CPSIA - Steve Levy Op-Ed in Roll Call 7-27-09

The below Op-Ed appeared in today's Roll Call:


CPSC Chairwoman’s Pledge for ‘Common Sense’ Approach to Be Tested

By Steve Levy
Special to Roll Call
July 27, 2009, 12:22 p.m.

At her Senate confirmation hearing last month, new Consumer Product Safety Commission Chairwoman Inez Tenenbaum pledged a “common sense” approach to implementing the Consumer Product Safety Improvement Act, which has caused so much confusion for consumers and so many problems for businesses. The new law, passed by Congress to improve children’s product safety, has resulted in serious unintended consequences for a number of industries due to its overly broad definition of children’s products, unrealistic implementation timelines, and retroactive bans on the sale of existing inventory.

The first commission vote on a CPSIA-related issue under the new chairwoman took place this week. Unfortunately, it demonstrated just how difficult it can be to apply “common sense” to the implementation of this law, underscoring the need for Congress to address CPSIA’s problems before more unnecessary damage is done to thousands of small businesses throughout the country. In the 2-1 vote, Chairwoman Tenenbaum and the commission denied a petition for excluding crystal and glass beads in children’s jewelry, apparel and other products from the lead law, despite the fact that both CPSC staff and commissioners acknowledge there is no real risk of harmful lead exposure from these products.

Why does product safety law seem to be at odds with common sense? Ever since the new law debuted nearly a year ago, Congress has sought to avoid revisiting the flawed legislation, instead focusing blame on CPSC leadership for its countless implementation problems. Just in April, 28 Senators signed a letter to CPSC Acting Chairwoman Nancy Nord stating, “It is our view that the CPSC is empowered by CPSIA to exercise its authority and enforcement discretion in a manner that ensures enforcement of the act in a comprehensive manner while providing appropriate and common-sense relief to businesses and institutions.” Yet in denying the petition, Chairwoman Tenenbaum focused on the same problem that has hamstrung Republican and Democratic commissioners since the law’s inception: It denies the CPSC the flexibility to consider risk when determining whether or not a product is safe. Tenenbaum’s statement following the vote on crystal and glass beads tells the story: “a decision to grant the exclusion ... will reintroduce risk analysis back into consideration. ... Such an interpretation of the exclusion section of the CPSIA appears to be in direct conflict with the statutory language, which does not allow for the consideration of risk.”

While denied the right to apply risk analysis to the issues, Chairwoman Tenenbaum did state that the CPSC won’t enforce this rule outside of the market for children 6 years of age and under. Unfortunately, her statement does not provide meaningful relief, as the commission’s decision means the crystal and beads violate the law for all children 12 years of age and under, and thus to knowingly import or sell these items is to risk violating the law, something that manufacturers and retailers simply will not risk.

Soon the commission will face another lead-law decision, this time involving a petition to exclude raw, natural or man-made material that is made into finished articles of clothing from the lead laws. This decision should be even more straightforward, as the apparel industry has shown through extensive testing data, expert testimony and overwhelming evidence presented to the CPSC that textiles are inherently lead-free. Yet even though those plain T-shirts and socks in your kids’ drawers don’t have lead in them, the current law compels companies like mine to prove again and again that that is the case. If common sense is followed, we are optimistic that when Chairwoman Tenenbaum and her colleagues consider our request (hopefully soon), the overwhelming evidence we presented to the CPSC seven months ago demonstrating that these materials are inherently lead-free will result in textiles being exempted from this law.

Unfortunately, as Chairwoman Tenenbaum is discovering, Congress created a law that explicitly blocks the government’s own product safety watchdog from practicing common sense risk management in policing product safety.

Businesses need to know what rules and regulations they must follow, especially in an industry like ours that requires long lead times from design of a product to the moment it reaches store shelves. Yet until we have a clearly articulated exemption, companies — particularly small businesses and home crafters who lack the resources to change product plans on a dime — must continue to grapple with the lack of predictability they need to run a business.

What is lost in the debate is that our industries share in the goal of improving product safety and support strong, enforceable safety standards — our entire industry depends on consumers having faith in our products. But arbitrarily denying consumers access to safe products is not the same thing as improving product safety. It’s time for Congress to hold hearings and fix the problems with this flawed law.

Steve Levy is director of operations at Star Ride Kids, a manufacturer of children’s clothing, and president of the Coalition for Safe & Affordable Childrenswear, Inc.