CPSIA - AAFA Op-Ed in Roll Call on Anniversary of CPSIA

Paper Is the Right Choice for Clothes and Shoes: Marking One Year of the CPSIA

Aug. 14, 2009, 9:52 a.m.
By Kevin Burke
Special to Roll Call

On Friday, we are marking the one-year anniversary of the Consumer Product Safety Improvement Act, landmark legislation that provided needed resources to the Consumer Product Safety Commission to improve consumer product safety. We are also commemorating the second of three phase-in dates for reductions in lead standards for children’s products.

As tradition holds, the first anniversary gift is paper. For our anniversary gift, Congress should consider giving the producers of children’s clothing and shoes a thoughtful piece of paper: legislation allowing the U.S. apparel and footwear industry the opportunity to continue making safe clothing and shoes.

The CPSIA was an effort to adapt consumer product safety to the changing manufacturing landscape. While well-intentioned, the CPSIA has unduly burdened businesses by shifting focus away from risk toward legal compliance. As a result, companies that manufacture and sell safe products have been forced to shut down.

The legislation went far beyond its intended purpose of keeping unsafe and dangerous toys off store shelves by creating a “guilty until proven innocent” compliance environment — even for products that have always been safe. As a result, manufacturers of children’s products are spending tremendous resources in duplicative testing of their products simply to comply with the legislation. These extra costs are doing little to improve public health or provide safety, and they are adding enormous pressures to companies already scrambling for ways to cope with the economic downturn.

The U.S. apparel and footwear industry has been a victim in this unfortunate debate that pits compliance against safety. We believe we have a strong safety record. While any recall is one too many, the amount of recalls in our industry in 2008 equaled less than 0.0082 percent of total merchandise sold. To give you an idea of that figure: If a football player were to stand at one end of a football field and run 0.0082 percent of the way to the other goal line, he would travel only a small fraction of an inch.

For us, product safety is engineered into clothing and shoes from the start. That is why we need strong and clear product safety rules that can be communicated and understood up and down the supply chain. However, the CPSIA’s rigid parameters have eliminated key “flexibility” and “risk assessment” tools that are needed for the product safety system to work efficiently. And with some rules implemented retroactively or being announced only a few days before they take effect, the system falls apart.

We will always work with the CPSC and consumer interest groups to determine what, if any, product safety problems exist in the industry and how to best rectify them. Congress should encourage this cooperative environment because it alleviates many of the current burdens the CPSIA imposes on industry — burdens that do not improve consumer safety. This transparent process creates a risk-based, common-sense product safety regulatory network that is agreeable to all stakeholders.

The current regulatory framework has made even the most low-hanging fruit nearly unreachable. When the legislation first passed, our industry began the process of seeking out a rule exempting fabric and textiles from the lead standard because the materials are inherently lead-free. Due to strict statutory language, the tedious process involved hearings, comments, thousands of test reports and several meetings. The final rule came out on Aug. 7, almost one year since the law was enacted. In the meantime, the industry has spent millions of dollars to demonstrate what it already knows — your plain white cotton T-shirt does not have lead in it.

Other exemption requests posed by our industry and others have not been so successful. Crystals and rhinestones on children’s clothing, shoes, princess costumes, dance uniforms, cell phones, jewelry, accessories and eyeglasses are now banned hazardous substances despite a CPSC staff determination that this “bling” does not pose a health risk to children. Furthermore, data shows crystals and rhinestones would leach less lead than some jewelry that is compliant with the strictest CPSIA lead standard that goes in effect two years from now. However, as new CPSC Chairwoman Inez Tenenbaum stated, “A decision to grant the exclusion by using compliant metal jewelry as the baseline for assessing the acceptable level of exposure 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.”

Last week, the Senate moved quickly in confirming the two remaining nominees to complete the slate of commissioners at the CPSC. For too long our nation’s product safety regulatory system had been underserved because of long-standing vacancies in vital leadership positions. Fortunately, the recent batch of confirmation hearings has renewed the discussion aimed at restoring common sense to our product safety rules and regulations. Through the appropriations process, chronic underfunding issues are swiftly being resolved as well.

Now that we have five commissioners providing leadership at the CPSC, the commissioners should begin following through on commitments made during confirmation hearings to quickly issue comprehensive and unmistakable guidance to fashion designers, manufacturers and retailers to resolve the immense confusion that has held our industry back.

Congress has an important role to play as well. Hearings are urgently needed to provide all stakeholders an opportunity to document the early successes and failures of the CPSIA. More importantly, with the one-year anniversary behind them, key Members of Congress should take a hard look at the legislation to see what fixes can be made — technical or otherwise — that will make this law work better and as intended. In answer to Chairwoman Tenenbaum’s appeal last week, one urgently needed legislative clarification would provide the CPSC with needed tools to grant common-sense exemptions based on risk.

The Consumer Product Safety Improvement Act was a historic piece of legislation that should have been lauded but instead has become known as the law of unintended consequences. For our one-year anniversary, Congress should give American consumers and businesses a piece of paper that makes it easier to buy and sell safe and compliant clothes and shoes.

Kevin Burke is president and CEO of the American Apparel & Footwear Association.