Friday, January 30, 2009

CPSIA - My "Wish List"

Here is my "wish list" for changes to the CPSIA:

Please note: the reasoning embedded in this list is that it will all be granted, thus some additional points which are important are implied in the list. I assure you that I would never attach my name to any suggested change to the CPSIA if I felt, even for a fleeting second, that any aspect of my suggestions would degrade safety in children's products or lead to any injury. Safety, to me, is only a sidelight to the issues in the CPSIA. The big issues relate to the law's structure, not its intent, and the very negative effects flow from the distortions in incentives and practice caused by its many rules.

In order of priority:

a. A Pause. We need a stay of enforcement or a delay in the implementation dates for the new standards until at least 180 days AFTER the CPSC has published and finalized its implementing rules and regulations. Many people are asking for a six month delay but this overlooks the activities that will take place in the next six months, namely rulemaking. In reality, even this proposed delay may not be enough as the period between final rulemaking and implementation will result in a huge surge of activity that eill likely swamp available resources all throughout the "food chain". Unfortunately, the CPSC has issued very few implementing rules at this point, even defining what "total lead" is or how to test for it. This is causing incredible chaos. The "pause" will allow for more discussion about the details of the law, public hearings and a legislative process that might result in structural repair of the law.

The National Association of Manufacturers has filed a formal request for a Stay of Enforcement signed by 67 assocations, with more associations expected to join the letter shortly.

b . No retroactive effect for the new lead standard. The retroactive effect of the CPSIA's new lead standards is creating massive dislocation. Companies have NO WAY to fix compliance issues with existing inventory which are usually technical in nature but may cost literally hundreds of thousands of dollars per item to fix. Retroactive effect will create a number of terrible problems: (i) huge costs for voluntary recalls of products that pose NO threat of harm to children, (ii) a subsidy to companies who are oblivious to the law, speculate that the law will be repealed or revised later, or who are intent on flagrantly disregarding the law, (iii) may drive many companies to openly disregard of the law, thereby creating a growing trend to disregard safety laws generally, or (iv) widespread business losses, closings and/or job losses. Elimination of the retroactivity effect will considerably reduce the pressure on the thrift store industry, as well as libraries and many other affected enterprises with large inventories of existing product.

c. Age range in the definition of Children’s Products should terminate at six years old. The broad sweep of the definition of Children’s Products under the CPSIA is causing widespread harm, and will dilute the efforts of the CPSC to patrol the marketplace. The risk to children from contact with children’s products sharply diminishes when children stop mouthing toys and other objects. The CPSC has determined that mouthing ends at three years old. There is no support for the notion that children are exposed to dangers from mouthing over three, so a limit of six years of age provides an appropriate margin of error. Elimination of products intended for children seven and over will greatly reduce the scope, and harm, of the CPSIA, as well as significantly narrow the categories of products affected by the law.

d. The Total Lead Standard should be abolished, and pre-sale testing should be limited to Lead-in-Paint. This change is in recognition of the fact that lead is known to be dangerous in some circumstances, but is not known to be dangerous in other circumstances. The way to properly administer the marketplace is to (re)empower the CPSC to identify safety issues as they arise and develop rules for such issues without limitation. The CPSC with its considerable scientific resources and devotion to mission is the right place to make these determinations, not Congressional committees with no such resources. See Implementation of this rule would, for instance, let the CPSC tighten up rules on children's jewelry if they felt it was needed. The need for, and the reach of, any “total lead" standard should be assessed by the CPSC on a risk-assessment basis, and should be implemented by the CPSC in its best judgment subject to appropriate public processes. I would note that the 2007 recalls related to Lead-in-Paint, not “total lead”. This is a critical point that Congress has refused, categorically, to acknowledge or consider.

Elimination of pre-sale testing on "total lead" should also explicitly exempt pre-sale testing on phthalates. Whatever standards remain on the books should be the responsibility of manufacturers to comply with, not to prove up before sale.

e. Lot Marking Requirement is Eliminated. This extremely expensive and burdensome requirement is intended to ease future recalls. Yet, future recalls are supposed to be well-contained by the other provisions of the CPSIA. [Have we found a logical problem here, perhaps?!] The lot marking requirements promises to be a crushing burden on non-mass market-oriented companies and will likely result in (i) reduced product diversity, (ii) abandonment of niche markets and specialty markets in favor of the mass market, and (iii) sharp elimination of jobs and economic opportunities for small and medium-sized companies. I believe this one provision has the greatest potential to downshift product innovation among small and medium-sized companies and must be amended urgently.

f. Effective Pre-emption. Effective pre-emption of state law on children’s product safety and the further restraint of State Attorneys General from enforcing (or effectively competing with the CPSC in the enforcement of) the CPSIA is essential to preserve efficient inter-state commerce.



jenconnolly said...

Time to celebrate the stay!

Connie said...

Regarding the stay announcement of 1/30/09, here is my logic:

If manufacturers are not required to have GCCs, then retailers have no way of knowing if an item is in compliance with CPSIA. Therefore, retailers cannot be held liable for items they sell since, without GCCs, they have no way to know. All liability for items sold then falls to the manufacturer.

Resale, thrift and consignment shops are just like any other retailer and therefore are also not liable for non compliant items that have not been recalled.

So if my logic is correct, then there is indeed something to celebrate!

Connie said...

Oh, and if my logic is incorrect and retailers are still liable, even though they have no way to know if something without a GCC is compliant, then retailers will be unwilling to stock anything without a GCC and the manufacturers who want to take advantage of the stay will have few customers.

Eric B said...

In practice, retailers already are not ordering products unless the GCC is provided before shipment. Some of the bigger ones with clout are going so far as to threaten to return (at vendor's expense) product already purchased if GCC's are not provided retroactively.

The stay doesn't really mean much unless the manufacturer sells direct to the end-purchaser.

Eric B said...

I would add to the wish list: allow component testing and certification. This is critical to micro-manufacturers such as crafters and providers of custom-made items. If all the ingredients going into an end product are tested and certified to meet CPSC requirements (with certification from the supplier), then a product created by combining those ingredients should be acceptable under the law.

Lead doesn't come out of nowhere. There is no need for 3rd-party laboratory testing of the finished product, especially where the prescribed test requires first disassembling the product into its component part, then testing each part separately!

Renee T said...

Thank you for including the removal of permanent batch labeling on your wish list. Any resolution to the issue of what must be tested and at what point in the supply chain is incomplete without correction to that requirement.

Your wish list, with the addition of component testing and vendor certification as mentioned by Eric B, is my wish list as well. I appreciate the effort that must have gone into researching recalls since 2007 to determine the absence of lead substrate, since it certainly lends credibility to the arguments for each of the points you make.