U.S. House Subcommittee Considers Draft Revisions to the CPSIA

11 April 2011

On Thursday, April 7, 2011, the U.S. House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade held a hearing to review draft legislation proposing changes to address a number of problems that have been identified with the Consumer Product Safety Improvement Act of 2008 (CPSIA). The draft Bill’s objectives are to:

1. Reduce the regulatory burdens created by CPSIA where possible to do so without harming consumers;

2. Enhance the Consumer Production Safety Commission’s (CPSC) ability to investigate complaints and to prioritize based on risk; and,

3. Improve the utility and accuracy of information in the CPSC’s public database.

In her opening statement, Chairwoman Bono Mack acknowledged an earlier hearing in February where the Subcommittee heard of the many problems associated with the CPSIA. Looking ahead, however, the Chairwoman underscored the need to strike “the right balance” on issues such as the definition of the term “children’s product,” giving the Commission much needed discretion to decide what standards should require third-party testing, and problems with the public database such as greater detail in who can submit reports of harm, improving product identification and giving the CPSC more options for solving material inaccuracy.

“Today’s hearing will focus on the discussion draft, which offers a range of possible solutions aimed at reducing regulatory burdens of the law without undercutting consumer protection,” said the Chairwoman. “Congress must move quickly because the clock is ticking. Unless we act soon, the 100 parts-per-million (ppm) lead limit will take effect retroactively in August and once again millions of dollars worth of products will become illegal to sell, donate or export.”

Both Democrats and Republicans agreed that as the current law stands reform is needed to allow the CPSC greater flexibility with interpretation and implementation. Republican members of the Subcommittee focused on areas of the law where regulation goes too far, while Democrat members focused on limiting the scope of the reform effort and upholding the strong standards set by the CPSIA.

Eleven witnesses testified in three panels, including a CPSC technical staff member, legal experts and industry and consumer representatives. North American Toy Industry Association (TIA) General Counsel Rick Locker testified on behalf of TIA, Craft & Hobby Association (CHA), Juvenile Product Manufacturers Association (JPMA), and the Halloween Industry Association (HIA).

In his testimony, Mr. Robert Howell, Assistant Director, Office of Hazard Identification and Reduction at CPSC, reiterated the Commission’s recommendations for improvement of the CPSIA including: needed flexibility in granting exclusions from the lead content limits such as lead exclusions for books and paper-based materials for children; belief that a prospective application of the 100 ppm lead limits would be helpful for continued implementation; and reiterating the CPSC’s commitment to help low volume manufacturers with regard to testing and certification.

Specific to the discussion draft, Howell said the CPSC believes there are several approaches that could allow them to address unintended consequences of the CPSIA; for example, allowing the Commission to exempt certain types of products from the lead limits by allowing them to weigh the risk of possible exposure (assuming exceptions are made on a “notice and comment” basis allowing transparency and accountability to stakeholders). Finally, he said allowing the Commission to regulate on a timetable influenced by the seriousness of the actual risks will allow for better priority setting that will permit Commission resources to be put towards the most serious health risks.

Several witnesses offered opinions regarding the risk of exposure to lead in children’s products. In some cases, members of the Committee called for additional evidence to support statements made during the testimony.

Locker suggested that Congress should clearly provide for only prospective application of new rules and regulations under CPSIA: “We supported many of the concepts reflected in the CPSIA to the extent effective good manufacturing standards and practices are recognized. However, to the extent that a myopic implementation of provisions has resulted in regulations that depart from sensible risk-based decision-making, Congress needs to act to restore a common sense regulatory framework.”

A discussion draft of the legislation, all witness’ written testimony and an archived webcast of the hearing are available from the Committee’s website.

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