Press Release: HTA sees new momentum as they prepare to testify; endorsing new bill amending the CPSIA

The Handmade Toy Alliance (HTA) will testify at the upcoming Congressional hearing on April 7, 2011 regarding a discussion draft to amend the Consumer Product Safety Improvement Act (CPSIA) from the House Subcommittee on Commerce, Manufacturing and Trade. HTA Founder and Vice President, Dan Marshall (Peapods Natural Toys -MN) is set to testify on behalf of the HTA and its members endorsing the progress this new bill proposes. Board members Rob Wilson (Challenge and Fun – MA) and Randall Hertzler (euroSource – PA) will accompany Marshall at the hearing and attend legislative visits.

During the last year the HTA and its members have continued to work diligently, to bring meaningful discussion and reform to the CPSIA. The proposed amendment is seen as a step in the right direction toward reaching a middle ground, and ultimately saving many small businesses from the unintended consequences of the CPSIA. HTA Board member Jill Chuckas (Crafty Baby – CT) states, "While this new bill does not give us everything we've been asking for, we believe it saves most of our member businesses from extinction."

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The bill focuses on several key issues that give way to reducing the financial burden the original law inflicted on small businesses. Hertzler comments, “Rather than requiring third party testing for every children’s product, the bill seeks to restore the Consumer Product Safety Commission’s (CPSC's) ability to set its own priorities, allowing the Commission to define specific categories for specific tests, in areas where the benefits from required third-party testing justify the costs.”

The movement towards reform gives the HTA a new wave of momentum as they prepare to travel to D.C. in support of the reform bill. Marshall announced, "The Handmade Toy Alliance plans to endorse this bill both for its text and also for the context we hope it will create—a bipartisan and bicameral dialog which quickly leads to meaningful reform of the CPSIA."

The HTA was formed in November of 2008 in response to the CPSIA, and consist of 643 member businesses, including retail stores, toymakers and children's product manufacturers from across the country who want to preserve consumer access to unique handmade toys, clothes and all manner of small batch children's goods in the USA.

HTA's Letter to the CPSC About the Feasibility of a 100ppm Lead Content Limit

On February 16, the CPSC will hold a public hearing on the feasibility of lowering the lead content standard in children's products from 300ppm to 100ppm. We have submitted the following letter as our testimony.

February 10, 2011

Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East-West Highway,
Bethesda, Maryland, 20814
cpsc-os@cpsc.gov

Re: 100 PPM—Technological Feasibility Public Hearing

Dear Mr. Stevenson:

On behalf of the Handmade Toy Alliance, an alliance now numbering 620 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 for consideration during the Commission's hearing on the feasibility of imposing a 100ppm lead content limit on children's products.

To begin with, we would like to refer the Commission to our earlier letter on the subject, dated September 27, 2010. We would like to reiterate that letter's conclusion, which stated:

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 test's 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.

After reading the other responses to the Commission's initial requests for comments on the feasibility of a 100ppm standard, we were struck by the near unanimity among manufacturers and trade groups representing manufacturers. Almost all these respondents agreed with us that a 100ppm would be difficult to achieve consistently, would be difficult to measure, would add unnecessary and untenable compliance costs, and would not directly correspond with any health risks associated with lead content in different materials.

Voltaire: "The perfect is the enemy of the good."

Now, we are being asked to clarify our position regarding how the feasibility of a 100ppm standard would vary according to the type of material and the extent to which 100ppm-compliant components are “commercially available”.

Unfortunately, none of our members are chemists or materials scientists. Nor do we posses the resources to engage a scientific study of the vast myriad of products our members produce in order to fully answer these questions. The best we can do is describe our businesses and the difficulties we would encounter if we were required to meet a 100ppm lead standard.

For this hearing, the Commission asked, “What factors or considerations should we evaluate in deciding whether a product complying with the limit is 'commercially available?'” Unlike mass market manufacturers, we do not always begin our production with raw materials. We frequently purchase component goods like zippers and buttons from Jo-Ann Fabrics, beads and polyfill from Michael's, and screws and hinges from Home Depot.

These components have not been tested by a CPSC-accredited third party lab and do not indicate their lead content. Nor do the manufacturers of these components make any claim or guarantee regarding the consistency of materials used that would suggest that a hinge or button purchased in June would have the same lead content as the same item purchased in August. Indeed, many of these component parts are sold by distributors such as Dritz Notions or Stanley Hardware and bear no indication of the company which actually manufactured the part in the first place.

So, before the CPSC decides the extent to which 100ppm-compliant components are “commercially available”, we ask that the Commission should first conduct a thorough survey of the lead content of the component parts on sale at Jo-Ann Fabrics, Michaels, and Home Depot (or other comparable retailers). We urge the Commission to test a few dozen screws, buttons, zippers, and hinges—and then do the same test again in a month. This would be the best and only way determine the commercial availability of 100ppm-compliant parts for our members.

Unfortunately, we were not able to initiate such a study in the 15 days from when the Commission posted notice of this hearing and the date our comments were due. Nonetheless, the difficulty and expense of conducting such a survey is the exact same difficulty and expense small batch manufacturers will be facing if they would be required to comply with a 100ppm lead content standard.

While we recognize that it would be problematic for larger companies as well, we believe that small batch manufacturers, who have little or no negotiating power with their component suppliers, would be most adversely affected by a 100ppm standard. Much as we'd like to see the development of marketplace of pre-tested component parts, the truth is that, in most cases, this marketplace has so far failed to materialize. The burden of compliance, therefore, remains almost exclusively with the end-product manufacturer. A 100ppm standard would vastly aggravate this burden.

We believe the Commission can and should consider the economic feasibility of a 100ppm standard. And, we believe that any such consideration of the economic impact would logically lead to the conclusion that a 100ppm standard is not, in fact, feasible.

Finally, as discussed in our previous letter, we believe that a 100ppm total lead limit which does not take bioavailability into account is an inappropriate standard for measuring the health risk of a children's product. We have read the comments by consumer groups which reiterate the facts that lead accumulates in a child's body over time and that there is no safe amount of lead exposure. And, while we agree with these assertions, we can not find any logic which would justify a blanket 100ppm limit for all types of materials in all children's products.

It simply does not make sense to us that the lead content in brass, steel, plastic, vinyl, or glass should all be subject to the same limit, since each material behaves differently when exposed to human skin or saliva. Nor does it make sense to us that a baby rattle, puzzle, football, or bicycle should pose the same risks of lead ingestion or that these various products should all be subject to the same 100ppm standard.

We therefore urge the Commission to conclude, as we have, that a 100ppm lead standard is not technologically feasible; that 100ppm compliant component parts are not commercially available, especially for small batch manufacturers; and that a 100ppm standard would not relate to the risk of lead exposure as it varies from one material to another and from one type of product to another.

Our members are personally dedicated to making safe, quality products. We represent centuries of American craftsmanship which has nourished generations of American children.

Please consider the impact of 100ppm on our member businesses. Please do not allow the perfect to be the enemy of the good.

Thank you again for taking the time to read and consider our comments.

Respectfully Submitted,

The Handmade Toy Alliance

A listing of all 620 business members of the Handmade Toy Alliance is available at http://www.handmadetoyalliance.org/AllianceInfo/OurMembers.aspx .

Handmade Toy Alliance House Testimony to the House Commerce Subcommittee on Commerce, Trade, and Consumer Protection on CPSIA, April 29, 2010

Hello. My name is Dan Marshall. I am the Founder and Vice President of the Handmade Toy Alliance. The HTA represents 435 small businesses affected by the unintended consequences of the CPSIA. I would like to submit this statement, two letters, and our issue statement to the official record.

My wife Millie and I own Peapods Natural Toy Store in St. Paul, Minnesota. For the past 12 years, we've supported our family selling cloth diapers, baby carriers, and wood toys, many of which are handcrafted by artisans in the US and Europe. I am here today with fellow HTA Board members Jolie Fay of Skipping Hippos in Oregon and Randall Hertzler of euroSource in Pennsylvania.

When Congress first spoke of toy safety legislation, we all applauded your efforts. As we learned the details of the actual law, however, we realized that it applied not just to companies like Mattel that had betrayed the publics’ trust, but would apply broadly to all children's products and effectively outlaw many small family businesses--not because our products were unsafe, but because we simply could not afford the mandatory third party testing and labeling requirements, which disproportionately affect small batch manufacturers and specialty retailers.

The deadline for third party testing is February 10 of next year. After that point, our member businesses face extinction. Although many of us have already paid for XRF testing of our products, we simply cannot afford to pay for the services of a CPSC-certified lab.

For that reason, The HTA has endorsed the Consumer Product Safety Enhancement Act. The provisions of the bill which allow alternative testing methods for small batch manufacturers are imperative to the survival of our members. We hope that it can proceed through this committee, the House and the Senate as quickly as possible.

However, we have made clear that we have two primary concerns regarding the language of this bill. First, we desire clarity and simplicity in the definition of “alternative testing method.” We believe the standard for small batch manufacturers should be the same reasonable testing methods applicable to non-children’s' consumer products under the CPSIA. Leaving “alternative testing method” ambiguous places new rulemaking burdens on the CPSC and extends the uncertainty about compliance for HTA businesses.

We are willing and able to work with the CPSC through this additional rulemaking process, but feel that more flexible language would greatly simplify the standard. In particular, we would like committee report language or, preferably, the bill itself, to stipulate:

1. That small batch toymakers be exempted from third party testing for ASTM compliance. These destructive tests cost $200 - $350 per toy, which is a significant impediment to small batch toymakers.

2. That the CPSC allow the use of XRF testing as an alternative testing method for lead in paint, lead in substrate, and other mineral content standards.

3. That EN-71 testing certification qualify as an alternative testing method. This provision is critical for preserving access to quality European children's goods and removing the regulatory trade barrier created by the CPSIA.

4. That small batch manufacturers be fully exempted from labeling requirements.

Even with these stipulations, we fear that non-business hobbyists and crafters will lack the resources and understanding to fully comply with the law.

Our second primary concern with the bill pertains to its definition of small batch manufacturer. In particular, we are concerned about the $1 million company revenue cap. We feel that this limit should either be removed altogether or should be based only on income generated by the manufacture or importation of children's products without including other unrelated business income. If this limit is not changed or removed, we fear that this committee will continue to hear from constituents wondering why specialty products like adaptive toys for children with disabilities are no longer available.

Finally, we have long argued that meaningful reform of the CPSIA should grant the CPSC the authority to make adjustments to the law based on risk analysis. In particular, we would like the CPSC to be given the flexibility to adjust certification requirements based on the age of a product's intended user and the risk of injury the product poses.

In conclusion, on behalf of our members, I would like to thank this committee for addressing this important issue and urge you to quickly pass meaningful reform of the CPSIA. Thank you.

Photo: HTA Board members Jolie Fay, Dan Marshall, and Randall Hetzler.

Below is a clip from the Q&A portion of the hearing in which Representative Pitts (R-Pennsylvania) asks about EU Harmonization: