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
5
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.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Calif. law now allows bikes to be sold without seats

Given all that the California Legislature has on its plate this year it seems amazing that such a niche piece of legislation would make it through. But I guess small focused bills can make it through as their is no opposition. So for those of you making bikes with no seats (like the BMX market) you now have a green light to sell them in California. Not so sure about the 49 other states.


BILL NUMBER: SB 527 CHAPTERED
BILL TEXT

CHAPTER 594
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE MAY 18, 2009
PASSED THE ASSEMBLY AUGUST 31, 2009
AMENDED IN SENATE MAY 6, 2009

INTRODUCED BY Senator Kehoe

FEBRUARY 27, 2009

An act to amend Section 21204 of the Vehicle Code, relating to
bicycles.

LEGISLATIVE COUNSEL'S DIGEST

SB 527, Kehoe. Bicycles.
Existing law prohibits a person from operating a bicycle on a
highway if that person is riding other than upon or astride a
permanent and regular seat attached to the bicycle.
This bill would prohibit a person from operating a bicycle on a
highway if that person is riding other than upon or astride a
permanent and regular seat attached to the bicycle, unless the
bicycle was designed by the manufacturer to be ridden without a seat.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 21204 of the Vehicle Code is amended to read:
21204. (a) A person operating a bicycle upon a highway shall not
ride other than upon or astride a permanent and regular seat
attached thereto, unless the bicycle was designed by the manufacturer
to be ridden without a seat.
(b) An operator shall not allow a person riding as a passenger,
and a person shall not ride as a passenger, on a bicycle upon a
highway other than upon or astride a separate seat attached thereto.
If the passenger is four years of age or younger, or weighs 40 pounds
or less, the seat shall have adequate provision for retaining the
passenger in place and for protecting the passenger from the moving
parts of the bicycle.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Happy New Year from the CPSC

The December 31, 2009 report date is fast approaching. All manufacturers and distributors who wished to take advantage of the stay of enforcement on lead limits must have complied with paragraph D of the stay by the extended date of October 9, 2009 (below) and posted in full here. Now the next report is due on Dec. 1, 2009 under paragraph E of the stay highlighted below. As we read it, if you fail to comply with D, E or F as required by the stay, then your company cannot take advantage of the stay of enforcement regarding lead etc. and if you are not in compliance as of Oct. 9, 2009 (or before) then you are in violation. The idea is that if you continue to seek the protection of the stay thru Dec 31, 2010, hopefully congress by that time will have passed legislation amending the CPSIA so that common sense exclusions or exemptions can be made by manufacturers (via formal petitions of some sort to the CPSC) and granted by the CPSC. Right now the CPSIA as unamended does not allow exemptions by the CPSC at all. So get to work now on your stay report so you don't have to work New Years Eve!

Relevant portion of the stay below posted in full here.

D. Each manufacturer (which can include a distributor where appropriate) who is covered by the stay shall file with the Secretary of the Commission, not later than 60 days after the publication of this stay in the Federal Register [swhlaw: extended to Oct. 9, 2009 by BPSA request], a report identifying each model of Bicycle or Related Product it has produced between May 1, 2008 and May 1, 2009. For each such model, the manufacturer shall give the production volume by calendar month and shall list each component part that is made of metal and that is accessible to children, the material specification for each part, and a measurement of the lead content of representative samples of each part in parts per million(ppm). The lead content measurement may be by x-ray fluorescence or the method posted on the Commission web site to test for lead in metal for certification purposes.

E. No later than December 31, 2009, each manufacturer covered by the stay shall present a comprehensive plan to the Commission describing how and when it intends to reduce the lead exposure from each part described in paragraph D above whose measured lead content exceeds 300 parts per million. The manufacturer should include a discussion of any adverse safety impacts that could result from accelerating the estimated schedule. If some Bicycles or Related Products have been modified after January 28, 2009, to reduce the lead content of certain parts or to make certain parts inaccessible, the manufacturer should outline those changes in general terms and the dates such changes were made.

F. Manufacturers who have timely submitted both the report in paragraph D and the plan in paragraph E above, who need additional time to complete their plan prior to the expiration of the stay may seek an extension of the stay. They shall, no later than December 31, 2010, file a request with the Secretary of the Commission for an extension containing a revised timetable for the reduction of lead exposure from those parts. The report shall detail the manufacturer's progress in reducing children's exposure to lead from each part containing more than 300 ppm, specifying what actions have been taken with regard to each affected part. The report will also explain why any parts that remain above 300 ppm have not been able to be made inaccessible, substituted with another material, or made with a complying level of lead.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

CPSC Public Workshop on CPSIA Product Testing Dec 10-11 2009

The U.S. Consumer Product Safety Commission (CPSC) is holding a two-day public workshop on Thursday, December 10, and Friday December 11, 2009 9:30 AM to 4:30 PM (EST) relating to test programs, material changes to children’s products and third-party testing, component testing, and product labeling. It will be web cast at this link The agenda can be viewed here. Also don't forget that public comments can be made on the agenda subjects up until Jan 11, 2010 to: TStevenson@cpsc.gov and cpsc-os@cpsc.gov Make sure you reference "CPSC Public Workshop on CPSIA Product Testing Dec 10-11 2009" clearly on your letter and or email or both so that the comments get to the right place.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Statement of Policy: Testing and Certification of Lead Content in Children’s Products

The "Statement of Policy" below issued by the CPSC on Oct 21, 2009 as it pertains to lead content is not "law" but again is just a statement of policy and gives manufacturers and distributors some insight on how the current CPSC administration is going to interpret the law. This policy does not really assist recreational products manufactures all that much and seems aimed more at other industries that have applied more pressure to the CPSC or in greater numbers, or have more pressing needs for numerous reasons. For those of us in the complex recreational products arena this statement from the report below sums up our issues: "The Commission intends to address component part testing and establish protocols and standards for testing for compliance in an upcoming rulemaking. (For convenience, we will refer to the future rule as the “testing rule.”) The Commission currently plans to have a public meeting where the public will have a chance to discuss testing issues." There also remains the nonsensical position that the CPSC is not going to require testing and certification on the 300 ppm limit yet manufacturers and distributors must still comply with the 300ppm limit. (see section B below) So in effect you still need to test to insure you are within the 300 ppm limit but the CPSC is just not going to require you to certify. Again small distinction.


Statement of Policy: Testing and Certification of Lead Content in Children’s Products

This statement of policy is issued by the Commission to provide guidance on the testing and certification of children’s products for compliance with the lead content limits established in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”). The Commission has received a number of questions on compliance with the new lead limits. This document, which has been approved by the Commission, provides guidance. It does not impose legal requirements beyond those already contained in the CPSIA or other agency regulations.

We have received several questions asking us to explain a recent Commission determination that certain materials will not exceed the lead limits. (The determination appeared in a final rule that was published in the Federal Register on August 26, 2009 (74 Fed. Reg. 43031)). We also have received numerous questions on component testing. We address those issues using plain language to make it easier for readers to understand our approach.

A. What does the lead content law require?

The CPSIA provides that products designed or intended primarily for children 12 years old and younger (“children’s products”) cannot contain more than 300 parts per million (ppm) of lead in any accessible part. We call this a 300 ppm “lead content limit.” This new lead content limit should not be confused with the Commission’s 90 ppm limit on lead in paint used on certain products such as furniture and children’s toys.

B. How and when must children’s products be tested and certified to the 300 ppm lead content limit?

Children’s products will need to be tested for compliance with the 300 ppm lead content limit. The tests must be done by a third party conformity assessment body (more commonly known as a third party laboratory) and, based on those tests, certified as compliant. The third party laboratory must be accredited and the accreditation must be recognized by CPSC. A listing of CPSC-recognized laboratories can be found at http://www.cpsc.gov/cgi-bin/labapplist.aspx. For more information on who needs to certify children’s products for compliance, please see http://www.cpsc.gov/businfo/frnotices/fr09/certification.pdf.

The Commission has postponed the requirement to begin testing and certification to the 300 ppm lead content limit; therefore, we do not require such testing and certification until February 2010, at which time the Commission will vote on the stay. (See Notice of Stay of Enforcement of Testing and Certification Requirements, February 9, 2009 (74 FR 6396)). Companies, however, may not distribute or sell children’s products that exceed the 300 ppm lead content requirement in the law. There are, however, two exceptions with respect to lead testing and certification: (a) lead in paint; and (b) lead in children’s metal jewelry. Testing and certification of products subject to the 90 ppm limit on lead in paint has not been postponed. Moreover, the Commission has not postponed the requirement for testing and certification of children’s metal jewelry to the 300 ppm lead content limit.

C. What is a children’s product that must be tested for lead content?

The Commission is often asked what products must comply with the lead content limit, i.e., what is a “children’s product” under the law. The answer is anything that is designed or intended primarily for a child 12 years of age or younger. “Primarily” is the key word used in the law. Not everything a child uses or touches must meet the lead content limit, only those things designed or intended primarily for a child 12 years old or younger. The Commission looks at each product on a case-by-case basis. We consider how the product is marketed as well as what the manufacturer has said about the product (if reasonable) and whether consumers commonly recognize the product as being intended for a child 12 or younger. For example, the Commission has previously said that an ordinary ball point pen is not primarily intended for children, and most consumers would not consider an ordinary ball point pen as being intended primarily for use by a child 12 years of age or younger. We realize that children, once they reach a certain age, might use a ball point pen, but an ordinary ball point pen is generally sold to consumers of all ages. In other words, an ordinary ball point pen is not designed or intended primarily for children. In this example, the ball point pen is not a children’s product. (Although there are some instances when such a pen can become a children’s product. See http://www.cpsc.gov/library/foia/foia09/petition/wima_resp.pdf). The Commission may provide further guidance on this issue in the future by rule.

D. Must all children’s products be tested and certified for lead content?

Another common question is whether all children’s products need to be tested and certified for compliance with the new 300 ppm lead content limits. The law limits our ability to exempt products from the lead content limit. However, we have found that certain products, by their nature, will never exceed the lead content limit so those products do not need to be tested and do not need certifications to show that they comply with the law. These products include:

1. Precious gemstones: diamond, ruby, sapphire, emerald;

2. Semiprecious gemstones and other minerals, provided that the mineral or material is not based on lead or lead compounds: e.g., aragonite, bayldonite, boleite, cerussite, crocoite, galena, linarite, mimetite, phosgenite, vanadinite, and wulfenite;

3. Natural or cultured pearls;

4. Wood (any paint on wood needs to be tested and certified);

5. Paper and similar materials made from wood or other cellulosic fiber, including, but not limited to, paperboard, linerboard and medium, and coatings on such paper that soak into the paper and cannot be scraped off the surface;

6. CMYK process printing inks (inks that must meet the testing and certification requirements include spot colors, other inks that are not used in the CMYK process, and inks that can be scraped off the surface on which they are used or that are used in after-treatment applications, including screen prints, transfers, decals, or other prints);

7. Textiles (excluding after-treatment applications, such as screen prints, transfers, decals, or other prints) consisting of: a. Natural fibers (dyed or undyed) including, but not limited to, cotton, kapok, flax, linen, jute, ramie, hemp, kenaf, bamboo, coir, sisal, silk, wool (sheep), alpaca, llama, goat (mohair, cashmere), rabbit (angora), camel, horse, yak, vicuna, qiviut, guanaco; b. Manufactured fibers (dyed or undyed) including, but not limited to, rayon, azlon, lyocell, acetate, triacetate, rubber, polyester, olefin, nylon, acrylic, modacrylic, aramid, spandex;

8. Other plant-derived and animal-derived materials including, but not limited to, animal glue, bee’s wax, seeds, nut shells, flowers, bone, sea shell, coral, amber, feathers, fur, and untreated leather;

9. Surgical steel and other stainless steel within the designations of Unified Numbering System, UNS S13800– S66286, not including the stainless steel designated as 303Pb (UNS S30360), provided that no lead or lead-containing metal is intentionally added. The non-steel or non-precious metal components of a product, such as solder or base metals in electroplate, clad, or fill applications must be tested and certified;

10. Precious metals: Gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium, titanium.

The products on this list are all things the Commission has determined do not contain lead over 100 ppm, which is within the allowable 300 ppm limit. Thus, they will comply with the law (and must always comply) and, therefore, do not need testing and certification. They do not need to be tested by a third party laboratory to prove they are, in fact, made of something on the list, and they do not need to be tested to prove that they meet the lead content limits. For example, we have determined that natural fibers, such as cotton, by their nature do not contain lead in excess of the lead content limit; this means that cotton blankets or t-shirts (without buttons or appliqués), do not need to be tested by a third party laboratory for lead content. It also means that a third party laboratory would not need to test the cotton shirt to show that it is, indeed, made out of cotton. Some retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list.

The Commission is aware that a children’s product may be made of numerous materials and component parts and that some may be on the list shown above while others are not. Many questions have been raised about how to handle a product where some parts do not need to be tested for lead content and others do. Questions have been raised as to whether testing a “final product” is necessary when some components of that product are made of materials (such as paper or fabric) that would not need to be tested if marketed separately, or whether only some of the component parts of a final children’s product need to be tested. The Commission intends to address component part testing and establish protocols and standards for testing for compliance in an upcoming rulemaking. (For convenience, we will refer to the future rule as the “testing rule.”) The Commission currently plans to have a public meeting where the public will have a chance to discuss testing issues. Until then, to provide some guidance on testing and certification of component parts for lead content, the Commission provides the following guidance for testing for lead content.

1. The Commission does not require separate tests of the parts of the product that are made entirely of items on the list above that have been determined not to exceed the lead limits.

2. The Commission does not require testing for lead content of those parts of a children’s product that are inaccessible, i.e., that cannot be touched by a small child’s finger. This is further explained in the Commission’s rule on inaccessibility and lead, which can be found on our website at http://www.cpsc.gov/businfo/frnotices/fr09/leadinaccessibilityfinalrule.pdf .

3. The Commission does not require lead content testing of certain components of electronic devices designed or intended primarily for children 12 and younger. The rule on electronic devices can be found on our website at http://www.cpsc.gov/businfo/frnotices/fr09/electronicinterim.pdf.

To help firms test for lead content, the Commission provides the following examples.

1. A book made with a cardboard cover glued to pages made with paper and printed with CMYK process printing inks does not need to be tested for lead content and no certificate is required by the Commission. The paper, cardboard, and CMYK ink are all on the list of materials and products that we have determined not to contain lead above the 100 ppm limit, and the glue used for binding is inaccessible. If, however, the book was bound with metal spiral binding rather than inaccessible glue, the metal spiral bindings would need to be third party tested for compliance with the 300 ppm lead content limit, and the product would need to be certified. If the metal spiral binding was painted, in addition to testing the metal spiral binding for lead content, the paint also would need to be tested to assure that it complies with the 90 ppm lead in paint limit and certified as complying with that standard as well.

2. A children’s coat, size 6x, is made of a variety of fabrics and a zipper. The fabric does not need to be tested for lead content because textiles are on the list of materials and products we have determined to not contain lead above the 100 ppm limit. The lead content of any plastic, metal, or painted parts of the zipper, however, would need to be tested to verify that they do not exceed the lead limits. A zipper may consist of several parts including the zipper teeth, which come as one part on a ribbon. Only the teeth need to be tested for their lead content and not the ribbon. Any other part of the zipper, for example, the zipper pull, would also need to be tested for lead content and, if painted, for compliance with the separate lead in paint limit. A certificate would need to be generated for the coat, certifying compliance of the zipper on that coat to the total lead content limit of 300 ppm and the lead in paint limit of 90 ppm.

We hope these examples will help answer the questions about how to test products for compliance with the 300 ppm lead content limit until the Commission completes the testing rule. The testing rule will address component part testing, when some parts of the product do not need to be tested and other parts do need to be tested, and may address topics such as how often tests need to be conducted, whether a manufacturer can rely on tests performed by a supplier, and what records need to be kept. Until a final testing rule is issued, the Commission will, on an interim basis, accept certifications of component parts if the component tested is the same in all material respects to the component used on the product.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Meeting re: Establishment of a Public Consumer Product Safety Incident Database

The Consumer Product Safety Commission (CPSC) on September 10 2009 published plans to implement a publicly accessible, searchable database of consumer product incident reports (not just recalls). The database, required under the Consumer Product Safety Improvement Act (CPSIA), is a part of a greater information technology effort that will increase public awareness and access to consumer product safety information. The database will be located on a government (.gov) website that will allow consumers to report product safety incidents (in some fashion similar to this) and search prior incidents and recalls on other products. The details of the database that have been published so far are located here

Clearly this is a very ambitious project and will likely take years to implement (correctly). We can also see this this will be a huge benefit not just to consumers but to plaintiff's attorneys. Our biggest fear of course is unverified erroneous information being pumped into the database with no way of knowing if it is accurate. To some extent this problem is already wide spread on the Internet generally (not in just one database) and this will only accelerate the trend. Hopefully the supply side will be well represented.

Although the notice below does not speak of written comments (aside from the text of oral presentations) the CPSC generally accepts written comments to proposals. Just make sure they arrive before Nov. 3, 2009. Also remember that anything you submit will be "publicly available" and likely posted on the CPSC website for some time. If you would like our office to send your comments along so that your company or individual information is removed from the communication we can do that for you. Please give us some advance notice.

Establishment of a Public Consumer Product Safety Incident Database

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of public hearing.

SUMMARY: The Consumer Product Safety Commission (Commission) will conduct a public hearing to receive views from all interested parties on Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Establishment of a Public Consumer Product Safety Incident Database. Participation by members of the public is invited. Oral presentations concerning the Commission's implementation of Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Establishment of a Public Consumer Product Safety Incident Database, will become part of the public record.

DATES: The hearing will begin at 9:00 am on November 10, 2009. Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary not later than 5 p.m. Eastern Standard Time (EST) on November 3, 2009.

ADDRESSES: The hearing will be in the Hearing Room, 4th Floor of the Bethesda Towers Building, 4330 East West Highway, Bethesda, Maryland 20814. Requests to make oral presentations can be made online at http://www.cpsc.gov/cgibin/dbmeeting.aspx or, send an email, call, or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail cpsc-os@cpsc.gov; telephone (301) 504-7923; facsimile (301) 504-0127 not later than 5 p.m. EST on November 3, 2009. Texts of oral presentations should be captioned "Establishment of a Public Consumer Product Safety Incident Database" and sent by electronic mail (e-mail) to cpsc-os@cpsc.gov, or mailed or delivered to the Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814, not later than 5 p.m. EST on November 3, 2009.

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

CPSC meeting regarding lead and brass

NOTE: as of the commission meeting on Oct 21, 2009 the Brass Lead Exclusions Petition(s) will not be heard until the Nov. 4, 2009 meeting.

This was just announced today by the CPSC and is interesting as it discussed brass which is the issue a lot of bike have with respect to lead (spoke nipples, valve stems etc):

Commission Briefing/Meeting
Wednesday, October 14, 2009
9:00 a.m.-5:00 p.m.
(Items 1-4, 9:00 a.m.-12:00 noon; Item 5, 2:00-5:00 p.m.)
Hearing Room 420 Open to the Public

The following matters will be discussed:

1. Lab Accreditation Requirements for Lead
2. Brass Lead Exclusions Petition
3. Lead Determination Guidance
4. Recreational Off Highway Vehicles (ROHVS) ANPR
5. Toy Safety Certification Program, Toy Industry Association (TIA), Consumer Union (CU) and Consumer Federation of America (CFA)
(This meeting was requested by the participants. For the convenience of all of the Commissioners, the meetings are being consolidated into one public meeting.)

Last but not least:

Friday October 9, 2009 is the extended deadline for the filing of reports on the lead (Pb) content of certain accessible metal parts in connection with the stays of enforcement of CPSIA lead limits for children’s products, namely (1) bicycles, jogger strollers and bicycle trailers; and (2) youth all-terrain vehicles, youth off-road motorcycles and youth snowmobiles. The reports can be filed in electronic form by sending an e-mail to the Secretary of the Commission, Todd Stevenson, at the following address: tstevenson@cpsc.gov or by hand, by U.S. mail or other express service to the following address:

Todd Stevenson Director, Office of the Secretary
Division of Information Management
Office of Information Technology Services
US Consumer Product Safety Commission
4330 East West Highway, Room 502
Bethesda, MD 20814-4408

Items transmitted electronically or postmarked by midnight on Friday, October 9 will be accepted by the Commission for filing.

For more information on the stays of enforcement, click here

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

Statement of Inez Tenenbaum Chairman U.S. Consumer Product Safety Commission Before the Subcommittee on Commerce, Trade, and Consumer Protection

The effects of the 2008 Consumer Product Safety Improvement Act (CPSIA) were discussed at a recent U.S. House subcommittee hearing in Washington, D.C. Appearing before the committee was Inez Tenenbaum, the new Consumer Safety Product Commission (CPSC) chairman. Inez Moore Tenenbaum was sworn in as the ninth Chairman of the U.S. Consumer Product Safety Commission (CPSC). President Barack Obama nominated Ms. Tenenbaum on June 9, 2009, she was confirmed by the Senate on June 19, 2009, and was officially sworn in on June 23, 2009 to a term that expires in October 2013. Further background on her can be seen here

“The Consumer Product Safety Commission: Current Issues and a Vision for the Future” September 10, 2009

Good morning, Chairman Rush, Ranking Member Radanovich, and Members of the Subcommittee on Commerce, Trade, and Consumer Protection. I am pleased to be here today to inform you of the actions we are taking at the U.S. Consumer Product Safety Commission (CPSC) to protect the safety of children and consumers, as well as my vision for the future of this agency.

Let me begin by saying that I am deeply honored to have the privilege of serving as Chairman at such an important juncture in the Commission’s history. I am also pleased to report to the Subcommittee that CPSC is an agency on the rise.

My desire to serve as Chairman was deeply influenced by my previous work as an elementary school teacher, a researcher dealing with consumer product safety issues in the South Carolina House of Representatives, and my service as South Carolina’s State Superintendent of Education from 1999 to 2007.

In all of these positions, I focused on doing my utmost to protect the health and safety of children and families and have made this approach a key focus of the CPSC’s move to modernize and address new regulatory challenges.

It is no secret that the Consumer Product Safety Commission has faced numerous impediments in recent years. In 1981, the Commission had nearly 900 full-time employees. By 2008, that number had dropped to below 400. Similarly, years of budget cuts severely impacted the Commission’s ability to modernize or, in some cases, even maintain its basic infrastructure.

Last year, this Subcommittee and the Congress as a whole recognized the need to reinvigorate the Consumer Product Safety Commission by passing the Consumer Product Safety Improvement Act of 2008 (CPSIA). Among other things, the CPSIA gave the Commission substantial new enforcement authority, authorized increased staffing, increased public disclosure of emerging product safety issues, and provided new mandatory standards for children’s toys and juvenile products.

Mr. Chairman, I applaud your leadership and that of other members of this Subcommittee in crafting the CPSIA. The CPSIA recognizes many of the challenges this agency has faced over the years and demands that we rebuild the Commission to adapt to an era of consumer products that come from all over the world, and the need to take proactive measures to protect consumers from new and emerging hazards.

In my first two months leading the CPSC, I have focused on three key goals: transparency and openness to those we serve; a renewed focus on education and advocacy to all American consumers; and fair, but firm enforcement of the product safety laws we oversee.
Today, I hope to provide a clear assessment of what the Commission has accomplished so far and my vision for the future.

Implementation of the CPSIA

My top priority since assuming the Chair of the Commission has been meeting the statutory deadlines for rules and reports required by the CPSIA. Through the hard work of CPSC staff, I am pleased to announce that 12 substantive rules and policy guidance documents have been released since I was sworn in on June 23, 2009, including the following items:

Proposed Rule for Registration of Durable Infant and Toddler Products: On June 29, 2009, the Commission issued proposed rules for consumer registration of durable infant and toddler products, as required by the Danny Keysar Child Product Safety Notification Act, Section 104(b) of the CPSIA.

Tracking Label Guidance: On July 20, 2009, the Commission issued policy guidance for the tracking label requirement contained in Section 103 of the CPSIA. The policy guidance announced the Commission’s interpretation of key features of the tracking label provision, and explained how the Commission would approach enforcement.

Mandatory Toy Standards: On July 21, 2009, the Commission issued a Notice of Consultation, pursuant to Section 106(b) of the CPSIA, to solicit input from all stakeholders on the effectiveness of the current mandatory toy standard (ASTM F963), and possible ways in which this standard could be improved to further reduce the risk of injuries from toys.

Lead Inaccessibility Rule: On August 10, 2009, the Commission issued a final rule explaining under what circumstances children’s products may contain parts that exceed the Congressionally-mandated lead limits, and describing when those internal lead parts are inaccessible to children.

Audits for Third-Party Testing Labs: On August 13, 2009, the Commission issued a proposed rule specifying audit requirements for third-party testing labs pursuant to Section 102 of the CPSIA.

Phthalates Testing Guidance: On August 17, 2009, the Commission issued testing guidance for children’s toys and child care articles. This testing guidance only requires testing on component parts likely to contain phthalates, and not the entire article. Comments received on this guidance will also be integrated into a Notice of Proposed Rulemaking on the issue.

Lead Testing Component Exemptions: On August 26, 2009, the Commission issued a final rule on lead level determinations that exempts certain component parts, including dyed and undyed textiles, polyester, cotton and papers, inks and inaccessible bindings in books from third-party testing requirements.

Civil Penalties Interpretative Rule: On September 1, 2009, the Commission issued an interim final rule providing notice of the increase in civil fines pursuant to Section 115 of the CPSIA, and provided guidance on how the Commission will now negotiate civil penalties.
Durable Nursery Goods Rulemaking: On September 3, 2009, the Commission issued proposed rules for infant walkers and bath seats pursuant to the Danny Keysar Child Product Safety Notification Act, Section 104(b) of the CPSIA. Both proposed rules strengthen the existing voluntary standards for those products. In February 2010, the Commission will issue proposed rules for bassinets and toddler beds.

In each of these rulemaking proceedings, I have directed Commission staff to work closely with all impacted stakeholders to ensure that the rules we implement remain true to the statutory intent of the CPSIA, while also minimizing undue burdens on small businesses and other stakeholders.

In the near future, the Commission will publish additional rules clarifying the third-party testing process and the testing of component parts. As we move forward, I assure the Subcommittee that we will continue to solicit feedback from all involved parties, and work to implement common-sense rules that are squarely focused on maximizing product safety and reducing administrative burdens.

Rebuilding the CPSC’s Internal Business Processes

The Commission’s information technology systems are truly the lifeblood of this agency. Sadly, these systems were neglected for far too long. The result is a patchwork of systems that make it very difficult for CPSC staff to “connect the dots” between different incidents, identify patterns of defects, and respond quickly to emerging hazards. This has led to a situation where the Commission is constantly in the position of reacting to events rather than receiving new hazard information and proactively targeting harmful products before they flow into the stream of commerce.

Congress recognized the critical need for infrastructure modernization in the CPSIA, and directed the Commission to upgrade its infrastructure and create a product incident database that is easily searchable by the public. In response to that mandate, the agency is developing a single, integrated web-based environment, the Risk Management System (RMS), and an associated public database that will allow access to consumer product safety information.

Earlier today, the Commission submitted a plan to Congress detailing Phase I of the modernization initiative, which is implementation of the searchable product information database required by Section 212 of the CPSIA by March 11, 2011. As detailed in the report, the new web portal will be specifically designed to be easily accessible and usable by all Americans. Furthermore, the Commission plans a major public awareness campaign as the database is rolled out to ensure that all Americans are aware of the database, and its utility in ensuring the safety of consumers.

However, this initial phase of the RMS is only one component of the Commission’s overall effort to improve its infrastructure. CPSC continues to look at its business processes in order to identify improvements that will provide the agency with the tools necessary for identification of emerging hazards, such as using predictive data-mining technologies to analyze the increasing amount of information the agency receives, and identifying emerging hazards in real-time.

It is impossible to understate the absolutely essential nature of these improvements and their ability to transform the way this agency receives, reviews, and acts on new and emerging threats. By forming partnerships with industry and government entities to expand import surveillance and data exchanges, greater consumer involvement through user-friendly reporting and search tools, and the use of new advanced information-management technologies, CPSC can take the truly proactive approaches necessary to protect public health and safety.

Consumer Education

Notice of recalls and other hazards are only effective when all impacted consumers actually hear about them and respond to our alerts. Through network television appearances and newspaper interviews, I have worked to reach millions of families with information about dangerous cribs, bassinets, and window blinds. These are products that have killed young children, and we are working tirelessly to inform parents and caregivers about recalled products that need to be removed from homes or repaired to keep kids safe.

Last month, the Government Accountability Office (GAO) released a report noting that the Commission could do a better job of reaching out to poor and minority communities that often do not receive critical consumer product safety information.
Chairman Rush, I know this is a key priority of yours and I want to assure you that it is also a key priority of mine. To that end, I have directed Commission staff to expand our education and consumer outreach efforts to underserved Americans.

One example of this is the Commission’s effort to communicate with populations that are sometimes difficult to reach through traditional media. We are planning a “Minority Outreach Day” to increase awareness of product safety in certain targeted markets. We also have a successful grassroots program called the Neighborhood Safety Networks that has 5600 members who are community leaders and who pass on vital safety information to their constituents. These members include tribal leaders, fire chiefs, health care workers, and child safety advocates. We plan to expand this program and target our materials to specific hard-to-reach populations that the Neighborhood Safety Network aims to serve.

Later this month, CPSC also plans to launch a social networking, social engagement program that will establish CPSC’s presence on various new media sites, including Facebook, Twitter, and YouTube. This is an exciting new effort that once launched will reach a great number of consumers who may not know about us right now, but will know about us soon.
Increased Port Monitoring

From 1998 to 2007, the value of consumer products imported into the United States increased over 100 percent. During that time period, imports from China nearly quadrupled and now constitute over 40 percent of all imported consumer goods.

Pursuant to Section 225 of the CPSIA, the GAO recently released a study that audited and analyzed the agency’s efforts to police imports, and prevent the entry of unsafe products into the U.S. market. In the report, the GAO found that increased agency staffing at ports, combined with revised information sharing agreements with U.S. Customs and Border Protection (CBP) would allow the agency to better detect faulty products before they enter the country not after they enter the stream of commerce.

I agree with these recommendations, and have directed Commission staff to update agreements with CBP to allow better information sharing. This information sharing would include use of CBP’s Automated Targeting System (ATS), which contains advance manifest information for shipments entering the United States.

To access the ATS information, the Commission is in the process of hiring an employee that will be resident in CBP’s Commercial Targeting Analysis Center (CTAC) when it becomes operational on October 1, 2009. This employee will be able to provide CPSC with real-time advance cargo manifest information, and allow other CPSC staff to make cargo risk assessments as shipments arrive, not after they leave port areas.

Foreign Outreach

Since assuming the Chair of the Commission, I have made a number of efforts to reach out to foreign governments and manufacturers to inform them of new Commission regulations, and to emphasize this agency’s commitment to ensuring the safety of imported consumer products. In late July and early August, I traveled to Asia to meet with industry and government leaders in Hong Kong and Vietnam to discuss the CPSC’s new priorities. I also gave a keynote speech at the APEC Conference in Singapore, where I stressed the importance of foreign manufacturer compliance with the CPSIA, the importance of foreign economies building safety into their products, and the relationship between trade and safety.

The Commission is also continuing its efforts to strengthen and deepen our work with the Chinese government and Chinese manufacturers. On October 21-26, 2009, the 3rd Biennial United States China Consumer Product Safety Summit between the CPSC and its Chinese counterpart agency, the General Administration of Quality Supervision, Inspection, and Quarantine (AQSIQ) will be held in Wuxi, Jinhua, and Beijing, China.

The goal of the 2009 Summit is to bring dialogue between the two agencies to a new level, emphasizing the need for commitment to a more comprehensive approach to product safety. With input from U.S. and Chinese stakeholders, CPSC and AQSIQ will identify and discuss measures to ensure that U.S. importers and Chinese suppliers establish a systemic approach to preventing and detecting safety hazards in consumer products from product design, through the manufacturing process, and to ultimate use of the product by the consumer.
In addition to overarching policy discussions, the Summit agenda will include topical discussions of product safety issues, with toys, lead in children’s products, all terrain vehicles (ATVs), lighters, and fireworks representing specific product areas where we hope to make systemic advances.

In the coming months, we will continue our outreach efforts with representatives from other foreign governments to ensure that all manufacturers importing products into the United States are aware of the existing CPSC regulations, as well as new requirements that will soon be promulgated pursuant to the CPSIA. We will also be working closely with the U.S. Department of State, pursuant to new authorities under the CPSIA, to develop an information sharing agreement with foreign governments as we investigate mutual product safety concerns, and begin to pursue joint enforcement activities.

Chinese Drywall Investigation
CPSC continues to vigorously pursue its investigation of imported drywall that has been linked to corrosion of metal components and possible health impacts by homeowners in a number of states. We are fully committed to finding answers and solutions for all the homeowners who are impacted by this serious situation and the agency is pouring a record amount of money and manpower toward the goal of helping affected families.

As of September 4, 2009, the Commission had received 1192 incident reports relating to drywall in 24 states and the District of Columbia. The majority of these reports continue to be from Florida, Louisiana and Virginia.

In order to provide a comprehensive response to this issue, the Commission has formed an internal drywall task force that works with other federal and state agencies, including the Environmental Protection Agency (EPA), the Centers for Disease Control (CDC), the Department of Housing and Urban Development (HUD), Immigration and Customs Enforcement (ICE), and several state health departments.

In the last month, the CPSC drywall task force has:

Made an investigative visit to China to meet with government and industry officials, and collected information and samples relevant to the Chinese drywall manufacturing process;

Conducted principal air sampling field work in 50 homes to determine the air emissions in homes with suspect drywall;
Sent over 100 letters to drywall importers, distributors, and builders to determine how much drywall may be at issue and in what homes it may have been used;

Contacted over 500 consumers to request that they update the information provided in initial drywall incident reports; and

Coordinated a rapid response to allegations of radioactive phosphogypsum in Chinese drywall. Upon learning of the allegations, we commissioned a study with our state and federal partners, validated the science with an interagency technical committee, and publicized results that the samples tested did not pose a radiological hazard.

Later this fall, the federal drywall task force plans to release initial indoor air sampling test results, drywall elemental analysis results, chamber study results, and a preliminary health assessment and will continue to diligently work on efforts to reach further conclusions on the exact source of contamination in the affected homes. The Commission is also studying the remediation activities of certain builders in an effort to assist its federal and state partners in developing a remediation protocol for impacted homes. Further detail on the federal testing efforts and associated activities is available in our September Drywall Investigation Status Report.

I understand the personal hardship that this issue has caused impacted homeowners, and want to reassure members of the Subcommittee that effective and efficient completion of this investigation is a key priority for the CPSC and our federal and state partners.

Pool and Spa Safety

In 2007, Congress passed the Virginia Graeme Baker Pool and Spa Safety Act in response to a series of horrible child injuries and fatalities involving drain entrapments and drownings in pools and spas. CPSC has worked with the Baker family and Taylor family and is pouring its heart and energy into effectively implementing and enforcing this safety law this is our way of honoring the children who have died or been seriously injured in pools and spas.

Ensuring compliance with this law is a critical priority for me. In the last several months, CPSC has ramped up its outreach and education efforts to ensure that public swimming pool and spa operators are compliant with the law. In July, I conducted an extensive interview with NBC’s Today Show to re-state the need for compliance, and warn public pool operators that they should close their facility if they are not in compliance with the law. In addition, CPSC investigators have inspected over 1200 pools and spas in 38 states as part of a recently launched enforcement initiative.

The good news is that CPSC’s public outreach and education efforts seem to be having a positive impact in this area. Recent inspections show that most public pools and spas have installed or have plans to install the new, compliant drains covers and safety equipment in the near future. Let me state again, contrary to some reports, there are many more public pools and spas that have been made safer because of this important law.

As we approach the end of the summer swimming season, CPSC will continue to work with state Attorneys General, state health departments, and consumer groups to ensure that public pools are in compliance with this important law and will not hesitate to take action against those that are not.

*****
Chairman Rush and Ranking Member Radanovich, thank you again for allowing me the opportunity to update the Subcommittee on my vision for the future of the Consumer Product Safety Commission. I believe that CPSC Stands For Safety, especially the safety of children. With your support, I intend to continue the transformation of this agency from what some have described as a “teething tiger” to the world’s leading lion of consumer protection. I now look forward to answering your questions. [omitted]

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
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CPSC Statement of Policy Concerning Tracking Label Requirement in Section 103(a) of the CPSIA

Last August (August 14, 2008 to be exact) President Bush signed the Consumer Product Safety Improvement Act (CPSIA) into law. As with many laws passed by Congress it had a small seemingly innocuous passage regarding labeling of products which has over time been called the "tracking label" requirement. This requirement becomes effective one year after the law went into effect (August 14, 2009). Apparently there was not sufficient time to issue formal rulemaking and put all of this into a Code of Federal Regulations (CFR) section as was done in 1974 with the bicycle standards for example (in 16 CFR part 1512) or the recall regulations in 16 CFR part 1115 but rather (after taking into account public comments on section 103 on May 12, 2009) to issue "policy guidance" "to clarify its interpretation of the statutory requirements and provide guidance on how it intends to enforce Section 103 of the CPSIA", without "imposing any additional requirements beyond those in section 103".

The comments of the newly Obama appointed and Senate confirmed Chairman Inez Tenenbaum are also set forth at the end of this post along with Commissioner Moore (who apparently is staying on board during the Obama administration) along with the former acting Chair and likely soon departing Nancy Nord. As you will recall Ms. Nord took most of the heat (or flack) from Congress over the "flawed" and still "unfixed" CPSIA. Many of the "problems" with it can only be fixed by Congress as CPSC claims that most of its latitude and flexibility in implementation was eliminated by the way in which Congress wrote the law and the way in which courts have interpreted Congress' intent in the CPSIA.

Section 103 of the CPSIA is codified at 15 U.S.C. § 2063(a)(5) [Pub. Law 110-314, § 103(a)] and provides in part:

...that the marks are to “enable:

(A) the manufacturer to ascertain the location and date of production, cohort information (including the batch, run number, or other identifying characteristic), and any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and

(B) the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).”


Statement of Policy: Interpretation and Enforcement Of Section 103(a) of the Consumer Product Safety Improvement Act

A. Background

On August 14, 2008, the Consumer Product Safety Improvement Act (CPSIA) was enacted. It made a number of amendments to the Consumer Product Safety Act (CPSA). Section 103 of the CPSIA, entitled “Tracking Labels for Children’s Products,” mandates, in pertinent part, “distinguishing marks” on all children’s products and their packaging to enable the manufacturer and the ultimate purchaser to “ascertain” certain source and production information.1 These markings are to enable the manufacturer, retailers and the ultimate consumer to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (batch, run number, or other identifying characteristic).2 These new requirements become effective August 14, 2009. To gather comments and information about implementation of this program, the Commission published a Notice of Inquiry in the Federal Register on February 26, 2009, 74 Fed. Reg. 8781, and held a public forum on May 12, 2009. Comments in response to the Notice and discussions in the forum demonstrate that many questions exist about the tracking label requirement. Through this policy guidance the Commission intends to clarify its interpretation of the statutory requirements and provide guidance on how it intends to enforce Section 103 of the CPSIA. This document does not impose any additional requirements beyond those in the CPSIA, but informs the public of the Commission’s interpretation of the provision.

B. Section 103(a), Generally

1. Purpose

The purpose of Section 103(a) is to establish a means for identifying the source of children’s products in order to improve the safety of such products. Discussing Section 103, the Report from the House Energy and Commerce Committee noted that it intended the Section to “aid in determining the origin of the product and the cause of recall” to address the difficulty some manufacturers of children’s products had determining the location of products that were recalled during the summer of 2007. H.R. Rep. No. 501, 110th Cong., 1st Sess. 32 (2007). If a manufacturer can identify the location, date of production, and such individualized information as the batch or run number, it can more readily isolate products that it or others may discover present a safety concern. Similarly, if a consumer can identify the manufacturer (or private labeler), location and date the product was made, and any more specific identifying information, he can more easily determine whether a product in the home is the subject of a safety recall. The Commission believes that the purpose of Section 103(a) is not to impose significant additional burdens on manufacturers who already make available the required information for their products, but to bring those who do not up to a higher standard. In the event of a recall, the information mandated by Section 103(a) would enhance the specificity of the product identification and lead to better awareness by the consumer. Greater specificity identifying the product will help the manufacturer narrow the scope of a recall if one is ever needed and help retailers more readily identify products that need to be removed from inventory. This greater specificity helps the manufacturer as well as the consumer.

The statutory provision does not require a uniform one-size-fits-all system. Section 103 requires permanent distinguishing marks, but does not specify what those marks are to look like. At this point, the Commission is not imposing any such uniform requirements, but expects that manufacturers will use their best judgment to develop markings that best suit their business and product. These may change as technology improves. Over time, and as technology develops, the Commission may consider the need for, and appropriateness of, a more uniform system and has solicited comment on these issues from our global trading partners. If the Commission were to implement such a system in the future it would do so through notice and comment rulemaking and provide a prospective effective date.

2. Compliance and Enforcement

As with any new requirement, the Commission anticipates that there will be a period of education when Section 103(a) first takes effect. The Commission will require compliance with this provision in the context of recalls of products and will exercise its discretion with regard to penalizing manufacturers for noncompliance. In the first instance, given good faith efforts by manufacturers to educate themselves on the requirements of Section 103(a) and to consider ways to apply it to their business, the Commission will not likely seek penalties if required information was inadvertently omitted.

3. The Effective Date

Section 103(a) applies to children’s products made on or after August 14, 2009. It does not apply retroactively to such products made before that date. As such, there will be a period of time beginning on August 14, 2009, when there will be products available for sale that are in compliance with this Section because they meet the new requirements and products that are in compliance because they were manufactured before August 14, 2009.

4. Who is responsible for compliance?

The “manufacturer” of the product, as defined in the CPSA, 15 U.S.C. § 2052(a), is responsible for compliance with Section 103(a). The term manufacturer is defined in the CPSA to include both the manufacturer and importer. Importers should work with their foreign manufacturing sources to ensure compliance as both manufacturers and importers must comply with the Act.

5. Covered Products

Section 103(a) applies only to children’s products and their packaging. A children’s product is defined in Section 235(a) of the CPSIA as a “consumer product designed or intended primarily for children 12 years of age or younger.”

C. Format and Content of the “Tracking Label”

1. What is a “tracking label”?

While the title of Section 103 references “tracking labels,” the focus of the statutory text is “distinguishing marks.” As such, manufacturers should look at the totality of the information permanently marked on the product and packaging and not interpret “label” to mean a singular collection of information in one discrete location. The Commission believes that required information already permanently marked either to brand the product or otherwise to comply with other Commission or federal regulations, such as those promulgated under the Textile, Wool and Fur Acts or country of origin labeling rules, could be considered part of the “distinguishing marks” called for by Section 103(a). Any such marking would have to be permanent as required by Section 103(a).

2. What marks are required and what does it mean for information to be ascertainable?

Section 103(a) mandates distinguishing marks such that (1) the location of production (2) the date of production and (3) cohort information for that product is ascertainable. Any such marks should be visible and legible. Overall, the information should allow the manufacturer to determine the specific source of each product. The Commission expects a manufacturer to depart from these requirements only for considered and definable reasons. Each manufacturer is ultimately responsible for making a reasonable judgment about what information can be marked on their product and packaging, given the character and type of their product and packaging, and what required information can be ascertainable, given the character and type of their business. When considering the reasonableness of a manufacturer’s decision regarding what information to include in its markings, the Commission intends to look at the individual manufacturer’s situation along with the practices of peer manufacturers.

The question of what should be ascertainable is a different question than whether that specific information can be marked on the product or packaging. While there are foreseeable limitations of what a manufacturer might reasonably be able to mark on a product or packaging, the Commission expects the basic information referred to in Section 103(a) to be ultimately ascertainable by the manufacturer and the consumer. Section 103(a) does not require codes, formats or numbering systems. A manufacturer may choose to employ a code or numbering system provided the required information remains ascertainable by the consumer. The manufacturer can also rely on code systems already provided through compliance with other federal regulations, again, provided the required information underlying that code is ascertainable by consumers.

3. What is a “permanent” mark?

The Commission considers a “permanent” mark on a product to be a mark that can reasonably be expected to remain on the product during the useful life of the product. A mark on disposable packaging need only be permanent to the extent it is durable enough to reach the consumer. As such, an adhesive label on a piece of disposable packaging might be sufficient for a packaging mark. Further, if a mark is visible on the product through disposable packaging, there is no need for the mark to be on the packaging.

The Commission is aware that some voluntary standards, for example the ASTM standard for cribs, have provisions concerning the permanency of labels. Such standards may provide some guidance to manufacturers when determining whether a marking is permanent.

4. When can only the packaging be marked and not the product?

The Commission believes that Section 103(a) sets forth the expectation that, in most instances, both the packaging and the product will be marked. The statute recognizes, however, that this might not always be practicable. Some circumstances where the Commission considers that marking the product itself might not be practicable include:

(1) If a product is too small to be marked. Legislative history recognizes that a product’s size is a primary consideration in determining if marking only the packaging is feasible. See H.R. Rep. No. 501, 110th Cong., 1st Sess. 32 (2007).

(2) If a toy is meant to be stored in a box or other packaging, such as games with boards and small game pieces. There, the board and the box should be marked, but the individual game pieces do not need to be. This is another example recognized in the legislative history. See H.R. Rep. No. 501, 110th Cong., 1st Sess. 32 (2007). The Commission believes that this principle would similarly apply to arts and crafts kits for children. Again, only the storage box and one integral part of the kit needs to marked and not every item in the crafting kit. Where a number of small products such as marbles, buttons, beads, etc. are packaged together, the Commission believes that marking the package would be sufficient. For products that are meant to stay with or be contained in their original packaging, the packaging would be considered part of the “product.”

(3) If a product is sold through a bulk vending machine, the item does not need to be individually marked but the package or carton in which such products are shipped to the retailer should be marked. The Conference Report recognized that marking each individual product in such circumstances may not be practical. See H.R. Rep. No. 787, 110th Cong., 2d Sess. 67 (2008).

(4) If a physical mark would weaken or damage the product or impair its utility.

(5) If a product surface would be impossible to mark permanently such as those made of elastics, beads, small pieces of fabric (such as jewelry, hair ornaments, etc.), or craft items like pipe stems, or natural rocks.

(6) If the aesthetics of the product would be ruined by a mark and a mark cannot be placed in an accessible but inconspicuous location.

5. Where should marks be placed for items sold in sets?

The Commission believes that for items meant to be sold as sets or pairs and that function only as sets or pairs, only one item of the pair, or an integral part of the set would need to be marked. Shoes are an example. This situation is similar to the circumstance recognized in legislative history of a game with small pieces not needing marking on all the small pieces. The Commission expects that items which can be separated and sold separately would need to be separately marked.

6. What entity is to be marked or ascertainable?

Section 103(a) requires that the name of the manufacturer or the name of the private labeler be ascertainable from the marking.

7. What is the location of production to be marked or ascertainable?

The Commission believes that the name of the country and the city and state (or administrative region, as appropriate) where the product was manufactured would be sufficient to provide the location of production. However, the manufacturer would be responsible for identifying the specific source of the product in the event of a compliance inquiry or other Commission action.

8. What date of production is to be marked or ascertainable?

The Commission recognizes that products may not always be started and completed in a single day. The Commission anticipates that the date of production could be a date range if the product is made over a period of time.

When the product is a group of disparate components or items assembled together or gathered into one package, the Commission interprets the date of manufacture to mean the date of assembly or placement into one package.

9. What cohort information is to be marked or ascertainable? Do small volume manufacturers or crafters need to create a system that includes batch, run or other numbers?

Although Section 103(a) does not require manufacturers that do not use lot, batch or run numbers to create such a system, the Commission believes that compliance with this Section generally will require that manufacturers have in place a reasonable means to ascertain detailed production information, including the means to distinguish products made from different factories, made with different components, at different times or have other material differences that make the product non-identical from previous products. The business and recordkeeping practices of peer manufacturers should be considered. Small volume manufacturers and crafters may be unlikely to use lot, batch or run numbers, and, again, the Commission does not interpret Section 103(a) to require them to create such a system. Nevertheless, reasonable practices should be in place by such manufacturers to keep records of components used in their products.


Statement of Policy Concerning Tracking Label Requirement in Section 103(a) of the CPSIA (Briefing Package dated July 14, 2009, OS no. 5426)

STATEMENT OF CHAIRMAN INEZ M. TENENBAUM ON THE STATEMENT OF POLICY CONCERNING SECTION l03(a) OF THE CPSIA

Section 103(a) of the CPSIA requires manufacturers to place permanent, distinguishing marks on children's products and their packaging to the extent practicable. Importantly, and as this guidance indicates, the tracking labels provision applies only to products manufactured on or after August 14, 2009. The primary purpose of the distinguishing marks is to aid in the quick and effective facilitation of recalls involving children's products. I believe that the guidance unanimously approved by the Commission today will help to achieve the goals of improved recall effectiveness and better protection of consumers while also providing industry with assurance that the Commission does not intend to penalize manufacturers for inadvertent violations of the statute when they have made a good faith effort in attempting to comply with the tracking label requirements.

Although there are a number of issues surrounding the tracking labels requirement, I will address three of the principal concerns regarding this statute. First, many manufacturers have expressed concern that "one size does not fit all" with respect to tracking labels. In the guidance issued today the Commission acknowledges this concern and has agreed that Section 103(a) does not require a uniform "one size fits all" labeling system. Rather, the only "uniform" requirement is that the tracking information required by statute be ascertainable from the distinguishing marks made on the children's product and its packaging. How an individual manufacturer chooses to achieve this end is left to the reasonable judgment of each individual manufacturer, unless and until such time the Commission decides it necessary to implement more detailed and uniform regulations.

Second, small volume manufacturers and crafters have expressed concern that they cannot feasibly comply with the statute because their production patterns do not lend themselves to lot, batch, and run labeling systems. To this end, the Commission agrees that small volume manufacturers or crafters need not create a labeling system incorporating the use of lot, batch, or run numbers so long as such manufacturers can keep adequate records of the components used in their products. The goal of the labeling statute is to enable manufacturers and consumers alike to ascertain pertinent information about a children's product in the event of a recall, not to implement a rigid and uniform labeling standard that applies to both small and large manufacturers in the same way. In developing and implementing a tracking label system, small volume manufacturers and crafters should also consider the business and record keeping practices of their peers.

Third, many manufacturers have expressed concern over the lead time it will take to implement the new tracking label requirements due to confusion over the statutory provisions and the lack of clear guidance from the Commission. The Commission is aware of this concern and the guidance approved by the Commission today is intended to help clear up any confusion over the statutory requirements. While this guidance is incapable of answering every product specific question, I believe that the guidance provides sufficient general direction for all manufacturers to comply. To the extent that more detailed direction is necessary, the Commission may work directly with firms, issue additional guidance, or initiate rule making if such future measures are deemed necessary by the staff or the Commission. The Commission also understands that manufacturing changes cannot occur overnight, and some manufacturers may require some additional lead time to take the necessary measures to meet the statutory requirements. I believe the Commission and staff will measure the good faith efforts of a manufacturer, considering steps taken both before and after the issuance of this guidance to comply, in evaluating a firm's compliance with section 103(a).

STATEMENT OF THE HONORABLE THOMAS H. MOORE ON THE STATEMENT OF POLICY CONCERNING THE "TRACKING LABEL" REQUIREMENT IN SECTION 103(a) OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 July 20,2009

The tracking label provision in the Consumer Product Safety Improvement Act (CPSIA), as well as a related provision in the prohibited acts section, sprang from the legislative proposals I sent to Congress in July 2007. In my proposal I said:

"Identifying the exact product to be recalled can also be a problem. Manufacturers are not required, in most cases, to put date codes or other distinguishing marks on their products every time they change them. Thus they often cannot tell the Commission at what point in a product's production it presented a risk, and at what point the problem was fixed (particularly if they fixed the problem before the Commission became aware of it). Because old product can stay on store shelves for quite a while and be intermingled with newer versions of the same product, this presents problems for retailers and the Commission staff in identifying which products in stores are subject to the recall. I believe the law should put the burden squarely on the manufacturer/importer/distributor to make sure the products are marked (production date codes, for example) so that problem products can be readily distinguished by everyone (including the consumer who has the product in his home). If Commission staff is unable to clearly distinguish between products that should be covered by a recall and those that should not, then that should result in the recall of all similar products made by that manufacturer. The Commission should not have to guess (or test) every possible permutation of a particular product to determine if it has been remedied (although we certainly should test the alleged 'fix' to make sure that the hazard has indeed been eliminated). A company that misrepresents the scope of the products affected by a recall should be subject to a penalty. In fact, a company that knowingly misrepresents any material fact in a recall investigation that delays or otherwise hinders the agency's ability to promptly initiate an effective recall should be subject to penalties by the Commission." My proposal assumed that the manufacturer was identifiable. Congress took my proposal a step further by making sure that the manufacturer or private labeler of the product could be identified as well as the location of where the product was made. The Act's provision also requires not just marking the product, but marking the product's packaging as well, realizing that retailers need an easy way to identify products whose markings may be covered by their packaging.

I believe section 103(a) as written by Congress has an additional purpose beyond the recall setting. When problems begin to surface: publicly about products made in a particular part of the world, whether there has been a recall of any of the products or not, many consumers will want to know where those products are being made so they can exercise caution in their purchasing decisions. We certainly see this in the food industry and we saw it with toys during the period when many toys were being recalled due to excessive lead in paint. Consumers were not simply avoiding the products recalled or the products made by a company who had a recalled product, they were avoiding any toys made in that particular part of the world. There can be regional variations within a country as to manufacturing processes, which is why I think the statutory provision does not simply require the name of the country where the product was manufactured, but requires "the location ... of production of the product." The Commission has interpreted this to mean not only the country but also the city and the state or other administrative unit in which the city is located. The city of production may be a piece of information many manufacturers do not already mark on their products. The Commission recognizes that it may take some time for manufacturers to add this information and will not penalize companies as they work to bring their products and packaging into compliance as long as they are making good faith efforts to comply in a reasonable fashion with the provision. As the Commission's guidance indicat1es, many manufacturers already comply with most, if not all of the requirements in section l03(a).. A number of commenters took the section title too literally and assumed that the word "label'" meant that the distinguishing marks all had to be in one spot on the product and on the packaging. The Commission does not read the provision that narrowly. In an ideal world, such a requirement would be helpful in locating the information, but in the practical world of children's product manufacturing, where the size of manufacturers and the types of products and the styles of packaging available is all so varied, uniform compliance with such a provision would be extremely difficult. It could also, as some commenters pointed out, require a substantial reworking of their products and packaging. The Commission's interpretive guidance is meant to minimize disruption of manufacturing practices while still holding manufacturers responsible for a good faith compliance with the law. We recognize it may take time for smaller manufacturers to figure out how best to comply with marking requirements and the record keeping that will be the underpinning for making the information required by the marks "ascertainable." The Commission will shortly be posting answers to additional Frequently Asked Questions (FAQs) about the marking required by this section. The Commission will continue to update the FAQs and use other means to make the latest information available to manufacturers about the application of this section of the CPSIA. A related provision is section 19(a)(13) of the CPSA (as amended by the CPSIA). It is now unlawful for any person to misrepresent the scope of consumer products subject to a recall. This is not intended to snare the innocent manufacturer who misjudges the extent to which a product hazard applies to his product line and corrects that misjudgment as soon as it is discovered. However, manufacturers who knowingly seek to obscure how much of their products should be subject to a recall would be subject to a penalty. Similarly those who fail to keep the information required by the tracking label provision and then seek to limit the scope of a recall of their product without reference to good production data will not find a very sympathetic ear at the Commission. The Commission also understands that a number of manufacturers have already taken steps to be in compliance with the marking provision as they understand it. They are to be commended for their diligence and will not be penalized for having guessed wrong as to how the Commission would ultimately interpret the section.

STATEMENT OF COMMISSIONER NANCY NORD ON TRACKING LABELS GUIDANCE

Today the Commission is issuing guidance on the tracking label requirement in Section 103(a) of the Consumer Product Safety Improvements Act ("CPSIA"). The policy statement tries to address issues and concerns raised during the extensive public comment process we conducted over the past seven months to educate ourselves about the impact of this requirement on product sellers and how it will actually work to improve quality assurance and, by extension, recall effectiveness.

It is important to note that the guidance issued today probably will not be the last word on this important issue. We realize that all the issues presented by Section 103(a) cannot be addressed by this document. Recognizing the concern that this provision has caused, I emphasize that the agency initially will be looking for "good faith" compliance in the context of a recall. As companies gain experience in implementing this provision, we encourage them to bring to our attention any need for additional guidance to make this provision work better to achieve its objective.

Unfortunately, the CPSIA does not give the agency the flexibility to phase in the requirements, for example, by first addressing high value products with long useful lives and a history of recall issues. Applying lessons learned, we ideally could then have tailored the requirement to additional products. I discussed these concerns in my statement of May 13,2009. We have tried to minimize the burdens imposed on all childrens' product manufacturers through this policy statement while we stay focused on how to improve recall effectiveness.

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