Monday, May 9, 2011

HTA Responses to House Commerce Committee Followup Questions on CPSIA Reform

Questions for the Record from the April 7 Hearing on Reform of the Consumer Product Safety Improvement Act (CPSIA)

The Honorable G. K. Butterfield

1. During your oral testimony you stated that the Handmade Toy Alliance endorsed the Republican discussion draft “because of the relief it provides to our members.” You went on to suggest that the draft provides your members an exemption from third-party testing or that your members would be allowed to follow alternative testing procedures. My understanding, based on the advice of lawyers on my staff, and on Chairman Bono Mack’s opening statement, is that the draft does not provide any relief to your members from the mandatory third-party requirements for five specific products or hazards: (1) lead paint; (2) lead in children’s metal jewelry; (3) small parts; (4) compliance with crib standards; and (5) compliance with pacifier standards. Relief is only available to your members from any additional testing requirements that CPSC might require in the future through the rulemaking process outlined in the draft. Small crafters will still have to have their children’s products third-party tested for lead in metal jewelry, small parts, and compliance with the crib standards. In addition, ASTM F-963 will remain a mandatory standard, so your members will still have to comply with all of ASTM F-963 and certify that they have done so.

a. Assuming my understanding is accurate, do you and your members still support the Republican discussion draft even though it does not provide full relief from compliance with CPSIA? If so, please explain why.

First and foremost, we wish to restate that our primary goal is the passage of meaningful CPSIA reform as soon as possible. Although the discussion draft would provide relief for our members in key areas, we remain concerned about many other provisions of the CPSIA which unfairly disadvantage small businesses. These include retroactivity, labeling requirements, the 100ppm lead content standard, lack of harmonization with the European Union, and testing requirements for small parts and lead in paint. In the interest of expediency, we have chosen to focus our efforts on providing the most relief for as many of our members as possible.

Our ideal solution to the unintended consequences of the CPSIA is outlined in our platform. The discussion draft proposes relief through CPSC rulemaking as you indicate, but with the protecting stipulations that the benefits of third party testing justify the costs; that rules impose the least possible burden; and that an exemption is provided by default in the absence of rulemaking. These stipulations make compliance achievable for our membership. However, our preference remains a legislative exemption for micro-businesses.

Our purpose from the beginning of our organization has always been to mitigate the costs of third party testing on small batch children's product manufacturers. The CPSIA established requirements for many types of tests for many different types of products. In speaking with our members, our analysis is that the greatest burdens we face are mandatory third party testing for lead in substrate and ASTM F-963 testing for toys, both of which are scheduled to be implemented by the end of this year. We are not seeking exemptions from the standards themselves, but from the third party testing requirements. In both cases, we believe that small batch manufacturers should be allowed to self-certify based on a reasonable testing program. The discussion draft would make this possible.

We are not pursuing exemptions from testing requirements for lead in paint, metal jewelry, or crib standards. In the case of the lead in paint and metal jewelry standards, we recognize two realities. First, these were the two areas which caused the majority of product safety concerns prior to the enactment of the CPSIA. Second, although we disagree with the need for testing American and European products for lead in paint violations because lead paint has been outlawed in those countries for over 30 years, we recognize that the damage to these companies has already been done. The lead in paint testing requirement has been in place for almost a year and a half. Several respected companies have already ceased operations as a result. The damage has already been done. We hope that component-based testing will mitigate the cost of lead in paint testing in the future.

We are not at this time concerned with the crib standard. None of our members manufacturer cribs.

As for the small parts testing requirement, we believe that the CPSC can and should develop alternative testing methods which would allow small-batch manufacturers to self-certify. This standard is very straightforward and relatively easy to test for. In a perfect bill, the small parts standard would not be excluded from the exemptions available to small batch manufacturers.

Once again, we urge the House and the Senate to work together to mitigate the overwhelmingly negative impact of the CPSIA on small businesses.

Here's the unedited video from the April 7, 2011 Hearing. It includes all the breaks for floor votes, so it's a full 7 hours long. HTA's testimony is at 5:19.

The Honorable John Dingell

1. The draft legislation amends section 101(b) of CPSIA to exempt components of children’s products from the Act’s lead limits if such components do not cause a child to ingest more than a de minimus amount of lead. The legislation would require the Commission to specify procedures for manufacturers to test and estimate this de minimus amount. Do you believe small manufacturers and handcrafters will be able to afford and/or carry out such test procedures?

No. We do not believe that small batch manufacturers will be able to avail themselves of the de minimus exemption process. The costs involved in meeting the requirements of this process would be beyond the reach of our members. However, we hope that the CPSC will rule on de minimus applications made by larger companies in such a way that smaller businesses may benefit as well. For example, if the CPSC rules that a given company's leaded crystal rhinestones meet the de minimus standards, we hope that it will make its ruling categorically, so that all manufacturers which use leaded crystals may also benefit. We would hope that committee report language would communicate the expectation that de minimus rulings should be made as generally as possible and not limited to only a specific product made by a specific manufacturer.

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