Proposed Amendments to the CPSIA [April 19 2010]
This is the third draft of the so called "Waxman Amendment" that is supposed to clean up of fix the holes and problems in the CPSIA. Basically the things that the CPSC cannot fix by regulation as they cannot override Congress. This "proposed amendment" is set for a mark up meeting this week. No idea where it goes from there, if anywhere.
[Committee Print]
APRIL 19, 2010
111TH CONGRESS
2D SESSION
H. R. ____
To ensure effective implementation of consumer product safety laws by providing
exceptions to lead and phthalate prohibitions and regulatory relief
for thrift stores, small manufacturers, and other businesses.
IN THE HOUSE OF REPRESENTATIVES
M____. ______ introduced the following bill; which was referred to the
Committee on _____
A BILL
To ensure effective implementation of consumer product safety
laws by providing exceptions to lead and phthalate
prohibitions and regulatory relief for thrift stores, small
manufacturers, and other businesses.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Consumer Product
Safety Enhancement Act of 2010’’.
SEC. 2. REGULATORY FLEXIBILITY ON LEAD CONTENT.
Section 101(b) of the Consumer Product Safety Im
provement Act of 2008 (15 U.S.C. 1278a(b)) is amend
ed—
(1) by striking ‘‘EXCLUSION OF CERTAIN MA6
TERIALS OR PRODUCTS AND INACCESSIBLE COMPO
NENT PARTS’’ and inserting ‘‘EXCEPTIONS AND EX
CLUSIONS’’;
(2) in paragraph (1)—
(A) by striking ‘‘CERTAIN PRODUCTS OR
MATERIALS’’ and inserting ‘‘EXCEPTION IF NO
ABSORPTION OR OTHER ADVERSE IMPACT’’; and
(B) by striking ‘‘exclude a specific product
or material from the prohibition in subsection
(a)’’ and inserting ‘‘grant an exception to the
prohibition in subsection (a) for a specific prod
uct or material’’;
(3) by redesignating paragraphs (2) through
(5) as paragraphs (5) through (8), respectively;
(4) by inserting after paragraph (1) the fol
lowing:
‘‘(2) FUNCTIONAL PURPOSE EXCEPTION.—
‘‘(A) IN GENERAL.—The Commission, on
its own initiative or upon petition by an inter
ested party, may grant an exception to the pro
hibition in subsection (a) for a specific product,
material, or component part if the Commission,
after notice and comment in accordance with
subparagraph (B), determines that—
‘‘(i) the product, material, or compo
nent part requires the inclusion of lead be
cause it is not practicable or not techno
logically feasible to manufacture such
product, component part, or material in
accordance with subsection (a) by remov
ing the excessive lead or by making the
lead inaccessible;
‘‘(ii) the product, material, or compo
nent part is not likely to be placed in the
mouth or ingested, taking into account
normal and foreseeable use and abuse of
such product, material, or component part
by a child; and
‘‘(iii) an exception for the product,
component part, or material will have no
measurable adverse effect on public health
or safety, taking into account normal and
foreseeable use and abuse.
‘‘(B) PROCEDURES FOR GRANTING EXCEP
TION.—
‘‘(i) NOTICE AND COMMENT PE
RIOD.—Before granting an exception under
subparagraph (A), the Commission shall
allow not fewer than 60 days for public
comment after publishing the notice of the
proposed exception.
‘‘(ii) BURDEN OF PROOF.—A party
seeking an exception under subparagraph
(A) has the burden of demonstrating that
it meets the requirements of such subpara
graph.
‘‘(iii) GROUNDS FOR DECISION.—In
the case where a party has petitioned for
an exception, in determining whether to
grant the exception, the Commission may
base its decision solely on the materials
presented by the party seeking the excep
tion and any materials received through
notice and comment.
‘‘(iv) ADMISSIBLE EVIDENCE.—In
demonstrating that it meets the require
ments of subparagraph (A), a party seek
ing an exception under such subparagraph
may rely on any nonproprietary informa
tion submitted by any other party seeking
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such an exception and such information
shall be considered part of the record pre
sented by the party that relies on that in
formation.
‘‘(v) NARROWEST POSSIBLE SCOPE OF
EXCEPTION.—If an exception is sought for
an entire product, the burden is on the pe
titioning party to demonstrate that the cri
teria in subparagraph (A) are met with re
spect to every accessible component or ac
cessible material of the product.
‘‘(C) LIMITATION ON EXCEPTION.—If the
Commission grants an exception for a product,
component part, or material under subpara
graph (A), the Commission may, as necessary
to protect public health or safety—
‘‘(i) require each manufacturer of
such product, component part, or material
to reduce the level of lead in such product,
component part, or material; or
‘‘(ii) place a manufacturing expiration
date on such exception or establish a
schedule after which the manufacturer of
such product, component part, or material
shall be in full compliance with the limits
in subsection (a).
‘‘(D) APPLICATION OF EXCEPTION.—An
exception under subparagraph (A) for a prod
uct, component part, or material shall apply re
gardless of the date of manufacture unless the
Commission expressly provides otherwise.
‘‘(E) PREVIOUSLY DENIED PETITIONS.—A
party seeking an exception under this para
graph may rely on materials previously sub
mitted in connection with a petition for exclu
sion under section 101(b). In such cases, peti
tioners must notify the Commission of their in
tent to rely on materials previously submitted.
Such reliance does not affect petitioners’ obliga
tion to demonstrate that they meet all require
ments of this paragraph as required by sub
paragraph (B)(ii).’’; and
(5) in the heading of paragraph (5) (as so re
designated), by striking ‘‘EXCEPTION’’ and inserting
‘‘EXCLUSION’’.
SEC. 3. RELIEF FOR THRIFT STORES AND OTHER RETAIL
ERS.
(a) EXCLUSION OF CERTAIN USED CHILDREN’S
PRODUCTS.—101(b) of the Consumer Product Safety Im-
provement Act of 2008 (15 U.S.C. 1278a(b)) (as amended
by section 2) is further amended by inserting after para
graph (2) (as added by section 2) the following:
‘‘(3) EXCLUSION OF CERTAIN USED CHIL
DREN’S PRODUCTS.—
‘‘(A) GENERAL EXCLUSION.—The lead
limits established under subsection (a) shall not
apply to a used children’s product.
‘‘(B) DEFINITION.—The term ‘used chil
dren’s product’ means a children’s product that
was obtained by the seller for use and not for
the purpose of resale or was obtained by the
seller, either directly or indirectly, from a per
son who obtained such children’s product for
use and not for the purpose of resale. Such
term also includes a children’s product that was
donated to the seller for charitable distribution
or resale to support charitable purposes. Such
term shall not include—
‘‘(i) children’s metal jewelry;
‘‘(ii) painted children’s toys (as the
term ‘children’s toy’ is defined in section
108(e)(1)(B));
‘‘(iii) children’s products composed
primarily of accessible vinyl;
‘‘(iv) any children’s product for which
the donating party or the seller has actual
knowledge that the product is in violation
of the lead limits in this section; or
‘‘(vi) any other children’s product des
ignated by the Commission.
For purposes of this definition, the term ‘seller’
includes a person who lends or donates a used
children’s product.
‘‘(4) PROHIBITION ON SALE OF RECALLED
PRODUCTS NOT AFFECTED.—Nothing in this sub
section shall be construed as affecting the prohibi
tion under section 19(a)(2) of the Consumer Prod
uct Safety Act (15 U.S.C. 2068(a)(2)).’’.
(b) PROSPECTIVE APPLICATION OF 100 PPM LEAD
LIMIT.—Section 101(a)(2)(C) of the Consumer Product
Safety Improvement Act of 2008 (15 U.S.C.
1278a(a)(2)(C)) is amended by inserting ‘‘in the case of
a product manufactured on or after such date,’’ after ‘‘this
Act,’’
SEC. 4. RELIEF FOR SMALL MANUFACTURERS AND OTHER
BUSINESSES.
(a) ALTERNATIVE TESTING REQUIREMENTS FOR
SMALL BATCH MANUFACTURERS.—Section 14(d) of the
Consumer Product Safety Act (15 U.S.C. 2063(d)) is
amended by adding at the end the following new para
graph:
‘‘(3) SPECIAL RULES FOR SMALL BATCH MANU
FACTURERS.—
‘‘(A) IN GENERAL.—Subject to subpara6
graph (B), in implementing third party testing
requirements under this section, the Commis8
sion shall take into consideration any economic,
administrative, or other limits on the ability of
small batch manufacturers to comply with such
requirements and may, by regulation, provide
alternative testing requirements for covered
products manufactured by small batch manu
facturers in lieu of those required under sub
section (a) or (b). Any such alternative require
ments shall provide for reasonable testing meth
ods to assure compliance with the relevant con
sumer product safety standards. The Commis
sion may allow such alternative testing methods
for small batch manufacturers with respect to a
specific product or product class or with respect
to a specific safety standard or component of a
safety standard.
‘‘(B) LIMITATION.—The Commission shall
not provide or permit to continue in effect any
10
alternative testing requirements under this
paragraph where full compliance with sub3
section (a) or (b) is necessary to protect public
health or safety, taking into account normal
and foreseeable use and abuse. The Commission
shall not provide any alternative testing require
ments for—
‘‘(i) any of the testing requirements
described in clauses (i) through (v) of sub
section (a)(3)(B); or
‘‘(ii) durable infant or toddler prod
ucts, as defined in section 104(f) of the
Consumer Product Safety Improvement
Act (15 U.S.C. 2056a(f)).
‘‘(C) DEFINITION OF COVERED PROD
UCT.—For purposes of this paragraph, the term
‘covered product’ means one where the manu
facturer—
‘‘(i) manufactured no more than
7,500 units of the product in the previous
calendar year;
‘‘(ii) had no more than $50,000 in
gross revenue from the sales of that prod
uct in the previous calendar year; and
‘‘(iii) had no more than $1,000,000 in
total gross revenue in the previous cal
endar year.
Each dollar amount contained in clauses (ii)
and (iii) shall be adjusted annually by the per
centage increase in the Consumer Price Index
for all urban consumers published by the De
partment of Labor.’’.
(b) OFFICE FOR EDUCATION, OUTREACH, AND
SMALL BUSINESS OMBUDSMAN.—
(1) ESTABLISHMENT.—Section 27 of the Con
sumer Product Safety Act (15 U.S.C. 2076) is
amended by adding at the end the following:
‘‘(l) OFFICE FOR EDUCATION, OUTREACH, AND
SMALL BUSINESS OMBUDSMAN.—The Commission shall
establish an Office for Education, Outreach, and Small
Business Ombudsman to assist the Commission with pro
viding education and outreach to all stakeholders and to
inform and educate manufacturers and retailers, including
resellers, about requirements under this Act or any other
Act enforced by the Commission. Such office shall provide
special assistance and guidance to small batch manufac
turers in understanding and complying with such require
ments.’’.
(2) AUTHORIZATION OF APPROPRIATIONS.—
There are authorized to be appropriated to the Con3
sumer Product Safety Commission $1,800,000 for
each of fiscal years 2011 through 2018 for the office
established under paragraph (1).
(c) COOPERATION WITH SMALL BUSINESSES.—
(1) IN GENERAL.—The Consumer Product
Safety Improvement Act of 2008 (Public Law 110–
314) is amended by adding after section 3 the fol
lowing new section:
‘‘SEC. 4. COOPERATION WITH SMALL BATCH MANUFACTUR
ERS.
‘‘The Commission shall work cooperatively with small
batch manufacturers—
‘‘(1) in enforcing the lead limits and third-party
testing requirements;
‘‘(2) in setting continuing compliance testing
requirements pursuant to section 14(d) of the Con
sumer Product Safety Act and in using its discretion
under that section to impose the least burdensome
testing requirements for small batch manufacturers
consistent with goals of statute; and
‘‘(3) in using its discretion under section 103(a)
to ensure practicability of any tracking label require
ments for small batch manufacturers, taking into ac-
count any economic, administrative, or other con
straints on small batch manufacturers.’’.
(2) DEFINITION.—Section 3(a) of such Act (15
U.S.C. 2052(a)) is amended, by redesignating para
graphs (9) through (17) as paragraphs (10) through
(18), respectively, and inserting after paragraph (8)
the following:
‘‘(9) SMALL BATCH MANUFACTURER.—
‘‘(A) DEFINITION.—The term ‘small batch
manufacturer’ means a manufacturer—
‘‘(i) for which at least 2⁄3 of the man
ufacturer’s products meet the following
conditions:
‘‘(I) the manufacturer manufac
tured or imported no more than 7,500
units of the product in the previous
calendar year;
‘‘(II) the manufacturer’s gross
revenue from the product was no
more than $50,000 in the previous
calendar year; and
‘‘(ii) that had no more than
$1,000,000 in total gross revenue in the
previous calendar year.
14
‘‘(B) DETERMINATION.—For purposes of
determining the number of units of products
and the amount of gross revenue of a manufac
turer under this paragraph, the products and
gross revenue of a manufacturer shall be con
sidered to include all products and gross rev
enue of each entity that controls, is controlled
by, or is under common control with such man
ufacturer. The Commission shall take steps to
ensure that all relevant business affiliations are
considered in determining whether or not a
manufacturer meets this definition.
‘‘(C) ADJUSTMENT.—Each dollar amount
contained in subparagraph (A) shall be adjusted
annually by the percentage increase in the Con
sumer Price Index for all urban consumers pub
lished by the Department of Labor.’’.
(d) PHTHALATES AND INACCESSIBLE COMPONENT
PARTS.—Section 108 of the Consumer Product Safety Im
provement Act (15 U.S.C. 2057c) is amended by redesig
nating subsections (c) through (e) as subsections (d)
through (f), respectively, and inserting after subsection (b)
the following:
‘‘(c) EXCLUSION FOR INACCESSIBLE COMPONENT
PARTS.—
15
‘‘(1) IN GENERAL.—The prohibitions estab
lished under subsections (a) and (b) shall not apply
to any component part of a children’s toy or child
care article that is not accessible to a child through
normal and reasonably foreseeable use and abuse of
such product, as determined by the Commission. A
component part is not accessible under this para
graph if such component part is not physically ex
posed by reason of a sealed covering or casing and
does not become physically exposed through reason
ably foreseeable use and abuse of the product. Rea1
sonably foreseeable use and abuse shall include,
swallowing, mouthing, breaking, or other children’s
activities, and the aging of the product.
‘‘(2) LIMITATION.—The Commission may re
voke an exclusion or all exclusions granted under
paragraph (1) at any time and require that any or
all component parts manufactured after such exclu
sion is revoked comply with the prohibitions estab
lished under subsections (a) and (b) if the Commis
sion finds, based on scientific evidence, that such
compliance is necessary to protect the public health
or safety.
16
‘‘(3) INACCESSIBILITY PROCEEDING.—Within 1
year after the date of enactment of this subsection,
the Commission shall—
‘‘(A) promulgate a rule providing guidance
with respect to what product components, or
classes of components, will be considered to be
inaccessible for purposes of paragraph (1); or
‘‘(B) adopt the same guidance with respect
to inaccessibility that was adopted by the Com
mission with regards to accessibility of lead
under section 101(b)(5)(B), with additional
consideration, as appropriate, of whether such
component can be placed in a child’s mouth.
‘‘(4) APPLICATION PENDING COMMISSION GUID
ANCE.—Until the Commission promulgates a rule
pursuant to paragraph (3), the determination of
whether a product component is inaccessible to a
child shall be made in accordance with the require
ments laid out in paragraph (1) for considering a
component to be inaccessible to a child.’’.
SEC. 5. ADDITIONAL PROVISIONS.
(a) COORDINATION WITH VOLUNTARY STANDARD
SETTING ORGANIZATIONS.—Section 104(b) of the Con
sumer Product Safety Improvement Act (15 U.S.C.
2056a(b)) is amended by adding at the end the following:
17
‘‘(4) PROCESS FOR CONSIDERING SUBSEQUENT
REVISIONS TO VOLUNTARY STANDARD.—
‘‘(A) NOTICE OF ADOPTION OF VOL4
UNTARY STANDARD.—When the Commission
promulgates a consumer product safety stand
ard under this subsection that is based on a
voluntary standard, the Commission shall notify
the organization that issued the voluntary
standard of the Commission’s action and shall
provide a copy of the consumer product safety
standard to the organization. If the organiza
tion (or its successor entity) proposes to revise
the voluntary standard, it shall notify the Com
mission of the proposed revision within 60 days.
‘‘(B) COMMISSION ACTION ON REVISED
VOLUNTARY STANDARD.—If an organization re
vises a standard that has been adopted as a
consumer product safety standard under sub
paragraph (A), the revised voluntary standard
shall be considered to be a consumer product
safety standard issued by the Commission
under section 9 of the Consumer Product Safe
ty Act (15 U.S.C. 2058), effective 180 days
after the date on which the organization notifies
the Commission unless, within 90 days after re-
18
ceiving that notice, the Commission notifies the
organization that it has determined that the
proposed revision does not improve the safety of
the consumer product covered by the standard
and that the Commission is retaining the exist
ing consumer product safety standard. In the
case of such notification, the Commission may,
within 60 days, initiate a rulemaking in accord
ance with section 553 of title 5, United States
Code, to amend the consumer product safety
standard to be more stringent than the revised
voluntary standard, if the Commission deter
mines that more stringent standards would fur
ther reduce the risks of injury associated with
such products.’’.
(b) CLARIFICATION OF AUTHORITY.—Section 106(a)
of the Consumer Product Safety Improvement Act (15
U.S.C. 2056b(a)) is amended by inserting ‘‘or any provi
sion that restates or incorporates a regulation promul20
gated by the Food and Drug Administration or any stat
ute administered by the Food and Drug Administration’’
after ‘‘or by statute’’.
(c) FUNCTIONS OF COMMISSION.—Section 27(b) of
the Consumer Product Safety Act (15 U.S.C. 2076(b)(9))
is amended—
(1) in paragraph (3), by inserting ‘‘and phys
ical’’ after ‘‘documentary’’;
(2) in paragraph (8), by striking ‘‘and’’;
(3) by redesignating paragraph (9) as para
graph (10) and inserting after paragraph (8) the fol
lowing:
‘‘(9) to delegate to any officer or employee of
the Commission the authority to issue subpoenas
solely to Federal, State, or local government agen10
cies for evidence described in paragraph (3);’’; and
(4) in paragraph (10) (as so redesignated), by
inserting ‘‘(except as provided in paragraph (9))’’
after ‘‘paragraph (3)’’.
(d) ELIGIBILITY OF LOCALITIES TO RECEIVE POOL
AND SPA SAFETY GRANTS.—
(1) ELIGIBILITY.—A State or a political sub
division of a State shall be eligible for a grant under
section 1405 of the Virginia Graeme Baker Pool and
Spa Safety Act (15 U.S.C. 8004). For purposes of
carrying out the grant program under such Act, the
term ‘‘State’’ as it used in sections 1405 and 1406
of such Act is deemed to include a political subdivi
sion of a State, and references to a law or statute
of a State in such sections is deemed to include a
20
law or ordinance of a municipality or other political
subdivision of a State.
(2) EXTENSION OF GRANT PROGRAM.—Section
1405(e) of the Virginia Graeme Baker Pool and Spa
Safety Act (15 U.S.C. 8004(e)) is amended by strik
ing ‘‘2010’’ and inserting ‘‘2011’’.
SEC. 6. EFFECT ON OTHER LAW.
(a) OTHER AUTHORITIES NOT AFFECTED.—No
amendment made by this Act shall be construed to modify
or otherwise affect the Commission’s authority to act
under section 15 of the Consumer Product Safety Act (15
U.S.C. 2064) or under any other applicable authority.
(b) PREEMPTION RULES NOT AFFECTED.—No
amendment made by this Act shall be construed to modify
or otherwise affect section 231 of the Consumer Product
Safety Improvement Act of 2008 (15 U.S.C. 2051 note).
The Subcommittee on Commerce, Trade, and Consumer Protection also created the briefing memo below:
MEMORANDUM
April 19, 2010
To: Members of the Subcommittee on Commerce, Trade, and Consumer Protection Members and Staff
Fr: Subcommittee on Commerce, Trade, and Consumer Protection Staff
Re: Subcommittee Markup of H.R. ____, the Consumer Product Safety Enhancement Act
On April 21, 2010, at 10:00 a.m. in room 2123 of the Rayburn House Office Building, the Subcommittee on Commerce, Trade, and Consumer Protection will meet in open markup session to consider a Committee Print on H.R. ____, the Consumer Product Safety Enhancement Act of 2010.
To ensure that all members of the Subcommittee have sufficient time to review and understand amendments before they are offered, Chairman Rush requests that members who wish to offer an amendment submit the amendment via e-mail to Will Cusey (Will.Cusey@mail.house.gov) of the Subcommittee staff at least two hours before offering it at the markup. In addition, 75 copies of the amendment should be submitted to the clerk’s table at the markup. Subcommittee staff will make available to all Subcommittee members an electronic copy of each amendment submitted under this process and will distribute hard copies when the amendment is offered at the markup. Each amendment should include the legislative counsel number or another unique identifying number.
I. H.R. ____, CONSUMER PRODUCT SAFETY ENHANCEMENT ACT
In 2008, Congress enacted the Consumer Product Safety Improvement Act of 2008 (CPSIA) to strengthen and modernize the consumer product safety system in the United States, with a particular emphasis on improving safety of products designed or intended for children. The legislation to be considered in markup was designed to address several issues that have been raised regarding implementation of CPSIA.
Following is background on CPSIA and the Committee Print on H.R. ___, Consumer Product Safety Enhancement Act of 2010.
A. The Consumer Product Safety Improvement Act of 2008
The development of CPSIA began in 2007 in the 110th Congress, following record numbers of recalls of popular children’s toys, many of which were due to unsafe levels of lead. The 2006 lead poisoning death of a four-year-old boy who had swallowed a charm given away with athletic shoes also underscored the need for more effective federal protections.1
Medical science has shown lead to be a dangerous toxin, and there is no known safe level of lead exposure for children. Chronic exposure to lead has been found to contribute to children’s attention problems, learning disabilities, mental retardation, and antisocial and delinquent behaviors. The presence of lead in children’s products is invisible there was and continues to be no way for a parent to know by looking at a toy whether it contains lead. In 2006, the Centers for Disease Control and Prevention (CDC) recommended the restriction or elimination of nonessential uses of lead in consumer products as “part of a proactive strategy that prevents exposure to these products.”2
In 2007, the Subcommittee held 4 days of hearings at which more than 20 witnesses testified on the safety of children’s products and the need for increased authority and funds for the Consumer Product Safety Commission (CPSC or Commission) to deal with this problem.3 On November 1, 2007, Subcommittee Chairman Rush, then-Ranking Member Stearns, then-Committee Chairman Dingell, and Ranking Member Barton introduced H.R. 4040, the Consumer Product Safety Modernization Act of 2007. Joining them as original co-sponsors were 46 other members from both parties. The Committee ordered the bill to be reported on December 18, 2007, by a unanimous vote, and the House unanimously approved the bill later that month.
In March 2008, an amended version of the legislation was approved by a strong majority of the Senate. Following an extensive conference, the bill passed both houses with overwhelming majorities and was signed into law by President Bush on August 14, 2008.
CPSIA fundamentally reformed product safety and the Consumer Product Safety Commission. The law established basic safety standards for keeping toxic lead and phthalates out of children’s products, gave CPSC vital new resources and authority, and introduced a product testing system designed to ensure that all products are safe. The bill also reestablished a five-member Commission. While the original Consumer Product Safety Act provided for a five-member Commission, appropriations riders starting in 1986 had limited CPSC funding to allow for only three commissioners, which had impeded decisionmaking and rulemaking.
Despite the strong bipartisan support for CPSIA, implementation has not been smooth. The Commission has issued several stays of enforcement of the law’s third-party testing requirements and lead content limits in specific products, including children’s all terrain vehicles and bicycles.4 In addition, many businesses affected by the law have been confused as to its scope and impact, and small businesses have faced unique hurdles in meeting the law’s requirements. Consumers also have faced confusion and reduced protections as a result of the stays of enforcement.
On June 19, 2009, the Senate approved new leadership for the Commission by confirming Inez Moore Tenenbaum as the new CPSC Chairman. Two additional commissioners were confirmed on August 7, 2009, restoring the agency to its original size of five commissioners. Since the arrival of Chairman Tenenbaum, the Commission has taken numerous steps to improve implementation of the law, including issuing specific guidance on compliance to businesses facing unique challenges, such as thrift stores and other sellers of used products.5 The Commission also has taken regulatory action to clarify the meaning of the law, including such critical steps as publishing guidance to allow component part testing to demonstrate compliance with the lead limits and issuing a final rule determining that certain materials and products do not contain lead and therefore are not subject to the law’s lead limits and testing requirements.6
B. H.R. ____, Consumer Product Safety Enhancement Act
Despite recent efforts by the Commission to clarify and improve implementation of the law, a number of problems persist. Some affected manufacturers have asserted that there are some products that require lead and do not pose a serious threat to public health or safety. Others have claimed that the law’s lead requirements should not apply to used children’s clothing. In addition, some affected industry members have asserted that the third party testing requirements are overly burdensome for smaller businesses and that alternative testing could be used without compromising public health or safety.
H.R. ____ seeks to resolve some of these issues by addressing unintended consequences of the legislation. To this end, the legislation provides three major forms of relief:
New regulatory flexibility for the Commission to exempt certain products, components, and materials from the lead limits in CPSIA, with limitations to ensure protection of the public health;
Relief for thrift stores and other retailers through an exclusion for certain used children’s products from the lead limits and a modification of the lead limit set to take effect in August 2011, so that it will apply only to newly manufactured products; and
Relief for small batch manufacturers and other businesses by allowing the Commission to approve alternative testing requirements for certain small batch manufacturers, by requiring Commission outreach and assistance to small businesses, and by providing that the law’s phthalate limits shall not apply to inaccessible component parts.
The legislation also provides for a narrow set of improved and clarified authorities to allow the Commission to carry out the law.
1 Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report Dispatch: Death of a Child after Ingestion of a Metallic Charm -- Minnesota, 2006 (March 23, 2006) (Online at: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm55d323a1.htm).
2 Id.
3 Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, Protecting Our Children: Current Issues in Children’s Product Safety (May 15, 2007); Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, Protecting Children from Lead tainted Imports: Day 1 (Sept. 19, 2007); Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, Protecting Children from Lead tainted Imports: Day 2 (Sept. 20, 2007); Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection, Comprehensive Children's Product Safety and Consumer Product Safety Commission Reform Legislation (Nov. 5, 2007).
4 Consumer Product Safety Commission, CPSC Grants One Year Stay of Testing and Certification Requirements for Certain Products (Jan. 30, 2009); Consumer Product Safety Commission, Notice of Stay of Enforcement Pertaining to Youth Motorized Recreational Vehicles, 74 Fed. Reg. 22154 (May 12, 2009); Consumer Product Safety Commission, Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements, 74 Fed. Reg. 68588 (Dec. 28, 2009).
5 Consumer Product Safety Commission, CPSC Handbook for Resale Stores and Product Resellers (Aug. 2009) (online at: http://www.cpsc.gov/ABOUT/Cpsia/cpsia.HTML).
6 Consumer Product Safety Commission, Interim Enforcement Policy on Component Testing and Certification of Children’s Products and Other Consumer Products to the August 14, 2009 Lead Limits, 74 Fed. Reg. 68593 (Dec. 28, 2009); Consumer Product Safety Commission, Children’s Products Containing Lead; Determinations Regarding Lead Content Limits on Certain Materials or Products; Final Rule, 74 Fed. Reg. 43031 (Aug. 26, 2009).
Congressional staffers also released a draft of their "report language" (Below) which is interpretative language and is not included in the law. Not clear what its role is.
Practicability:
The Committee expects the Commission to consider practicability in a manner consistent with State Farm Mutual Insurance Co. (463 U.S. 29 (1983), and to take into account excessive or unreasonable costs in considering whether compliance is impracticable. Specifically, the Committee expects that in determining whether a product, material or component part has met the requirements of Section 2, the Commission will regard safety as the overriding consideration but will deem compliance impracticable where the cost of compliance is excessive. The Committee does not consider a mere increase in the cost of manufacture or production, in itself, to be excessive. The Committee does expect that the Commission will consider compliance to be impracticable where compliance would place the viability and continuation of a class of products or materials in jeopardy, such as youth All Terrain Vehicles or youth bicycles made with recycled steel.
No measurable adverse effect”:
The Committee intends that the Commission, in implementing this provision, will follow a scientific protocol to determine whether, after foreseeable use and abuse, any lead in the product, component part, or material will produce a measurable adverse effect on public health or safety. The phrase “public health or safety” is not meant to encompass non-lead related safety concerns or environmental concerns such as product disposal.
In determining whether the lead in a product, material, or component part will have a measurable adverse effect on public health or safety, the Committee expects that the Commission will rely on the best available scientific methods at the time of analysis. Given that there is no current blood level at which the scientific community considers lead exposure to be “safe,” the Committee understands that a very small adverse effect may theoretically occur at any level of exposure. The Committee intends, however, for the Commission to deny requests for exception under this section as having a measurable adverse effect” on health or safety only in the case of those adverse effects that the Commission determines to be empirically, as opposed to theoretically, measurable. At present, the Committee understands that there is scientific consensus to interpret the phrase “measurable adverse effect” from lead exposure to mean a measurable increase in blood lead levels. The Committee expects that the Commission will use this interpretation of the term “measurable adverse effect” as long as the best available scientific methods and analysis support that interpretation.
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