Office of the Secretary
Consumer Product Safety Commission
4330 East-West Highway,
Bethesda, Maryland, 20814
Re: Comments Regarding the Technological Feasibility of 100ppm for Lead Content Under the Consumer Product Safety Improvement Act (CPSIA) [Docket No. CPSC-2010-0080]
Dear Mr. Stevenson:
On behalf of the Handmade Toy Alliance, an alliance now numbering 548 toy stores, toymakers and children's product manufacturers from across the country who want to preserve unique handmade toys, clothes, and children's goods in the USA, we respectfully submit the following comments regarding the technological feasibility of a 100ppm lead content limit.
We wish to reiterate that the CPSC and the Congressional leadership from both parties have openly acknowledged that the broad sweep of the CPSIA has created unintended consequences for products and industries which had nothing to do with the toy and jewelry safety scare of 2007. In light of the fact that Congressional Democrats and Republicans have so far been unable to work together to craft a solution for the small businesses we represent, it remains up to the Commission to promulgate rules that serve to help businesses large and small to understand what is needed to comply with the CPSIA.
As with the rulemaking process regarding the definition of a children's product, we believe that Congress has given the Commission an important opportunity to avoid further unintended consequences by ruling that the 100ppm limit on lead in substrates is not a feasible standard.
First and foremost, we believe that total lead is not a reasonable standard for evaluating the risk of lead poisoning from a consumer product. Whether the limit is 300ppm or 100ppm, a total lead standard is a purely political, not a scientific, assessment of risk. Despite the fact that no scientific study directly correlates total lead content with the risk of lead poisoning, consumer groups insisted during the drafting of the CPSIA that a “bright line” total limit, which was easier to measure, enforce, and explain to the public, was preferable to a soluble standard which more accurately reflects risk.
This key difference has unnecessarily set the US market apart from other markets, in particular the European Union, and has cost millions of dollars worth of redundant testing.
We have been arguing for two years that the US should adopt the European Union's method of evaluating the risk of lead exposure by measuring the bioavalibility of soluble lead in substrates. By defining the limits based on total lead, the CPSIA has effectively outlawed materials such as brass, crystal, and rhinestones which are perfectly safe biologically yet violate the CPSIA's limits on total lead.
Now we are being asked to comment on whether a 100ppm standard would be “technologically feasible”. Most of the comments the commission will receive on this issue will likely focus on the word “feasible”. We, however, would like to argue that a 100ppm limit is not technological.
The simplest definition we found of the word “technology” is: The practical application of science to commerce or industry.
Because science shows that a total lead limit does not actually measure the risk of lead poisoning, such a limit, whether it is 300ppm or 100ppm, cannot be described as the application of science to commerce or industry. It may represent the application of political expediency or good intentions, but it is not an application of science. Therefore, reducing the limit from 300ppm to 100ppm would merely be compounding and increasing the side-effects of an unscientific principle. Whether or not 100ppm is feasible, it is not technological.
We agree that consumer products should be regulated by “bright line” standards, but these should be based on science and common sense. For example, we had hoped that the Commission would adopt clear and and easy to understand standards when it recently considered the definition of a children's product. Instead, our comments seeking clear standards were ignored, as were the comments of many other stakeholders. The Commission staff chose to issue a 63 page definition which provides no bright lines and no clear definition. HTA member Sarah Natividad, the owner Curious Workmanship, a home-based business in Utah, observed:
[The CPSC] could have saved hard drive space, several forests of trees, and a lot of time and effort by just making the rule say “It’s a children’s product if we say it is, so just ask us and if we feel like it, we’ll decide for you.” Because that’s what it boils down to. Now, besides the fuzzy line between kids and adults, we also have the fuzzy line between infants and kids and whether a child might reasonably be assumed to touch and use a lamp or a piece of furniture. Why on earth did they think TWO fuzzy lines constituted clarification?Indeed, in the weeks since the final draft of the definition was published, the CPSC has illogically re-defined the intended age of at least two products so that it could initiate recall procedures. The first was a recall of Click Armband Bracelets by Fun Stuff, Inc., which were clearly marked as designed for ages 3 and over. Despite the fact that no responsible parent would give these throwaway plastic toys to a toddler, the Commission chose to initiate recall proceedings by redesignating them as toddler toys.
In the second recent case, a line of mood rings were reclassified by the Commission as a children's product despite the fact that they were clearly labelled with sexually suggestive language which was specifically designed to appeal to teenagers and adults, not children.
By issuing an obfuscating definition of a children's product and by creatively reclassifying products so that it can force recalls, the Commission is doing everything except promulgating bright line standards. These actions do not go unnoticed. They tell children's product manufacturers both large and small only one message: there are no bright line standards, only the will of Commission.
The end result of this uncertainty is a growing realization that any children's product business, no matter how responsible or how ethical, is just one incident report away from terrible penalties and overwhelming legal fees. Small businesses like our members lack the resources to defend themselves from the Commission's unilateral actions and are increasingly choosing to exit the children's' product marketplace altogether.
So, in this environment, is a 100ppm limit feasible? Consider the analysis by Sarah Natividad, who is also a former mathematics professor. She concludes that the more we test and the stricter we make our standards, the more impossible it is to comply with the law. She writes:
It is mathematically impossible to find all defective objects without going to the expense of testing them ALL. And that's assuming testing is 100% accurate, which it's not. And to add insult to injury, the more zealously you test by sampling, the more confused you will be about the safety of your product. CPSIA was supposed to reduce confusion about product safety, but now you have mathematical proof that it does exactly the opposite.This mathematical paradox will be dramatically aggravated by lowering lead limits to 100ppm--a limit which makes sampling errors, random chance, and the accuracy of testing equipment much more likely to play a decisive role in the outcome of both pre- and post-market product safety evaluations. Testing costs will increase, uncertainty will increase, risk of destroying finished inventory will increase, and the number of CPSC recalls will increase. The result will be weakened businesses, undermined consumer confidence, and a public even more inured to the product recall process.
As small manufacturers, we lack the wherewithal to demand consistent compliance to such a low standard from our component suppliers, many of whom do not specifically manufacture for children's products. We lack the resources to test repeatedly to ensure that any given tests results are actually within a 100ppm limit given the tests' margins of error. And, in an environment where the Commission blurs bright lines, we lack the patience for such a low limit that has no impact on human health but could well jeopardize our family businesses.
Thank you again for taking the time to read and consider our comments.
The Handmade Toy Alliance
A listing of all 548 business members of the Handmade Toy Alliance is available at . http://www.handmadetoyalliance.org/AllianceInfo/OurMembers.aspx