Fashion Intel & Analysis

            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:



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USA-ITA and our member companies send our prayers and support to everyone who is affected by the devastating earthquake in Haiti. Our members have family, friends and colleagues in Haiti and all our efforts are focused on support for the rescue operations. While it will be a while until we know the full impact of this catastrophe, the U.S. apparel importers and retailers express our support for the people of Haiti today and in the future.

We encourage members to contribute to Doctors Without Borders ( and the Red Cross ( for immediate assistance. For those who would like to contribute clothing and other necessities, we will be happy to share information on merchandise contributions when that is available. With the urgent need for food, water and medical supplies, it may be several weeks before contributions of clothing are needed.

There are unofficial reports that many (perhaps as high as one-third) of the apparel factories in Haiti are destroyed, particularly around Port au Prince. Production of apparel represents one of the major exports from Haiti. While the immediate focus is on support for the rescue missions, USA-ITA has been approached to support initiatives to support the Haiti apparel industry once the rebuilding process begins. We will keep members updated about these efforts we remain committed to keep Haiti as an important sourcing destination.

The Consumer Product Safety Commission (CPSC) has moved quickly to open a formal investigation into children’s metal jewelry from China that may contain cadmium and thus may pose a threat to children, following a press story this weekend that received wide coverage. Also, in a speech taped in advance for the APEC Toy Safety Initiative conference in Hong Kong, which is being held tomorrow, CPSC Chairwoman Inez Tenenbaum warns manufacturers against using cadmium and other heavy metals as a substitute for lead in children’s products.

Tenenbaum revealed the opening of an investigation into the use of cadmium in a blog entry posted today on the CPSC website. She stated there that the CPSC staff has opened a formal investigation into children’s metal jewelry “to determine the action CPSC needs to take to keep children safe.” Also, according to that blog, Tenenbaum’s taped comments to the Hong Kong conference warn that “voluntary efforts” to keep heavy metals out of children’s products will “only take us so far,” and that the CPSC will soon develop mandatory standards to deal with heavy metal.

The Associated Press reportedly found high levels of cadmium in certain children’s bracelet charms and pendants sold in stores in New York, California, Texas and Ohio, and states that cadmium doesn’t have to be swallowed to be dangerous to children. In that article, a CPSC official was quoted over the weekend saying that if Chinese producers have shifted from using lead to using cadmium, “CPSC will take appropriate action.”

Tenenbaum was originally due to speak in Hong Kong on Tuesday but canceled her trip in order to continue work on CPSC recommendations to Congress on how the Consumer Product Safety Improvement Act of 2008 might be amended in order to allow more flexibility in how it is implemented. That report to the Hill is due Friday. Tenenbaum’s taped speech still praises China for working to remove lead from children’s toys.

As expected, there is a quick response from the U.S. Congress to the AP investigation that found cadmium in some children’s jewelry. Today Senator Charles Schumer (D-NY) unveiled legislation to define cadmium as a banned hazardous substance. According to his press release, the legislation will also ban the use of two other heavy metals, antimony and barium. As reported yesterday, CPSC Chairman Inez Tenenbaum said the CPSC is conducting an internal investigation. But there is no clear direction from the CPSC available yet for companies on how to handle these products or appropriate testing standards. So far at least two companies have voluntarily recalled children’s jewelry that contained cadmium.
In addition to the comment process and hearing that will be held at the Office of the U.S. Trade Representative on negotiating objectives for U.S. participation in the Trans-Pacific Partnership free trade agreement, the U.S. International Trade Commission today announced its own investigation and hearing on the probable economic effect of duty-free treatment for imports under the proposed agreement. The USITC is planning a public hearing on March 2, 2010. Requests to participate in that hearing must be submitted by February 16.

USTR has not yet scheduled its hearing, but written comments for its inquiry are due by January 25. USA-ITA has already begun drafting written recommendations on negotiating objectives for the agreement, which, besides the United States, is expected to include Australia, Brunei Darussalam, Chile, New Zealand, Peru, Singapore, and Vietnam. USA-ITA members with an interest in the TPP negotiations are urged to contact the association to provide input.