Reaction to the CPSC's Report to Congress on the CPSIA

This past Friday, the Consumer Product Safety Commission (CPSC), released their report to Congress regarding implementation issues relating to the Consumer Product Safety Improvement Act (CPSIA) as requested within the Omnibus Appropriations Bill of 2010. For the first time, the CPSC formally acknowledged that the CPSIA requires legislative changes to ensure “A more orderly implementation of the statute and enhance Commission enforcement efforts”. Specifically addressed within the report are small manufacturers’ and crafters’ concerns.

“This is the first concrete, upfront acknowledgement that there are issues hindering the effective implementation of the CPSIA”, Jill Chuckas, Crafty Baby (CT) and Secretary of the HTA stated. “Still, there were many specific recommendations that we had hoped would be included with the report. We will continue our efforts until we see common sense changes that will allow crafters and other small batch manufacturers to easily show their compliance under the law and stay in business.”

The Handmade Toy Alliance (HTA) has been a continuous voice for small batch manufacturers and retailers since November of 2008. In a letter dated January 14, 2010, the HTA called upon the CPSC to include within their report to Congress thirteen specific recommendations for legislative change that would serve to alleviate burdens the CPSIA places on the businesses the HTA represents while continuing to ensure safety in children’s products.

“While we greatly appreciate the work the CPSC has done and continues to do – reaching out to our membership and addressing our concerns – a legislative change to the CPSIA is necessary to fully address the many unintended consequences of the CPSIA”, Dan Marshall, Peapods Natural Toys (MN) and Vice President of the HTA discussed. “The recent reports of increased cadmium use in children’s jewelry only serves to highlight the need for risk analysis to be reinstated in the actual legislation.”

Four out of five Commissioners issued their own personal statements with further recommendations designed to improve implementation of the Act. Specifically, Commissioner Northup outlined a detailed list of legislative suggestions, including allowing for a level of de minimis risk of absorbable lead.

“We applaud Commissioner Northup for advocating open government by listing letters that we have all sent to the Commission over the months, as an appendix to her comments”, Rob Wilson, Challenge and Fun (MA) and HTA Board member stated. “Commissioner Northup is clearly advocating the middle ground between business, safety, regulatory necessities, and common sense.”

Image: Capitol Blocks by Haba, which was once made in the US, then moved to Germany, and is now made in China.

Reacting to the CPSC's Report on Congress on Reforming the CPSIA

The following is a cross-post of an entry on the CPSIA-Central website by Rob Wilson, Vice President of Challenge & Fun and HTA board member.

Some of you might be wondering where I disappeared to recently. Like many of you, I am in the children's products business, and we just finished our Christmas season, and we are now feverishly finishing our 2010 catalog---yes amazingly enough, despite the CPSIA we will have a 2010 catalog, albeit much different from our 2008 catalog.

This has been a busy couple of weeks with panic (hysteria?) over cadmium in children's jewelry and an informal recall that ensued of all "cheap" children's jewelry irrespective of brand, model, manufacture date (nothing like using those permanent labels that are putting companies out of business!), actual testing results per product, etc.

The other big story is the request from Congress for the CPSC to submit a list of recommended fixes to the CPSIA. Hmm, where to start! Well, while most (including Commissioners Northup & Nord) would have hoped for an open process of the Commissioners meeting together and to discuss this and strive to come up with the optimal recommendations, particularly in light of the complexity of this law, and the broad ramifications that an inferior response would bring, this was denied by the other Commissioners. I can only speculate that there was pressure/concern from the powers that be that an open airing of the problems with this law would not look good (hence, no proper Congressional Hearings either!).

Regardless, the split Commission did issue a "unanimous" "bipartisan" set of recommendations yesterday. Now, the fact that they agreed on these recommendations, does not mean that they agree these recommendation are complete. Indeed Commissioners Nord & Northup were very clear in their comments about additional specific things that they recommend, which for some reason, despite making perfect sense (at least to me), could not be agreed upon as a Commission.

In contrast, I was frankly disappointed by the additional comments of Chairman Tenenbaum and Commissioner Adler. It was clear from the beginning that the Commissioners would end up submitting a watered down set of recommendations, given their different approaches to this law. Commissioners Nord & Northup took the opportunity to follow-up the recommendations with their own set of concerns & recommendations. I did not see anything compelling from Chairman Tenenbaum & Commissioner Adler other than an effort to rationalize the weak set of recommendations that were agreed upon. I can understand they might have a different approach to fixing the clearly documented problems of this law. But what is it? I essentially see a recap that lead is bad, that the CPSC is enforcing the standards, and a request for a little more flexibility in enforcing the CPSIA. What about the laundry list of problems businesses of all sizes have been hounding the CPSC with for the 14-15 months?

In particular, I felt that Chairman Tenenbaum's comment that it is as simple as telling manufacturers to "Get The Lead Out" misses the point entirely. Last I checked, there are a growing number of companies (see Commissioner Northup's comments for a list of some of the more notable ones) that have either closed or no longer doing business in the USA. Did these companies have lead in their toys? No. Were they part of the recalls of 2007? No. Are they respected globally for quality and safe toys? YES! But why are they not here? They have "gotten the lead out", yet the cost of duplicate testing, the complexity of the law, not to mention permanent labelling, and other administrative burdens, make it simply untenable to do business in this country.

Comments like these make me think that Chairman Tenenbaum assumes that the only people selling children's products are the manufacturers. In fact, we have developed a highly complex network of manufacturers, brands, brokers, importers (of all sizes & shapes), sales reps, retailers (that also import directly from Europe or elsewhere) etc. It is a reasonable request to "get the lead out", except that by and large, the lead is out. Furthermore, it is not reasonable to think that this one size fits all regulation will fit all. It doesn't it; it won't; and it never will, until there is one size left---and that is the mega corporations. May we never see that day.

I do recognize that the unanimously agreed upon document contains a section calling on greater flexibility of the Commission to work with "Small Manufacturers' and HandCrafters' Concerns" but I didn't see any specific recommendations for technical amendments, nor do I really know what constitutes a "Small Manufacturer." Brio is not a small manufacturer...but they are gone. Does the CPSC unanimously understand how the CPSIA has affected this important supplier of children's toys? I don't know; I can only see concerns of this type in the comments by Commissioners Northup & Nord.

On the other hand, I want to express my appreciation to Commissioner Northup for once again standing up for, and finding middle ground between business, safety, regulatory necessities, and common sense. I also applaud her for advocating open government by listing letters that we have all sent to the Commission over the months, as an appendix to her comments. For those naysayers that say there are just a few "implementation" problems with the law, or it is something a few tweaks can fix, I urge you to read (or at least scan through---there are many!) each letter. They all tell personal stories, many tragic, of the impacts this law has had on businesses & consumers across this country.

CPSC Commissioner Anne Northup argues for CPSIA reform on the John Stossel Show

HTA's Recommended Changes to the CPSIA

Late last year, Congress required the CPSC to report on what technical corrections the CPSIA might require. Below is the Handmade Toy Alliance's letter to the CPSC which details the changes we'd like to see.January 14, 2010

Dear Honorable Commissioners:

As the Commission prepares its report to Congress regarding its suggestions for improvements needed to the CPSIA, we would like reiterate our concerns with the CPSIA and how it affects our 403 member businesses who specialize in small batch children's products.

We appreciate the opportunities the Commission has granted us to share our concerns about the CPSIA. As we wrote in our letter dated October 25, 2009, our fundamental belief is that the CPSIA focuses resources on processes rather than safety and needlessly hampers the Commission's ability to make product safety determinations based on risk. Although the Commission has been able to address some of our concerns, including the need for exempting natural materials and allowing component testing, many other common-sense reforms require Congressional action.

The following is a list of legislative changes to the CPSIA that our member businesses need in order to survive:

1. Grant the CPSC authority to use risk analysis to allow enforcement flexibility of third party testing requirements and hazardous content limits. High risk items like paint or metal jewelry should be held to higher verification standards than low-risk products like bicycle valve stems and brass zippers on children's garments.

2. The definition of what is a children’s product should be changed to items intended for children 6 years or younger, except where the CPSC identifies a product requiring a higher age limit based on risk analysis.

3. Educational products intended for use in classroom or homeschool environment under the direct supervision of an adult should be exempted from the definition of a children's product.

4. Harmonize CPSIA standards with the European Union's EN-71 standards to remove the regulatory trade barrier which the CPSIA created between the US and the EU. This would include changing the lead content standard from an untenable total lead standard to an absorbable lead standard.

5. Exempt manufacturers who make less than 10,000 units per year from all third party testing requirements and allow them to comply instead with the 'reasonable testing program' requirements which apply to manufacturers of non-children's products under the CPSA. This would protect small batch manufacturers and specialty product manufacturers, including companies that make adaptive products for children with disabilities. These manufacturers would not be exempted from the standards themselves, only from the third party verification requirements.

6. Tracking labels should be voluntary except for durable nursery items and products which are most likely to be passed down to younger siblings or resold where the CPSC's risk analysis determines that tacking labels would be most likely to prevent harm. Manufacturers who choose to implement tracking labels would benefit from a lesser burden in the event of a recall.

7. Revisit the retroactivity of the CPSIA based on a risk-based approach with the goal of preserving the market for second-hand children's products.

8. Inaccessible components, metals, minerals, hard plastics, natural fibers and wood should be exempted from phthalate testing.

9. Re-calibrate CPSIA penalties based on the scale and potential harm of any violation to protect small business owners' access to financing and insurance.

10. Allow the use of XRF technology to verify lead content in substrates.

11. Establish rules and procedures protecting manufacturers from false claims in the public incident database.

12. Require and fund an ombudsperson within the CPSC to help communicate with small businesses. Such an ombudsperson would serve to expedite answers to questions and give input to CPSC staff about policy decisions.

13. Require the CPSC to implement an education strategy for consumers. Media attention in the wake of mass market toy recalls has improperly skewed the public's understanding the primary sources of lead poisoning, which remain lead in house paint, dirt near highly-travelled roads, and workplace exposure. Lead awareness campaigns from the 1970s and 80s have now been forgotten by today's parents even though the same problems persist. The CPSC should take steps to re-educate the public about the highest-risk sources of lead exposure.

We strongly believe that all these changes, if implemented, would protect small businesses, maintain a vibrant selection of children's products in the marketplace, reduce compliance costs, create a more effective CPSC, and promote common sense without sacrificing safety.

On behalf of our 403 member small businesses, we appreciate your willingness to consider our concerns. We are hoping to preserve the long American tradition of hand-crafted children's goods while ensuring safety for the children who enjoy them.

Respectfully,

The Handmade Toy Alliance

A listing of all 403 business members of the Handmade Toy Alliance is available at http://www.handmadetoyalliance.org/members-of-the-handmade-toy-alliance

Cadmium, Lead, and the CPSIA: Another Unintended Consequence

Like many people, we were shocked to learn this week that children's jewelry sold at Wal-Mart and other national retailers were found to contain extremely high concentrations of cadmium, a heavy metal which is even more toxic than lead.

When the CPSIA banned lead content in children's jewelry in August 2008, most manufacturers switched to zinc. A few Chinese manufacturers, however, chose cadmium instead, which was apparently cheaper. Although cadmium is regulated in toys by the CPSIA, these standards do not apply to jewelry.

So, while Wal-Mart pulls these poisonous pendants from their shelves, what lesson can we learn from this?

The problem is, even the best law cannot stop the bad actors whose only motives are profits. In this, Wal-Mart is directly culpable, with its price rollbacks forcing manufacturers of all kinds to make decision like, "cadmium is cheaper than zinc and isn't illegal, so let's use cadmium." It's called the Wal-Mart Effect, a global race to the bottom that involves consumer products of all kinds.

In addition to cadmium-laced jewelry, we have seen at least two other examples of substances not regulated in the US which were nonetheless extremely hazardous: powdered asbestos used in a detective kit and a chemical substitution in the "Aquadots" toy that produced the toxin gamma-hydroxybutyric acid. Outside of toys, there's the example of melamine in dog food baby formula.

What could be next? Uranium in toy cars? Arsenic in baby bibs? What set of regulations could possibly prevent the next irresponsible outsourced manufacturer from switching to a cheap toxin that isn't technically illegal?

Sure, we can make every responsible children's product manufacturer pay to test their products for cadmium, which will work just fine until another unsuspected heavy metal finds it's way into Wal-Mart or a chain of dollar stores. No amount of regulation can protect us from products which are simply too cheap to be safe.

What we need is a system that rewards responsible manufacturers who maintain strict control over their entire production process. Small batch manufacturers are our particular concern, but many large companies, even many who manufacture in China, maintain strict control of their supply chains. In the media, in regulations, and in our buying, we need to nurture and protect responsible manufacturers. For every jewelry maker who used cadmium, there are nine others who chose zinc.

The CPSC has been burdened for over a year with implementing the extremely complex CPSIA. This may or may not be why they seem to have missed a growing use of cadmium in the wake of the CPSIA's lead ban, but we have long argued that this is exactly the kind of threat the agency currently faces, which we've called the darker(er) side of the CPSIA. Because the CPSIA forces the agency to spend most of it's time regulating responsible manufacturers' adherence to the proceedural requirements of the CPSIA, it has far less energy left to identify and control the irresponsible manufacturers.

And, because the CPSIA doesn't allow the CPSC to require more stringent controls for higher risk products, it must apply the same rules to all, regardless of country of origin or whether production is outsourced.

Meanwhile, those of us who make things by hand, who control and take direct responsibility for our products, are forced to abandon our work because of the CPSIA's onerous testing requirements. And, somewhere in China, a subcontractor of an outsourced subcontractor just discovered an even cheaper way to make a throwaway toy.

Image: an ingot of cadmium