House Hears Testimony on Draft Legislation to Amend CPSIA

(The draft legislation has not been released; however, an April 21, 2010 version was posted on Commissioner Northup’s blog and is available below. See ITT’s Online Archives or 03/26/10 news, (Ref: 10032605), for BP summary of a previous version of the draft legislation.)

The following are highlights of the testimony and subcommittee member statements.

Draft Legislation Generally Helpful, But Improvements Suggested

There was general agreement among witnesses² that the CPSEA legislation being considered by the subcommittee would be helpful in resolving some of the unintended consequences of the CPSIA, though most suggested further improvements.

Lead content exemption. Under the draft CPSEA, a three prong test³ would have to be met in order for the Consumer Product Safety Commission (CPSC) to grant a “functional purpose exception” to the CPSIA lead content limits. In general, those testifying appreciated that at least some attempt was being made to provide for a meaningful exception to the CPSIA lead content limits, though there were still several who thought the exception was still too restrictive to be helpful.

Phthalates limits. All of those present testified in favor of limiting the CPSIA phthalates limits only to accessible parts of children’s products, as provided for in the draft CPSEA.

Prospective 100 ppm limit. All expressed support for the draft bill’s provision that would apply the upcoming 100 parts per million lead content limit in children’s products (if determined feasible by CPSC), only to products manufactured on or after August 14, 2011. This means that the upcoming limit would not apply to products sold from inventory and store shelves that were manufactured before August 14, 2011.

Certain CPSEA Language Too Ambiguous

A majority of the witnesses and some of the subcommittee members stated that certain terms used in the draft legislation were too ambiguous. The terms that were repeatedly cited as being ambiguous and needing further clarification either in the bill itself or the report accompanying the bill were:

• No ‘measurable’ adverse effect. Many felt that the term ‘measurable’ used in the 3-prong test for a lead content exclusion was too ambiguous: “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.”
• Not practicable. Many also thought the term ‘not practicable’ in another part of the three prong test was too ambiguous: “the product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, component part, or material in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible.”
• Alternative testing. The draft bill would also allow CPSC to provide, by regulation, alternative testing requirements for small batch manufacturers. The draft states that any such alternative requirements would have to provide for reasonable testing methods to assure compliance with the relevant consumer product safety standards. However, as no further details are given, some thought this was too ambiguous.

Debate Over Role of Risk Assessment at CPSC

There was also debate over the appropriate role of risk assessment in CPSC’s oversight of consumer products. There were those that felt the CPSIA has robbed the agency of its traditional risk assessment role and ignored its ability to base its decisions on risk. There were also those who felt that the agency had failed when it was allowed to base its determinations on assessment of risks.

¹The House Energy and Commerce Committee’s Subcommittee on Commerce, Trade, and Consumer Protection

²Witnesses included: Rosario Palmieri, Vice President for Infrastructure, Legal, and Regulatory Policy, National Association of Manufacturers; Paul Vitrano, General Counsel, Motorcycle Industry Council; Jim Gibbons, President and Chief Executive Officer, Goodwill Industries International; Dan Marshall, Handmade Toy Alliance; Rachel Weintraub, Director of Product Safety and Senior Counsel, Consumer Federation of America; Steve Levy, American Apparel and Footwear Association; and Rick Woldenberg, Chairman, Learning Resources, Inc.

³CPSC, on its own initiative or upon petition by an interested party, would be able to grant an exception to the CPSIA lead content limits for a specific product, material, or component part if CPSC after notice and comment determines that: (1) the product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to remove the excessive lead or make the lead inaccessible; (2) the product, material, or component 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 (3) 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.

(See ITT’s Online Archives or 04/22/10 news, (Ref: 10042260), for BP summary announcing the postponement of the April 21, 2010 markup.)

Hearing information and testimony available at http://energycommerce.house.gov/index.php?option=com_content&view=article&id=1978:hr-the-consumer-product-safety-enhancement-act

Draft CPSEA legislation (dated 04/19/10) available at http://www.learningresources.com/text/pdf/LR/CPSEA_committee_print_4_19_10.pdf