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A New Era for Consumer Product Safety

It’s been a little over a month since the president signed the Consumer Product Safety Improvement Act of 2008, which reformed product safety law and bestowed more resources and responsibility upon the oversight federal agency, the Consumer Product Safety Commission. The CPSIA is a welcome improvement to product safety regulation, giving the CPSC the resources it needs to protect the public. As we’ve mentioned before, highlights of the bill are that it requires that children’s products be tested before they are sold and bans lead and toxic phthalates in toys; requires the CPSC to create a publicly accessible consumer complaint database; increases civil penalties that CPSC can assess against violators; and protects whistleblowers who report product safety defects. In short, this bill makes big, important changes in product safety law.

So what has the CPSC been up to since the bill’s passage? About two weeks ago, the agency held a public meeting to discuss its work in implementing the new law and built a web site devoted to CPSIA implementation. The web site contains summaries and interpretations of the new requirements, and a helpful timetable referred to as CPSC “Required Actions” under the Act, which lists its tasks (a majority of which is rulemaking) for the coming months and years. Conspicuously absent from its “Required Actions” list, however, is the consumer complaint database – a crucial part of this product safety overhaul.

Development of the database is something to watch. The agency was less than enthusiastic about the database when Congress was debating the CPSIA. Now the agency has less than six months to draft and submit its database plan to Congress. Curiously, the staff said little about the database at the public meeting, except noting that building it is contingent on receiving more resources from Congress. In testimony earlier this year, Nord said that the database would cost $20 million to set up and $2.5 to $3.5 million per year to maintain.

In addition to the database, the new law requires about 40 new rulemakings. The timelines are “very ambitious,” Nord said more than once to her audience of mostly industry lawyers. No doubt the CPSC has been handed a gargantuan task. But that is to be expected after so many years of mediocrity and neglect in the product safety arena. In less than six months, the agency will have acted on the phthalates ban, toy standards, the product database and the requirements for recall notices. By the time the one-year anniversary rolls around, it will have addressed the ban on lead in toys, tracking labels for children’s products (if the agency chooses to implement rules for this requirement), durable children’s products, cribs, infant/toddler products and the final regulation for civil penalties. After the last few years of unprecedented recalls and injuries suffered by American consumers, these costs and tight deadlines are little price to pay to put up the database and promulgate so many vital new rules.


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I represent over 5,000 apparel manufacturers; this legislation affects much more than children's products. While we don't quarrel with the necessity of improved product safety, the regulations are poorly defined and unclear. The issue is fraught with difficulty. The number of labs needed to test the current level of products don't even exist. As it happens, labs won't be needed after all because the majority of apparel manufacturers will be going out of business as the costs are not tenable.

Contrary to popular belief, most apparel manufacturers are small businesses with fewer than 20 employees. Based on quotes from various sources, it is clear that a very small producer with only ten styles in three color ways, will have to come up with $30,000 for testing before they can even go to market. This figure does not include the mandated phthalates (and the unmentioned heavy metals testing scheduled for implementation in Aug /09) which is much more expensive than the lead testing now required.

The result of this legislation is clear. Most of the children's wear manufacturers and many adult clothing producers will close their doors; all at a time when the economy is least able to absorb it.

A list of barriers to implementation can be found here:

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