<DOC>
[110th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:45181.wais]
COMPREHENSIVE CHILDREN'S PRODUCT SAFETY COMMISSION REFORM LEGISLATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COMMERCE, TRADE,
AND CONSUMER PROTECTION
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 6, 2007
__________
Serial No. 110-75
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
----------
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COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York J. DENNIS HASTERT, Illinois
FRANK PALLONE, Jr., New Jersey FRED UPTON, Michigan
BART GORDON, Tennessee CLIFF STEARNS, Florida
BOBBY L. RUSH, Illinois NATHAN DEAL, Georgia
ANNA G. ESHOO, California ED WHITFIELD, Kentucky
BART STUPAK, Michigan BARBARA CUBIN, Wyoming
ELIOT L. ENGEL, New York JOHN SHIMKUS, Illinois
ALBERT R. WYNN, Maryland HEATHER WILSON, New Mexico
GENE GREEN, Texas JOHN B. SHADEGG, Arizona
DIANA DeGETTE, Colorado CHARLES W. ``CHIP'' PICKERING,
Vice Chairman Mississippi
LOIS CAPPS, California VITO FOSSELLA, New York
MIKE DOYLE, Pennsylvania STEVE BUYER, Indiana
JANE HARMAN, California GEORGE RADANOVICH, California
TOM ALLEN, Maine JOSEPH R. PITTS, Pennsylvania
JAN SCHAKOWSKY, Illinois MARY BONO, California
HILDA L. SOLIS, California GREG WALDEN, Oregon
CHARLES A. GONZALEZ, Texas LEE TERRY, Nebraska
JAY INSLEE, Washington MIKE FERGUSON, New Jersey
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York TIM MURPHY, Pennsylvania
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
Bud Albright, Minority Staff Director
(ii)
Subcommittee on Commerce, Trade, and Consumer Protection
BOBBY L. RUSH, Illinois, Chairman
JAN SCHAKOWSKY, Illinois CLIFF STEARNS, Florida,
G.K. BUTTERFIELD, Georgia Ranking Member
JOHN BARROW, Georgia J. DENNIS HASTERT, Illinois
BARON P. HILL, Indiana ED WHITFIELD, Kentucky
EDWARD J. MARKEY, Massachusetts CHARLES W. ``CHIP'' PICKERING,
RICK BOUCHER, Virginia Mississippi
EDOLPHUS TOWNS, New York VITO FOSSELLA, New York
DIANA DeGETTE, Colorado GEORGE RADANOVICH, California
CHARLES A. GONZALEZ, Texas JOSEPH R. PITTS, Pennsylvania
MIKE ROSS, Arkansas MARY BONO, California
DARLENE HOOLEY, Oregon LEE TERRY, Nebraska
ANTHONY D. WEINER, New York SUE WILKINS MYRICK, North Carolina
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
CHARLIE MELANCON, Louisiana MARSHA BLACKBURN, Tennessee
C O N T E N T S
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Page
Hon. Bobby L. Rush, a Representative in Congress from the State
of Illinois, opening statement................................. 1
Hon. Cliff Stearns, a Representative in Congress from the State
of Florida, opening statement.................................. 3
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, opening statement................................. 4
Hon. Michael C. Burgess, a Representative in Congress from the
State of Texas, opening statement.............................. 6
Hon. Jan Schakowsky, a Representative in Congress from the State
of Illinois, opening statement................................. 8
Hon. Joe Barton, a Representative in Congress from the State of
Texas, opening statement....................................... 9
Hon. John Barrow, a Representative in Congress from the State of
Georgia, opening statement..................................... 11
Hon. Marsha Blackburn, a Representative in Congress from the
State of Tennessee, opening statement.......................... 13
Hon. Edward J. Markey, a Representative in Congress from the
State of Massachusetts, opening statement...................... 14
Hon. Diana DeGette, a Representative in Congress from the State
of Colorado, opening statement................................. 15
Hon. Darlene Hooley, a Representative in Congress from the State
of Oregon, opening statement................................... 17
Hon. Vito Fossella, a Representative in Congress from the State
of New York, submitted statement............................... 18
Witnesses
Nancy Nord, Acting Chairman, Consumer Product Safety Commission.. 19
Prepared statement........................................... 21
Answers to submitted questions............................... 109
Thomas H. Moore, Commissioner, Consumer Product Safety Commission 23
Prepared statement........................................... 24
Letter of November 12, 2007 to Messrs. Dingell and Barton.... 114
Kathrin Belliveau, director, product safety and regulatory
affairs, Hasbro, Incorporated.................................. 51
Prepared statement........................................... 52
Dana Best, M.D., American Academy of Pediatrics.................. 54
Prepared statement........................................... 55
Lane Hallenbeck, vice president, accreditation services, American
National Standards Institute................................... 56
Prepared statement........................................... 58
Alan Korn, director, public policy, and general counsel, Safe
Kids Worldwide................................................. 63
Prepared statement........................................... 66
Joseph McGuire, president, Association of Home Appliance
Manufacturers.................................................. 75
Prepared statement........................................... 77
Rachel Weintraub, director, product safety, and senior counsel,
Consumer Federation of America................................. 82
Prepared statement........................................... 84
COMPREHENSIVE CHILDREN'S PRODUCT SAFETY COMMISSION REFORM LEGISLATION
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TUESDAY, NOVEMBER 6, 2007
House of Representatives,
Subcommittee on Commerce, Trade
and Consumer Protection,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:15 a.m., in
room 2123, Rayburn House Office Building, Hon. Bobby L. Rush
(chairman) presiding.
Present: Representatives Schakowsky, Barrow, Markey,
DeGette, Gonzalez, Ross, Hooley, Matheson, Dingell, Stearns,
Radnovich, Pitts, Burgess, Blackburn, and Barton.
Staff present: Consuela Washington, Christian Fjeld, Judith
Bailey, Andrew Woelfling, Valerie Baron, Brian McCullough
Shannon Weinberg, Will Carty, and Chad Grant.
OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Rush. The subcommittee will come to order.
The Chair recognizes himself for 5 minutes of opening
statements.
On May 15 of this year, before the numerous high-profile
summer recalls of millions of lead-tainted toys, this committee
held its first hearing on children's safety and the Consumer
Product Safety Commission. At the conclusion of that May
hearing, I publicly made a pledge, as chairman of the
subcommittee of jurisdiction, to reauthorize the beleaguered
Commission by authorizing more resources and reforming the
underlying organic statute. I also pledged to do so in a
bipartisan manner.
The bill that is the subject of our legislative hearing
today is the product of that pledge that I made almost 6 months
ago. H.R. 4040, the Consumer Product Safety Modernization Act
of 2007, was introduced by Chairman Dingell, Ranking Member
Barton, Ranking Member Stearns and myself.
It is a bipartisan piece of legislation that authorizes
desperately needed resources to the Commission and dramatically
reforms the Consumer Product Safety Act. After decades of
neglect, this bill restores the CPSC to its rightful place of
prominence and gives it the necessary tools to grapple with the
global marketplace and protect American consumers, particularly
our children, from dangerous and defective products.
The bill has two titles. Title 1 specifically addresses
children's products. It bans lead in toys beyond a trace amount
and significantly lowers the antiquated lead paint standard.
Moreover, it requires independent, third-party testing for lead
in children's products for ages 12 and younger. For products
geared toward children 6 and under, the bill requires
independent testing for all mandatory standards.
In addition, title 1 incorporates the provisions of H.R.
1699, the Danny Keysar Child Product Safety Notification Act,
introduced by the vice chair of the subcommittee, Ms. Jan
Schakowsky of Illinois, and further requires a directed
rulemaking for mandatory safety standards for 12 specified
durable nursery products, thus subjecting those products to the
independent, third-party testing requirement.
Title 2 of H.R. 4040 overhauls the CPSC itself. In addition
to authorizing significantly more resources, our bipartisan
bill restores the agency to its full panel of five
commissioners within 3 years. Title 2 also accelerates and
strengthens the CPSC's reporting requirements to the public and
streamlines its rulemaking process in order to facilitate quick
regulatory action.
Title 2 declares a flat prohibition on the sale of recalled
products and expedites corrective action plans while
maintaining the Commission as the ultimate authority to veto
any corporate remedy that is not in the best interest of the
consumers.
Moreover, title 2 effectively prohibits the export of
defective products from our own country and authorizes the
Commission to share and receive information from foreign
governments in order to coordinate our global consumer-
protection efforts.
Lastly, the bipartisan bill also raises the penalty cap in
order to punish wrongdoers who flout the law, a provision that
has already passed the full House of Representatives as a
stand-alone bill.
I want to emphasize to the members of the subcommittee that
this bill represents the beginning of the process--I said the
beginning of the process--and not the end. Today's legislative
hearing will allow each member of the subcommittee to evaluate
the bill's strengths as well as areas for improvements.
Chairman Dingell and I fully intend to move this bill and
proceed by regular order from subcommittee to full committee to
the floor, in order to give every member of the committee an
opportunity to make his or her mark on the final version of the
legislative product.
In short, this is a work in progress, and we value the
input from all members of the committee.
Having said that, it is my sincere hope that all members
and all stakeholders' groups will recognize and respect the
bipartisan nature of the bill. It is obvious that we are not
all going to agree on every provision that is in or not in this
piece of legislation. However, I am convinced that if we all
continue to work together in good faith and in full bipartisan
cooperation, if both sides strive to compromise and find common
ground, we will produce a final legislative package of which we
can all be proud.
With that, I want to welcome all of our witnesses who have
agreed to appear before us today. Many of them are familiar
faces. And I look forward to their testimony and our
deliberation.
And I yield back the balance of my time.
The Chair now recognizes the ranking member of the
subcommittee, Mr. Stearns, for 5 minutes.
OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Stearns. Good morning. And thank you, Mr. Chairman, and
thank you for your leadership on this, and Mr. Barton of Texas
and Mr. Dingell.
This bill represents what we can do together. It is a
strong piece of legislation, and that is why we are here today.
I am certain there is, obviously, as you pointed out, some room
for improvement, but we can do that in the regular legislative
process, which is what we are trying to do here.
We want to receive inputs from all people, comments on the
impact of this legislation on stakeholders and those who will
have to operate under the new burdens we place on them,
including the Consumer Product Safety Commission and the
industry. Although we have had input from their staff while we
were drafting this legislation, I look forward to their
comments after seeing the final bill as it is introduced, and
whether they think the provisions that we sort of brought to
optimum level, and provided increased language, accurately and
efficiently reflect and address the safety issues of concern by
all of us.
My colleagues, 6 months ago we sat in this hearing room and
began our discussions of children's product safety. The four
bills we passed out of this committee have already passed the
House. While we agreed to address those specific issues, a
piecemeal approach is really just a Band-Aid.
Neither Congress and, more importantly, the Commission is
equipped to legislate and mandate rules on every consumer
product. This is an impossible and counterproductive exercise.
With a few exceptions, H.R. 4040 provides all of the components
necessary to improve product safety, and children's product
safety in particular, without having to mandate standards on a
product-by-product basis.
The bill updates the lead safety standards for paint and
effectively bans children's products containing lead. Second,
it receives independent testing to make sure that all
applicable safety standards are met for children's products. It
directs the CPSC to either establish an accreditation process
for labs or recognize an accreditation process that provides
for lab integrity and standardized testing procedures.
Given the testing requirements many retail organizations
and manufacturers have imposed, I have questions how these new
mandates will affect those efforts, as well as the efficiency
of such a testing requirement.
The Commission has performed admirably in response to the
record number of recalls for fiscal year 2007 with its current
staff and budget. We are about to ask a lot more of them.
Therefore, the bill also authorizes a funding boost for CPSC
and additional money for much-needed laboratory upgrade.
The bill also preserves the cooperative spirit with which
the Commission and industry work together. This is important.
Thousands and thousands of consumer products are launched in
the market every year. The Commission absolutely could not
perform its duties without industry's voluntary cooperation. We
must ensure that companies continue to notify the CPSC in
advance of even a potential problem, so that we can catch and
remove dangerous products from the market as quick as possible.
We must also ensure that the Commission's resources are
spent where they are most effective, in pursuing its mission of
product safety, and not in a courtroom.
As I mentioned a moment ago, this bill is a product of
excellent bipartisan cooperation, but it also is a product of
cooperation with industry, consumer stakeholders and the
Commission itself. And that is important.
I wanted to commend the commissioners and their staff for
their help in this process.
And I believe Chairwoman Nord's statements regarding the
Senate measure have been misconstrued in the media. I have the
five-page letter in front of me. And, Mr. Chairman, when you
look through, in detail, some of the very careful suggestions
she made--whether it was product certification; talking about
resources; lead in children's products; information disclosure;
relying upon standards; State attorney general parens patriae,
in which somebody goes forward to sue on behalf of
constituents; all these very abstruse comments; whistleblower
protection; penalty cap increase; criminal penalties--all of
this is in her letter. So I call the attention of my colleagues
to read it in its totality.
Her involvement in this process is evident by her
commitment at the Commission and its mission. Through our work
with her, we know that she does not take this mission lightly--
rather, she takes it very seriously--the matter of ensuring
both that the agency receives additional resources and that
those resources will be used where they are most necessary and
most effective.
So, Mr. Chairman, I reiterate my opening remark. This is a
strong bill. And I commend your leadership, and I appreciate
your willingness to work with this side of the aisle so that we
can have an opportunity to participate and get involved.
And I thank you, Mr. Chairman.
Mr. Rush. The Chair now recognizes the chairman of the full
committee for 5 minutes of opening statements, Mr. Dingell.
OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Dingell. Mr. Chairman, I commend you for your vigorous
leadership in this matter. I commend you and thank you for this
hearing. And I note that it is a valuable hearing on a very
important question, H.R. 4040, the Consumer Product Safety
Modernization Act.
This is a bipartisan bill which has been worked out
carefully by yourself, by the distinguished ranking minority
member Mr. Stearns, and by our good friend Mr. Barton, the
ranking member of the full committee, and I. And I want to
commend you, my dear friends, for your collective efforts in
writing this important piece of legislation.
I would point out that this is probably the first major
review legislatively of the CPSC since the original legislation
was written by our good friend John Moss of California way back
and when I had the privilege of working with him to move that
legislation forward.
It has been established in the hearing records of this
subcommittee that the Consumer Product Safety Commission is
hampered both by lack of authority and by lack of resources to
address critical and crucial consumer-protection issues faced
by our citizens. They also face shortage of funds and, very
frankly, a peculiar situation where they are limited to two
members by a legislative process that appears to have served
the Nation poorly.
I believe that H.R. 4040 will go far to alleviate the
problems that we see, as well as to strengthen the CPSC to meet
the responsibilities under its jurisdiction, particularly those
flowing from globalization of trade and some of the
irresponsible trading activities of some of our trading
partners.
I want to welcome our witnesses today, and I look forward
to their testimony. With the larger goal of protecting
consumers and their children in mind, I am interested in the
views of our witnesses on both the implementation of H.R. 4040
and how effective its provisions will be in addressing our
goals for consumer protection.
I will also be interested in hearing about steps other than
these needed to see to it that CPSC can carry forward its high
and important responsibilities. In particular, I hope that our
witnesses will share their insights in certain areas of H.R.
4040, such as: one, the adequacy of the reauthorization for
CPSC and the implications of restoring that agency to a five-
member governing body; two, the advantages of permitting CPSC
to engage in expedited rulemaking; three, whether the proposed
lead standard for products will sufficiently protect children;
four, the feasibility and benefits of mandatory third-party
testing for certain children's products; and five, any
suggestions for means by which the Congress might fund the
reforms put forth by this legislation.
And I would observe that one of the problems at CPSC, Food
and Drug, and other consumer-protection organizations have had
on a continuing basis has been the inadequacy of funding and
the inadequacy of the ability of the agencies to draw the
necessary resources to enable them to carry out their high
statutory responsibilities.
I remain committed to ensuring that the Committee on Energy
and Commerce produces a thoughtful, well-intentioned and
effective bill that will make crucial improvements to the CPSC
and strengthen its ability to protect our Nation's consumers.
I want to observe that we have here before us a bipartisan
bill, which is, I think, very important in terms of ensuring
enactment of the legislation before us. And I am very hopeful
that we will be able to continue on the course on which we have
begun in this regard.
I want to thank my witnesses, and I want to thank my
colleagues who have contributed to the development of H.R.
4040.
And I want to particularly commend you, Mr. Chairman, as I
look forward to its expeditious passage in this legislation
this year under your leadership.
I thank you, and I yield back the balance of my time.
Mr. Rush. The Chair thanks the gentleman.
The Chair now recognizes the gentleman from Texas, Mr.
Burgess.
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. Burgess. Thank you, Mr. Chairman. I want to thank you
and Ranking Member Stearns and commend you both for holding the
hearing today and for the bipartisan nature in the way our
subcommittee has worked on this legislation that is before us
today.
Mr. Chairman, you have heard me say before this committee
has some of the brightest minds, some of the greatest amount of
intellectual firepower in the United States Congress, on both
sides of the dais. When this committee acts in a true
bipartisan spirit, we are able to write meaningful legislation
that will have a significant impact and a positive impact on
the country, not just today but in the decades to come.
Under the leadership of this committee, we have been able
to pass effective bipartisan bills, such as the Melanie Stokes
Postpartum Depression Act, and now hopefully we will have a
similar result with the legislation before us today.
Mr. Chairman, I want to be very clear, I have no quarrel
with the leadership of this committee, either at the
subcommittee or full committee level. But, unfortunately, the
leadership of the House of Representatives has been trying to
run the show in the Energy and Commerce Committee, and that is
wrong. As we all know, the system works best and we have the
most effective legislation when bills are allowed to follow the
regular committee process. And then we all saw what happened on
the State Children's Health Insurance Program. It was not
allowed to go through the normal process, and as a consequence,
the issue of children's health care was turned into a partisan
game. We focused on a year from now, rather than a near-term,
mid-term and long-term strategy, and everyone lost. And, most
tragically, America's children lost in that exchange. And now
all the queen's horses and all the queen's men are trying to
put Humpty Dumpty back together again. And, quite frankly, the
process has become unnecessarily messy.
Mr. Chairman, I understand that while leadership wanted to
rush this essential piece of legislation through, we have the
commitment of you and this committee to hold both a
subcommittee and full committee markup. And I thank you for
that. I also understand that you are welcoming members'
amendments, and I thank you for your commitment to this process
and making this good bill an even better bill. I am an original
cosponsor of the bill, and I look forward to working with you
on some of the amendments affecting recalls and nonprofits.
I would also like to thank Chairwoman Nord for coming here
today. I know it is not easy.
Ms. Nord, you and your staff have provided crucial
technical assistance and constructive criticism to this
legislation, and I thank you for your honesty. Because you are
not afraid to speak your mind about your agency's needs, we
have been able to craft legislation that will give the
commission tools to keep Americans safe from unreasonable
dangers in consumer products. Unlike some Members in this
chamber and Members of the other body, I appreciate and I
welcome your honesty.
I thought the Speaker's press conference of last Thursday
was a disgrace to the body and an embarrassment to the
legislative process. I often feel that we have an imperial
speakership that likes to govern by edict. And I thank you for
standing strong in the eye of the storm.
Unfortunately, because you didn't provide the other body
the answers that they wanted, they subsequently attacked you.
And, Ms. Nord, for the record, I have never doubted your
commitment to the safety and welfare of America's families. And
I am thankful you are doing everything you can to seek true
reform for your agency. Thank you for your service. Thank you
for your dedication, and thank you for your commitment to our
country.
Tony Blair once said, the art of leadership is sometimes
saying no; it is too easy to say yes. Ms. Nord, thank you for
being a true leader and for saying no to legislation that you
knew would ultimately be harmful to the country.
Mr. Chairman, I want to simply add that, during the process
of working on this bill and, in fact, working on a bill through
the Oversight and Investigations Subcommittee, I had an
opportunity to introduce stand-alone legislation that would
have allowed the Food and Drug Administration the ability to
stop the importation of a food from a country if the country
were shown to be a serial violator of our country's standards.
And we all know the country we are talking about. We are
talking about the People's Republic of China. It doesn't matter
whether it is food, it doesn't matter whether it is active
ingredients in pharmaceuticals or lead in toys, it all seems to
come from the same place. And I think the Consumer Product
Safety Commission needs that same type of stop button on the
conveyor belt.
We heard from the CEO of a major toy company that they are
continuing to accumulate lead-based toys in their warehouses
because we don't have a stop button on the conveyor belt,
because the orders are in, the product is being shipped, the
recalls are up there, so they can't sell it--I hope. I hope
they can't sell it on eBay; I hope they can't sell it to
bargain houses. And perhaps we ought to investigate that some,
Mr. Chairman.
But nevertheless, Americans would be better served if we
could just simply punch that stop button, halt the conveyor
belt for 30, 60, 90 days, whatever we decide is fair, comply
with all of the World Trade Organization restrictions that we
have to comply with. But let's stop the flow of contaminated
products into this country immediately and then get back to
sorting out where the problems are.
Mr. Chairman, I am going to submit my full statement for
the record. I thank you for your indulgence, and I will yield
back the balance of my time.
Mr. Rush. The Chair now recognizes the gentlelady from
Illinois, Ms. Schakowsky.
OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Ms. Schakowsky. Thank you, Mr. Chairman.
First, I would like to say to the gentleman from Texas, it
is one thing when we all work together to resolve a problem of
the now millions and millions of products that have been
recalled and been found dangerous to our children in the face
of their death and injury. It is another thing when the
chairman of the Commission designated to take care of those
responds to legislation by saying that it would be too
cumbersome to actually adopt the reforms that were suggested,
that whistleblowers--it would provide too much problem for the
agency to take care of, that the penalties would somehow
alienate the industry. And the ones who really came to the
defense of the chairman were the National Association of
Manufacturers, Juvenile Product Manufacturers Association,
National Retail Federation--the very people who have been
selling or making these products that have been hurting our
children.
And so, I think that the Speaker of the House took a
responsible position in saying what she did, that if we are
going to protect our children, then we need to have the kind of
leadership that will embrace the kind of reforms that we need
and not raise excuses for not accepting them.
I want to thank you, Mr. Chairman and Ranking Member
Stearns, for your leadership on this issue and for holding this
hearing.
About 6 months ago, the subcommittee began a series of
hearings on how to protect our children from the recent scourge
of tainted and imported toys and how to address other
shortcomings and issues in the consumer product safety system.
Today we have begun to draft what I hope will be a broad and
far-reaching and comprehensive reauthorization of the Consumer
Product Safety Act, perhaps our Nation's most important piece
of consumer-protection legislation.
Yesterday, the White House told us that the President said
the American people expect their Government to work tirelessly
to make sure consumer products are safe. I couldn't agree more.
Families across the country should not have to worry that the
toys that their children play with are poisoning them or that
their cribs are killing their babies in the middle of the night
due to a design flaw.
Most Americans assume that the Government is already doing
that work. Seventy five percent of people believe that the
Government conducts premarket testing on children's products,
for example. Just like they trust the Government when a package
of eggs or chicken is marked ``USDA inspected and approved,''
Americans should be able to trust the Government to do more
than outline voluntary standards for an industry that profits
on children, those who are most vulnerable.
I was pleased when the chairman announced that H.R. 4040,
the Consumer Product Safety Modernization Act, would be drafted
in a bipartisan fashion, because there is nothing partisan
about children's safety. I believe that the bill includes a
number of extremely important provisions and that it is time
that we do this. I was glad to see that H.R. 4040 contains an
improved lead prohibition as well as a mandatory third-party
testing and tracking labels for children's products. I was
happy that it includes the Danny Keysar Product Safety
Notification Act, which I had sponsored, requiring
manufacturers to provide consumers with registration cards to
assist in product recalls.
I am glad that 4040 contains similar language to that which
I wrote in H.R. 1698, requiring a broad range of infant and
toddler durable products to be tested and certified according
to specific safety standards before they can be put on the
market. Right now, only full- and half-sized cribs, rattles and
bottles are the only infant and toddler products that require
safety standards.
By requiring the CPSC to establish mandatory standards and
requiring that testing and certification be performed by an
independent third party, this bill goes a long way toward
assuring parents that the products that their infants use are,
indeed, safe.
I hope we will act to strengthen this provision by
including the Infant and Toddler Product Review Panel that H.R.
1698 would have created to advise the Commission regarding
existing guidelines and promulgating new standards. And it
would include representatives of the manufacturers, consumers
groups, independent child product engineers and experts and the
Consumer Product Safety Commission engineers.
I hope we can look at other improvements. We have a long
way to go to strengthen the Consumer Product Safety Act section
6(b) provisions, which still leave far too much power in the
hands of industry to regulate itself. It is essential that we
also address the preemption issue. The health and safety
standards that the CPSC develop should strengthen those States
with weaker laws but should not weaken those with stronger
laws. And finally, I want to make sure we include effective
whistleblower provisions.
Thank you.
Mr. Rush. The Chair recognizes the ranking member of the
full committee, Mr. Barton of Texas.
OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Barton. Thank you, Chairman Rush. I am going to put my
formal statement in the record, but I am going to speak from
the heart and from personal experience about why we are here
today.
I think everybody on the subcommittee knows that I have a
2-year-old son, Jack Kevin Barton. And there are millions of
little Jack Kevin Bartons in the United States, and each of
them is precious to their parents and to their family, just
like Jack is precious to me and my family. And these little
tikes are so inquisitive and they are so adventuresome that you
really have to be smart to keep them safe.
I will give you an example. It is not a toy, but it is the
same principle. Last weekend, my wife had to go run some
errands, and so, while she wasn't sure I was capable of taking
care of Jack by myself, I was given that opportunity, since we
couldn't get a babysitter. And he brought me a bag of microwave
popcorn that had he gotten out of the cupboard. And I was
watching a football game, and so I said, ``No, Jack, your
mother doesn't want to you to have popcorn. Put it back up.''
and he toddles off.
And I am watching the game, and all of a sudden I hear this
``beep, beep, beep'' coming from the kitchen. He had taken the
popcorn back into the kitchen, got a chair, pulled the chair
over to the built-in microwave, which is about 6 feet above the
floor, climbed up on the chair, opened the microwave, put the
popcorn in in the cellophane bag, figured out how to hit the
popcorn button, and pushed the darn button. Now, it was in the
cellophane, and the cellophane started popping and burning. So
I rushed in, and of course he was just proud as punch that he
had figured out how to do microwave popcorn, even though he
didn't know he was supposed to undo the cellophane.
That is what we are up against, is 20 million or 30 million
Jack Kevin Bartons. If they can get a hold of it, they are
going to try to figure out. Now, he has also brought me a
child-proof medicine bottle that he has taken the cap off in
the last 2 weeks, and he was pretty proud that he was able to
do that.
So, whatever we can do to reauthorize the Consumer Product
Safety Commission, which hasn't been done since 1990--and I
want to thank Mr. Rush and Mr. Dingell for making that a
priority, getting the five-member commission, getting them a
new laboratory, setting some new standards for lead, all the
things that Congresswoman Schakowsky talked about, that is a
good thing. That is a good thing, not a bad thing, because we
are protecting youngsters who don't know enough to protect
themselves.
Now, we can't make it a perfect world, and you have to have
parental supervision and we have to have some common sense. But
this bill is a good start. And it is good that we are doing it
in a bipartisan fashion. It is good that we are doing it by
having a legislative hearing at the subcommittee. It is good
that we are going to have a subcommittee markup. It is good
that we are going to have are a full committee markup. By the
time this bill gets to the floor, it will be a better bill. It
is good that we are having all the stakeholders here on the
second panel to give us their comments.
The President of the United States is going to sign
something very similar to this bill. And he is going to do it
because we are working together. We are not bickering; we are
not pointing fingers at each other. And we are all doing it
because each and every one of us has either a son or a daughter
just like Jack Kevin, has a grandson, a granddaughter, a niece,
a nephew, and we care about them.
And this is one of the things that this Congress can take
real pride in when it is done. And I am proud to be an original
cosponsor, and I am proud to be working with every member of
this subcommittee and, ultimately, the full committee to do
this. This is what Congress is all about.
And so, Mr. Chairman, thank you for your leadership. I
thank Mr. Dingell and Mr. Stearns. And I look forward to
hearing our two commissioners and then our stakeholders, and
then we will decide what we need to do to improve the bill.
Mr. Rush. The Chair thanks the gentleman.
OPENING STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
The Chair now recognizes the gentleman from Georgia, Mr.
Barrow.
Mr. Barrow. I thank the Chair and the ranking member for
you all's relentless pursuit of this issue and your willingness
to put behind us the years that the locust have eaten and to
get down to trying to address this problem.
Lincoln said that, ``As our case is new, we have to think
anew.'' and I think we ought to consider a little bit just how
much our case has changed since the Consumer Product Safety
Commission was launched way back in 1973.
Back then, I guess it was probably safe to say that our toy
market was a domestic market. We consumed the toys that we
made. But against that backdrop of putting the CPSC in the
picture, there was a whole regime of compliance in this country
that we kind of took for granted. We didn't think of it much,
because it worked silently through the invisible hand of self-
interest.
We had a regime of compliance in which people could
actually make manufacturers pay for the consequences of the
harm that they do. Granted, that was a reactive approach; the
civil justice system making you pay the damages that you cause
is a reactive approach, not a proactive approach. But if there
is a regime of compliance in which folks can make manufacturers
compensate folks for real harm when they commit real harm, you
at least are making sure they are not subsidizing people who
want to harm people by letting them throw out the consequences
of their harm on the consumer.
Now, we had that in this country. And when the CPSC was
added to the picture, it was a new cop on the beat. It did not
supplant the civil justice system, it supplemented the civil
justice system. And the country largely incorporated a culture
of compliance, which we had incorporated in the cost of doing
business in this country.
Now, fast-forward 20-, 30-some-odd years. We are getting
most of our toys in this country from China; 80 percent of our
toys are coming from China. And last month alone, we have
recalled more products that were manufactured in that country
than we have had in any calendar year before.
We have a whole new case now where most of our toys are
coming from countries where they don't have a culture of
compliance. It might have been hard in the pre-1973 days to go
all the way from Georgia to Michigan to sue somebody for the
consequences of what they did. But in Georgia, we had the reach
of long-arm statutes, and we could hold folks accountable for
the consequences of their harm where that harm occurred. We
can't do that today. It is virtually impossible to hold a
manufacturer in a foreign country accountable for the
consequences of the harm that they do in our marketplace as a
result of the stuff, the pollution they put into the stream of
commerce.
So it seems to me what we have to do is we have to figure
out some way to outsource a regime and a culture of compliance,
just as we have outsourced all the jobs that make the toys that
we consume in this country.
If we can't figure out how to do that, nothing we are going
to be able to do with the CPSC is going to work. Because, right
now, that is virtually the only cop we have on the beat, when
all of the bad guys are now overseas, abroad and beyond the
reach of the civil justice system, as a check on the impulse to
cut corners and to hurt people for profit.
So we have to figure out some way of exporting a culture of
compliance into the places so that we can interdict this stuff
and stop polluting the stream of commerce at the source of the
pollution. We have to have a point-source pollution mentality
about this and go at the source of the pollution, because we
can't deal with a flood of products when they arrive on our
shores or when they have gotten into our marketplace and try to
recall. The costs of doing that are just too high.
We no longer have the other systems to fall back on. We
have to realize that the CPSC, which was never designed to be
the only cop on the beat when we were making our own stuff, is
now the only cop on the beat with respect to all the stuff we
consume, because we ain't making it anymore. We are importing
it from someplace else. We have to try to figure out how to
export that culture. I don't know how to do it.
I know this, though: The issues we need to face are, who
ought to pay for it? And the American consumers should not have
to pay for making folks in other countries comply with the law.
We should figure out a way of making them comply with the law.
I am all for the people who are causing the problem bearing the
burden of cleaning up the problem. And the American consumer
ain't the problem, and the American industry and the American
manufacturers ain't the problem, because that is not where the
stuff is coming from anymore.
Maybe we ought to take a cue from the USDA, which takes a
proactive approach toward meat inspection that we don't have
from the FDA when it comes to importing crops that are imported
in this country. Go to the foreign country, go to the place
where it is made, and inspect what they are doing there, before
it gets offloaded from the plant and fed into the stream of
commerce.
Maybe we need to take a cue from financial responsibility
laws, where we had to post a bond or some source of insurance
money as a condition for engaging in certain businesses, so
when we extend the reach of the civil justice system in this
country to make sure that the people who are getting into the
commerce in this country are going to be financially
responsible for what they do in a way that is reasonable and
accessible to the victims of injury here in this country.
We need to think anew. Our case is new. We have a cop that
we have added to the beat that was never intended to be the
only cop on the beat. And it is the only cop now, and the
problem has gotten much bigger for that cop to do. We have to
figure out how to export the culture of compliance we take for
granted in this country.
With that, Mr. Chairman, I yield back the few seconds of my
time.
Mr. Rush. The Chair thanks the gentleman.
The Chair now recognizes the gentlelady from Tennessee,
Mrs. Blackburn.
OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Mrs. Blackburn. Thank you, Mr. Chairman. I thank you and
the committee staff for the excellent work on this bill.
You know, having worked in retail and marketing and with
consumer products, and sitting on this side of the aisle, I
have a tendency to kind of take Reagan's view about the nine
most feared words in the Government speak, ``I'm from the
Government, and I'm here to help.'' but as we look at consumer
products, we do know that that is supposed to be the job of
this Commission.
And we have always been very slow to move forward. And, Mr.
Chairman, I thank you for the way the subcommittee has worked
and has looked into the shortcomings of consumer health and
safety laws. And this has been illuminating for many of us.
And I appreciate the efforts that have gone into looking at
the Consumer Product Safety Council, looking at the testing
problems that exist, the transition in the flow of goods from
manufacturer to market and how they are assessed, and the
manner--and in the timely manner, I will say--in which they are
assessed; looking at the bureaucracy that exists within your
walls and how that needs to be reformed and reshaped;
addressing jurisdiction in the scope of your work and how that
plays forward; communication or lack thereof; practices and
best, or lack thereof, practices in how we work with you.
And, Chairman Nord, we thank you and your team for being
willing to talk with us, as we try to address these problems
that our constituents and many of our constituent companies
bring to us. So we thank you for your willingness to work on
that.
And we do know that the legislation under review today is a
product of an effort to shine the light on what has caused some
misgivings and some questions in the marketplace. The CPSC, as
we all know in the private sector, are partners. They are,
indeed, partners and should continue to be partners in ensuring
a safe and healthy marketplace for all consumer goods. That is
a big part of your scope of work.
And the incidents that we have reviewed by the subcommittee
over the past 10 months have truly shown us that there is a
breakdown in this system. And, as we know, it amounts to being
basically a breach of the public trust, not only for consumers
but also for retailers who are accepting those products into
their flow of goods into the marketplace.
Now, our bill--and I understand the number on it is H.R.
4040. I looked at the number, and I thought, Mr. Chairman, we
maybe should have had it be H.R. 2020, if that one is
available, because we hope it will sharpen the vision and will
give a clearer view of what is happening in the stream of
moving forward with items in the marketplace.
The legislation mandates third-party testing and
certification of all products intended for children aged 6 or
under. I think it is critical. Leading American retailers and
manufacturers are already employing this practice in the
international market, and it is high time to institutionalize
this now voluntary standard.
The legislation also authorized $20 million between fiscal
year 2009 and 2011 for the renovation of the CPSC's beleaguered
test lab. And I have not personally visited the facility.
However, from the witness testimony that we have had from
public interest groups and also from Chairman Nord, it is
suggested the labs cannot meet the needs of the American
consumers in the current state. So it is time to reinvest,
update and to add new technologies and protocols that will aid
the professionals that are working on this.
We thank the Commission.
Mr. Chairman, I thank you, the subcommittee staff, Ranking
Member Stearns and the staff.
And I yield the balance of my time.
Mr. Rush. The Chair recognizes the gentleman from
Massachusetts, Mr. Markey.
OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Markey. Thank you, Mr. Chairman, very much. Thank you
for having this hearing.
The Consumer Product Safety Commission is an agency in
crisis, sptarved of resources and slow to respond to a growing
tsunami of toxic toys and other products that continue to put
consumers at risk.
CPSC used to stand for Consumer Product Safety Commission.
Today it stands for Can't Protect the Safety of Children
Commission. Eighty percent of all toys sold in the United
States are imported from China. But even as the amount of
imported and recalled toys has skyrocketed, and even as parents
scrutinize every gift given by doting grandparents to make sure
that it is not on the recall list, the reality is that being on
that list only means that the CPSC, with its single inspector
testing toys for compliance with outdated standards, got lucky
and found the problem before more children were affected.
The reality is that the CPSC has lost 15 percent of its
workforce since 2004 and has only half the employees it had 30
years ago. As the holidays approach, parents should not have to
play toy box roulette, unsure of whether the toys they choose
could harm their children. This must change. We must upgrade
our safety standards to reflect scientific reality, and we must
upgrade the CPSC to reflect the realities of globalization.
I commend the chairman and the ranking member of the
subcommittee for taking up legislation to respond to the
current mess over at the Consumer Product Safety Commission.
And I look forward to working with them and with Mr. Dingell
and Mr. Barton and the other members of the committee to
further refine the legislation as we move forward toward
markup.
Specifically, we need to close the roller-coaster loophole,
which currently prevents the CPSC from investigating accidents
at so-called fixed-site amusement parks. Some of these thrill
rides hurl children at speeds approaching 100 miles per hour.
But when accidents occur, the CPSC lacks the authority to even
conduct an investigation or compel the sharing of information
about the accident with operators of the same ride in other
States. It is time to close this loophole. Children are at risk
all across the country when their parents take them to a fixed-
site amusement park, and the CPSC is actually prohibited from
investigating. Children should not be put at that risk.
We need to improve the public's awareness of potential
hazards. Currently, when the CPSC wants to warn the public
about a hazard, it actually has to negotiate with the companies
in order to do so. Companies even have the right to sue the
CPSC to prevent the disclosures from being made. This is
outrageous, and I intend to make an amendment in order to make
sure that we change that once and for all.
I believe that the ban on lead in children's products in
this legislation needs to be strengthened and accelerated so
that it conforms with the 90-parts-per-million standard already
adopted by the European Union. I also think that instead of the
CPSC's current practice of only looking at the amount of
accessible lead on the surface of a toy, legislation should
apply the standard to the entire product, because we all know
that children put things in their mouths and sometimes they
swallow them.
And we need to expand the use of screening technologies
that can identify the highest-risk children's products at ports
of entry to the U.S. for further screening. If we could screen
these toys as they come into the country, we should be able to
find Thomas the Toxic Train and other dangerous toys before
they show up on store shelves and under the Christmas tree.
And I also believe that this legislation should include
whistleblower protections for CPSC and private-sector employees
who are retaliated against for warning Americans about
dangerous products that can affect the safety and health of
American families.
I look forward to working with you, Mr. Chairman, and the
other members of the committee toward the goal of putting
together, once and for all, a comprehensive approach to how the
Consumer Product Safety Commission works out there and actually
protecting the American people.
I yield back the balance of my time.
Mr. Rush. The Chair recognizes the gentlelady from
Colorado, Ms. DeGette.
OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Ms. DeGette. Thank you, Mr. Chairman.
Parents are under a tremendous amount of stress in America
today, and who can blame them? One day they hear on television
that the spinach that they bought yesterday at the grocery
store is contaminated with E. coli. The next day they read in
the newspaper that the Thomas the Tank Engine toy they bought
their young son is contaminated with excessive amounts of lead.
It is enough to make any parent terrified that they could be
harming their child simply by putting food on the table or toys
in the yard.
Today's hearing is before the Subcommittee on Consumer
Protection, but, frankly, I don't think consumers are feeling
very protected today. They are feeling particularly unprotected
when it comes to the safety of children's products, and for
good reason.
So far this year, we have had over 150 recall notices
issued for children's products and toys. That is up from about
90 during all of last year, and 60 going back to all of 2002.
Almost half the products recalled this year were due to
excessive lead, a dangerous contaminant for children.
Some, like current Consumer Product Safety Commission
Chairman Nord, have argued that the high recall number shows
the system is working. I disagree. First, a very small
percentage of toys are actually returned once they are
recalled. Once these products get into people's homes, they are
hard to remove.
And here is a good example. I have these Thomas the Tank
Engine toys from my chief of staff's home. My chief of staff is
incredibly diligent, and she works on these issues, so she
should know. These were recalled in June, and she found them
last night in her son's bedroom. They have been sitting there
since they were recalled.
So, while recalls are important to get dangerous products
out of the hands of children, they are not the sole answer to
the crisis of deadly toys. We need to do a better job of
testing beforehand, so that the toys that cause harm are never
sold to the public to begin with. That is going to take a
combined effort from industry and government.
Unfortunately, I don't think that the agency in charge of
protecting consumers, the Consumer Product Safety Commission,
has the resources and the staffing it needs to do the kind of
job that the American people expect and, frankly, have thought,
until now, it was doing.
Despite the fact that our economy has grown tremendously
since the CPSC was founded in the early 1970's, it has less
than half the employees now than it did in 1974 when it was
founded, only about 400. According to CPSC Commissioner Thomas
Moore, it only has 90 field investigators, about 15 of whom are
responsible for guarding against the millions of products that
come in through dozens of ports of entry. And as we have heard
from other members, the market has shifted, so now 83 percent
of our toys are coming in from China.
Inexplicably, President Bush's budget would have caused the
CPSC to have cut 19 more staff. That is the wrong approach.
The CPSC is also hamstrung by statutory constraints. Just a
few examples: There is no bright-line limit on lead levels in
children's products. The CPSC is limited to imposing fines of
$1.83 million, and the CPSC has to use a cumbersome
administrative process or, in some situations, go to Federal
court to order a mandatory recall.
That is why, back in September, Congresswoman Rosa DeLauro
and I introduced legislation, H.R. 3691, the Safety Assurance
for Every Consumer Product Act, to address these and other
problems as well as make additional statutory improvements.
Among other things, our bill would increase the budget of the
CPSC by 88 percent over this year's level by fiscal year 2012;
impose an absolute standard for lead in children's products of
40 parts per million; eliminate the cap on civil penalties;
strengthen the CPSC's mandatory recall powers by eliminating
the need for a hearing before a recall is ordered; require
independent, third-party testing to make sure products meet
safety standards; and prevent the CPSC from issuing rules which
preempt State law.
Mr. Chairman, I was very happy to see that the bill you
introduced last week, H.R. 4040, contains many similar
provisions. I am an original cosponsor of H.R. 4040, and I
think it goes a long way.
I look forward to this hearing. I also look forward, Mr.
Chairman, to working with you and your staff to see if some of
the provisions of Congresswoman DeLauro's and my bill can be
incorporated in this legislation as we move forward.
I just want to talk briefly--well, maybe I won't. I will
yield back. I will ask it in the questions. I am very concerned
about the CPSC travel, and I know that the manager's amendment
we are going to do to the bill will address that. It is more
than an appearance of impropriety, Mr. Chairman.
And I thank you for your indulgence.
Mr. Rush. The Chair now recognizes the gentleman from
Texas, Mr. Gonzalez.
Mr. Gonzalez. Waive an opening, Mr. Chairman.
Mr. Rush. The Chair thanks the gentleman.
The Chair now recognizes the gentlelady from Oregon, Ms.
Hooley.
OPENING STATEMENT OF HON. DARLENE HOOLEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Ms. Hooley. Thank you for holding this important hearing.
And thank you, Chairman Nord and Commissioner Moore, for
being here today and providing your testimony.
I commend the enormous amount of work that has gone into
crafting H.R. 4040. And although I think there are some pieces
of the bills that can be improved, this comprehensive and
bipartisan legislation is a huge step in the right direction.
I am also pleased that H.R. 4040 includes very similar
language to a bill I introduced requiring that children's
products are certified safe. My legislation called for toys
intended for children 5 and under be certified, and I commend
the subcommittee for raising that age to 6.
At this critical time before the holiday gift-giving
season, it is vital that Americans can trust and know that
products they purchase for children are safe. There have been
over 21 million children's products recalled this year. I wish
I could say that things were getting better, less dangerous
toys were reaching our shelves, and that the CPSC was achieving
its mission. Unfortunately, I cannot. Dangerous toys are still
reaching our shelves, and the CPSC is still unequipped to
handle its enormous task.
Hopefully, this hearing will serve as an opportunity for
Chairman Nord to more emphatically convey what is clear to me:
The CPSC is an agency in distress and not meeting its mission.
I believe it is due to several things, one of which is too few
resources and not enough regulatory authority.
Chairman Nord, as head of the CPSC, should be the one who
is in the best position to see the shortcomings with her
distressed agency, but unfortunately this has not been the
case. In a Senate hearing, Chairman Nord was pressed on what
resources the CPSC needed to function properly, and she was
noncommittal, saying the job could be done by the President's
budget. I flatly disagree.
According to internal records obtained by The Washington
Post, Chairman Nord, as well as her predecessor, traveled at
the expense of the toy, appliance and children's furniture
industries and others that her agency is charged with
regulating. This includes trips sponsored by lobbying groups
and lawyers representing the makers of products linked to
consumer hazards. Chairman Nord has pointed out that this falls
within the Federal guidelines. These guidelines that she cites
also state that agencies must avoid the appearance of
impropriety. In my mind, travel paid by the very companies an
agency is charged with regulating does not meet this standard.
A great deal needs to be done to make sure that what goes
on our store shelves are safe and that Americans can trust that
the toys they bring home for their children to play with are
safe. I applaud this committee's work on this issue and look
forward to a markup as soon as possible on this important bill.
And I yield back the remainder of my time.
Mr. Rush. The Chair thanks the gentlelady.
Any other statements for the record will be accepted at
this time.
[The prepared statement of Mr. Fossella follows:]
Prepared Statement of Hon. Vito Fossella, a Representative in Congress
from the State of New York
Today's hearing provides an important opportunity for
Congress to examine the health-related impacts on children who
are exposed to excessive levels of lead as well as recently
introduced bipartisan legislation from the chairman and ranking
members of both the full and subcommittee. As we have all read
in various news publications over the last several months,
children's products, typically toys and jewelry imported from
China, have contained unsafe levels of lead or lead paint,
putting our children at great risk.
I would like to thank Chairman Rush and Ranking Member
Stearns for the opportunity to speak at this hearing this
morning. I would also like to thank each of the panelists who
have agreed to testify before the subcommittee this morning. I
believe the safety of our children is one the highest
priorities Congress must adhere to. I personally have three
young children and being a parent, I want to know that the toys
my children are playing with and the jewelry my 4-year old
daughter is wearing is going to be safe and not contain unsafe
levels of lead. It is my firm belief that parents should feel
safe when purchasing toys and jewelry for their children, yet I
come to this hearing today wondering if they can be assured of
just that. I ask each of you this one question today: How can
we assure parents that the products they are purchasing for
their children are safe?
In testimony before this subcommittee in early June, the
acting chairman of the Consumer Product Safety Commission
detailed her recent meeting with Chinese officials to discuss
the safety of consumer products imported from their country.
Recommendations were made regarding initiatives the Chinese
could take independently and in conjunction with the CPSC.
However, with the alarmingly high rate of recalls of such
products from China, coupled with the recent headlines, the
public has a right to know in greater detail the nature and
depth of the problem as well as potential risks of other
consumer products imported from China.
The recent headlines about the safety of Chinese
manufactured products hit home in Staten Island in early June
when two of my constituents were hospitalized after using
contaminated toothpaste made in China. The toothpaste,
manufactured under a counterfeit Colgate label, contained a
harmful chemical commonly used in antifreeze. This instance,
coupled with the toy recall, raises continued red flags as to
the safety of the products we are importing from our second
largest trading partner. These two instances highlight a
possible pattern and warrant a full and comprehensive
examination by the U.S. Congress.
There have been several pieces of legislation introduced
in both the House and Senate. I am happy the recent House
introduced version that we will be discussing in great detail
today is bipartisan. I remain hopeful that the testimony and
questions today will provide us with additional opportunities
and ideas on how to potentially improve this legislation even
further.
While the CPSC may be a small agency, its size should not
diminish how important their role is in protecting the American
people. The staff at the CPSC are dedicated to providing this
service in the most efficient and effective approach. If an
opportunity to improve upon their effectiveness is available,
Congress should pursue these opportunities with an open mind
and with one main goal in mind: protecting the American people
in the best possible manner.
I look forward to working with this committee, the CPSC
and manufacturers from across the spectrum to pursue the kind
of reforms that will direct the focus on what matters most and
that is the safety of our children. Again, I would like to
thank the Chairman and Ranking Member for this opportunity
today and I look forward to hearing the testimony of our
panelists.
----------
Mr. Rush. Now the Chair and the committee welcomes panel
No. 1.
Panel No. 1 is composed of the Honorable Nancy A. Nord, the
Acting Chairman of the Consumer Product Safety Commission.
Chairman Nord was appointed as a Republican member to the
Consumer Product Safety Commission in 2005 to a term that
expires in 2012. She has served as CPSC's Acting Chairman since
July 2006.
The committee also welcomes the Honorable Thomas H. Moore,
the Commissioner of the Consumer Product Safety Commission.
Commissioner Moore began service on the CPSC in 1995 as a
Democratic appointee. He is currently serving his third term,
which expires in 2010.
The Chair welcomes our witnesses today.
And you are recognized, beginning with Chairman Nord, for 5
minutes for opening statements.
STATEMENT OF NANCY A. NORD, ACTING CHAIRMAN, CONSUMER PRODUCT
SAFETY COMMISSION
Ms. Nord. Thank you, Mr. Chairman, Congressman Stearns and
members of the subcommittee.
Mr. Chairman, you have requested that I appear here today
to give you my views on H.R. 4040, and I want to be very clear,
and I will only state my views, because I certainly do not want
to get in trouble with you.
You and your staff, as well as Congressman Stearns,
Chairman Dingell, Ranking Member Barton and 45 other co-
sponsors of the bill, have worked hard to draft and introduce a
thoughtful bill that takes into account both the enforcement
needs of the agency and the realities of the modern consumer
marketplace. On balance, I believe the bill will be a win for
consumers and should give us the additional enforcement tools
we need to expand our ability to keep unsafe products out of
the stream of commerce.
With respect to the specifics of the bill, I very much
appreciate the fact that H.R. 4040 has adopted in whole or in
large measure several of my legislative recommendations from
this past July when I submitted to you my PRISM proposal. Of
particular importance to enhancing the mission of the agency
are an overdue prohibition on the sale of recalled products----
Mr. Rush. Would you pull the mike closer to you, please?
Ms. Nord. Of course--an increase in our statutory penalty
cap, asset forfeiture as a criminal enforcement option, among
other things.
There are other provisions in the bill, notably the section
dealing with lead and children's products, and I understand
that these may be evolving. And I have directed the CPSC staff
to continue to provide technical expertise and input on that
and any other section of the bill that you would like.
But, as I said, this bill represents a significant,
positive step forward for consumer product safety; and I
appreciate all the leaders in this committee who have brought
it forward on a bipartisan basis.
Mr. Chairman, with my remaining time and with your
indulgence, I would like to clear the air about a few things
that have been the focus of a good deal of media attention of
late.
First, with respect to toys, the number of toy recalls has
not in fact skyrocketed, as I have seen reported in the media.
For the fiscal year ending September 30, we had 61 recalls of
toys, 19 of which were for violations of the statutory ban on
lead paint. The year before, we had 40 recalls, three of which
were for violations of the lead paint ban. The increase in lead
recalls has been driven by this agency insisting that the laws
be enforced. We all take toy safety issues very seriously,
especially with respect to lead, and toy companies at our
insistence have searched their existing inventories for even
the slightest evidence of a violation. But I believe that we
are starting to turn the corner on the lead paint issue. Does
that mean we will never find a violation again? Probably not.
But our enforcement activities and the media attention to this
issue have made the number of violations that we expect to see
far less likely.
Second, let me please lay to rest once and for all the myth
that has been perpetuated by the media that we have only one
toy tester. We do not. In fact, we have a number of staff in
our laboratory who are charged as a primary or significant part
of their responsibilities with the testing of toys for small
parts, for lead and for the other elements of our toy
standards. We have at least another 60 field personnel who as a
part of their routine responsibilities test toys for
violations.
And, finally, because Representative DeGette and
Representative Hooley have raised the issue of travel, I do
want to address it.
I have taken three trips that have been called into
question by the Washington Post. Two are to toy industry
conferences where I and CPSC staff educated toy manufacturers
and importers about our various toy standards in an effort to
increase compliance with those standards. Our direct travel
expenses were paid by the Toy Industry Association. This
practice, while it has not been common for me, is a legal and
common practice throughout the Federal Government and one that
has been in place at the CPSC for the last 20 years, long
before I came to the Commission.
I, my colleague, CPSC staff members, including those on
Chairman Brown's staff, have done such travel for two simple
reasons, first, to further the mission of the CPSC to reduce
the likelihood that unsafe products will enter the marketplace.
The second reason, quite frankly, is that, faced by limited
enforcement dollars, Mr. Chairman, I would much rather spend
$900 on paying for more testing of toys and more resources at
our laboratory than I would on airfare and a hotel to go to
present our toy standards at an industry conference. If others
disagree with that position, then I respect their opinion, but
they are not necessarily in the same position as I am of having
to make these kinds of resource allocation calls.
I have asked for both an internal and external
investigation of our practice in accordance with Federal law
and regulations, and I wait and will abide by the
determinations that come out of that review. And I will, of
course, adhere to any change in Federal law that Congress sees
fit to make.
In conclusion, those of us at the CPSC are working hard
every day to find and remove unsafe products from the
marketplace, to respond to consumer complaints, to establish
product safety standards and to educate the public. The product
that Congress came up with----
Mr. Rush. Madam Chairwoman, would you please bring your
remarks to a conclusion?
Ms. Nord. I would be happy to conclude by saying to you,
sir, that the product that you came up with in 1972 is
essentially sound, but it could work better. I appreciate and
welcome your efforts to make it work better, and I look forward
to working with this committee. Thank you.
Mr. Rush. Thank you.
[The prepared statement of Ms. Nord follows:]
Statement of Nancy A. Nord
Good Morning Mr. Chairman, Congressman Stearns, and members
of the committee.
Thank you for inviting me to testify this morning on H.R.
4040, the Consumer Product Safety Modernization Act of 2007,
which was introduced last week to modernize the governing
statutes of the U.S. Consumer Product Safety Commission (CPSC).
I want to begin by congratulating the Committee on the open
and bipartisan deliberative process that has resulted in a bill
that is focused on CPSC's core mission of improving the safety
of consumer products for American families.
As Acting Chairman of the CPSC, I have appreciated your
staff's engagement of the professional staff at my agency in
developing this legislation, as well as previous consumer
product legislation that was reported from this Committee and
subsequently approved by the full House of Representatives last
month. Though the CPSC is a small agency, we are fortunate to
have a staff of dedicated career civil servants who are skilled
in an impressive array of legal, technical and scientific
disciplines. They are doing an outstanding job for the American
people, and I am pleased to see their expertise reflected in
your legislation.
I also want to thank the committee for including in this
bill a number of the proposals that I submitted to Congress
earlier this year to strengthen the CPSC's ability to reduce
hazards associated with consumer products. I note, for example,
that Section 204 of your bill includes my proposal to speed
agency rulemaking by giving the CPSC the option to employ
either two-part or three-part rulemaking under all of our
statutes. This change will make our regulatory process more
streamlined, efficient and effective, and I thank the Committee
for accepting it.
Additionally, section 208 includes my proposals to clarify
that the Commission is the final arbiter in deciding whether a
company's recall remedy should be a refund, a repair or a
replacement and to empower the Commission to take further
corrective actions if consumers are not protected by the
original plan. I also appreciate that the Committee has
included in the bill my proposals to prohibit the sale of
recalled products and prohibit stockpiling under all of the
statutes that the CPSC enforces.
The legislation also includes a more than five-fold
increase in the cap on CPSC's civil penalties. That provision
passed the House of Representatives by voice vote last month,
and I am pleased to see it included in this comprehensive bill.
This is a reasoned approach to increasing the agency's civil
penalties and strengthening the agency's hand, without forcing
the CPSC to respond to a flood of new litigation and drain our
limited resources that could otherwise be used to hire more
scientists and more safety inspectors.
With regard to the lead provision, I appreciate that the
Committee is moving toward a stronger standard, and I look
forward to continuing discussions on that provision between
your staff and technical experts here at the CPSC to assist you
in achieving that goal.
As you well know, CPSC's statutes have not been updated by
Congress since 1990. Clearly, the dynamics of the marketplace
have changed dramatically over these years. New technologies
have emerged, and continue to emerge, in creating and
manufacturing products. Electronic technologies have changed
the way that consumers shop and purchase goods and the way that
the public receives information. Perhaps the most significant
change is that most of America's consumer products now come
from overseas.
So it is important that the Committee is moving forward to
modernize this agency, but it is also important to recognize
that the legislative foundation on which the CPSC was built is
a fundamentally strong one. No small amount of work went into
the crafting of the original legislation that created the CPSC
in 1972. The National Commission on Product Safety worked for
three years before presenting its findings to the Congress in
1970, and the Interstate and Foreign Commerce Committee, as
this committee was then known, held thirteen days of hearings
and ten executive sessions, including joint sessions by the
conference committee.
I would note Chairman Dingell's key role in authoring and
enacting this legislation that established an agency that has
served the public well. We are proud of our thirty-four year
record of achievement of reducing deaths and injuries and
helping to protect the American public from consumer product
hazards--a successful record that I have outlined on numerous
previous occasions this year in testimony before your
Committee.
The core mission of the CPSC is to protect the public from
unreasonable risks of injury and death associated with more
than 15,000 types of consumer products under the agency's
jurisdiction. We fulfill this mission by enforcing our
governing statutes, including the Consumer Product Safety Act
(CPSA), the Federal Hazardous Substances Act (FHSA), the
Flammable Fabrics Act (FFA), and the Poison Prevention
Packaging Act (PPPA).
Since being appointed to the Commission two years ago, and
subsequently becoming Acting Chairman last year, I have closely
studied, enforced and directed the implementation of these
statutes. Based on my study of our statutes and this working
experience, earlier this year I submitted to Congress a
comprehensive list of legislative proposals known as the
Product Recall, Information and Safety Modernization Act, or
PRISM.
As Acting Chairman, I believed that it was important for me
to be proactive and come forward to Congress with my ideas to
strengthen the Commission's hand in enforcing our laws and
protecting the American public from unsafe products. As
mentioned earlier, I am pleased to see that a number of the
proposals I advocated at that time are included in your bill.
In that spirit of being pro-active and advocating change, I
would like to take advantage of this opportunity to ask the
Committee for additional powers that were included in PRISM but
are not included in the legislation at this point.
First of all, I proposed in PRISM that the CPSC be granted
authority to promulgate regulations for the efficient
enforcement of any statute it administers, just as we can now
do under the FHSA. This would clarify that the Commission can
issue enforcement regulations in addition to consumer product
safety standards under any of our statutes where warranted to
carry out our mission.
Another proposal that I would encourage the Committee to
consider further is to extend the existing certification
requirement under Section 14 of the CPSA to all statutes
administered by the Commission. This would avoid confusion
among the disparate certification and labeling provisions of
the CPSA, FHSA, FFA and PPPA.
I believe that these changes would strengthen the
Commission's hand, and I hope that the Committee will take a
close look at them as we move forward.
Mr. Chairman and Mr. Stearns, I again want to commend your
leadership in crafting legislation that recognizes the
importance of CPSC's core safety mission and strengthens our
ability to achieve that mission. It is clear that much hard
work went into developing this important legislation. It
respects the important foundations of the CPSC while at the
same time addressing the challenges of the 21st Century
marketplace that our aggressive enforcement activities have
exposed, especially this year.
I look forward to continuing to work cooperatively with the
Committee as your bill proceeds through the legislative
process, and I am pleased to answer your questions.
----------
Mr. Rush. Commissioner Moore, welcome again and, please,
you have 5 minutes for an opening statement.
STATEMENT OF THOMAS H. MOORE, COMMISSIONER, CONSUMER PRODUCT
SAFETY COMMISSION
Mr. Moore. Thank you very much. Mr. Chairman, Mr. Ranking
Member and members of the subcommittee, I appreciate the
opportunity to appear before you today to provide testimony on
H.R. 4040, legislation to establish consumer product safety
standards and other safety requirements for children's products
and to reauthorize and modernize the Consumer Product Safety
Commission.
As the members of this subcommittee know, the U.S. Consumer
Product Safety Commission needs help. It needs additional
resources, more staff and greater authority to protect
consumers from potential product hazards. And you have
responded positively. I am extremely gratified by the
authorization levels in the bill and by the bill's clear
acknowledgement that consumer product safety must remain an
important Federal Government function.
This bill recognizes that it will take time for the agency
to rebuild. We cannot do it overnight. The downsizing and
dismantling of the agency has been going on for a while, so I
ask you to be patient with all of us at the agency as we
rebuild our staff expertise and, with your strong support,
refocus our efforts on providing a greater level of product
safety with the increased capabilities this bill would give us.
We have lost many experienced and talented people in the
last few years, people who knew instinctively when they saw a
product whether it was badly designed or if it was just a plain
bad idea from a safety standpoint. We have increased our
information technology spending as a way to compensate for the
reduction in the size of our staff, but no computer that I am
aware of can look at a product and know that it should be
removed from the marketplace. Only experienced, trained people
can do that.
The real backbone of the agency is its staff, our
toxicologists, our pharmacologists, our mechanical engineers,
our human factors specialists, our chemists, our investigators
and, yes, even our lawyers. We need to retain our current
employees and recruit additional staff. They are the key to the
agency fulfilling its role as protector and enforcer. This bill
will allow us to rebuild our staff and should send a signal to
current employees that the agency will be around for a long
time and that they should stay and rebuild with us.
There has been much attention paid lately to recalls of
important products, and rightly so. The Commission currently
has no full-time presence at any port and little or no presence
at several of the major ports. We currently inspect less than 1
percent, less than 1 percent, of the products under our
jurisdiction that come into this country. This is not quite as
bad as it sounds because we do targeted surveillance. That is,
we look for specific products and for specific importers that
we know from past experience to be problematic.
I do not know what percentage of all potentially
problematic products we inspect, but it is still probably a
fairly small number. We will, I am afraid, always be at a
disadvantage in policing this huge import market. But with more
people at the ports, more people scrutinizing products at
retail outlets and the manufacturing plants and with more
people at headquarters and in our laboratory analyzing products
and employing stronger enforcement tools to require recalls in
a more timely fashion, we can do a better job of keeping
hazardous products out of the marketplace before they cause
injuries, than our current resources and authority permit us to
do so.
We tend to take the safety of our products, and the
Commission's role in that, for granted until a tragedy occurs.
The real tragedy would be not to take advantage of the
opportunity we now have to make the Commission stronger.
I understand that this legislation will go through changes
as it moves through the legislative process, but it is a very
good foundation on which to build. Your bill sends the message
that the American public wants to hear, that you will not
permit the Commission to wither on the vine. You will reverse
the downsizing trend of recent years, and you will give the
agency the enforcement tools it needs to aggressively fight to
protect America's consumers.
Thank you for providing me with this opportunity to appear
before you, and I will address questions you may have. Thank
you.
[The prepared statement of Mr. Moore follows:]
Statement of Thomas H. Moore
Mr. Chairman, Mr. Ranking Member, and members of the
subcommittee, I appreciate the opportunity to appear before you
today to provide testimony on H.R. 4040, legislation to
establish consumer product safety standards and other safety
requirements for children's products and to reauthorize and
modernize the Consumer Product Safety Commission.
As the members of this subcommittee know, the U.S.
Consumer Product Safety Commission needs help. It needs
additional resources, more staff and greater authority to
protect consumers from potential product hazards. And you have
responded. I am extremely gratified by the authorization levels
in this bill and by the bill's clear acknowledgment that
consumer product safety must remain an important Federal
Government function.
The bill recognizes that it will take time for the agency
to rebuild. We cannot do it overnight. The downsizing and
dismantling of the agency has been going on for a while, so I
ask you to be patient with all of us at the agency as we
rebuild our staff expertise and, with your strong support,
refocus our efforts on providing a greater level of product
safety with the increased capabilities this bill will give us.
We have lost many experienced and talented people in the
last few years--people who knew instinctively when they saw a
product whether it was badly designed or if it was just plain a
bad idea from a safety standpoint. We have increased our
information technology spending as a way to compensate for the
reduction in the size of our staff, but no computer that I am
aware of can look at a product and know that it should be
removed from the marketplace. Only experienced, trained people
can do that. The real backbone of the agency is its staff: our
toxicologists, our pharmacologists, our mechanical engineers,
our human factors specialists, our chemists, our investigators
and yes, even our lawyers. We need to retain our current
employees and recruit additional staff. They are the key to the
agency's ability to fulfill its role as protector and enforcer.
This bill will allow us to rebuild our staff and should send a
signal to current employees that the agency will be around for
a long time and that they should stay and rebuild with us.
There has been much focus on recalled imported products
lately and rightly so. The Commission currently has no full-
time presence at any port and little or no presence at several
of the major ports. We currently inspect less than 1% of the
products under our jurisdiction that come into this country.
This is not quite as bad as it sounds because we do targeted
surveillance; that is, we look for specific products and for
specific importers that we know from past experience to be
problematic. I do not know what percentage of all problematic
products we inspect, but it is still probably a fairly small
number. We will, I am afraid, always be at a disadvantage in
policing this huge import market. But with more people: at the
ports; more people scrutinizing products at retail outlets and
in manufacturing plants; and with more people at headquarters
and at our laboratory, analyzing products and employing
stronger enforcement tools to require recalls in a more timely
fashion, we can do a better job of keeping hazardous products
out of the marketplace before they cause injuries, than our
current resources and authority permit us to do.
We tend to take the safety of our products, and the
Commission's role in that, for granted until a tragedy occurs.
The real tragedy would be not to take advantage of the
opportunity we now have to make the Commission stronger. Your
bill sends the message that the American public wants to hear--
that you will not permit the Commission to wither on the vine;
you will reverse the downsizing trend of recent years and you
will give the agency the enforcement tools it needs to
aggressively fight to protect America's consumers.
I understand that the legislation will go through changes
as it moves through the legislative process, but it is a very
good foundation on which to build. My staff and I have not had
the opportunity to review the bill's provisions as carefully as
I would like, thus the comments below are somewhat general in
nature. My staff will be conferring with the subcommittee staff
and may provide them with more detailed comments on some
sections of the bill after we have reviewed them more
thoroughly, including timing requirements and issues of
prioritization.
Section by section comments of H.R.4040
Section 101. Ban on Children's Products Containing Lead.
I have been on record for some time as stating that I
hoped Congress would take up the issue of lead in children's
products because the statutory constraints under which the
Commission labors are too stringent when it comes to something
as clearly toxic to our children as lead. Personally I do not
think there should be any lead in children's products and I
hope one day we are as amazed that there was ever a time that
these products contained lead as we are now when we remember
that water coolers were once lined with lead. This bill's aim
is to get the amount of lead down to the lowest level possible
and I certainly support that goal.
Section 102. Mandatory Third-Party Testing for Certain
Children's Products.
I support mandatory third-party testing and certification
of children's products, especially of products intended for
younger children. I am inclined to agree that the laboratory
should not be controlled by the manufacturer or private
labeler, but would also consider a provision that would allow
manufacturer-owned labs to do testing unless and until such
time as we had reason to believe their test results were not
accurate.
Section 103. Tracking Labels for Children's Products.
I support having identifying marks on products and product
packaging that help manufacturers, retailers, consumers and the
Commission to identify when and where a product was made. I
would like eventually to see this on all products so that in
the event of a recall, the Commission has a tool to more
clearly identify which products should be subject to it.
Section 104. Standards and Consumer Registration of Durable
Nursery Products.
We know that direct notice to consumers from a product
manufacturer about a recall is the most effective form of
notice; therefore, I support requiring product registration
card notification.
Section 105. Labeling Requirement for Certain Internet and
Catalogue Advertising of Toys and Games.
I support this provision. As more and more products are
purchased through a catalogue or over the Internet without the
buyer ever viewing the actual product, the effectiveness of our
labeling rules becomes more and more diminished. This would
rectify that problem.
Section 201. Reauthorization of the Commission.
I support substantial increases in the Commission's
appropriations, and these authorization figures will provide
the basis for that through 2011. I also support a congressional
appropriation to modernize and re-equip our laboratory.
Section 202. Structure and Quorum.
I support both an extension of the Commission's quorum and
the gradual increase in the number of Commissioners, back to
the five that were originally funded.
Section 203. Submission of Copy of Certain Documents to
Congress.
I support Congress receiving a copy of our initial annual
budget submission to the Office of Management and Budget. I
believe it will provide Congress with the information it needs
to better analyze the President's budget request.
Section 204. Expedited Rulemaking.
I support giving the Commission the authority to use, in
its discretion, two-step rulemaking instead of the longer
three-step rulemaking process. I would expect the two-step
procedure to be used on more routine matters and not, for
example when the Commission is taking on an issue of which it
has little knowledge or experience.
Section 205. Public Disclosure of Information.
I am on record as supporting the elimination of section
6(b) of the CPSA, which has the effect of keeping a great deal
of product specific safety information secret. While the
provisions of this bill do not go as far as I would like, they
are a step in the right direction.
Section 206. Prohibition of Stockpiling Under Other
Commission-Enforced Statutes.
I support extending the stockpiling provisions to our
other statutes.
Section 207. Notification of Noncompliance with Any
Commission-Enforced Statute.
I support explicitly extending the reporting requirements
of section 15 (b) of the CPSA to the other statutes the
Commission enforces.
Section 208. Corrective Action Plans.
I support giving the Commission the final say as to
whether a proposed corrective action plan will adequately
protect consumers.
Section 209. Website Notice, Notice to Third Party Internet
Sellers, and Radio and Television Notice.
I support the enhanced recall notice provisions of this
section.
Section 210. Identification of Manufacturer, Importers,
Retailers, and Distributors.
I support requiring everyone in the product supply chain
to know who they are dealing with and to supply that
information to the Commission upon request.
Section 211. Export of Recalled and Non-Conforming
Products.
I have urged Congress to reexamine our export policy. I
believe a policy that recognizes that we can only expect other
countries to protect our consumers from their exports, if we
are willing to make the same commitment by not sending them
products that could harm their consumers. I believe this
section does that.
Section 212. Prohibition on Sale of Recalled Products.
I support prohibiting the sale of recalled products.
Section 213. Increased Civil Penalty.
I have long supported the removal of any upper limit on
civil penalties because I think the types of products we
regulate and the different and multiple types of violations
that are possible under our statutes, as well as the
circumstances that contribute to those violations, are so
disparate that we need maximum flexibility to fine companies
who violate our requirements. Our statutes list various factors
we must take into account in determining the amount of the
penalty and those are what we should look to in structuring
penalty amounts not an arbitrary ceiling that has no
relationship to the facts of the violation(s). But, if there
must be a cap, an increase is extremely welcome, though I would
urge a higher one.
Section 214. Criminal penalties to include asset
forfeiture.
I support this provision to give us the additional penalty
of asset forfeiture for criminal violations of our statutes.
Section 215. Sharing of Information with Federal, State,
Local, and Foreign Government Agencies.
I support this information-sharing provision.
This comprehensive legislative package introduced by
Congressman Bobby L. Rush and Congressman Cliff Stearns, with
Energy and Commerce Committee Chairman John Dingell and Ranking
Member Joe Barton, is a big step in strengthening and restoring
confidence in the U.S. Consumer Product Safety Commission.
It is very important that in whatever we do collectively--
through efforts by the administration, by Congress and by the
Commission--to address the most recent problems facing the
Commission, that we send the clear, unequivocal message to
manufacturers, importers and retailers who sell products in
this country that present a risk of injury to consumers that
their actions are unacceptable and that they will be held
accountable. This legislation will give us more resources and
additional enforcement tools. It will then be up to the
Commission to use them to make the marketplace a safer place
for American consumers.
----------
Mr. Rush. The Chair thanks both of the witnesses. The Chair
recognizes himself for 5 minutes of questioning of witnesses.
Commissioner Moore, if you had one overriding relevant key
wish as it relates to this bill, what would be the one thing
that you think that would make the most difference at the CPSC?
Mr. Moore. At this point, the increased funding reflected
in the authorization numbers is by far the most important
provision. We have to stop the bleeding at the Commission and
reverse the trend that has cost us so many valuable employees.
Aside from funding, what are the most important provisions?
The provision banning lead I think in children's products above
a certain level has to be a priority. As well, the increase in
the civil penalty cap, which is a reflection of how important
we think product safety is in this country.
Mr. Rush. Chairman Nord, do you agree with Commissioner
Moore that CPSC needs the resources that this bill authorizes?
Ms. Nord. I wholeheartedly agree and would like to see more
resources for the agency.
In addition to the things that Commissioner Moore listed, I
would also add that a very, very useful addition to this
legislation would be certification authority across the board
for all the statutes that we implement. I think that one
additional statutory tool would go such a long way to giving us
an ability to more easily flag products that may be in
violation of our standard, and I would strongly urge you to
include that as you mark up this legislation.
Mr. Rush. Would you explain in more detail how this
certification process would work?
Ms. Nord. Surely. I believe it would be a very useful tool
to require that all product sellers certify to us that they are
in compliance with applicable safety standards and regulations.
That would give us a key to look at as products come into the
country and as they are being sold throughout the marketplace.
Mr. Rush. With the H.R. 4040's proposed changes to section
6(b), would this CPSC be issuing more alerts more quickly about
unsafe products? In other words, would you use it to strengthen
health and safety exception in more circumstances if this bill
were to become law?
Ms. Nord. Well, I was pleased to see the way that the
committee approached section 6(b) because it really does
modernize it in a way that I think is very, very useful.
With respect to safety alerts, obviously, we address these
issues on a case-by-case basis; and I want to make sure that if
we see a problem, that we have have the tools to respond. So I
am pleased to see what you have done with 6(b).
Mr. Rush. Would you address the concern that has been
voiced by the CPSC about the fear of litigation? Why was the
CPSC so afraid of litigation that it would inhibit getting
information out to the public? What was the concern there?
Ms. Nord. You mean with respect to 6(b)?
Mr. Rush. Right.
Ms. Nord. Section 6(b) put in place a prohibition on the
release of information without first making an inquiry as to
whether it is fair and accurate. And the problem is that that
inquiry needed to be done in a 30-day time frame going back to
the manufacturer. What you have done is cut that time frame in
half, and you have also indicated that and make very clear----
Mr. Rush. What I am concerned about is it would seem to me
that there was a real deep-seated fear at the CPSC about
court--my time is up, but I will ask you that a little later.
Ms. Nord. Thank you.
Mr. Rush. The Chair recognizes the ranking member, Mr.
Stearns.
Mr. Stearns. Thank you, Mr. Chairman.
Chairman Nord, I guess the question is that the press, most
notably the New York Times, have claimed that you oppose new
authority for the CPSC. I think it is true, and I would like
you to confirm this, that you actually had proposed new
authorities for the Commission?
Ms. Nord. Yes, I have. Back in July of this year I sent to
both bodies a legislative proposal that contained no fewer than
40 different suggestions for changes in our statute.
Mr. Stearns. So that clears up the New York Times saying
that you actually oppose new authority. You have 40 new ones
that you have proposed.
I would like you to also talk about this letter that I
mention in my opening statement, these 5 pages. You are an
attorney. You have the opportunity to respond to a Senate bill
that is being proposed, not voted on. You are just saying, as
an attorney, as chairwoman of the CPSC, I would like to make
known to you some of my comments; and these are very detailed
comments you have in this 5 pages of letter. I thought I would
give you an opportunity to explain your thoughts about it and
your goals in sending it, because I think it is been
misconstrued on one side of the aisle and misconstrued in the
press.
Ms. Nord. Yes, thank you so much, Congressman Stearns.
At the hearing on this legislation, the chairman made very
clear that he welcomed input from----
Mr. Stearns. The chairman being?
Ms. Nord. The Senate subcommittee chairman--made very clear
that he welcomed input from all quarters on the legislation.
I sat down and met with the Senate majority staff for well
over 2 hours and after that meeting indicated to them that I
would be following up. That letter is my follow-up. I felt I
had an obligation to state to the members of the committee my
concerns about the legislation and where I thought improvements
could be made.
If you read that letter, you will see that I reference
legislative changes that I was suggesting that were forwarded
along with that letter. I felt that as a public official it is
my obligation to talk to the Senate about----
Mr. Stearns. I think it would be a dereliction of your duty
if you didn't talk about the penalty cap increases that you
specified in here, your criminal penalties that you went into,
the whistleblower protection. Sometimes people would dwell on
one sentence of this five-page, detailed, lawyerly written
letter, but I think you have a fiduciary responsibility in your
position to do that.
Ms. Nord. Well, my concern, and the portrait I wanted to
convey to the Senate, was, while there were a number of things
that were very helpful in the Senate bill, there were some
things that were of concern and that might take us away from
our core safety mission.
In addition, there were a number of new rulemaking
requirements being imposed under a very tight time frame; and,
frankly, we would not have had the resources to comply with the
legislation.
Mr. Stearns. One thing I read in the newspapers, they say
that there is only one toy tester at CPSC. And you have cleared
this up before this hearing, and I thought for one more time
for the record, is there only one toy tester at CPSC?
Ms. Nord. No, there are a number of people on our staff
that have the responsibility to test toys.
Mr. Stearns. Including independent testers, there are 60
testers in the field. So let us make sure that people don't
think that there is one person sitting there as the avalanche
of toys come from China.
The other thing that keeps coming up is there are more
recalls, so that means there is more danger. You know, one way
to think of this is that because there is more notification
from the CPSC there is a possibility it is working, the system
is working better. Has anyone died this year from lead
contamination in toys?
Ms. Nord. I am not aware of any deaths. But, of course,
with respect to lead contamination it is cumulative, so we
don't want to see lead in any product, and we are working very
hard to keep it out.
Mr. Stearns. But can we determine over the last 50 years
any death that has been attributable to lead content in their--
I mean, where do we get this idea that--I mean, we know that it
is an accumulation, and we know that it is bad. But the idea
that we are notifying and we are meeting a standard, I guess is
there a crisis like some people seem to think?
Ms. Nord. Well, crisis or no, the statute is the statute,
the law is the law, and I am absolutely determined that the
lead paint ban is going to be met. And that is why we have had
these 19 recalls over the last summer.
Sir, with respect to the comment of why are recalls bad or
escalating, we did 5 or 6 more recalls this year than we did
last year.
Mr. Stearns. That might be a possibility that the system is
working?
Ms. Nord. Well, we work in a system that requires us to
respond after things have been put on the market. That is the
regulatory structure that Congress imposed on us. So we go into
the marketplace, and we police the marketplace. And one of our
tools is to do recalls, and we do do them.
Mr. Stearns. Thank you, Mr. Chairman.
Mr. Rush. The Chair has a special request from the ranking
member. He has got to leave, and the Chair would ask the
indulgence of the full committee chairman to allow--he has got
to leave, also. I want to thank the chairman.
The Chair now recognizes the ranking member of the full
committee, Mr. Barton, for 5 minutes.
Mr. Barton. I want to thank you, Mr. Rush, Ms. Schakowsky
and Mr. Dingell for letting me go out of order. I have an
appointment that has been waiting for about 20 minutes, so I
appreciate that.
I am going to be very straightforward. I am going to ask
the chairman and the commissioner the same question. I just
want to go through the bill very quickly and make sure that you
all are in agreement on adopting the Federal standard on lead.
Are you all both in favor of that, that is in the bill?
Ms. Nord. In theory. I mean, yes, in general theory, of
course.
Mr. Barton. And you, Mr. Moore?
Mr. Moore. Yes.
Mr. Barton. The requirement for mandatory independent
third-party testing and certification, are both of you all
supportive of that?
Mr. Moore. I don't have any problems with it.
Ms. Nord. I think third-party independent testing is always
a very good practice.
Mr. Barton. All right. What about the requirement Ms.
Schakowsky has insisted upon that requires tracking labels for
children's products to identify specific models and sources to
aid recalls? Are you all supportive of that?
Ms. Nord. As long as we have regulatory authority to make
that work.
Mr. Barton. And you, Mr. Moore?
Mr. Moore. Yes.
Mr. Barton. What about the mandatory safety warnings for
choking and other hazards for Internet and catalogue sales for
small balls, balloons and other small parts that currently
require such labels?
Ms. Nord. I think warning people who buy products in those
alternative modes is very useful. I think, though, that we
should be thinking a little bit more expansively about how we
deal with Internet sales.
Mr. Barton. What about you, Mr. Moore?
Mr. Moore. Yes, they should be warned.
Mr. Barton. So that is a minimum?
Mr. Moore. Yes, at a minimum.
Mr. Barton. That might be something you might want to
strengthen then, is that fair to say?
Mr. Moore. That is fair enough.
Mr. Barton. What about the mandatory safety standards for
the nursery products--cribs, high chairs, things like that?
Ms. Nord. Again, we need to do it under the rulemaking
provisions of the statute.
Mr. Barton. And you, Commissioner Moore?
Mr. Moore. Well, I would like to review that again in terms
of the standards. But certainly with respect to information and
events that have occurred in a recent period indicating that
there are problems out there, or there can be problems out
there with cribs, as an example. Certainly we need to find the
best way to protect families from faulty cribs and other types
of faulty products.
Mr. Barton. OK. I am living proof that children are--my son
is world class at getting out of his crib now. I mean, he can
do it less than 30 seconds. It is amazing. As soon as my back
is turned, and I walk out of the room--I mean, he is just like
a little eel getting out of that crib.
The bill authorizes a funding increase of $80 million in
fiscal year 2009, $90 million in 2010 and $100 million in 2011.
Are those funding increases sufficient and do the chairwoman
and the commissioner support them?
Ms. Nord. That is fine.
Mr. Moore. I support them. I think it is a good start.
Mr. Barton. A good start?
Mr. Moore. Yes.
Mr. Barton. All right. What about restoring to the
Commission five full-time commissioners and repealing the
appropriation rider of only three commissioners?
Mr. Moore. I am not certain about that.
Mr. Barton. Really?
Mr. Moore. I have to think about it, because I have worked
so long with three commissioners.
Mr. Barton. Interesting. I thought that would be something
you all would be very supportive of.
Mr. Moore. I don't know yet. I would have to see how it
might work, but I am willing to test it.
Mr. Barton. And you Commissioner?
Ms. Nord. I have no position on this. Again, I have never
worked in a five-Commissioner structure. I will, however, refer
to you to the congressional history of that particular
provision where this committee and its counterpart in the
Senate were very, very critical of the five-Commissioner
structure. And so I think you might want to be mindful of those
criticisms, and if you go that route, take them into account.
Mr. Barton. OK. The requirement that we authorize $20
million to modernize the CPSC testing lab?
Mr. Moore. Absolutely.
Ms. Nord. We need a modernized laboratory.
Mr. Barton. And the expedited rulemaking so that the CPSC
can respond more quickly to product safety concerns?
Ms. Nord. I suggested that in July.
Mr. Barton. So you are for that?
Mr. Moore. Yes. That is an option we ought to have, yes.
Mr. Barton. And, finally, the prohibition on the sale and
export of recalled, banned or noncomplied products, unless the
importing country is first notified?
Ms. Nord. Again, that provision gives us regulatory
authority to implement it, so I think we can work within it.
The concern that the compliance staff of the agency has
expressed is that, without a time certain, you don't have a
trigger for when you can make a decision. So a time certain
would probably make some sense, and there is such in existing
law.
Mr. Barton. Commissioner Moore?
Mr. Moore. Yes. That is a provision that I did some work
on, so certainly I do support it.
Mr. Barton. Again, thank you, Chairman Rush and Chairman
Dingell. We are going to move this bill fairly quickly. It is
my understanding that we want to have a markup within the next
week or 2?
Mr. Rush. That's correct.
Mr. Barton. So we need your input on these issues that we
are going to ask the stakeholders the same questions. But we
are preparing to move this at subcommittee and full committee.
So your personal attention to some of these issues is very
timely.
Thank you again for the courtesy of letting me go out of
order.
Mr. Rush. The Chair thanks the ranking member.
The Chair recognizes the gentlelady, the Vice-Chair of the
subcommittee, Ms. Schakowsky, for 5 minutes.
Ms. Schakowsky. Thank you.
Chairman Nord, if I went to a conference on Medicare Part
D, which is the pharmaceutical portion of it, that was paid for
by the pharmaceutical companies and argued that it is because I
have a limited budget and I want to spend the money in my
district, do you think that my constituents would think that
that was an appropriate thing for me to do, to take the
pharmaceutical company money to travel to a conference where we
were discussing things that affected them?
Ms. Nord. I am really not going to address what your
constituents would think.
Ms. Schakowsky. What do you think? What do you think?
Ms. Nord. That is a hypothetical. All I can talk to you
about is what I did.
Ms. Schakowsky. And I am making the case that it is very
parallel. In fact, I want to quote from an ethics expert: It is
never a good idea to have your expenses paid for by a party or
parties who will be advocating on a matter before your agency.
A Senate career ethics lawyer and another Government agency
required anonymity because it was not clear to comment for the
record. It is legal, but it is clearly an abuse of discretion
and exhibited, at best, enormous insensitivity and, at worst,
outward disdain for the ethical principles of Government
service.
I also note in the same article that on February you were
asked to recruit paying attendees for a meeting of lawyers who
defend manufacturers in product liability cases. In offering to
pay for her trip, Defense Research Institute lawyer Steven
Coronado wrote, I do ask that you assist in marketing by using
the brochures you have received and getting them into the hands
of people that you think might be interested in attending. And
the comment of the Project on Government Oversight called the
request ``creepy'.
Ms. Nord. I agree.
Ms. Schakowsky. So you didn't respond to that?
Ms. Nord. Well, with respect to the DRI thing, I have no
recollection of anyone asking me to go out and recruit people
to attend their conference. I get lots of things in the mail,
many of them I don't see, and I didn't do that.
With respect to the bigger issue, the CPSC travel
regulations have been in place for 20 years.
Ms. Schakowsky. No, I heard you say that before.
Let me ask another specific question. In February, the
International Consumer Product Health and Safety Organization,
a broad-based professional group, balked at the agency's
request that it pay for 6 Commission employees to attend its
meeting in Orlando. They said they, too, are on a tight budget,
offered to pay for your expenses and partial expenses for one
staff member. So is it your policy to actually recruit funding
for trips for Commission staff?
Ms. Nord. Of course not, and there was no such request.
Ms. Schakowsky. Oh, well, so we just have a difference of
opinion here?
Ms. Nord. No, no. It is very clear. We do not solicit those
invitations.
Ms. Schakowsky. Well, we will have to check back with that
agency that said that there was a request.
Ms. Nord. We will work with you on that.
Ms. Schakowsky. I will ask them as well.
Is it not true that there is one full-time employee of the
CPSC, full-time employee, who is in charge of inspecting toys,
Bob, and he is retiring?
Ms. Nord. There are a number of people.
Ms. Schakowsky. I understand. Is there one full-time
employee in charge of----
Ms. Nord. No, there are other full-time employees who test
toys; and, indeed, with respect to the employee that you have
in mind, he often does other things. That is just an inaccurate
statement. It is an urban myth that has grown up around us, and
it is really, really time that it be put to rest because it is
not fair to the employee and agency.
Ms. Schakowsky. Well, if I could get a list of the full-
time employees that inspect toys, that would be extremely
helpful.
Ms. Nord. I would be happy to provide it.
Ms. Schakowsky. Commissioner Moore, you have asked us for
patience. And, right now, consumers are in the buying season
for toys for their children and are not feeling particularly
patient right now. In fact, I think a lot of them are deciding
to go other than for toys, for other products. How long--and I
agree that the downsizing has been going on for years. But I am
just wondering how long you think it is that it would take for
the Consumer Product Safety Commission to regain the confidence
of Americans that they could trust the products that they find,
particularly for their children? And do you think that our
legislation would make a big difference in that?
Mr. Moore. I definitely think your legislation would make a
big difference. I wish I could tell you with some specificity
in terms of how long it might take, but we are talking about
the need to develop experienced people on these particular
issues at the Commission. It may take 2 or 3 years to do that.
But, in the meantime, we will be working on it, and we will let
the public be aware of our work, and we will continue to look
at potentially harmful products.
Ms. Schakowsky. Mr. Chairman, if I could ask one final
question.
Yes or no, Chairman Nord--thank you, Mr. Moore. Would you
support a travel ban of the sort paid for by companies as the
FDA, the FCC, USDA, Congress have?
Ms. Nord. That is totally up to Congress.
Ms. Schakowsky. Would you support it?
Ms. Nord. That is up to Congress.
Ms. Schakowsky. You have commented on many provisions. It
is an easy yes or no.
Ms. Nord. If Congress wishes to do that and gives us the
budget, yes, of course I would.
Ms. Schakowsky. Thank you.
Mr. Rush. The Chair recognizes the gentleman from Texas,
Mr. Burgess.
The Chair thanks the gentleman.
The Chair now recognizes the gentlelady from Tennessee,
Mrs. Blackburn.
Mrs. Blackburn. Thank you so much, Mr. Chairman. I thank
you and I thank Mr. Burgess for allowing me to go ahead so I
can make my meeting.
I am going to follow up on a couple of things and just get
a little more in depth; and I thank you, Ms. Nord, for your
patience with us today.
We talked a little bit about the third-party testing, and I
wanted to know if you could tell us how many companies are
using this third-party testing, how many companies under your
jurisdiction? Can you give us a number of the number of
companies that are using this?
And the other part of this question is, as we have worked
through this process, I have wondered about the number of
companies that import component parts and then do the assembly
in the U.S. Are they going through this third-party testing and
can you give us that information?
Ms. Nord. With respect to how many companies are doing
third-party independent testing today, it really depends on
what kind of product we are talking about. With respect to
toys, you have seen that grow dramatically; and, indeed, the
toy industry, along with the American National Standards
Institute, have put in place an industry-wide plan to deal with
this.
Mrs. Blackburn. Let me stop you right there then if we
don't have a number.
What I would like to ask you all to do--and I am not trying
to make work on this--but you have got some working groups that
have all worked on this legislation. If you can approach these
groups and give us an idea of how many companies are using the
independent testing, how many are manufacturing the component
parts, doing the assembly here, which we know there are lots of
toy companies that do that, and then give us an idea of their
use of the independent testing and then be able to let us get
an idea of how successful that has been.
I hope they are reporting the data back to you and that you
have access to some of this data. I think it would be helpful
to you, and I know it would be very helpful to us. We have
discussed this issue a lot. You have come before the committee
quite a bit. And I wish that you had that information to tell
us if the companies feel like they are successful. If they are
failing to report data to you I think we need to know that.
Once we do this legislation, knowing that that testing works is
going to be more than a theory, it has got to be more than a
theory.
Ms. Nord. Of course.
Mrs. Blackburn. So if you will work with us on that.
Another thing, the $20 million to update the labs, I want
you to speak for a minute, is that sufficient? And what span of
time, what is your time line for updating these labs and
employing some of the new technologies that should yield better
results, quicker turnarounds, et cetera?
Ms. Nord. I am hopeful that we will be able to do this in a
quick time line. We have got a proposal right now with GSA to
look at real estate solutions to our laboratory problem. If we
stay where we are, we are going to have to basically demolish
it.
Mrs. Blackburn. Is $20 million sufficient? Your time line
in your proposal, does that cover it?
Ms. Nord. I think $20 million should do it.
Mrs. Blackburn. And then Section 103 of the bill, the
labels--and I think Ms. Schakowsky is the one who was talking
about that, and you mentioned you needed--if the rulemaking
authority was workable, that it would be practicable, I think
was your comment to us. And what I would like to ask you is if
you would consider this--if the Commission would consider this
a new mandate? And then for our small business manufacturers,
our small toy manufacturers, if you look at it as an unfunded
mandate in that regard.
If you would just speak to that, and if you need to get
back to me in writing, I think that is fine, too.
Ms. Nord. Well, I think the underlying intent of the
provision is very good. It is very useful to be able to track
products back to where they were manufactured. So that I am
very pleased with.
But, again, I think the Commission needs the rulemaking
flexibility to deal with that issue and others that will come
up implementing this.
Mrs. Blackburn. So we need to put a little bit more
attention on that one is what I am hearing you say.
Section 209, to require a manufacturer to provide notice of
recall products on its Web site, to make radio and TV
announcements, including in languages other than Spanish, is
there any other agency that has had this authority or this
mandate and has NHTSA done this? Are you in new territory here
or do you have something you are going to lean on for guidance?
Ms. Nord. I am not aware of other agencies that do this to
this extent. Of course, NHTSA is dealing with a very heavily
regulated product, so it can talk to the companies.
Mrs. Blackburn. My time has expired, so let me cut you off.
Mr. Chairman, if I might, if counsel could provide us some
guidance on that Section 209, I think that might be helpful as
we move forward with our discussion; and I yield my time back.
Thank you.
Ms. Nord. Thank you.
Mr. Rush. The Chair now recognizes the gentleman from
Georgia, Mr. Barrow.
Mr. Barrow. Thank you, Mr. Chairman.
Commissioner Nord, in church, when you want to talk to the
preacher about something delicate, you don't tell him what you
think, you tell him what others are saying. You say, some have
said that your sermon is a little too long or some have said
that you're not hitting this theme or that theme or some have
said that the CPSC ain't exercising its rulemaking authority,
that it has got rulemaking constipation somewhere along the
line. I don't know where it is.
But some have even gone so far as to say the manufacturing
community would like to have some guidance, like to have some
standards, especially those that are complying with best
practices, our laws, domestic laws on the subject of the
poisons and toxins you are supposed to keep out of products.
Some folks have said that it would be helpful.
Now, 4040, H.R. 4040, has got a provision in there that
proposes to streamline the process for rulemaking. This is a
direct follow-up to the gentlelady from Tennessee's comments
about the rulemaking authority. My question to you is, if this
were to be adopted and the rulemaking authority for the CPSC
were to be streamlined in the manner called for by H.R. 4040,
would it actually result in any new rules being adopted or
would it result in any rules being adopted in a more
expeditious manner? Would anything change? I want to hear from
you as to whether or not that provision would actually result
in any change in the rulemaking activity of the Commission.
Ms. Nord. Well, since I recommended it, I certainly hope it
will. What I think is important is to understand how we would
use this.
Mr. Barrow. Can you tell me that it will make a change?
Ms. Nord. Yes.
Mr. Barrow. How will it make a change?
Ms. Nord. It will allow us to operate more quickly,
regulate more quickly with amendments.
Mr. Barrow. I understand that as a process. What are the
kinds of things we can expect that we haven't seen so far?
Ms. Nord. When we are doing amendments to regulations, when
we are doing technical, noncontroversial kinds of regulations,
we can do two-part rulemaking, just doing notice of proposed
rulemaking and then a final rule, as opposed to the three-step
rulemaking which is under our statute.
Mr. Barrow. How many instances can you think of where you
all have been unable to get things done under the current
three-step process you think you could get done under the
proposed two-step process?
Ms. Nord. Again, technical changes, amendments to rules,
things that are noncontroversial, things where we are not
breaking new territory, I think we can do that in two-step. But
where we are doing complicated and new kinds of regulations,
then we should have the option to do three-step rulemaking,
because that allows us to develop information and refine our
regulatory approach to problems.
Mr. Barrow. Well, if this is incorporated in the final
bill, I am going to look to you all to exercise that authority
to the fullest.
Now I want to follow up on a subject that I raised, and
that is the subject of financial responsibility on the part of
people who are way outside the reach of the civil justice
system in this country, for whom you really are the only cop on
the beat anywhere policing a market that is dominated by
foreign importers. The Senate has a provision, a bonding
requirement, that basically says if you have gotten into
trouble and messed up in the past you are going to have to post
a bond as a condition of getting back into the marketplace.
Well, it seems to me to be pretty silly to give people who have
a demonstrated track record of messing up, to force them to buy
their way back into the marketplace when we have no way of
knowing who those people will be in advance of the trouble that
they cause.
What do you think about the idea of trying to impose
financial responsibility as a condition for entering the
American marketplace in the first place? I mean, we have lost
the ability to hold anybody accountable for what they do. And
whenever we have stripped away that fundamental, very
conservative underpinning of safety in the marketplace we got
to replace it with something or basically going to start
subsidizing, corner-cutting in hazard-producing activity in
markets that are beyond--by suppliers who are beyond the reach
of the folks that they harm. What do you think about something
like that?
Ms. Nord. I would like to understand better how that would
work, and perhaps we can sit down and talk about that. I would
like to see a model for where that has worked in other areas.
Mr. Barrow. I will tell you what my words were. You can't
get a license to drive a car in this country without complying
with a financial responsibility to law in the State where you
want to get your license. And it is not to protect you from
other people, it is to protect other people from you.
Now, why don't we apply a similar mentality to folks who
want to not just come into a marketplace but dominate our
marketplace? Why don't we tell the manufacturers who got 80 to
90 percent of the market in this country that as a condition of
you doing business in this country we are going to make sure
that you do it right. The goal--what I am getting at is the
goal ought to be that if it is bought and sold in the USA, it
is going to be just as safe as if it was made in the USA.
Ms. Nord. Well, that is a goal that I think is admirable
and agree with.
Mr. Barrow. How can we possibly accomplish that if you all
are the only cop on the beat with respect to a market that has
gone from 80 percent we make it in this country to 80 percent
it is made someplace else and shipped into this country in
containers in a vast stream of commerce?
We channel to Mississippi, out of its channel and it is
going north instead of south. I mean, it is that big a change
in the stream of commerce, and we got nothing, nothing policing
it except you guys, and you guys were never designed to be the
end-all, be-all and certainly don't have the resources to do
that.
Ms. Nord. Well, yes. But I think practically what you are
suggesting may have untoward or unexpected consequences,
especially on small businesses.
Mr. Barrow. I am sure it will, but so has the current
process of basically outsourcing the supply of stuff without
outsourcing any of the compliance regime that we take for
granted.
Mr. Rush. The gentleman's time has expired.
The Chair recognizes the gentleman from Texas, Mr. Burgess.
Mr. Burgess. Thank you, Mr. Chairman.
Chairman Nord, currently within your agency what type of
outreach do you do to notify nonprofits and other secondhand
retailers when you have a product recall?
Ms. Nord. Each recall, of course, is different, and each
recall has an outreach program which is specific to that
recall. But what we do at a minimum is we require notice on the
Web site, we require posters, we require notification of
consumers to the extent that the company knows the consumer,
and then we put other requirements on as needed.
Are you talking about older products.
Mr. Burgess. Anything that might be available for sale at
Goodwill, Salvation Army. I have got several--I have got
Christian Community In Action. It is a huge resaler in my area.
I am also concerned with things on Craigslist and eBay and
things like that.
Ms. Nord. I think the best example is our Neighborhood
Safety Network, which is something we have developed, which is
those kinds of groups. And we use them to leverage, to talk to
other kinds of groups. So we do give notice to them and work
with them for them to talk to their constituents.
Mr. Burgess. So can nonprofits sign up for an e-mail alert
through CPSC's Web site?
Ms. Nord. Yes. We have a Drive to 1 Million program where
people can go to CPSC dot-gov and sign up to get recall notices
sent directly to their e-mail in-boxes.
Mr. Burgess. And then what kind of outreach right now is
ongoing to the nonprofits themselves?
Ms. Nord. Again, it depends on specifics. But, for example,
with children's products we on a very regular basis do a crib
recall round-up. We go out and talk to daycares.
The other thing that I think is very important here is that
we notify all the State governors' offices and attorneys
general's offices. A number of States have laws that prohibit
the sale of recalled products or the use of recalled products,
and that is another way that we can get the word out to local--
--
Mr. Burgess. So the States have actually involved
themselves in the lawmaking process?
Ms. Nord. We have a number--every State has got a CPSC
deputy, if you will, and we work with them.
Mr. Burgess. Can this equity then be translated into, say,
having a retailer like Craigslist or Ebay post a banner ad on
their Web site to check the product with CPSC for recall
information before you buy it?
Ms. Nord. They have been reluctant to do that. But we do
have programs with them to make sure that they do not sell
recalled products.
Mr. Burgess. So you do? Do you have ongoing surveillance on
these sites?
Ms. Nord. Yes, we do.
Mr. Burgess. That's very good.
Going back to the stuff I was talking about in the opening
statement, the stuff about with the Food and Drug
Administration, we are going to have legislation there; and I
have added my own legislation that would allow the commissioner
of the Food and Drug Administration just simply arrest, stop,
and cease delivery of a product into this country if we found
there to be a serial violation of this country's safety
standards. And this is in regard to food products. Would such a
system be helpful to CPSC as well?
Ms. Nord. Well, I think--yes, I think that we should be
looking at tools whereby we can get to repeat offenders. But I
think in the bill the provision that makes it a crime to sell
recalled products is going to be very helpful.
Mr. Burgess. It is helpful, but I am not sure it is good
enough. Because all summer we heard recall after recall. It
sounded like a recall emergency to me. I mean, you couldn't
even turn on Lou Dobbs without them flashing something up there
about this is recalled today and what is going to be recalled
tomorrow.
And then we heard testimony in another part of one of our
hearings where the stuff is just accumulating. And if it is
stuff with lead in it and there is no plan to dispose of the
stuff, it seems to me to be only reasonable to stop the stuff
before it gets here. Once we decide that, OK, it is coming in,
this is a repeated violation from the same country that has
repetitively violated our laws in the past and let us just stop
it, let us make the ships turn around in the middle of the sea
if necessary and keep that stuff from coming into Long Beach,
California.
Ms. Nord. Again, I agree with the goal that you are trying
to get to. But what we need to make sure is that we can
identify these products, and that is going to take place in a
number of different ways. I just mentioned one. Another one is
that Customs and Border Protection is working with us on their
Automated Commercial Environment system so that we have got
those records before the ship hits the dock, and that is what
we need.
Mr. Burgess. Do you have it before the ship leaves the port
from Shanghai or wherever?
Ms. Nord. Yes.
Mr. Burgess. So, right now, are you able to deny admission
of an imported product from a specific country, manufacturer or
shipper if there are repeated instances where they have
violated our laws or they have shipped contaminated product to
our country?
Ms. Nord. No, we would----
Mr. Burgess. The answer is no?
Ms. Nord. Yes.
Mr. Burgess. Yes, the answer is no.
Ms. Nord. The answer is no.
Mr. Rush. Do you want to answer the question?
Ms. Nord. Well, we can prohibit importation if it violates
a safety standard or if we have reason to think that it is
going to be a dangerous product.
Mr. Burgess. And are there any products recently where we
have done that?
Mr. Rush. The gentleman's time has expired.
The Chair now recognizes the gentlelady from--Mr. Markey
just walked in. The Chair recognizes the gentleman from
Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much.
Chairman Nord, in 1981, the Gramm-Latta bill passed, and it
was the budget proposal of Ronald Reagan. And in it there was a
little provision under the Phil Gramm part of the bill that
actually took jurisdiction away from you over fixed-site
amusement parks denying you an authority, which your agency had
up until then.
Ms. Nord. Yes.
Mr. Markey. If we add language to this bill which gives you
that authority back, will you exercise that authority to
protect families as they go from State to State into amusement
parks if there is an accident, to go in and investigate?
Ms. Nord. If you give us the authority, we will enforce it.
But I would also request that you give us the resources to
enforce it as well.
Mr. Markey. Well, you need more resources. There is no
question about it. But I think you also need the authority. I
think the resources will follow the authority, and so that
would be my intention.
There was a little loophole built in here, OK? And there
were no hearings. You had the authority. It had been working
very well. And so that is kind of still a historical disgrace
as far as I am concerned in terms of taking the authority away
from your agency.
Now, let me ask this. When you get reports of potentially
hazardous products from consumers, hospitals or companies, does
CPSC enter them into a publicly available database so that
people can search through them before they can buy the product?
Ms. Nord. Gosh, we are talking about well over half a
million reports.
Mr. Markey. So the answer is no?
Ms. Nord. No, we don't.
Mr. Markey. The answer is no.
According to the Chicago Tribune, in 2005, the CPSC
investigated less than 1 percent of all reports it got from
emergency rooms. But once you do investigate and decide the
public needs to be warned, can you immediately send out a press
release?
Ms. Nord. If the Commission determines that there is an
imminent hazard and we need to do that, we can.
Mr. Markey. Under the law, don't you have to give 30 days
so a company can sign off?
Ms. Nord. We need to give 30 days to get comments on the
fairness and accuracy of that. But under our imminent hazard
provision, if we make that determination, we can proceed.
Mr. Markey. And can a manufacturer----
Ms. Nord. Or if we file a complaint, we can proceed.
Mr. Markey. Can a manufacturer actually sue CPSC to prevent
you from issuing a warning at all?
Ms. Nord. If they can show that what we are proposing to
put out there is inaccurate.
Mr. Markey. What if it is not inaccurate, can they sue you?
Ms. Nord. They can sue us. They probably wouldn't win.
Mr. Markey. So the Commission gets injury reports that it
almost never investigates and that it also keeps secret from
the public. And if the Commission does want to tell the public
about a risk, it has to ask the company's permission to do so;
and if the company objects, the Commission can be sued. That
is, to me, just ludicrous; and I plan in this legislation to
ensure that the legislation we report remedies that grave
problem.
Commissioner Moore, could you deal with that question and
whether or not it makes any sense to have that provision remain
on the books?
Mr. Moore. I know I missed your point. I'm sorry. Would you
mind repeating the question?
Mr. Markey. I cannot hear you, sir.
Mr. Moore. Would you mind repeating the question? I missed
the question.
Mr. Markey. The question is, should we take that law off
the books that requires the Commission to ask the company's
permission before public information is made about a defect
which the CPSC finds?
Mr. Moore. I don't think it is unreasonable to let a
company know what the charge is about to be. But, in the
meantime, it depends on the imminence of the hazard. If it is
something that is extremely imminent and it is very hazardous,
we have to move forward. Companies ought to have an opportunity
to respond to it.
Mr. Markey. Do you support the current law allowing
companies to sue CPSC to prevent information from being
disclosed?
Mr. Moore. No.
Mr. Markey. You do not?
Mr. Moore. No. Because I don't think that is in the
public's interest in many cases.
Mr. Markey. That is very helpful to me. Thank you. I
appreciate it.
I yield back the balance of my time, Mr. Chairman.
Mr. Rush. The Chair recognizes the gentlelady from
Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
I want to express my appreciation for both of our witnesses
coming today, because I do think that many of your suggestions
are very helpful in helping us draft this legislation.
Chairman Nord, I want to talk to you briefly about this
travel issue; and I just--I think that we can come to some kind
of agreement on this because I have been on this committee now
for a long time. And we have had people come in and they say,
well, lawyers approved this and this has been the practice. But
sometimes when that happens no one actually sat back and said,
wait a minute, does this really pass the smell test even though
people have been doing it?
And mores have changed in society, too. Members of Congress
used to fly around on the tab of private industry, and now we
have realized that that has the appearance of impropriety. So
really my question to you--and it follows up on what Ms.
Schakowsky----
Well, before I ask my question, I want to make one more
point, which is, in fact, many other Government agencies do not
allow regulated industries to pay for travel. For example, the
Securities and Exchange Commission does not accept host-paid
travel reimbursements from organizations regulated by the
agency. The Food and Drug Administration also does not do that,
and neither does the Federal Communications Commission.
So my question to you simply is, given the changing mores,
given what is going on, if Congress gave the agency a budget
for travel to inspect these important areas, to look at, to go
to the toy show, to look at these things, if you had an
independent budget to do that, I assume you would not object to
us also banning host-paid travel, correct?
Ms. Nord. Of course.
Ms. DeGette. Thank you very much. I think that solves that
situation right there.
I also want to ask you about these recalls, Chairman Nord.
Because in my opening statement I am sure you heard me say that
we had 150 recall notices for children's products and toys this
year, 90 last year, and 60 going back to 2002. In your opening
statement you had disputed those numbers. But the way we got
those numbers was my staff went to the CPSC Web site and
actually counted the number of recalls. And maybe it is because
you are defining it more narrowly. You are only defining toys,
and I am defining children's products and toys. And your staff
is now nodding in agreement.
Ms. Nord. I am hearing from them.
Ms. DeGette. But the basic bottom line is that my point is
that the recall notices for this category, children's products
and toys, are going up. I think that it is likely because we
have so many increasing imports coming in from abroad. Would
you not agree with that?
Ms. Nord. No, I don't think I would in this respect. Our
overall recalls inch up every year, and that is what you would
expect them to do. And I looked at and stated in my statement
toys--and we defined that very specifically--where we have seen
the recalls go up is with respect to the lead paint violations.
Ms. DeGette. Right.
Ms. Nord. And that is where we have seen a big increase.
That is because of what we have been doing.
Ms. DeGette. Do you think a large part of that is because
we are getting an increasing percentage of our toys from
abroad, in particular from China? Your staff--some of them are
also nodding.
Ms. Nord. Indeed. The lead paint violations, by and large,
were for Chinese-manufactured products.
Ms. DeGette. Right. And that is because the market has
shifted, right?
Ms. Nord. Yes.
Ms. DeGette. So this is another point I'd like to make,
which is I think that the best way to stop the kids from
getting these--I like this one. This one just says stop; and
this one has lead in it, too. This is one of the recalled
Thomas the Tank Engine toys. The way to stop these toys from
coming in is to prevent the lead in the first place. Because I
am sure you will agree all the studies show a tiny fraction of
recalled toys are actually ever returned. So would you agree
with me that the way to stop this would be to prevent the toys
from coming in in the first place, if we could?
Ms. Nord. Well, that is what we were doing with the recall.
I mean, we have got a lead paint ban.
Ms. DeGette. Except for when you do a recall, the toys are
already out in the market and in the homes. So if you could
find some way--and I think you testified about this in your
testimony. If you could find some way to prevent the toys from
coming into the homes in the first place, then you wouldn't
still have these toys in actually fairly sophisticated
consumers' homes.
Ms. Nord. Well, my concern is that the provision in the
bill is really not going to change that issue, because the lead
that was coming in was above what was already violative of the
law.
What we need to make sure is a couple of things: First of
all, the certification authority which I have asked for which
we do not have now with respect to these kinds of toys would be
incredibly helpful, because what it would do is force companies
to really look at these things before they are marketed.
Ms. DeGette. Right. That is what I am saying.
Ms. Nord. Then we are saying the same thing.
Ms. DeGette. Then you agree. OK, great, thank you.
Mr. Rush. The Chair recognizes the gentleman from Texas,
Mr. Gonzalez.
Mr. Gonzalez. Thank you very much, Mr. Chairman.
Chairwoman Nord, I want to follow up on something that
Congressman Markey was pointing out. This 30-day requirement,
unless there is some exigent circumstances, that is mandatory,
right? The 30-day notice that the manufacturers or whoever is
responsible for bringing the toy in----
Ms. Nord. No. Basically what the statute says is that
before we disclose information that identifies a manufacturer
and a product specifically, we give the manufacturer 30 days
notice to make sure--to verify the accuracy of what we are
going to put out there.
Mr. Gonzalez. Do you really need 30 days for that?
Ms. Nord. No, of course you don't.
Mr. Gonzalez. Do you have discretion to reduce the time
period?
Ms. Nord. Yes, we do.
Mr. Gonzalez. You do?
Ms. Nord. We do. Your bill changes that from 30 days to 15
days and then gives us discretion as well.
Mr. Gonzalez. So you agree with that?
Ms. Nord. Yes.
Mr. Gonzalez. So it seems to me that--if they protest or
whatever, they can actually sue you at that point?
Ms. Nord. They can seek to stop the release by going to
court.
Mr. Gonzalez. So they can sue you prior to determination?
Ms. Nord. Yes. They would go into court----
Mr. Gonzalez. If you do make a determination, they can sue
you after the determination is made?
Ms. Nord. I am sorry?
Mr. Gonzalez. I am saying that prior to you making any type
of determination, the process of arriving at a decision, they
can come and legally file suit contesting this process, in
essence, that you are going to identify them as a manufacturer
wherever it is of potentially dangerous toy--I am trying to get
it straight as to where--at what point in time can a
manufacturer come in and sue you? From the start the process?
Ms. Nord. We would let them know what information we would
disclose. They would come back and say it is inaccurate. We
would say, apparently, under your scenario, we are still going
to release it. At that point, they could then go into court and
seek a temporary restraining order, or whatever is the
appropriate legal device to try to stop it.
Mr. Gonzalez. So they can sue you prior to you making the
determination public?
Ms. Nord. Yes, assuming the court is willing to hear the
case. That is a court procedure, not our procedure.
Mr. Gonzalez. Let's say they don't file a lawsuit in that
process but then you make that determination, you issue
whatever you are going to issue regarding the danger and the
manufacturer and so on, and they disagree that you should have
done that. Can they then come back and do anything after the
fact?
Ms. Nord. They would be suing--or they would be protesting
our action in releasing the documents. So at that point I don't
think there would be any cause of action. But, frankly, I would
really like my lawyers to respond to these questions.
Mr. Gonzalez. Well, it leads me up to something that you
have in your testimony. Legislation also includes a more than
five-fold increase in the cap on CPSC's civil penalties.
Ms. Nord. Yes.
Mr. Gonzalez. So we have increased the exposure in the way
of dollar penalties to these individuals, these companies.
Ms. Nord. Yes.
Mr. Gonzalez. And you have said this is a reasoned approach
to increasing the agency's civil penalties and strengthening
the agency's hand.
Ms. Nord. Yes.
Mr. Gonzalez. What troubles me is the following: Without
forcing the CPSC to respond to a flood of litigation--what you
are saying is that it is a reasonable increase. But, if we went
beyond it, you would think there would be all this protest from
the manufacturers and you would have all these lawsuits. Is
that what you mean?
Ms. Nord. If could I expand on my answer for just a moment.
Mr. Gonzalez. Sure.
Ms. Nord. The agency imposes civil penalties in 99 percent
of the times for failure to report to us potential problems.
That is where we use the civil penalty authority. Increasing it
in the way that the bill does in the way the House has already
passed it would, I think, give us a tool we need. But what our
compliance officers are concerned about is that if it were
increased many, many, many times, that companies would
basically flood us with data so that the trees would get lost
in the forest and that way we would not be able to do our job.
And that is what----
Mr. Gonzalez. It would flood you with litigation is your
testimony?
Ms. Nord. It would flood us with data----
Mr. Gonzalez. In the context of a lawsuit?
Ms. Nord. No, no, of course not.
Mr. Gonzalez. Respond to a flood of new litigation. That is
what you are saying.
See, what I am saying is, don't worry so much about a flood
of new litigation. If you have tools and penalties that get
people's attention, then that is all right. I am just concerned
about a flood of new litigation, and I just don't want any
hesitancy on the part of the Commission to be tough and not be
fearful of litigation.
Ms. Nord. Well, what I am concerned about there, sir, is
that if the exposure is $100 million or more, people are not
going to sit and work with us. Instead, they are going to fight
us. So our resources are going to be diverted into court cases,
as opposed to dealing with companies to try to resolve
disputes; and I just don't think that would be good----
Mr. Gonzalez. I am going to disagree with you. Because I
think when the penalties are out there and they are stiff, it
gets people's attention. That is the way the system has worked
in this country for over 200 years.
Mr. Rush. The gentleman's time has expired.
The Chair recognizes the gentlelady from Oregon.
Ms. Hooley. Thank you, Mr. Chairman.
I just need some clarification from you. I was talking to a
fairly large chain store, and I asked them about what goes on
their shelves and how do they make sure that the toys are safe
and the products safe. And they went on to tell me how they go
to the manufacturer, wherever the manufacturer is, and ensure
that they are safe before they even reach our shores and reach
their shelves. So they have full confidence that what they are
selling is safe.
So my question is, if a chain store can do that, can your
agency do that to test these toys? I mean--and I am, as you
know, very concerned about the lead in toys for children. Can
your agency make sure that these toys are tested before they
leave the country where they were manufactured so we don't even
have to get into the recalls?
I mean, as you have heard said today, if a toy is recalled,
the problem is a parent doesn't really know--it may be sitting,
you know, in an old box where, if you have a lot of kids, you
stuff toys over here and save them for the next child. So can
we stop them from coming into the country in the first place?
Ms. Nord. Our agency does not have premarket testing and
certification requirements. I have asked the Congress to
include legislation that would give us the authority to require
that companies certify that they are complying with existing
safety standards. If companies did that, that would then force
the testing to occur; and I would like to see that authority in
this legislation.
Ms. Hooley. Do you think the bill as it is currently
written has that authority?
Ms. Nord. No, it does not. I would like to see that
authority.
Ms. Hooley. OK. Second question I have--so there is a way
to do that if we give you the authority to do that?
Ms. Nord. Certification authority would be very helpful.
Ms. Hooley. OK. The second question I have is, you have
testified in the Senate, you have testified before in this
committee, and I have heard sort of this--well, we don't need
the money; well, we need the money; well, we don't need--so I
just need to know, where are you in terms of what do you need
to do the job to the very best of your ability? I mean, I
understand that it is difficult to go out and hire 400 people
or 200 people at a time. But what are we talking about? What is
the amount of money that it is going to take for to you really
do your job?
Ms. Nord. I have said repeatedly, and I will say it again,
I would welcome more resources. I want more money.
Now, with respect to the specifics, what we did when this
committee passed out the previous legislation is our
administrative staff sat down and priced it out, if you will.
What we found was, in order to comply with that, we are going
to need--I believe it was around--someplace between 35 and 38
additional staff and about $6 million additional. I did the
same thing with the Senate bill, and that was much higher. We
will do that with this bill as well, and we will do it very
quickly.
Ms. Hooley. OK. And then the last question I have for you
is, again, when you were testifying in front of the Senate
committee that you said you opposed the whistleblower
provision; and you talked about this would drain resources. Do
you have any economic data on that? And, if so, what is it? And
is there any whistleblower provisions that you would, in fact,
be for?
Ms. Nord. One observation I would make to you, just as an
aside, is after I sent that letter up to the Senate expressing
my concerns there, the Senate did amend the provision. So, to a
certain extent, they attempted to listen. I continued to be
very concerned about it. And what I would like to do, if I
might, is submit a memorandum to you that outlines my concerns
in more detail, including the economic concerns.
Ms. Hooley. OK. And is there a whistleblower provision that
you would support?
Ms. Nord. I would really need to see the language. I mean,
I can't----
Ms. Hooley. If you say you don't like what was in the
Senate, so--and you are going to send me the economic data,
which I would really appreciate, I guess as just opposing
something, I would also love to know what you might support.
Ms. Nord. Again----
Ms. Hooley. Just send me what--I mean, just send me what
you think you would support.
Mr. Rush. The gentlelady's time is up.
Ms. Hooley. Thank you, Mr. Chair.
Mr. Rush. The Chair now recognizes the chairman of the full
committee, Mr. Dingell.
Mr. Dingell. Mr. Chairman, I thank you.
Chairman Nord, first, thank you for having made your staff
available to the committee while we wrote the legislation. They
have been very helpful.
I am going to submit to you a letter which I would ask
unanimous consent, Mr. Chairman, be inserted in the record at
the appropriate place.
Mr. Dingell. Madam Chairman, it will be about the adequacy
of the funds authorized to CPSC in H.R. 4040 and also the
number of full-time equivalents and whether they would be
adequate under the legislation and within what time frame you
could submit those, you could put those people to work to do
the business that has to be done down there.
Could you give us your comments about what would be the
practical effect of having CPSC return to a five-commissioner
body? As you know, you are now condemned to functioning with
two. It is my view that this would confer significant benefits
in additional efficiency, competence and your ability to carry
out your mission. Am I correct in that?
Ms. Nord. I don't have any information about the relative
merits. The Appropriations Committee did look at that in the
late 1980s, early 1990s and reached an opposite conclusion
which they expressed pretty strongly in the committee report
language. So I really can't address that beyond saying that.
Mr. Dingell. Now, Madam Chairman, would you share with us
here your thoughts on the provisions in H.R. 4040 that would
permit the CPSC to share information pursuant to section 6 of
the Consumer Product Safety Act with foreign governments? Since
we now live in a world of global commerce, do you agree that it
makes sense under controlled conditions to share this
information with other countries so that they and we might work
better to ensure the public health and safety?
Ms. Nord. I am pleased to see the provision in this bill.
It is something I requested back in July.
Mr. Dingell. Now, Madam Chairman, do you have any concerns
that certain governments might not keep the information shared
under this framework confidential?
Ms. Nord. I think that the committee has addressed this in
the provision.
Mr. Dingell. That does constitute a problem, doesn't it?
Ms. Nord. It could, yes.
Mr. Dingell. Do you have any specific countries that would
be of particular concern to you?
Ms. Nord. I am not----
Mr. Dingell. You don't think you would like to answer that
at this time?
Ms. Nord. Thank you.
Mr. Dingell. I will respect that. Will it be useful for us
to negotiate a memorandum of understanding with the European
Union pertaining to consumer product safety?
Ms. Nord. We already have one.
Mr. Dingell. Do you need authority to do that?
Ms. Nord. No, we have already done that.
Mr. Dingell. OK. Now is there any reason why a firm should
not provide CPSC with information concerning contractors and
subcontractors that it uses to produce a consumer product for
sale in the United States?
Ms. Nord. I have not thought that through. I don't see why
not.
Mr. Dingell. Let's take a look at China, where we buy all
kinds of stuff from the Chinese. We don't have the vaguest idea
of who is producing that. We don't have the vaguest idea of
what safety steps are being taken. Usually, the stuff is not
scrutinized by a Chinese Government agency at any level of
government, nor is it scrutinized indeed here at home. You have
virtually nobody at the gates to see who is sending what in and
whether it is safe or not. And so is there any reason why you
should not be able to compel the importers to provide
information with regard to contractors and subcontractors that
are used to produce consumer products for sale in the United
States?
Ms. Nord. I think that makes sense. And what I am trying--
why I am hesitating is that I believe that that was part of our
agreement with the government of China, but I would like to
confirm that.
Mr. Dingell. This would help you with regard to recalls,
and it would probably in that particular alone serve to protect
the public health and safety, would it not?
Ms. Nord. Again, traceability is a very key concept; and it
is something that we are working through.
Mr. Dingell. Now, Madam Chairman, H.R. 4040 amends section
15 of the Consumer Product Safety Act to permit CPSC to review
and improve companies' plans for mandatory consumer product
recalls.
Ms. Nord. Yes.
Mr. Dingell. In your opinion, is this a good idea?
Ms. Nord. Absolutely.
Mr. Dingell. Would you tell us why, please?
Ms. Nord. Because I think it is absolutely imperative that
we design recalls that address--reach the most consumers in the
most effective way.
Mr. Dingell. Could you cite examples of product recall
plans that might have benefited otherwise from having been
reviewed by CPSC before? I will let you submit that for the
record, if that would be your wish.
Ms. Nord. Thank you very much.
Mr. Dingell. I would ask that the record remain open for
that purpose, Mr. Chairman.
Mr. Rush. So ordered.
Mr. Dingell. Mr. Chairman, I notice that I am 33 seconds
over time. Thank you for your courtesy and thank you for being
here.
Mr. Rush. The Chair now recognizes the gentleman from
Arkansas, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman; and, Chairwoman Nord,
thank you for joining us here today.
I, like most American citizens, believe that we have a
Consumer Product Safety Commission to ensure the safety of
products for consumers. It seems to me, based on a number of
decisions and the types of recalls made, that the Consumer
Product Safety Commission has become more of a commission to
protect big business, a commission to protect big corporations,
many of which are not even located or employing Americans.
I just want to ask you--and I will give one example. I
could give many. Just October 25--this is fairly recent. This
is November 6--October 25, ``Serious head injuries prompt
recall of Bumbo Baby Sitter seats. New warnings and
instructions to be provided to consumers.''
This Bumbo Baby Sitter seat, there is about a million of
them out there. They are made in South Africa. They are not
made by American workers. And the hazard, according to your
agency, if the seat is placed on a table, countertop, chair, or
other elevated surface, young children can arch their backs,
flip out of the Bumbo seat and fall onto the floor, posing a
risk of serious head injuries.
To date, the Consumer Product Safety Commission has
received 28 reports of young children falling out of the Bumbo
Baby Sitter seat, including three skull fractures which
occurred when children fell out of chairs that had been placed
on tables.
I am somewhat familiar with this, because my colleague from
Arkansas, Congressman Vic Snyder, has a young child, Penn; and
when Penn was less than a year old, they purchased this Bumbo
Baby Sitter seat. The picture on the box illustrates that it is
something you should buy if you want to set your young child on
the kitchen countertop, the kitchen island, many people refer
to it as, while you are cooking, while you are working in the
kitchen. That was the picture depicted on the box to market
this thing, the Bumbo Baby Sitter seat.
And Penn fell out of it. Thank God, he didn't fall off the
kitchen island. Instead, he smushed his face into the towel on
the kitchen island. He wasn't seriously injured. No telling
what could have happened had he fallen all the way to the
floor.
But Congressman Snyder's concern and my concern is that
this product was not recalled. They saw it on the news; and,
like many Americans, they assumed it had been recalled. They
went back to where they bought it from, and the guy at the
store was very nice and very courteous, and he explained to
them, oh, no, the Consumer Product Safety Commission did not
recall the product. The Consumer Product Safety Commission
recalled the box.
Now that is not exactly what you did. But you basically--
here is your remedy. The box is what consumers were buying.
They were buying it for its intended purpose, and now they are
told they can't use it in that way. But the product was not
recalled, which to me was siding with big business instead of
siding with the consumer.
When you go out to the store and you buy something, you buy
it based on what the box tells you it will do. It was bought
for one thing, and now you are telling folks it can be used for
another thing.
Here is the remedy. Consumers should never use the infant
seat on a table, countertop, chair or other elevated surface.
Consumers can contact Bumbo to obtain new warning labels,
stickers and instructions free of charge. The new warning label
will state, ``Warning: Prevent falls. Never use on any elevated
surface. Consumers should use the Bumbo seat at ground level
but never leave a child unattended.''
Twenty-eight injuries, three skull fractures. There is a
lot of Penns out there--a million of them--that have one of
these; and so the Consumer Product Safety Commission is now
telling parents that when a child is in his Bumbo seat on a
table, countertop, chair or other elevated surface, the young
child may very well arch their backs and flip out of the Bumbo
seat. But apparently if the Bumbo Chair is on the floor,
something happens to the child where they are no longer able to
arch their backs and flip out of the Bumbo seat onto the floor.
We are talking about young children. We are talking about
infants. And yes, if they fall from a kitchen island it could
very well kill them--28 injuries, three skull fractures. But
what about the children that are simply sitting in this on a
hardwood floor or on a concrete patio? So are you saying that
if they are sitting on the hardwood or concrete patio,
something is going to keep them from arching their backs or
flipping out of the seat?
I guess what I am getting at is, what type of tests--and I
am assuming there were enormous testing done by the Consumer
Product Safety Commission before siding with Bumbo
International in South Africa. What kind of tests were done to
ensure that if a child does very well arch their back and flip
out of the Bumbo seat onto the concrete patio or onto a
hardwood floor that no injury whatsoever is going to occur?
Ms. Nord. The issue with the Bumbo baby seat was one
whereby the instructions that were given for use--and that is
that the company said in their instructions, do not use this on
an elevated surface; nevertheless, they put it on the box. And
that is absolutely wrong, and it needs to be corrected, and
that is what we were doing.
The injuries that occurred happened when the parent put the
child in the seat and the child wiggled or came out of the seat
and fell off the elevated surface onto the ground. That is the
injury. And that is why we took the action we did.
You cannot have a situation where a company says in its
product instructions, don't use this on an elevated surface,
but then has packaging that shows that warned-against behavior.
I mean, we can't allow that; and that is why we took the action
we did.
Mr. Ross. Which was simply slapping them on the wrist,
rather than recalling the product.
Ms. Nord. That is not correct, sir.
Mr. Rush. The gentleman's time has expired.
The Chair and the members of the subcommittee really thank
the two witnesses for their participation today. You have been
very, very generous with your time, and we certainly appreciate
it, and we look forward to working with you into the future.
The committee now will ask that this panel disassemble and
that the second panel please assemble.
We have as a member of the second panel Ms. Kathrin
Belliveau. She is the director of public safety and regulatory
affairs for Hasbro Inc., with corporate headquarters in
Pawtucket, Rhode Island. Hasbro is the No. 2 manufacturer after
Mattel of toys and games in the world, with annual sales of
more than $3 billion. Its toys and brands include Playskool,
Tonka, Super Soaker, Milton Bradley and Parker Brothers.
Sitting next to Ms. Belliveau is Dr. Dana Best, M.D.,
M.P.H., American Academy of Pediatrics. Dr. Best is on the
faculty of the George Washington University School of Medicine
and attends in pediatrics at Children's National Medical Center
here in our Nation's capital. Her research focuses on lead
exposure of pregnant women and children living in the District
of Columbia.
Sitting next to Dr. Best is Mr. Lane Hallenbeck, the vice
president, accreditation services, American National Standards
Institute, ANSI. ANSI is a not-for-profit organization that
accredits national standards to developing organizations and
improves American national standards. It brings together
organizations from both the private and public sector dedicated
to furthering U.S. and international voluntary consensus
standards and conforming to assessments.
Sitting next to Mr. Hallenbeck is Mr. Alan Korn, public
policy director and general counsel, Safe Kids Worldwide. Safe
Kids Worldwide is a global network of organizations whose
mission is to prevent accidental childhood injury, the leading
killer of children 14 and under. Within the United States, Safe
Kids USA consists of more than 300 coalitions nationwide,
implements public outreach and awareness campaigns, conducts
hands-on grassroots activity and works to make childhood injury
prevention a public policy priority.
Sitting next to Mr. Korn is Mr. Joseph M. McGuire, who is
the president of the Association of Home Appliance
Manufacturers, AHAM, tested on behalf of the National
Association of Manufacturers. AHAM is the United States-based
trade association of the home appliance manufacturing industry.
Its members include the manufacturers of major portable and
floor care home appliances and the companies who supply and
service these manufacturers.
And next to Mr. McGuire is Ms. Rachel Weintraub. She is the
director of product safety and senior counsel for the Consumer
Federation of America. The Consumer Federation of America is a
not-for-profit organization, association of 300 consumer
groups, with a combined membership of over 50 million people.
CFA was founded in 1968 to advance consumer interests through
advocacy and education.
We will now recognize Ms. Belliveau for 5 minutes of
opening statements.
STATEMENT OF KATHRIN BELLIVEAU, DIRECTOR, PRODUCT SAFETY AND
REGULATORY AFFAIRS, HASBRO, INC.
Ms. Belliveau. Thank you, Mr. Chairman and members of the
subcommittee. Thank you for giving me the opportunity to
provide testimony on H.R. 4040, the Consumer Product Safety
Modernization Act of 2007. On behalf of Hasbro, I would like to
express our appreciation to the members of the committee and
your staffs for your bipartisan efforts to address consumer
product safety issues.
Hasbro is a worldwide leader in the design and manufacture
of toys and games that are enjoyed by children and families
both here in the U.S. and abroad. Our widely recognized brands
include Playskool, Tonka, Milton Bradley, Transformers, Nerf
and Parker Brothers.
As Director of Product Safety and Regulatory Affairs at
Hasbro and as a mother of two young girls, no issue is more
important to me than the safety of our toys and of the children
who enjoy them. Our product safety and quality assurance
systems are based on a comprehensive and stringent review
process at every stage of product development and production.
We require that all of our products meet or exceed all
applicable national and international standards as well as our
own internal often more stringent Hasbro standards. And to
ensure compliance with these standards, Hasbro's testing and
quality control procedures have always included independent,
third-party testing of our products.
While Hasbro has not been impacted by the recent lead paint
recalls, we have taken additional steps to confirm that our
products and systems and procedures are being adhered to and
that we are doing everything possible to make the safest toys
for our children. We have checked 100 percent of our vendor
base, and we have carried out over 1,000 additional
confirmatory product tests over and above all of the tests that
are routinely carried out by Hasbro, our retailers and third
parties in accordance with the testing program we have had in
place for years. We have also stepped up inspections of all
factories manufacturing Hasbro products, both here in the U.S.
as well as overseas.
While nothing is more important to Hasbro than the safety
of our toys, we recognize that no system is perfect and that,
when it comes to a child's safety, we must continuously be
vigilant. We are constantly looking to improve and learn from
every situation where there is an issue related to a toy's
safety, and we support congressional efforts to equip
regulators with the resources and tools to ensure that our
industry as a whole produces the safest possible products for
our children.
H.R. 4040 significantly tightens the regulation of toy
safety. As you know, it sets a high bar, but by working closely
with industry and others, the committee has crafted a framework
that is workable while enhancing toy safety. The heart of that
framework is a new lead content standard and a mandatory third-
party testing regime.
This legislation creates a new and significantly lower
limit on the total amount of lead that can be in any accessible
part of the toy, and this limit goes down over time. As the
committee knows, Hasbro supports reducing the current total
lead content standard, although not to the levels currently
envisioned in the legislation.
The legislation also breaks new ground by proposing for the
first time in Federal law a limit on soluble lead. We believe
that, when combined with an appropriate total lead standard,
the soluble limit in the bill will further enhance protection
for children by limiting the amount of lead that a child can be
exposed to. Therefore, we would urge the committee to consider
combining a workable total lead standard with a 90 part per
million soluble limit.
Hasbro supports mandatory third-party testing. Working with
the Toy Industry Association, we have been seeking to develop a
rigorous third-party testing system. This system will include
vendor audits, additional process controls and product testing.
Products will be reviewed for conformity not only with the
mandatory standards but the voluntary standards as well. In
Hasbro's view, the proposed legislation strikes the right
balance by carefully defining independence and by requiring
that the testing entity be accredited in accordance with an
accreditation process established or recognized by the CPSC.
The bill also includes severe civil penalties for failure
to report on a timely basis a potential product safety hazard
to the CPSC. In light of these significant penalties, we think
the law would benefit from more precise definitions covering
responsibility of manufacturers to provide information to the
CPSC. We also think that a standard of intent should be
included in the bill, and we look forward to working with the
committee on these issues.
We have had the committee draft for a little over 4 days,
and we are still completing a review of some of its provisions.
We do have questions on several other provisions that we hope
to further explore with you and the staff.
Finally, let me again say that we at Hasbro take the safety
of children very seriously; and we look forward to working with
you on these and other issues as this legislative process
unfolds. Thank you again for the opportunity to appear today.
[The prepared statement of Ms. Belliveau follows:]
Statement of Kathrin Belliveau
Mr. Chairman and Members of the subcommittee:
Thank you for giving me the opportunity to provide
testimony on H.R. 4040, The Consumer Product Safety
Modernization Act of 2007. On behalf of Hasbro, I would like to
express our appreciation to the Members of this Committee and
your staffs for your bipartisan efforts to address consumer
product safety issues.
Hasbro is a worldwide leader in the design and manufacture
of toys and games that are enjoyed by children and families
both here in the U.S. and abroad. Our widely recognized brands
include Playskool, Tonka, Milton Bradley, Nerf and Parker
Brothers.
As director of product safety and regulatory affairs at
Hasbro, and as a parent of two young girls, no issue is more
important to me than the safety of our toys and of the children
who enjoy them. Our product safety and quality assurance
systems are based on a comprehensive and stringent review
process at every stage of product development. We require that
all of our products meet--or exceed--all applicable national
and international standards as well as our own often more
stringent internal standards. And, to ensure compliance with
these standards, Hasbro's testing and quality control
procedures have always included independent, third-party
testing of our products.
While Hasbro has not been impacted by the recent lead paint
recalls, we have taken additional steps to confirm that our
procedures are being adhered to and that we are doing
everything possible to make the safest toys for our children.
We have checked 100% of our vendor base and carried out over
1000 additional confirmatory product tests, over and above all
the tests that are routinely carried out by Hasbro, our
retailers and third parties in accordance with a testing
program that has been in place for years. We have also stepped
up inspections of all factories manufacturing Hasbro products,
both here in the U.S. as well as overseas.
While nothing is more important to Hasbro than the safety
of our toys, we recognize that no system is perfect and that
when it comes to a child's safety, we must continuously be
vigilant. We are constantly looking to improve and learn from
every situation where there is an issue related to a toy's
safety. And we support Congressional efforts to equip
regulators with the resources and tools to ensure that our
industry as a whole produces the safest possible products for
our children.
Mr. Chairman, H.R. 4040 significantly tightens the
regulation of toy safety. As you know, it sets a high bar, but
by working closely with industry and others, the committee has
crafted a framework that is workable while enhancing toy
safety. The heart of that framework is a new lead content
standard and a mandatory third party testing regime.
This legislation creates a new and significantly lower
limit on the total amount of lead that can be in any accessible
part of the toy. This limit goes down over time. As the
committee knows, Hasbro supports reducing the current total
lead content standard, although not to the levels currently
envisioned in the legislation. The legislation also breaks new
ground by proposing, for the first time in Federal law, a limit
on ``soluble'' lead. We believe that, when combined with an
appropriate total lead standard, the soluble limit in the bill
will further enhance protection for children by limiting the
amount of lead that a child can be exposed to. Therefore, we
would urge the Committee to consider combining a workable total
lead standard with a 90 ppm soluble limit.
Hasbro supports mandatory third party testing. Working with
the Toy Industry Association, we have been seeking to develop a
rigorous third party testing system. This system will include
vendor audits, additional process controls, and product
testing. Products will be reviewed for conformity with both
mandatory as well as voluntary standards. In our view, the
proposed legislation strikes the right balance by carefully
defining independence and requiring that the ``testing entity'
be ``accredited in accordance with an accreditation process
established or recognized by the Commission.''
The bill also includes severe civil penalties for failure
to report on a timely basis a potential product safety hazard
to the CPSC. In light of these significant penalties, we think
the law would benefit from more precise definitions covering
the responsibility of manufacturers to provide information to
the CPSC. We also think that a standard of intent should be
included in the bill. We look forward to working with the
committee on these issues.
Mr. Chairman, we have had the committee draft for a little
over 4 days. We are still completing a review of some of its
provisions. We do have questions on several other provisions
that we hope to explore further with you and the staff.
Finally, let me again say that we at Hasbro take the
safety of children very seriously. We look forward to working
with you on these and other issues as the legislative process
unfolds.
Thank you again for the opportunity to appear today.
----------
Ms. Schakowsky [presiding]. Dr. Best.
STATEMENT OF DANA BEST, M.D., AMERICAN ACADEMY OF PEDIATRICS
Dr. Best. Thank you, Madam Chairwoman. Good morning--or
afternoon now. Thank you for the opportunity to testify today
on H.R. 4040, the Consumer Product Safety Modernization Act. My
name is Dr. Dana Best, and I am proud to represent the American
Academy of Pediatrics.
H.R. 4040 represents an important step towards reducing
children's exposure to lead in consumer products. First and
foremost, it establishes uniform Federal standards for lead
content where none have existed. H.R. 4040 allows manufacturers
to choose between satisfying standards either for total lead or
soluble lead in children's products.
The legislation also reduces the allowable lead content of
paint from the current level of 600 parts per million to 90
parts per million.
The AAP further appreciates the fact that this legislation
requires lead testing for products designed or intended for use
by or with children up to the age of 12 years.
The AAP congratulates the bill's sponsors on making
significant strides toward improving the safety of children's
products. In that cooperative and constructive spirit, the AAP
would like to recommend 5 changes that would further strengthen
this proposal:
Number 1, the standards for lead exposure can and should be
further reduced to AAP's recommendation of 40 parts per million
in all parts of children's products.
Number 2, H.R. 4040 should define a standard test for
soluble lead. The results of lead tests on products can vary
considerably depending upon the methodology used to assess
solubility. In order to ensure that this is a meaningful
standard that can be enforced consistently, the CPSC should be
directed to develop a rigorous test protocol with appropriate
opportunities for public comment. In addition, the lead
standard that drops from 600 to 100 parts per million should
state explicitly that it refers to total lead.
Number 3, some of the timetables in H.R. 4040 should be
accelerated. The standard of no more than 100 parts per million
total lead in children's products should go into effect
earlier, preferably within no more than 2 years. Additionally,
no timetable is specified for the CPSC to engage in the
necessary rulemaking to establish the standard of 90 parts per
million soluble lead. The CPSC should be instructed to engage
in this rulemaking on a set timetable, such as within 6 months
to 1 year. In the meantime, the alternative standard for total
lead should apply to all children's products.
Number 4, given that there is no compelling reason to
include lead in children's products, lead content should be
banned regardless of accessibility.
Number 5, Children's products should be defined to cover
those designed or intended for use of children up to age 12
years not only with regard to lead testing but related to other
CPSC standards as well. The bill's limitation of other
standards to products designed or intended for children under
the age of 6 years fails to protect children age 6 to 12 years
from hazards such as choking, sharp edges, amputation risk,
caustic chemicals, and electrical shock. In addition, the
legislation should not qualify this definition by requiring
that it apply to products designed ``primarily'' for children
of a certain age. The word ``primarily'' should be deleted from
the bill.
In conclusion, the American Academy of Pediatrics praises
H.R. 4040, the Consumer Product Safety Modernization Act, as an
important advance in protecting our Nation's children from the
pernicious threat to health and development posed by lead. We
look forward to continuing our dialogue and will work together
towards our mutual goal of improving the health and well-being
of all children.
Thank you.
Ms. Schakowsky. Thank you.
[The prepared statement of Dr. Best follows:]
Testimony of Dana Best, M.D.
Good morning. Thank you for the opportunity to testify
today before the Energy and Commerce Subcommittee on Commerce,
Trade and Consumer Protection on H.R. 4040, the Consumer
Product Safety Modernization Act. My name is Dana Best, MD,
MPH, FAAP, and I am proud to represent the American Academy of
Pediatrics (AAP), a non-profit professional organization of
60,000 primary care pediatricians, pediatric medical sub-
specialists, and pediatric surgical specialists dedicated to
the health, safety, and well-being of infants, children,
adolescents, and young adults. I am an Assistant Professor of
Pediatrics at the George Washington University School of
Medicine and an attending physician at Children's National
Medical Center in Washington, DC. I also serve on the AAP's
Committee on Environmental Health, which is the primary body
within the AAP that handles lead issues.
On September 20, I had the privilege of testifying before
this subcommittee to present the AAP's recommendations
regarding the lead content of toys and other children's
products. Based upon the overwhelming scientific evidence of
the serious danger that lead poses to children and the lack of
a compelling need to include lead in children's products, the
AAP recommended banning lead above trace amounts in children's
products. The AAP advised the subcommittee to define a trace
amount as no more than 40 parts per million. The AAP further
recommended that a children's product be defined as one used by
or with children under the age of 12 years in order to provide
a standard that protects the most children possible throughout
periods of rapid brain development.
H.R. 4040 represents an important step toward reducing
children's exposure to lead in consumer products. First and
foremost, it establishes uniform federal standards for lead
content where none have existed. Current regulations permit
most products to contain unlimited amounts of lead in any
component other than paint. The proposed legislation will
ensure that children's products must be tested and conform to
limits on lead content.
The legislation reduces the allowable lead content of paint
from the current level of 600 parts per million to 90 parts per
million. As members of the subcommittee are undoubtedly aware,
millions of toys and children's products have been recalled
this year due to violations of the current lead standard of 600
parts per million. That standard, established in 1978 and based
on an outdated understanding of the harms of lead poisoning,
should be lowered significantly. H.R. 4040 sets a standard of
lead in paint that is approximately one-seventh of the current
allowable level. This step will greatly enhance the safety of
products and homes.
H.R. 4040 allows manufacturers to choose between satisfying
one of two standards for lead content in children's products.
Manufacturers may choose to limit total lead content to a level
that is initially set at 600 parts per million and is reduced
to 250 parts per million after two years, then to 100 parts per
million another two years later. Alternatively, manufacturers
may choose to limit soluble lead content to 90 parts per
million. The standards of 90 and 100 parts per million are
significant goals which, if met, will measurably reduce
exposure to lead in children's products.
The Academy commends the bill's authors for establishing a
single standard for lead in all children's products, rather
than attempting to establish different classes of products with
varying standards. It is critically important that all
children's products be held to the same aggressive standards to
protect children's health and assure parents that all
children's products are safe.
The AAP further appreciates the fact that this legislation
requires lead testing for products designed or intended for use
by or with children up to the age of 12 years. Children's
brains develop rapidly throughout childhood, and significant
damage can occur from lead exposure at any point during this
time. This provision represents a vital protection for child
health.
The AAP congratulates the bill's sponsors on making
significant strides toward improving the safety of children's
products. In that cooperative and constructive spirit, the AAP
would like to recommend five changes that would further
strengthen this proposal:
The standard for lead exposure can and should be further
reduced to AAP's recommendation of 40 parts per million in all
parts of children's products. We can reduce or prevent damage
to children's brains by lowering the lead standard to AAP's
recommended level.
H.R. 4040 should define a standard test for ``soluble''
lead. The results of lead tests on products can vary
considerably depending upon the methodology used to assess
solubility. Further, the relationship of solubility to
bioavailability and absorption will vary by method used to
determine solubility. In order to ensure that this is a
meaningful standard that can be enforced consistently, the
Consumer Product Safety Commission should be directed to
develop a rigorous test protocol with appropriate opportunities
for public comment. In addition, the lead standard that drops
from 600 to 100 parts per million should state explicitly that
it refers to total lead.
Some of the timetables in H.R. 4040 should be accelerated.
While the standard limiting lead in children's products to 100
parts per million is laudable, it does not take effect until
four years after enactment. The standard should go into effect
earlier, preferably within no more than two years.
Additionally, no timetable is specified for the Consumer
Product Safety Commission to engage in the necessary rulemaking
to establish the standard of 90 parts per million soluble lead.
The CPSC should be instructed to engage in this rulemaking on a
set timeframe, such as within six months to one year. In the
meantime, the alternative standard for total lead should apply
to all children's products.
Given that there is no compelling reason to include lead
in children's products, lead content should be banned
regardless of accessibility. If an accessibility standard is
included, it should state explicitly that paint, coating or
electroplating do not render lead inaccessible. The Commission
should establish parameters for this exception by rulemaking
and review them periodically, especially as lead-free
alternatives become available.
Children's products should be defined to cover those
designed or intended for use of children up to age 12 years not
only with regard to lead testing, but related to other CPSC
standards as well. The bill's limitation of other standards to
products designed or intended for children under the age of 6
years fails to protect children age 6 to 12 years from hazards
such as choking, sharp edges, amputation risk, caustic
chemicals, and electrical shock. In addition, the legislation
should not qualify this definition by requiring that it apply
to products designed ``primarily'' for children of a certain
age. The word ``primarily'' should be deleted from the bill.
In conclusion, the American Academy of Pediatrics praises
H.R. 4040, the Consumer Product Safety Modernization Act, as an
important advance in protecting our nation's children from the
pernicious threat to health and development posed by lead. We
look forward to continuing our dialogue and our work together
toward our mutual goal of improving the health and well-being
of all children.
----------
Ms. Schakowsky. Mr. Hallenbeck.
STATEMENT OF LANE HALLENBECK, VICE PRESIDENT, ACCREDITATION
SERVICES, AMERICAN NATIONAL STANDARDS INSTITUTE
Mr. Hallenbeck. Thank you, Madam Chair.
As noted, my name is Lane Hallenbeck; and I am Vice
President of Accreditation Services for the American National
Standards Institute, or ANSI. My responsibilities at ANSI
include directing accreditation programs that assess the
competence of third-party conforming assessment bodies. In lay
terms, this means I work with organizations that determine
whether products, services, systems or people comply with
requirements found in voluntary standards or mandatory
regulations.
ANSI is coordinator of the U.S. private-sector-led and
public-sector-supported standards and conformity assessment
system. In this role, we work with a broad range of industries.
We speak as the U.S. voice in standardization forums around the
globe; and, through our network of members, we represent the
interests of more than 125,000 organizations and companies and
3\1/2\ million professionals worldwide.
During its 9-year history, the Institute has demonstrated a
unique ability to bring together diverse stakeholders in a
spirit of cooperation and collaboration. Among other things, we
have successfully teamed with the Council of Better Business
Bureaus to tackle identity theft, partnered with the 9/11
Commission and the DHS to address some urgency preparedness in
homeland security, and helped Health and Human Services to
develop a secure electronic health record for every American.
In all our efforts, protecting the safety of consumers has been
of paramount importance. It is a key element of the Institute's
mission, and we are committed to its implementation.
Earlier this year, the Toy Industry Association asked ANSI
to help them design a program of testing inspection and
education that could be implemented across the industry's
global supply chain. ANSI responded with a 3-point proposal.
First, we would help the toy industry analyze existing
standards, technical regulations and conformity assessment
programs. Next we would form technical working groups and
coordinate their efforts to design testing and inspection
methodologies. And, finally, we would recommend steps to
improve compliance activities throughout the toy industry's
global supply chain.
TIA accepted this proposal, and I along with several ANSI
colleagues have begun working with the Association and its
members 2 months ago. Almost immediately we agreed that two
criteria were necessary for success in the global marketplace:
common product requirements and harmonized test methods. Our
solutions will draw from a toolbox of conformity assessment
resources, not just testing and inspection but also systems
auditing, accredited certification programs and, of course,
education and training.
The program we are developing will be committed to
improving product safety, not just reducing the number of
recalls. It will be sustainable and forward looking to
anticipate and prevent problems yet unknown. It will be
considerate of all types of suppliers, regardless of size or
location; and it will support the concept of one standard, one
test accepted everywhere.
We are making great progress. There are three groups on
process control, testing and reporting and design; and they are
meeting on a weekly basis. During biweekly teleconference, they
report to a steering committee I Chair that is comprised of
working group leaders and representatives of consumers, the
U.S. Government and staff from both ANSI and TIA.
Recommendations from the working groups and steering
committee are targeted for broad review and approval, including
a public comment period and formal review and endorsement by
TIA before year end. Implementation is expected to begin in
early 2008.
Government, industry and consumers need to work at a single
purpose if we are to restore marketplace confidence in imported
goods. Regulatory bodies that lead oversight and regulation for
consumer health and safety issues will not be able to handle
the workload alone. ANSI is proud to help coordinate the
public-private partnership.
Thank you, and I welcome your questions.
[The prepared statement of Mr. Hallenbeck follows:]
Statement of Lane Hallenbeck
The American National Standards Institute (ANSI) is a
private non-profit organization whose mission is to enhance
U.S. global competitiveness and the American quality of life by
promoting, facilitating, and safeguarding the integrity of the
voluntary standardization and conformity assessment system.
ANSI's membership is comprised of businesses, professional
societies and trade associations, standards developers,
government agencies, and consumer and labor organizations.
Through this network of members, the Institute represents the
diverse interests of more than 125,000 companies and
organizations and 3.5 million professionals worldwide.
ANSI is the official U.S. representative to the
International Organization for Standardization (ISO) and, via
the U.S. National Committee, the International Electrotechnical
Commission (IEC), and is a U.S. representative to the
International Accreditation Forum (IAF). A memorandum of
agreement between ANSI and the Commerce Department's National
Institute of Standards and Technology outlines a mutual
understanding of the roles of each organization. This includes
ANSI's recognition as the official U.S. member of the
International Organization for Standardization (ISO) and the
International Electrotechnical Commission (IEC).
Since its formation, ANSI has been coordinating the
development of standards-based solutions to support accident
prevention and improve worker and consumer safety. Today, 10%
of the approximately 10,000 approved American National
Standards (ANS) currently available address issues that help to
protect the workforce, consumers and the general public.
Protecting the safety of consumers is of paramount
importance to ANSI. It is a key element of the Institute's
mission. ANSI works hard to ensure that there is consumer
participation at all levels of the total federation--from the
Board of Directors all the way through the policy and technical
activities. Sometimes the participation is by consumers
themselves, at other times representation is through a consumer
organization. But there is always a need for more consumer
involvement in standards and conformity assessment activities.
ANSI's processes give any interested stakeholder the
opportunity to engage in the development of a standard or the
approval of a compliance program. The Institute's procedures
are written to assure that everyone, regardless of ANSI
membership status, is able to participate in ANSI activities.
If someone is interested in the subject covered by a standard,
for example, that individual may participate by applying to
become a member of the consensus body or submitting a
contribution during public review and comment.
American National Standards (ANS) run the entire spectrum,
from the very first ANS on pipe threads to work that is
underway today to meet emerging needs in areas ranging from the
service sectors to the aging populations and those with
disabilities.
Standards are important for everyone because they influence
the design, safety, manufacturing and marketing of many
products worldwide. Standards are not only developed in
response to injuries, hazards or other identified safety risks,
but more often in a proactive manner to prevent injuries from
known hazards. Some areas that come to mind where voluntary
standards have especially made a difference in enhancing
consumer safety include:
<bullet> the National Electric Code (ANSI/NFPA 70)
<bullet> Safety for Ground-Fault Circuit Interrupters
(ANSI/UL 943)
<bullet> Safety for Gas Water Heaters (ANSI Z21.10.1)
<bullet> Safety of Corded Window Covering Products (ANSI/
WMCA A100.1)
<bullet> Accessible and Usable Buildings and Facilities
(ANSI/ICC A117.1)
<bullet> Standard Specification for Protective Headgear
Used in Bicycling or Roller Skating (ASTM F1447-98--Approved as
an American National Standard)
Voluntary consensus standards and conformity assessment
programs are driven by requirements for continuous quality
improvement--especially as technology changes and evolves. ANSI
and its hundreds of accredited standards developers and
conformity assessment bodies are constantly reviewing and
updating their systems to stay abreast of current and
anticipated needs.
ANSI: Responding to National Priorities.
ANSI's actions are aligned with the United States
Standards Strategy (USSS), an overarching framework document
that calls for close cooperation between those who develop the
nation's standards and conformity assessment programs and those
who use them. The USSS (excerpted in Annex B of this testimony)
calls for the consistent use by government of voluntary
consensus standards. It also calls for the standardization
community to show leadership in developing responses to
emerging national priorities.
ANSI's standards panels are excellent examples of how the
Institute is addressing the critical needs of the nation. Last
fall, ANSI partnered with the Council of Better Business
Bureaus to tackle identity theft prevention and ID management--
an issue that has victimized more than 18 million Americans
over the past two years.
The Institute has partnered with the 9-11 Commission and
the DHS to address homeland security; and with the President's
Office of Science and Technology Policy to help lead global
nanotechnology initiatives. ANSI is working with HHS to
implement the President's vision for every American to have a
secure electronic health record within the next ten years. And
the Institute's newest panel is working with a broad spectrum
of agencies to support the commoditization of viable
alternatives to fossil fuels and the diversification of the
global energy infrastructure.
ANSI has a unique ability to bring together in a neutral
forum representatives of industry, standards developing
organizations, trade associations, professional and technical
societies, government, labor and consumer groups.
ANSI believes that a strong public-private partnership is
essential to renew consumer confidence in the safety of toys.
ANSI: Acting to Improve Toy Safety
Earlier this year, the Toy Industry Association asked ANSI
to help them design a program of testing, inspection and
education that could be implemented across the industry's
global supply chain.
ANSI responded with a three-point proposal:
First, we would help the toy industry analyze existing
standards, technical regulations and conformity assessment
programs.
Next, we would form technical working groups and coordinate
their efforts to design testing and inspection methodology
programs.
Finally, we would recommend steps to improve compliance
activities throughout the toy industry's global supply chain.
TIA accepted this proposal and I, along with several ANSI
colleagues, began working with the association and its members
two months ago.
Almost immediately, we agreed that two criteria were
necessary for success in the global marketplace: common product
requirements and harmonized test methods.
This means the system must be efficient, consistent and
sustainable. It must focus on improving how products are
evaluated and assessing who is conducting the evaluations.
ANSI is focusing its facilitation efforts on the
development and standardization of compliance procedures that
can be used industry-wide and throughout the supply chain. . .
in the past, these activities have been defined by individual
manufacturers and retailers.
The Institute is also turning its attention to
harmonization of the current practices used to evaluate the
competence of the conformity assessment bodies that are
evaluating compliance to requirements . . . regardless of
whether those requirements are defined in a voluntary standard
or a Federal regulation.
For both the requirements and the organizations, we are
working to harmonize these practices for use industry-wide.
Our solutions will draw from a toolbox of conformity
assessment resources. Not just testing and inspection, but also
systems auditing, accredited certification programs, and, of
course, education and training. These tools are defined in the
National Conformity Assessment Principles of the United States,
excerpted in Annex C of this testimony.
The program we are developing will be committed to
improving product safety, not just reducing the number of
recalls. It will be sustainable and forward looking to
anticipate and prevent problems yet unknown. It will be
considerate of all types of suppliers--regardless of size or
location. And it will support the concept of ``One standard . .
. One test . . . Accepted everywhere.''
We are making great progress. Three working groups on
Process Control, Testing and Reporting, and Design are meeting
on a weekly basis. During bi-weekly teleconferences, they
report to a Steering Committee comprised of the WG leaders, and
representatives of consumers, the U.S. government, and staff
from both ANSI and TIA.
Recommendations from the Working Groups and Steering
Committee are targeted for broad review and approval--including
a public comment period and a formal review and endorsement by
TIA--before year-end.
Implementation is expected to begin in early 2008.
In the meantime, a broad spectrum of stakeholders is
already taking decisive action to remove unsafe products from
distribution. In particular, brands and retailers have shared
with ANSI that they have intensified their conformity
assessment efforts to ensure the integrity of the import safety
net.
There can be no guarantee unless all the stakeholders are
working together. From producer to government regulator to
retailer to parent--everyone has a role to play.
Building Consumer Confidence
Just as consumers have the right to expect that the toys
they buy for their children will be safe, the same expectation
should hold true for the toothpaste they use, the tires they
travel on, and the food they eat.
The emergence of the global marketplace has created both
consumer benefits and problems. If the public and private
sectors work together, practicable solutions can be found to
address the emerging issues of consumer health and safety in a
global world.
Steps are already being taken. On September 26, ANSI hosted
a conference focused on building consumer confidence in the
products that enter into our marketplace. Presentations and
discussion sessions engaged participants in identifying
resources, initiatives, and applicable standards and compliance
programs that will create a safer consumer environment.
A follow-up session was held during a joint meeting of the
ANSI member forums in mid-October. The Institute is committed
to a process that identifies necessary, practicable and
immediate actions that can be taken to ensure that only safe
products enter into the U.S. marketplace.
ANSI wants to help reassure consumers that the products
they find on the shelves of their local retailer have been
tested and found to be safe--regardless of country of origin.
In order for the Institute to accomplish this objective:
<bullet> Standards and conformity assessment resources
that are already in place must be used more efficiently.
<bullet> Government and industry need to work at a single
purpose to identify gaps in the current systems of testing and
inspection of products imported to the United States.
<bullet> New human and financial resources must be brought
to bear to strengthen existing systems and fill any identified
gaps.
In some cases, it may be necessary to elevate certain
requirements from voluntary to mandatory status. If this
happens, the U.S. must also be careful to remain compliant with
our obligations in the WTO and existing bi-lateral trade
agreements. Any efforts made to improve the safety of imported
products should not cause other governments to reciprocate with
trade barriers on American exports.
CPSC and the other regulatory bodies that lead oversight
and regulation for consumer health and safety issues will not
be able to handle the workload alone--even with additional
financial resources. Private and public sector resources must
be utilized in harmony if consumer confidence in imported goods
is to be restored.
ANSI stands ready to coordinate that public/private
partnership. The Institute knows how to leverage voluntary
consensus standards and the related compliance systems to
create solutions that engage and support all stakeholders.
ANSI looks forward to working in partnership with this
committee, Congress, and other U.S. public sector
representatives to stem the tide of unsafe products imported
into our country.
Background on the U.S. Standardization and Conformity Assessment System
and the Role of the American National Standards Institute (ANSI)
The U.S. private sector-led, voluntary standardization and
conformity assessment system has been in existence for more
than 100 years. Highly decentralized, the system is naturally
partitioned into industrial sectors that are supported by
numerous independent, private sector standards developing
organizations (SDOs). Marketplace demand drives the system's
activities, with standards and conformity assessment programs
typically developed in response to specific concerns and needs
expressed by industry, government, and consumers.
Since 1918, this system has been administered and
coordinated by the American National Standards Institute (ANSI)
with the cooperation of the private sector and the Federal,
state and local governments. ANSI does not develop standards or
conformity assessment programs. Rather, it functions as a
central clearinghouse and coordinating body for its member
organizations. The Institute is a unique partnership of
industry, professional, technical, trade, labor, academic and
consumer organizations, as well as government agencies. These
members of the ANSI federation actually develop standards and
conformity assessment programs, contributing their time and
expertise in order to make the system work.
ANSI ensures the integrity of the U.S. standards and
conformity assessment system by:
1. Establishing a set of due process-based ``essential
requirements'' that SDOs may follow in order to manage the
development of consensus standards and conformity assessment
programs in a fair and open manner,
2. Accrediting SDOs who adhere to these requirements,
3. Approving candidate standards from ANSI-accredited SDOs
as American National Standards (ANS), and
4. Conducting regular audits of the ANS activities of ANSI-
accredited SDOs to ensure ongoing compliance with ANSI's
essential requirements.
1ANSI has accredited hundreds of SDOs across a range of
industry sectors. These industries include (but certainly are
not limited to) telecommunications, medical devices, heavy
equipment, fire protection, information technology, petroleum,
banking, and household appliances. There are now approximately
10,000 ANSI-approved ANS that address topics as diverse as
dimensions, ratings, terminology and symbols, test methods,
interoperability criteria, product specifications, and
performance and safety requirements. These standards
development efforts serve the public interest and are being
applied to new critical areas such as the environment,
healthcare, homeland security, and nanotechnology.
The Institute's approval of a candidate standard or
conformity assessment program as an ANS verifies that the
principles of openness and due process have been followed and
that a consensus of all interested parties has been reached.
Due process requires that all proposed ANS be circulated to the
public at large for comment, that an attempt be made to resolve
all comments, and that there is a right of appeal. In addition,
ANSI considers any evidence that a proposed ANS is contrary to
the public interest, contains unfair provisions or is
unsuitable for national use. This basic formula has been the
hallmark of the ANS process for decades, and it has garnered
worldwide respect and acceptance.
One of the best indicators of confidence in the U.S.
voluntary consensus standardization and conformity assessment
system (as exemplified by the ANS process) is Congress's 1996
passage of the National Technology Transfer and Advancement Act
(NTTAA). This law (P.L. 104-113) requires Federal agencies to
use voluntary consensus standards and conformity assessment
programs for regulatory purposes wherever feasible and to
procure equipment and services in accordance with such
standards. It also requires agencies to increase their
participation in the development process and directs the
Commerce Department's National Institute of Standards and
Technology (NIST) to coordinate Federal, state and local
voluntary standards and related conformity assessment
activities.
ANSI's success is measured by usage and acceptance. From
the government's perspective, there are two examples of
confidence in the ANSI process that are worth citing here:
The first is the Consumer Product Safety Act. This 1972
legislation mandates that if a voluntary standard exists, CPSC
may issue a mandatory standard only when the voluntary
standards will not eliminate or adequately reduce the risk of
injury or death, or it is unlikely that there will be
substantial compliance with the voluntary standard.
The second is Congress' 1996 approval of Public Law 104-
113, also know as the National Technology Transfer and
Advancement Act (NTTAA). This law requires Federal agencies to
increase their reliance upon and participation in the voluntary
consensus standards and conformity assessment systems.
ANSI also promotes the international use of U.S. standards
and conformity assessment programs. The Institute serves as the
U.S. national body representative in two major, non-treaty
international standards organizations: the International
Organization for Standardization (ISO) and, through the United
States National Committee (USNC), the International
Electrotechnical Commission (IEC). ANSI and the USNC play a
leadership role in ISO and IEC, respectively, on both policy
and technical matters.
Part of ANSI's role as the U.S. member of ISO includes
accrediting U.S. Technical Advisory Groups (U.S. TAGs) which
develop and transmit, via ANSI, U.S. consensus positions on the
activities and ballots of technical committees and
subcommittees. Similarly, the USNC approves TAGs for IEC
activities. In many instances, voluntary standards and
conformity assessment programs developed by U.S. SDOs are taken
forward, through ANSI or the USNC, where they are approved in
whole or in part by the ISO and/or IEC as International
Standards. ANSI also encourages the adoption of international
standards as national standards where they meet the needs of
the user community.
In addition, ANSI advocates U.S. positions in various
regional standards organizations and regularly meets with
representatives from standards bodies in other nations. Thus,
ANSI plays an important role in facilitating the development of
global standards and related conformity assessment programs
that support global commerce and which prevent regions from
using local standards that favor local industries as trade
barriers.
Conformity assessment is the term used to describe steps
taken by both manufacturers and independent third-parties to
determine fulfillment of standards requirements. ANSI's role in
the conformity assessment arena includes accreditation of
organizations that certify that products and personnel meet
recognized standards. The ANSI-American Society for Quality
National Accreditation Board (ANAB) serves as the U.S.
accreditation body for management systems certification,
primarily in areas such as quality (ISO 9000 family of
standards) and/or the environment (ISO 14000 family of
standards). ANSI also is involved in several international and
regional organizations to promote multilateral recognition of
conformity assessments across borders to preclude redundant and
costly barriers to trade.
In summary, through its various roles and responsibilities,
ANSI advances its mission to ``enhance both the global
competitiveness of U.S. business and the U.S. quality of life
by promoting and facilitating voluntary consensus standards and
conformity assessment systems and safeguarding their
integrity.''
Excerpt from the United States Standards Strategy
Principles. It is well established in the community of
nations that standards should meet societal and market needs
and should not be developed to act as barriers to trade. In
approving the World Trade Organization Technical Barriers to
Trade Agreement, WTO members recognized that goal and
established globally accepted principles as a framework to
promote cooperation and discourage the use of standards as
trade barriers. The U.S. standards and conformity assessment
system is based on the following set of globally accepted
principles for standards development.
<bullet> Transparency. Essential information regarding
standardization and conformity assessment activities is
accessible to all interested parties.
<bullet> Openness. Participation is open to all affected
interests.
<bullet> Impartiality. No one interest dominates the
process or is favored over another.
<bullet> Effectiveness and relevance. Standards and
related conformity assessment programs are relevant and
effectively respond to regulatory and market needs, as well as
scientific and technological developments.
<bullet> Consensus. Decisions are reached through
consensus among those affected.
<bullet> Performance-based. Standards are performance-
based, specifying essential characteristics rather than
detailed designs where possible.
<bullet> Coherence. The process encourages coherence to
avoid overlapping and conflicting standards and conformity
assessment programs.
<bullet> Due Process. Standards development accords with
due process so that all views are considered and appeals are
possible.
<bullet> Technical Assistance. Assistance is offered to
developing countries in the formulation and application of
standards and related conformity assessment programs.
In addition, U.S. interests strongly agree that the process
should be:
<bullet> Flexible, allowing the use of different
methodologies to meet the needs of different technology and
product sectors;
<bullet> Timely, so that purely administrative matters do
not slow down the work, but meet market expectations; and
<bullet> Balanced among competing interests.
Excerpt from the National Conformity Assessment Principles of the
United States
The National Conformity Assessment Principles for the
United States document articulates the principles for U.S.
conformity assessment activities that will allow consumers,
buyers, sellers, regulators and other interested parties to
have confidence in the processes of providing conformity
assessment, while avoiding the creation of unnecessary barriers
to trade.
Conformity assessment includes sampling and testing,
inspection, supplier's declaration of conformity,
certification, and management system assessment and
registration. It also includes accreditation of the competence
of those activities by a third party and recognition (usually
by a government agency) of an accreditation program's
capability.
While each of these activities is a distinct operation,
they are closely interrelated. The choice of the most
appropriate assessment processes, as well as the quality with
which any one of them is performed, can have a significant
effect on the confidence in and reliance that can be placed on
the results of the entire conformity assessment.
The definitions included in the National Conformity
Assessment Principles document are based on ISO/IEC 17000:2004,
Conformity assessment--Vocabulary and general principles. Some
variances, noted in italics, occur where the term is not in
ISO/IEC 17000 or has another specific meaning in the United
States. Definitions are included in this document to preclude
confusion and to make it more understandable. In different
contexts, the same term can signify different types of
activities.
<bullet> Accreditation Third party attestation related to
a conformity assessment body conveying a formal demonstration
of its competence to carry out specific conformity assessment
tasks. (These tasks include sampling and testing, inspection,
certification and registration.)
<bullet> Certification Third party attestation related to
products, processes, or persons that conveys assurance that
specified requirements have been demonstrated.
<bullet> Conformity Assessment Demonstration that
specified requirements relating to a product, process, system,
person or body are fulfilled. (This may include any activity
concerned with determining directly or indirectly that relevant
requirements are fulfilled.)
<bullet> First, Second and Third Party The first party is
generally the person or organization that provides the object,
such as the supplier. The second party is usually a person or
organization that has a user interest in the product, such as
the customer. The third party is a person or body that is
recognized as being independent of the person or organization
that provides the object, as well as the user or customer of
the object.
<bullet> Inspection Examination of a product design,
product, process or installation and determination of its
conformity with specific requirements or, on the basis of
professional judgment, with general requirements.
<bullet> Recognition Procedure used to provide formal
notice that an accreditation body is competent to carry out
specific tasks. These tasks include accreditation of testing
laboratories and inspection, certification and registration
bodies. A governmental recognition system is a set of one or
more procedures used by a Federal agency to provide
recognition.
<bullet> Registration Third party attestation related to
systems that convey assurance that specified requirements have
been demonstrated. Such systems include those established for
the management of product, process or service quality and
environmental performance.
<bullet> Sampling. Provision of a sample of the object of
conformity assessment according to a procedure.
<bullet> Supplier's Declaration. Procedure by which a
first party or supplier conveys assurance that the object of
conformity fulfills specified requirements.
<bullet> Test. Technical operation that consists of the
determination of one or more characteristics of a given
product, material, equipment, organism, person's qualification,
physical phenomenon, process or service according to a
specified technical procedure (test method).
<bullet> Testing. Determination of one or more
characteristics of an object of conformity according to a
specified technical procedure (test method). Action of carrying
out one or more tests.
<bullet> Test Method. Specified technical procedure for
performing a test.
----------
Mr. Rush [presiding]. Mr. Korn.
STATEMENT OF ALAN KORN, DIRECTOR, PUBLIC POLICY AND GENERAL
COUNSEL, SAFE KIDS WORLDWIDE
Mr. Korn. Thank you, Mr. Chairman.
Let me say by way of introduction that we have great
confidence in this committee. We have seen more attention on
consumer product safety in the past 5 months--you are making my
life very busy--than we did for many, many years before.
And, also, I must say that the staff on both sides--the
ones sitting to your left and to your right and behind you--
have been really stellar. They are always engaging us to find
out what we think and often agreeing with us, a few times
disagreeing. But the vast majority we have come to some very
good conclusions, and I think many of them are contained in
this piece of legislation. I think that should go said.
Also by introduction let me say this, that there are many
who feel that the CPSC is a dead agency and that it is
failing--and that they are failing to repeatedly serve its
important mission. I am not one of those people, Mr. Chairman.
The CPSC is full of committed staff who day in and day out--I
work with them every single day, every single week--who are
completely committed to protecting consumers and children from
unreasonable, dangerous products.
The CPSC, however, is an agency withering on the vine. It
is not dead, but it is withering, and it is in immediate need
of water and fertilizer. We believe your act is a much-needed
dose of Miracle-Gro.
Let me, at the risk of my own peril, not read through my
testimony but just go through a couple of points.
Number 1, we are particularly pleased that there is a
budget increase in this bill. Its present budget in no way
allows the agency to do what it needs to do. It is the single-
handedly most important reform in this legislation. If you do
anything else, get it the fertilizer and water it needs to get
the job done. I think we are all in agreement there.
We are also supportive of the fact--it is a nuanced point
but important one--that you created a separate authorization
for the lab. We have been to that lab. They are embarrassingly
poor. I think staff has been there, also. It is time. I think
everybody is in agreement with that.
My third point is this extension to 5 commissioners, and I
am going to spend a little bit more time on that because I
think both the acting chairman and the commissioner expressed
some reservation there.
We are glad to see it in the bill. The bill's sponsors feel
that the Commission can function more effectively with a full
complement of members. We agree. An agency with 5 members makes
for a much more vibrant institution and will promote active
discussion, compromise and even dissent when necessary, which
we think serves the public interest.
We can see that energy and I believe effectiveness in
another agency under the subcommittee's jurisdiction, and that
is the Federal Trade Commission. Due in large part to its full
complement of commissioners and its adequate budget, the FTC on
whole effectively serves its mission of protecting consumers
from deceptive practices and preserving a competitive
marketplace.
Another point, the five-member Commission would allow a
president and Congress to expand the diversity of the expertise
of the CPSC through the nomination and confirmation process.
For example, the CPSC panel could include a commissioner with a
legal background, a commissioner with human factors experience,
a commissioner with knowledge of children and how they interact
with products, a commissioner with experience in certain risk
areas like drowning and fire and burns, which is the leading
causing killer of kids under the CPSC jurisdiction. It is motor
vehicle crashes is No. 1. That is NHTSA. Those other two are
CPSC and, third, a commissioner with a background in product
design and engineering.
I am not so egotistical to say that this is a
recommendation to the President or Senate as to a particular
candidate for the confirmation process, but your bill does
capture the diversification.
I think we can also learn by looking at the NTSB, who each
has a member with experience in aviation, boating and railway,
collectively making a very diverse expertise in that
commission.
I think--I am using your words here--that you believe that
the agency is in the minor leagues. This provision in the bill,
although not the sole provision that will help, will help move
this to the major leagues, I believe. In fact, your staff--both
staff--did some great research that I don't think there is
another agency in this city that has three commissioners. They
all have five. So I think that is an excellent thing. It is
something that we should keep in the bill, notwithstanding I
detected a bit of apprehension from the agency itself.
My testimony goes into much more detail on several other
provisions. I will let you work through those and certainly
offer my help to staff as we go forward on the many other
technical provisions of the bill that we think are good and a
few that we think can be modestly improved.
Thank you, Mr. Chairman.
Mr. Rush. The Chair thanks the gentleman, and we thank you
for your gracious commentary.
[The prepared statement of Mr. Korn follows:]
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Mr. Rush. The Chair now recognizes Mr. McGuire for 5
minutes.
STATEMENT OF JOSEPH MCGUIRE, PRESIDENT, ASSOCIATION OF HOME
APPLIANCE MANUFACTURERS
Mr. McGuire. Mr. Chairman and members of the subcommittee,
thank you for providing me the opportunity to testify on behalf
of the National Association of Manufacturers regarding the
Consumer Product Safety Modernization Act of 2007.
We support legislation that reauthorizes CPSC and provides
it with the resources necessary to carry out its vital mission.
The subcommittee is to be commended on its bipartisan efforts
to develop a bill.
I am president of the Association of Home Appliance
Manufacturers, which represents the manufacturers of major
portable and floor care residential appliances and their
suppliers. I am pleased to provide the views of NAM and its
coalition of manufacturing associations.
CPSC is our most important regulatory relationship and
justifiably so because consumer safety is the most critical
obligation we have to our customers. We have aggressively
supported increased appropriations for the Commission in this
Congress. Although we believe that the American marketplace is
safer than ever, the perception of a safety problem is
troubling to U.S. manufacturers because their economic
viability depends on the confidence of the U.S. public and
their products.
H.R. 4040 contains a number of provisions our coalition
supports, and we applaud you for seeking these improvements.
However, we also believe H.R. 4040 contain a few provisions
that need modification.
We support the significantly increased authorization for
CPSC funding and recommend that it be focused on the
Commission's laboratory and its ability to evaluate the
increasingly voluminous information reported to the Commission
by manufacturers and retailers. We also believe that the number
of full-time inspectors, including those at ports, should be
significantly increased. We support structural reforms so that
the Commission may continue a temporary quorum with two
commissioners.
The Toy Industry Association and the Fashion Jewelry Trade
Association have strongly advocated national lead standards for
toys and children's jewelry based on sound science and with
practical limitations in which to work with the subcommittee on
this issue.
The toy industry also supports mandatory testing for
children's products. They favor the use of accredited
laboratories and CPSC authority to recognize laboratory
sanctioning programs, but not to micromanage such programs.
We support more rapid dissemination of information to the
public. The reality is that the vast majority of delays and
responses to Freedom of Information Act requests are due to
lack of CPSC resources and technology. We understand the bill
sponsors' intent that there may be circumstances where the
Section 6(b) disclosures process should be shortened if rapid
dissemination of data is required by public health and safety,
but we believe that this exception should be carefully drawn.
In order to maintain the present environment of voluntary
industry communications with CPSC, we strongly urge the
Congress to keep in place the requirement that there be review
of company submissions and CPSC documents for accuracy and
fairness before disclosure occurs. We agree to strengthening
the prohibition on stockpiling provisions.
We also believe that, in most cases, the Commission's power
to disseminate information through its press releases and
electronic messages to a wide variety of media has proven to be
effective. But we appreciate that in certain narrow
circumstances it may be necessary to conduct further outreach,
particularly in languages other than English. We appreciate,
Mr. Chairman, your interest in this particular provision.
Certainly manufacturers, importers, retailers and
distributors should provide, upon request from the Commission,
any information that they have on others in the supply chain,
to the extent such information is known. Dangerous products
should not be exported from the United States to foreign
countries. However, where foreign countries are protected by
different standards, U.S. firms should not be banned from
exporting a product that meets those foreign standards.
We also support, with slight modification, the bill's
provision in sharing information with Federal, State, local and
foreign government agencies.
In addition, the appliance industry supports Federal action
to ensure the proper installation of cooking ranges with UL,
ANC and building-code-mandated anti-tipping products and
equivalent devices. My industry proposes that it be a violation
of Federal law for a person to install a range that is not
compliant with the UL safety standard.
We believe that, in general, this bill places consumer
safety first and properly resources the Commission. We look
forward to working with you and the committee on adopting this
beneficial and reasonable CPSC reform in this Congress.
I will be glad to answer any of your questions or follow up
with requested information. Thank you.
[The prepared statement of Mr. McGuire follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Rush. Thank you.
The Chair now recognizes Ms. Weintraub for 5 minutes.
STATEMENT OF RACHEL WEINTRAUB, DIRECTOR, PRODUCT SAFETY, AND
SENIOR COUNSEL, CONSUMER FEDERATION OF AMERICA
Ms. Weintraub. Thank you, Chairman Rush and Vice Chairman
Schakowsky and Ranking Member Stearns, as well. I am Rachel
Weintraub, director of product safety and senior counsel for
the Consumer Federation of America. Today I am also testifying
on behalf of Consumers Union, Kids in Danger, Public Citizen,
U.S. PIRG, and Union of Concerned Scientists.
Thank you for holding this hearing and for all of your hard
work on product safety issues.
It is clear to all of us that something has gone terribly
wrong with our current safety systems. Your bill, H.R. 4040,
the Consumer Product Safety Modernization Act, correctly
recognizes that the Consumer Product Safety Commission, the
agency responsible for protecting consumers from unsafe and
dangerous products in the marketplace, is broken. H.R. 4040
seeks to remedy this critical problem by increasing the
agency's resources and legal authority necessary to keep unsafe
products out of the marketplace.
We applaud you for addressing many of the key areas in need
of reform. We provide several modest tweaks for strengthening
several sections of the bill, and we raise additional issues
that this bill should address to make the legislation truly
comprehensive.
We wish to emphasize the importance we place on six issues:
Section 6(b); independent, third-party testing; the ban on lead
in children's products; criminal and civil penalties; the need
to include whistleblower protections; and language clarifying
the reach of CPSC's authority regarding the preemption of State
regulatory and common-law claims.
Section 6(b) of the Consumer Product Safety Act is the
ultimate secrecy provision. It is unique to the CPSC, and it
requires CPSC to give a company an opportunity to comment on a
proposed disclosure of information. If the company has
concerns, they can object. CPSC must accommodate the company's
concerns or inform them that they plan to disclose the
information. The company can then sue the Commission, seeking
to enjoin them from disclosing this information.
While H.R. 4040 makes positive modifications to the
section, it does not remove the ability of the company to
institute a court proceeding to enjoin release of the
information. The threat of lengthy and resource-intensive
litigation could compel CPSC often to maintain the secrecy of
or delay the disclosure of important product safety
information, and ultimately keeps consumers in the dark.
We also support the creation of a searchable adverse-event
database containing consumer complaints and industry reports of
safety concerns relating to consumer products.
Second, independent, third-party testing of final products,
as well as components, must be required to identify design
flaws as well as violations of existing regulations. Section
102 mandatory third-party testing for children's products is a
meaningful provision that establishes a clear definition of an
independent third party. Section 104 of this bill that will
ensure that infant durable products will be tested to what are
now mandatory, as well, standards is critical as well.
We also suggest that children's products be defined as
those intended for children 12 years old and older, as the ban
on lead provision of this bill currently includes. The
disparity between these two sections means that hazards not
including lead, such as those involving sharp edges,
suffocation and thermal hazards, just to name a few, do not
have to be tested for in products intended for children between
the ages of 7 and 12. We support the provision that requires
CPSC to ensure that testing laboratories meet accreditation
standards established by the Commission.
Third, banning lead. We support a bright-line ban on the
use of lead in children's products to no more than trace
amounts, because experts confirm that there is no safe level of
lead. Serious, acute and irreversible harm can come to children
as a result of exposure to lead, and there is no reason why
such a dangerous additive should be used in children's
products. A safer alternative almost always exists.
Overall, our groups view section 101 as a positive
improvement over the status quo. We applaud the definition of a
children's product defined as that for a child 12 and younger
and support a bright-line test for children's products.
We have two questions, though. First, we are not clear
about the standard the phase-in option of the bill is
requiring. We recommend that language clarify that this lead
limit shall apply without regard to whether the lead is
accessible to children. Second, we are concerned that the
alternative test for 90 ppm soluble lead is ambiguous, as we
understand there are many measures of solubility which could
lead to different results.
Number 4, civil and criminal penalties. We urge that the
civil penalties be increased, and we urge that the criminal
penalties be modified to take away the ability of manufacturers
to first receive a notice of noncompliance from the Commission
before they can be held accountable.
Finally, we also support whistleblower protections. We
oppose preemption and urge the committee to consider language
clarifying this issue.
And we also support the inclusion of addressing the
relationship between CPSC regulators and the regulated
industry, with new restrictions on industry-paid travel for
CPSC officials.
Thank you.
[The prepared statement of Ms. Weintraub follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Rush. Thank you.
We want to again thank the panel.
The Chair recognizes himself for 5 minutes of questioning.
I will begin with Mr. McGuire.
Mr. McGuire, NAM is opposed to eliminating section 6(b)(3)
of the act, which allows manufacturers to go to court to
exercise a form of prior restraint to prevent a public
disclosure of information about their products that the CPSC
wants to release.
My question is, doesn't this provision hamper the CPSC's
ability to get vital health and safety information to the
public? And, ultimately, aren't manufacturers better off if
this information gets out quickly to protect the public?
Mr. McGuire. Mr. Chairman, I think the record will show
that the vast majority of delays in CPSC getting this type of
information out to the public is due to their own resource
limitations, both people and technology, to review the
voluminous amount of information submitted.
Current law allows manufacturers 30 days to comment on the
fairness and the accuracy of the data. CPSC does not have to
accept manufacturers' opinions. But if they do not accept their
opinions and decide to release the information, manufacturers
have the right to sue them to stop that.
This is not in cases where the CPSC determines that the
product might be an imminent health hazard. If they determine
that, they can release the information without consulting
manufacturers, and we have no problem with that. The vast
majority of these cases we are talking about, in reality, do
not involve cases where you have an imminent health hazard.
And so, the provision in current law is a 30-day notice. I
think your bill reduces it to 15 days. We don't really quarrel
with that. We just believe that, in fairness, the manufacturers
ought to be given the opportunity to comment whether something
actually is accurate and is going to help consumers or confuse
consumers in cases where it isn't an imminent health hazard.
Mr. Rush. So you are saying that, where there is a question
of health and safety to the American people, that the CPSC have
the full authority, right now, as it stands, to go and to issue
statements immediately without being sued?
Mr. McGuire. Yes, sir. If it is an imminent health hazard,
they have the ability to do that.
Mr. Rush. Who is to determine whether or not it is an
imminent health hazard?
Mr. McGuire. The CPSC.
Mr. Rush. OK.
Ms. Weintraub, do you want to comment on Mr. McGuire's
comments?
Ms. Weintraub. Sure.
First of all, in terms of disclosing information to the
public, it is clear that consumers are in the dark. If a
consumer wants to do research on any type of consumer product--
let us say a stroller, for example--if they go to the CPSC Web
site, they are not going to find comparative information, they
are not going to find any other consumer recommendations or
complaints from consumers. But they would find information like
that on other agencies' Web sites, such as NHTSA or FDA.
Overall, we see section 6(b) as problematic because it
creates this dynamic where CPSC needs to go with its tail
between its legs to the industry it regulates and ask
permission to disclose information that is in the public
interest.
While we have urged for the repeal of this section for
years, we understand that the argument is on the side of
allowing industry to verify such information. So if 6(b) is
retained to allow this dynamic to proceed, we still don't
understand why it is necessary for the industries to be able to
sue the Commission. There are FOIA protections, which also
protect the confidentiality, the trademark information of such
information. And we have never been persuaded or even heard a
public-policy argument for keeping in this provision that
allows industries to sue the Commission.
Mr. Rush. This ability to sue the Commission, it seems to
me, that has been the single most important--or single greatest
obstacle to CPSC's quickly notifying the public. Do you have
any idea about why the CPSC would be afraid to be sued, afraid
of litigation?
Ms. Weintraub. Sure. I mean, litigation is expensive and
resource-intensive. And with a budget which we all establish
today--a budget that is very small and with vast priorities
that are growing, the threat of litigation really is a scary
prospect for the Commission.
Mr. Rush. So if we give them more resources, then that
should take care of that particular problem; is that right?
Ms. Weintraub. I don't think so. I still don't think that
there are any public-policy reasons for retaining the ability
of manufacturers and others to sue the Commission. Even with
increased resources, it provides a lot of leverage for
manufacturers that other agencies don't provide.
Mr. Rush. Thank you. My time is up.
The Chair recognizes the ranking member, Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman.
Let me just continue that line of questioning, but ask Ms.
Belliveau.
We have heard testimony that section 6(b) must be repealed
in order to improve safety. I guess the question for you is,
what are the practical effects of this?
Ms. Belliveau. Hasbro supports section 6(b) currently, and
we also support the proposed bill and its reduction of the time
frame for release of the information. We support the provision
because we do want to preserve the right to verify the accuracy
of the information proposing to be released by the CPSC.
We do agree that the information should be readily
available to consumers and should be released on a timely
basis. However, we do see instances where information that is
shared with us is inaccurate or must be corrected or, perhaps,
contains proprietary business information.
So we feel that, while the process certainly could be sped
up, we would like to preserve the right, again, to verify the
accuracy.
Mr. Stearns. Mr. McGuire, do you have a comment on this?
Mr. McGuire. Well, I would agree with that, sir.
And one of the things that we have been encouraged to do by
the Commission for many years is to report information to them
even if we are uncertain of its accuracy or validity. So we do
that in order to get information to the Commission that they
can review and deal with as appropriate.
We are just talking about the ability, if something is
proven to be inaccurate or unfair, to point that out.
Mr. Stearns. OK.
Dr. Best, you state that you would like to see 40 parts per
million or less in all parts of a child's product. Does that
include electronic products that use lead to protect a viewer
from radiation, such as LCD screens? And how would you propose
to deal with this?
Dr. Best. For one thing, we should consider if there is a
substitute. We understand that there are some products that--
right now, the only technology we know that is economically
feasible is to include lead. And that is where we have a
concern, is if the product can be made without lead and the
only barrier to eliminating the lead is economics or the cost
of the product.
And if that product is a child's product, then there is no
reason not to eliminate the lead. When you talk about a cost-
benefit equation, there is no way to define the cost of lead
poisoning in a child. It is too huge to quantify.
Mr. Stearns. No, I understand. It is not acceptable, I
understand that.
But I note a New York Times story recently reported that a
mother had a 17-month-old child who played with a toy that had
excessive lead paint. She had the child tested, and the doctor
indicated it was an excessive amount. She took the toy away,
and she had the child retested, and the level dropped
significantly.
Is this typical, that blood lead levels in children can
decrease that quickly?
Dr. Best. It is typical that lead levels do drop over time,
even with continued exposure, in some instances. What is hidden
in that information, though, is that the damage has already
been done.
Mr. Stearns. For example, it said the national average is
now approximately 3 micrograms per deciliter, down from 16 less
than 20 years ago. Obviously, you don't want any lead, but it
appears that, over the years, it has gone down dramatically.
And, in this case, this woman had her child tested after
removing the lead toy, and it came down significantly.
Dr. Best. Just because it came down significantly does not
mean that the damage to that child's nervous system was not
already done. And, in fact, we know that, by the time you have
a measurable level of lead in your blood, which is----
Mr. Stearns. What is that measurable level of blood?
Dr. Best. The lowest that a typical instrument can measure
is 2 micrograms per deciliter. And below that, we end up
dealing with instrument variability.
Mr. Stearns. The national average is 3, it says here. In my
notes, it says 3. So the national average is above what it
should be, in your opinion?
Dr. Best. Absolutely. It should be below measurable levels.
Mr. Stearns. Right. And the damage that is above 2 is to
the nervous system. How can you identify the damage? How is it
exhibited?
Dr. Best. In terms of low levels of lead, it is typically
exhibited in decreased IQ. And so they do it on population
level samples where they look at children who have been exposed
and haven't been exposed and compare the means of the IQ.
Mr. Stearns. Mr. Chairman, I think my time has expired.
Mr. Rush. The Chair recognizes now the Vice Chair, Ms.
Schakowsky.
Ms. Schakowsky. Thank you.
Is it Ms. Belliveau?
Ms. Belliveau. Yes.
Ms. Schakowsky. You mentioned testing prior to the sale of
your products. Is that true of products for which you license
your brand?
Ms. Belliveau. Yes, it is true.
Ms. Schakowsky. A Chicago family lost their son to the
Playskool Travel-Lite Crib in 1998, which was made by Kolcraft
but carrying your Hasbro brand Playskool. And six children have
died in that model crib. Documents reveal that Hasbro did no
testing and did not receive any testing reports from Kolcraft
and yet let their name go on the product.
What are you doing differently now?
Ms. Belliveau. Vice Chairman Schakowsky, you are correct.
Approximately 10 years ago, we did have a situation where we
licensed our brand to a play-yard manufacturer, and
unfortunately there were deaths associated with that play-yard.
We have made changes since those events, including not only
tightening up our internal licensing procedures and requiring
testing on all licensed products, as well as having worked with
the safety standard setting to address portable play-yards.
Ms. Schakowsky. So all of your products now that you
license out, you do the same testing as those that you don't
license out, that are in-house?
Ms. Belliveau. Our licensed products are subject to a
testing program and protocol that is appropriate for those
products, and Hasbro does require that.
Ms. Schakowsky. The same as those that are for the ones
that you directly manufacture?
Ms. Belliveau. Yes. If it were, for example, a toy, it
would be subject to the same toy testing standards that Hasbro
subjects its own toys to. If it is a different product, it will
be subject to the testing protocols appropriate to that
product.
Ms. Schakowsky. I wanted to ask Ms. Weintraub a question.
We have been very concerned with Simplicity Cribs. And
there were, what, a million recalls? And the CPSC decided to
approve and Simplicity decided to approve a repair kit that
immobilizes the drop side of the crib. So, in other words, the
repair kit goes out; it is fairly complicated in how to
actually install the repair. But it changes the product itself,
so the people who may have a disability and need a drop side in
order to reach the child in the crib can't do that, or someone
with a bad back or anybody who bought it for that feature.
What do you think about the appropriateness of approving a
fix that changes the design of the product, as opposed to what
I would like--and I sent a letter to Chairman Nord--a refund
for those consumers who want a different product?
Ms. Weintraub. Well, first of all, not only is this
ultimate repair filled with flaws, but it took a month, at
least a month, between the time that the recall was announced
and for the remedy to actually be approved and available. So
there are many, many problems associated with this product and
this recall.
We agree with you that this product and this company has
been subject to numerous recalls, many of which have been
repairs as opposed to a recall and refund. And we would very
much support a refund as opposed to repair that could be
complicated, time-consuming and ultimately change an essential
aspect of the product.
Ms. Schakowsky. I hope we can maybe talk about dealing with
this in our legislation.
I wanted to ask Dr. Best--and I know Ms. Weintraub came up
with this as well--the issue of the 7 or 6 years old to 12
years old and the importance of including them in the
legislation. I wonder if you could talk a little bit more about
the hazards for older children.
Dr. Best. Well, older children, while we think of them as
being at less risk than the 2-year-old who might be prone to
run out in the street, still have very similar risks in terms
of choking. They are a little less likely to choke, but they
still put things in their mouths and still swallow coins and
still do some of the same behaviors that a younger child will
do.
And one of the other aspects of the 6- to 12-year-old age
is that those children may have younger siblings, since most
families try to group their child-bearing years into a fairly
narrow gap. And so, a toy that is designed primarily for a 10-
year-old may end up in the hands of the 10-year-old's little
sister. And that is one of the big risks. Those are the kinds
of children I see in the emergency room. They got ahold of
their big brother's toy and had a great time and then ended up
with some untoward event.
Ms. Schakowsky. Thank you very much.
I yield back.
Mr. Rush. The Chair now recognizes the gentlelady from
Colorado, Ms. DeGette.
Ms. DeGette. Thank you, Mr. Chairman.
I want to thank Congresswoman Schakowsky for asking the
question about the 6 versus 12 years old. Because in
Congresswoman DeLauro's and my bill, H.R. 3691, we do have the
age 12, and exactly for the reasons you said, Dr. Best. We
think that all of the definitions should apply up to age 12.
And I will probably be doing some kind of amendment or working
with the chairman on the manager's amendment to increase that
age in our committee mark.
I also wanted to ask you, Dr. Best, about another issue
that Congresswoman DeLauro and I raised in our bill, which is
what the lead standards should be per million. In your prepared
testimony, you recommended a lead standard of 40 parts per
million for all children's products, which is what is in our
bill. H.R. 4040 has a standard of 90 or 100 parts per million.
And I am wondering if you can explain to us why 40 parts per
million would be preferable.
Dr. Best. We spent a lot of time thinking about this,
because it is an obviously complex issue. And we understand
that every time we ratchet down the limit, it costs money for
manufacturers and for the testers and for all involved. But
what we decided was that the reference level should be what is
trace in our environment. We can't get below trace in any of
our products.
And so, to look for trace levels, we had to go to the
scientific literature. And you had to look not at the United
States on the East Coast, because we have actually contaminated
our soil so much that it is higher than what we would consider
trace. So we found an article that looked at the soil on the
top of one of the mountains in Vermont. And they actually--this
scientist looked at the levels in the air and in the layer of
material that is right at the top of the dirt, you know, with
the little pine cone needles----
Ms. DeGette. We have those in Colorado too.
Dr. Best. And then into the lower and lower levels, and
then actually at the amount of lead that ended up in the
waters, in the water table.
And that is one of the ways we arrived at the 40, is that
that was one of the lowest levels that this scientist found.
Ms. DeGette. So that determination was actually based on a
scientific examination?
Dr. Best. It was. It was.
Ms. DeGette. Mr. Korn, I wanted to ask you, in your
testimony you had said that you support increasing the Consumer
Product Safety Commission's budget. This, of course, has been
an issue for debate in the press and other places with the
commissioners of the CPSC about what kind of increase in the
budget could be effectively used.
And I am wondering, is there a particular level of funding
that you think would be necessary? Putting aside what is in
H.R. 4040 or any other legislation, just in general, how much
would we be able to increase their budget so that they could
actually use that money effectively?
Mr. Korn. Well, we are particularly hypnotized and pleased
that it is just more money. This has been an agency that has
not had the appropriate funding for so long. So seeing $10
million, $15 million increments in a year's time is something
that we think is a very good way.
Do I have the expertise to tell you whether or not $20
million is enough to improve that lab? I don't. To hear that
the chairman has said that one of the options is to level the
lab completely and start fresh raised with me the possibility
that $20 million may not be enough.
Ms. DeGette. And, in fact--and I think Ms. Weintraub
pointed this out, too--when the Consumer Product Safety
Commission started out in the 1970's, the budget was $34.7
million. So if you took that, just for adjusting for inflation,
it would be $140 million now.
Mr. Korn. Which is where your bill gets to eventually.
Ms. DeGette. Eventually it does.
Ms. Weintraub, what do you think? Would that be sufficient
to do the things the Consumer Product Safety Commission needs
to do?
Ms. Weintraub. We have been using that as a benchmark.
Based upon our conversations with experts, we believe that
money can't be thrown at the Commission. We need smart growth.
And we believe that about 15 percent increments, which is what
this bill actually authorizes, is a smart way to go.
This bill stops at 3 years. We would recommend going to 4
or 7 years, and ultimately at least getting to $140 million,
which would put them on par with where they were at their very
first authorization.
Ms. DeGette. And then I would think what you would have to
do, once you got it on par, is take a look, because the markets
have changed so much, we have so many imports coming in from
around the world, and say, is that budget going to be
sufficient with the reorganization over 3 or 5 years to account
for the current market?
Ms. Weintraub. I would agree.
I also agree with Mr. Korn. We are coming from a starving
mentality, so the idea of $140 million is just pretty
incredible.
But, yes, I agree that we constantly have to be doing
assessments, looking at all of the responsibilities that the
Commission has, especially with the changing marketplace and
the increased complexity of products, and determine if, indeed,
that is adequate.
Ms. DeGette. Thank you.
Thank you, Mr. Chairman.
Mr. Rush. The Chair now recognizes the gentleman from
Texas, Mr. Gonzalez.
Mr. Gonzalez. Thank you.
My first question will be to--is it Ms. Belliveau?
Ms. Belliveau. Yes.
Mr. Gonzalez. In your testimony, you state, ``We have also
stepped up inspections of all factories manufacturing Hasbro
products, both here in the United States as well as overseas.''
What percentage of your toys are manufactured domestically,
in the United States?
Ms. Belliveau. We have a game and puzzle manufacturing
facility located in East Longmeadow, Massachusetts.
Mr. Gonzalez. But if you had a hundred toys--I just want to
get the percentage. I am just assuming that the bulk is
overseas?
Ms. Belliveau. The bulk is indeed overseas.
We have a manufacturing facility that we own in Europe, in
Waterford, Ireland, that is also a game and puzzle
manufacturer. It is actually the largest game and puzzle
manufacturer in Europe. It produces----
Mr. Gonzalez. What country manufacturers the greatest
percentage?
Ms. Belliveau. The greatest percentage of our manufacturing
is done in southern China.
Mr. Gonzalez. So what I am getting at is, how do you
perform your quality testing? Do you have Hasbro domestic
personnel, United States, go to China and review the process
there?
Ms. Belliveau. We have a U.S.-based quality assurance and
product safety team. We are headquartered in Pawtucket, Rhode
Island. And those are our corporate headquarters, where our QA
function is based. We also have headquarters in the United
Kingdom.
Mr. Gonzalez. What about China?
Ms. Belliveau. In China we have operations not only in Hong
Kong but also in southern China.
Mr. Gonzalez. Do you have personnel in the major
manufacturing sites themselves?
Ms. Belliveau. Yes, sir. We have an on-the-ground presence
in China, where we have engineers, inspectors and product
safety experts who are full-time Hasbro employees whose
responsibility it is to ensure that our systems are being----
Mr. Gonzalez. Are these United States-trained United States
citizens that obviously are assigned overseas duties, or are
these outsourced?
Ms. Belliveau. We have United States citizens who are
running our global operations as well as heading up our quality
assurance function based in China.
Mr. Gonzalez. Are the inspectors, the inspectors that are
on the ground viewing the process, testing the product, trained
in the United States, certified in the United States if that is
what is required, but basically are in-house?
Do you know what I am saying? People just contract
everything out. I assume that happens with even inspection
facilities in personnel.
Now, once that process is taken care of, what do you do
with the shipment of toys once they hit the American shores? Do
you then conduct another sampling? Every hundred box of toys or
something, do you take them out, test them, look at them?
Ms. Belliveau. Products that are produced in China for
direct import into the United States are tested in China. We do
our own in-house testing, and they are also tested by
independent third parties.
Mr. Gonzalez. All right.
And real quick, Mr. Korn, there are many things in this
bill that are actually, well, are not in this bill at the
present time, and one of them is going to be Federal preemption
of State laws or allowing State attorneys general to enforce
Federal law. Do you have any view on that? Because that is
still being debated.
Mr. Korn. It is not in my testimony, although it does seem
to me to be a concept that is worthy of pursuing, whereby a
State has got a product-safety piece of legislation that has
been vetted through the State democratic process, whatever that
may look like, that ends up stronger than the Federal
legislation, that the Federal legislation does not preempt that
process. That does make sense to me.
My testimony, we haven't formally had an opinion on it, but
it is, my gut tells me, something that this committee could
explore.
Mr. Gonzalez. Thank you.
My last question--I only have a few questions, but I am
hoping the chairman will indulge me and allow Mr. McGuire to
respond.
In your testimony you state, ``We need to weigh whether we
are actually achieving significant enhancements to product
safety or whether we are imposing new nontariff barriers.'' and
then you continue and you expand on that: ``dangerous products
should not be exported from the United States to foreign
countries. Therefore, we support the concept of expert
provision in Section 211. However, where foreign countries are
protected by different standards, U.S. firms should not be
banned from exporting a product that meets those foreign
standards''--I am assuming standards that don't really compared
to United States standards.
What 211 does--and really, do we have a moral obligation to
other countries not to export those products that we wouldn't
want our citizens or our children on this side of the ocean to
play with or be exposed to?
211 simply states, ``Section 211 permits the CPSC to
prohibit the export of consumer products that cannot be sold in
the United States. A manufacturer may not export products that
are not in conformity with consumer product safety rules or
subject to mandatory or voluntary recalls or designated an
imminent hazard to public health and safety or designated as a
banned or hazardous substance, unless the importing country is
first notified.''
So I assume that if we tell the country it is a dangerous
product, we wouldn't sell it over here, that they would simply
say, well, that is fine, and----
Mr. Rush. The gentleman's time is expired, but we will
allow the witness to answer the question.
Mr. McGuire. Well, thank you.
Our views on that provision are that there are some cases
where another country that has safety standards may have a
different standard than the U.S. In the case of Europe, their
flame-retardant standards are much different than ours, yet
they are protective.
Our views on the bill are that, while it is proper to
inform the Consumer Product Safety Commission that a company
wants to export a product to another country that has a
standard but maybe different than the U.S., we are concerned
about needing to obtain permission from the company where the
product is going to be sent, for fear of creating a nontariff
trade barrier, where that country, perhaps in consort with its
own domestic industry, might want to prevent the importation of
the product for nonsafety reasons but business reasons.
So I think that provision needs to be carefully crafted so
we are not creating another problem in the area of trade.
We understand your intent with the safety provisions of the
bill, and I think having the CPSC notified and given the
opportunity to prevent the export would be the provision that
would get at safety.
Mr. Gonzalez. Thank you.
Mr. Rush. The Chairman now recognizes the chairman of the
full committee, Mr. Dingell.
Mr. Dingell. Mr. Chairman, thank you for your courtesy.
And, again, I commend you for the hearing.
Starting with Ms. Weintraub, going across the committee
table from her right on down, ladies and gentlemen, in three
words or less, how do we fund H.R. 4040's increased
authorization of CPSC? Appropriations, user fees, what?
Ms. Weintraub. Appropriations.
Mr. McGuire. Authorization and appropriations.
Mr. Korn. I agree, Mr. Chairman. In fact, the appropriators
have already committed, I believe, to this in part; some of
them have.
Mr. Hallenbeck. Congressman, I will have to demur. I am
here to talk about the toy safety coordination initiatives, so
I----
Mr. Dingell. All right.
Ma'am?
Dr. Best. And I also will have to say that is not in the
purview of the pediatricians.
Mr. Dingell. And the last of our panel?
Ms. Belliveau. We would support authorization and
appropriation, as well.
Mr. Dingell. Is there anybody there that will tell me that
we have done a good job of getting appropriations to fund CPSC?
As a matter of fact, we have done a very poor job, have we
not?
Now, Mr. McGuire you stated that there should be
recognition that it is not practical for certain small products
to contain tracking labels on each tiny component. However,
section 103 of 4040 mandates tracking labels for a product and
its packaging only to the extent that it is feasible.
Is this condition, requirement compatible with your
statement, yes or no?
Mr. McGuire. Yes.
Mr. Dingell. Very good.
Now, Mr. McGuire, can you tell us why you maintain that it
is unrealistic to expect firms to know every possible and
changing subcontractor or fabricator used to produce a consumer
product for sale in the United States?
Mr. McGuire. Mr. Chairman, manufacturers are the ones that
are responsible for the safety of the product, as are major
retailers or any retailer that is importing a product. In a
foreign country, even in the United States, there are times
when a manufacturer may not know the identity of a sub-
subcontractor in the supply chain. They need to have systems in
place where they are monitoring and auditing the safety of
their suppliers. But it could be an incidence where something
has changed.
Mr. Dingell. Now, we have to understand that that is an
essential component of knowing those things if you are
anticipating the possibility of a product liability suit, isn't
it?
Mr. McGuire. Our position is simply that----
Mr. Dingell. In other words, if you are a manufacturer and
you say, ``Well, I am manufacturing this, and if I make a
mistake I am going to be sued.'' so you are going to know who
your suppliers are, are you not?
Mr. McGuire. Manufacturers need to know who their suppliers
are and, to the best of their ability, try to know that. But
there may be instances where someone further down the supply
chain who is making a material that was going into a part----
Mr. Dingell. That should be dealt with by putting in the
contract to say that you will notify us in the event of changes
in suppliers, isn't that so? That is easily learned in the
contract, is it not?
Mr. McGuire. I think if the provision related to an
ultimate product manufacturer having actual knowledge, it would
be preferable.
Mr. Dingell. All right. It would be particularly true in
the case, say, of a country like China, where we haven't got
any idea who manufactures what, where or how or why, and we
don't have the vaguest idea of what the controls or protections
for consumers might be; isn't that so?
Mr. McGuire. Well, Mr. Chairman, I don't think that is
necessarily true across the board.
Mr. Dingell. You are comfortable with all Chinese imports,
is that right? And you are here to tell us what a great job
they are doing about setting safe foods, drugs, cosmetics,
appliance, toys?
Mr. McGuire. Well, with respect to appliances, a large
percentage of appliances are manufactured in China, and they
are all tested by independent labs for safety to meet U.S.
safety standards. And it is up to the product manufacturer and
the retailer to enforce that, as well as CPSC, in terms of----
Mr. Dingell. Now, let us go to the next question.
Mr. McGuire, you stated you wish the committee to amend
section 211 of H.R. 4040, which relates to a recall and
nonconforming products to permit U.S. manufacturers to export a
product to a foreign country if the manufacturer can show that
the product meets the country's safety standards.
What if the country does not have applicable safety
standards for certain products?
Mr. McGuire. Then I think that would be an exception to
that, Mr. Chairman.
Mr. Dingell. So that would be acted on accordingly. All
right.
Now, Mr. McGuire, H.R. 4040 keeps all the restrictions, or
virtually all the restrictions, on section 6(b) of the Consumer
Product Safety Act intact for public disclosure of information
related to consumer products, except in the case that such
information would be vital to protecting the public health and
safety.
Do you feel that this amendment is reasonable?
Mr. McGuire. I do, sir.
Mr. Dingell. Now, Mr. Korn, H.R. 4040 amends section 15 to
the Consumer Product Safety Act to permit CPSC to review and to
approve a company's plans for mandatory consumer product
recalls. In your view, is this a good idea?
Mr. Korn. Absolutely.
Mr. Dingell. Would you tell us, briefly, why?
Mr. Korn. Right now, under the law, it is the manufacturer
can elect a remedy amongst three.
Sometimes there may be toasters in the marketplace and the
manufacturer may elect to refund minus an allowance, which for
a toaster is about $5. I don't think that is enough of a
motivating factor for an owner of that particular product to
move to get the dangerous product that could start a house on
fire, just to make up a situation, out of their homes.
Instead, I believe it is important for the CPSC compliance
staff to have a check on that election. I think it is OK to
have the manufacturer at least pro-offer what they think is
best, but let's give the Consumer Product Safety Commission
compliance staff the opportunity to police that selection to
make sure the public interest is preserved.
Mr. Dingell. Thank you.
Now, Mr. Korn, you have indicated your position supports
independent, third-party testing throughout the manufacturing
process and on several lots. In light of such a testing's
potential to protect consumers' health and safety, do you think
such a requirement would place an undue financial burden on
manufacturers?
Mr. Korn. I don't. I think we have seen in the amount of
recalls that have happened, because of lead in particular, the
minimal cost for an extra lot testing is very small, de
minimis, compared to the cost of recalling iconic brands out of
the marketplace.
Mr. Dingell. Thank you.
Mr. Chairman, I have noticed I have used over my time. I
thank you for your courtesy, and I yield back the balance of my
time, such that it might be.
Mr. Rush. The Chair thanks the chairman of the full
committee.
I didn't want to exercise the distasteful burden of telling
the chairman that his time was up, so I just let him go on and
on and on.
And the Chair would now want to inform the committee that
the record will remain open for 30 days for any additional
questions that you might have for the witnesses.
And we would ask the witnesses, if there are questions
submitted to you, would you please respond promptly in writing.
This subcommittee hearing is now adjourned. And we want to
thank the witnesses for your time and for your patience, and
thank you so much for your participation. Thank you very much.
The meeting stands adjourned.
[Whereupon, at 1:58 p.m., the subcommittee was adjourned.]
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