Like Motherhood and Apple Pie: Consumers Union Survey and the Push to Reform the Consumer Product Safety Improvement Act

On February 16, Consumers Union released the results of a new national telephone poll on product safety issues, sending it to members of Congress as they prepared for a hearing the following day by the House Energy and Commerce Committee's Subcommittee on Commerce, Manufacturing and Trade on the Consumer Product Safety Improvement Act (CPSIA) and Consumer Product Safety Commission's (CPSC) resources. According to the poll, the "vast majority of consumers (98%) agreed strongly or somewhat that the federal government should play a prominent role in improving product safety." That conclusion was based on the results of several questions, such as: 95% agreed that "the federal government should require testing by manufacturers of children's products like jewelry, pacifiers, and toys to ensure they do not contain any harmful substances." 94% agreed that "the federal government should require testing by manufacturers of products like baby carriers or slings, cribs, and strollers to ensure their safety." 91% agreed that the federal government should set safety standards for all children's products. 82% said they were interested in the ability to access a database maintained by the government where people can report and search safety problems with consumer products. The survey results indicating strong public support for federal government involvement in consumer product safety issues was released in the midst of an ongoing debate about the challenges the CPSIA-mandated product safety requirements and initiatives are posing to industry, including increased testing, reengineering and administrative costs that can cripple companies or drive them out of business, and the prospect of defending their products' reputations after CPSC launches a public database of unconfirmed consumer complaints on March 11. At the February 17 hearing (testimony and video), CPSC Commissioner Anne M. Northup, industry representatives and members of Congress raised such issues and advocated revision or repeal of, or exemptions from, various requirements and initiatives, including: Repealing the requirement that manufacturers of children's products have their products tested at accredited third-party testing labs and certify compliance with federal consumer product safety standards; limiting the third-party testing and certification requirement to products intended for children 6 years and younger instead of the current 12 years and younger; or allowing exemptions for small manufacturers from such requirement; Revising the lead standard to allow exclusions for products or substances from which a small amount of lead can be absorbed by the human body (the statute as currently written and interpreted by CPSC does not allow for such exclusions if any amount of lead, no matter how little, can be absorbed through "normal and reasonably foreseeable use and abuse" of the product by a child); Repealing, defunding, or restricting the scope of complaints in the Public Database; or requiring CPSC to revise its regulations concerning the Public Database(e.g., to ensure that the information contained in a report of harm submitted to the Database is verifiable and that CPSC has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is published in the Public Database). CPSC Chairman Inez Tenenbaum, on the other hand, defended the testing and certification requirement, lead content standard and Public Database provision of the CPSIA, while acknowledging that some changes were needed (e.g., targeted relief for small manufacturers and crafters from the testing and certification requirement, and allowing lead in the substrate of children's products where it has a functional purpose and "absolutely has to be in a children's product."). She described the proposal for risk-based exclusions from the lead content rule as "seriously ill-advised," however, pointing to widespread agreement in the scientific community that there is no safe level of lead. An attempt to roll back provisions of the CPSIA has also been a part of the debate over the FY2011 budget, as Congress has battled over what and how much to cut from the federal budget. Rep. Mike Pompeo (R-KS) offered three amendments to the House's proposed continuing resolution on the budget (H.R. 1) aimed at the CPSIA: (1) to defund the Public Database; (2) to eliminate the third-party testing and certification requirement for children's products; and (3) to eliminate the requirement for testing to ensure ongoing compliance with children's product safety standards. On the heels of the release of the Consumers Union poll results and the Subcommittee hearing, in the wee hours of February 19, the House adopted the amendment to defund the Public Database on a 234-187 vote. In a reversal of fortune, however, a two-week continuing resolution passed by the House on March 1 (H.J.Res. 44), and passed by the Senate and signed by the President on March 2, did not include the amendment, so it appears that the Public Database will be launched on March 11 as scheduled. The budget negotiations are continuing, however, and the Senate is scheduled to resume consideration of H.R. 1 today, so the Public Database may yet be affected as the budget is hammered out. And, industry's battle for relief from the testing and certification requirements and the lead content standard are likely to continue – Jennifer Karmonick

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