CPSIA Update: CPSC Letter Makes It a Good Day for Cause of Reform

By March 21, 2009General, Regulations

In a letter Friday to Rep. John Dingell (D-MI), the Consumer Product Safety Commission provided a detailed critique of the Consumer Product Safety Implementation Act, acknowledging the serious costs and obstacles the CPSIA has caused manufacturers, retailers and consumers. Every page carries a damning fact. Implementation of the law has “severely overstretched” the CPSC’s staff and resources, according to the commission, and the law itself is the source of the problems.

The CPSC’s frank assessment of the law’s burdens represents a clear justification for action by Congress. Congress simply can no longer pretend the disaster of the CPSIA is just a problem of agency implementation or a confused public.

The 20-page report carries extra weight because it comes from the agency’s top professional staff, whom Acting Commission Chairman Nancy Nord asked to respond to a March 4th letter from Dingell, a key subcommittee chairman of the House Energy and Commerce Committee. Nord, a Bush appointee, has been under fire from some Congressional critics and “consumer” groups, and she obviously realized having the career staff attest to the law’s many harmful results would remove any taint of politics. [For more on the bureaucratic/political dynamics of the commission, see this later post.]

Rep. Dingell’s questions covered all the major issues the public has been protesting: the high cost of product testing, extraordinarily broad definitions that cast too wide of a regulatory net, the lead limits that have no relationship to risk, the definition of children’s products as affecting kids as old as 12, and the law’s retroactive impact on already manufactured goods. There are discussions of ATVs, thrift store sales, and the handling of pre-1985 children’s books.

The many deadlines are unrealistic for both the public and the CPSC, the commission argues. One concludes that the law has no connection to its supposed raison d’etre — the minimizing of risks to children.

As with any regulatory agency, CPSC’s safety work must be prioritized to deal with the most significant risk; however, the deadlines mandated in the CPSIA have jeopardized our ability to meet Commission priorities and proven to be too much for a relatively small agency to handle all at once. Timely implementation is important, but the flexibility to prioritize our work to deal with the serious risks is equally important to maximize effectiveness and do the greatest good with the resources that we have been given.

What’s to be done? The CPSC’s staff recommends many things the NAM has called for, including the ability to provide product exemptions and extended deadlines.

There was really no excuse for Congressional inaction to begin with, but now the record explains in great, authoritative detail the terrible damage being caused by Congress’ refusal to act. Thanks to Congressman Dingell, Commissioner North and the CPSC’s professional staff for getting us to this point — finally.

From the CPSC conclusion:

In our view, we have been confronted with three major issues in implementing the CPSIA: (1) the retroactive application of requirements to inventory; (2) the broad reach of the legislative mandates given that “children’s product” is defined as a product for children 12 years of age or younger; and (3) the impact of the new testing and certification requirements for all consumer products and the third-party testing requirements for children’s products. You have asked us to consider possible solutions to the problems raised in the letter, and our best recommendations as to productive solutions recognize that there are ultimately policy decisions for others to make. We concluded that the following three changes would resolve many of the major difficulties identified above:

·         Limit the applicability of new requirements to products manufactured after the effective date, except in circumstances where the Commission decides that the exposure to a product presents a health and safety risk to children.

·         Lower the age limit used in the definition of children’s products to better reflect exposure and give the CPSC discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to young ones in the same household.

·         Allow the CPSC to address certification, tracking labels and other issues on a product class or other logical basis, using risk-assessment methodologies to establish need, priorities and a phase-in schedule.

As discussed above, there are many ways to address the challenges of implementation and meet the important goals of the statute. Regardless of the path chosen, some legislative changes would be helpful to allow the agency to set risk-based priorities given the finite resources available to the Commission.

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