July 17, 2015

Last week, the Commission voted on a staff recommendation to exempt unfinished and untreated trunk wood from the requirement that children’s products made from this material be third-party tested by CPSC-approved laboratories. I, along with my colleague, Commissioner Joseph Mohorovic, joined the other Commissioners in approving this staff recommendation. In addition to his vote on the staff proposal, Commissioner Mohorovic proposed three broad amendments that went well beyond the vote before us. As far as I can tell, he did so without consulting CPSC staff on the technical merits of these amendments, presenting me with the need to make a decision without the insight of staff who possess scientific prowess I do not have. And, as much as I respect my colleague’s concerns for burden reduction, I could not, in good conscience, support his proposal either on procedural or substantive grounds. I shall explain.

Background: In the Consumer Product Safety Improvement Act of 2008 (CPSIA), Congress directed that all children’s products sold in the United States be subject to third-party testing by independent, CPSC-approved laboratories for compliance with the agency’s safety rules.1 Congress did so because it had become outraged by reports of millions of noncompliant children’s products, particularly toys, being imported into the country and insisted on greater scrutiny of these products. As the Commission began implementing the law, we and Congress heard complaints that third-party testing brought significantly increased production costs to a number of small businesses.

In response, Congress, in 2011, enacted P.L. 112-28, a law that directed the Commission to seek ways to reduce the burdens of third-party testing with, however, one important caveat: any burden reduction must be “consistent with assuring compliance with [CPSC’s safety rules].”2
I note that even before Congress enacted P.L. 112-28, the Commission had taken significant steps to address the costs associated with third-party testing. For example, in 2009, the Commission had officially determined that ten broad product categories would never violate our rules limiting lead in children’s products.3 In addition, the Commission took other burden reduction steps, including a rule permitting finished product certifiers to rely on component part testing by other parties to meet the requirements of third-party testing and certification.4

Implementing P.L. 112-28: Once P.L. 112-28 became law, the Commission began exploring new and broader ways to reduce third-party testing burdens. After soliciting comments from the public and exploring suggestions from across the agency, the Commission staff, in 2012, issued a voluminous report titled “Staff Briefing Package on Consideration of Opportunities to Reduce Third Party Testing Costs Consistent with Assuring the Compliance of Children’s Products”5 that explored numerous possible approaches. I think it fair to say that staff’s exhaustive analysis demonstrated the difficulties of producing significant burden reduction while preserving compliance with CPSC safety rules. Despite their best effort, staff’s review produced almost no candidates for immediate implementation. Moreover, most of their proposals required further investigation and resource expenditures, some quite expensive.6

Given this reality, the Commission has, nonetheless, proceeded in a determined manner – with strong encouragement from many members of Congress – to explore the possibilities for additional burden reduction measures. The proposal on untreated and unfinished trunk wood is one of several proposals that staff has explored.

Commissioner Mohorovic's Proposals: My colleague recommended adding three amendments to the staff’s proposal: (i) to allow manufacturers and importers to test and certify their products to certain international toy standards, ISO 8124 or EN-71, in place of testing them to the Commission’s mandatory toy standard, which I shall refer to as ASTM F-963, (ii) to create a de minimis exemption from third-party testing for lead, heavy metals, and phthalates for any material that makes up less than 10 mg of a children’s product, and (iii) to extend CPSC’s determinations regarding lead in various materials to the other seven heavy elements listed in ASTM F-963.

In offering these amendments, my colleague argued that they are “well-supported by the evidence in hand and are well within our statutory authority to implement immediately.”7 If only. Regrettably, as H.L. Mencken wrote, “… there is always a well-known solution to every human problem – neat, plausible, and wrong.” As much as I would like to support my colleague’s proposals, I cannot do so because the evidence I see fails to make the case he believes he has made.

Before I discuss my substantive disagreement with my colleague, I note the irregular protocol he followed in offering his amendments. In the typical Commission vote, agenda items are placed before the Commission by majority vote of the Commissioners in advance of their consideration. More importantly, matters of a complex nature typically have been examined by CPSC’s scientific staff to provide the necessary technical analysis for the Commission to make a reasoned decision. Regrettably, that did not happen with my colleague’s amendments, so we were forced to consider them without any staff technical input. To me, he has advanced his case without significant proof – not something that a data-driven agency should be doing.

Mohorovic Amendment #1: As stated, this amendment proposes to allow manufacturers and importers to test and certify their products to ISO 8124 or EN-71 in place of testing them under ASTM F-963.
This is a very substantive and serious proposal – one that the Commission staff has considered for many months. Unlike Commissioner Mohorovic, however, staff has not concluded that this proposal merits approval. To the contrary, as I understand it, CPSC staff regards such a proposal quite skeptically. Every analysis of which I am aware has pointed to substantial differences in testing, standards, and scope among these different toy standards. From time to time, I have heard suggestions that certain subparts of the standards might be determined to be equivalent, but no CPSC technical staff expert has endorsed a broad determination of equivalency.

At the very least, before I could seriously entertain my colleague’s proposal, I would need to see a staff briefing package that carefully and methodically walked through the different standards and identified the differences and similarities in such a manner as to permit a carefully reasoned decision. In addition, I note several other concerns that should be addressed before such a bold regulatory step is taken:

  •  Would such an approach promote a “lowest common denominator” strategy to toy safety because manufacturers opted to market products that met the least stringent of the three standards?
  • Would this approach undermine upgrades to ASTM F-963 since manufacturers could simply opt out of incorporating improvements to F-963 and rely on weaker, unchanged international standards?
  • Would this approach require CPSC staff to test to three different toy standards depending on which one a manufacturer adopted, thereby imposing considerable extra costs and time delays on CPSC staff?
  • Would this approach require substantial additional effort by CPSC staff in accrediting labs to test for these other international standards?
  • Would this approach make CPSC enforcement more difficult because it would require Compliance staff to test to other standards not controlled or interpreted by CPSC staff?

I would need satisfactory answers to all of these questions before I could support my colleague’s proposal.

Mohorovic Amendment #2: This amendment would create a de minimis exception for testing lead, heavy metals, and phthalates by exempting from third-party testing any material in a product that makes up less than 10 mg of the product. As explained by Commissioner Mohorovic, his proposal would exempt manufacturers from third-party testing, not from complying with existing restrictions on these potentially hazardous materials. He concedes that this approach might increase the odds of noncompliant products, but insists that it would not increase the odds of harmful products entering the market.

At the outset, along with Commissioner Mohorovic, I note that F-963 already contains a de minimis exemption from third-party testing for heavy elements other than lead where less than 10 mg of a sample is available.8 So, no Commission action or vote is necessary to grant this portion of Commissioner Mohorovic’s amendment.9

With respect to the other chemicals my colleague proposes to include in his amendment, I find myself still pondering whether the Commission would have the legal authority to grant his request, whatever its merits. I don’t propose to dwell on this point, but I note, for example, that Congress set very precise statutory limits on the amount of lead that could be present both in paint (and surface coatings) and in product substrates. Given this, one might argue that a de minimis exemption should apply only where it could be demonstrated that less than 10 mg of lead would never violate the statutory limits established by Congress. But, my colleague, correctly in my view, acknowledges that situations might arise where less than 10 mg of lead might still exist in concentrations greater than 100 ppm (or 90 for paint).10

Beyond any legal determination, I have a lingering policy concern. To the extent that a manufacturer produces a noncompliant product, past experience suggests that the manufacturer is also very likely to produce a product that exceeds the safety limits imposed by law. True, as Commissioner Mohorovic argues, the Commission could seize the noncompliant product and bring an enforcement case against the manufacturer for violating the law. But, avoiding this “after the fact” action is what third-party testing is expressly designed to do. In other words, my colleague would return to a pre-CPSIA world that Congress has rejected.

Finally, I cannot support my colleague’s amendment because of my ongoing objection that he has failed to obtain CPSC technical staff’s input on it. Until I have heard from these experts, I cannot fully assess his amendment.

Mohorovic Amendment #3:  This amendment would extend CPSC’s determinations regarding lead in various materials to the other seven heavy metals described in ASTM F-963. I can think of no clearer example than this amendment to show why I find it difficult to agree with my colleague’s proposals. Had he sought CPSC staff’s input, he would have seen that there is little scientific or technical justification for this proposal. To the contrary, his amendment ignores the clear finding of CPSC’s contractor, Technology Excellence for Risk Assessment (TERA), that a “no test needed” determination could not be made for materials like bamboo, beeswax, cotton, wool, linen, or silk. In fact, TERA’s study reveals that some cotton products have been found that exceed F-963’s limits on arsenic and chromium. Similarly, some wool products have been found that exceed F-963’s limits on arsenic. Moreover, for most of the other products under consideration for possible “no test needed” determinations, TERA concluded that insufficient data exist to make a judgment one way or another.

In short, were the Commission to have adopted Commissioner Mohorovic’s proposal, we would have ignored the CPSIA’s mandate to reduce third-party testing burdens only where consistent with assuring compliance with CPSC safety rules. That is not something a conscientious data-driven safety agency should do.

Conclusion: No one can fault my colleague’s push to expand burden reduction measures to assist the small firms that face increased testing costs. I applaud his efforts and wish to work with him on the issue. As much as I admire his desire for quicker action on burden reduction, I cannot support his proposals without seeing greater technical support for them.

1 Section 102 of the Consumer Product Safety Improvement Act (CPSIA), 15 USC §2063(a)(2).

2 Section 2(a)(3), Public Law 112-28 (Aug. 12, 2011), 15 USC § 2063 (i)(3) (authorizing the Commission “to prescribe new or revised third party testing regulations if it determines that such regulations will reduce third party testing costs consistent with assuring compliance with the applicable consumer product safety rules, bans, standards, and regulations”).

3 16 CFR §1500.91 (exempting, among others, pure wood, paper and other similar products made from cellulosic fiber, CMYK ink printing processes for paper, certain precious and semi-precious gemstones, pearls, certain natural and synthetic textiles, such as cottons, wools, and polyesters, certain plant-derived and animal-derived materials, such as animal glue, bees wax, seeds, nut shells, flowers, sea shells, leather, and certain stainless steel and precious metals.).

4 The Commission also determined that manufacturers of children’s products otherwise obligated to re-test their products whenever voluntary standards on which they were promulgated changed would not have to re-test their products if they had current test results showing compliance with the previous version of the standard; permitted the ASTM screening test for heavy metals as an option for lead testing rather than require a specific lead test; expanded the use of XRF technology, and greatly expanded our outreach through the CPSC Small Business Ombudsman to assist manufacturers in meeting their obligations for third party testing.

5 Available at https://www.cpsc.gov/PageFiles/129398/reduce3pt.pdf.

6 As staff concluded:
The recommendations [on burden reduction] require additional consideration and the devotion of Commission resources to implement. Some recommendations, if implemented, likely would affect only a few children’s product certifiers, while others potentially would have a broader effect. Some recommendations may, upon further study, be ineffective in reducing manufacturers’ third party costs. Other recommendations may be impracticable.

7 Mohorovic Statement, at 2.

8 See ASTM F-963, (“If there is less than 10 mg of sample available, the test is not performed.”).

9 In passing, I note an issue of concern regarding phthalates that my colleague does not mention. In 2009, the Commission issued a statement of policy on section 108 of the CPSIA in which we listed examples of products that do not normally contain phthalates and, therefore, might not require testing and certification. Among them were unfinished metal natural wood and textiles made from common synthetic fibers, such as polyester, acrylic and nylon. In addition, we listed other materials such as polyethylene and silicone rubber not necessarily requiring testing and certification. See https://www.cpsc.gov/PageFiles/126588/componenttestingpolicy.pdf. In 2011, however, the Commission published a Notice of Requirements for Laboratories on Phthalates in which we exempted from testing many of the same materials in our Statement of Policy, but left out fibers such as polyester and materials such as silicone rubber. See https://www.cpsc.gov/PageFiles/77832/tpphthal.txt. The question arises, therefore, whether a small manufacturer could include such materials without testing and certification – a matter not clear to me. My point is that before looking for new exemptions such as suggested by my colleague, I would prefer to clarify our current ones.

10 My reservation would also extend to a de minimis exemption for phthalates.