Fashion Intel & Analysis
During a conference for small and medium-sized business, U.S. Trade Representative Ron Kirk announced that Jim Sanford will take on an expanded role to serve as the Assistant U.S. Trade Representative for Small Business, Market Access and Industrial Competitiveness. Sanford currently oversees the market access portfolio at USTR, and will add small business concerns to his agenda. Today's conference was called "Jobs on Main Street, Customers Around the World: A Positive Trade Agenda for U.S. Small- and Medium-Sized Businesses." While textile and apparel issues were not specifically on the agenda, one audience member (who is a USA-ITA member) encouraged the representatives from the Obama Administration to press for quick passage of the U.S.-Colombia Free Trade Agreement before more business is lost.
USA-ITA sent a letter to Consumer Product Safety Commission Chairman Tenenbaum yesterday urging the agency to tell Congress and the public that it has the authority and ability to investigate the level of risk associated with cadmium and other heavy metals in children’s jewelry, to set standards for heavy metal content and surface coatings, and to determine what tests are appropriate to identify whether products are within or exceed those standards. USA-ITA wrote the letter in response to the push for quick action on legislation that would declare those heavy metals banned hazardous substances. USA-ITA told Tenenbaum “While it may yet be the case that specific legislation is necessary to address the use of heavy metals in children’s jewelry, that is a determination that should be made only after the Commission, as the agency created by Congress to protect consumers, has provided the necessary input.”
Tenenbaum may have an opportunity to talk to Congress about cadmium this morning. She is testifying before the House Energy & Commerce Committee’s subcommittee on oversight and investigations, starting at 10 am.
For a copy of the USA-ITA letter, please follow the link below.
The Consumer Product Safety Commission (CPSC) late Friday released a nine-page “bipartisan consensus” report to Congress, including its recommendations for how the Consumer Product Safety Improvement Act (CPSIA) might be amended.
The Commissioners agreed that they have “confronted a number of enforcement issues involving section 101 lead content limits.” These include 1) the scope of products covered and requests for exclusions; 2) the retroactive application of the law; and 3) the cost of testing and certifying products. The Commissioners also noted, as an “upcoming challenge,” the determination of “when and whether it is technologically feasible for the lead content in a particular product to be lowered to 100 ppm.” They acknowledged that “stays [of enforcement] may be needed to handle” that transition “in an orderly manner.”
The consensus recommendations of the CPSC were:
· give the agency more flexibility to grant exclusions from the lead limits (although there was no agreement among the commissioners on a specific approach to achieve that objective);
· exclude “ordinary children’s books” from the lead limits; and
· make application of the 100 ppm lead limits (scheduled for August 2011) prospective only.
The five commissioners also agreed that they need to find a way to address the concerns of “low volume manufacturers,” but made no specific suggestions to achieve that.
Where there was not consensus, there were individual views. Thus, the report was accompanied by separate statements from Chairwoman Inez Tenenbaum and Commissioners Robert Adler, Anne Northup and Nancy Nord. Only Commissioner Thomas Moore did not issue a separate statement.
Chairman Tenenbaum, in her statement, praised the Congress for “expanding and empowering” the CPSC, and suggested that additional changes to the law could include steps making it easier for the CPSC to pursue recalls from foreign manufacturers. She also said that while she supports a broader exclusion from lead content limits, that should be limited to “cases where lead is required for a functional purpose and the elimination of lead is impracticable or impossible.”
Commissioner Adler made similar comments, saying that the need for greater flexibility in place of “impossible-to-meet requirements for exclusion” should not distract from the broader goal of removing lead from children’s products. He suggested that as Congress considers providing the requested flexibility, it also ask whether exclusions should be permanent, opining that “At some point, technology surely will enable companies to make children’s products without lead.” Further, he asked Congress to consider allowing the CPSC to exclude products from lead testing without the need for a formal rulemaking process.
Comments from the minority Republican commissioners, Nord and Northup, as expected, urged Congress to go further. Nord said the CPSC has spent too much time reviewing products that should have been granted exclusions (such as small parts of ball point pens and bicycle parts). She said Congress should either write a more explicit law saying what products should be covered or allow CPSC to make these judgments on its own. She also complained that under the current law, CPSC has to treat toddlers the same as 12-year olds, without taking into account the use of children’s products by children of various ages. Further, Nord argued for less retroactivity under the law.
Northup’s statement was the most aggressive, including a 10-page statement that contends that the law “drastically overreaches the issues of safety to prohibit and regulate countless consumer products posing no health risk to children,” and a 90-page appendix consisting of letters from industry groups. Northup’s comments addressed issues beyond the lead provisions on which the Congress requested the Commission views. Northup asked Congress to set a de minimis level of absorbable lead that would be acceptable, which she said would allow the CPSC to exempt items such as bicycle parts. She recommended that this could be done in one of three ways: 1) repeal entirely the CPSIA total lead content provisions to allow decisions to be made under the Federal Hazardous Substances Act instead; 2) provide that the CPSIA “kicks in” only if there is more than a specific de minimis amount of absorbable lead; or 3) amend the absorbability concept in the CPSIA to provide an exception if there is not a “meaningful increase in a child’s blood lead level.” Northup expressly disagreed with Tenenbaum’s endorsement of a lead content exclusion based upon “functional purpose,” arguing that it would overwhelm the agency with subjective decision-making on case-by-case exemption petitions and help only those businesses with the resources to go through the petition process. Northup also pressed for eliminating the retroactive application of the lead content limits and phthalates ban.
Northup also mirrored Nord’s comments on children’s ages, suggesting that Congress amend the law to apply only to products primarily intended for children under the age of seven, or “less ideally,” to give the CPSC discretion to lower the age limit for particular products. To address costs borne by small businesses, Northup suggested allowing smaller companies to undergo less frequent product testing, or instead allow the use of a reasonable in-house testing program. She also suggested waiving penalties for small companies in some cases.
The consensus report and statements from the four commissioners can be found on the CPSC’s website at: http://www.cpsc.gov/about/cpsia/cpsiareport01152010.pdf.
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