an annual basis. By

streamlining these standards far less children will be harmed by gasoline.

Finally H.R. 1721—the Pool and Spa Safety Act—vastly increases the safety for

consumers who use pools and spas. Over 250 young children drowned in U.S. pools

and spas last year. This is a troubling number considering the total amount is much

higher. The bill requires that all pools and spas sold in the United States adhere

to anti-entrapment standards which are layers of protection that include barriers

and safety vacuum releases. It also calls for CPSC to establish a grant program for

the States to encourage successful passage of pool and spa safety laws.

I strongly support these important legislative measures and urge passage. This

is clearly a substantial first step in ensuring our children are properly protected although more must be done. The budget for the CPSC needs to be increased and we

as lawmakers should have an increased vigilance for our country’s children.
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Mr. RUSH. We have two witnesses now. Will our witnesses please

come forward.

Our first witness this morning is Mr. Edmund Mierzwinski, who

is the Consumer Program Director at U.S. PIRG, the United States

Public Interest Research Group.

Our second witness is Ms. Sally Greenberg, who is the senior

product safety counsel at the Consumers Union.

We want to thank both of the witnesses for appearing before us,

and we would ask that you restrict your opening statements to 5

minutes. We will first recognize Mr. Mierzwinski.

Mr. Mierzwinski, you are recognized for 5 minutes for opening

testimony.

STATEMENT OF EDMUND MIERZWINSKI, CONSUMER PROGRAM DIRECTOR, UNITED STATES PUBLIC INTEREST RESEARCH GROUP, WASHINGTON, DC

Mr. MIERZWINSKI. Thank you very much, Chairman Rush, Ranking Member Stearns, Vice Chair Schakowsky, and members of the

committee.

The U.S. Public Interest Research Group is pleased to offer our

views on these important child safety matters before the committee

today. To those Members unfamiliar with our work, in 2006, we released our 21st annual toy safety report, building on the passage

of the 1994 Child Safety Protection Act, which was supported by

the Consumer Federation of America, the Consumers Union, U.S.

PIRG, and a number other groups. A number of toys have been recalled in response to the passage of that legislation and our subsequent work, and we have participated in a number of other matters

before the Consumer Product Safety Commission as well over the

years.

U.S. PIRG is pleased to support the goals of all four of the bills

before the committee. We strongly support H.R. 1699, the Danny

Keysar Child Product Safety Notification Act. We strongly support

H.R. 2474 to increase civil penalties. We support the goals of H.R.

1721, the Pool and Spa Safety Act, that offer suggested amendments to improve the bill. Similarly, we support H.R. 814, the Gasoline Burn Prevention Act, but offer suggested amendments to improve the bill.

The legislation from Vice Chair Schakowsky, H.R. 1699, addresses one of the troubling problems that the CPSC faces, how to ensure that recalled products are actually tracked down and recalled.

The legislation would call for an improved product registration card

mechanism for finding the recalled products and for making sure

that particularly durable infant and toddler products, often which

are handed down, often which are kept for many years, have labels

on them so that they can be tracked down if recalled.

In the past, dual-use warranty cards have had a low trust factor

among consumers. Quite frankly, consumers have not wanted to fill

them out because they are afraid of privacy invasions from marketing practices of the companies. This bill strikes the appropriate response. It states that the information that is collected and recall

registration cards cannot be used for secondary purposes. Safety is

better served by protecting privacy as well.
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In regard to H.R. 2474, increasing civil penalties, this legislation

sponsored by you, Mr. Chairman, has a simple goal that everyone

should support. No company should have a business model that has

callous disregard for the law’s intent to protect the public from

safety hazards. What I am saying is a company should not game

the system by deciding that it is cheaper to take the chance of paying a small penalty and get away with not making safe products.

You need a big hammer to hit them over the head with. Your bill

would give the CPSC that big hammer that it needs to hold companies accountable to protect the safety of the American public.

We support, in addition, H.R. 814, the Children’s Gasoline Burn

Prevention Act. As Mr. Moore stated, and as you stated in your

opening remarks, there is a very simple problem. These gas containers are sold empty; therefore, they do not have to meet existing

childproof standards. We would recommend that the bill be expanded to include kerosene containers as well as gasoline containers.

Regarding H.R. 1721, the Pool and Spa Safety Act, this laudable

legislation by Representative Wasserman Schultz and a number of

cosponsors was introduced in response to a number of horrific tragedies caused by entrapment, entanglement and eviscerment hazards posed by the tremendous suction power of pool and spa filters.

It takes a three-part approach. It requires new construction of

pools and spas to include drains that meet strong safety standards.

It establishes a program of grants to States to encourage greater

safety, and it enhances CPSC drowning education programs.

Our only comments on this bill would be that, as you heard at

your last hearing on the Consumer Product Safety Commission, it

is the ‘‘little agency that could.’’ It is the little agency with a $63

million budget and only 400 professional staff.

We would simply encourage you to clarify that the purpose of the

grant program is to expand money to the CPSC. If possible, you

should include additional new money for someone to run the grant

program. I note that in Acting Chairwoman Nord’s testimony that

she suggests outsourcing the program with the CPSC’s getting its

costs reimbursed, but that is our primary concern, the agency’s new

project, and it has reduced the priority of drowning programs in

the last several years from a strategic goal to merely a program,

so it needs more people to handle this important new program, and

I hope the committee can address that issue.

I have a number of other ideas about improving the Consumer

Product Safety Commission, but since this is not an oversight hearing, I have left them in my written testimony.

Thank you.

Mr. RUSH. I want to thank you.

[The prepared statement of Mr. Mierzwinski follows:]
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Mr. RUSH. Our next witness is Ms. Sally Greenberg, who is the

senior product safety counsel at the Consumers Union.

Welcome, Ms. Greenberg. You are recognized for 5 minutes.

STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT

SAFETY COUNSEL, CONSUMERS UNION, WASHINGTON, DC

Ms. GREENBERG. Thank you, Chairman Rush, and thank you,

Ranking Member Stearns and, of course, Vice Chair Schakowsky,

who has been such a great leader on product safety for kids particularly.

My name is Sally Greenberg. I am with Consumers Union. I really appreciate—we really appreciate—the opportunity to be here

this morning. We support all four bills that are before the subcommittee.

Let me start with H.R. 2474, which is a bill to raise the maximum penalty for violations of the Consumer Product Safety Act. I

applaud the Chairman for introducing this important bill, and I

particularly applaud him for his earlier stated commitment to

doing comprehensive reform of the Consumer Product Safety Commission, because that has been a long time in coming, and we look

forward to working with you on those reforms.

The CPSC is currently empowered to impose fines on companies

for failing to report safety hazards, but the amount is capped at

$1.8 million. We think the cap hampers CPSC’s ability to adequately enforce the reporting requirements under 15(b) particularly, and we support raising the cap to $20 million. This increase

in potential fines would, we believe, be a strong deterrent for any

company that might otherwise be inclined to flout the law. For

some companies, the current cap on fines is so low that the threat

of a fine will not make a dent in the company’s bottom line, and

I am thinking particularly about the $750,000 fine that the CPSC

imposed on Wal-Mart a few years back for failing to report safety

hazards with fitness machines. The calculation is that the $750,000

fine at Wal-Mart was the equivalent of about 1 minute and 33 seconds of cash register receipts on that corporation.

I also want to bring to the subcommittee’s attention that, in

2002, Commissioner Moore, who was then acting chairman of the

CPSC, told an audience at a product safety conference that perhaps

some companies would be less likely to stall—he was recommending that the cap be lifted entirely and said that perhaps some companies would be less likely to stall our agency by putting off reporting hazardous products if we had penalties that were more commensurate with the harm that they caused.

CPSC’s Web site is replete with examples of companies that have

numerous reports about products that injure consumers that simply did not report those incidents to the CPSC, and I have listed

four examples of those incidents where you have companies that

had plenty of time and plenty of information, and they just did not

get around to reporting it to the CPSC.

Our greatest concern is child product manufacturers in particular, and there is a long history of those manufacturers not reporting problems with products that could have prevented injuries to

children, and the fine level needs to be at a point where it serves

as a sufficient deterrent to those kinds of decisionmakers within
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companies who are considering not reporting to the agency. So we

fully support 2474, and thank the chairman for introducing it.

Let me move on to H.R. 1699, the Danny Keysar Child Product

Safety Notification Act. We strongly support this bill. It would require product registration cards to be included in durable children’s

products. We applaud Congresswoman Schakowsky and Congressman Fred Upton for their leadership in introducing the bill.

According to CPSC’s statistics, an estimated 59,800 children

every year under 5 years old are treated in hospital emergency

rooms for injuries associated with nursery products. We have a

very ineffective recall system today that poses serious problems for

children’s products. Moreover, there is a long-standing pattern of

children’s products being a large proportion of recalls. It tends to

be between one-third and one-half of all products recalled every

year that are children’s products.

The term ‘‘recalled products’’ suggests that a product has been

successfully returned, repaired or replaced. In fact, that is rarely

the case. Most products that are recalled remain in the marketplace and in consumers’ homes, and they threaten the safety of

those consumers who use them. Estimates on successful rates of recall for the average product falls somewhere between 10 and 30

percent, so we need much more effective means for informing parents when a product that their child is using poses a safety hazard

and has been recalled.

Seventeen-month-old Danny Keysar, as we have heard from Congresswoman Schakowsky, died using a recalled product—that is

just tragic—but the information does not get out there. We know

this, and we have to do better. That is why H.R. 1699 is so important, the registration card system called for in the bill. It is not a

perfect system. There will not be a perfect system. It will represent, I think, a great improvement on what we have today, which

is really nothing except using the media to get out to people, and

that misses so many.

I want to use an example of the Toro Corporation, and I also

want to note that the CPSC had some very interesting hearings

themselves several years back on recall effectiveness, and they

brought in a bunch of companies who had done some very interesting work. I can talk about that later because I want to address the

other bills, but there are many innovative approaches to this, and

the industry always comes back with, ‘‘Well, it does not work, and

people do not really pay attention.’’ that is really not accurate. Toro

Corporation had a 75 to 80 percent return on their recall registration cards because they did it the right way, and they made these

cards very user friendly, and they were not invading people’s privacy, and that worked for consumers.

Others have already talked about or had already talked about

the car seat manufacturer being the model. I think that is a good

model. I think it is working, and we should use that for moving forward on H.R. 1699.

As for H.R. 814, the Children’s Gasoline Burn Prevention Act, we

are fully supportive of that. We applaud Congressman Moore and

Congressman Bachus for introducing the legislation. Those tragedies that happened in Congressman Moore’s district are so preventable with this very simple safety measure. Our credo at Consumers
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Union is if you have a product and it proves defective or dangerous,

and you can fix it for a reasonable cost, and you do not affect the

utility of the product, you ought to move forward very quickly to

put those fixes in place. I think that is what H.R. 814 does. We

have some statistics in my written testimony.

Am I overtime? Oh, OK. I apologize, Mr. Chairman.

Just one last point on the Pool and Spa Safety Act.

In my written testimony, we have outlined why we support the

bill and some of the concerns that we have about how it is going

to be implemented, but as I said in my initial statement, we fully

support all legislation and look forward to your questions.

Mr. RUSH. Thank you very much.

[The prepared statement of Ms. Greenberg follows:]
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Mr. RUSH. The Chair recognizes himself for 5 minutes of questioning.

Ms. Greenberg, do you know whether other similar agencies have

overall caps on the amount of civil penalties that they can assess?

Are the CPSC’s limitations rare in this instance?

Ms. GREENBERG. I do know that the FTC, for example, does not

have limits on—it does not cap fines that the agency can impose

on those who violate the FTC statute. I do not believe that NHTSA

has a cap on fines that it can impose, and I think that the general

concept of having a cap on fines for companies who violate a law

just sort of goes against, I think, common sense. You really do not

want companies—as Ed Mierzwinski just said, you do not want

companies figuring that this is the cost of doing business, not reporting something.

Section 15(b) is so important to CPSC because it really acts as

its early warning system. So I think anything we can do to encourage companies and also to deter companies for failing to report is

really important.

Mr. RUSH. Mr. Moore has, as you indicate in your testimony, indicated that he is opposed to caps at all. He wants to eliminate

them altogether; is that right? I think, in your written testimony,

the Acting Chairman is not in favor of the caps of our bill.

Do you have any knowledge about whether or not the CPSC—

what their response is to the overall bill?

Ms. GREENBERG. Raising the caps? Well, I remember former

Chairman Stratton’s commenting on caps, and I think one of his

concerns was it would lead to greater litigation, and I am not sure

I completely understand that argument.

I would think that the leadership officials at the CPSC would

want every possible power that they can muster and that Congress

would give them to make sure that companies are complying with

their laws. So it surprised me a little bit that the former chairman

of the Commission did not want that additional power to ensure

that companies were reporting for this very important early warning system that CPSC has. Otherwise, I have not heard compelling

arguments about why that cap even exists and why it should not

be either raised or simply there ought to be no cap. I think it impairs the effectiveness of the CPSC.

Mr. RUSH. Thank you.

Mr. Mierzwinski, according to the Acting Chairman’s written testimony, Ms. Nord’s written testimony, she states that the agency

would need more resources to implement all of the bills if they became law, all of the bills that we are considering today.

Please state what your opinion is on the level of additional CPSC

resources that might be required to implement these bills.

Mr. MIERZWINSKI. Well, Mr. Chairman, I think that the matter

of the CPSC reauthorization has not been carried out since, I believe, 1990, and the matters have not been adequately reviewed on

an overall basis, but for these particular bills. I think that what we

are looking at is that the agency has had a diminishing number of

full-time equivalents; its budget has been relatively flat over the

years, and we spend very little money on this agency that regulates

15,000 separate products. We are asking it to conduct a couple of

rulemakings to initiate a grant-making process. It would seem that
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it would need at least several new staffing slots just to deal with

these bills.

I think the money is probably modest, but I would hope that the

committee can move these bills and then also move separately

oversight and possibly a reauthorization that results in increasing

the resources of the Commission in the long run. They may be able

to juggle things around with existing resources. Although, I do note

that, on the pool bill, I think it would be useful to have an additional person to administer the grant program, and we probably

would agree with them on that.

Mr. RUSH. Thank you very much.

The Chair now recognizes the ranking member, Mr. Stearns, for

5 minutes.

Mr. STEARNS. Thank you, Mr. Chairman.

I think, when you have bills like this, I think, as a parent of

three boys and seeing them around swimming pools when they

were young, and also experiencing having the gas can in the garage

and the possibility they could open it themselves, it makes you concerned as a parent, and I am very sympathetic.

Also, though, as a small businessman, I look at the economic

cost/benefit analysis for some of this, and I was struck that, when

Dennis Moore was over here talking about his particular bill in

dealing with the caps on the gasoline cans, he mentioned that

1,200 children were in hospitals because of it. He did not indicate

how many died. I understand from staff, roughly there are 80 million children in the United States. So as to the cost/benefit analysis, whatever you do, you are talking about, because 1,200 ended

up in the hospital, it is 0.000015 of the 80 million, so it is a very

small significant.

Now, one child ending up in a hospital is a tragedy, and a death

is absolutely unnecessary, and I think what is being proposed here

is not unreasonable, but the question I have for both of you is do

you ever take into account the cost/benefit analysis here?

You are dealing with the Pool and Spa Safety Act. As I understand it, we have had 300 children who were killed, and this is out

of 80 million. So do you ever consider the cost/benefit analysis for—

is there one point where you would say, ‘‘Is 0.000015 such a small

percent that it may be not significant in the totality in looking at

this issue dealing with caps on gasoline cans?’’

Ms. Greenberg.

Ms. GREENBERG. I think I would probably go back to our sort of

working philosophy as a consumer organization and an organization that cares very deeply about safety.

When the Consumer Product Safety Commission was set up,

there had been a congressional study looking at all kinds of terrible

injuries that happened to children, and——

Mr. STEARNS. And you take into account the overall percentages

when you look at this, or you just look at the deaths and the incidents?

Ms. GREENBERG. Well, what we look at is can a product be——

Mr. STEARNS. Improved regardless of the statistics?

Ms. GREENBERG. Can a product—well, you know, 1,200 kids in

the hospital is—maybe we evaluate that differently.
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Mr. STEARNS. No. I think it is terrible, but I am saying, relative

to 80 million children, it is a very small percentage.

Ms. GREENBERG. Yes.

Mr. STEARNS. So you are saying you do take the statistics into

account?

Ms. GREENBERG. What we try to do is look at how much are fixed

costs, and if it can be done for a reasonable amount——

Mr. STEARNS. Go ahead and do it.

Ms. GREENBERG. We are talking about a gas cap. It is a change

in design.

Mr. STEARNS. Right. I understand. I think that is a good example. I think a gas can can be taken care of much like you have got

vitamins or you have medicine that has that cap on it so that it

is childproof. I agree.

Do you agree with her? Is that pretty much——

Mr. MIERZWINSKI. Mr. Stearns, I would agree with her, but I

would have to say the cost/benefit analysis is only a tool. I think

it can be easily overused in measuring the value of a consumer’s

life versus the need for a health and safety standard. I do not know

that it is necessarily the right approach in all circumstances.

Mr. STEARNS. But in lots of these cases, the parents of these children are delinquent, too. We know that the child ends up in the

hospital or there is death, but there is some culpability for the parents in not supervising their children. Wouldn’t you agree on that?

Ms. GREENBERG. Well, again, when CPSC was set up, Congress,

the panel which is a bipartisan panel that set the Consumer Product Safety Commission up, was very focused on making products

safer, not on parents’ behavior, because it isn’t a child’s fault if a

parent’s attention has waned or they have been called off to deal

with another problem with a child. We deal with this all the time

in the area of product safety, this notion of product misuse or parental negligence or whatever.

Mr. STEARNS. So you don’t take that much into account.

Ms. GREENBERG. If we did, there would be a lot more injured or

dead children today.

Mr. STEARNS. In the areas of increasing civil fines, this letter I

put into the record for the National Association of Manufacturers

points out that CPSC has never even gone up to the $1.8 million

in fine. And now we are asking for it to go up to $20 million in

fine. So each of the instances you cite does not amount to the full

penalty authorized. What information do you have that a $1.825 million civil penalty

is not sufficient when there is no evidence they have ever used it

and now you want to go up by 1,000 percent supposedly? So the

question is why go up so much when the CPSC has not even used

the amount that they have as a penalty?

Ms. GREENBERG. We didn’t make the decisions that CPSC made

to impose fines. In my view, in some of the cases much higher fines

probably were warranted. The powers that be at the CPSC perhaps

didn’t agree with our philosophy on that.

Mr. STEARNS. So you would go up to $20 million.

Ms. GREENBERG. I don’t want to commit to a specific number.

What I do think is important is that the Commission, the CPSC,

have the ability to impose a fine that is not specifically set out. The
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$20 million fine gives them more leeway to impose higher fines.

But I don’t think when you see the litany of companies that fail

to report, I don’t think the fines are serving as an adequate deterrent to nonreporting. We see many, many examples of companies

that do not come forward and report.

So I personally believe that there ought be no cap. I don’t think

that companies should have an opportunity to make a cost/benefit

analysis about maybe we won’t report because we are not likely to

get fined the full amount. I don’t think that makes sense for any

Federal agency to have to work under that constraint. So that

would be my preference. But given that we have a $1.825 million,

I think $20 million fine is a much bigger threat.

Mr. STEARNS. Thank you, Mr. Chairman. I think she is indicating that she would go up to $100 million. You are saying that if

there is no ceiling, in your opinion you could go up to $500 million.

So thank you, Mr. Chairman.

Mr. RUSH. The Chair recognizes the gentle lady from Illinois Ms.

Schakowsky for 5 minutes.

Ms. SCHAKOWSKY. Thank you, Mr. Chairman.

I want to talk a little bit about this cost/benefit ratio. When we

start getting into 1,200 children out of 80 million children, that is

really not the question. It is 1,200 children versus how much would

it cost a company to make a small and responsible change in their

product. And if you want to just get into dollar figures, how much

does it cost to care for a severely burned child in a hospital, for

how long, throughout their whole life, it is just kind of ridiculous

when we are talking about a very small cost to improve a product

that can save 1,200 very precious children. And so I think the argument is a little bit specious, especially, as you said, the philosophy is let’s look at what it would really cost to improve a product.

And so I want to talk a little bit about my bill on the recall registration. I have looked at Acting Chairman Nord’s testimony, and

she points out a petition that was acted on in 2001 and making recall registration cards, and they found that this wasn’t useful. Well,

for one thing, they were talking about doing it for all children’s

products.

I want to make it very clear that in my bill we are specifically

listing the products, and they are the durable children’s products,

as you pointed out, Ms. Greenberg, that stay in the home for a long

time or often passed on to the next generation of children. And so

we are talking about very specific products.

But the other thing that I wanted to ask you both about is that

they say that these cards are ignored and returned. And I want to

once again get on the record, if you would, the refutation of that

argument, because while no one is claiming that this is a perfect

mechanism and that it will result in every consumer knowing

about the recall, is it not true that there is evidence of significant

improvement? And if I could start with you, Ms. Greenberg, and

then go to Mr. Mierzwinski.

Ms. GREENBERG. Significant improvement in——

Ms. SCHAKOWSKY. The number of consumers that then know

about the product recall.

Ms. GREENBERG. Your bill very clearly lays out what the card

should state. As my colleague pointed out, people are very cynical
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about these recall cards, or these cards in general, not the recall

cards, but these warranty cards that you get, because they ask you

all sorts of personal questions, and so people don’t return them. It

is not the model we should be looking at.

With NHTSA, as you pointed out, the number of cards returned,

NHTSA requires every manufacturer of a car seat to include a

card, and the card return rate is 10 times what it was before the

regulation went into place. And NHTSA is very specific in its regulation about what the card should say, what kind of information it

is asking for and what it is not asking for. And it is asking for information in case of a recall. I have seen these cards. I have sent

them in. I bought car seats. And they are very good. They say, mail

this card now. They are postage paid. They do everything short of

walking the consumer to the mailbox. They make it very easy. And

now with cell phone portability, number portability, people have

cell phone numbers that stay with them presumably for life. So

there are ways to get in touch with consumers. And I think these

cards have proven their effectiveness.

We know there are companies like Toro which has found them

to be very effective when done right. They ask specific questions.

They are not a marketing effort. They are not perfect. There is always going to be a percentage of consumers who won’t return

them. But it gets us many steps ahead of where we are today.

And the Danny Keysar situation where a kid is confronting or

parents are confronting a product that has been recalled, and they

didn’t know about it, and the kid is injured or killed is just an untenable, terrible situation, and we should do everything, I think, to

try to make sure that doesn’t happen again. And this is a big step

forward.

Mr. MIERZWINSKI. Thank you, Representative. And I would concur with Ms. Greenberg that the NHTSA situation offers a lot of

guidance to the CPSC. In addition to their successful card programs, think about their successful marketing programs: Buckle

Up, Kids in the Back. These are programs that work if we had a

card that we trusted and the CPSC consumer groups would get behind it, and we could help you and help the CPSC make it work.

Mr. RUSH. The gentle lady’s time is up.

The Chair now recognizes the gentleman from Texas Dr. Burgess.

Mr. BURGESS. Thank you, Mr. Chairman.

Staying on the concept of the card for just a minute, has there

been any study to look at if the return rate for cards is increased

if it is coupled with a rebate or something of value that would be

returned to the consumer if they fill out the card?

Ms. GREENBERG. Congressman, I think I can respond to that, not

with respect to the NHTSA situation, because they don’t require

car manufacturers to give a rebate or reward for returning the

card, but some companies have done that, and that has been a successful strategy.

As I said, the CPSC held a couple of hearings a few years ago

on recall effectiveness, and what you had is a bunch of companies

coming forward and describing some very interesting and innovative ways to improve the recall effectiveness. I wish the CPSC had

gone a few steps further and put some of those in place, but be that
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as it may, what they found is that when they offered a reward or

a rebate, yes, consumers responded more positively.

Mr. BURGESS. Again, the CPSC isn’t here today to ask them.

Kids are growing so fast, so products and toys that are bought for

the nursery, a child outgrows them before they use up their shelf

life. And if they have got a younger sibling on the way, that is a

good thing.

I have never done this myself, but people in my family are great

students of a thing on the Internet called eBay. What happens

when someone sells their product on eBay; are they obligated to

provide that follow-on information as far as the mailing card is concerned?

Ms. GREENBERG. Well, right now, since we don’t—maybe with car

seats it happens. I haven’t seen it. But since we don’t have product

registration cards now, it is hard to say whether we would be able

to incorporate that into eBay.

Mr. BURGESS. So a crib or a beach ball or a baseball or something, a small object that a child could ingest, if these things are

sold on eBay, there is really no requirement for the seller to provide that follow-on information?

Ms. GREENBERG. No, Congressman, but I think that is an interesting idea.

Mr. BURGESS. If we increase—and we will get to the cap in just

a minute—but if we increase the cap, of course I can see a company

might say I am going to offer a rebate thinking this cap scares me

to death because it is up to $20 million; but then is the company

that sold the beach ball or the baseball glove or whatever, is the

company still going to be liable when that product is resold on

eBay after the child outgrows its usefulness?

Ms. GREENBERG. The cap is for reporting incidents related to

product safety. It is section 15(b) of the Consumer Product Safety

Act, and that is simply a requirement that companies report when

they hear about incidents. So I don’t think it would relate specifically to your eBay scenario.

Mr. BURGESS. At the present time we really don’t have a good

way to track resales at garage sales, even hand-me-downs within

families, for these products.

Ms. GREENBERG. I, too, wish Commissioner Nord was here, because I know the CPSC is doing some interesting, innovative work

on that.

Mr. BURGESS. Since I am so new at this, talk to me for just a

minute about the fines. Right now how is that? And either of you,

please feel free to answer this. Right now the fine is $1.875 million

or thereabouts. How is that money allocated? If a company is fined

$1 million, does that money all go to CPSC, does it go to the general fund, does the Department of Justice get it, does it go to the

victim; what happens to the dollars?

Ms. GREENBERG. The U.S. Treasury. It goes into the general

fund. It goes into the U.S. Treasury. It doesn’t go into CPSC’s

budget, if that is what you are asking.

Mr. BURGESS. How much is spent just in the course of litigation

to recover those monies?

Ms. GREENBERG. I don’t have a strong sense of the litigation

costs for CPSC, but they don’t litigate very often. I do know that.
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Mr. BURGESS. Is there a danger—with a vastly expanding cap, is

there a danger of an unwillingness to settle on a fine because now

they are at risk for such a higher settlement that more will go to

litigation?

Ms. GREENBERG. That is the argument that has been certainly

put forward.

Ed, did you want to respond to that?

Mr. MIERZWINSKI. I would just say, Congressman, that I think

that argument is a red herring being put forward by companies

that are regularly before the CPSC. The way I think that this system works today is that companies do their own, if you will, benefit/cost analysis, and they say the maximum fine is $1.83 million.

Wal-Mart only paid $750,000.

Mr. BURGESS. On that issue, is there a danger then for MOFA

reporting. We expand that fine a whole bunch, and is the CPSC

just going to be flooded with data from companies that don’t want

to be caught in the situation of not having reported their problems?

Ms. GREENBERG. Well, I think it would be useful to look at what

other agencies have experienced on this issue of fines and caps on

fines.

Mr. BURGESS. If the Commissioner were here, we could ask.

Ms. GREENBERG. I don’t think that has been a problem in other

Federal agencies, the fact there isn’t a cap on fines.

Mr. BURGESS. We should ask the question before we enter into

that, so it would be a fair question to ask.

Mr. Chairman, you have been indulgent, and I know we have got

to get on to other things. I yield back.

Mr. RUSH. Thank you, gentleman.

The Chair now recognize the coauthor of H.R. 1721, Ms.

Wasserman Schultz of Florida. She is not a member of the committee, but the Chair recognizes her for 5 minutes for questions.

Ms. WASSERMAN SCHULTZ. Thank you very much, Mr. Chairman.

And, Mr. Chairman, I want to thank you and Ranking Member

Stearns for your support of this issue and for including this legislation in your hearing today.

I also want to, although I understand she has already been recognized, recognize Nancy Baker, who has been a tireless advocate

on behalf of this legislation, which is named after her daughter

Graeme Baker, who drowned in a suction drain entrapment accident; and Congressmen Hill, Matheson and Weiner, who are members of the subcommittee that are cosponsors of the bill.

I actually have a question for Ms. Greenberg. I noted in your testimony your support for pool alarms and their possible inclusion in

this legislation. Every drowning expert I have worked with over the

last 10 years has said that pool alarms are not the best first line

of defense because they only address the problem after the child

has already fallen into the pool.

Now, since you note in your testimony that pool alarms sometimes do, sometimes don’t meet the national safety standards, the

ASTM guidelines, and quite honestly, although I think they probably are at about 85 decibels, which is very, very loud, in the event

that you are standing in the laundry room dealing with the practical reality of what happens when supervision lapses, if someone

is standing in the laundry room and their dryer and washing ma-
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chine are going, and the child falls in the pool, and the pool alarm

goes off and they don’t hear it, then we haven’t addressed the problem. So can you speak to your support for pool alarms, because I

sponsored the law in Florida which does not include pool alarms,

and I remain completely unconvinced that that is wise.

Ms. GREENBERG. I confess that I am not an expert in pool

alarms. I included it because Consumers Union tested pool alarms.

I think we have got a series of safety devices that are all imperfect.

Pool alarms is one of them. Hopefully you are not in the laundry

room. It increases, I think, a parent’s or a caregiver’s opportunity

to be notified if a child gets into the water and you don’t want

them there.

So it is certainly not a perfect solution. We said in our testimony,

as you noted, that the best strategy for preventing kids getting into

pools without parental supervision is to have a fence around the

pool, but we know we can’t make that happen on a Federal level.

That has to be done on the State level. That is why your legislation

is so good. It encourages States to do that.

But I have a colleague with me who has worked extensively on

pool alarms, and I would be glad to answer any questions on the

record or ask Don Mace, who is here from our Yonkers office, who

is an engineer and worked on standards with pool alarms and

worked on the testing that we did for Consumers Union. Maybe we

can talk with you later.

Ms. WASSERMAN SCHULTZ. If you can follow up with me, because

the chairman has extended a courtesy to me as a nonmember of

the committee, and I would appreciate it.

And also as a member of the Appropriations Committee, I want

to tell you both that I fully intend to pursue an appropriation for

both the grant program and the education program if this legislation hopefully becomes law, and really have been an advocate on

the Appropriations Committee of increasing the CPSC’s budget. We

actually did that in the Appropriations Subcommittee on Financial

Services yesterday. So I sincerely hope—and you will have my full

advocacy to make sure that it is not absorbed into the existing

budget of the CPSC.

So, Mr. Chairman, thank you for the courtesy. I appreciate it. I

yield back the balance of my time.

Mr. RUSH. Thank you very much.

That concludes the testimony of the witnesses, and that concludes the hearing. Again, I want to thank the witnesses for coming forward. I certainly want to reiterate our condolences and also

our compassion and our thanks to Ms. Baker for attending today.

And I want to remind members of the subcommittee that the

record is open for 30 days for additional testimony and questions,

and submit the questions in writing to whomever.

Thank you so much. Hearing no objections, the subcommittee is

adjourned.

[Whereupon, at 11:30 a.m., the subcommittee was adjourned.]

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STATEMENT OF DAVID ASSELIN

The NAM Coalition on CPSC (Coalition) represents manufacturers, distributors,

importers or retailers of consumer products. All of the members of our Coalition are

committed to ensuring the safety of consumer products sold in this country. The Coalition would appreciate your including this letter in the hearing record, and I will

be sending the names of Coalition members wishing to be added as cosignatories.

The Coalition supports the important mission of the CPSC. The marketplace

needs to be free of unsafe consumer products that could pose a risk of injury to consumers, particularly to our most valuable population, our children. Over the years,

the agency’s budget has not grown as fast as other regulatory agencies with comparable authority. CPSC has compensated by taking measures to ensure it uses its

resources efficiently, just as so many manufacturers have had to do in recent years.

We support increased funding for the CPSC to increase import surveillance and

compliance, upgrade technology, laboratory renovation and for bolstering the staff,

particularly in technical areas and where retirements are impacting the Commission’s mission. We believe that the CPSC has sufficient authority to carry out its

critical mission if it is properly resourced.

The Coalition understands that your subcommittee will hold a hearing June 6th

on several bills concerning the Consumer Product Safety Commission. Two of these

bills, H.R. 2474 and H.R. 1699 are of concern to the Coalition. H.R. 2474 seeks to

increase the maximum civil penalty for violations under the Consumer Product

Safety Act. H.R. 1699 would require certain manufacturers to provide consumer

product registration forms to facilitate recalls of durable infant and toddler products.

H.R. 2474: Civil penalties actually apply to any violation of one of 11 prohibited

acts under Section 19 of the CPSA. Failure to file a report under Section 15(b) is

but one of the violations enumerated. The statute needs to be clarified to distinguish

between instances that involve a failure to report incidents that evidence a defect

with injury and those that involve sale of product that violates a per se requirement.

Civil penalties are assessed up to $7,000 per violation. The maximum civil penalty for any related series of violations is currently $1.825 million. Congress has directed

the Commission to adjust the maximum penalty amounts every five years to account

for inflation. Originally the maximum amount was $500,000, which has more than

tripled because of the adjustment escalations in the existing enabling statute.

H.R. 2474 would substantially increase the maximum civil penalty for failure to

report or violations of section 19. Under the bill, any related series of violations

would carry a maximum penalty of $20 million, or an increase of more than 1,000

percent from current penalty levels. Such an increase could actually prove to be

counter-productive to the mission of the CPSC.

Current penalties are more than adequate to deter companies from failing to report serious product defects. Companies do report defective products, as evidenced

by hundreds of voluntary recalls conducted each year with the support of the CPSC,

versus the handful of civil penalty actions announced by the Commission. Companies that fail to report not only face substantial civil penalties, but also risk bad

publicity and increased product liability exposure. These factors are significant deterrents to any failure to report.

Increasing the cap on civil penalties to the level contemplated by H.R. 2474 could

be counter productive. Rather than encouraging prompt reporting, it could act as a

deterrent to companies when they are contemplating a voluntary recall. It would

change the nature of the present voluntary compliance and penalty process to be

more adversarial, with more defensiveness and pre-litigation maneuvering and less

emphasis on getting unsafe products out of the marketplace quickly. Such a move

could also be a financial and administrative burden on the CPSC because costly and

time-consuming litigation would replace the current, almost entirely voluntary, nonlitigation process. There is no evidence that the current $1.825 million penalty cap frustrates en- forcement. The Commission has yet to impose the current maximum cap of $1.825

million on any company for a violation of Section 19. Moreover, in cases involving

violations of the Flammable Fabrics Act or the Federal Hazardous Substances Act,

or in cases where the CPSC alleges a series of unrelated violations, the Commission

has sought penalties substantially in excess of $1.825 million. For example, in a

2001 lawsuit against Wal-Mart and Icon Health & Fitness for alleged failure to report defective exercise equipment, the CPSC was able to seek civil penalties of $9

million for six counts involving various models (applying the $1.5 million cap then

in effect.) Applying similar multipliers to the penalty levels proposed under H.R.

2474, the CPSC could have sought penalties of $120 million in the Wal-Mart case,
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or could pursue similar penalties in any case alleging failure to report multiple defects, such as cases involving different product models. The prospect of such astronomical penalties, which could bankrupt many companies, could lead to enforcement

policies out of all proportion to actual violations.

H.R. 1699. Manufacturers have been providing consumers with product registration cards for years. These cards require the consumer to be pro-active. FMVSS 213,

the Federal standard for child restraint systems, requires manufacturers to instruct

consumers to register child restraint systems for use in motor vehicles upon purchase. Statistics show that approximately 12 percent of consumers do so. Such products are fairly expensive (usually costing upwards of $50) and are associated with

protecting and saving the lives of children. One would think that this would be a

strong incentive to register them, but, as noted above, that is not the case.

The low response rate is not the only factor to look at when considering product

registration cards. The data collected and the utility of the information deteriorates

over time. Census studies indicate that 40 million people change addresses annually

in the US. The utility of a database is even more limited with children’s products

because they are often donated, handed down or sold to other consumers at thrift

stores and yard sales. The information collected becomes ineffective at that point,

since the manufacturer has no way of contacting the secondary consumer.

A study conducted by the National Highway Traffic Safety Administration in 2002

on product registration cards for child safety seats found that the usefulness of the

database maintained for child safety seats had declined to 10–13 percent after only

three years.

The Commission studied this issue in depth for several years and concluded that

mandating such a card is not beneficial. Every recall is different depending on specific circumstances and each recall campaign needs to be seen as an individual entity, with an action plan developed by the manufacturer and CPSC working together

to make it the most effective as possible. An over-reliance on product registration

cards will not improve overall recall effectiveness.

It would be a much better use of resources if the CPSC were to continue to work

with manufacturers to come up with ways to improve overall product recall effectiveness, using the power of the Internet and other innovative techniques, rather

than have the Commission dictate a system that is marginally effective.

In conclusion, the CPSC is considered the global leader in the area of product

safety due to its domestic programs and international initiatives. Other nations are

setting up programs based on the CPSC model. Coalition members have, in the

past, been good partners with the CPSC, to institute the two reference proposals

would be a step back at a time when we should be looking forward.

Æ